text:
    A93A0861.
    GEORGIA PORTS AUTHORITY et al. v. HUTCHINSON.
    (434 SE2d 791)
   Birdsong, Presiding Judge.

Charles Hutchinson III sued Georgia Ports Authority and crane operator Cory Green for damages to his hand, caused when Green dropped a 12-to-20 ton container box while Hutchinson was hooking a “locking shoe” to the box. Hutchinson contends the crane and crane operator were controlled by the Ports Authority, and that although crane operators use radios to communicate with other dock personnel, the procedure for communication between crane operators and longshoremen ninety feet below was inadequate and unsafe, consisting merely of hand signals by a longshoreman with a white paper cup stuck on three fingers. Hutchinson claimed punitive damages and showed evidence of other injuries caused by unsafe operating practices and careless crane operators. The Ports Authority contended the flagman, who did not testify, had made a signal; Hutchinson claimed Green dropped the container box without a signal. The jury awarded plaintiff “damages in the amount of $394,750, which includes the amount of $12,127.57 for his medical expenses.” The Ports Authority appeals. Held:

1. The trial court correctly denied a directed verdict to the Ports Authority as to liability. A directed verdict is proper only where there is no conflict in the material evidence and the evidence, with all reasonable deductions, demands a certain verdict. OCGA § 9-11-50 (a). On appeal we view the evidence in favor of the verdict. Appellant says the evidence undisputedly establishes that the flagman gave a signal to lower the box, and that the only witness who says otherwise was impeached by his deposition testimony. However, the testimony as to what this witness said in deposition is unclear. The witness insisted at trial that the flagman gave no signal. We presume the jury reconciled any inconsistencies in the witness’ testimony. Hudson v. State, 163 Ga. App. 845 (295 SE2d 123). The evidence does not demand a finding that a signal was given and it does not demand a verdict for the Ports Authority. Union Camp Corp. v. Daley, 188 Ga. App. 756, 758 (374 SE2d 329).

2. Appellant contends the trial court erred in refusing to charge the jury on appellee’s equal or superior knowledge of dangerous conditions. This principle applies to “static” defective or dangerous conditions on property. See Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44 (2) (332 SE2d 304). There was debate that the crane was improperly equipped and thus “defective,” but the liability involves appellant’s negligence in requiring the use of inadequate hand signals to crane operators, and the negligence of the operator in dropping the container box without a signal. Appellant’s claim that appellee had equal/superior knowledge of a “defect” does not address proximate cause, which was the lowering of the box. Moreover, appellant has consistently claimed that even if the equipment was defective, the use of hand signals was safe and adequate to overcome any defect; yet by contending appellee is barred from recovery because he had equal/ superior knowledge of a defect, appellant is contending the operator had no duty at all to watch for hand signals. This is inconsistent and is an argument that crane operators and Ports Authority enjoy absolute immunity for injury to a longshoreman related to hand signalling. It is also a contention that appellee assumed the risk of this injury by accepting his employment, which appellant is estopped to assert because it is inconsistent with the contention that the hand signal procedure was safe and adequate. Shepard v. Streetman, 198 Ga. App. 474, 475-476 (402 SE2d 87). A jury charge that appellant would not be liable if appellee had equal or superior knowledge of defective conditions in the crane was not only unwarranted but would have been misleading.

Even if such a charge were authorized, the failure to give it was not reversible error, as the jury was fully charged that appellee had a duty of ordinary care for his own safety and that appellant would not be liable unless its negligence was the proximate cause of appellee’s injuries. See Colbert, supra.

3. The failure to give a charge per OCGA § 51-11-7: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover,” was not reversible error. The court charged on appellee’s duty to exercise reasonable care for his own safety and that appellant could not be liable unless its negligence was the proximate cause of appellee’s injuries. Under these charges, the jury found appellant’s negligence was the proximate cause of the injury. Although appellant suggests appellee was negligent, appellant cites no such evidence except that someone shouted that the box was dropping and the box was dropped at slow speed. Even assuming the box was dropped at slow speed, the evidence showed appellee moved his hand as soon as he realized the box was being dropped and acted fast enough to jerk his hand out of his glove; the glove was crushed by the box. As there was no evidence appellee was negligent, a charge on contributory negligence was not required. See Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (360 SE2d 418).

4. The trial court did not err in charging that if the Ports Authority or its agent was negligent, any negligence of the stevedore or other longshoremen was irrelevant. Appellant concedes this charge is correct as to joint and several liability (see OCGA § 51-12-31; Church’s Fried Chicken v. Lewis, 150 Ga. App. 154 (256 SE2d 916)), but says the charge suggested the jury could ignore negligence of appellee, his co-workers or the stevedore. We disagree. The court did not charge the jury it could ignore appellee’s negligence. The jury was charged not to find appellant liable unless they found its negligence was the proximate cause of the injury; the jury did not have to consider the negligence of third parties, as appellant is liable for the entire damages, jointly and severally with any other tortfeasor, and there is no accounting of comparative negligence among tortfeasors. Id.

5. Appellant’s enumeration as to the trial court’s failure to give charges “on the issue of control” is deemed abandoned, as appellant in its brief does not describe the substance of these charges and cites no law as to why they should have been given. Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218 (7) (390 SE2d 79).

6. The trial court correctly excluded evidence of a “tariff,” which appellant contends would have proved it did not control the crane and crane operator. The tariff’s disclaimer of liability was contrary to public policy (see City of Albany v. Oxford Constr. Co., 221 Ga. 872, 874 (148 SE2d 324)), so even if it were relevant it would have been prejudicial. See MacNerland v. Johnson, 137 Ga. App. 541 (224 SE2d 431).

7. The trial court did not err in charging the jury as to certain OSHA standards on grounds that OSHA does not apply to appellant, as it is a department of the State and is not an “employer” under 29 USCA § 625 (5). Appellant’s only objections to this charge were that OSHA was fully complied with and that the stevedore’s violation of OSHA regulations might be wrongly imputed to appellant. The objection to the charge made on appeal was thus waived. T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (334 SE2d 910).

8. The charge was not objectionable on grounds that the evidence proved OSHA regulations were complied with, as this was an issue of fact for the jury at trial, objections to the jury’s consideration of OSHA regulations having been waived.

9. The trial court correctly denied a motion in limine to exclude mention of equipment which appellant contends it was under no duty to provide. Georgia law favors admissibility of evidence. Daras v. State, 201 Ga. 512, 513 (411 SE2d 367). The trial court did not abuse its discretion in allowing evidence as to equipment which appellant provides for other purposes but does not provide for communication with longshoremen. This evidence was relevant to the issue of appellant’s negligence in the use of hand signals with paper cups in these circumstances.

10. The trial court did not err in permitting the witness Liakakis to testify as an expert for procedures where hand signals or sight alone is insufficient. See OCGA § 24-9-67. The weight to be accorded Liakakis’ testimony was for the jury. See Hicks v. State, 196 Ga. App. 311 (2) (396 SE2d 60).

11. The charge that appellee knew better than any doctor the extent of his pain and suffering was not reversible error, for appellee’s statements were statements of fact, but doctors’ testimony would be opinion. OCGA § 24-9-67. The value of any such testimony is a matter of credibility and weight. Arnold v. State, 155 Ga. App. 569 (271 SE2d 702).

12. Appellant contends the trial court allowed appellee’s counsel to argue facts not in evidence, but at trial appellant made no objection to those remarks. T. G. & Y. Stores, supra. See Pheil v. Southern Bell Tel. &c. Co., 201 Ga. App. 846 (4) (412 SE2d 609) as to procedure for objection to arguments; see Smith v. State, 189 Ga. App. 244, 246 (375 SE2d 496).

13. The trial court erred in denying appellant’s motion for directed verdict as to punitive damages.

(a) An award of punitive damages against the Georgia Ports Authority was against Georgia public policy and is impermissible as a matter of law and void. See MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869). The Georgia Ports Authority is a governmental entity created pursuant to the Georgia Ports Authority Act (OCGA § 52-2-1 et seq.) and is an arm of the State. OCGA § 52-2-4. A punitive damage award against a governmental entity or arm of the State violates public policy because it burdens the very citizens for whose benefit the wrongdoer is being chastised. Such damages are assessed over and above the amount necessary to compensate the injured party, and are likely to be accompanied by an increase in taxes “or a reduction of public services” for the citizens it serves, who are themselves blameless. Id. at 428. The Ports Authority is created “in all respects for the benefit of the people of this state and is a public purpose and . . . will be performing an essential governmental function,” of such importance that the Ports Authority is even made exempt from all taxes and levies by the State. OCGA § 52-2-37. The award of punitive damages against the Ports Authority would result in a “reduction of public services” (MARTA v. Boswell, supra), would ultimately be a charge against the public and would tend to cripple the Ports Authority’s function as a servitor of the people. The same principles decided in MARTA v. Boswell apply in this case; thus a punitive damages award against the Ports Authority is contrary to public policy and impermissible as a matter of law.

The cause of action in this case arose prior to the Supreme Court’s decision in MARTA v. Boswell, but there is no vested right to sue for punitive damages, which are a penalty. Teasley v. Mathis, 243 Ga. 561, 563 (255 SE2d 57). The right to a penalty may vest in two ways (see Terry v. State Farm, &c. Ins. Co., 205 Ga. App. 224, 225 (422 SE2d 212)), neither of which applies here. Although appellant did not raise this issue below or on appeal, the judgment of a court which is void for any cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it. OCGA § 9-12-16; Parker v. Bond, 47 Ga. App. 318 (170 SE 331). See Troup County Bd. of Commrs. v. Public Fin. Corp., 109 Ga. App. 547 (136 SE2d 509); OCGA 9-11-60 (a).

(b) The verdict does not reflect that punitive damages were included in the award and ordinarily we do not speculate that they were, for an ambiguous verdict is to be construed so as to uphold the verdict if possible. See West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864 (3) (198 SE2d 420) (physical precedent; Court of Appeals Rule 35 (b)), and cases cited therein, and see Haughton v. Judsen, 116 Ga. App. 308, 310 (157 SE2d 297). Appellant did not object to the form of the verdict, so any deficiency in the form of the verdict was waived. Perryman v. Rosenbaum, 205 Ga. App. 784, 787 (423 SE2d 673); Golosky v. Wherle, 117 Ga. App. 335 (160 SE2d 614); Herndon v. Sims, 7 Ga. App. 675 (3) (67 SE 835). However, the size of this award ($374,750) in relation to the medical damages ($12,127.57) is so great as to raise an inference that punitive damages were considered in the award. See Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 862-863 (389 SE2d 355). Where there is a reasonable inference that the verdict or part of it may be void and not merely deficient, we are not required to presume it is valid if errors of law were committed in the trial which would tend to affect the validity of the award.

There is a substantial possibility that this verdict was affected by the trial court’s erroneous denial of the Ports Authority’s motion for directed verdict on the issue of punitive damages, with the consequent admission of irrelevant and prejudicial evidence of other injuries to and acts toward other persons; and by the trial court’s erroneous and unauthorized jury charge on punitive damages, to which appellant specifically objected. Accordingly, we find the trial court’s denial of a directed verdict on the issue of punitive damages and the attendant errors to be harmful as a matter of law.

The verdict of liability is affirmed, but the case is remanded to the trial court with direction to strike the award and permit the jury to enter a new award in proceedings not inconsistent with the law and with this opinion.

Judgment affirmed in part and reversed in part. Andrews, J., concurs.

Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

Although I agree with the holding in Division 13 of the majority opinion that the trial court erred in denying Georgia Ports Authority’s motion for punitive damages, I write separately to state how my analysis of this issue differs from the majority opinion.

1. There are additional cases concerning the issue of punitive damages against authorities not mentioned in the majority opinion that are important to the analysis of this issue. Prior to our Supreme Court’s decision in MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991), the appellate courts of this state allowed punitive damages to be assessed against “authorities.” In Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (355 SE2d 104) (1987), this court allowed a hospital authority to be sued for punitive damages on the basis that the statutory “sue or be sued” language in the statute creating the authority imposed the same tort liability upon a “public body corporate and politic as is imposed upon a private corporation.” Id. at 175. Although in MARTA v. Boswell, supra, our Supreme Court did not expressly overrule Hodges, by adopting the rationale set forth in City of Newport v. Fact Concerts, 453 U. S. 247 (101 SC 2748, 69 LE2d 616) (1981) and holding that punitive damages may not be assessed against governmental entities because such awards punish the taxpayers through either an increase in taxes or a reduction in the public services available to the citizens, our Supreme Court made it clear that governmental entities will no longer be held liable for punitive damages. Interestingly approximately three months after Boswell was decided, our Supreme Court issued an opinion sustaining a punitive damage award against the Hospital Authority of Gwinnett County. Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613 (409 SE2d 501) (1991), cert. den.,_U. S__(112 SC 1175, 117 LE2d 420) (1992). In a footnote, however, the court noted that the issue of whether punitive damages are appropriately awarded against a hospital authority had not been raised in that case and cited the Boswell decision, apparently signalling that if that issue had been raised it would have reversed the imposition of punitive damages against the hospital authority. Accord City of Columbus v. Myszka, 246 Ga. 571, 573 (272 SE2d 302) (1980) (holding that absent explicit statutory authority a municipality cannot be held liable for punitive damages).

2. I agree with the majority’s conclusion that there is a substantial possibility that the verdict was affected by the trial court’s erroneous denial of the Ports Authority’s motion for directed verdict on the issue of punitive damages. Because punitive damages are not authorized against the Ports Authority, I must also concur in the majority’s conclusion that the award of damages in this case must be struck and a new trial on damages must be conducted upon remand. We would not have to engage in speculation about the kind of damages comprising the general verdict rendered in this case if a proper verdict form had been submitted to the jury. See Clarke v. Cox, 197 Ga. App. 83, 84 (397 SE2d 598) (1990) (suggesting in cases seeking punitive damages pursuant to OCGA § 51-12-5 “the form of the verdict should provide the jury with guidelines to separately determine the issue of punitive damages for each tort.”)

For that reason, I am uncomfortable with seemingly “rewarding” the Ports Authority’s conduct concerning the form of the verdict. The record reflects that the plaintiff rather than the Ports Authority objected to the trial court’s ruling concerning the form of the verdict to be submitted to the jury. The plaintiff pleaded with the court to allow a special verdict form to be submitted to the jury which would allow the jury to specify an amount for punitive damages, the trial court refused to allow such a form to be submitted to the jury and ruled “[i]f [the jury] want[s] to award any [punitive damages], they can award them in the sum that is awarded in the general verdict, we the jury, find ... in favor [of the plaintiff] and against the defendant in the amount of blank dollars, of which we include the amount of blank dollars for medical expenses.” Thus, the trial court’s ruling made it impossible for the jury to specify the amount of punitive damages if they found punitive damages were appropriate.

Decided July 16, 1993 —

Reconsideration denied July 28, 1993 —

Michael J. Bowers, Attorney General, John B. Ballard, Jr., Roland F. Matson, Senior Assistant Attorneys General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Ma-honey III, R. Stephen Flagler, for appellants.

David H. Fritts, Billy E. Moore, Shari S. Miltiades, for appellee.

Throughout this colloquy about the proper form of the verdict which consists of approximately eight pages of the transcript, the Ports Authority acquiesced in the court’s ruling. Finally, after the jury was charged, the plaintiff withdrew its objection to the form of the verdict. After the verdict was returned neither the plaintiff nor the Ports Authority objected to the form of the verdict. At one point during the colloquy the plaintiff suggested that the reason the Ports Authority was willing to acquiesce in the trial court’s ruling on the form of the verdict is because it would invite error on appeal. I am inclined to agree. It is well-settled that a party may not acquiesce in a ruling of the trial court and then complain of that ruling on appeal. Blaxton v. Clemens, 202 Ga. App. 668, 669 (415 SE2d 304) (1992). For that reason, to the extent that this decision and our decision in Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860 (389 SE2d 355) (1989) allow parties to benefit from rulings they acquiesced in at trial those cases should be specifically limited to their facts and only be followed when the ruling of the trial court constitutes substantial error and is harmful as a matter of law. See Ray v. Stinson, 254 Ga. 375 (329 SE2d 502) (1985).

       In Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 46 (273 SE2d 841) (1981), our Supreme Court held that the Carroll City/County Hospital Authority was a governmental entity.


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Andrews, Judge,

license: Public Domain

text:
    A92A1504.
    FEISE et al. v. CHEROKEE COUNTY et al.
    (434 SE2d 551)
   Birdsong, Presiding Judge.

In Feise v. Cherokee County, 207 Ga. App. 17 (427 SE2d 294), we reversed a grant of summary judgment to the county finding issues of fact whether there was a failure of a duty on law enforcement officers towards appellants, based on reasonable knowledge and foreseeability that appellees would be stalked by Scott Kramer according to his immediate threat to “carve up” Feise and her daughter, which was reported to the police. Scott Kramer did slash Mrs. Feise with a knife in the front yard of her home, on the day after his threats.

On certiorari, the Supreme Court remanded Cherokee County’s appeal for reconsideration in light of City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861). In that case the Supreme Court held that law enforcement officials have no duty to protect a citizen unless there is a “special relationship” which sets the individual apart from the general public and engenders a “special duty” owed to that individual. The standards to determine this question were established by that court’s adoption of these requirements: “(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality that inaction could lead to harm; and, (3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking.” Id. at 29.

There is evidence which satisfies the requirement of standard (2), knowledge on the part of law enforcement officials that inaction could lead to harm to appellees. But because of the officials’ inaction, standard (1), an explicit assurance by the law enforcement agency, “through promises or actions,” that it would act on behalf of appellees, and standard (3), justifiable and detrimental reliance by the injured parties on the agency’s affirmative undertaking, cannot be satisfied. That is, the evidence shows that despite specific knowledge that inaction probably would lead to harm, the law enforcement officials in this case did nothing. Therefore, under the Supreme Court’s decision in City of Rome v. Jordan, we must affirm the trial court’s grant of summary judgment to Cherokee County.

Judgment affirmed.

McMurray, P. J., Beasley, P. J., Cooper, Blackburn and Smith, JJ., concur. Andrews, J., concurs specially. Johnson, J., not participating. Pope, C. J., disqualified.

Andrews, Judge,

concurring specially.

I concur in the majority’s holding affirming the trial court’s grant of summary judgment to the defendants. In City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), the Supreme Court held that in a cause of action alleging a police department’s negligent failure to protect a victim from criminal assault by a third party, the police have a legal duty to protect the victim only “where there is a special relationship between the [victim] and the [police] which sets the [victim] apart from the general public and engenders a special duty owed to [the victim].” I agree that under this standard, the defendants were in no special relationship with Mrs. Feise, therefore the defendants had no special duty to protect her from Kramer’s attack.

Decided July 13, 1993 —

Reconsideration denied July 29, 1993 —

Gerard J. Lupa, for appellants.

Drew, Eckl & Farnham, William T. Mitchell, Theodore Freeman, for appellees.

This case was remanded to this court by the Supreme Court for reconsideration in light of the Supreme Court’s decision in City of Rome, supra, in which the Supreme Court adopted three requirements for a special relationship: “(1) an explicit assurance by the [police department], through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the [police department] that inaction could lead to harm; and, (3) justifiable and detrimental reliance by the injured party on the [police department’s] affirmative undertaking.” Although I concur in the holding, I cannot agree with the majority’s rigid application of these requirements to the facts at hand.

Mrs. Feise feared the anonymous threatening phone calls to her and her neighbors were made by Kramer, but she had no proof. She contacted the police with her suspicions, and indicated that the calls sounded as if they had been made from a pay phone. The police checked local public phones, but were unable to find the caller. The police were unable to detain or arrest Kramer because they had no proof he made the threats. Under requirement (1), the police took reasonable actions to investigate the threatening phone calls based on the information given them by Mrs. Feise. There was no explicit assurance to act on her behalf to protect her against Kramer because there was no evidence he made the threats. As to requirement (2), at best, the defendants knew there was a threat of harm, but they did not know who made the threats. Accordingly, there was no specific action they reasonably failed to take. In light of the facts pertaining to (1) and (2), there could have been no justifiable and detrimental reliance by Mrs. Feise on the defendants’ affirmative undertaking.

       For a complete recitation of the facts, see Feise v. Cherokee County, 207 Ga. App. 17 (427 SE2d 294) (1992).


author: Pope, Chief Judge.

text:
    A93A0460.
    HEFFLEY v. ADKINS.
    (434 SE2d 537)
   Pope, Chief Judge.

Plaintiff Janet K. Heffley brought a negligence action against defendant Scotty James Adkins for injuries she allegedly sustained when the vehicle defendant was driving, and in which plaintiff was a passenger, left the road and rolled over. At the time of the accident, defendant was an employee of Waffle House, Inc. He had been sent to pick up plaintiff and Travis McKnight, who were at one Waffle House restaurant, to transport them to another restaurant. McKnight was a Waffle House cook and plaintiff had previously worked for Waffle House, although she was not employed at the time of the accident. They were at the restaurant as customers when a manager from another restaurant called and asked McKnight to report to work at the other location immediately because the restaurant was short-handed. The manager also knew plaintiff and knew she had previously worked for the company and invited her to come along with McKnight because he might also employ her for the evening if her services were needed. The manager sent defendant to pick them up to transport them to the other restaurant.

On the way, defendant’s vehicle left the road and rolled over. Claiming she was an employee of Waffle House at the time of the accident, plaintiff filed a workers’ compensation claim. The record shows she entered into a stipulation with Waffle House, which was approved by and made an order of the Workers’ Compensation Board, agreeing that she did not sustain a compensable injury and that Waffle House is not liable to her for workers’ compensation benefits. She also entered into an agreement titled “Covenant not to Sue or Appeal and Agreement to Indemnify” in which, in consideration for the payment of $2,000, plaintiff agreed not to appeal the award of no compensation by the board and not to sue Waffle House for any claim arising out of the injuries she sustained in the accident.

Plaintiff then filed the negligence action which forms the basis of this appeal. Defendant moved for summary judgment on the ground that plaintiff’s claim is barred by the exclusive remedy provision of the Workers’ Compensation Act and because plaintiff’s claim is barred by the doctrine of accord and satisfaction on account of the release plaintiff granted to defendant’s employer, Waffle House. The trial court granted summary judgment to defendant and plaintiff appeals.

1. The award of no compensation in plaintiff’s workers’ compensation claim establishes plaintiff was not an employee at the time she sustained her injuries. Thus, defendant was not a fellow employee whom she is barred from suing by the exclusive remedy rule. “ ‘[I]f there were an award of no compensation because of no coverage under the Act, it would be an adjudication of no coverage and the common law action should proceed.’ ” Associated Hosts of Ga. v. Marley, 184 Ga. App. 352, 354 (361 SE2d 496) (1987), quoting Bishop v. Weems, 118 Ga. App. 180, 181 (4) (162 SE2d 879) (1968).

2. Neither is plaintiff’s claim barred by the doctrine of accord and satisfaction as a result of the covenant not to sue executed by plaintiff in favor of Waffle House. Since plaintiff stipulated in the workers’ compensation award that she was not entitled to workers’ compensation benefits from Waffle House, the covenant not to sue in exchange for $2,000 was essentially a settlement of any and all other claims plaintiff may have brought against Waffle House, including a tort claim. The terms of the covenant included a promise not to sue Waffle House or its successors or assigns, but did not include any promise not to sue Waffle House agents or employees. It is now settled in Georgia that the release of one tortfeasor does not discharge others unless the evidence shows the release was intended to apply to other tortfeasors. See Posey v. Medical Center-West, 257 Ga. 55, 59 (354 SE2d 417) (1987); Jackson v. Dyches, 200 Ga. App. 174 (407 SE2d 126) (1991).

Defendant argues Waffle House was liable, if at all, only vicariously through the acts of its agent, defendant. Accordingly, defendant argues, the rule of the Posey case applies only to joint tortfeasors and does not apply to this case because Waffle House and defendant are not joint tortfeasors. First, we reject the assumption that Waffle House could be liable to plaintiff only on a theory of vicarious liability for the negligence of its employee. The covenant not to sue released Waffle House from all claims plaintiff might assert against it and it is possible that plaintiff could have asserted against Waffle House not only a claim for its vicarious liability for defendant’s negligence but also a claim for the direct negligence of Waffle House, for example, in assigning defendant the job of transporting plaintiff to its restaurant for possible work. Second, it is true that the release of the agent acts as a release of the principal for the principal’s vicarious liability for the acts of the agent. See Harris v. Hanna Creative Enterprises, 208 Ga. App. 549 (430 SE2d 846) (1993). The converse, however, is not true unless, of course, the evidence shows the release of the principal was intended to apply to the agent. In this case, the language of the covenant not to sue clearly did not release the agents and employees of Waffle House. Thus, the trial court erred in granting summary judgment to defendant.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

Decided July 12, 1993 —

Reconsideration denied July 29, 1993 —

Wain & Miningham, Alan B. Wain, for appellant.

Clifton Lee & Associates, Jeanne F. Johnson, for appellee.


author: Cooper, Judge.

text:
    A93A0467.
    GARRETT ASSOCIATES, INC. v. MEDIPLEX GROUP, ]INC.
    (434 SE2d 568)
   Cooper, Judge.

This case arose as a result of two breach of contract claims asserted against Mediplex Group, Inc. (“Mediplex”) for allegedly failing to make payments in accordance with the terms of the contracts. This appeal is from the trial court’s grant of Mediplex’s motion to dismiss for lack of personal jurisdiction.

The record reflects that in 1987, Mediplex, a Massachusetts corporation, initiated a contract with Garrett Associates, Inc. (“Garrett”), a Georgia corporation, for personnel recruitment searches to locate management and medical personnel for Mediplex. Mediplex operates sixteen licensed in-patient facilities located in five different states, none of which is situated in Georgia. Garrett was contacted by Mediplex by telephone at Garrett’s Atlanta office. Mediplex requested, and Garrett performed an employee search for which Garrett was duly paid. Subsequently, in August 1990, Garrett was again contacted by Mediplex by telephone to undertake a second search similar to that conducted in August 1987. This agreement was memorialized in a written contract (“first contract”) which Garrett mailed to Mediplex. Mediplex hired an individual identified by Garrett; however, Mediplex failed to pay Garrett’s fee in full. In this action, Garrett seeks the balance allegedly due on the first contract. Subsequent to the search, in connection with the first contract, Mediplex continued its contacts with Garrett in the form of letters and telephone calls regarding information about Mediplex and soliciting contract management work and referrals for Mediplex.

In late 1990, Garrett was contacted regarding a third search for an entity named Koala Centers. The evidence is in conflict as to the genesis of this search. Garrett submitted the affidavit of its president who averred that he was contacted by Stuart Podolnick, an individual Garrett had previously presented to Mediplex for employment and who was subsequently hired by Mediplex, by telephone; that he understood Podolnick to be a vice-president of Mediplex; that Podolnick requested two additional searches for Mediplex; and that Garrett’s president signed and mailed a written contract (“second contract”) to Podolnick which indicated that two searches would be performed by Garrett for Koala Centers. Mediplex submitted the affidavit of Frank Fanella, the chief operating officer of American Treatment Centers, Inc. (“ATC”), a Delaware corporation with offices in Florida which operates under the trade name “Koala Centers.” Fanella averred that the only contact he had with Garrett was by telephone or mail and that he received the contract prepared by Garrett by mail. There was no evidence of a relationship between Podolnick and ATC. Nonetheless, it is undisputed that the contract was executed by Frank Fanella and Garrett; that ATC is a separate and distinct legal entity from Mediplex; and that Podolnick was a vice-president of Mediplex. Garrett also sued Mediplex for the balance due under the second contract. ATC is not a defendant in this case.

In three enumerations of error, Garrett contends that on the basis of the evidence it presented in opposition to Mediplex’s motion to dismiss, the trial court was authorized to exercise long-arm jurisdiction over Mediplex pursuant to OCGA § 9-10-91. Therefore, the trial court erred in granting Mediplex’s motion to dismiss for lack of jurisdiction.

“Georgia’s Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he: 1) Transacts any business within this State. Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, the defendant must have purposefully directed his activities at residents of the forum, and the litigation must result from alleged injuries that arise out of or relate to those activities. The constitutional touchstone is whether the defendant purposefully established minimum contacts in the forum State, that is, whether the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. Mere telephone or mail contact with an out-of-state defendant is insufficient to establish the purposeful activity with Georgia required by the Long Arm statute. Also, an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts. Prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing must be evaluated in determining whether the defendant has purposefully established minimum contacts within the forum.” (Citations and punctuation omitted.) White House v. Winkler, 202 Ga. App. 603, 604-605 (415 SE2d 185) (1992).

With respect to the first contract, the record reveals more than mere unilateral mail or telephone contacts. Mediplex initiated the contact between the two parties by contacting Garrett at its home office in Atlanta. Mediplex also “actively participated in dealings with [Garrett] such that [its] actions were purposeful [and] created continuing obligations between [itself and Garrett].” Id. at 605. Moreover, Mediplex’s conduct induced Garrett to perform services on behalf of Mediplex to its financial detriment. Therefore, we conclude that Mediplex knowingly and purposefully acted to consummate a transaction within this state with respect to the first contract and thereby established legally sufficient contacts. Hence, “ ‘neither reasonableness nor fair play nor substantial justice would be offended’ by haling [Mediplex] into a Georgia court and exercising jurisdiction over [Mediplex]. [Cits.]” Id. On this basis, we conclude that the trial court erred in dismissing Garrett’s complaint as to the first contract.

Decided July 15, 1993 —

Reconsideration denied July 29, 1993.

Kessler & Sparks, Steward A. Sparks III, for appellant.

Ellis, Funk, Labovitz & Campbell, Donald J. Ellis, William A. Percy III, for appellee.

As to the second contract, however, we find no basis for personal jurisdiction over Mediplex pursuant to OCGA § 9-10-91. It is undisputed that ATC is a legal entity separate and distinct from Mediplex. Even if the initial call to Garrett was made by Podolnick, there is no evidence that he was authorized to act on behalf of ATC and the fact remains that the second contract was executed by Garrett and ATC, and Mediplex was not a party to this written contract upon which Garrett’s claim is based. Moreover, ATC is not a party in this case; therefore, the question of whether the trial court can exercise jurisdiction over ATC is not before us. Thus, there was no error in the dismissal of the complaint as to the second contract.

Judgment reversed in part and affirmed in part.

McMurray, P. J., concurs. Beasley, P. J., concurs in judgment only.


text:
    A93A0590.
    McGUIRE v. RADISSON HOTELS INTERNATIONAL, INC.
    (435 SE2d 51)
   Cooper, Judge.

Appellant brought suit against appellee, Denver/Robins Venture Partners, Ltd. (“Denver/Robins”), and Michael Myrick for injuries suffered when he was ejected from a lounge in the Radisson Inn Warner Robins by two bouncers. The lounge was owned by Denver/ Robins which operated the Radisson Inn under a franchise agreement with appellee. The bouncers were employed by Denver/Robins. Appellee moved the trial court for summary judgment on the theory that under the franchise agreement, which defined the relationship between appellee and Denver/Robins, there is no vicarious liability on the part of the franchisor for the alleged torts of the franchisee’s employees. The trial court granted appellee’s motion for summary judgment, and this appeal followed.

Appellant contends that genuine issues of material fact remain concerning the vicarious liability of appellee resulting from its right to control the daily operations of the Radisson Inn Warner Robins under the franchise agreement and from the extent to which appellee held the property out to the public as its own. “ ‘ “To prevail on a motion for summary judgment . . . , a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)” (Cit.)’ [Cit.]” Gilbert v. Van Ord, 203 Ga. App. 660 (417 SE2d 390) (1992). “Once he pierces the pleading of plaintiff and shows the court that one essential element, under any theory, is lacking and incapable of proof, the defendant-movant is entitled to summary judgment as a matter of law, irrespective of any issues of fact with regard to other essential elements. [Cits.]” Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981).

1. Appellant argues that the franchise agreement and the operating manual, which set forth in explicit detail the operational standards common to all Radisson franchises and which liberally permit appellee to inspect the Radisson Inn Warner Robins, are evidence of appellee’s control over the method and manner of the hotel’s daily operations and create a principal-agent relationship between appellee and Denver/Robins. Appellant contends that the following specific provisions from the franchise agreement and operating manual illustrate appellee’s control over the operation of the hotel: (1) that Denver/Robins feature the name “Radisson” and other distinguishing service marks in appropriate locations so that the hotel is readily identified by the public as a part of the Radisson system; (2) that the promotion and advertising of the hotel conform to the form and manner set forth in the operating manual and any other design approved by appellee; (3) that Denver/Robins obtain prior written approval (which shall not be unreasonably withheld) as to the appointment of the general manager; (4) that employees who fail to comply with the hotel’s stated rules be given an opportunity to correct their behavior before termination; and (5) that Denver/Robins use fair employment practices. In addition, appellant acknowledges that the franchise agreement requires Denver/Robins to indicate its independent ownership and relationship to appellee as a licensee under certain circumstances but argues that the only actual notice of this relationship to the public was a small plaque near the front desk of the hotel.

At the outset we recognize that “[a] franchise contract under which one operates a type of business on a royalty basis does not create an agency or a partnership relationship.” Arthur Murray, Inc. v. Smith, 124 Ga. App. 51, 53 (2) (183 SE2d 66) (1971). The franchise agreement at issue provided for payment on a royalty basis. “Thus in order to impose liability on the franchisor for the [obligations] of the franchisee, it must be shown that: (a) the franchisor has by some act or conduct obligated itself to pay the debts of the franchisee; [cit.] or (b) the franchisee is not a franchisee in fact but a mere agent or ‘alter ego’ of the franchisor. [Cit.]” Whitco Produce Co. v. Bonanza Intl, 154 Ga. App. 92, 93 (267 SE2d 627) (1980).

There is no evidence that appellee has represented that it would be liable for Denver/Robins obligations, and “[w]here the question of agency vel non rests upon a written document and inferences deduced therefrom, as in the instant case, the issue presented is a question of law for the trial court since construction of written contracts is exclusively for the judge. [Cits.] . . . Under Georgia law, ‘(t)he relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.’ [Cit.] The historical test applied by Georgia courts has been ‘whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.’ [Cit.]” McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 229 (2) (348 SE2d 748) (1986). However, “[t]he need for controls over the use of a trade name, in a franchise agreement authorizing such use, has generally been recognized. [Cits.]” Buchanan v. Canada Dry Corp., 138 Ga. App. 588, 591 (226 SE2d 613) (1976). Thus, “a franchisor is faced with the problem of exercising sufficient control over a franchisee to protect the franchisor’s national identity and professional reputation, while at the same time foregoing such a degree of control that would make it vicariously liable for the acts of the franchisee and its employees. [Cit.]” McMullan, supra.-

Having reviewed the franchise agreement and the operating manual in their entirety, we do not find that an agency relationship was created. The franchise agreement sets forth the strict conditions under which the “Radisson” name can be used by Denver/Robins, and the operating manual outlines specific operating standards, not to permit appellee to direct or control the time, manner and method of performance of the daily operations of the franchise but as a means of achieving a certain level of quality and uniformity within the Radisson system. The agreement authorizes appellee to conduct periodic inspections of the hotel and an annual performance review to ensure that Denver/Robins is “maintaining] the high standards and reputation of the System, the goodwill of the public, compliance with the provisions of [the Franchise] Agreement and the Operating Manual . . .” for the same reason. In addition, the franchise agreement provides as follows: “Licensee is an independent contractor. Neither party shall be considered an agent, legal representative, partner, subsidiary, joint venturer or employee of the other. . . . Licensee, will not use the name ‘Radisson’ or any similar name, in its corporate, partnership or trade name.” Moreover, neither document suggests that appellee retain or exercise supervisory control over those persons hired by Denver/Robins to provide security in the lounge. See Frey v. Pepsico, Inc., 191 Ga. App. 585 (1) (382 SE2d 648) (1989). Nor is there a jury question as to the existence of an agency or alter ego relationship based on Denver/Robins’ use of appellee’s name and insignia. Such use of the franchisor’s name is inherent in any franchise agreement and is insufficient to raise a question of fact with respect to liability where the evidence demonstrates that the franchisor and franchisee are distinct and independent entities and that no agency exists. Frey, supra at 586-587; OCGA § 51-2-4. Cf. Buchanan, supra at 592.

2. Alternatively, appellant contends that the evidence demonstrates that appellee held out the hotel as its own and that appellant relied on such representations such that Denver/Robins is appellee’s apparent or ostensible agent. “In order to recover under that theory, however, a plaintiff must present evidence that: ‘(1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury.’ [Cit.]” Holmes v. Univ. Health Svc., 205 Ga. App. 602, 603 (423 SE2d 281) (1992). “[T]he essence of the doctrine is that one represents that another is one’s agent so that plaintiff justifiably relies on the care or skill of the apparent agent whose negligence causes the injury. It is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury.” Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508-509 (361 SE2d 164) (1987). Appellant contends that the prominent signs on the hotel read “Radisson,” not Denver/Robins; that there was no other sign which indicated that the hotel was owned or operated by any one other than the Radisson Company; and that the only reason he agreed to go to the lounge that evening was that he thought he was going to be in a place that was owned and operated by the same people who do the Radisson advertising and that the environment in the lounge would be of the quality suggested by the Radisson advertising. Since apparent or ostensible agency theory focuses on the actions of the principal rather than the agent, appellant’s focus on the signs bearing the “Radisson” name is misplaced because the display of any signs, though authorized by the franchise agreement, is controlled by Denver/Robins, not appellee. Thus, by displaying the “Radisson” name, Denver/Robins would be holding itself out as “Radisson” not the reverse. Appellant points to no other evidence of “holding out” on the part of appellee, and we have already determined that agency was not created by the franchise agreement. Therefore, appellant’s argument that there was an apparent or ostensible agency relationship must fail.

Decided July 7, 1993 —

Reconsideration denied July 29, 1993.

Lucas & Bond, Kenneth E. Lucas, Adams & Adams, Charles R. Adams III, for appellant.

Chambless, Higdon & Carson, Mary M. Katz, Welch, Blender, Lubin, Shapiro & Sichel, Eric N. Welch, for appellee.

Based on the foregoing, we find that appellee and Denver/Robins did not have a principal/agent relationship by virtue of the franchise agreement or the conduct of the parties. Holiday Inns, supra; Holmes, supra.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, P. J., concurs in judgment only.


author: Andrews, Judge.

text:
    A93A0731.
    GEORGIA MUTUAL INSURANCE COMPANY, INC. v. ROLLINS, INC.
    (434 SE2d 581)
   Andrews, Judge.

Georgia Mutual Insurance Company appeals the trial court’s grant of summary judgment to Rollins on the issue of liability. The following facts are relevant and undisputed. On March 8, 1986, Bud Lee McGill, an employee of Orkin Exterminating Company and Rollins, Inc., was involved in an automobile accident with Benischek. McGill was driving his own vehicle at the time of the accident.

On April 24, 1986, Benischek filed a lawsuit against McGill, Orkin, and Rollins for the injuries he allegedly sustained in the accident. Benischek alleged that at the time of the accident McGill was in the course of his employment and that Orkin and Rollins were liable under a theory of respondeat superior. Rollins and Orkin claimed that McGill was not in the scope of his employment at the time of the accident.

On the accident date, McGill had an insurance policy for his automobile with Georgia Mutual. McGill notified the company of the accident and Georgia Mutual entered a defense on his behalf.

On May 16, 1986, Rollins demanded that Georgia Mutual provide it a defense, based on its claim that it was insured under that company’s policy. Georgia Mutual refused to do so. At the time of the accident, Rollins had an insurance policy with Scottsdale Insurance Company; an answer was filed on Rollins’ behalf on May 23, 1986.

The liability lawsuit settled for $90,000; Georgia Mutual paid its liability limits of $15,000 and Scottsdale and Rollins paid $75,000. On September 7, 1990, Rollins filed the instant suit against Georgia Mutual to recover attorney fees and expenses in the liability suit, and also to recover damages for the alleged bad faith refusal to defend.

Rollins filed a motion for summary judgment, which the trial court granted. In doing so, the trial court found that Rollins was an insured under the Georgia Mutual policy, that Georgia Mutual provided the primary coverage for Rollins and had the primary duty to defend Rollins in the suit. Georgia Mutual appeals this decision.

1. We will address Georgia Mutual’s third enumeration of error first. In this enumeration Georgia Mutual claims that the trial court erred in finding that Rollins was an “insured” under the policy. This enumeration is without merit.

The Georgia Mutual policy defined “insured” as: “(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘INSURED’ includes the named insured and if the named insured is an individual, his spouse, if a resident of the same household, and also includes any person while using the automobile and ANY PERSON OR ORGANIZATION LEGALLY RESPONSIBLE FOR THE USE HEREOF, PROVIDED THE ACTUAL USE OF THE AUTOMOBILE IS BY THE NAMED INSURED.” The policy provided that Georgia Mutual would provide a defense for the insured.

In Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga. App. 426 (2) (160 SE2d 603) (1968), the court evaluated an omnibus clause akin to the one at issue in this case. In Zurich, the term “insured” included any person or organization legally responsible for the use of the automobile, provided the actual use of the automobile was with the permission of the named insured. The Zurich court concluded that “the definition includes both the person using and the ‘person or organization legally responsible for’ such use, and the latter phrase is sufficiently broad to include an employer who is responsible for the negligent use by the employee in a respondeat superior situation.” Id. at 429. Accordingly, a non-owner/employer was deemed an “insured” under the owner of the vehicle’s policy.

A similar conclusion was reached in Barker v. United States, 233 FSupp. 455 (2) (N. D. Ga. 1964). In that case, the court held that the United States was an “insured” under the governmental employee’s liability policy when he was involved in an accident while in the scope of his employment. See also Southern Gen. Ins. Co. v. Boerste, 195 Ga. App. 665, 667 (1) (394 SE2d 566) (1990). Rollins was an insured under the omnibus provision of this policy.

2. In its second enumeration, Georgia Mutual claims that the trial court erred in concluding that it was liable to Rollins since it had the primary responsibility to provide a defense for Rollins in the liability lawsuit. Again, we find no error.

The trial court’s conclusion that the Georgia Mutual policy was primary, and that Georgia Mutual thus had the primary duty to defend, was proper. See Commercial Union Ins. Co. v. Ins. Co. of N. A., 155 Ga. App. 786 (273 SE2d 24) (1980). Georgia Mutual’s argument that because Rollins was also an insured under the Scottsdale policy, it did not have the primary duty to defend after Rollins’ demand is without merit. Although it is true that the excess carrier also has a duty to defend, see generally State Farm &c. Ins. Co. v. Astro Leasing, 194 Ga. App. 515 (390 SE2d 885) (1990), Georgia Mutual ignores the concomitant responsibility of the primary carrier and ignores the fact that the Scottsdale policy here did not include a duty to defend.

We conclude that Georgia Mutual was the primary carrier based on the following facts. Rollins’ policy with Scottsdale provided coverage for non-owned vehicles while used by employees in the scope of Rollins’ business and thus Rollins was an “insured” under that policy. Nevertheless, the Scottsdale policy provided for a “self-insured retention” amount of $25,000, which mandated that the first $25,000 would not be paid by Scottsdale, but that the insurer’s obligation applied only to the amounts in excess of the self-insured retention. Thus, with regard to the first $25,000 of loss, Rollins was not insured under the Scottsdale policy. With respect to providing a defense, the Scottsdale policy provided that “[t]he insured shall have the obligation to provide, at his own expense, adequate defense and investigation of any claim . . . ,” although Scottsdale retained the right to intercede in the defense if it so desired.

The Georgia Mutual policy provided that “[i]f the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, under Coverages A and B the insurance with respect to temporary substitute automobiles under Insuring Agreement IV or other automobiles under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance.” As to the first $25,000 of loss, there was no other insurance for Rollins. (Although the parties refer to Rollins as “self-insurer,” there is no evidence of this before us. See Shuman v. Dyess, 175 Ga. App. 213 (1) (333 SE2d 379) (1985).)

The fact that no “other insurance” existed for the first $25,000, combined with the rule that the primary policy is usually that which is issued to the owner of the vehicle leads us to conclude that the Georgia Mutual policy was primary. “In automobile liability insurance cases, it is usually held that the policy issued to the owner of the vehicle is the primary policy and the insurer issuing it is liable up to the limits of the policy without apportionment. The policy providing that it shall be excess insurance as to non-ownership coverage is not regarded as collectible insurance until the limit of liability of the primary policy is exhausted.” (Citations and punctuation omitted.) Southern Gen., supra at 667. Using similar reasoning here, we find that the Georgia Mutual policy was primary and the Scottsdale policy was excess. See generally Ga. Mut. Ins. Co. v. Southern Gen. Ins. Co., 181 Ga. App. 238 (351 SE2d 658) (1986); compare Holyoke Mut. Ins. Co. v. Cherokee Ins. Co., 192 Ga. App. 757 (386 SE2d 524) (1989) (involved construction of two policies with primary liability coverage and identical “other insurance” clauses).

Georgia Mutual’s arguments concerning the amount of attorney fees which should be awarded are improper since the trial court’s ruling applied to liability only.

3. Finally, Georgia Mutual claims that the trial court erred by finding as a matter of law that Rollins had not waived its right to a defense, even though it failed to properly request a defense as required by the policy and voluntarily undertook its own defense in the lawsuit filed by Benischek. Georgia Mutual argues that Rollins and Scottsdale voluntarily hired counsel, notified Georgia Mutual of that fact and by doing so waived the right to a defense.

Georgia Mutual cites no authority to support this claim and we find it without merit. The record contains the following evidence: The complaint was served on Rollins on April 25, 1986. On May 16, 1986, Rollins demanded that Georgia Mutual provide a defense. On May 22, Georgia Mutual informed Rollins that it would not provide a defense. On May 23, an answer was filed on behalf of Rollins.

Georgia Mutual’s argument here rests in large part on its assertion that Rollins sent a letter to it on May 14, 1986 stating that “its own attorneys in conjunction with Scottsdale would file an answer and be in charge of its defense.” Apart from this assertion in Georgia Mutual’s interrogátory responses, we are unable to locate any evidence of this in the record. Further, the trial court found that “the record clearly shows that Scottsdale voluntarily undertook the defense in the Benischek action only after Georgia Mutual refused to provide such defense.” Accordingly, we find Georgia Mutual’s unsubstantiated assertions in this regard without merit.

Decided July 16, 1993 —

Reconsideration denied July 29, 1993 —

Smith, Gilliam & Williams, Steven P. Gilliam, Bradley J. Patten, for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, Jay M. Barber, M. Jefferson Starling III, Decker & Hallman, Richard P. Decker, for appellee.

Secondly, Georgia Mutual contends that Rollins failed to give timely notice of the lawsuit under the policy. The policy provides that “[i]f a claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative. . . .” Georgia Mutual does not claim that any prejudice was caused from the delay and its argument is meritless for a variety of reasons. See generally OCGA §§ 40-9-103; 33-7-15; Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320 (1) (390 SE2d 419) (1990), aff’d 260 Ga. 235 (392 SE2d 3) (1990); Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129 (1) (401 SE2d 36) (1990).

Judgment affirmed.

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

       The fact that Rollins contended that McGill was not within the scope of his employment does not alter our conclusion since the complaint alleged that Orkin and Rollins were responsible for McGill’s actions while driving the car. See Loftin v. USF Ins. Co., 106 Ga. App. 287 (127 SE2d 53) (1962); see also Great American Ins. Co. v. McKemie, 244 Ga. 84 (259 SE2d 39) (1979).


text:
    A93A0762.
    J. TRANSPORT, INC. et al. v. GEORGIA INSURERS INSOLVENCY POOL.
    (434 SE2d 552)
   Pope, Chief Judge.

The events which led to this action began in 1982 when a truck leased by plaintiff J. Transport, Inc. was involved in a collision in which the occupants of an automobile struck by the truck were injured. The truck was insured by Paxton National Insurance Company (“Paxton”), an insurance company which, at that time, was authorized to write property and casualty insurance in Georgia. J. Transport also maintained a policy of insurance issued by plaintiff Empire Fire & Marine Insurance Company (“Empire”). The truck in question was not covered by the Empire policy. However, because J. Transport is a motor common carrier engaged in interstate commerce, federal law required the Empire policy to include an endorsement obligating it to pay any judgment against the insured resulting from its motor carrier operations even in cases where the policy did not otherwise provide coverage for the loss. The endorsement, however, contained a reimbursement provision whereby the insured agreed to reimburse Empire for any payments made under the endorsement which Empire was not obligated to make under the policy except as a result of the endorsement.

In 1983 the occupants of the automobile involved in the collision with the truck brought suit for damages in the United States District Court for the Eastern District of Kentucky. Empire entered a defense on behalf of J. Transport, reserving its rights to reimbursement by J. Transport by entering into a non-waiver agreement. Empire filed a cross-claim against Paxton for a declaration of rights between the two insurance companies. The judge in this original tort action ruled that Paxton and Empire were required to contribute equally to any judgment or settlement of the tort plaintiffs’ claims. Consequently, the two insurers each contributed $149,333.92 to settle the claims.

In 1986, pursuant to the reimbursement provision of its policy of insurance, Empire filed suit in the United States District Court for the Northern District of Georgia against J. Transport seeking reimbursement of the settlement payment it made on J. Transport’s behalf. J. Transport filed a third-party complaint against Paxton seeking indemnification pursuant to the terms of the Paxton insurance policy for any sums it might be required to pay to reimburse Empire. The federal court ordered J. Transport to pay Empire $149,323.92 and ordered Paxton to indemnify J. Transport in the same amount.

After the judgment was entered, J. Transport assigned its judgment against Paxton to Empire. By this time, however, Paxton was insolvent. Empire, in the name of J. Transport, then filed the action, which forms the basis for this appeal, in DeKalb County Superior Court against defendant Georgia Insurers Insolvency Pool (the “Pool”) to collect the judgment awarded by the federal court. Empire was later added as a real party in interest plaintiff in the action. The trial court granted summary judgment to the Pool and denied the motion for summary judgment filed by plaintiffs J. Transport and Empire. We reverse.

Plaintiffs argue they are entitled to summary judgment as a result of the collateral estoppel effect of the judgments in the actions filed in the two federal courts noted above. In the action brought by Empire for reimbursement of its settlement payment, in which Paxton was a third-party defendant, the United States District Court for the Northern District of Georgia entered a ruling expressly finding that J. Transport’s obligation to reimburse Empire arose out of its tort liability for the injuries sustained in the collision and was thus covered under Paxton’s liability insurance policy. The federal court ruled against Paxton on its defense that the obligation was assumed pursuant to contract and thus was not insurable. This unpublished and uncertified order, however, appears only in plaintiffs’ appellate brief and was not made a part of the record in the trial court. Thus, the order is not evidence of record and we cannot consider plaintiffs’ argument that the doctrine of collateral estoppel makes the ruling binding on the Pool in this case.

The record does contain a certified copy of the District Court’s judgment ordering Paxton to reimburse J. Transport for the amount J. Transport was required to reimburse to Empire. Since the Paxton insurance policy covered only liability in tort and did not cover liability assumed pursuant to an agreement or contract, the District Court’s judgment is necessarily based on an implicit finding that J. Transport’s obligation to reimburse Empire arose out of its tort liability for the injuries sustained in the collision and was not excluded from coverage by the Paxton policy’s exclusion for contractual liability. The record also contains the order of the United States District Court for the Eastern District of Kentucky finding that Paxton was obligated by the terms of its insurance policy to indemnify its insured for a portion of the claims made by the tort plaintiffs. Relying upon Reimbursement Consultants v. Ga. Insurers &c. Pool, 207 Ga. App. 230 (427 SE2d 519) (1993), the Pool argues it is not a successor-in-interest to Paxton and thus the doctrine of collateral estoppel does not permit it to be bound by the issues decided against Paxton in the two federal court actions. In Reimbursement Consultants, an entity which had collected certain funds on behalf of the insolvent insurance company but was not paid for its services filed a claim against the Pool for unpaid service fees. This court ruled that the Pool was not a successor to an insolvent insurance company but was merely a statutorily created and industry financed fund obligated to pay certain statutorily defined claims. The claim asserted against the Pool in Reimbursement Consultants was not a claim covered by the Act and thus the Pool was not liable for the claim. The claim involved in the case now before us, however, is a covered claim. In this case, the federal court ruled the claim against the insurance company arose out of the insured’s tort liability and was covered under the policy. Thus the claim is also one which is covered under the Act as set forth at OCGA § 33-36-3 (2) (B) (iii) because the claim arose out of an insurable event. Even if the Pool is not the legal successor of the insurance company, for purposes of collecting a covered claim, the rights and liabilities of the Pool are derivative of those of the insolvent insurance company up to the $100,000 limit set forth in the Act at OCGA § 33-36-3 (D). Thus, the Pool is, in essence, the privy of Paxton, which was a party to the earlier action, and the Pool is subject to collateral estoppel as to issues decided in the earlier action. See Walka Mountain Camp &c. v. Hartford Accident &c. Co., 222 Ga. 249, 252 (149 SE2d 365) (1966). Thus, the Pool is bound by the explicit determination of the United States District Court for the Eastern District of Kentucky and the implicit determination of the United States District Court for the Northern District of Georgia that J. Transport’s claim against Paxton is covered under its policy of liability insurance.

Even if the doctrine of collateral estoppel does not apply in this case, we agree with the holdings of the two federal courts that J. Transport’s claim against Paxton arose out of its tort liability for the insured truck’s collision with the automobile, the now ancient event out of which this lawsuit arose, and is thus covered by the policy issued by Paxton. The Pool’s argument that J. Transport’s obligation to reimburse Empire is merely contractual and does not arise out of its liability in tort for the collision is insupportable and merely obfuscates the issues involved in this case.

Having decided that J. Transport’s claim against Paxton is covered by the insurance policy issued by Paxton, it follows, as noted above, that the obligation is also covered by the Georgia Insurers Insolvency Act, OCGA § 33-36-3 (2) (B) (iii). That the insured’s right to recover from the insolvent insurance company was assigned to another party does not relieve the Pool from its statutory duty to pay the claim. In United Budget Co. v. Ga. Insurers &c. Pool, 253 Ga. 435 (321 SE2d 333) (1984), the Georgia Supreme Court held that an assignee of an insured who would be entitled to payment of a claim by the Pool “stands in the shoes” of the insured and is entitled to the same benefits to which the insured would be entitled but for the assignment. Although the claim in-the United Budget Co. case involved a claim to recover unearned premiums on behalf of policyholders, the same rule applies in this case. A claim for an unearned premium is a covered claim pursuant to subsection (2) (B) (i) of OCGA § 33-36-3 and the claim in this case, for liability arising out of an insurable event, is a covered claim pursuant to subsection (2) (B) (iii).

We reject the Pool’s argument that the claim involves an obligation to an insurer and is thus not covered by the Act pursuant to OCGA § 33-36-3 (2) (F). For the reasons set forth above, the claim does not involve an obligation to an insurer but ultimately involves an obligation owed to and paid to third parties who were injured as a result of an insurable event. Subsection (2) (F) also provides that a claim is not covered if it involves an obligation to a person worth over $3 million at the time of the insured event, and pursuant to that version of the Act in effect at the time of the collision, the claim was excluded if the person was worth over $1 million. It is undisputed that J. Transport did not have a net worth greater than $1 million at the time of the insured event. Thus, the trial court erred in granting summary judgment to defendant the Georgia Insurers Insolvency Pool and the court should have granted summary judgment to plaintiffs in the maximum amount $100,000 as set forth in the Act.

Decided July 13, 1993 —

Reconsideration denied July 29, 1993 —

Dennis, Corry, Porter & Gray, William E. Gray II, Andrew H. Schultz, for appellants.

Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, Stuart K. Theodore, for appellee.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A93A0774.
    BLANDBURG v. THE STATE.
    (434 SE2d 510)
   Blackburn, Judge.

Appellant, Timothy Blandburg, appeals his conviction for the aggravated child molestation of Jessica Nicole Taylor, who was three-years-old at time of the incident. On appeal, Blandburg asserts two enumerations of error.

1. In his first enumeration of error, Blandburg contends that the trial court erred in failing to strike all the child hearsay testimony based on his inability to obtain full responses from Jessica upon cross-examination. Blandburg admits that this enumeration was decided adversely to him in Bright v. State, 197 Ga. App. 784 (400 SE2d 18) (1990). However, he urges the court to “reject” or “reconsider and refine” our decision in Bright. We decline to do either.

Blandburg argues that the testimony of Taylor, Jessica’s mother, was questionable regarding Jessica’s statements that her “tu-tu was burning” because Blandburg had been “sticking her . . . with his dingdong.” Blandburg asserts that “the only way to determine whether these statements were made by Jessica was to have Jessica confirm their authenticity on the stand.” However, during his trial, Blandburg demonstrated several other ways in which to determine the veracity of these statements. Blandburg conducted a thorough and sifting cross-examination of Taylor. Blandburg introduced Agnes Blandburg Williams’ testimony which contradicted Taylor’s version of Jessica’s statements, and the testimony of Dr. Cleveland who opined that Jessica had been coached. Blandburg also introduced the testimony of Kela Brooks who testified that Taylor had lied to her on several occasions. Blandburg even testified himself that he did not molest Jessica. And finally, Blandburg was given the opportunity to cross-examine Jessica. Jessica answered some questions, nodded to some, and was unresponsive to some. The court cannot assure every defendant productive results from a cross-examination, but only the right to conduct a reasonable cross-examination. See Bright, supra at 785.

In Bright, we held that “[s]o long as the witness is made available for confrontation and cross-examination, the defendant’s rights are protected, even if the witness is uncommunicative or unresponsive.” Id. at 785. We determined that “silence itself was evidence, as the jury could observe [the witness’] demeanor as each question was posed. A witness’ responsiveness or unresponsiveness, evasiveness or directness, verbal skills, intelligence, memory, perception, and apparent understanding are all factors which can be assessed by the jury and may raise a reasonable doubt.” Id. at 786. Blandburg’s first enumeration of error is controlled adversely by Bright; therefore, the trial court did not err in failing to strike the child hearsay statements. See also Byrd v. State, 204 Ga. App. 252 (419 SE2d 111) (1992).

2. In his second enumeration of error, Blandburg asserts that the trial court erred by failing to recharge the jury, pursuant to his request, on presumption of innocence. Blandburg argues that OCGA § 5-5-24 (b) requires that all charges be given after counsel’s arguments are completed. In the present case, the trial court charged on the defendant’s presumption of innocence prior to the reception of evidence. Blandburg does not argue that an insufficient charge was given, but that the charge should have been repeated, along with the court’s specific instructions on the applicable law, after counsel’s arguments were completed.

It is uncontroverted that the trial court correctly charged the jury on the presumption of defendant’s innocence and that the court informed the jury that he would not repeat the instruction at the end of the trial. It is also uncontroverted that Blandburg did not object to the trial court’s preliminary instructions, neither did he object to the court’s statement that the preliminary instructions would not be repeated.

OCGA § 5-5-24 (b) requires that jury instructions be given after the close of evidence and completion of arguments by counsel. It is commendable that the trial judge here gave the jurors preliminary instructions, before evidence was presented, to acquaint them with the nature of their duties and the basic principles of law they would apply during their deliberations. This practice can be extremely helpful for jurors and deserves to be encouraged and emulated. However laudable it may be, though, it cannot serve as a substitute for a complete jury charge, as the statute requires, after the evidence is closed and arguments concluded. This case demonstrates why that is so.

With little preamble, the post-argument jury instructions given in this case began with a charge on expert witnesses and continued with other charges on various principles of substantive law. The jury heard this final portion of the judge’s instructions eight days after they had heard his preliminary instructions, which included a charge on the presumption of innocence. During those eight days, there was a three-day period during which the jury heard no testimony. When the jury entered the jury room to begin deliberations,' it had been over a week since they heard the judge instruct them on one of the most fundamental principles of criminal law, the presumption of innocence. It is not reasonable to expect that jurors, under these circumstances, could give that instruction the same weight in their deliberations as the other, less vital principles given them in the court’s final charge.

The charge conference in this case was properly conducted, and there was no uncertainty afterwards as to the content of the trial court’s instructions to be given after closing argument. The difficulty is more serious, and it lies in the trial court’s express refusal of defense counsel’s request at the charge conference for a post-argument instruction on presumption of innocence.

Hammond v. State, 169 Ga. App. 97 (311 SE2d 523) (1983) is a case with two special concurrences and therefore is not binding precedent. However, that case dealt with substantially the same procedure employed by the trial court here, and all three opinions, the majority as well as the two special concurrences, criticized said procedure. Both concurring opinions said instructions or explanations given at any time in the trial other than after argument should be “in addition to and not in lieu of the comprehensive charge required by the statute.” (Punctuation omitted.) Hammond, supra at 99-100. The majority held: “Although we do not encourage the procedure followed here, we find no violation of the statute. It is not uncommon for certain charges to be given prior to and during the receipt of evidence. It is also an acceptable practice to instruct the jury concerning their duties before any evidence is received. It is neither error for this to take place, nor error for the trial court, absent a timely request to fail to repeat such instructions. McDaniel v. State, 225 Ga. 695 (171 SE2d 358) (1969); Whitt v. State, 203 Ga. 538 (3) (47 SE2d 580) (1948).” (Emphasis supplied.) Hammond, supra at 98.

Here, though, there clearly was “a timely request ... to repeat such instructions.” Not only had defense counsel filed a written request for a charge on presumption of innocence, he also specifically requested at the charge conference that the charge be repeated in the post-argument instructions. Under OCGA § 5-5-24, this was the appropriate procedure for him to follow. There was no obligation on his part to object immediately when the trial judge indicated in his preliminary instructions that the principles given then in charge would not be repeated later. After all, the instruction he requested was being given them and the statute itself provides the charge conference as an appropriate time and opportunity to request repetition of the presumption of innocence charge.

Decided July 7, 1993 —

Reconsideration denied July 29, 1993 —

Saia, Richardson & Meinken, Joseph J. Saia, Lloyd W. Walker, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

In our view, the statute requires the trial judge to give the jury comprehensive instructions after closing arguments, even at the cost of extensive repetition. While it might well be more logical to follow the sequence of instructions outlined in Justice Weltner’s thoughtful concurrence in Bentley v. State, 261 Ga. 229 (404 SE2d 101) (1991), the statute directs otherwise. Under Justice Weltner’s proposal, the bulk of the charge would be given before arguments but after the evidence is closed. Although there would be an introductory charge on basic principles at the beginning of the trial, nothing in his proposal indicates that a principle so fundamental as the presumption of innocence should not be repeated in the charge given after the evidence is closed, particularly if properly requested in a lengthy trial.

If the principle of law involved were not so fundamental and so crucial to the jurors’ proper understanding of the criminal trial process and their responsibilities in that process, if the request had not been properly made, or if the trial had been brief, then many of the above points would not be of concern. However, because of the requirements of OCGA § 5-5-24 (b) and the importance of insuring the jurors’ understanding of the law, we cannot say that the court’s failure to recharge was not harmful error, and must therefore reverse.

Judgment reversed.

Johnson and Smith, JJ., concur.

       Blandburg’s enumeration asserts that the trial court erred in failing to recharge the jury on defendant’s presumption of innocence, the definition of reasonable doubt, and the State’s burden of proof. However, on appeal, Blandburg argues only with regard to the trial court’s failure to recharge on the presumption of innocence, thereby abandoning his argument as to the other charges. See Court of Appeals Rule 15 (c).


text:
    A93A0783.
    DAVIS v. THE STATE.
    (434 SE2d 752)
   Cooper, Judge.

Appellant was convicted by a jury of rape and kidnapping. He appeals from his conviction and sentence and the denial of his motion for a new trial.

The victim testified that on the night of the attack, she went to visit Bonnie Smith. When she arrived at Smith’s house, appellant was also there, and Smith introduced appellant to the victim as her friend from North Carolina. For four or five hours, they talked, watched TV, drank a couple of beers and ate chips. During this time, two or three other men, one of whom was called Chris Moody, came in to visit briefly and then left. When the victim got up to leave a little after midnight, Smith asked her if she would give appellant a ride home, and the victim agreed to do so. Soon after she drove away from Smith’s apartment, appellant pulled out a gun and told her to drive to the back of a nearby apartment complex, take off her clothes and get into the back seat. The victim truthfully told him she was having her period, but he said he did not care. Appellant then raped her. After appellant left the victim, she drove to the home of Ken Pas-more, another friend who lived nearby, where she called her husband to come get her and take her to the hospital.

The victim’s husband testified that he received a phone call from his wife in which she hysterically related that she had been raped in the back seat of her car. He went to get her and then took her to the hospital. After leaving her in the emergency room, he parked the car and examined the back seat area. There he found two photographs — one of a man alone and one of the same man with a woman. The pictures had a crease in them, as if they had been in someone’s pocket. When he showed the pictures to the victim, she “went berserk” and identified the man in the photographs as her assailant. The victim’s husband then took her home and went to the police station where he reported the rape to Detective Kelly. The next day, the victim went in to make a formal statement. She also showed Detective Kelly exactly where the attack occurred, as he wanted to confirm that it was his jurisdiction.

Detective Kelly testified that he was able to elicit from Bonnie Smith that the suspect’s name was “Kenneth” and that Kenneth had been involved in an altercation with a maintenance man at her apartments. Detective Kelly narrowed down the date of the altercation by contacting the maintenance department and was able to obtain a last name and address for Kenneth by checking the police report on that earlier incident. Detective Kelly then obtained arrest and search warrants and executed them, arresting appellant and seizing a pair of blood-stained underwear. After appellant was read his Miranda rights, he told Detective Kelly he was not with any woman on the night in question. Another officer testified that appellant subsequently stated that he did not commit the rape and could not have because he was at another location at the time. A GBI forensic serologist testified that the blood on the underwear was on the outer front crotch and was human blood, but that she could not type or identify it further. The doctor who treated the victim at the hospital also testified, stating that the victim’s breath rate, heart rate and blood pressure were elevated, but that there were no physical manifestations of forcible intercourse. He also testified that, based on his emergency room experience, it was not unusual for there to be no physical signs of rape.

Appellant testified at trial that he had sex with the victim but that it had been consensual.

1. Appellant first argues that the trial court erred in denying his motion for new trial because his trial counsel was ineffective in several ways. For example, appellant points to his counsel’s failure to file pre-trial discovery motions; failure to locate and interview Bonnie Smith, Ken Pasmore and Chris Moody; and failure to reserve exceptions to the trial court’s jury charges. The trial court held an evidentiary hearing on the motion for new trial, at which appellant’s trial counsel testified that he did not make any discovery motions because the State voluntarily gave him access to their case file and that he did not interview Smith, Pasmore and Moody because he did not have addresses for them. He also noted that he did not think the testimony of Smith and Pasmore would be helpful based on notes in the police file and the fact that Smith and Pasmore were listed as possible State witnesses. Trial counsel testified that the strategy of the defense was to show that the victim was unhappy in her marriage and had consensual sex with appellant but then said it was rape to avoid her husband’s jealous rage. He stated that this defense was viable and had a good chance to succeed, but was undermined by appellant’s denial that the blood-stained underwear was his and his denial that he had dropped the photographs in the victim’s car — denials that were incredible and unnecessary given a defense based on consent. Trial counsel strongly advised appellant against these denials, but appellant insisted on pursuing this course against his counsel’s advice. Trial counsel testified that the defense was further undermined by appellant’s testimony that he did not understand why the victim was so upset, as it was “just a little sex.” Appellant did not call Smith, Pasmore or Moody as witnesses at the hearing on the motion for new trial, and the trial court found that appellant’s trial counsel was not ineffective. .

To support his claim of ineffective assistance of trial counsel, “[t]he burden is on the defendant to show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cits.]” Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). “Effectiveness of counsel is determined by looking at the totality of circumstances, not at isolated trial errors. [Cit.] There is a strong presumption that representation has been effective. [Cit.] Errors in judgment and tactical errors do not establish ineffective assistance. [Cit.]” Clarington v. State, 178 Ga. App. 663, 666-667 (5) (344 SE2d 485) (1986). Moreover, “[i]n order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. [Cit.]” Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988).

Looking at the totality of the circumstances, we agree with the trial court that trial counsel’s performance was not deficient. Additionally, appellant was unable to show a reasonable probability that any of the alleged deficiencies on the part of his counsel affected the outcome of the proceedings. Failure to file pre-trial discovery motions is not prejudicial where access to the materials in question is otherwise obtained, see Thompson v. State, 203 Ga. App. 339 (2) (416 SE2d 755) (1992); and failure to reserve exceptions to the court’s charge is not prejudicial where that charge is adequate and complete. See Concepcion v. State, 205 Ga. App. 138 (421 SE2d 554) (1992). With respect to interviewing Smith, Pasmore and Moody, there is nothing in the record to indicate that these individuals could be located. Although appellant argues that addresses were listed for Smith and Pasmore in the police report, evidence at trial indicated that both had moved from those addresses before the trial. Moreover, appellant’s suggestion that Smith, Pasmore and Moody might say something that would help his case is pure speculation. Accordingly, the trial court did not err in finding that appellant was afforded effective assistance of counsel in this case.

2. Appellant next contends that his arrest and the search of his home were illegal because the arrest and search warrants were issued without probable cause. See OCGA § 17-5-30. We first note that appellant filed no motion to suppress any statements or evidence resulting from his arrest or the search of his home. Thus, we address this enumeration of error only for the purpose of determining whether trial counsel’s failure to make such a motion rendered his assistance ineffective. The arrest and search warrants were based on an affidavit from Detective Kelly in which he described the attack and attacker, stated that the victim identified the man in the photographs as her attacker and explained that subsequent investigation revealed that the man in the photographs was appellant. This is more than sufficient to establish probable cause for the arrest and search warrants. Appellant points out that the victim did not identify the man in the photographs as her attacker in Detective Kelly’s presence, and that Detective Kelly was relying on the statement of the victim’s husband for the truth of the fact of that identification. The victim was there when her husband gave Detective Kelly the photographs the second time, however, and her formal statement to Detective Kelly confirmed everything her husband told Detective Kelly the previous day. Moreover, Bonnie Smith told Detective Kelly the victim left with “Kenneth,” who had been involved in an altercation with a man from the maintenance department, and the maintenance department subsequently identified the man in the photograph as the one who had been involved in the altercation. Under these circumstances, we cannot conclude that it is reasonably probable that the trial court would have found a lack of probable cause if a motion to suppress had been filed. See Baggett, supra. Thus, defense counsel’s failure to make a motion to suppress on the grounds that the warrants were issued without probable cause was neither deficient nor prejudicial and did not render his assistance ineffective.

3. In his third enumeration of error, appellant asserts that the trial court erred in admitting prejudicial character evidence over his objection. In Detective Kelly’s narrative response to a question about how he obtained a last name for “Kenneth,” he explained that after he asked Smith if she knew anything else about Kenneth, Smith told him that Kenneth had been involved in an altercation with a maintenance man and that Kenneth was arrested and told not to come back to the complex. Pretermitting consideration of whether this testimony was relevant to any question of identification at issue in the case, see Hart v. State, 174 Ga. App. 134, 135 (1) (329 SE2d 178) (1985), we conclude that Detective Kelly’s brief passing reference to a prior arrest in the course of a narrative response “falls just short of putting the defendant’s character in issue.” Ogles v. State, 238 Ga. 716, 717 (235 SE2d 384) (1977); see also Hall v. State, 177 Ga. App. 464 (339 SE2d 658) (1986).

We do agree with appellant that, having allowed the officer’s brief reference to the earlier arrest, the trial court abused its discretion in not allowing appellant to cross-examine the officer about the circumstances and disposition of that arrest. (Enumeration of Error 5.) However, viewing this error in the context of all the evidence presented at trial, we conclude that it was harmless. Although the State’s case against appellant was not overwhelming, we agree with appellant’s trial counsel that appellant’s own testimony and the implausible positions he took, contrary to his counsel’s advice, with respect to the photographs and underwear were the crux of the guilty verdict against him. Moreover, calling the jury’s attention to the briefly referred to arrest by eliciting an explanation of the circumstances might have harmed appellant as much as it helped him.

4. Appellant next argues that he was deprived of a fair trial due to prosecutorial misconduct. Specifically, he contends that the prosecutor withheld materials which should have been disclosed. However, appellant’s trial counsel testified at the hearing on the motion for new trial that he had access to the prosecution’s complete case file, and appellant has made no showing that anything was withheld. Contrary to appellant’s assertion, the State was not obligated to provide updated addresses for potential witnesses it chose not to call at trial or to ferret out evidence it did not possess. See Fletcher v. State, 157 Ga. App. 707 (3) (278 SE2d 444) (1981).

Decided July 15, 1993 —

Reconsideration denied July 29, 1993 —

Alice C. Stewart, for appellant.

In a related argument, appellant contends that the prosecutor’s policy of discouraging pre-trial discovery motions rendered his trial counsel ineffective. Specifically, he points to his counsel’s inability to rely on OCGA § 17-7-210 (c) to exclude appellant’s statement to the second officer — that he did not commit the rape and could not have done so because he was somewhere else — because his counsel failed to make a timely pre-trial request for any statement made by appellant. This statement was inculpatory because it, like appellant’s post-arrest statement to Kelly, was inconsistent with his consent-based defense at trial. Trial counsel’s failure to have this testimony excluded does not change our conclusion that counsel was not ineffective, however, as this second post-arrest statement was substantially similar and cumulative to the first statement made to Detective Kelly. As it is highly unlikely that the jury’s verdict would be influenced by whether appellant made one rather than two post-arrest statements which were inconsistent with his defense at trial, we cannot conclude that “there is a reasonable probability that the result of the proceedings would have been different but for counsel’s” failure to challenge this testimony. See Baggett, supra.

Appellant also contends that the prosecutor engaged in improper closing argument by referring to appellant’s failure to call corroborating witnesses. Such argument is not improper. See Battle v. State, 155 Ga. App. 541 (4) (271 SE2d 679) (1980).

5. Appellant argues that the trial court erred when, in response to a request from the jury for a clear definition of “kidnapping,” “abduction” and “steal away,” it failed to send out a copy of the entire charge. However, it is not error to limit a recharge to the question asked. Davis v. State, 184 Ga. App. 415 (3) (361 SE2d 547) (1987). Accordingly, this argument is without merit.

6. Lastly, appellant asserts the general grounds, arguing that the evidence was insufficient to support the verdict. Viewing the evidence in a light most favorable to the verdict, it was sufficient to enable the jury to find appellant guilty of rape and kidnapping beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Lewis R. Slaton, District Attorney, Herman L. Sloan, Nancy A. Grace, Assistant District Attorneys, for appellee.