text:
    76324.
    WOODS v. THE STATE.
    (369 SE2d 353)
   Carley, Judge.

Appellant was indicted on charges of child molestation and aggravated child molestation. The jury returned a guilty verdict on each count. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. Appellant sought to present evidence of the victim’s prior sexual acts, urging that such evidence supported his defense that it was the victim who had been the sexual aggressor. The trial court refused to admit the evidence, basing its ruling, in part, upon the finding that our “Rape Shield” statute is applicable in cases involving child molestation, as well as in those involving rape. This evidentiary ruling forms the basis for several of appellant’s enumerations of error.

Any consideration as to the applicability of the “Rape Shield” statute in child molestation cases is pretermitted because the evidence was inadmissible and properly excluded on another basis. “[I]n a child molestation case evidence as to the victim’s reputation for nonchastity is not admissible. [Cit.] Nor may evidence be admitted to discredit the victim by showing her preoccupation with sex. [Cits.]” Vargas v. State, 184 Ga. App. 650 (1) (362 SE2d 461) (1987). See also Chastain v. State, 180 Ga. App. 312, 312-313 (2) (349 SE2d 6) (1986), aff’d 257 Ga. 54 (354 SE2d 421) (1987). Whether it was appellant or the victim who had been the sexual aggressor was irrelevant. What was relevant was whether appellant had engaged in acts of molestation upon the child with the requisite intent. Accordingly, the evidence as to the victim’s prior sexual acts was properly excluded.

2. When he was refused the opportunity to present evidence of the victim’s prior sexual activities, appellant moved for a mistrial. The denial of this motion is enumerated as error. As we have held in Division 1, however, the trial court did not err in excluding the evidence. Since the evidence was properly excluded, the trial court clearly did not err in denying the motion for mistrial.

3. The trial court’s denial of appellant’s motion for directed verdict as to the aggravated child molestation count is enumerated as error. Although the indictment alleged that the offense had occurred on a particular date, the trial court admitted evidence of the occurrence of acts on other dates. For this reason, appellant urges that he was entitled to a directed verdict as to the aggravated child molestation count of the indictment. However, this enumeration is controlled adversely to appellant by our holding in Whittington v. State, 184 Ga. App. 282, 285 (4) (361 SE2d 211) (1987). See also Frymyer v. State, 179 Ga. App. 391, 392 (2) (346 SE2d 573) (1986); McCoy v. State, 174 Ga. App. 621, 622 (2) (330 SE2d 746) (1985).

4. The trial court’s failure to give a charge which appellant had requested is enumerated as error. The refused request related to the “two theories” of circumstantial evidence. It is clear, however, that such a “two theories” charge “is appropriate only when all of the evidence is circumstantial. [Cit.]” (Emphasis in original.) General v. State, 256 Ga. 393, 394 (3) (349 SE2d 701) (1986). In this case, there was direct testimony offered by the victim and, accordingly, not all of the evidence was circumstantial. It follows that there was no error in refusing to give the requested charge.

5. The trial court’s failure to give appellant’s requested charge on alibi is enumerated as error. “While the [trial] court did not give the requested instruction in the exact language proposed by appellant, the trial court did, in fact, charge the jury on the defense of [alibi]. The failure to give a requested charge in the exact language requested, where the charge given substantially covers the same principles, is not grounds for reversal. [Cit.] Since the same principle as that requested was covered in the court’s charge, no error occurred by refusing appellant’s requested charge.” Caldwell v. State, 167 Ga. App. 692, 695 (6) (307 SE2d 511) (1983).

6. Pursuant to the jury’s request for further instruction, the trial court gave a recharge on a particular point of law. This recharge is enumerated as error.

“It is within the trial court’s discretion to recharge the jury fully or only on the point or points requested. [Cits.] A jury instruction on only a specific point is not error unless the ‘instruction taken alone might leave an erroneous impression in the minds of the jury.’ [Cit.] No erroneous impression could have been left in the jurors’ minds as a result of the recharge.” Moore v. State, 179 Ga. App. 125 (1) (345 SE2d 631) (1986).

7. Appellant enumerates the general grounds. After a review of the entire record, we find that, based upon the evidence produced at trial, a rational trier of fact could reasonably have found appellant guilty, beyond a reasonable doubt, of the crimes of child molestation and aggravated child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

8. During the sentencing phase, the trial court considered a prior conviction of appellant. Appellant enumerates such consideration as error, urging that, because he had received “First Offender” treatment for the earlier incident, it could not be used as evidence of aggravation in the determination of his sentence for this conviction. See OCGA § 42-8-60 et seq. Review of the record reveals, however, that the “First Offender” statute was not in effect at the time of appellant’s prior conviction. Inasmuch as appellant’s first criminal proceeding was not handled under the “First Offender” statute, he is not eligible to claim the benefits which inure to those who are afforded treatment thereunder. Accordingly, the trial court did not err in considering appellant’s prior conviction in the sentencing phase of this trial.

Decided May 11, 1988.

Ivan H. Nathan, for appellant.

Glenn Thomas, Jr., District Attorney, Robert L. Crowe, Assistant District Attorney, for appellee.

Judgments affirmed.

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


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    76379.
    LAZARZ v. THE STATE.
    (369 SE2d 355)
   Carley, Judge.

Appellant was convicted of possession of cocaine. He appeals from the judgment of conviction and the sentence entered by the trial court on the jury’s verdict. The denial of his motion to suppress is appellant’s sole enumeration of error.

Appellant was eventually arraigned on July 13, 1986, after a bench warrant had been issued for his arrest for his failure to have appeared at his scheduled arraignment. Appellant was thereafter granted a ten-day extension for the filing of all motions, the time for the filing of motions under Uniform Superior Court Rule 31.1 having already expired. Appellant subsequently filed his first motion to suppress, which was dismissed by the trial court “as insufficient and inadequate on its face.” Appellant enumerates no error with regard to the dismissal of this motion. Instead, appellant’s enumeration of error relates to his second motion to suppress which he filed in October of 1986, over three months after appellant’s arraignment and the entry of his written plea of not guilty. The trial court concluded that appellant’s second motion to suppress should be denied on two bases. First, the trial court found that it had been untimely filed. Second, the trial court also concluded that, under the totality of the circumstances, the asserted grounds of the motion lacked merit. In its order, the trial court concluded that either the untimeliness of the motion or its lack of merit would, standing alone, compel its denial. Appellant enumerates the denial of his second motion to suppress as error. Appellant urges only that the trial court erroneously concluded that the motion lacked merit. He enumerates no error as to the trial court’s ruling that the untimeliness of the filing of the motion was an additional basis for its denial.

The trial court’s finding as to the untimeliness of appellant’s second motion to suppress would, if correct, be a sufficient reason, in and of itself, for the denial of the motion. The trial court’s holding in that regard is not enumerated as error and appellant thus concedes the correctness of that ruling. Accordingly, the trial court did not err in denying appellant’s motion to suppress. “Since we find that the [second] motion to suppress was not timely made, we need not address the question whether the evidence should have been admitted.” Waller v. State, 251 Ga. 124, 127 (5) (303 SE2d 437) (1983), rev’d on other grounds in Waller v. Ga., 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984). See also Holton v. State, 243 Ga. 312, 316 (3) (253 SE2d 736) (1979); Tillman v. State, 184 Ga. App. 210, 211 (3) (361 SE2d 66) (1987). Compare Collier v. State, 171 Ga. App. 214 (319 SE2d 51) (1984) (wherein we held that a motion to suppress filed on the day set for trial was not untimely where no written plea had been entered and no time limit had been set for the filing of motions by order of the trial court or by any applicable rule of court). Error, if any, with regard to the trial court’s ruling on the merits of appellant’s motion to suppress would be harmless.

Decided May 11, 1988.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

Judgment affirmed.

Been, P. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    76434.
    WATKINS v. THE STATE.
    (369 SE2d 356)
   Banke, Presiding Judge.

The appellant was indicted for eight counts of burglary and one count of theft by taking. The trial court directed a verdict of acquittal on the theft-by-taking count and on one of the burglary counts, and the jury thereafter found him guilty on four of the remaining burglary counts. On appeal, the appellant’s sole enumeration of error is directed to the trial court’s refusal to sever the various charges. Held:

1. Any error resulting from the failure to sever those charges of which the appellant was acquitted was, of course, harmless. See Hayes v. State, 182 Ga. App. 26 (1) (354 SE2d 655) (1987).

2. Generally, “where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.” Williams v. State, 178 Ga. App. 581, 584 (344 SE2d 247) (1986). The four burglaries of which the appellant was convicted involved three business establishments and one private residence, all located in Gwinnett County. Each of the four burglaries occurred during the same four-month period, each occurred while the premises were unoccupied, and in each instance the appellant was accompanied by the same accomplice. A police officer who had investigated the burglaries characterized the method of entry involved in each of them as “snatch and go,” meaning that in each case glass was broken to gain access, following which items in plain view were quickly removed. The burglaries of the three businesses were additionally similar in that the same type of property (tools) was stolen during each of them.

Decided May 11, 1988.

J. Stanley Rhymer, for appellant.

Thomas C. Lawler III, District Attorney, Phyllis Miller, Assistant District Attorney, for appellee.

Based on all of these similarities, we hold that the trial judge did not abuse his discretion in denying the motion to sever these burglary charges for trial. See Reeves v. State, 177 Ga. App. 867 (341 SE2d 711) (1986).

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    75936.
    OSTROFF v. COYNER.
    (369 SE2d 298)
   Birdsong, Chief Judge.

Defendant-appellant Barton B. Ostroff appeals from a verdict and judgment for actual and punitive damages awarded to plaintiffappellee Doug Coyner in an action for malicious abuse of process, and from orders for sanctions for failure to comply with post-judgment discovery procedures. The litigation upon which the instant action was based was commenced on March 30, 1981, when suit was filed in the State Court of Cobb County by Gold Coast Marketing, Inc., a corporation of which Ostroff was the sole shareholder, against Doug Coyner d/b/a Rock Shrimp International (RSI), alleging that the defendant owed the plaintiff $4,880.80 plus interest and costs on open account as shown by attached documents. Coyner answered, contending that the complaint failed to state a claim upon which relief could be granted because the indebtedness sued upon, if incurred, was owed by RSI, a Florida corporation which was at all times during the date of the alleged transactions validly organized and existing in good standing; that the plaintiff openly and knowingly at all times did business with the corporation and not with Coyner individually; that Coyner was thus not a proper party to the action; that RSI had as its place of business in the state of Georgia an address located in DeKalb County and had not conducted any business since the time of the transactions alleged in the complaint; and that therefore the court did not have jurisdiction of the corporation or the subject matter of the complaint, the captioned defendant was not a proper party to the action, and the suit should be dismissed.

Gold Coast pursued no discovery. Although Ostroff was given notice on August 24, 1983, that his deposition would be taken on September 2, he failed to appear or give notice that he would not be appearing, and a motion to compel was filed by Coyner/RSI. The case was set for trial on September 12, 1983. On the Friday before the Monday trial date, the attorney then representing Gold Coast made an unsolicited telephone call to Coyner’s lawyer offering to accept $2,000 from Coyner to settle the case. When this was refused, Gold Coast’s attorney telephoned Coyner’s lawyer again on the Sunday before trial, offering to accept $500 from Coyner in return for dismissing the suit. This offer was also refused as Coyner was prepared for trial and had incurred substantial costs. Ostroff failed to appear in court for trial and his attorney did not move for a continuance or offer any explanation for his client’s non-appearance, but dismissed the case, which was never refiled.

Based upon these facts, on June 20, 1984, Coyner filed a complaint against Ostroff and Gold Coast, alleging that the action against him had been carried on maliciously and without probable cause, for which he had incurred enumerated costs in defense thereof and was entitled to actual and punitive damages. Coyner’s suit was grounded upon the theories of both malicious use and malicious abuse of process. Gold Coast/Ostroff sought to have the action dismissed by a motion for judgment on the pleadings and motions for directed verdict argued on at least three occasions during the trial. At the conclusion of the plaintiff’s case, the trial court directed a verdict in Ostroff’s favor on the malicious use of process issue, but allowed the case to go before the jury on the basis of malicious abuse of process. The court found that evidence of abuse of process existed beyond the mere maintenance of the action in Ostroff’s failure to attend depositions or to “legitimately pursue the action once it was filed to a reasonable bona fide determination . . . and the attempt to extract a last minute settlement of the case.” The jury awarded a verdict of the total amount of damages sought by Coyner, plus an additional $10,000 in punitive damages.

Ostroff moved for judgment notwithstanding the verdict or for a new trial, which was denied. After Ostroff filed this notice of appeal, Coyner filed a motion to require him to post a supersedeas bond, which was granted. When no supersedeas bond was posted, Coyner sought enforcement through the post-judgment discovery procedures of OCGA § 9-11-69. The court’s orders for Ostroff to appear for the taking of a deposition and to produce documents were resisted by repeated motions for protective orders and for reconsideration which, after two hearings on the matter, culminated in an order entered September 17, 1987, finding Ostroff in wilful contempt of court for failure to abide by the discovery process as ordered. The order further provided that Ostroff could purge himself of contempt and avoid incarceration if he appeared for deposition and produced all documents requested within 20 days. Coyner was awarded attorney fees and costs in either event; the court also ordered at the final hearing that Ostroff be arrested and jailed until he complied, if jurisdiction of him could be obtained. Although Coyner offered to go to North Carolina, where Ostroff was residing, to take his deposition, to date Ostroff has failed to obey any of these orders. He lists eight enumerations of error on appeal. Held:

1. On the day scheduled for trial, Ostroff sought to modify the pretrial order so as to allow his new counsel to file a motion to dismiss for failure to state a claim and a motion in limine, and to have these motions considered prior to trial. After hearing arguments, the trial court denied Ostroffs motion to modify the pretrial order, but advised his attorney that Ostroff’s rights could be reasserted in a subsequent motion for directed verdict. Ostroff argues on appeal that because the complaint failed to state a claim either as to malicious use of process or malicious abuse of process, his motion to dismiss should have been granted. Since a verdict was directed in his favor on the claim of malicious use of process, we will consider only Coyner’s alleged failure to state a claim for malicious abuse of process.

“ ‘The principal distinction between “malicious abuse of process” and “malicious use of process” is that malicious abuse lies for “wrongfully and unlawfully using legally and properly issued process for a purpose the law never intended it to effect, while the latter action lies for maliciously suing out civil process without probable cause.’ ” “ ‘ “Two elements are necessary to an action for the malicious abuse of legal process: first, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with a bad intention, is not malicious abuse of process.” ’ ” Ferguson v. Atlantic Land &c. Corp., 248 Ga. 69, 71 (2) (281 SE2d 545).

Coyner’s claim of abuse of process was alternately and cumulatively premised upon the assertion, supported by uncontroverted evidence, that Ostroff caused his wholly owned corporation to file suit against Coyner individually, rather than derivatively or as an alter ego, when Ostroff knew that the indebtedness sued upon was actually owed by RSI, a corporation in which Coyner had been one of two shareholders. Coyner denied any liability for the corporate debt and proved that Ostroff was fully aware of the truth of this assertion in the trial of the instant case. However, Ostroff caused his suit to remain pending against Coyner without any further action for two and a half years until he attempted to extract a settlement from Coyner. When even a nuisance settlement of $500 was rejected, Ostroff dismissed the case immediately and never refiled.

Ostroff relies primarily upon Medoc Corp. v. Keel, 152 Ga. App. 684 (1) (263 SE2d 543), which held that “the mere issuance of the summons and complaint, by which Medoc was legally and properly made a party defendant to the action . . . has no bearing or relevancy to, and cannot serve as a predicate for, a counterclaim for abuse of civil process.” Id. at 686. That case goes on to explain, however, that the plaintiff’s continued pursuit of the action cannot “be turned into a damage suit by the defendant against the plaintiff for bringing it, while it is still pending. . . . [T]he mere filing and maintaining of the main action by the plaintiff does not state a claim for damages which can be recovered in the trial of the same action. [Cits.]” Id. at 687-688.

The misapplication of the Medoc ruling to the situation here is readily apparent. First, Ostroff not only misused the process by knowingly causing the suit to be filed against an improper party, he further perverted its issuance by failing to pursue discovery or otherwise litigate the case, by attempting to solicit a settlement at the eleventh hour before trial, and then by dismissing the suit after failing to appear in court. Second, Coyner brought the instant action as a separate suit, not as a counterclaim to recover damages in the trial of the same action. In such circumstances, we find the reasoning of the Supreme Court of Nevada in a decision based upon similar procedural facts to be much more persuasive. The plaintiff in Bull v. McCuskey, 615 P2d 957 (Nev. 1980) asserted that the process (complaint and summons) in a prior suit charging him with medical malpractice was misused for the ulterior purpose of coercing a nuisance settlement. The court stated: “[T]he two essential elements of abuse of process are an ulterior purpose, and a wilful act in the use of the process not proper in the regular conduct of the proceeding. ... In considering all evidence presented, it was permissible for the jury to conclude that [the defendant] had utilized an alleged claim of malpractice for the ulterior purpose of coercing a nuisance settlement. His offer to settle the case for the minimal sum of $750 when considered in the light of his failure adequately to investigate before deciding to file suit and the total absence of essential. . . evidence, supports such a conclusion by the jury, and we may not set it aside.” Id. at 960.

We think that Ostroff’s failure to regularly and legitimately pursue the litigation in the suit against Coyner likewise authorized the jury verdict in the instant case on the theory of malicious abuse of process. It follows that the trial court correctly denied appellant’s motions to dismiss, for directed verdict, and for judgment notwithstanding the verdict based on the same grounds.

2. Ostroff argues that the trial court erred in refusing to modify the pretrial order so as to allow his motion in limine to be heard prior to trial. In this motion he sought to preclude evidence or argument in regard to witnesses available to both parties who were not called in his defense, and any evidence of expenses incurred by Coyner in defending the lawsuit on the debt. The consolidated pretrial order prepared and agreed upon by the parties had been entered on October 23, 1985. The trial was noticed for January 10, 1986, at which time OstrofFs present counsel appeared and asked for a continuance; however, no motion to open the pretrial order or for modification was made until January 31, 1986, the date then set for trial. OstrofFs attorney was permitted to make all the objections and argue all the theories during the course of the trial that he sought to have injected in the pretrial order and, indeed, prevailed on his motion for judgment on the pleadings in regard to the count of malicious use of process. See Georgia Power Co. v. Bishop, 162 Ga. App. 122 (3) (290 SE2d 328).

Under OCGA § 9-11-15 (a), “once a pretrial order has been entered, a party may not amend without leave of court or consent of the opposite party . . . [and] ‘such order when entered controls the subsequent course of the action, unless modified at trial to prevent manifest injustice.’ ” Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196); OCGA § 9-11-16 (b). “Generally, a proposed amendment will not be barred . . . because it is offered late in the case so long as the other party is not prejudiced. ‘The burden is on the party seeking amendment to show lack of laches or lack of unexcusable delay.’ [Cit.] The record reveals no attempt by [appellant] to satisfy this burden in the case sub judice. The motion to amend was filed on [January 31, 1986] which was more than [three] months after the date of the pretrial order. As the record contains no showing of a lack of laches or inexcusable delay, we find no abuse of the trial court’s discretion in its denial of [appellant’s] motion to amend.” Mulkey v. Gen. Motors Corp., 164 Ga. App. 752, 754-755 (3) (299 SE2d 48); rev’d on other grounds, 251 Ga. 32 (302 SE2d 550). Accord Hickox v. DuBose, 172 Ga. App. 47 (321 SE2d 789).

3. Ostroff contends the trial court erred “in not considering [his] motion for judgment notwithstanding the verdict or for new trial in light oF’ Yost v. Torok, 256 Ga. 92 (344 SE2d 414). We are uncertain of the specific basis for appellant’s claim of error as he argues: (a) such claim “must be pleaded as a compulsory counterclaim” and (b) that applying the “ Yost standard of ‘lacks substantial justification’ ” the evidence is insufficient to support the verdict and judgment.

Appellant argues we must apply the law as it exists at the time of our judgment, rather than applying the law prevailing at the time of the trial court’s judgment. We agree — in part. See Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (4) (359 SE2d 920).

(a) We cannot agree that retroactive application of Yost is required as to appellant’s compulsory counterclaim argument. Yost was decided June 25, 1986. The action by Gold Coast was dismissed on September 12, 1983. Because Yost requires that a claim for abusive litigation be brought as a compulsory counterclaim in the original suit by the plaintiff, and that action was dismissed in 1983 before Yost was conceived, such procedure could not have been utilized and the procedure extant was proper. At that time, an action for malicious abuse of process could be filed as a counterclaim — subject only to the presentation of sufficient evidence to sustain his burden of proof. Medoc, supra at 685. However, an allegation “that a plaintiff wrongfully brought and continued a suit will not, without more, state a claim for malicious abuse of process.” Woolbright v. Hensley, 174 Ga. App. 615 (2) (330 SE2d 812); accord Medoc, supra at 685. Here, Ostroff caused his action to remain pending against Coyner without further action for two and one-half years, did not pursue discovery to determine the proper parties defendant or who was responsible for the purported debt, and failed to appear for depositions or motion to comply with a motion to compel discovery. The cause of action pursued here for malicious abuse of process did not exist at the commencement of Ostroff’s action, but arose from subsequent acts of Ostroff. A compulsory counterclaim is one “which at the time of serving the pleading the pleader has against any opposing party. . . .” OCGA § 9-11-13 (a). Accordingly, Coyner’s action for malicious abuse of process not being in existence at the time Coyner served his pleadings in response to Ostroff’s complaint, it was not a compulsory counterclaim in that action and could properly be filed as a separate action. See Jenkins v. Martin, 142 Ga. App. 573, 574 (236 SE2d 542); Kitchens v. Lowe, 139 Ga. App. 526, 527-528 (228 SE2d 923). Further, we note that the present argument that the trial court erred in not applying Yost principles to his motions, was not presented to the trial court in any portion of the transcript or record. Thus, the question of failure to bring a compulsory counterclaim was not raised below and cannot be raised as an issue on appeal. Booker v. Eddins, 183 Ga. App. 449, 453 (359 SE2d 211).

(b) We will “apply the precepts of Yost” as to whether the evidence is sufficient to support a claim of abusive litigation. Guernsey Petroleum, supra at (4). Yost held, in pertinent part, that “any party who shall bring ... an action, or any part thereof, that lacks substantial justification, or is interposed for . . . harassment; or any party who unnecessarily expands the proceeding by improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby.

“The term lacks substantial justification’ shall mean . . . substantially groundless, or substantially vexatious.” Yost, supra at'96. The facts recited above, when construed in favor of upholding the jury’s verdict (Felton v. Mercer, 149 Ga. App. 358 (1) (254 SE2d 398)) as we are required to do (Scott v. Scott, 243 Ga. 472, 473 (254 SE2d 852)), are sufficient to support the jury verdict and judgment of the court. A motion for judgment n.o.v. is authorized only when the evidence and all reasonable deductions therefrom demand a verdict in favor of the movant. Mercer v. Woodard, 166 Ga. App. 119, 127 (13) (303 SE2d 475). A verdict was not demanded for Ostroff. Hence, it was not error to deny his motion for judgment n.o.v., or in the alternative, new trial.

4. Upon cross-examination, Ostroff was asked if he instructed the attorney representing him in the action against Coyner to assert the attorney-client privilege when questioned by deposition for the present case as to how it was decided to sue Coyner rather than RSI. Ostroff first denied giving such instructions, but later responded that he could not recall any conversation in that regard. Over vigorous objection by appellant, the trial court allowed Coyner to have read to the jury that portion of the former attorney’s deposition in which he declined to answer whether he had correspondence from Ostroff identifying Coyner as the defendant in the suit on the debt by stating: “I specifically spoke to my client [Ostroff] before coming here, and my client has elected to exercise his privilege and asked me to assert it.”

Ostroff objected at trial, and now contends, that this was a prima facie contravention of the attorney-client privilege provided by OCGA §§ 24-9-24 and 24-9-25, even if the intent was to impeach his motive in pursuing the case against Coyner. The trial court ruled that the pertinent deposition testimony was admissible because the witness was unavailable to be present at trial; and that it was not violative of the attorney-client privilege because the identity of the defendant subsequently became a matter of public record for which no privilege could be asserted or sought. We agree.

“In determining whether the statements are to have protection under [OCGA §§ 24-9-24 or 24-9-25] we should approach the matter by confining the attorney-client privilege to ‘its narrowest permissible limits under the statute of its creation,’ [cit.]. . .” Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144, 150 (1) (141 SE2d 112). The mere fact that a statement is made to an attorney for use in preparing for litigation does not render it a communication to the attorney within the privileged category. “ ‘It is axiomatic that one cannot render privileged that which is otherwise not privileged merely by placing it in the hands of his attorney.’ [Cit.]” Ibid. Such statements fail to meet the initial requirement of the test adopted in Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 505 (3) (d)) (277 SE2d 785), “as they were not ‘made for the purpose of securing legal advice,’ but were merely transferred to counsel when litigation ensued.”

Moreover, “it is [not] impermissible to draw an unfavorable inference in a civil case from the privileged refusal to testify in that case. . . . [Although a person does have a right to invoke the privilege in a civil case in order to protect himself, when he does so, an inference against his interest may be drawn by the factfinder. ‘Since the inference is irresistible and logical in such circumstances, the court may as a matter of law draw the inference. Such an inference is based upon an implied admission that a truthful answer would tend to prove that the witness had committed the . . . act. . . . The administration of justice and the search for truth demands that an inference may be drawn that [the] witness’ testimony would be unfavorable to him in a civil action in which the privilege is invoked to protect himself. . . .’ [Cit.]” Simpson v. Simpson, 233 Ga. 17, 20-21 (209 SE2d 611). Thus the trial court properly allowed this evidence to show that Ostroff was unwilling to allow his attorney to divulge the reasons why Coyner was sued in his individual capacity, and to draw any reasonable inferences from the taking of the privilege.

5. Appellant contends that the trial court allowed Coyner to improperly testify as to the offers of settlement made by his attorney immediately prior to trial in violation of OCGA § 24-3-37. The court overruled Ostroff’s objection to this testimony because it was not sought “to prove an admission of liability or anything of that nature,” and instructed the jury that they “would be unauthorized to consider it for such a purpose.” The thrust of Coyner’s suit was that while RSI owed a debt on account in a liquidated amount, he personally owed nothing; and thus Ostroff’s offers to accept payment from him personally of lesser amounts showed the ulterior purpose of extracting a nuisance settlement upon a debt owed by the corporation as a part of his continuing bad faith litigation.

We find no grounds for reversal in the admission of this evidence. First, the settlement offers were not made during the course of the litigation in which they were offered in evidence, but in the context of settling another suit. Second, the underlying purpose in proposing to accept such lesser amounts was an offer to settle and not a proposition to compromise. It is controlled by the principles laid down in Teasley v. Bradley, 110 Ga. 497 (6) (35 SE 782), as follows: “ ‘An admission of liability contained in an offer to settle brought about by a simple demand for settlement, is not inadmissible on the ground that such admission was “made with a view to a compromise,” when there is nothing whatever to indicate that there has been any effort to compromise, and when it can not be inferred from the circumstances under which the offer was made that there has been such an effort. . . .’ ” “The testimony does not indicate any effort of the parties to reach a settlement. [Cit.]” Campbell v. Mut. Svc. Corp., 152 Ga. App. 493, 494 (2) (263 SE2d 202), quoting Williams v. Smith, 71 Ga. App. 632, 642 (31 SE2d 873) “ ‘And even if a general proposition of settlement has been made by one party, the admissions of the opposite party may be admissible if no specific terms of compromise have been suggested; and the admissions of a party who may desire a settlement are not to be excluded where, so far as appears from the evidence, the opposite party did nothing to induce the statement and did not contemplate a compromise or abatement of his demand.’ [Cit.]” Pacific Nat. Fire Ins. Co. v. Beavers, 87 Ga. App. 294, 297 (1) (73 SE2d 765). See also Holbrook Contracting v. Tyner, 181 Ga. App. 838 (1) (354 SE2d 22). The evidence admitted here in no way involved a compromise of Coyner’s claim.

6. Appellant’s enumerations of error concerning the trial court’s post judgment discovery orders and sanctions are without merit. The purpose of OCGA § 9-11-69 is to allow post judgment discovery to aid a litigant to recover on a liability which has been established by a judgment, in the manner provided for such discovery measures prior to judgment. Miller v. U. S. Shelter Corp., 179 Ga. App. 469 (4) (347 SE2d 251). Thus the trial court has the power to control the details of time, place and scope of discovery. Bicknell v. CBT Factors Corp., 171 Ga. App. 897, 899 (321 SE2d 383). The court also is authorized to impose sanctions for failure to comply with its discovery orders, although there is apparently no provision for the aggrieved party to move for a dismissal of an appeal on the basis of the non-complying party’s adjudication of contempt. Compare Williams v. Natalie Townhouses, 182 Ga. App. 815 (357 SE2d 156) with Bryant v. Nationwide Ins. Co., 183 Ga. App. 577 (359 SE2d 441).

Ostroff’s arguments that because he does not reside in Georgia nor possess any property here, the court should not have required him to appear here, are not cited to the record to establish these alleged facts. Furthermore, Coyner offered to go to North Carolina at his own expense to depose Ostroff, and the court gave Ostroff the opportunity to purge himself of contempt by appearing in Cobb County for the ordered deposition within 20 days of the entry of the order imposing sanctions. To date the appellant has not appeared for the taking of his deposition and has remained in wilful contempt of the court order requiring him to do so, while at the same time availing himself of the right to appeal the entire case.

“ ‘The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse. [Cits.]’ [Cit.] Moreover, the trial court’s discretion in discovery matters is particularly broad when it is dealing with a party’s failure to obey a discovery order that it has previously entered in the case. Pursuant to OCGA § 9-11-37 (b) (2), a wide range of options is available to the trial court in such a situation and, in addition, that code section specifies that ‘the court shall require the party failing to obey the order or the attorney advising him, or both, to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (Emphasis supplied.)’ ... In the present case, there can be no doubt that appellant was, at the very least, in violation ... of the trial court’s [order of September 17, 1987, compelling his appearance for post judgment deposition and production of documents]. The record also provides ample support for the trial court’s determination that appellant’s conduct was characterized by [his] deliberate intent to evade [his] discovery obligations and thereby to frustrate appellee’s right to prosecute his case. The trial court did not err in finding appellant’s conduct to evince a wilful failure to obey the discovery order[s].” Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 745-746 (1) (360 SE2d 70). We find no ground for reversal for any reason asserted.

Decided April 27, 1988

Rehearing denied May 12, 1988.

Morris L. Richman, for appellant.

H. Bruce Jackson, Lawrence E. Newlin, for appellee.

7. We have carefully examined the remaining enumerations of error and find them to be without substantial merit.

Judgment affirmed.

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


text:
    75984.
    MENNINGMANN v. INDEPENDENT FIRE INSURANCE COMPANY.
    (369 SE2d 295)
   Birdsong, Chief Judge.

Appellee brought suit against appellant for the tortious act of wilfully causing certain insured property to be burned and damaged. Appellant counterclaimed for the amount of loss caused by the fire allegedly due him under his policy of insurance. The case was tried by a jury, and a verdict was rendered against appellant in the sum of $37,500.

Appellant enumerates as error that the trial court abused its discretion in not ordering a mistrial after highly inflammatory and inadmissible evidence was placed before the jury. The trial transcript re-fleets the following question as asked, by appellee’s counsel, of the appellant in the presence of the jury: “Q. Mr. Menningmann, isn’t it true that you pled guilty to receiving stolen property so that you could avoid being drafted and going to the war?” The only response to this question by appellant’s counsel was the interjection of the following exclamatory interrogative or rhetorical question: “[Counsel]: Your Honor, what in the world is this?” The trial judge immediately intervened by retiring the jury, and, after discussing the basis for appellee’s counsel’s conduct, informed him that “I’m not going to allow you to offer it into evidence and I’m going to instruct the jury to disregard it at this time. . . .” The appellant’s counsel at no time during the consideration of this issue either specifically objected to the question or moved for a mistrial. See generally OCGA § 9-11-46; see Palmer v. Stevens, 115 Ga. App. 398 (5) (154 SE2d 803). In fact, following the judge’s discussion with the appellee’s counsel, the only response by the appellant’s attorney was to seek clarification from the trial judge that “the Court’s going to instruct the jury.” The jury was recalled and the trial judge gave them the following limiting instruction: “Ladies and gentlemen, the last questions were improper and I’m instructing you to disregard the question and the answer. You’re not to give it any consideration in this case whatsoever and not to let it influence your verdict in this case in any way whatsoever And Mr. S. . ., you’re not to go into that anymore.” (Emphasis supplied.) Appellant’s counsel posed no objection to this instruction after it was given.

Appellant asserts that the provisions of OCGA § 9-10-185 are controlling in this case, and that the trial judge’s limiting instruction was inadequate to remove prejudicial taint, in part, because it failed to include a rebuke of appellee’s counsel and thus was not “full” within the meaning of Spell v. State, 225 Ga. 705 (171 SE2d 285) and Wells v. State, 194 Ga. 70 (20 SE2d 580). We find the limiting instruction of the trial judge on its four corners reflects that appellee’s counsel was rebuked effectively in the presence of the jury. See, e.g., Malone Freight Lines v. Pridmore, 86 Ga. App. 578 (2) (71 SE2d 877) (implied rebuke). Moreover, as appellant’s counsel did not timely object to the question posed, the provision of OCGA § 9-10-185 mandating rebuke of offending counsel “[o]n objection made” clearly is inapplicable in this case. Under the facts of this case, the limiting instruction of the trial judge was more than adequate to remove the alleged improper matter from the minds of the jurors. See Interstate Life &c. Co. v. Brewer, 56 Ga. App. 599 (8) (193 SE 458) (sufficiency of instructions to remove taint must be determined under the particular facts and circumstances).

Appellant’s contention that the trial judge committed reversible error by not declaring a mistrial sua sponte is without merit. While “[s]ome matter is so inflammatory that its effect cannot be removed, and a mistrial must be granted,” Howard v. Renfroe, 93 Ga. App. 59, 62 (90 SE2d 598), it is the general rule that “[t]he exercise of the trial court’s discretion in granting or denying a mistrial will not be disturbed on appeal absent [manifest] abuse.” Walkley v. Dukes, 175 Ga. App. 820 (2) (334 SE2d 868); Walker v. Bishop, 169 Ga. App. 236 (8) (312 SE2d 349). Thus, “ ‘[u]nless it is apparent that a new trial is essential to the preservation of the right of a fair trial, this court will not interfere with the discretion of the trial court.’ ” Hartford Fire Ins. Co. v. Rowland, 181 Ga. App. 213 (3) (351 SE2d 650).

Decided April 25, 1988

Rehearing denied May 12, 1988

William L. Reilly, for appellant.

William D. Strickland, for appellee.

In this case, we have examined the question posed, the response made thereto, the prompt intervention of the trial judge, the tone and content of the limiting instruction, the lack of any indication in the record that the jury would not comply with the instruction, and the failure of appellant’s counsel to make a timely request for a mistrial. While the trial judge is not automatically relieved of his judicial obligations by counsel’s failure to request a mistrial, the fact that counsel, who was present in court and heard the tone of the question and observed the demeanor of the parties involved, elected not to request mistrial is a significant factor to be considered in determining whether the alleged error in fact was so prejudicial to fair trial rights as to per se mandate mistrial. Considering all relevant factors, we conclude that appellant has failed to demonstrate an abuse of discretion in this case.

Judgment affirmed.

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


text:
    76071.
    FULTON-DeKALB COUNTY HOSPITAL AUTHORITY v. ESTES.
    (369 SE2d 262)
   Birdsong, Chief Judge.

We granted an interlocutory appeal to the defendant in this slip and fall case, following a denial of summary judgment.

The plaintiff/appellee, Vivian Estes, is an elderly woman who fell in the employees’ cafeteria at Grady Memorial Hospital, during a visit to her husband who was a patient. She contends the floor was wet and that is why she fell, and that her clothes were wet after her fall. Several employees in the cafeteria testified by affidavit and deposition that there was no water on the floor.

The trial court held, in denying summary judgment to the defendant: “Two agents of the Defendant, Ms. Dianne Rice and Ms. Dorothy Hamm, deny that any water was involved in the Plaintiff’s fall. Ms. Rice claims that she was in the immediate vicinity of the Plaintiff’s fall before, during, and after the fall, and that she was looking at the spot where the Plaintiff fell. Ms. Rice also claims that she did not see any water on the floor before, during, or after the Plaintiff’s fall. Ms. Dorothy Hamm claims that the floor where Plaintiff fell was dry. The Plaintiff, on the other hand, claims that she fell on water and that her clothes were wet after the fall. If the jury believes the Plaintiff’s claim that there was water on the floor at the time of her fall, the jury could also decide that the water was on the floor at least as long as Ms. Rice was in the vicinity, particularly given the fact that Ms. Rice did not see anyone drop water on the spot during the time when she was in the area. Therefore, a jury issue is created concerning the Defendant’s notice of the floor’s condition.” (Emphasis supplied.)

It appears from the record undisputed that neither the defendant hospital nor any of its agents or employees had any actual knowledge of any foreign substance or defective condition of the floor. Therefore the issue becomes whether defendant had constructive knowledge of the hazardous substance. This case is controlled by Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353). In that case, we clarified the rule, as to constructive knowledge or notice of a hazardous condition, that the plaintiff must show a failure to exercise reasonable care by showing a period of time that the dangerous condition was allowed to exist (see Gold & White v. Long, 159 Ga. App. 259, 260 (283 SE2d 45)) so that the defendant’s employees or agents had “ ‘an opportunity to discover and remove the hazard.’ ” Mitchell, supra, p. 709.

The trial court held that if the jury accepts plaintiff’s testimony that the floor was wet with water at the time of her fall, it might also determine that since defendant’s employee Ms. Rice testified she was in the immediate vicinity of the fall before, during and after the fall, Ms. Rice had the opportunity to discover the water and remove the hazard. However, we find that the only evidence that Ms. Rice was in the vicinity of the fall for any specific period of time in which to discover the hazard, is her sworn testimony in affidavit that “[w]ithin approximately five seconds prior to Mrs. Estes’ fall, I looked at the floor in the exact spot where she fell. ...” There is no other testimony or evidence that Ms. Rice was in the vicinity of the fall for any particular period of time so as to have “an opportunity to discover and remove the hazard.” Id. Therefore, assuming, as the plaintiff testified, that the floor was wet, there is yet no evidence how long it had been allowed to remain wet. As in Mitchell, for all the evidence shows the floor might have become wet mere seconds before the plaintiff fell. As for Ms. Rice’s testimony that she was in the vicinity and looked at the floor five seconds before plaintiff’s fall, we find as a matter of law that five seconds is not a sufficient length of time in which to both discover and remove the hazard of water on the floor, so as to impute constructive superior knowledge and negligence to the defendant.

Decided April 4, 1988

Rehearing denied May 12, 1988.

Bernard Taylor, Judson Graves, for appellant.

Moreover, in the plaintiff Estes’ deposition testimony, the plaintiff herself twice testified there “wasn’t a living soul” besides herself at the end of the counter where she fell; that there were no employees near, as they were all down around another counter; and that there was “nobody up there but me until a crowd gathered later [after I fell].” This testimony is not contradicted by plaintiff herself and if it is, such contradiction is not elsewhere reasonably explained. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). This testimony is the only evidence (other than the five seconds testified to by Ms. Rice) concerning the presence of any agent of the defendant before the fall. No other such evidence is pointed out to us. Therefore, as to any issue whether there was any agent or employee in the immediate vicinity more than five seconds before the fall as testified to by defendant’s employee, Ms. Rice, it is construed by the plaintiff’s own testimony and established as a matter of law that there was not. Id. p. 30.

We conclude that even assuming the floor was wet as contended by the plaintiff, there is no genuine issue of material fact that the appellant/defendant had actual knowledge of a wet hazardous condition, and no issue of fact that the appellant had constructive knowledge or notice of a wet hazardous condition, because there is no evidence how long the floor had been allowed to remain in a wet condition; and there was no evidence an employee of defendant was in the immediate vicinity and had an opportunity to discover the hazardous condition, for five seconds was not long enough to both “ ‘discover and remove the hazard.’ ” Mitchell, supra, p. 709.

It is irrelevant to this analysis whether the plaintiff was an invitee to the employees’ cafeteria, to whom was owed the duty of ordinary care (see OCGA § 51-3-1), or was a bare licensee, since no superior knowledge, i.e., negligence, of the defendant is in issue.

Judgment reversed.

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

David A. Sleppy, Robert L. Herman, for appellee.


text:
    76173.
    ROBERTS et al. v. CHAPLE et al.
    (369 SE2d 482)
   Banke, Presiding Judge.

The appellants seek to recover damages from the appellees for their alleged disclosure of certain information protected by the accountant-client privilege. This appeal is from an order granting summary judgment to the appellees.

From 1980 through 1985, the appellees’ public accounting firm provided accounting services for appellant Roberts and several corporations in which Roberts was an officer and shareholder. In the present action, Roberts and the corporate entities assert that, during this period, they provided the appellees with certain confidential information with the expectation that the information would not be disclosed to third parties but would remain strictly confidential, yet the appellees voluntarily released some of this information to an agent of the Internal Revenue Service in violation of the accountant-client privilege set forth at OCGA § 43-3-32. In the first count of their petition, the appellants sought to enjoin the appellees from any further disclosure of such financial information and requested that all such information in the appellees’ possession be returned to them. In the remaining counts, the appellants sought monetary damages, costs of litigation and attorney fees. The prayer for injunctive relief was resolved by the entry of a consent order, in which the appellees admitted that they had released certain specified documents to a special agent of the I.R.S. without the issuance of a summons or subpoena and agreed not to make any further such disclosures.

Apparently contemporaneously with the superior court action, the appellants filed a “Motion for Return of Property” against the United States in federal court, seeking the return of the documents given to the I.R.S. by the appellees. The federal court dismissed that action, concluding, in a written opinion, that “Georgia’s accountant-client privilege is inapplicable in federal proceedings not involving state law claims.” Subsequently, the parties filed cross-motions for summary judgment in the present action on the issues of whether the accountant-client privilege had been violated and, if so, whether and to what extent the appellants had been damaged by the disclosures. In its order granting summary judgment to the appellees, the trial court concluded “that no confidential accountant-client privilege exists under federal law and that federal law preempts the Georgia statutory accountant-client privilege as found in OCGA § 43-3-32.” Held:

The uncontroverted evidence of record established the following facts: That the appellees are accountants who are bound by the obligations imposed by OCGA § 43-3-32; that the appellants retained the appellees to perform accounting services for them and in this connection provided them with certain confidential financial information; that the appellants at no time authorized the disclosure of any of this information to third persons; that they never themselves disclosed any of this information to third persons; and that the appellees, acting without notice to them, without their consent, and without service of any subpoena or other legal process compelling such disclosure, voluntarily disclosed some of this information to a special agent of the I.R.S. The appellees do not dispute these facts but argue that the appellants’ motion for partial summary judgment was properly denied on the basis of the federal preemption theory.

We disagree. It does not automatically follow from the fact that the information was disclosed to a federal agent during the course of a federal tax investigation that the appellees are insulated from liability under state law. Rather, the issue as we view it is whether the alleged duty imposed under state law was inconsistent with a duty owed by the appellees under federal law.

“The purpose of the accountant-client privilege is to insure an atmosphere wherein the client will transmit all relevant information to his accountant without fear of any future disclosure in subsequent litigation. Without an atmosphere of confidentiality, the client might withhold facts he considers unfavorable to this situation thus rendering the accountant powerless to adequately perform the services he renders.” Gearhart v. Etheridge, 232 Ga. 638, 639 (208 SE2d 460) (1974). The statute itself enumerates certain circumstances in which the privilege is inapplicable. However, none of those exceptions is applicable to the situation presently before this court, nor are we presented with a situation in which the alleged harmful disclosures were made pursuant to administrative or judicial process. Rather, it is undisputed that the appellees voluntarily disclosed the information in question without waiting for an administrative summons or subpoena directing them to do so. We know of no reason, and none has been offered to us, why the appellees would have been under any federal legal compulsion to turn over the information in the absence of such process. Although the actual damages suffered by the appellants may have been minimal in view of the broad subpoena powers enjoyed by the I.R.S., we are accordingly constrained to hold that the trial court erred in granting summary judgment to the appellees and in denying the appellants’ motion for partial summary judgment on the issue of liability.

Decided April 12, 1988

Rehearing denied May 12, 1988.

Robert J. Hippie, Thomas A. Soderberg, for appellants.

D. Kevin Wheeler, Philip A. Johnson, for appellees.

Judgment reversed.

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

       While the appellees assert that Roberts executed Form 2848, “Department of Treasury, Internal Revenue Service Power of Attorney & Declaration of Representative,” authorizing the appellees to make the disclosures, this purported document was not made part of the record on appeal and therefore cannot be considered by this court.


text:
    76228.
    BRYAN COUNTY EMERGENCY MEDICAL SERVICES et al. v. GILL.
    (369 SE2d 495)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case suffered a compensable back injury in November of 1977, while working as an emergency medical technician for Bryan County. He received medical treatment for this injury for approximately the next three months but did not lose any time from work until January of 1985, when he was required to undergo a laminectomy, allegedly because of a gradual worsening of his condition due, at least in part, to his continued employment with the county in various part-time capacities. At issue in this appeal is whether he is entitled to recover compensation for his medical expenses associated with this surgery, and, if so, from whom. The board has twice ruled that he is entitled to compensation, but on two entirely different theories.

The initial decision in the case was rendered on December 17, 1985, when an administrative law judge concluded that “the complications the claimant suffered in 1985 would be called a new accident” for which he would be entitled to compensation. The administrative law judge expressed uncertainty, however, about who should be held responsible for payment of such compensation. At the time of the original injury in 1977, the county was covered by a policy of workers’ compensation insurance issued by Northwestern National Insurance Company; but in 1978 the county became a self-insurer for workers’ compensation purposes, and the Northwestern National coverage was terminated.

Because the county was not separately represented at the initial hearing, the administrative law judge determined that the case should be transferred to another venue for resolution of the coverage issue. However, no such transfer occurred. Instead, the case was appealed, first to the full board, which simply affirmed the administrative law judge’s decision, and then to superior court. The superior court upheld the board’s factual findings but remanded the case “for the purposes of adding the Association of County Commissioners as the self-insurer and adjudicating the contention of the insurer that the self-insurer, rather than the insurer Northwestern National, is liable to the claimant, and for the further purpose of hearing any other claims or defenses that hereafter arise.”

Upon remand, a second administrative law judge determined: (1) That the claimant had not in fact sustained a “new injury” to his back subsequent to November of 1977; (2) that even if he were determined to have sustained a fictitious “new injury” to his back on the date he was ultimately forced to cease work (i.e., January 7, 1985), a claim based on that injury would be barred by the one-year statute of limitation because he had waited until January 23, 1986, to assert such a claim; and (3) that, pursuant to this court’s decision in Hartford Accident & Indem. Co. v. Mauldin, 147 Ga. App. 230 (248 SE2d 528) (1978), the claimant could not recover benefits based on a change in condition because there had never been an award of disability benefits based on the original injury. Notwithstanding all of this, the second administrative law judge ruled that the claimant was entitled to recover his medical expenses associated with his surgery in 1985, concluding that those expenses were “related to” his original injury and that, pursuant to General Ins. Co. of America v. Bradley, 152 Ga. App. 600 (263 SE2d 446) (1979), there was no statute of limitation of the recovery of such expenses. Based on the fact that Northwestern National had been the county’s workers’ compensation insurer at the time the original injury occurred, the administrative law judge concluded that it was responsible, under this theory of recovery, for payment of the claim. The full board and the superior court affirmed, whereupon we granted an application for discretionary appeal filed by counsel for Northwestern National, ostensibly on behalf of the county as well as the insurance company. Held:

The finding by the first administrative law judge that the claimant had suffered a “new accident” in January of 1985 was clearly authorized by the evidence. “ ‘[W]here the claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury,’ the date of the injury for purposes of the running of the statute of limitations] is the date the ‘disability manifests itself and on that date is a ‘new accident.’ ” Maryland Cas. Co. v. Walls, 184 Ga. App. 267, 268 (361 SE2d 253) (1987), citing Central State Hosp. v. James, 147 Ga. App. 308, 309 (248 SE2d 678) (1978). Furthermore, since the board’s original decision on the “new accident” issue was upheld by the superior court on appeal, we do not believe the board was at liberty to change that decision in the absence of new evidence bearing on the issue.

The apparent reason the second administrative law judge undertook to re-decide the “new accident issue” was that he believed a claim based on that theory would be barred by the statute of limitation. That determination was, in turn, based upon a finding that the claimant had waited until January 23, 1986 (i.e., more than a year after the occurrence of the fictional “new accident”) to assert his new accident claim. Because the second administrative law judge further determined that the claimant could not assert a change-in-condition claim, it followed that the only remaining avenue of compensation left was to treat the medical expenses associated with the 1985 surgery as expenses arising directly from the original injury and to compensate them as such. Northwestern National complains that an award of benefits based on such a recharacterization of the claim has the effect of penalizing it for the claimant’s failure to file his “new accident” claim within the one-year statute of limitation period, it being clear from the decision in Central State Hosp. v. James, supra, that if the claim had been considered compensable under the “new accident” theory, the company would not have been considered at risk because its coverage was not in effect at the time the “new accident” occurred.

We must conclude that the second administrative law judge’s finding that the claimant failed to assert his “new accident” claim until January 23, 1986, was erroneous, for the record discloses that the ruling by the original administrative law judge upholding the claim on the basis of the “new accident” theory was issued on December 17, 1985, which was less than a year after the claimant was ultimately forced to cease work. (It follows that the second administrative law judge’s conclusion that a “new accident” claim would be barred by the statute of limitation was also erroneous.) Furthermore, because the original administrative law judge’s decision on the “new accident” issue was upheld by the superior court on appeal, and because no new evidentiary finding was made upon the remand of the case to the board which would conflict with that decision, we must conclude that the second administrative law judge was bound by the superior court’s affirmance in this regard. It follows that the board was not authorized to hold Northwestern National liable for payment of the claim. The judgment appealed from is accordingly vacated, with direction that the case be remanded to the board for the entry of an award consistent with this opinion.

Judgment vacated and case remanded with direction.

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

Decided April 27, 1988

Rehearing denied May 12, 1988.

Mark J. Goodman, for appellants.

Murl E. Geary, Elton L. Wall, for appellee.


text:
    76263.
    76326.
    GEORGIA AMERICAN INSURANCE COMPANY v. MILLS. SOUTHEASTERN FIDELITY INSURANCE COMPANY v. MILLS.
    (369 SE2d 768)
   Banke, Presiding Judge.

The appellee, Frankie Mills, filed suit against the appellants, Georgia American Insurance Company and Southeastern Fidelity Insurance Company, to recover personal injury protection, or “no-fault,” benefits allegedly due her under a policy of motor vehicle accident insurance issued to Glynn Herrin. She also sought to recover a statutory bad-faith penalty, attorney fees, and punitive damages based on the appellants’ failure to pay the claim in a timely manner.

After the appellants had filed their separate answers, the appellee filed an amendment to her complaint in which she designated Georgia American as the sole defendant. Thereafter, Southeastern Fidelity was not listed as a defendant in any of the pre-trial pleadings or orders filed in the case. Likewise, during the trial of the case no evidence was introduced tending to establish that Southeastern Fidelity was a party to the policy sued upon.

The jury returned a verdict in favor of the appellee and against Georgia American. After moving unsuccessfully for judgment notwithstanding the verdict or, in the alternative, for a new trial, Georgia American filed a direct appeal to this court. However, that appeal was dismissed on the ground that the case was technically still pending in the trial court, in that no written order had ever been entered dismissing the claim against Southeastern Fidelity. See Georgia American Ins. Co. v. Mills, 183 Ga. App. 707 (359 SE2d 697) (1987). Upon the return of the case to the trial court, the judge denied a motion for summary judgment filed by Southeastern Fidelity, while directing the entry of a final, appealable judgment against Georgia American pursuant to OCGA § 9-11-54 (b). The present appeals are taken from the latter order.

The appellee sustained the injuries upon which her claim was based while riding as a passenger in a truck being driven by the named insured’s wife, Elizabeth Herrin. Although Mrs. Herrin was listed on the declarations page of the policy as an “operator” of the vehicle, the word “excluded” was typed in close proximity to her name; and it was shown that upon applying for the policy Mr. Herrin had executed a “Named Driver Exclusion Endorsement” specifying that coverage would not be afforded “while any vehicle is being used, driven, operated by, or under the care, custody and control of Elizabeth Herrin.” Virtually all of the enumerations of error in this appeal concern the enforceability of this exclusion. Held:

1. The insurer was required by the Georgia Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., to “pay basic no-fault benefits without regard to fault for economic loss resulting from: . . . (2) Accidental bodily injury sustained by any . . . person while occupying the owner’s motor vehicle. . . .” OCGA § 33-34-7 (a) (2). (Emphasis supplied.) See also OCGA § 33-34-3 (a) (1). “Thus, the policy exclusion in this case ... is unenforceable because, if allowed to be effective, it would reduce the coverage below the minimum required by the no-fault statute.” Smith v. Southeastern Fidelity Ins. Co., 258 Ga. 15 (365 SE2d 105) (1988). Accord Southeastern Fidelity Ins. Co. v. Johnson, 256 Ga. 713 (352 SE2d 760) (1987). It follows that the trial court did not err in denying Georgia American’s motions for directed verdict or for judgment notwithstanding the verdict on the coverage issue.

2. Nor did the trial court err in denying Georgia American’s motions for directed verdict or for judgment notwithstanding the verdict on the issue of its liability for a bad-faith penalty, attorney fees, and punitive damages. We reject Georgia American’s contention that its good faith in defending the claim was established as a matter of law by evidence showing that the appellee had “voluntarily acquiesced to ride in a vehicle driven by a driver known to have been convicted of DUI, to have had a couple of prior accidents, and to have been involved in drinking on the night of the incident.” To allow an insurer to defend an injured passenger’s claim for no-fault benefits on the basis of such evidence would defeat the purpose of the statute, which is to ensure that certain minimal compensation is made available to persons injured in automobile accidents “without regard to fault.” OCGA § 33-34-7. See generally Cannon v. Ga. Farm &c. Ins. Co., 240 Ga. 479, 482 (241 SE2d 238) (1978).

While certain specified exceptions to the insurer’s obligation to pay mandatory no-fault benefits are set forth at OCGA § 33-34-7 (b), knowledge on the part of a passenger that the driver of the vehicle had a poor driving record or was not in a condition to drive safely is not among them. Nor would such knowledge on the part of the passenger prevent his or her injuries from being considered “accidental” within the contemplation of the statute. Pursuant to OCGA § 33-34-2 (1), “[b]odily injury is accidental as to the claimant unless sustained intentionally by the person injured or caused intentionally by the claimant.” None of the evidence in this case suggests that the appellee’s injuries were self-inflicted or that she intentionally caused the accident. For these reasons, we hold that the jury was authorized to award her a bad-faith penalty, attorney fees, and punitive damages pursuant to OCGA § 33-34-6. See generally Binns v. MARTA, 250 Ga. 847 (301 SE2d 877) (1983); Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 53-54 (244 SE2d 573) (1978).

Georgia American’s reliance on Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985), is misplaced. In that case, which involved liability insurance coverage rather than no-fault coverage, the Supreme Court held that a policy exclusion pertaining to injuries inflicted while a driver was “attempting to avoid apprehension or arrest” was unenforceable against an innocent victim with whom a driver of the insured vehicle had collided while attempting to elude a state patrolman. With respect to the passengers who had been riding in the insured vehicle at the time of the collision, the Court held that the exclusion might or might not be enforceable, depending on whether they were “willing participants in the attempt to elude the pursuing patrolman.” Id. at 342 (3). This holding in no way purports to modify the definition of “accidental bodily injury” set forth in the Motor Vehicle Accident Reparations Act at OCGA § 33-34-2 (1), nor does it purport to modify the statutorily mandated coverage requirements set forth in the Act at OCGA §§ 33-34-3 (a) (1) and 33-34-7, supra. Moreover, there was no evidence to suggest that the appellee in this case was engaged in a criminal enterprise at the time of the accident, nor, in any event, did the exclusion in question purport to be limited in its application to situations involving criminal misconduct.

3. The trial court did not err in excluding evidence of a prior felony conviction which had been entered against Mrs. Herrin. This evidence was offered by Georgia American in an attempt to impeach Mrs. Herrin’s credibility, particularly with reference to her testimony that she believed her husband had given her permission to drive the truck. For the reasons previously stated, Mrs. Herrin’s permission, or lack of it, to drive the truck was not relevant under the circumstances of this case to the issue of Georgia American’s obligation to pay no-fault benefits to the appellee for the injuries which she had sustained while occupying the vehicle as a passenger.

4. Any error in the trial court’s instructions to the jury on the legal principles governing the construction of insurance contracts and the circumstances under which an insurer may be deemed to have waived the defense of non-coverage is rendered moot by our holding that the policy exclusion relied upon by the insurer was unenforceable against the appellee in this case as a matter of law.

5. The verdict form contained certain blanks to be completed in the event the jury chose to award a bad faith penalty, attorney fees, or punitive damages. The jury initially filled in these blanks as follows: “We further find that the plaintiff is entitled to: “(1) $ 0 as penalty; (2) $ All applicable fees for this suit, at $80.00 as Attorney’s fees; and (3) $ Balance of medical bills caused by this accident to be paid to provider as punitive damages.” The trial court determined that the form of this verdict was improper and consequently sent the jury back to draw up another one. The jury thereupon returned the verdict on which the judgment was based, filling in the blanks as follows: “(1) $ 625.00 as penalty; (2) $ 6,000 as attorney’s fees; and (3) $ 28,262.00 as punitive damages.”

On appeal, Georgia American contends that the proper procedure would have been to accept the original verdict while writing off the improper portion thereof (i.e., the portion attempting to award the appellee the unspecified balance of her medical expenses as punitive damages), thereby leaving a total award of $80. However, such an award clearly would not have reflected the jury’s intentions. Moreover, Georgia American conceded at trial that the form of the original verdict was improper. “ ‘(I)t is not error for a trial judge not to receive an improper or imperfect verdict, and to cause the jury to retire and put their verdict in proper form.’ ” Colley v. Dillon, 158 Ga. App. 416, 417 (3) (280 SE2d 425) (1981), citing Lowery v. Morton, 200 Ga. 227, 229 (36 SE2d 661) (1946).

6. Georgia American further contends that, upon recharging the jury prior to sending them back to the jury room, the court in effect directed a verdict in favor of the appellee on her claim for punitive damages by instructing them as follows: “Now, on the punitive damages part, the amount being asked by the plaintiff is an amount up to $250,000. Now, that doesn’t mean you have to award the $250,000 but you will have to put in a figure there somewhere in between 0 and $250,000.”

No such objection was raised at trial, with the result that this enumeration of error presents nothing for review on appeal. See generally OCGA § 5-5-24 (a); Henderson v. Glen Oak, Inc., 179 Ga. App. 380 (4) (346 SE2d 842) (1986), aff’d 256 Ga. 619 (351 SE2d 640) (1987). The alleged error cannot be considered “harmful as a matter of law” within the contemplation of OCGA § 5-5-24 (c), so as to obviate the need for an objection, both because the trial court made it clear elsewhere in the recharge that the blanks in the verdict form were to be filled in only if the jury believed the appellee was “entitled to any of these damages,” and because the jury had, in any event, already made clear in its original verdict its intention to award punitive damages.

7. Turning to Southeastern Fidelity’s appeal, we conclude that its motion for summary judgment was improperly denied. Only one policy was sued upon, and the evidence of record establishes without dispute that it was issued by Georgia American. Although it is apparent from the record that the two insurance companies are subsidiaries of the same parent corporation, it obviously does not follow that they are liable on each other’s policies. Nor does the fact that a claims examiner for Southeastern Fidelity may have undertaken an investigation of the appellee’s claim establish any basis for holding that company liable. On the basis of the record before us, Southeastern Fidelity was entitled to judgment as a matter of law.

Decided April 25, 1988

Rehearing denied May 12, 1988

Terry A. Dillard, Bryant H. Bower, Jr., Joseph E. East, for appellants.

Berrien L. Sutton, for appellee.

Judgment affirmed in Case No. 76263; judgment reversed in Case No. 76326.

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


author: Beasley, Judge.

text:
    76044.
    JONES v. THE STATE.
    (369 SE2d 509)
   Beasley, Judge.

Jones appeals from the judgment imposed for his convictions for driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), and for driving with 0.12 percent or more by weight of alcohol in his blood, OCGA § 40-6-391 (a) (4). In sentencing, the court considered the latter charge merged with the former.

1. Appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal in that the evidence was insufficient to convict because there was no evidence that he operated the car while, simultaneously, it was moving and he was under the prohibited influence of alcohol. He maintains that the facts were consistent with the hypothesis that he parked his car on the rural highway, early on a winter morning, left the window down but the motor running to provide warmth from the heater, sat and drank three beers, and went to sleep.

The arresting officer’s testimony, uncontroverted at trial, was the following: While on duty in his patrol car at 4:00 a.m. on February 7, the officer spotted a vehicle stopped at a railroad crossing on a highway. He had patrolled the area some twenty to thirty minutes earlier and had not seen the car. Seeing no trains approaching, the officer turned around to check on the vehicle. He pulled up beside the car, got out, and saw Jones slumped over the steering wheel. The car window was open, the engine was still running, and the transmission was in “drive.” The officer opened the door and put the transmission in “park.” When the officer did that, Jones “came to and stomped the accelerator.” The officer asked for Jones’ license and for him to step out of the car. As Jones started to exit the car, he fell and the officer grabbed him. After Jones produced his license, he was unsteady on his feet, wavering back and forth. Jones could not walk unassisted, so the officer held him up and walked with him to the patrol car. Jones’ eyes were bloodshot, his speech was slurred, and there was the odor of alcohol. The officer could smell the alcohol before the officer opened Jones’ car door. The officer saw two or three beer cans in the car.

An intoximeter test administered to Jones measured his blood alcohol content at 0.18 percent.

It is true, as appellant argues, that to be guilty of the offense of driving under the influence of intoxicants one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol or drugs. Carr v. State, 169 Ga. App. 679, 680 (2) (314 SE2d 694) (1984). However, “ ‘[i]t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence.’ [Cit.] ‘ “In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.” ’ [Cit.]” Fuller v. State, 166 Ga. App. 734, 735 (1) (305 SE2d 463) (1983).

Though the officer did not actually see Jones’ car move, he observed circumstances from which the jury could infer both that Jones was in actual physical control of the car while it was moving to the location at which the officer found it and that Jones was intoxicated during that movement. “The jury was authorized not to accept an alternative hypothesis offered by appellant.” Russell v. State, 174 Ga. App. 436, 437 (2) (330 SE2d 175) (1985). There was sufficient evidence presented from which a rational trier of fact could find appellant guilty beyond a reasonable doubt of driving under the influence of alcohol and of driving with more than .12 percent by weight of alcohol in the blood. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). A directed verdict for defendant was not demanded.

2. Appellant also maintains that the trial court erred in denying his motion for mistrial based upon parts of the State’s closing argument, which he alleges constituted improper comment on his election not to testify or to introduce any evidence.

Controlling is that defendant did not move for a mistrial on the basis urged until after the court had delivered its charge to the jury. Inasmuch as the motion was untimely as not contemporaneous with the State’s alleged misconduct, we do not consider the question. Warren v. State, 185 Ga. App. 108, 109 (1) (363 SE2d 357) (1987); Flynn v. State, 255 Ga. 415, 419 (6) (a) (339 SE2d 259) (1986).

Decided May 12, 1988.

Walter B. Harvey, for appellant.

Timothy G. Madison, District Attorney, for appellee.

We note, however, that this is not a situation where “ ‘the prosecutor’s manifest intention was to comment upon the accused’s failure to testify’ ” or that “the comment was ‘of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” Lowe v. State, 253 Ga. 308, 309 (1) (319 SE2d 834) (1984). Rather, the statements were merely comments on the defendant’s failure to rebut the State’s evidence. “Though the prosecutor may not comment on a defendant’s failure to testify, ‘ “(i)t is not error, nor is it improper for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the state.” [Cit.]’ [Cit.]” Smith v. State, 245 Ga. 205, 207 (4) (264 SE2d 15) (1980).

Judgment affirmed.

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


text:
    76149.
    FUSSELL v. THE STATE.
    (369 SE2d 511)
   Beasley, Judge.

Defendant appeals the order overruling her motion for new trial after her conviction of two counts of aggravated assault, OCGA § 16-5-21. Error is assigned on the trial court’s failure to 1) re-charge the jury on accident, 2) charge simple assault as a lesser included offense of aggravated assault, and 3) instruct the jury that defendant’s statement was admissible solely to impeach him. Defendant also contends that the evidence was insufficient to convict.

1. While recognizing the trial court’s duty to respond to the jury’s request for further instructions, Freeman v. State, 142 Ga. App. 293, 294 (4) (235 SE2d 560) (1977), on a re-charge it is not necessary to cover the subject in toto. Creamer v. State, 229 Ga. 704, 708 (4) (194 SE2d 73) (1972). This well established principle found early expression in Hatcher v. State, 18 Ga. 460 (5) (1855), which observed that where “the jury, after consulting, return for further instructions upon some particular point, the Court is not bound to repeat all the law favorable to the accused.” The trial court re-charged on the issues of law requested and answered an individual juror’s question about accident versus intention to her satisfaction, again instructing the jury that it should acquit if it found accident and reminding the jury that a charge defining accident had been given. There was no abuse of the court’s discretion in this regard. Brownlee v. State, 155 Ga. App. 875, 876 (3) (273 SE2d 636) (1980); Evans v. State, 138 Ga. App. 460 (2) (226 SE2d 303) (1976).

2. Assuming as does defendant that simple assault was a lesser included offense in this case, in the absence of a written request it was not error to fail to charge on that issue. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).

3. The next question is whether, as to portions of a voluntary custodial statement which are not introduced in the State’s case-in-chief but are used in rebuttal to impeach defendant’s trial testimony, the trial court must give a limiting instruction absent defendant’s request.

Defendant testified that the gun fell out of her purse, she and the victim tussled, and she did not know who pulled the trigger. According to a signed statement to the police several hours after the incident, defendant took the gun from her purse and she pulled the trigger as they were scuffling. When the State tried to impeach defendant with these recitations through police testimony on rebuttal per OCGA § 24-9-83, defendant objected and the court conducted a Jackson v. Denno hearing and determined that the in-custody statement was voluntary and met Miranda v. Arizona Fifth Amendment requirements. The evidence was then allowed, no instruction limiting its use to impeachment was requested or given, and in the jury charge the court instructed that evidence could be considered for any purpose once the jury found the statement to be voluntary.

Defendant did not object but on appeal claimed it was reversible error not to confine the jury’s use of the statement to impeachment and to allow it instead to constitute evidence of guilt as well. She cites no authority.

In State v. Byrd, 255 Ga. 665 (341 SE2d 455) (1986), the Supreme Court discussed, as a subject related to the one at issue, the use of prior inconsistent statements to impeach trial statements. It recognized that this court in Colbert v. State, 124 Ga. App. 283 (183 SE2d 476) (1971), held that a limiting instruction is required even absent a request. In dicta it approved that approach, because the significance of not so limiting the jury’s consideration would be to allow a Miranda-yiolating statement to be used as substantive evidence. This would contravene the Fifth and Fourteenth Amendments.

Here, however, the statement was found by the trial court not to have been obtained in violation of defendant’s rights against self-incrimination. This has not been challenged. Thus the statement was not constitutionally inadmissible in the case-in-chief; it simply was not offered because, as the State saw it, it did not of itself tend to establish guilt. Since the statement was not required by the Constitution to be narrowed in use, the trial court was not required to volunteer a circumscription as it would be if the statement was otherwise inadmissible. Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971); Wilson v. State, 254 Ga. 679, 681 (2) (333 SE2d 589) (1985); Walton v. State, 159 Ga. App. 331 (1) (283 SE2d 366) (1981).

Even if defendant may have been entitled to ask for a limitation as a matter of proper trial procedure, due to the fact it was offered during rebuttal and so should be confined to its rebuttal purpose, her failure to instruct the jury as to the limited purpose for which the evidence was offered was not error in the absence of a request. Jones v. State, 242 Ga. 893, 896 (5) (252 SE2d 394) (1979); Lynch v. State, 164 Ga. App. 317, 320 (4) (296 SE2d 179) (1982); Fletcher v. State, 159 Ga. App. 789, 790 (2) (285 SE2d 762) (1981).

4. Defendant contends that her conviction was unauthorized because the evidence failed to show an essential element of the offense, namely, that she intentionally fired the shots which injured the two victims, citing Bowers v. State, 177 Ga. 36, 37 (1) (338 SE2d 457) (1985).

The following legal principles apply. “Every crime consists in the union or joint operation of act and intention. Sometimes the intention can be proved, sometimes it can only be inferred or presumed; and the general rule laid down by our Code is, that the intention will be manifested by the circumstances connected with perpetration of the offense.” Patterson v. State, 1 Ga. App. 782, 784 (58 SE 284) (1907). Accord Mallette v. State, 119 Ga. App. 24, 27 (165 SE2d 870) (1969). “Intent is a question for the jury.” Cade v. State, 180 Ga. App. 314, 316 (3) (348 SE2d 769) (1986). When an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. “In legal contemplation, the intent follows the act through to its legitimate results.” Cook v. State, 255 Ga. 565, 566 (1) (340 SE2d 891) (1986).

After an altercation with the first victim at a check-out counter in a grocery store, defendant returned with a pistol which she drew from her pocketbook and attempted to strike the first victim in the head with it. The victim tried to take the pistol from defendant and they fought for possession of the weapon, rolling on the floor. During the course of the struggle the first victim was shot, as was the store manager who rushed to the scene to stop the fight. Defendant’s denial of knowledge as to the cause of the weapon’s discharge was contradicted by her prior statement to the police that she pulled the trigger.

Decided May 12, 1988.

Rebecca L. Sims, Earl McRae, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

Construing the evidence in favor of the verdict, the jury was authorized to find that defendant intended to assault the first victim with a deadly weapon and that in the course of that assault the second victim was injured. Similarly, the jury was also authorized to find the original intent was transferred in law to the second victim as well. Cook, supra. The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of the two charged crimes. Daughtry v. State, 180 Ga. App. 711 (1) (350 SE2d 53) (1986); Delano v. State, 158 Ga. App. 296, 297 (279 SE2d 743) (1981).

Judgment affirmed. Birdsong, C. J., and Banke, P. J., concur.

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       The word “presumed” is now forbidden. See Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985).


author: Benham, Judge.

text:
    75888.
    HEISKELL v. RHODES.
    (369 SE2d 513)
   Benham, Judge.

Rhodes sued Heiskell for money had and received and for fraud in the sale of a mobile home park. During trial, Rhodes presented a substantial amount of evidence of Heiskell’s alleged fraud. At the close of Rhodes’ evidence, appellant moved for a directed verdict on the fraud issue, Counts 2 and 3 of the complaint, and the trial court granted his motion. The trial proceeded on the remaining count. After the jury charge, the court asked appellant’s counsel whether he had any objections. Counsel responded by suggesting that if the pleadings were going out with the jury, the court should either say that Counts 2 and 3 had been disposed of or that they were stricken from the pleadings. The trial court declined to make those additional comments, noting that it had charged the jury that the pleadings were not to be considered as anything other than what the parties contended at the time the pleadings were filed. The trial court also noted that the jury had heard all about the directed verdict earlier in the trial. The jury returned a verdict of $40,000 in favor of Rhodes, and the trial court entered the judgment accordingly. On appeal, Heiskell contends that the trial court erred in sending the complaint out with the jury without obscuring or masking the fraud counts from its view, and in failing to instruct the jury that those counts had been disposed of or stricken.

Decided May 13, 1988.

Sam F. Little, Ralph M. Hinman III, for appellant.

R. Michael Withrock, for appellee.

Assuming that appellant’s response to the trial court’s inquiry constituted valid objections to the actions that he now enumerates as errors, we do not agree that the trial court committed the alleged errors. The record shows that the trial judge had only instructed the jury with regard to the claim that had not been eliminated, and that the $40,000 verdict the jury returned on the remaining count was exactly the amount appellant sought in his complaint for that count. Moreover, the trial court had instructed the jury that the pleadings were not evidence, but were merely the contentions of the parties at the time of filing. Under these circumstances, the trial court did not act improperly. B. G. Sanders & Assoc. v. Castellow, 154 Ga. App. 433 (2) (268 SE2d 695) (1980).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    75924.
    TALLANT v. THE STATE.
    (369 SE2d 789)
   Beasley, Judge.

We granted Tallant’s application to appeal the sentence imposed upon him after his probation was revoked. See Dean v. State, 177 Ga. App. 123, 124 (1) (338 SE2d 711) (1985).

Tallant pled guilty in 1983 to criminal attempt to commit robbery, OCGA §§ 16-4-1; 16-8-40 (a) (2). He could have been sentenced to not less than one nor more than ten years. OCGA § 16-4-6 (b). Pursuant to his request, he was sentenced pursuant to the First Offender Act, OCGA § 42-8-60.

His Order of Probation, which was a form order, read “it is ordered and adjudged by the Court that the defendant serve Five (5) years, and probated . . . upon probation.” (Portion underlined inserted by court.)

The form language further provided that “[i]f such probation is revoked, the Court may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law. Also, in the case of First Offender Probation, if such probation is revoked, the Court may impose any sentence which could have been imposed at the time of the original sentencing less any time satisfactorily completed on probation.” The court told defendant the same thing before imposition.

In 1986, Tallant’s probation was revoked due to his arrest for aggravated assault and theft by taking. He was “sentenced to confinement for a period of five (5) years.” It was further ordered that “[t]his time is in addition to any time successfully completed on probation.” Defendant urges that his time on probation must be deducted from the five years, the court’s direction to the contrary notwithstanding.

OCGA § 42-8-60 provides two options: the court may (1) defer further proceeding and place a defendant on “probation as provided by law”; or (2) “sentence” the defendant to a term of confinement as provided by law. The execution of that “sentence” may then be suspended, as with adult probation. OCGA § 42-8-34 (c). Section 60 also states that “[u]pon violation by the defendant of the terms of probation or upon a conviction for another crime during the period of probation, the court may enter an adjudication of guilt and proceed as otherwise provided by law.” As originally passed in 1968, section 60 provided only probation as a means of dealing with a selected First Offender, as is now included in division (a) (1). The 1982 amendment allowed the second option, requiring defendant to serve time but deferring execution of that term of imprisonment and substituting probation. Based on the language utilized, the First Offender order here was of the latter type.

If the first option had been exercised and defendant given straight probation which was then revoked, he could have then been sentenced up to the maximum for that crime (less any satisfactorily completed probation time), that is, a greater period than the original probationary period. See Stephens v. State, 245 Ga. 835, 836 (268 SE2d 330) (1980); State v. Wiley, 233 Ga. 316, 318 (210 SE2d 790) (1974); See also Beeks v. State, 169 Ga. App. 499 (1) (313 SE2d 760) (1984), which indicates that defendant should be so informed at the time the probation is imposed.

Here, however, the court originally imposed imprisonment and then suspended execution of it. Although the court advised defendant that if he violated the terms of the probation he could be given the maximum, which could be done under subsection (a) (1) punishment, the court subsequently imposed a subsection (a) (2) punishment. This imprisonment option is reflected in the imposition document. When the court later revoked probation, a five-year sentence was imposed as the final adjudication. See Dean v. State, supra at 126 (5); Bass v. State, 172 Ga. App. 550, 551 (323 SE2d 853) (1984). However, the court added the challenged proviso which excluded from computation the time already served on probation.

Decided May 13, 1988.

Billy L. Spruell, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, A. Thomas Jones, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

The First Offender statute incorporates the adult probation provisions, OCGA § 42-8-34 et seq.; Stephens, supra at 836. Sentence may be imposed upon an adult and its execution stayed and suspended. OCGA § 42-8-34 (c). If that probation is revoked, credit must be given for any time successfully served on probation. OCGA § 42-8-38 (c). Likewise then, when First Offender Probation under OCGA § 42-8-60 (b) is revoked on a punishment of service of time which is probated, credit must be given for time served on probation, because the court so revoking may only “proceed as otherwise provided by law.” This is in keeping with the words of the original order, quoted above, with which the final judgment conflicted. See Dean, supra at 127 (5); Bass, supra at 551. Defendant has a right to rely on the “sentencing” document, which in this case conformed to what the court stated at the hearing, with regard to crediting probation. Therefore, defendant must be credited with time satisfactorily completed on probation.

Judgment affirmed with direction.

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

       Confusion was brought into the First Offender Act in 1982 when subsection (2) was added using the word “sentence.” Conceptually, the pre-adjudication punishment is not a sentence because there is no judgment; instead, a term of confinement is merely imposed, and judgment is avoided. OCGA §§ 17-9-2; 17-9-10. This distinction was apparently recognized in Dean, supra, although not explained.