text:
    A90A1455.
    BODYSLIMMER, INC. v. SANFORD.
    (398 SE2d 840)
   Pope, Judge.

Appellant/defendant BodySlimmer, Inc., appeals from the grant of appellee/plaintiff Suzanne Sanford’s motion for partial declaratory judgment which, in effect, was a motion for partial summary judgment on the effectiveness of a release signed by Sanford purporting to exculpate BodySlimmer from damages for negligence. The trial court found that the release was ambiguous and therefore was not a bar to Sanford’s action for negligence. The trial court further found that the release was void as against public policy.

The pertinent facts of this case are as follows: Sanford went to BodySlimmer, Inc., a weight-loss facility, to receive “treatment” for being overweight. BodySlimmer used a combination of diet and a “Thermo-BodySlimmer System” machine that applied deep heat to the body to effect weight loss. Before beginning the program, Sanford read and signed a document headed in bold type and in capital letters “IMPORTANT INFORMATION.” The next line was in bold type and read: “Do not use Thermo-BodySlimmer if you are: [the remainder of the document was in regular type] 1. Taking medicines affecting blood pressure. . . . Consult your physician for advice. 2. Taking diuretic medications. . . . Consult your physician for advice. 3. If you have an illness such as severe diabetes where there may exist a reduced sensitivity to heat. Consult your physician for advice. 4. Pregnant or immediately following pregnancy. 5. Minor age or elderly. [After explaining the beneficial effects of drinking water, the document continued:] I have read the important health information. I have been familiarized with the Thermo-BodySlimmer treatment and I agree to use the Thermo-BodySlimmer at my own risk. Furthermore, I understand that the Thermo-BodySlimmer makes no warranties or representations regarding medical, therapeutic or cosmetic benefits either expressed or implied. I hereby release Thermo-BodySlimmer, this facility and its employees from all claims now or in the future from any injury or damages in connection with the use of the Thermo-BodySlimmer.” Shortly after beginning the program, Sanford suffered second degree burns while using the Thermo-BodySlimmer machine. She then instituted this action.

1. Although BodySlimmer enumerates seven errors, the only argument asserted in its brief on appeal is that the trial court erred in finding that the release was void as against public policy. Therefore, the remaining errors are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

2. The basis of the trial court’s ruling that the release violated public policy was that the Thermo-BodySlimmer System machine was regulated by the federal Food and Drug Administration, that the product was marketed as a public health service and that use of the product apparently requires the customer to place himself under the care and control of BodySlimmer’s employees. The authority relied upon by the trial court was Porubiansky v. Emory Univ., 156 Ga. App. 602 (275 SE2d 163) (1980), aff’d 248 Ga. 391 (282 SE2d 903) (1981). In Porubiansky, the Court of Appeals held unenforceable a contractual provision purporting to release a dentist and dental school from liability for professional negligence. The court applied six factors to determine whether the exculpatory clause in question should be held unenforceable as against public policy: “(1) It concerns a business of a type generally thought suitable for public regulation. (2) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. (3) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. (4) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. (5) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. (6) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness of the seller or his agents.” (Mentions omitted.) Porubiansky, supra at 607.

In the case of Day v. Fantastic Fitness, 190 Ga. App. 46 (378 SE2d 166) (1989), this court noted that exculpatory clauses in health or fitness club contracts do not violate public policy. See My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (364 SE2d 580) (1988); Lovelace v. Figure Salon, 179 Ga. App. 51 (1) (345 SE2d 139) (1986). The issue presented on appeal is whether the situation in the present case involving a weight loss establishment is analogous to that in Porubiansky, supra, or to the situation in Day, supra. We conclude that it is analogous to the situation of the health or fitness clubs and that Day, supra, controls.

Weight loss establishments are not businesses generally thought suitable for public regulation, nor is the service of great importance to the public (although it is desirable to have these services available). Though the marketing material for the Thermo-BodySlimmer System refers to the machine being approved by the Food and Drug Administration and claims that the machine provides effective treatment for weight loss, detoxification, improved skin tone and other therapeutic uses including relief of back pain, mental stress and arthritis, we note that the company carefully retracts all of these claims in a disclaimer of warranties on the page headed “IMPORTANT INFORMATION” described earlier in this opinion: “I understand that the Thermo-BodySlimmer makes no warranties or representations regarding medical, therapeutic or cosmetic benefits. . . .” (Emphasis supplied.) We further note that BodySlimmer also informs the purchaser that the slimming benefits of the machine are best achieved by combining use of the machine with a diet limiting daily caloric intake to no more than 1,200 calories a day. From the language on the information page advising the purchaser to “[c]onsult your physician for advice,” one can also infer that BodySlimmer did not claim to have physicians on staff or as part of the program. Nor do we agree with the trial court that Sanford placed herself under the control of the agents or employees of BodySlimmer in a manner different from that described in Lovelace, supra, in which this court upheld a release. There, the injury allegedly resulted from use of a leg curling machine under the direct supervision of a club employee.

For these reasons, we hold that the exculpatory clause in the present case is not void as against public policy. Therefore, that portion of the trial court’s order so holding is reversed. However, the trial court’s finding that the release is ambiguous because it is unclear whether it applies to cases arising from negligence (which is not mentioned in the release) or only to cases arising from using the machine while under medication, pregnant, with severe diabetes, or while a minor or elderly and thus is not a bar to this action is affirmed because that enumeration of error was abandoned on appeal.

Decided November 14, 1990.

John L. Watson, Jr., for appellant.

Cofer & Beauchamp, Bryant K. Smith, for appellee.

Judgment affirmed in part and reversed in part.

Been, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A1555.
    BROWN v. THE STATE.
    (398 SE2d 842)
   Beasley, Judge.

Defendant appeals his convictions of possession of marijuana and possession of cocaine. OCGA §§ 16-13-2 and 16-13-30. He enumerates as error the admission of the State’s exhibits one through six on the grounds that the chain of this evidence was not linked to him. He further contends that the trial court erred in denying his motion for directed verdict and that the evidence was insufficient to sustain the verdict.

1. According to the State’s witness, exhibits one through six, identified as marijuana or cocaine or as containing those substances and items used in inhaling those drugs, were seized in a search in which defendant and a co-defendant, who had been sitting in a car, were arrested. Defendant objected to this physical evidence, contending that other evidence was also seized at the same time and confused, so that the State did not establish that the inculpatory evidence was his rather than his co-defendant’s.

The officer who arrested defendant testified that he seized the exhibit items as a result of a personal search of defendant. The items were enumerated as including 21 ziplock bags containing traces of suspected cocaine, plus two envelopes containing green leafy material, matchboxes containing burned wire mesh (used to filter cocaine smoke), disposable lighters and a pipe. The officer kept these marked items in his evidence locker and then transported them to the Crime Lab in Moultrie. A chemist at that laboratory, testifying as an expert, related that he received the marked items from the arresting officer and marked them for identification himself. He kept them in his evidence locker until the trial, except for the period when he tested them and found the presence of cocaine and marijuana.

“Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” Palmer v. State, 250 Ga. 219, 222 (3) (297 SE2d 22) (1982). The State is not required to exclude every possibility of tampering or misidentification. Ledesma v. State, 251 Ga. 487, 489 (6) (306 SE2d 629) (1983). Although defendant’s testimony contradicted in part the State’s evidence on this issue, the State did not, as a matter of law, fail to meet its burden.

Decided November 14, 1990.

Michael L. Bankston, for appellant.

J. Brown Moseley, District Attorney, Donald E. Henderson, Assistant District Attorney, for appellee.

2. The latter two enumerations raise essentially the same issue, whether a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). The evidence was sufficient so that a rational trier of fact could find proof beyond a reasonable doubt of defendant’s guilt of the crimes charged. Smith v. State, 188 Ga. App. 386, 387 (373 SE2d 77) (1988).

Judgment affirmed.

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


text:
    A90A1797.
    DARDEN v. THE STATE.
    (398 SE2d 843)
   Beasley, Judge.

Defendant appeals his convictions on three counts of violating the Georgia Controlled Substances Act, OCGA § 16-13-30.

1. Defendant contends that the trial court erred when it charged the jury that as to count one defendant could be found guilty if he committed the offense within four years of the date shown on the indictment. His ground is that the State had made the dates in counts one and two (selling cocaine to undercover agents) an essential element.

The trial court charged as to count two that the jury would be authorized to find defendant guilty if the State proved beyond a reasonable doubt the offense of selling cocaine “specifically on the eleventh day of August, 1989,” in the manner and method alleged in count two of the indictment and added “within any time of four years next preceding the date this bill of indictment was returned into this court.” The court further charged defendant should be given the benefit of the doubt if there was any reasonable doubt as to his guilt on the 11th of August 1989.

The court then added: “Let me go back to count one and say that you must, in order to find the defendant guilty on count one, believe that the offense alleged in count one occurred on the 23rd day of July, in Putnam County, Georgia. If you do not believe that, then you should find the defendant not guilty on count one. That is a fact alleged that you must find beyond a reasonable doubt in order for you to find the defendant guilty on count one.”

Decided November 14, 1990.

Lawrence & Ford, Francis N. Ford, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

Later in the charge the court further instructed: “The State, as I have mentioned to you, has alleged the dates to be specific and essential elements of the offenses charged in counts one, two and three. And, in order for you to find the defendant guilty on any one of those counts, you must find that the allegations are proven with regard to that particular date.”

At the close of the charge defense counsel stated: “No exceptions, your honor. I’d reserve the ability to make any pending review of the record.” When the court inquired, “do you know of anything else I need to clarify for the jury?” Defense counsel responded: “No. I think that last business about the date being part of the offense, I think you cleared it up to my satisfaction.”

Defendant forfeited his right to complain of any error in the instructions in this regard. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980); White v. State, 243 Ga. 250 (253 SE2d 694) (1979). Even if this were not so, the State’s evidence focused specifically on the dates charged in the indictment and defendant’s alibi evidence also targeted those dates. In context, the instructions were not so confusing as to constitute harmful error to defendant. Worthey v. State, 184 Ga. App. 836, 837 (1) (363 SE2d 54) (1987); Applin v. State, 166 Ga. App. 892, 893 (5) (305 SE2d 644) (1983), vacated on other grounds, Williams v. State, 252 Ga. 7 (310 SE2d 528) (1984); Thomas v. State, 158 Ga. App. 97 (1) (279 SE2d 335) (1981).

2. Defendant has pointed out testimony that he says casts doubt on the credibility of the State’s witnesses. The testimony was not impeached as a matter of law, and the jury resolved the conflicts, such as there were, with its verdict. See Worthey, supra at 838 (2). The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes with which he was charged. Smith v. State, 178 Ga. App. 19 (1) (341 SE2d 901) (1986).

Judgment affirmed.

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


text:
    A90A1827.
    In the Interest of C. R. D., a child.
    (398 SE2d 845)
   Beasley, Judge.

C. R. D., a minor, admitted to charges of theft by shoplifting, OCGA § 16-8-14, and accessing computers for fraudulent purposes, OCGA § 16-9-93. The juvenile court entered an order of probation with the condition that C. R. D. be required to pay $8,000 in restitution; he was to submit all monies earned while under court supervision. The order further contained the provision that C. R. D.’s parents were to pay $100. per month toward payment of the restitution, commencing when the father obtained a job paying in excess of $20,000 per year and when the mother earned an income exceeding $30,000 per year.

1. It is contended that the juvenile court was without statutory jurisdiction or authority to impose a restitution requirement on his parents.

OCGA § 15-11-35 (a) (5) grants to the juvenile court the power to issue “[a]n Order requiring that the child make such restitution as defined in paragraph (7) of Code Section 17-14-2.” The latter defines “restitution” as something paid or performed by the “offender.” In making the parents liable for the restitution, the court apparently relied upon the last sentence of the aforesaid subsection (5) which states that “[p]ayment of funds under this paragraph shall be made by the child or his or her family or employer directly to the clerk of the juvenile court entering the order. ...”

“Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. [Cit.]” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186). The plain language of OCGA § 15-11-35 (a) (5) fixes the restitution obligation on the juvenile, the offending party. This is in keeping with the declared public policy of restitution by “those found guilty of crimes” to those he or she has victimized. OCGA § 17-14-1. See also OCGA § 42-8-35 (7). To interpret the sentence quoted above as also conferring liability for restitution on the parents would require permitting the juvenile court to impose such obligation also on the child’s employer or on other family members. We could not attribute such an intention to the legislature. Legislative creation of a right in tort against parents and guardians for the malicious acts of a minor child, see OCGA § 51-2-3, is not authority to divert the criminal responsibility for restitution from the offending juvenile to his or her parents or guardians or to impose a criminal penalty on them.

If the legislature had intended to make parents liable for restitution for losses incurred by their minor children, it could and should have so stated. It did grant the juvenile court the power to order parents or other persons legally obligated to care for and support the juvenile to pay certain costs and expenses if financially able, after due process is afforded. OCGA § 15-11-56 (b). Restitution is not listed.

Decided November 14, 1990.

Crumbley & Crumbley, James T. Chafin III, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Assistant District Attorney, for appellee.

The reasonable reading of the concluding language of OCGA § 15-11-35 (a) (5) is that it specifies acceptable means or conduits by which the money owed by the juvenile offender may be paid, i.e., the mechanics of forwarding the restitution funds to the court. It is a statement of practical administrative convenience deemed necessary to implement restitution. It does not independently broaden restitution liability.

That portion of the juvenile court’s order of probation directing that restitution be paid by C. R. D.’s parents must be stricken.

2. The determination in Division 1 makes it unnecessary to address the remaining contention that the restitution directive to the parents violated their state and federal due process rights.

Judgment reversed in part and case remanded.

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


text:
    A90A2009.
    POPE et al. v. SKIPPER.
    (398 SE2d 846)
   Beasley, Judge.

Following a bench trial, defendant Ruby Pope, individually and in her capacity as executrix of the estate of her deceased husband, Carl Edward Pope, appeals a judgment in favor of her husband’s former wife, Inez Skipper f/k/a Inez Pope. Plaintiff sued to recover back child support and to impress an implied trust on life insurance proceeds.

The parties stipulated the following. The plaintiff married Carl Pope on July 24, 1962. On or about March 4, 1968, a life insurance policy in the face amount of $25,000 was issued to Pope naming plaintiff as beneficiary. Pope and the plaintiff were divorced April 3, 1979. The settlement agreement incorporated into the final decree provided: “Husband agrees to maintain in full force and effect and pay the premiums due on the policy of life insurance presently held by Husband covering Husband’s life. It is further agreed that said policy shall designate Wife as beneficiary.” The same insurer issued another life insurance policy in February 1980 in the face amount of $16,000 to Pope, naming Mary B. Pope, Pope’s then wife, as beneficiary. Pope surrendered the two life insurance policies to the insurer for a third policy issued in the total amount of the two pre-existing policies, $41,000, naming the defendant Ruby Pope as beneficiary.

The parties further stipulated that the maximum recovery available to plaintiff under her claim for the insurance proceeds is the $25,000 face amount of the original policy naming her as beneficiary. At the date of Pope’s death, he owed $1,140 in back child support. The court was to consider the deposition of the insurance agent who serviced all three policies.

The agent’s deposition testimony was that policy number one ($25,000 face amount), a whole life policy, contained a term rider which was converted to the additional permanent insurance contained in policy number two ($16,000 face amount), also a whole life policy. These two policies were “exchanged” for the third policy ($41,000 face amount), an “interest sensitive whole life plan.” The proceeds from the surrender of the first two policies were used to fund an additional paid up whole single premium insurance rider on the third policy.

The trial court determined that plaintiff had a vested interest in the proceeds of the subject policy in the amount of $25,000 inasmuch as Pope by his affirmative actions had cancelled the subject policy and redesignated a beneficiary in direct violation of the divorce agreement. The court also concluded that plaintiff was entitled to recover from Pope’s estate the $1,140 child support arrearage.

1. Defendant’s sole contention is that the trial court erred in finding that plaintiff had a vested interest in $25,000 of the insurance proceeds. She submits that the case is governed by Weiner v. Goldberg, 251 Ga. 470 (306 SE2d 660) (1983); Larson v. Larson, 226 Ga. 209 (173 SE2d 700) (1970).

Weiner and Larson are inapposite. In both cases, the actions apparently had been brought solely against the later beneficiaries, individually, rather than against the decedents’ estates, and the insurance policies named in the divorce decrees were terminated not by the deceased spouses’ affirmative acts of cancellation but rather by a change of employment in the former and cancellation by the employer in the latter. Moreover, in those cases, unlike the present case, there was no showing that the later policies at issue were replacements for the policies in effect at the times of the divorce decrees.

This case is governed instead by the principles set forth in Whitehead v. Whitehead, 191 Ga. App. 330 (381 SE2d 757) (1989), and the cases cited therein. Judgment in favor of plaintiff and against defendant as representative of the estate was authorized.

2. Plaintiff’s motion for damages for frivolous appeal pursuant to OCGA § 5-6-6 is denied.

Decided November 14, 1990.

Burt & Burt, Terry J. Marlowe, for appellants.

Alfred N. Corriere, for appellee.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A2241.
    AKINS et al. v. LIFE INVESTORS INSURANCE COMPANY OF AMERICA.
    (398 SE2d 584)
    Decided November 14, 1990.

      Charles N. Center, for appellants.

      Harris, Phillips & Harris, Steven D. Harris, for appellee.
   Deen, Presiding Judge.

On July 23, 1990, appellant filed a direct appeal to this court from an order entered on July 2, 1990, granting summary judgment for damages of less than $2,500. On August 31, 1990, appellant moved that his direct appeal be treated as an application for appeal pursuant to OCGA § 5-6-35 (a) (6), and that we consider the application as timely filed within 30 days of the judgment. Appellant has failed to comply with the discretionary appeal procedures. The motion is therefore denied, and the appeal must be dismissed. Covrig v. Campbell, 187 Ga. App. 39 (369 SE2d 293) (1988); Batchelor v. ISFA Corp., 191 Ga. App. 238 (382 SE2d 434) (1989); Saben Appliances v. Waller, 194 Ga. App. 286 (390 SE2d 431) (1990).

Appeal dismissed.

Pope and Beasley, JJ., concur.


text:
    A90A2290.
    KELLY v. ADAMS et al.
    (398 SE2d 848)
   Deen, Presiding Judge.

Kelly sued Adams and Payne for damages resulting from a three-automobile collision. From a judgment for appellees entered on a jury verdict, Kelly appeals, claiming the trial court erred by instructing the jury on the doctrines of legal accident and sudden emergency.

Adams, Kelly and Payne were driving separate automobiles traveling in the same direction on the same two-lane road. Adams drove the lead car, followed by Kelly, who was followed by Payne. It was latp afternoon on a dry, sunny day. All three cars were traveling about 35 to 45 mph in a 55 mph zone as they approached a stretch where the road inclined to the crest of a hill, then sloped downward, and curved off to the right. The downward slope of the road on the far side of the hill was not visible to the drivers ascending the incline until they reached the crest of the hill. There were no vehicles approaching from the opposite direction. According to Adams, as she crested the hill she immediately saw objects in her lane of the road just over the crest that appeared to her to be “white stuff” or pieces of paper. Believing she could simply run over the objects, she attempted no evasive action, struck the objects and after striking them realized they were not paper. In fact, Adams had run into a pack of dogs that was in the road just over the crest of the hill. On impact she immediately applied her brakes. With dogs dragging underneath, her car came to a stop and stalled in the road a short distance over the crest. Adams testified her car had recently been prone to stall when she applied brakes to stop. Kelly testified he was five or six car lenghts behind Adams on the incline. On reaching the crest he saw Adams’ car stopped in his lane, immediately applied his brakes, but was unable to stop before colliding with the rear of Adams’ car. Because of the short distance from the crest to where Adams’ car was stopped, Kelly testified he was unable to maneuver around the car. Immediately after Kelly hit Adams, Payne crested the hill and struck Kelly. Payne testified that when he crested the hill he saw both cars stopped in the road and immediately applied his brakes, but was unable to avoid a collision with Kelly’s vehicle, which was approximately 30 feet over the crest. Held:

1. Kelly claims that under the facts of this case no jury instruction on legal accident was authorized. “The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error.” (Emphasis omitted.) Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983). In this case a charge on legal accident was appropriate. Along with evidence that the accident could have been caused in whole or in part by negligence, there was also evidence authorizing the jury to conclude that the accident was not proximately caused by the negligence of any party. The jury could have concluded on the basis of Adams’ testimony, that on the instant of cresting the hill her hasty perception of the dogs as “white stuff” or paper was reasonable, or that regardless of the reasonableness of her perception, she had no time to avoid or react differently to the unforeseeable obstacle posed by dogs just over the crest. As to Kelly and Payne, there was evidence that on cresting the hill both drivers immediately braked, and neither driver had time to swerve around the accident. In short, the jury could have and did conclude that the accident was caused by an unforeseeable obstacle in the road rather than the negligence of any party. In finding for the defendants, the jury selected the legal accident option in its response to the special verdict utilized at trial. “ ‘Where the jury is authorized under the alternatives submitted by the evidence to find that the collision was not proximately caused by negligence but could have resulted from an unforeseen or unexplained cause, there is ample reason to give a charge on the law of accident. (Cit.)’ [Cits.]” Wilhite v. Tripp, 179 Ga. App. 428, 430 (346 SE2d 586) (1986); Southern R. Co. v. Ga. Kraft Co., 188 Ga. App. 623, 625 (373 SE2d 774) (1988); Jump v. Benefield, 193 Ga. App. 612, 614-615 (388 SE2d 864) (1989).

2. Kelly also contends the trial court erred by instructing the jury on sudden emergency. “ ‘The doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. (Cit.) The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence. (Cits.)’ [Cit.] ‘An emergency is a “sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributed not to lack of care but to lack of time to assess the situation.” (Cit.)’ . . . [Cit.]” Luke v. Spicer, 194 Ga. App. 183, 184 (390 SE2d 267) (1990); Franklin v. Hennrich, 196 Ga. App. 372 (395 SE2d 859) (1990). There was evidence showing that all of the parties as they crested the hill were confronted with a sudden and unexpected obstacle in the road, which required them to take one of several possible courses of action. Even if Adams did not apprehend the true nature of the danger until she actually hit the dogs, sudden emergency applies to the actions she took immediately following impact. After hitting and dragging the dogs she braked her car to a halt in the road, causing it to stall. She could have proceeded in her lane with the dogs under the car or steered to the shoulder of the road. On cresting the hill Kelly saw the stopped vehicle and immediately applied his brakes, but was unable to stop before hitting Adams’ car. He testified that he thought there was time to steer around Adams’ car, and as he hit the brakes he was trying to maneuver his car around, but was unable to do so. Payne was faced with almost identical circumstances as he crested the hill. Although there were no cars in the oncoming lane, he decided to brake because he did not believe there was time to swerve around. Whether or not an emergency existed is a question for the jury except in plain and indisputable cases. Ray v. Anderson, 189 Ga. App. 80, 82 (374 SE2d 819) (1988); Franklin, supra. Charges on the issues of sudden emergency and legal accident were supported by the evidence and properly submitted to the jury. Reece v. Callahan, 164 Ga. App. 131 (296 SE2d 425) (1982).

Decided November 14, 1990.

Jack F. Witcher, John W. Kilgo, for appellant.

Downey, Cleveland, Parker & Williams, William S. Allred, M. Allen McDuffie, Webb, Carlock, Copeland, Semler & Stair, William T. Clark, for appellees.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Cooper, Judge.

text:
    A90A0801.
    PERKINS v. THE STATE.
    (398 SE2d 702)
   Cooper, Judge.

In May 1989, a detective with the sheriff’s department received information from a “concerned citizen,” who the detective knew to be a reliable person, regarding possible criminal activity. The detective passed the information on to Deputy Craft (“Craft”), who conducted the ensuing investigation and testified at trial. The “concerned citizen” was a business owner who stated that a construction worker told him that the worker was doing work on certain premises when he discovered cash and automatic weapons behind a bed. Upon receiving this information, Craft began an investigation and discovered: appellant had been leasing the premises visited by the construction worker for several weeks; appellant had previous drug convictions, including a conviction, for heroin conspiracy for which he was sentenced to six years in prison; and appellant had supplied another address to authorities when he was involved in an auto accident in February 1989. On June 12, Craft surveilled the second address of appellant, picked up abandoned trash which had been deposited at the curbside and inventoried the contents. Craft found papers containing mathematical calculations which he concluded were drug transaction figures and three small envelopes, one of which contained a substance which the state crime lab tested positive for marijuana. On June 26, Craft inventoried abandoned trash from appellant’s leased premises and discovered 26 plastic ziplock bags, which are commonly used for the distribution of cocaine. On July 10, Craft again inventoried trash from the leased premises and found a plastic baggie containing a white powder residue of suspected cocaine and an envelope containing suspected marijuana. Craft stated that a fellow detective tested and positively identified the marijuana.

On July 11, Craft included the above information regarding appellant, the “concerned citizen” and the inventories in an affidavit for a search warrant for the leased premises. The affidavit indicated that Craft himself received the tip from the “concerned citizen” and although Craft testified in the suppression hearing that he had monitored both premises and had observed appellant or appellant’s vehicle at these premises, these observations were not specifically averred in the affidavit. Craft did not specify in the affidavit that there was a third trash inventory on July 10 but only described the items found. Craft also did not aver that the white residue found on July 10 was positively identified as cocaine because the crime lab report which contained that information was not returned until August 7.

The search warrant was issued and was executed on July 11. As the officers entered appellant’s yard and announced their identification, appellant, who was in the yard with his children and three dogs (two Rottweilers and one Doberman), yelled to the dogs to “get ’em” and ran into the house. The dogs then advanced quickly and threateningly toward the officers who, in fear of being attacked, shot all three dogs. The officers followed appellant into the house where illegal drugs and weapons were seized. On July 12, based on the same facts averred in the first affidavit together with the results of the search and an assertion that some evidence may have been disposed of in the toilet, Craft submitted a second affidavit and obtained a second warrant to return to the premises and search the septic tank. Appellant was convicted by a jury on all six counts of the indictment — possession of more than 28 grams of heroin, aggravated assault on a law enforcement officer (two counts), possession of cocaine, possession of marijuana and possession of firearms by a convicted felon.

1. Appellant’s first enumeration of error alleges that the trial court erred in denying his motion to suppress because the supporting affidavits were insufficient to establish probable cause. Specifically, appellant asserts that the information in the affidavits was stale, the affidavits did not contain factual assertions regarding anyone’s personal observations of appellant’s alleged criminal activity, and the affidavits did not contain enough facts to establish a sufficient ownership connection between appellant and the trash that was searched.

“In determining whether probable cause supported issuance of a search warrant, a ‘totality of the circumstances’ test is employed. ‘The task of the issuing magistrate is simply to make a practical, commonsense 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 conclud(ing)’ that probable cause existed.’ [Cit.]” Butler v. State, 192 Ga. App. 710 (1) (386 SE2d 371) (1989). The determination of staleness is now included in the broad overview of “totality of circumstances.” Ayers v. State, 181 Ga. App. 244 (2) (351 SE2d 692) (1986). Although time is an element of the concept of probable cause, “the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.] When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. [Cit.]” State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).

Reviewing all the circumstances set forth in the affidavits, we conclude that there was a substantial basis for the magistrate’s determination of probable cause. The information provided by Craft, arising out of his official investigation, was sufficient to establish probable cause. Caffo v. State, 247 Ga. 751 (2) (b) (279 SE2d 678) (1981). In addition, the magistrate was entitled to rely on the officer’s knowledge of appellant’s past criminal conduct. Id. at 755. The affidavit indicated the existence of an ongoing scheme to sell drugs, consequently, we cannot say that the statements in the affidavit were so stale as to make it unlikely that illegal drugs would be found on the premises at the time of the issuance of the warrant. See id. at 755. Although not all of the recitations in the affidavits were entirely accurate and despite the lack of statements regarding personal observations of appellant and his criminal activity, on the whole the affidavits supported the finding of probable cause. See Ayers, supra at 248.

As to the connection between appellant and the trash, Craft stated that the trash was located at the curbside or at the roadway of the residences observed, and further stated the bases for connecting appellant to each of these residences, such as appellant’s name on the lease of one residence, and the other residence being listed by appellant in connection with an auto accident together with a car registered to appellant located at that residence. The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection at the curb outside the home. California v. Greenwood, 486 U. S. 35 (108 SC 1625, 100 LE2d 30) (1988). Utilizing the deferential standard of review appropriate for searches conducted pursuant to a search warrant, State v. Morrow, 175 Ga. App. 743 (4) (334 SE2d 344) (1985), we conclude that appellant’s first enumeration of error is without merit and the trial court did not err in denying appellant’s motion to suppress.

2. Appellant contends that the trial court erred in refusing to dis- | miss Counts two and three of the indictment as they fail to describe the charge of aggravated assault on a law enforcement officer. “A person commits the offense of aggravated assault when he assaults: . . . With a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21. Counts two and three charge that appellant assaulted the police officers in the performance of their duties “by instructing two Rottweilers and one Doberman Pinscher dogs to attack said officer[s], said dogs being deadly weapons and likely to cause serious bodily injury in the offensive manner used, with the intent to cause harm to said officer[s].” The use of a dog can be considered a deadly weapon. Michael v. State, 160 Ga. App. 48 (1) (286 SE2d 314) (1981). “An accusation or indictment is legally sufficient so long as it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. [Cit.]” Manley v. State, 187 Ga. App. 773, 776 (2) (371 SE2d 438) (1988). The indictment as quoted clearly sets forth the elements of the offense charged and the actions constituting the offense; this enumeration has no merit.

Decided September 4, 1990

Rehearing denied November 15, 1990.

Rubin, Winter & Rapoport, Joseph M. Winter, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

3. In the third enumeration of error, appellant asserts that the evidence was insufficient to support the convictions of aggravated assault. The two officers who entered appellant’s yard testified that after they announced their presence, the appellant yelled “get ’em,” and the dogs then began to advance quickly and threateningly toward the officers. The officers stated that they felt the dogs were a threat to their safety. The evidence was sufficient to authorize the jury’s finding that appellant was guilty of aggravated assault on a law enforcement officer beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A90A1059.
    JENNETTE v. THE STATE.
    (398 SE2d 734)
   Cooper, Judge.

Appellant was indicted on five counts of sexual assault against persons in custody pursuant to OCGA § 16-6-5.1, and five counts of simple battery pursuant to OCGA § 16-5-23. At the time of his arrest, appellant was the Jr. ROTC instructor for the Rockdale County school system. The indictments were based upon statements from five of appellant’s female students that appellant had touched them in intimate areas in a sexual manner at school during school hours. These five students testified at trial, and two former students of appellant testified as to similar incidents in which they also had been touched by appellant in similar ways. Also, at trial, one of appellant’s witnesses testified on cross-examination by the State that she had been similarly touched by appellant.

Appellant was acquitted on all the sexual assault counts, and was convicted by the jury on two of the battery counts. After appellant’s motion for a new trial was denied, this appeal, raising eight enumerations of error, was filed.

1. Appellant first asserts that reversible error occurred because the crime of sexual assault against persons in custody does not apply to the student/teacher relationship. Any error with regard to the sexual assault counts has been rendered moot by the full acquittal on those counts. See Lamar v. State, 243 Ga. 401 (6) (254 SE2d 353) (1979); Hayes v. State, 182 Ga. App. 26 (1) (354 SE2d 655) (1987).

2. Appellant next contends that the trial court erred in limiting the scope of the cross-examination of the State’s witnesses by refusing to allow questions relating to their past sexual conduct and experience. The trial court may exercise its discretion to restrict the scope of cross-examination to the issues, and such exercise will not be interfered with on appeal unless an abuse is present. Haynes v. State, 180 Ga. App. 202 (3) (349 SE2d 208) (1986). In cases of child molestation, “ ‘[t]he past sexual experience of a child ... is irrelevant to the issue of whether molestation was committed by the defendant. . . . [Cit.] [E]vidence as to the victim’s reputation for nonchastity is not admissible. Nor may evidence be admitted to discredit the victim by showing her preoccupation with sex. (Cits.)” Harris v. State, 189 Ga. App. 49 (3) (375 SE2d 122) (1988). Although appellant is not charged with child molestation, the victims involved were young — ranging in age from 14 to 17 years old. The trial court analogized to the child molestation law and disallowed the attempted cross-examination. “An irrelevant or immaterial line of inquiry may be curtailed without violence to a defendant’s permissible scope of cross-examination. [Cit.] Under the circumstances of this case, we find no abuse of discretion by the trial court in its limitation of [appellant’s] cross-examination on this point.” Deyton v. State, 182 Ga. App. 73 (3) (354 SE2d 625) (1987).

3. In his third enumeration, appellant asserts error in the trial court’s refusal to admit expert testimony regarding certain psychological profiles. Appellant first sought to admit testimony on the “lying child syndrome” to explain the propensity of a child to relate and to repeat untruthful statements about a person who is an authority figure in their life in order to manipulate that child’s environment. Appellant also sought to introduce an expert to testify that, after evaluating a battery of psychological profile tests given to appellant, appellant does not fit the profile of a child or adolescent sex abuser. In Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981), the Georgia Supreme Court elucidated the correct rule for the admission of this type of expert testimony as follows: “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]” In Smith, the court allowed testimony on the “battered woman syndrome” to assist the jury in evaluating the defendant’s claims of self-defense. Similarly, our courts have allowed experts to testify on the “battered child syndrome” to assist the jury in determining if the child has been molested based upon an expert’s physical exam and case history. See State v. Butler, 256 Ga. 448 (2) (349 SE2d 684) (1986). However, in Sinns v. State, 248 Ga. 385 (3) (283 SE2d 479) (1981), the court refused to extend the Smith rule to the voluntariness of a confession, stating, “[t]he Smith holding was the result of the need to treat a unique and almost mysterious area of human response and behavior. The voluntariness of a confession is not a circumstance akin to the complex subject of battered wife syndrome.” Id. at 387. Notwithstanding Smith, “[i]n Georgia, where (a) the path from evidence to conclusion is not ‘shrouded in the mystery of professional skill or knowledge,’ and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. [Cits.] A party may not bolster his opinion as to the ultimate issue with expert testimony when the jury could reach the same conclusion ‘independently of the opinion of others.’ [Cit.]” Williams v. State, 254 Ga. 508 (2) (330 SE2d 353) (1985). “Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. [Cit.] An expert witness may not testify as to his opinion of the victim’s truthfulness. [Cits.]” State v. Oliver, 188 Ga. App. 47 (2) (372 SE2d 256) (1988).

The testimony on the “lying child syndrome” sought to be introduced by appellant goes to the credibility and believability of the victim witnesses’ testimony that appellant committed the acts charged. The profile testimony sought to be introduced by appellant goes to the credibility and believability of appellant’s own testimony that he did not commit the acts charged and further speaks to the ultimate fact of whether appellant committed those acts. From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victims’ truthfulness and the appellant’s capability of performing the acts he was accused of. These determinations did not involve “unique and mysterious areas of human response” necessitating expert testimony. This enumeration is without merit.

4. Appellant next enumerates that the evidence on the similar incidents should not have been admitted. “ ‘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. Such evidence may be admitted to show state of mind or intent of a defendant. 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.’ [Cit.]” White v. State, 193 Ga. App. 428 (4) (387 SE2d 921) (1989). The disputed testimony involved allegations very similar to those of the victims, such as kissing and touching on the school premises during school hours when appellant was the teacher and the witnesses were students. The trial court did not err in allowing such testimony.

Appellant further alleges that the State violated Uniform Superior Court Rule 31.3 in that the notice of the similar incident testimony provided to appellant was deficient because the testimony related to different time frames than that set forth in the notice. Although appellant does not cite this court to a clear portion of the record where the actual notice appears, the transcript cited reveals that as to one witness, there was an approximate three-month discrepancy. Appellant has made no showing that any of his substantial rights were deprived by this discrepancy, Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796) (1987), and we find that there was substantial compliance with the notice rule. Additionally, appellant did receive notice of the exact time frames at the hearing held by the trial court prior to the trial. See Stewart v. State, 180 Ga. App. 266 (2) (349 SE2d 18) (1986). As to the failure to give prior notice of the cross-examination testimony of the appellant’s witness, since the State had no prior knowledge of such testimony, no notice to appellant was required. See Eidson v. State, 182 Ga. App. 321 (2) (355 SE2d 691) (1987).

5. In his fifth enumeration of error, appellant asserts that the trial court erred in withholding documents used by the State’s witnesses to refresh their recollections at trial. He appears to argue that certain statements made by the witnesses prior to trial and used by the witnesses to refresh memories prior to trial were not given to appellant to review. The cites given by appellant with regard to each witness indicate either that the statement in issue was made and used to refresh memory prior to the commencement of the trial, or was in fact made available to appellant. Appellant had no right of access to any statements used to refresh memory prior to the inception of the trial. Johnson v. State, 259 Ga. 403 (2) (383 SE2d 118) (1989). Appellant has not advanced any citations, evidence or authority to carry his burden of establishing his right of access to the statements. Cornwell v. State, 193 Ga. App. 561 (4) (388 SE2d 353) (1989). Consequently, no error occurred.

6. Appellant next contends that the failure to allow him access to the statements made by the State’s witnesses violated Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), which allows prior inconsistent statements to be used as substantive evidence, and Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). The citations provided by appellant do not indicate that appellant made a request to introduce these statements into evidence per Gibbons; appellant was concerned about these statements only for impeachment purposes and because they were used to refresh memory. Appellant was in fact provided with several of the statements, including the ones of the witnesses for which convictions were returned. Appellant gives no specific arguments as to how access to the other statements would have created a reasonable probability that the outcome of the trial would have been different, and therefore appellant has not met his burden of establishing a Brady violation. Horne v. State, 192 Ga. App. 528 (4b) (385 SE2d 704) (1989).

Also without merit is appellant’s argument that Brady was violated when the State failed to disclose information regarding witness Ray’s decision not to pursue her original complaint against appellant. The evidence shows that appellant was present at the meeting in which Ray made her decision and was fully aware of the situation. The Brady rule applies only to exculpatory material unknown to the appellant. Gilreath v. State, 247 Ga. 814 (6) (279 SE2d 650) (1981).

7. We find no merit to the contention of appellant that the trial court erred by referring to the State’s witnesses in open court as “young lady” or by stating, when a witness became upset, that “no one is going to bother you,” or by referring to the witnesses as “little girls” in bench conferences with the attorneys. These statements do not express or intimate the court’s opinion as to the evidence or the guilt of the accused. OCGA § 17-8-57.

8. Appellant’s three-fold enumeration on the court’s charge to the jury is meritless. The transcript of the charge clearly reveals that the court did tell the jury that if the standard for proving guilt was not met then they were to find the appellant not guilty. Since appellant was convicted only of battery, his contention that the court erred in submitting all charges of the indictment to the jury for possible conviction because battery is included within the crime of assault, is now moot. We so determine without expressing any opinion on the substance of appellant’s argument. There was no error in failing to charge on perjury, since no written request to charge on perjury was submitted. Williamson v. State, 156 Ga. App. 615 (2) (275 SE2d 699) (1980).

Decided October 16, 1990

Rehearing denied November 15, 1990

Harger W. Hoyt, Strauss & Walker, C. Michael Walker, for appellant.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A90A1230.
    REEVES v. AMERICAN BANKING COMPANY.
    (398 SE2d 74)
   Birdsong, Judge.

Appellant Wilhelmine Reeves is the widow of Jimmy A. Reeves. Prior to his death on December 18, 1987, Mr. Reeves had numerous loans with appellee American Banking Company and always carried credit life insurance for the amount of the indebtedness. At the time of Mr. Reeves’ death, there was an outstanding indebtedness of approximately $15,000.

Originally in 1983, Mr. Reeves borrowed $25,000 on a one-year note. The note was renewed a year later, and then renewed each 90-day period, with Mr. Reeves making a payment, and paying the premium for the insurance upon each subsequent renewal.

Over the past several years, Mr. Reeves and Randy Kelly, the bank’s loan officer, had developed a pattern in which Mr. Reeves frequently renewed the note a few days after the scheduled date of maturity and back-dated the renewal note to the scheduled maturity date. This was done because Mr. Reeves was usually out of town when the note matured. The bank never objected to this arrangement, and never considered the note in default. Mr. Reeves always requested credit life insurance with the renewals of the loan. The bank always collected the premium from Mr. Reeves and received 40 percent of the premium as agent for the insurer. The bank always accepted the premium for insurance from Mr. Reeves whether it was paid early or late.

Randy Kelly, the loan officer, testified that he never advised Mr. or Mrs. Reeves the insurance would lapse if the note was renewed after the maturity date. The bank always accepted the premium payment from Mr. Reeves for the full 90 days of coverage on each late renewal even though Kelly was aware that no coverage had actually existed after the previous maturity date and before the next renewal date. Mrs. Reeves testified that she and her husband had always relied upon the bank to procure the credit life coverage and to maintain the coverage in effect.

The final renewal note was scheduled to mature on December 12, 1987. On December 11, 1987, Mrs. Reeves telephoned Mr. Kelly and requested additional time to renew the note because her husband was out of town. Randy Kelly informed appellant there would be no problem as far as the bank was concerned and that Mr. Reeves could renew the note when he returned to town. On December 18, 1987, however, Mr. Reeves died. There was no written renewal of the note prior to Mr. Reeves’ death. As a result, the credit life insurance lapsed according to the terms of policy on December 12,

Mrs. Reeves brought this action to enjoin the bank from foreclosing upon her residence and to cancel the note and security deed. The trial court denied the injunction, and the Supreme Court affirmed that denial. See Reeves v. American Banking Co., 259 Ga. XXXII. Thereafter the bank was granted summary judgment as to the plea for cancellation of the note and security deed. Mrs. Reeves appeals. Held:

Construing all evidence against the movant and in favor of the respondent, and giving the respondent the benefit of all reasonable doubt and favorable inferences on the bank’s motion for summary judgment (Coca-Cola Co. v. Denmark, 182 Ga. App. 883, 894 (357 SE2d 286)), we yet find no issue of fact exists as to whether the bank’s officer was or had become the agent for Mr. Reeves for the purpose of keeping the credit life insurance in effect, or was negligent for his failure to do so.

The evidence, viewed in favor of Mrs. Reeves, raises no issue of fact as to whether Mr. or Mrs. Reeves was in ignorance of the necessity of obtaining credit life insurance upon each renewal of the note. The evidence shows they were aware of the necessity of doing so, because they always did so. If the loan officer never specifically told Mr. Reeves or Mrs. Reeves that the insurance would lapse when the note became due, there is no evidence they did not know it. The evidence, viewed in respondent’s favor, shows at best that the note had frequently been allowed to mature without being called in default, and Mr. or Mrs. Reeves was allowed to renew the note late and obtain insurance. There is no evidence of any agreement that the bank’s officer would renew the note for Mr. Reeves and obtain credit life insurance for him, and clearly he could not do so.

The “pattern” established by the parties in this case depended upon the condition subsequent that Mr. Reeves or his wife would actually renew the note and obtain the insurance by paying the premium. The grace period extended by the bank in the past depended entirely upon the assumption that Mr. or Mrs. Reeves would come in and renew the note; it was a convenience offered to Mr. Reeves and did not amount to a contract to keep the note and insurance in force or to renew them even when he, by reason of death, could not. The evidence shows simply, and beyond any genuine issue of fact, that the bank had allowed the note to mature without calling default; the note was not automatically renewed when it matured, so no inference of negligence can be drawn against the loan officer for failing to renew it himself and obtain insurance without payment of premium by Mr. Reeves.

Clearly the officer did not undertake to renew the note himself and obtain insurance for Mr. Reeves at any time. The bank simply refrained from calling the note in default, subject to Mr. Reeves’ renewing the note himself and paying the premium. The fact that when he did so in the past no premium was returned on account of his having remained alive between the time one note matured and another was renewed, did not create an obligation upon the loan officer or the bank to insure the note when it lapsed and before another was executed. No doubt if Mr. Reeves had asked for the return of any “unused” premium, the bank’s courtesy would be at an end, so it would be unfair to penalize the bank for it now.

Mr. Reeves was charged with knowledge of the contents of the insurance policy, i.e., that when a note matured, the credit life insurance lapsed. Brasington v. King, 167 Ga. App. 536, 538 (307 SE2d 16); Brown v. Mack Trucks, 111 Ga. App. 164, 166 (141 SE2d 208). It cannot be suggested that if Mr. Reeves had lived, and had returned to town and simply forgotten about the note, the loan officer would have been expected to renew the note and obtain insurance for it; clearly the note was in default and was without insurance coverage, and nothing could revive it except the renewal of the note by Mr. or Mrs. Reeves, as had always been the case in the past. While recognizing the tragic circumstances of the respondent brought about by the Reeves’ failure to renew timely the note and obtain insurance, clearly the bank’s generosity in accommodating Mr. Reeves in the past was based purely upon the assurance of his renewing the note and obtaining insurance. No fraud or misleading act is involved here.

No ground exists to deny summary judgment to the bank in this case.

Judgment affirmed.

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

On Motion for Rehearing.

On motion for rehearing, appellant Mrs. Reeves contends we overlooked the material fact that neither she nor her deceased husband knew that the credit life insurance coverage they had been purchasing from the bank lapsed whenever the bank allowed them to make a late renewal of their indebtedness to the bank.

Decided September 12, 1990

Rehearing denied November 15, 1990

Short & Fowler, James M. Bivins, for appellant.

Billy G. Fallin, for appellee.

This assertion is negated in the motion for rehearing itself, where appellant Reeves avers: “Randy Kelly, appellee’s loan officer, testified that Mr. Reeves always requested credit life insurance in connection with the renewals of the loans.” Appellant Reeves does not contend this testimony of Randy Kelly was false. Even giving Mr. and Mrs. Reeves the benefit of any doubt on the bank’s motion for summary judgment, it must be concluded beyond any genuine material issue of fact that if they always requested credit insurance when they did come in late to renew the note, then presumptively they knew the previous credit coverage had lapsed with the maturing of the previous note.

Moreover, appellant Mrs. Reeves in her motion for rehearing refers to the note as one “they” had been purchasing and as to which the bank had allowed “them” to make late renewals, and she avers that in the past she or Mr. Reeves would come in and renew the note. Assuming the debt was somehow a joint obligation, or that if it was Mr. Reeves’ debt nevertheless Mrs. Reeves had express or implied authority to renew the note as his agent, we are unable to find any reason, amounting to a legal excuse, why Mrs. Reeves did not renew this note at some time between December 12 when it matured and December 18 when Mr. Reeves passed away. Moreover, clearly by her telephone request that they be allowed to renew it late because Mr. Reeves was out of town, she knew it had to be actually renewed by her or Mr. Reeves. It would cause too much uncertainty in commercial affairs to impose upon the bank, after Mr. Reeves’ unfortunate death, a supposed obligation to have renewed the note for him and to have obtained credit life insurance for him, merely because it had allowed him to make late renewals while he was alive, especially when the evidence shows beyond genuine dispute that Mr. and Mrs. Reeves knew they must come in and renew the note themselves, and always requested credit life insurance when they did so.

Motion for rehearing denied.


author: Banke, Presiding Judge.

text:
    A90A1516, A90A1517.
    THOMAS v. GEORGIA BOARD OF DENTISTRY et al.
    (398 SE2d 730)
   Banke, Presiding Judge.

The appellant, a licensed dentist, brought the present action for declaratory and injunctive relief against the Georgia Board of Dentistry and William Miller, Jr., as Joint Secretary of the State Examining Boards, seeking to prevent the Board of Dentistry from taking action against him based on an opinion of the Georgia Attorney General to the effect that certain procedures being performed by him were not within the lawful scope of the practice of dentistry in Georgia. Case No. A90A1516 is an appeal from an order denying his application for a temporary restraining order and interlocutory injunction in that action, while case No. A90A1517 is an appeal from a subsequent order granting summary judgment to the appellees and dismissing the complaint. The appeals were originally directed to the Georgia Supreme Court, which transferred them to this court.

The appellant’s practice is limited to the neuromuscular evaluation and treatment of patients suffering from head, neck and face pain and temporomandibular joint (TMJ) pain and dysfunction. In August of 1989, appellee Miller, at the request of the Board of Dentistry, sought an opinion from the Georgia Attorney General as to whether six therapeutic and diagnostic procedures employed by the appellant in the diagnosis and treatment of TMJ disorders were within the scope of the practice of dentistry in this state as set forth in OCGA § 43-11-17. In response, the Attorney General issued an official opinion to the effect that a medical license was needed to perform the procedures in question and that performance of the procedures by someone not holding a medical license would constitute a felony under OCGA § 43-34-46. Op. Att’y Gen. 89-49. The board thereupon notified the appellant by letter that it had received and investigated certain complaints against him concerning his performance of “diagnostic and therapeutic procedures in the treatment of temporomandibular disorders” and had concluded, based on the opinion of the Attorney General, that his performance of these procedures “constituted the practice of medicine without a license.”

While the appellant was informed that administrative proceedings would not be initiated against him “based on the complaints already before the board,” he was further advised that “future performance of any of the enumerated procedures [would] be viewed as grounds for both the initiation of administrative proceedings against your license to practice dentistry in this state, as well as referral of the matter to the Composite State Board of Medical Examiners for any action they may deem appropriate.” The appellant then filed the present action, contending that the opinion of the Attorney General was based on a mistaken definition of the word “jaw” and that the board’s action in adopting it constituted an unconstitutional exercise of legislative authority by an executive agency. The trial court granted summary judgment to the appellees based upon a determination that the appellant had failed to exhaust his administrative remedies before bringing the action. Held:

1. OCGA § 50-13-19 (a) provides, in pertinent part, as follows: “Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter [the Administrative Procedure Act]. ... A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.” (Emphasis supplied.)

It has not been suggested what administrative remedies were available to the appellant under the circumstances of the present case. The board had, in effect, dismissed all pending complaints against him; and under OCGA § 43-11-48 (a), administrative proceedings can be initiated only “by the board upon its own motion or upon receipt of a signed written complaint.” Thus, the only way for the appellant to challenge the board’s position was to continue performing the procedures, thereby risking criminal prosecution for the felony offense of practicing medicine without a license and/or the initiation of administrative proceedings to revoke his license to practice dentistry. We do not believe this option can fairly be categorized as an available administrative remedy.

The requirement of exhaustion will be relaxed when “the administrative remedy exacts a price which causes it to be no remedy at all. . . . [I]f the remedy is available only upon exposure to loss of livelihood, it lacks the basic ingredients of adequacy. This is a circumstance which faces the appellant[] in this case.” Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226) (1986). “The purpose of the Declaratory Judgments Act is ‘to settle and afford relief from uncertainty and insecurity with the respect to rights, status and other legal relations. . . .’ [OCGA § 9-4-1] An action for declaratory judgment is available to test the validity of an alleged unconstitutional law, in order that a person desiring to practice his vocation may know whether he may proceed in disregard of the requirements of the law, or whether he must refuse to accept employment regulated by the law until he can comply with its provisions.” Jenkins v. Manry, 216 Ga. 538, 540-541 (118 SE2d 91) (1961). See also Wilson v. Ledbetter, 260 Ga. 180 (390 SE2d 846) (1990). Under the circumstances, we conclude that the present action was not barred by the appellant’s failure to exhaust available administrative remedies, and we accordingly hold that the trial court erred in granting the appellees’ motion for summary judgment and dismissing the complaint.

Decided October 15, 1990

Rehearing denied November 15, 1990

Chilivis & Grindler, Anthony L. Cochran, Lillian C. Giornelli, for appellant.

Michael J. Bowers, Attorney General, William B. Hill, Jr., Deputy Attorney General, Mark H. Cohen, Senior Assistant Attorney General, Roger M. Siegel, Assistant Attorney General, for appellees.

2. In denying the appellant’s request for an interlocutory injunction to prevent the board from taking action against him during the pendency of the declaratory judgment action, the trial court judge was undoubtedly influenced by his belief that the action for declaratory relief was not properly before it. Accordingly, consistent with our ruling in Division 1 herein, we remand the case to the trial court for further consideration of the merits of the request for injunctive relief. In so doing, however, we express no opinion whatever as to whether such relief would be appropriate.

Judgment reversed and case remanded with direction in Case

No. A90A1516; judgment reversed in Case No. A90A1517.

Birdsong and Cooper, JJ., concur.


text:
    A90A1659, A90A1660.
    ORNDORFF v. BROWN et al.; and vice versa.
    (391 SE2d 77)
   Banke, Presiding Judge.

The appellant, Orndorff, brought this action to recover for personal injuries he had sustained in an automobile accident while riding as a passenger in a vehicle owned by appellee Sherman Brown and being driven by the latter’s son, appellee Scott Brown. A jury awarded the appellant $20,404.08 in medical expenses and $2,300 in lost wages; but in entering judgment, the trial court reduced the award by $22,546.08 to reflect certain insurance benefits previously paid to the appellant by the appellees’ motor vehicle liability insurer, leaving a balance of only $158. Orndorff contends on appeal that the trial court erred in reducing the award, and the Browns contend in a cross-appeal that the trial court erred in not allowing them to present certain evidence regarding these benefits to the jury during the trial of the case.

The parties have stipulated to the following facts: The insurance policy at issue provided the minimum required personal injury protection, or no-fault coverage required by OCGA § 33-34-4. Prior to trial, the appellees’ insurer paid the appellant the entire $2,500 in medical benefits available under the terms of this coverage and also paid him no-fault benefits in the amount of $2,142 for lost wages. The policy also provided separately for reimbursement of medical expenses incurred by a passenger up to the amount of $25,000; and the insurer paid the appellant $17,904.08 pursuant to that provision of the policy, thereby fully compensating him for all his medical bills. Held:

Decided October 22, 1990

Rehearing denied November 15, 1990

Ballard, Slade & Ballard, Scott L. Ballard, for appellant.

McNally, Fox, Mahler & Cameron, Patrick J. Fox, Beck, Owen & Murray, Samuel A. Murray, for appellees.

1. While the appellant concedes that the $4,642 in PIP benefits which he received was properly set-off against the verdict, he contends that the trial court erred in reducing the award by the additional $17,904.08 which had been paid to him under the medical payments provision of the policy. Since the accident occurred prior to July 1, 1987, OCGA § 51-12-1 (b) (Ga. L. 1987, p. 915), which abolished the collateral source rule, is inapplicable to the case. See Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988). However, the collateral source rule merely prevented “ ‘the receipt of benefits or mitigation of loss from sources other than the defendant [from operating] to diminish the plaintiff’s recovery of damages.” (Emphasis supplied.) Id. at 55. See McGlohon v. Ogden, 251 Ga. 625, n. 1 (308 SE2d 541) (1983). The compensation at issue in the present case was received from the appellees’ motor vehicle liability insurer, the same ultimate source from which the appellant sought to recover damages in the present action. The collateral source rule has never applied so as to require an insurance company to pay “duplicate damages” to a claimant. Id. at 627-628. Consequently, we hold that the trial court acted properly in crediting these benefits against the amount of the verdict. The Supreme Court’s recent decision in Spence v. Hilliard, 260 Ga. 107 (389 SE2d 753) (1990), is not authority for a contrary conclusion, as the award at issue there was reduced because it was found to be excessive (see OCGA § 51-12-12) rather than to reflect payments previously made to the plaintiff on the defendants’ behalf.

2. The issue raised by the cross-appeal is rendered moot by the foregoing.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A1392.
    THRASHER v. THE STATE.
    (398 SE2d 850)
   McMurray, Presiding Judge.

Defendant appealed after his conviction for aggravated assault and armed robbery. Held:

1. Defendant asserts two grounds for error in his first enumeration. He first contends “the trial court erred during an unrecorded voir dire, when it instructed the jury that in order to qualify, a juror must come into a case without any opinion as to the guilt or innocence of the defendant.” Next, defendant “contends that the failure to record the court’s ruling and defense objections [during voir dire] constitutes reversible error.” Defendant’s first contention is not supported by the record. His second contention is without merit.

“ ‘ “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).” Meier v. State, 190 Ga. App. 625 (1) (379 SE2d 588).

In the case sub judice, voir dire was not recorded and defendant made no attempt under OCGA § 5-6-41 (f) to have the record or transcript amended so as to include any objectionable matter which might have transpired during voir dire. Defense counsel’s only attempt to perfect the record as to objections asserted during voir dire came after the jury was impaneled and sworn. The trial court then preserved the relevant portion of the record through the emphasized language of the following colloquy:

“[DEFENSE COUNSEL]: I would like the record to reflect that during the voir dire procedure I made a motion for mistrial. I guess it would be a challenge to the poll or to the pool at that particular point and asked the court to bring us a new pool based upon what I perceived as incorrect instructions and incorrect statements in the presence of all the jurors made by the court. And for purposes of the record, those statements were that the jurors were not to believe that the defendant as he was seated here was, in fact, innocent but they should come into this case not believing anything. And it was my position, judge, that the jurors as they come into a case must believe that the defendant as he sits there is, in fact, innocent. That is my understanding of the presumption of innocence as it pertains to a defendant in a criminal case.
“THE COURT: You defeat your own belief in the presumption of innocence. You tell me they should believe in his innocence. Those are two different things. And what the court explained to the jury was just that very fact; it is a presumption and they are required under the law to allow him that presumption of innocence. Obviously, if they believe he is guilty or they believe he’s innocent, they already made some determination about his guilt or innocence. And so when you ask the jurors — and this is what this arose about, and the record should show that, that you[, defense counsel,] are questioning the juror as to whether or not they believed your client was innocent, and the court indicated that was an improper question. They should not be required to respond to whether or not they believed he was innocent. The real question here was whether or not they presumed him to be innocent until they heard evidence to the contrary.
“[DEFENSE COUNSEL]: I believe a fundamental principle of our criminal jurisprudence, basic assumption of our criminal justice system that the juror must come into the case believing that the defendant is innocent as he sits there until and unless overcome by —
“THE COURT: Obviously I can’t deal with what you believe. I have to charge what the law is.
“[DEFENSE COUNSEL]: I’m perfecting the record because I believe it is my position that the court incorrectly charged.
“THE COURT: You show me authority to that effect.
“[DEFENSE COUNSEL]: That presumption means that the defendant is, in fact, innocent as he sits there.
“THE COURT: That’s an impossibility for anyone to believe that, if he was innocent of that, he was sitting there. There would be no need for a trial.
“[DEFENSE COUNSEL]: No, No, he cannot be made guilty by coming in here and trying him. He cannot be made guilty by the evidence. He comes into court either innocent or guilty the day he walks in here; the facts do not change. . . .
“THE COURT: There are facts.
“[DEFENSE COUNSEL]: There are no facts before potential jurors.
“THE COURT: I understand that, but the facts exist there when he walks in the court room, and they do not change. He’s either guilty or he’s innocent of the charge. Now, the jury is not trying to decide one way or the other. They are, however, to presume that he’s innocent. They must believe as he comes into court he is, in fact, innocent of the charge. I dealt with it. You made your motion.

Decided November 15, 1990.

Bruce S. Harvey, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Rebecca A. Keel, Assistant District Attorneys, for appellee.

“[DEFENSE COUNSEL]: I would renew it at this time.
“THE COURT: I overrule it. All right, let’s go on now.”

In Evans v. State, 222 Ga. 392, 400 (13) (150 SE2d 240), the trial court refused to allow defense counsel to ask a prospective juror, “ ‘Do you believe that and in your mind at this time, right now, is [defendant] sitting at this table innocent, an innocent man?’ ” The Supreme Court found this question improper, holding that no question should be framed so as to require a response from a prospective juror which might amount to a prejudgment of the case. Evans v. State, 222 Ga. 392, 400 (13), 401, supra.

In the case sub judice, defendant’s inquiry, i.e., “whether or not [the prospective jurors] believed [that defendant] was innocent,” was an improper inquiry because it called upon the prospective jurors to prejudge the case. Accordingly, the trial court did not err in ruling that the inquiry “was an improper question [and that the prospective jurors] should not be required to respond to whether or not they believed [defendant] was innocent.” Further, we find no error in the trial court’s ruling that “ [t] he real question here [was] whether or not [the prospective jurors] presumed [defendant] to be innocent until they heard evidence to the contrary.” This enumeration is without merit.

2. Defendant contends the trial court erred in failing to allow a defense witness’ testimony regarding statements made by the witness’ son.

Defense counsel asked a defense witness on direct examination, “Did [your son] tell you whether he was with anybody else?” The State’s attorney objected, arguing that the question was an attempt to solicit hearsay. Defendant argued that the testimony was admissible “under res gestae. . . .” The trial court sustained the State’s objection and excluded the question. Defense counsel did not attempt to perfect the record by proving the witness’ response.

“ ‘(A) judgment will not be reversed, on an exception to the refusal of the trial court to allow a competent witness to testify, where the record does not show what testimony the witness was expected to give.’ Hall v. State, 202 Ga. 619 (2) (44 SE2d 234).” Hickox v. State, 138 Ga. App. 882, 883 (3) (227 SE2d 829). This enumeration presents nothing for review.

Judgment affirmed.

Corley, C. J., and Sognier, J., concur.

       Defendant “has failed to follow our codal requirements that enumerations ‘shall set out separately each error relied upon.’ OCGA § 5-6-40; Hester v. Baker, 180 Ga. App. 627 (1) (349 SE2d 834).” Palmer v. State, 186 Ga. App. 892, 899 (4) (369 SE2d 38).


text:
    A90A1442.
    In the Interest of J. L. O., a child.
    (398 SE2d 853)
   McMurray, Presiding Judge.

The appellant brings this appeal from an order of the Juvenile Court of Fayette County terminating his parental rights with respect to his three-year-old daughter, J. L. 0.

This matter first reached the juvenile court upon petitions of deprivation filed by both the maternal and paternal grandparents of J. L. O. These petitions came on for hearing on March 17, 1989, and the juvenile court entered its findings that: At the time of the hearing the parents of J. L. 0. were separated. Custody of J. L. 0. had been placed in her mother by virtue of a consent order of the Superior Court of Fayette County, the same being the result of a complaint for prevention of family violence. Thereafter, the mother of J. L. 0. had been diagnosed as having an advanced stage of Acquired Immune Deficiency Syndrome (AIDS), apparently as a result of her relationship with appellant who has tested positive as a carrier of the HIV virus. Appellant was found to have had at least one homosexual relationship during his adult years and to have been discharged from the United States Navy on the basis of his being homosexual. Also, appellant has a history of clinical hospitalization for mental disorders and had been hospitalized within the 12 months preceding the hearing and diagnosed as schizophrenic with paranoia. Appellant was found to be an habitual drug user, including marijuana and cocaine. Drug paraphernalia had been removed from appellant’s home suggesting drug use in the home. Appellant had also threatened to abduct J. L. 0. and to do bodily harm to the child.

The juvenile court concluded that J. L. O. was a deprived child and placed custody with the maternal grandmother. Appellant was ordered to make child support payments and to pay the child’s medical expenses.

Thereafter, the maternal grandmother filed a petition to terminate the parental rights of appellant to J. L. O. A hearing was held on October 31 and November 1, 1989.

Based on the evidence presented at the termination hearing the juvenile court found that: Subsequent to the custody hearing in March 1989, appellant had used intoxicating liquors in excess and had twice been convicted of driving under the influence of alcohol. Appellant had not been able to maintain steady employment and had over five employers in the interval between the custody and termination hearings. Also, appellant had participated in the theft of several paychecks and the forgery of such checks. Threats had been made by appellant to the maternal grandmother of J. L. O. and appellant had failed to pay the child support previously ordered by the juvenile court.

Decided November 15, 1990.

The juvenile court concluded that J. L. 0. continued to be a deprived child and that such deprivation was caused by the failure of appellant to exercise proper parental care, was likely to continue and to cause serious physical, mental, emotional, and moral harm to J. L. 0., that is, that there was clear and convincing evidence of parental misconduct and inability. The juvenile court also concluded that after considering the physical, mental, emotional, and moral condition and needs of J. L. 0. that the termination of the parental rights of appellant was in the best interest of the child.

Appellant appeals the juvenile court order terminating his parental rights with respect to J. L. 0. The sole enumeration of error raises the sufficiency of the evidence. Held:

‘(T)he appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test. . ., is not met. When we apply that test here we note the conflicting evidence presented to the trial court and conclude that a rational factfinder could have found by clear and convincing evidence (parental misconduct or inability as provided by OCGA § 15-11-81 (b).)’ (Indention omitted.) In re B. D. C., 256 Ga. 511, 512-513 (350 SE2d 444) (1986). See also In the Interest of J. M. K., 189 Ga. App. 140 (375 SE2d 131) (1988); In the Interest of J. A. B., 189 Ga. App. 79 (1) (374 SE2d 839) (1988); In the Interest of S. G., 182 Ga. App. 95 (354 SE2d 640) (1987).” In the Interest of J. L. G., 191 Ga. App. 904, 905 (383 SE2d 376). See also In the Interest of C. M., 194 Ga. App. 503, 504 (391 SE2d 26). While a finding of unfitness must be based on present circumstances, we do not agree that no evidence about current circumstances was adduced at the termination hearing or that the evidence was insufficient to support the termination of appellant’s parental rights. In the Interest of J. I. H., 191 Ga. App. 848, 849 (3), 850 (383 SE2d 349).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

Roger L. Curry, for appellant.

Thomas J. McHugh, Jr., for appellee.


text:
    A90A1504.
    POUNDS et al. v. HOSPITAL AUTHORITY OF GWINNETT COUNTY.
    (399 SE2d 92)
   McMurray, Presiding Judge.

This is the second appearance of the case sub judice before this court. Upon remand to the trial court following our decision in Pounds v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 689 (382 SE2d 602), the trial court, pursuant to our direction, held a bench trial to determine the duration of plaintiff’s exclusive right to provide secondary transport (of patients from one hospital to another, more specialized or otherwise more appropriate treatment facility) to the defendant.

In an order entered on January 5, 1990, the trial court found that the duration of the contract in question was three-and-one-half years ending on July 20, 1986. A trial as to the issue of damages was set for January 31, 1990, and the trial court directed that all discovery on matters of damages should be concluded on or before January 30, 1990.

Plaintiff was being deposed on January 29, 1990, when he revealed that he was in the process of obtaining certain computer records which would show most, if not all, of the secondary transports in Gwinnett County for the years 1981 and 1982. The plaintiff intended to extrapolate his damages for the three-and-one-half year period at issue from this data. Plaintiff’s deposition stated that he did not realize he had the computer documents until shortly before the date of the deposition. The computer system from which the documents were being taken was not in use at that time and no one present at the deposition had seen the computer records. Consequently, the deposition was suspended until it could be completed by asking plaintiff questions concerning the computer records and the connection of those records to plaintiff’s loss of profits.

On January 30, 1990, plaintiff’s counsel received print-outs of the computer records and transmitted them via facsimile (fax) to defendant’s counsel. Contemporaneously, plaintiff’s counsel telephoned defense counsel and offered plaintiff for completion of his deposition. Plaintiff’s deposition was not reconvened. On January 31, 1990, the originals of the computer records (which had been transmitted the previous day) were hand delivered to defense counsel along with trip tickets which were corroborative of the computer print-outs.

When the parties convened before the trial court on January 31, 1990, defendant sought, by motion in limine, to exclude the computer evidence on the basis of surprise, and in the alternative, moved for a continuance. Plaintiff opposed the motion to exclude the computer evidence, but did not oppose the motion for continuance. The trial court sustained the defendant’s motion in limine. Thereafter, plaintiff moved to voluntarily dismiss the case without prejudice and tendered a voluntary dismissal of the case without prejudice. Defendant objected to the dismissal of the case and the trial court denied the motion to dismiss. The trial of the case proceeded, resulting in a judgment in favor of plaintiff in the amount of $8,444.40. Plaintiff appeals, enumerating as error the exclusion of the computer records and trip tickets and the trial court’s refusal to permit plaintiff to voluntarily dismiss his case without prejudice. Held:

1. “In order to establish lost profits, the jury must be provided with information or data sufficient to enable them to estimate the amount of the loss with reasonable certainty. Brock v. D. O. T., 151 Ga. App. 905, 906 (3) (262 SE2d 156) (1979). Generally speaking, this means that they must be provided with figures establishing the business’s projected revenue as well as its projected expenses. See Kitchens v. Lowe, 139 Ga. App. 526, 531 (228 SE2d 923) (1976). But see Bennett v. Smith, 245 Ga. 725 (267 SE2d 19) (1980).” Department of Transp. v. Vest, 160 Ga. App. 368, 369 (1) (287 SE2d 85). In the case sub judice, the trial court determined that plaintiff’s lost profits could not be determined due to plaintiff’s failure to prove his expenses. Plaintiff’s attempt to prove damages based on his experience in the earlier 1981 and 1982 period was flawed since plaintiff admitted that he had not taken into account all expenses of the business in calculating profits for this period. Nor did plaintiff present any records of expenses relevant to the actual period at issue. The amount of the judgment was taken from defendant’s admission that this amount was due and owing to plaintiff. The excluded evidence related only to plaintiff’s revenues and would not have cured the failure to prove I plaintiff’s expenses. Therefore, any error in the exclusion of this evidence (or denial of a continuance to permit further discovery in regard to this evidence) could not have been harmful. Harmless error does not require reversal. Malloy v. Elmore, 191 Ga. App. 564, 565 (382 SE2d 395); Powers Ferry Constr. v. Commerce Bldrs., 191 Ga. App. 327, 328 (2), 329 (381 SE2d 755).

2. The trial court erred in refusing to allow plaintiff to voluntarily dismiss his case without prejudice. The bifurcated procedure in the case sub judice appears to result in the presentation of a first impression question under the 1985 amendment to OCGA § 9-11-41 (a) (Ga. L. 1985, p. 546, §1). Under this statute as amended, and subject to some exceptions not relevant to the case sub judice, “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” While the trial court concluded that plaintiff’s right to voluntarily dismiss without prejudice was terminated when plaintiff rested during the trial of the liability issue, plaintiff argues that “case,” as used in the statute, means the entire case so that the effect of the statute is not triggered until he also rests as to the damages issue. We agree with the position advanced by plaintiff.

Decided November 15, 1990.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Jeffrey G. Casurella, for appellants.

Webb, Fowler & Tanner, Anthony O. L. Powell, William L. Hale, for appellee.

“[T]he inescapable conclusion is that the legislative intent behind the enactment of OCGA § 9-11-41 (a) was to afford a plaintiff, faced with a contrary verdict or other untenable position, a second chance to litigate his suit despite the inconvenience and irritation to the defendant.” Griggs v. Columbus Bank &c. Co., 188 Ga. App. 741, 743 (374 SE2d 347). We see no reason that the bifurcation of the trial should remove plaintiff’s right to escape the consequences of problems which arise during the proof of damages.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A2369.
    ROBINSON v. THE STATE.
    (399 SE2d 94)
   Deen, Presiding Judge.

Matthew Robinson was convicted of armed robbery and aggravated assault, but the trial judge merged the aggravated assault count into the armed robbery count at sentencing. On appeal Robinson contends that the trial court erred in denying his motion in limine because evidence of an unrelated crime which placed his character in issue was improperly admitted, and that the trial court erred in overruling his objection to certain hearsay testimony.

1. The seventy-four-year-old victim was beaten and robbed after he answered the doorbell of his residence/boardinghouse. He allowed the perpetrator into his residence because he recognized him from the neighborhood and believed that he wanted to purchase some items from his snack shop, which was located on the premises. After the assault the victim telephoned his daughter and asked her to come to his assistance. When she saw that he was bleeding from a head wound, she drove him to the hospital for treatment. The victim claims that he told his daughter that “Matthew” attacked him, and the daughter confirmed his testimony at trial. The victim apparently did not identify his attacker by name to the investigating police officer, as he could not recall his last name, and no arrest was made in the case. Almost one month later appellant was arrested on a burglary charge. The victim who took out the arrest warrant also informed the investigating officers that she knew of an incident where Robinson struck an elderly gentlemen over the head with a hammer and robbed him. The officers asked her to bring the old man to the patrol car. She brought him to the officers, they asked him if he could identify the person who assaulted him, and he responded that he could. An officer then took him over to the patrol car, and he immediately identified Robinson as the individual who struck and robbed him.

Decided November 15, 1990.

Jonathan Goldberg, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

Appellant’s contention that the circumstances of his arrest were inadmissible is without merit. “‘[A]ll the circumstances connected with the arrest, ... we consider proper evidence to be submitted to the jury to be weighed by them for what they are worth.’ [Cits.]” Cargill v. State, 255 Ga. 616, 640 (340 SE2d 891) (1986). It was therefore not error to deny appellant’s motion in limine and allow the evidence to be admitted.

2. The victim’s identification of “Matthew” to his daughter as his attacker was properly admitted as res gestae evidence. Under OCGA § 24-3-3, “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” Such evidence should be admitted if it is relevant and made without premeditation. Andrews v. State, 249 Ga. 223, 225 (290 SE2d 71) (1982). A trial judge’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous. Id. at 228. We find no error.

Judgment affirmed.

Pope and Beasley, JJ., concur.