author: Smith, Judge.

text:
    A97A1473.
    BUTTLES v. THE STATE.
    (494 SE2d 73)
   Smith, Judge.

James Buttles was indicted for the murder of his wife. OCGA § 16-5-1 (a). He was convicted of voluntary manslaughter. OCGA § 16-5-2. Butties’s motion for new trial was denied, and he appeals, raising as his sole enumeration of error the admission of certain testimony he characterizes as hearsay. Finding no reversible error, we affirm.

The State presented evidence that the victim died from injuries she suffered on January 18, 1995 inside the home she shared with Buttles. When police and emergency personnel arrived at the home, the victim was unconscious and not breathing. Buttles told family members, neighbors, and police that the victim tripped over one of their dogs as she was walking down the stairs. The emergency room doctor who treated the victim testified that Buttles told her the victim had fallen down five stairs. Emergency personnel who came to the house shortly after the victim was injured observed three holes, one large and two small, in the walls in the area where the victim was found. One officer testified that Buttles told him the holes were from an argument he and the victim had a few days earlier. No evidence was presented that anyone other than Buttles and the victim were inside the house when her injuries occurred. The State presented forensic and medical testimony that the injuries from which the victim died were more likely to have been caused from a homicide than from a fall down a flight of steps. In particular, the medical examiner testified he was “98% sure” the victim’s death was caused by asphyxiation. Evidence was presented that the victim’s injuries and death were more consistent with strangulation than with a fall down stairs.

Butties’s contention on appeal focuses on the testimony of one witness who testified concerning a conversation in which she, Buttles, and the victim engaged when she visited their home on January 1, 1995. According to this witness, she inquired of Buttles, who was attending chiropractic college, “how school was going,” and the victim stated that she was tired of paying Butties’s tuition. The victim also stated during this conversation that she was “tired of supporting” Buttles and asked when he was going to get a job, “something that brings in some income.” The witness stated that after Buttles replied that he did work and bring in income, the victim asked why she never saw it. This witness found the atmosphere between Buttles and the victim to be “really tense.” She had known the two of them for about six years and “had never seen her stand up to him like that before, or say things like that.” The trial court concluded that this evidence was not hearsay because it was said in Butties’s presence.

Buttles maintains that the victim’s alleged statements made during this conversation constituted hearsay because they were offered to prove the truth of the matter asserted. During arguments concerning the admissibility of the objected-to conversation, the prosecutor pointed out that Buttles was never employed full-time and “lived off the victim and her family” after marrying her, that the two of them had spent all the victim’s income and were using money from her family’s estate, and that this evidence demonstrated the victim’s dissatisfaction. According to the prosecutor, this dissatisfaction precipitated the events of January 18 and was relevant to show that Buttles “had no source of income other than his wife. And when she was leaving him, he was going to be high and dry with no way to survive in the manner to which he had been accustomed. . . . So it is certainly very relevant to show her state of mind about leaving him, and his state of mind about losing her and losing the life-style that he’d become accustomed to.”

Buttles contends this theory shows the State offered the victim’s out-of-court statements to prove that he was not making money and was depending entirely on the victim for financial support. But the State offered another reason for presenting the testimony: to show the state of mind and ill feelings between the victim and Buttles 17 days prior to her death. Such testimony is admissible as original evidence. OCGA § 24-3-2 provides that when conversations and similar evidence “are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” This Code section “applies to communications whenever the fact that such communication was made, and not its truth or falsity, is the point in issue. [Cit.]” Ross v. State, 179 Ga. App. 283 (346 SE2d 87) (1986). See also Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). Consequently, evidence admissible under OCGA § 24-3-2 is not hearsay. Id. at 867.

In this case, the fact of the argument itself between Buttles and the victim, and not whether the contents of that conversation were true, was admissible to show the increasing tension between them. This atmosphere, in turn, was relevant for the purpose of showing the tension or strained relationship the State contended led to the events of January 18. See generally Webb v. State, 156 Ga. App. 623, 626 (6) (275 SE2d 707) (1980). The out-of-court statements were therefore admissible regardless of the smorgasbord of reasons offered by the State. “It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evi-dentiary theories. That is, generally evidence should be admitted if it is admissible for any legitimate purpose.” (Citation and punctuation omitted.) Campbell v. State, 215 Ga. App. 14, 16 (3) (449 SE2d 366) (1994). The trial court consequently did not abuse its discretion in admitting this evidence.

Decided November 12, 1997.

Jack J. Menendez, Monzer J. Mansour, for appellant.

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

Moreover, even if the conversation was hearsay, its admission was harmless, unlike the evidence erroneously admitted in Mallory v. State, 261 Ga. 625, 628 (2) (409 SE2d 839) (1991) and Stamper v. State, 235 Ga. 165 (219 SE2d 140) (1975), cited by Buttles. The objected-to evidence was merely cumulative of other evidence from other sources that Buttles was having difficulty completing his education and had only sporadic, part-time employment and that the victim provided the main source of income in the family. See Igle v. State, 223 Ga. App. 498 (478 SE2d 622) (1996) (hearsay evidence harmless because cumulative of other competent evidence).

Judgment affirmed.

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

       Different witnesses reported different versions of Butties’s account of the incident. Some reported that he told them he heard a noise while sitting in his study and exited the study to find the victim at the bottom of the stairs. Others stated that he claimed to have seen the victim fall down the stairs as he was seated in his study. An investigating police officer testified that the stairway was not visible from the desk in the study.

       We note Butties’s reliance on Jarrett v. State, 265 Ga. 28 (453 SE2d 461) (1995) and Luallen v. State, 266 Ga. 174 (465 SE2d 672) (1996) for the proposition that the trial court erroneously reasoned that the statements were not hearsay because they were made in Butties’s presence. Those cases are inapt, as they address the inadmissibility of an out-of-court declarant’s statements based on the acquiescence or silence of the accused. Jarrett at 29; Luallen at 178 (5).


source: Caselaw Access Project

license: Public Domain

text:
    A97A1546, A97A1547.
    POYTHRESS et al. v. SAVANNAH AIRPORT COMMISSION; and vice versa.
    (494 SE2d 76)
   Smith, Judge.

Lilly and John Poythress brought suit against the Savannah Airport Commission to recover damages for injuries resulting from Lilly Poythress’s fall on a handicapped access ramp at the Savannah Airport. The trial court granted the commission’s motion for summary judgment. In the main appeal, the Poythresses appeal from that ruling. In the cross-appeal, the commission appeals from the trial court’s denial of its motion to dismiss the Poythresses’ appeal, made on the ground that costs were not timely paid. We find that the trial court ruled correctly on both motions and affirm.

The record shows that the Poythresses came to the airport at about 10:00 p.m. to pick up a relative. It was Mrs. Poythress’s first visit to the new airport. The Poythresses parked their car and walked towards the terminal arm in arm. They deliberately chose to use a handicapped access ramp to move from the parking lot to the sidewalk. Mrs. Poythress testified at her deposition that she was “lazy” and wished to avoid having to step up. Mrs. Poythress tripped on the ramp’s incline and fell.

The trial court found that the plaintiffs had not shown the commission was negligent because no evidence was presented that the ramp was defective; Mrs. Poythress simply tripped on the incline that was part of the ramp’s design. The court agreed with the commission that Mrs. Poythress was aware of the ramp’s incline and, in fact, used the ramp because it sloped, to avoid having to step up to the curb. Reasoning that this conscious decision demonstrated at least equal knowledge on Mrs. Poythress’s part of an open and obvious condition, the trial court granted the commission’s motion for summary judgment.

1. We first consider the cross-appeal, in which the commission contends the trial court erred in denying its motion to dismiss the Poythresses’ appeal.

The commission moved to dismiss the appeal on the ground that the record had not been timely transmitted because costs had not been timely paid. “OCGA § 5-6-48 (c) authorizes dismissal of a party’s appeal for failure to file a transcript timely only if the delay was unreasonable, inexcusable, and caused by the party. [Cit.]” Beavers v. Gilstrap, 210 Ga. App. 46, 47 (1) (435 SE2d 267) (1993). The trial court is the finder of fact with reference to the relevant factual issues. Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994). And in making these determinations, the trial court is vested with broad legal discretion. Id. Although OCGA § 5-6-42 provides that a transcript must be filed within 30 days of filing the notice of appeal, this time requirement is not jurisdictional. Id.

“[T]his court has held that a delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable.” (Citations and punctuation omitted.) Leonard v. Ognio, 201 Ga. App. 260, 261 (410 SE2d 814) (1991). But this inference is not conclusive; it may be rebutted by the delaying party. Id. In opposition to the motion to dismiss, the Poythresses submitted the affidavit of Lilly Poythress, in which she stated that shortly after the trial court’s grant of summary judgment to the commission, she had been hospitalized for open heart surgery. Her hospital stay of almost three weeks and her recovery period at home after that prevented her and her husband from attending to other matters.

The trial court found that given Mrs. Poythress’s medical condition, the delay of slightly more than 30 days in paying the bill of costs was “neither unreasonable nor inexcusable.” The evidence presented by plaintiffs amply supports the trial court’s conclusion. We find no abuse of discretion and therefore affirm. See Logan v. St. Joseph Hosp., 227 Ga. App. 853 (1) (490 SE2d 483) (1997).

2. In their appeal, the Poythresses contend the trial court erred in applying the “plain view” or “open and obvious” doctrine to the facts in this case. They argue that the “defect” here was the fact that the sloped ramp blended into the surrounding concrete and was not painted to contrast with the sidewalk, making it difficult to see that an incline existed. This contention has no merit. First, even if this were true, the plaintiffs failed to show it. Contrary to appellants’ assertion, absolutely nothing in Mrs. Poythress’s deposition testimony indicates that she tripped because the ramp blended into the sidewalk. In fact, the only testimony of record regarding this issue, that of the airport’s Director of Engineering, which was uncontra-dicted, established that both the color and the texture of the ramp and the surrounding sidewalk were markedly different.

The deposition testimony of both Mr. and Mrs. Poythress shows that nothing obstructed their view of the ramp and that its slope was clearly visible. Although it was evening, no evidence was presented that the lighting was inadequate. Moreover, the clear inference from Mrs. Poythress’s deposition testimony is that she knew that this incline existed and, in fact, that was precisely why she decided to walk that way.

Anderson v. Turton Dev., 225 Ga. App. 270 (483 SE2d 597) (1997), relied upon by appellants, is distinguished in this regard and several others. The plaintiff in Anderson, too, fell on a handicapped ramp unmarked in contrasting colored paint; we held there that a jury question existed whether she had exercised ordinary care for her own safety. But in Anderson, the plaintiffs presented some evidence from which a jury could find negligence on the part of the defendant: A professional engineer testified that the ramp in issue failed to comply with American National Standards Institute (ANSI) standards, and an employee of the defendant hotel testified that she had reported to her supervisor that both she and others had tripped on the same spot. Id. at 271. The plaintiff in Anderson was also carrying her belongings from her hotel room to the car, and we held that although she did not look down, a jury could find that she exercised reasonable care for her own safety. Given all this evidence, we could not say as a matter of law that the situation was so open and obvious that an average person exercising ordinary care would have observed it and avoided the danger. Id. at 272.

The facts in this case are different. The Poythresses presented no expert evidence or any other evidence of flaws in design or construction. No evidence was presented that other persons had fallen in this area or that the commission had other notice that it was unsafe. Although both Mrs. Poythress and the plaintiff in Anderson testified that they did not look down and did not see the incline, the plaintiff here was not carrying her belongings and nothing obstructed her view. She presented no evidence that the ramp was defective, and she knew it was there. We can say in this case that, as a matter of law, Mr& Poythress was not exercising ordinary care for her own safety.

3. The Poythresses also contend the ramp did not constitute a static condition, but even if it did, the trial court erred in finding that this was relevant here, because the plaintiff had not traversed the area previously. This is not the law. The ramp did constitute a static condition. A static condition, by definition, is simply one that does not change. Such a condition “is not dangerous unless someone fails to observe it and steps into it. [Cit.]” MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996). It is important that a condition is static when an invitee has previously successfully traversed the area, because the invitee is then presumed to have knowledge of it. But it is also relevant here because in cases involving static conditions, if the invitee knows of the condition, the proprietor has no duty to warn the invitee and no liability for resulting injury to the invitee; the invitee knows as much as the proprietor does. By acting, the invitee assumes the attendant risks. When nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks. Id. Because Mrs. Poythress knew the ramp was sloped, she is charged with knowledge of any hazards associated with walking on a sloped surface. Her knowledge was equal to that of the commission that a sloped surface existed at the spot where she fell, and she may not recover if the cause of the fall was that very slope. She has shown no other defect, and she therefore may not recover.

4. The Poythresses also assert error in the trial court’s failure to consider a “distraction” theory. They concede they did not allege they were distracted. But they maintain that because it is implicit in the evidence that traffic was present at an airport roadway, the trial court should have considered here, as in Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (349 SE2d 241) (1986), that although Mrs. Poythress knew of the slope of the ramp, she was distracted by traffic. Plaintiffs correctly note that we said in Shackel-ford: “[a] possible confrontation with vehicular traffic on the property may be a significant ‘distraction’ for a pedestrian-invitee on the premises. [Cit.]” Id. at 351. But in Shackelford the plaintiff testified she was looking for traffic while crossing the parking lot where she tripped over a concrete parking bumper.

Decided November 12, 1997.

Dwight T. Feemster, for appellants.

Mozley, Finlayson & hoggins, J. Arthur Mozley, J. Marcus Howard, for appellee.

In this case, plaintiffs presented absolutely no evidence that they were distracted by traffic, nor could this inference be drawn from any of the evidence that was presented. The mere fact that vehicles were regularly in this area does not prove that Mrs. Poythress was distracted. And the trial court was not required to consider a theory not raised by the evidence. If plaintiffs wished for the trial court to consider this theory, they were required to raise it for the court’s consideration. After the commission moved for summary judgment and supported its motion with evidence, the Poythresses were required to present their case in full and set forth specific facts showing that the commission was not entitled to judgment as a matter of law. Coleman v. McDonald’s Corp., 185 Ga. App. 628, 629 (365 SE2d 282) (1988). They did not do so, and the trial court did not err in granting summary judgment to the commission.

5. The Poythresses maintain the trial court erred in finding it unnecessary to consider the issue of whether adequate ante litem notice was given by John Poythress. Our decision that the trial court correctly granted summary judgment in favor of the commission renders this contention moot.

Judgments affirmed.

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

       The Poythresses argue in their brief that other people had fallen on the ramp, but this argument is belied by the evidence of record. The airport’s assistant manager testified that only one fall had occurred prior to that of Mrs. Poythress, and that fall occurred at a different location on the premises, where the design and construction of the area were different.


author: Judge Harold R. Banke.

text:
    A97A1768.
    In the Interest of K. H. et al., children.
    (494 SE2d 69)
   Judge Harold R. Banke.

In this appeal from a juvenile court order terminating the parental rights to four minor children, the appellant mother enumerates three errors.

The evidence presented at the parental rights termination hearing revealed that the mother is an alcoholic presently incarcerated on charges of cruelty to children. Each of her children have different fathers who did not contest the termination of their parental rights.

In August 1994, the Department of Family & Children Services (“DFCS”) received a report of some health problems with the youngest child, then five months old, and developed a case plan which required the mother to change his diaper, keep scheduled medical appointments, and feed him regularly. The mother did not fulfill all these goals.

In January 1995, the baby died of Sudden Infant Death Syndrome. The baby, filthy, bloody from diaper rash, and soiled with dried feces, was found in his urine-soaked crib along with roaches and beer cans.

DFCS immediately initiated custody proceedings on behalf of the other three children, K. H., C. H., and S. H. In conjunction with this action, DFCS developed a case plan for reuniting the family which required the mother to get mental health counseling, participate in a parenting class, visit the children regularly, help with their financial needs, and secure safe and sanitary housing for them. With the exception of visiting the children, the mother achieved none of these goals. When the DFCS worker pointed this out, the mother explained that she was waiting to see if she would go to prison.

In July 1995, the mother pleaded guilty to cruelty to children relating to the baby’s death and the filthy conditions in which he lived. She received a ten-year sentence with five years to serve. Five days after sentencing, the mother gave birth to M. H. and DFCS immediately obtained custody of him. Throughout her pregnancy, the mother denied her condition and refused prenatal care. During her incarceration, the mother has undergone substance abuse counseling, attended parenting classes, worked in food service, and telephoned her children regularly. The mother’s earliest possible parole date is in 1999.

DFCS filed its termination petition in November 1996. After a hearing, the trial court found clear and convincing evidence that the children were deprived, the deprivation was likely to continue, and that parental inability or misconduct caused the deprivation and terminated all parental rights. Held:

1. The mother contends that the trial court erred in denying her motion to dismiss in which she argued that the failure to conduct a hearing pursuant to OCGA § 15-11-41 (f) to review DFCS’s decision not to propose a plan for reunification precluded termination of her parental rights under OCGA § 15-11-81.

The record shows that DFCS developed a case plan which incorporated a plan for reunification in January 1995 after it obtained custody of the children. In July 1996, DFCS filed another case plan which contemplated reunification. However, that month the citizen review panel recommended termination of parental rights. On September 5, 1996, the trial court entered a supplemental order pursuant to OCGA § 15-11-41 (e) incorporating both reports into its disposition in the case as the children’s permanent plan.

OCGA § 15-11-41 (f) is triggered when the report DFCS submits to the court does not contain a plan for reunification services. Here, OCGA § 15-11-41 (f) did not apply because DFCS’s plan contemplated reunification. Nothing in OCGA § 15-11-41 requires DFCS to submit a report not containing a plan for reunification services prior to initiating proceedings to terminate parental rights. Under the circumstances of this case, we decline to find that a hearing under OCGA § 15-11-41 (f) is a precondition to the commencement of termination proceedings under OCGA § 15-11-81. See In the Interest of A. M. B., 219 Ga. App. 133, 136 (464 SE2d 253) (1995) (declining to read OCGA § 15-11-81 in conjunction with OCGA § 15-11-41 (b)).

2. The mother challenges the sufficiency of the evidence that any deprivation suffered by her children would likely continue or would not likely be remedied. In considering the termination of parental rights, a juvenile court must ascertain whether there is clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). A finding of parental misconduct or inability hinges on evidence that, inter alia, (1) the children are deprived within the meaning of OCGA § 15-11-2; (2) the parent caused the deprivation through lack of proper care or control; and (3) the cause is “likely to continue or will not likely be remedied.” OCGA § 15-11-81 (b) (4) (A) (iii). The court may consider a parent’s past conduct in determining whether the deprivation is likely to continue or will not likely be remedied. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). “In a termination case, evidence that is one or two years old is not outdated.” In the Interest of A. M. V., 222 Ga. App. 528, 531 (474 SE2d 723) (1996).

The record, viewed in the light most favorable to the appellee, is replete with uncontroverted evidence of past conduct demonstrating the mother’s unfitness, including the filthy condition of her home and the obvious neglect of her children. In the Interest of A. M. B., 219 Ga. App. at 133 (standard of review). Caseworkers investigating the baby’s death discovered the shocking conditions noted above and the other children, naked and unkempt in the cold, damp house.

We share the trial court’s concern that the baby’s death did not seem to be a “wake-up” call to the mother. During the six months between the baby’s death and her incarceration, the mother utterly failed to comply with DFCS’s case plan and reunification plan, with the exception of visiting the children. The mother admitted that before her incarceration she cared more about drinking beer than parenting her children. Although the mother has attended counseling and parenting classes, she admitted that the prison provided rewards for her attendance. The record shows that since her imprisonment she has held a job for the first time in her life. In light of the egregiousness of her past conduct, however, these efforts, while commendable, are insufficient to invalidate the trial court’s finding of clear and convincing evidence demonstrating that the deprivation suffered by the children was likely to continue.

Decided November 12, 1997.

Melinda M. Katz, for appellant.

Thurhert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Gwendolyn A. Atkinson, Daniel M. Mitchell, Jr., for appellee.

3. The mother maintains that the trial court failed to comply with OCGA § 15-11-81 (b) (4) (C), which required it to consider whether she unjustifiably failed significantly for a period of one year before the termination petition was filed to communicate with the children, provide for their care and support, and comply with the reunification plan. In its findings, the trial court did mention the mother’s failure to provide for the children’s care and support and to comply with the reunification plan. In any event, a showing supporting the factors listed in OCGA § 15-11-81 (b) (4) (C) is not mandatory. In the Interest of C. D. F., 222 Ga. App. 905, 908 (3) (476 SE2d 654) (1996).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       OCGA § 15-11-41 (f) states: “If the report submitted to the court does not contain a plan for reunification services, upon proper notice being provided to the parents, the court shall, no later than 30 days following the filing of the report, hold a hearing to review the report and the determination that a plan for reunification services is not appropriate.”


text:
    A97A1782.
    FREELOVE v. THE STATE.
    (494 SE2d 72)
   Judge Harold R. Banke.

Arthur Lee Freelove was convicted of burglary. Following the denial of his motion for new trial, Freelove only challenges the sufficiency of the evidence.

The evidence, when viewed in a light to support the verdict, showed that about 10:00 p.m., when police responded to a report of a burglary in progress, they discovered Freelove inside a partially completed building. Freelove.was in the process of rolling an orange extension cord around his arm. An investigating officer testified that when he tapped on the window glass, Freelove looked at him, dropped the extension cord and ran to the rear of the building. Another officer intercepted Freelove as he tried to escape, and placed him under arrest as he crawled out a window. The superintendent of construction testified that Freelove had no authority to be inside the building which contained extension cords, fans, ladders, and miscellaneous construction materials. Held:

Decided November 12, 1997.

Mark T. Phillips, for appellant.

Kenneth B. Hodges III, District Attorney, Robert E. Perrine, Jr., Assistant District Attorney, for appellee.

In his sole enumeration of error, Freelove contends that the State failed to prove that he had an intent to commit theft in the building. He claims that the State failed to prove that there was anything of value that could be stolen. We disagree.

The pertinent essential elements of the offense of burglary are: (1) entering the building of another; (2) without authority; (3) with intent to commit a theft therein. OCGA § 16-7-1 (a). It is not necessary to prove that the theft of any object occurred, only that there was an apparent purpose to commit a theft. Fennell v. State, 159 Ga. App. 194, 195 (283 SE2d 72) (1981); Davis v. State, 139 Ga. App. 105, 106 (3) (227 SE2d 900) (1976). Although Freelove testified that he entered the building “to secure” it and because he was curious, the jury was the sole judge of witness credibility. Norris v. State, 220 Ga. App. 87, 88-89 (1) (469 SE2d 214) (1996).

In light of the evidence that investigators discovered Freelove inside a building without the owner’s permission, with an extension cord wrapped around his arm, that when Freelove spotted an officer he immediately dropped the cord, fled, and attempted to elude the police, a rational trier of fact could find the essential elements of burglary, including an intent to commit theft, within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Upon this evidence, the jury was authorized to infer that Freelove entered with an intent to commit theft. Ealey v. State, 139 Ga. App. 604, 606-607 (2) (229 SE2d 86) (1976).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Blackburn, Judge.

text:
    A97A1041.
    MONDY v. THE STATE.
    (494 SE2d 176)
   Blackburn, Judge.

Shannon Blaine Mondy was convicted of possession with intent to distribute methamphetamine, possession of marijuana, driving under the influence, no proof of insurance, and failure to maintain lane. He alleges that the trial court erred in denying his motion for new trial. Specifically, he claims that, because the State failed to provide him with an existing videotape of the traffic stop which led to his arrest, Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) was violated. He also claims he was entitled to a new trial because, after trial, he discovered that this same videotape illustrated that one of the State’s witnesses perjured himself at trial. Mondy additionally asserts that he received ineffective assistance of counsel. For the reasons set forth below, we reverse.

1. Mondy claims he was entitled to a new trial due to the State’s Brady violation. In reviewing a trial court’s denial of a motion for new trial, this Court determines whether or not the trial court abused its discretion in denying the motion. See Humphrey v. State, 207 Ga. App. 472, 475 (1) (428 SE2d 362) (1993). The facts show that the stop of the vehicle Mondy was driving prior to his arrest was recorded by a video camera located in the arresting officer’s patrol car. Although Mondy filed a broad pre-trial discovery motion pursuant to Brady, supra, requesting all exculpatory matter in the State’s possession, the State did not disclose the existence of the videotape.

Mondy proceeded to trial and first learned of the tape when the State announced its existence to the court during the trial. Although the tape was never tendered into evidence, Mondy was nonetheless aware of its existence from early in the proceeding. In fact, while conducting a Jackson-Denno hearing, Mondy’s attorney questioned the arresting officer about the existence of the tape. Despite this knowledge, however, Mondy made no motion regarding the tape at trial. He did not ask for a continuance in order to review the tape, ask the court to conduct an in camera review of the tape before proceeding with the trial, or otherwise indicate in any fashion the existence of a Brady violation.

“We find no merit to the defendant’s contention that the trial court erred by failing to grant a new trial on the ground that the state did not disclose exculpatory evidence in violation of Brady v. Maryland, [supra]. No such objection was made at trial, and the defendant has waived his right to raise this objection on appeal.” Jones v. State, 258 Ga. 249, 250 (6) (368 SE2d 313) (1988). Accordingly, the trial court did not err in failing to grant Mondy a new trial on this ground.

2. Mondy contends that he is entitled to a new trial because the State procured his conviction through perjured testimony. The facts show that at trial, the State called Johnny Sutton, a passenger in the back of the car who was arrested along with Mondy upon discovery of the drugs, as a rebuttal witness. Following Mondy’s testimony, wherein he disavowed all knowledge of the drugs, the State called Sutton to the stand. Sutton also disavowed all knowledge of the drugs except for one marijuana cigarette and testified that he only discovered the presence of drugs in the car when the officer pointed them out. Mondy contends this testimony materially contradicts Sutton’s statements made to the officer on the videotape discussed in Division 1, supra, and he argues that Sutton’s perjury entitles him to a new trial.

“[A] conviction obtained by the knowing use of pexjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” (Punctuation omitted.) Williams v. State, 250 Ga. 463, 465 (298 SE2d 492) (1983), quoting United States v. Agurs, 427 U. S. 97, 103-105 (96 SC 2392, 49 LE2d 342) (1976). If “ The undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury,’ ” such a conviction may require reversal under the above standard. Williams, supra at 465.

Our repeated reviews of the videotape indicate that Mondy’s and Sutton’s voices are discernible over the background noises on the tape, and while they are not pictured as they speak, their individual voices are identifiable. After the two men alight from the car at the officer’s request, the officer notes the smell of marijuana smoke and asks the men where the marijuana is located. In response, Sutton points out a marijuana cigarette to the officer, which cigarette Sutton had thrown down when the car was stopped. At trial, Sutton admitted having possessed the marijuana cigarette.

The tape then shows the officer asking the men if there are any other drugs in the car and specifically if two bags located in the back seat of the car contain drugs. When asked, Sutton identifies one of the bags as his, points out the presence of drugs in the bag to the officer, tells the officer how much he paid for the drugs, indicates to the officer for what some of the drugs are used, i.e., a “cutting agent,” and admits buying the drugs either for or from his brother. The tape also shows the officer discovering drugs in a bag Mondy identified as his, but Mondy’s identification of the bag was ruled inadmissible at trial due to the officer’s failure to give Miranda warnings.

At trial, however, when the prosecutor asked him if he had any drugs in his bag, Sutton answered, “[a]t the time [of the stop] I didn’t.” The prosecutor then asked if Sutton discovered at some point that he did have drugs in his bag, and Sutton responded, “yes, ma’am, I sure did . . . when the police officer started going through our bag.” On cross-examination, Mondy’s attorney asked Sutton whether or not he had knowledge of any drugs being in the car before the police officer discovered them, and Sutton denied having knowledge of any drugs except for the marijuana cigarette. He further testified in response to Mondy’s attorney’s questions that at the time, he did not think there were drugs in the bag, and that he did not know his bag contained methamphetamine until the police officer discovered it.

It is clear that Sutton’s trial testimony regarding his knowledge of the presence of drugs in his bag and in the car, exclusive of the marijuana cigarette, is completely opposite of what the videotape shows he told the officer at the time of the stop. Although he told the jury that he did not know there were drugs in his bag until the officer discovered them, on the tape Sutton admits ownership of the bag, points out the drugs to the officer, tells the officer how much he paid for the drugs, and indicates to the officer where he and Mondy were headed with the drugs. Sutton was so cooperative with the officer, in fact, that at one point the officer comments that because the men showed him where the drugs were and admitted possessing them, the officer would make note of that and charge them with misdemeanors instead of felonies. At trial, the officer testified that Mondy had pointed out where the drugs were located in the car.

Although Sutton’s admissions on the videotape do not exonerate Mondy, they are still material to the determination of Mondy’s guilt. At trial, Sutton’s testimony implied that Mondy had placed drugs in Sutton’s bag without Sutton’s knowledge. Sutton testified that his bag had been left unattended at Mondy’s house for some period of time prior to the stop, that the last time he saw his bag before discovering it in the car had been at Mondy’s house, and that he had not moved the bag from Mondy’s house prior to the stop. Mondy’s testimony was exactly opposite Sutton’s, as Mondy implied that Sutton or some other person had placed drugs in Mondy’s bag. Sutton, however, denied having placed anything in Mondy’s bag.

Because Sutton’s statements to the officer prove that Sutton knew what was in his bag and how it had come to be there at the time of the stop, and because his testimony implied to the jury that Mondy must have placed the drugs in Sutton’s bag, we cannot say as a matter of law that there is no reasonable likelihood that Sutton’s false testimony affected the judgment of the jury. See generally West v. State, 213 Ga. App. 362, 364 (1) (a) (444 SE2d 398) (1994) (conviction reversed because audiotape of alleged drug buy “may show the informant gave perjured testimony” at trial). Even if we were to find that the videotaped admissions were not material, and were merely impeaching of Sutton’s trial testimony, “[i]t is elementary that the State may not knowingly use false testimony to obtain a conviction, even when the falsity relates solely to the credibility of a witness.” Howard v. State, 220 Ga. App. 267, 270 (3) (b) (469 SE2d 396) (1996).

On the facts of this case, we must also conclude that the State knew or should have known that Sutton’s trial testimony was untruthful. This is so because the State had knowledge of what was on the videotape. In fact, at one point, the State had a videocassette recorder and television set assembled in the courtroom in order to show the videotape to the jury. Although the jury never saw the videotape, it is clear that the State was familiar with the contents of the tape, and therefore knowledge of Sutton’s comments to the officer must be imputed to the State.

The fact that Mondy waived any Brady violation with respect to the tape does not affect our analysis. Although Mondy may have waived his right to view the tape and use it in his favor at trial, he did not waive his right to be convicted free from perjury. The perjury and the Brady issues are separate — though the State may have been released by Mondy’s waiver from the responsibility to produce the tape, under no circumstances was it released from the duty to convict Mondy without knowingly using perjured testimony which was brought to light by the tape.

Although Mondy should have known at trial that Sutton was offering perjured testimony, since Mondy was present when Sutton made his statements to the officer, on the facts of this case, Mondy also did not waive the perjury which occurred at trial. See Kitchens v. State, 160 Ga. App. 492, 493 (2) (287 SE2d 316) (1981) (“the right to claim a denial of due process on the ground that perjured testimony was used by the state may be waived”). As set forth above, Mondy’s attorney repeatedly attempted to elicit testimony from Sutton that Sutton knew, prior to being stopped by the officers, that the bags contained drugs. However, Sutton denied any such knowledge every time the question was asked. “Trial counsel’s unsuccessful attempt to get the witness’ prior statements before the jury does not amount to the passivity shown by the defense attorneys in cases where a defendant was found to have waived his right to claim a denial of due process. We hold that appellant did not waive his right to a jury verdict untainted by perjured testimony.” Id.

Decided September 2, 1997

Reconsideration denied November 13, 1997.

Elizabeth A. Baker, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee. '

Accordingly, because we cannot conclude that there is no reasonable likelihood that Sutton’s false testimony affected the judgment of the jury, see Williams, supra at 465, Mondy is entitled to a new trial.

3. Mondy also alleges that he is entitled to a new trial because he received ineffective assistance of counsel. Inasmuch as we have granted Mondy a new trial on other grounds, we need not address this issue.

Judgment reversed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.

       Although he was arrested after the effective date of OCGA § 17-16-1 et seq., Mondy did not opt in under that section.

       “If it is [Mondy’s] contention that additional time for investigation [of the exculpatory material revealed at trial] would have enhanced his defense, the proper motion would have been for an adequate recess.” (Punctuation omitted.) Wright v. State, 220 Ga. App. 233, 235 (3) (469 SE2d 381) (1996).

       Although Mondy argued this issue at his motion for new trial, the trial court’s order denying that motion does not address the issue.

       Mondy was, of course, ultimately charged with the felony of possession of methamphetamine with intent to distribute. It is not clear from the record what Sutton was ultimately charged with.


author: Ruffin, Judge.

text:
    A97A1140.
    OLDE SOUTH CUSTOM LANDSCAPING, INC. et al. v. MATHIS.
    (494 SE2d 14)
   Ruffin, Judge.

Derrick Mathis filed this workers’ compensation claim against his employer Olde South Custom Landscaping, Inc. (“Olde South”) and its insurer, CIGNA Insurance Company (“CIGNA”), for injuries he sustained when he stopped to assist stranded motorists he encountered while performing employment duties for Olde South. The administrative law judge (“ALJ”) declined to award Mathis benefits; finding that his “injuries did not arise out of his employment, but out of a deviation from it.” The appellate division of the State Board of Workers’ Compensation (“appellate division”) reversed, concluding that Mathis had not deviated from his employment, but was “[e]xercising ordinary standards of decency and compassion while in the course of employment. . . .” The superior court affirmed. We granted Olde South’s application for discretionary appeal and for reasons which follow, we reverse.

“In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the [Board], when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.” (Citations and punctuation omitted.) Atlas Automotive v. Wilson, 225 Ga. App. 631, 633 (1) (484 SE2d 669) (1997). “The courts may, however, review the Board’s legal conclusions.” Crider’s Furs v. Atkinson, 221 Ga. App. 681, 682 (472 SE2d 507) (1996).

The relevant facts in this case are undisputed. The record shows Derrick Mathis was a foreman for Qlde South. He was required by his employment to travel to various locations for landscaping assignments and thereafter to return to Olde South’s office with the truck and landscaping equipment. On January 12, 1995, Mathis and two other Olde South employees had completed their jobs for the day and were returning to Olde South’s office in one of the company’s trucks. As he was driving north on Interstate 85, Mathis noticed an elderly couple stranded in the emergency lane with the elderly man pushing the car. Mathis saw no one stopping to assist them and in fact claimed to have seen a wrecker drive by without stopping. Mathis exited the interstate two exits later and returned to offer assistance. Olde South had no established policy mandating or prohibiting its employees from assisting stranded motorists.

When they arrived at the stranded car, Mathis and the other Olde South employees helped push the car. When it became difficult to push the car up an incline, Mathis and one of his co-employees put their feet against the back bumper of the stranded car while sitting on the front bumper of the Olde South truck, creating what was described as a human wedge. The third Olde South employee then placed the truck in gear and began pushing the disabled car along the emergency lane, with Mathis and the other Olde South employee between the two vehicles. The plan went awry, however, and Mathis fell under the truck and was caught and dragged by the trailer. Mathis suffered a fractured vertebra and was paralyzed by the accident. Mathis sought total disability income benefits from Olde South and CIGNA.

The ALJ, in denying benefits, refused to recognize “a ‘good Samaritan’ exception to the deviation rule,” holding that such relief had to be enacted by the legislature. The ALJ concluded that Olde South received no benefit from Mathis’ deviation.

In reversing, the appellate division found that there was no deviation from his employment duties and that Mathis’ actions promoted Olde South’s good will to the public. The superior court, in affirming the appellate division, relied in part on a decision of the Florida Court of Appeals that found compensable injuries sustained by a truck driver who stopped to assist motorists involved in a head-on collision. Rockhaulers, Inc. v. Davis, 554 S2d 654 (Fla. App. 1989). Based on Davis, the superior court concluded that Mathis was responding to a “true emergency” and thus the appellate division properly found his injuries to be compensable.

The issue of whether the Georgia Workers’ Compensation Act applies to an employee who is injured while acting as a Good Samaritan is one of first impression. The Good Samaritan Rule is an extension of the positional risk doctrine. See A. Larson, The Positional-Risk Doctrine in Workmen’s Compensation, 1973 Duke L. J. 761, 808. The positional risk doctrine, which has been adopted in Georgia, holds that for an "injury to be compensable it is only necessary for the claimant to prove that his work brought him within range of the danger by requiring his presence in the locale where the peril struck, even though any other person present would have also been injured irrespective of his employment.” Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 567 (1) (263 SE2d 455) (1979). The Good Samaritan Rule, adopted in Florida and other jurisdictions, does not involve an outside force, such as lightning, tornadoes, or criminal assaults, injuring an employee in a location where his employment placed him, but rather the implied invitation to rescue someone in need encountered by the employee. Larson, 1973 Duke L. J. at 808; Edwards v. Louisiana Forestry Comm., 60 S2d 449 (La. 1952) (employee injured while attempting to rescue a child from attacking dog could obtain benefits); Reilly v. Weber Engineering Co., 258 A2d 36 (N.J. Super. 1969) (compensable injuries resulted when employee attempted to rescue a young boy dangling from high tension wire); Big “2” Engine Rebuilders v. Freeman, 379 S2d 888 (Miss. 1980) (injuries suffered by employee who stopped for an apparently stranded motorist who hit the employee over the head with a gun were compensable).

Under the Good Samaritan Rule, “ ‘(i)njury incurred in the rescue of a stranger is compensable if the conditions of employment place claimant in a position which requires him by ordinary standards of humanity to undertake the rescue.’ [Cit.] . . . [T]here must be a true emergency, as distinguished from a mere benefit to an employer through the act of providing assistance to one in trouble. [Cit.] This ‘true emergency’ requirement lies at the heart of the positional risk doctrine. Under this theory, an employee’s injury is com-pensable if it was incurred in the rescue of a complete stranger, provided the employment brought the employee to the place where he observed the situation calling for a rescue attempt. [Cits.]” Davis, 554 S2d at 656.

The Good Samaritan Rule, however, is an exception to the deviation rule, which has been employed by Georgia courts. The deviation rule provides that when an employee "steps aside from his employer’s business to do some act of his own, not connected with his employer’s business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment within the meaning of the Workmen’s Compensation Act.” Hartford Accident &c. Co. v. Souther, 110 Ga. App. 84, 85 (2) (137 SE2d 705) (1964).

We have located only two instances in which our appellate courts have even remotely addressed the Good Samaritan Rule. See Glens Falls Indent. Co. v. Sockwell, 58 Ga. App. 111 (197 SE 647) (1938) (physical precedent only), and U S. Fidelity &c. Co. v. Hamlin, 98 Ga. App. 167 (105 SE2d 481) (1958). In Sockwell, an employee stopped on the side of the road to aid stranded motorists. He was injured while stepping into his vehicle after having assisted the motorists. We concluded that the injury was compensable because, at the time the employee was injured, “he had ended his deviation . . .,” of assisting the stranded motorists and had resumed his duties to his employer. Id. at 115. We declined to address whether the employee’s actions in providing aid to the motorists constituted an emergency or established good will for the employer. Id. at 113.

In Hamlin, supra, the employee stopped while driving during the course of his employment to assist a stranded motorist. He was killed and his family was awarded workers’ compensation benefits. However, the employer in Hamlin had previously advised its employees to “follow the practice of giving succor to motorists they found upon the highways in distress or need' of aid.” 98 Ga. App. at 176. While the employer left it to the discretion of the employees as to when and under what circumstances they would offer assistance, the employer admitted instructing the employees “as to the manner that the aid was to be given under certain circumstances. . . .” Id. Thus, Hamlin is distinguishable from the instant case since there is no evidence Olde South ever instructed its employees to assist stranded motorists or that it had any such policy. Clearly, given the employer’s express policy in Hamlin, the actions of the employee in that case were connected to his employment.

In the absence of any Georgia authority providing for the adoption of the Good Samaritan Rule, we find the appellate division erred in applying it in this case. “ ‘The [appellate division] is an administrative body and it possesses only the jurisdiction, power, and authority granted to it by the legislature. [Cit.]’ ” McGinty v. Alfred L. Simpson & Co., 188 Ga. App. 718, 719-720 (374 SE2d 217) (1988).

Although the Workers’ Compensation Act is to be liberally construed, it is “only for the purpose of bringing employers and employees within the provisions of [the Act] and to provide protection for both. . . . The provisions of [the Act] shall be construed and applied impartially to both employers and employees.” OCGA § 34-9-23. Accordingly, “[w]e act even-handedly when we apply the Act as it is written.” Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 119 (2) (479 SE2d 767) (1996).

We find no provision in the Act that could be liberally construed so as to place the burden on employers to compensate for injuries resulting when an employee decides, due to a sense of decency, compassion or morality, to step away from his employment duties to assist someone in need. One member of the appellate division, in a concurring opinion, concluded that the Rule “may be adopted by the Courts as their interpretation of arising out of and in the course of employment without need for enabling legislation.” (Emphasis omitted.) We disagree, holding that application of the rule is a far-reaching extension of the “arising out of” and “in the course of” employment language contained in the Act. OCGA § 34-9-1 (4). We would not be interpreting the Act impartially or even-handedly were we to conclude that the Rule could be applied absent enabling legislation.

As Mathis so aptly points out, Georgia has one of the most complex Good Samaritan statutory schemes in the United States. See Good Samaritan Laws — Legal Disarray: An Update, 38 Mercer L. Rev. 1439, 1456 (1987). Georgia has in numerous instances statutorily limited the liability for those acting as Good Samaritans or in the interest of public welfare. See, e.g., OCGA §§ 51-1-29 through 51-1-30.1 (limitation of liability for persons rendering emergency care, for health care providers voluntarily rendering assistance, for those acting to minimize and repair damage resulting from catastrophic acts of nature and those assisting in fighting fires); OCGA § 31-11-8 (liability limited for those rendering emergency care). While we praise Mathis’ actions and are deeply sympathetic for the injuries he sustained, given the language of the Workers’ Compensation Act we are compelled to leave it to the Legislature to decide whether a Good Samaritan should be protected under the Act. While we agree with other jurisdictions that certain rescue attempts are mandated by ordinary standards of humanity and that the rescuer who is injured should not be punished for having made the attempt, whether employers are to bear the costs incurred when their employee makes the rescue attempt is a matter best left for our Legislature.

Absent the Good Samaritan Rule, Mathis’ injuries are not com-pensable as they did not arise out of his employment and his actions were a deviation from his employment duties. See Souther, supra. Mathis temporarily abandoned his employment by exiting the interstate and turning around to help other motorists. This was an act of his own that was not connected to Olde South’s business of landscaping. In stating why he went to the couple’s aid, Mathis in no way indicated that it was for Olde South’s benefit. Indeed, there was no evidence that Olde South benefitted by his actions.

As Mathis’ deviation constituted a deviation from his employment, we agree with the ALJ that Mathis’ injuries are not compen-sable under the Act and reversal of the superior court’s judgment is required.

Decided October 22, 1997

Reconsideration denied November 13, 1997

Zirkle & Hoffman, Eric S. Jones, for appellants.

Marcus & Moskowitz, Todd K. Maziar, for appellee.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A1256.
    DEPARTMENT OF TRANSPORTATION et al. v. JACKSON. HOLLOWAY CONSTRUCTION COMPANY v. JACKSON. SHEETS CONSTRUCTION COMPANY v. JACKSON.
    A97A1257.
    A97A1258.
    (494 SE2d 20)
   Smith, Judge.

This action arose out of an automobile collision that occurred at the intersection of Georgia Highway 316 and Georgia Highway 81, on the day that Highway 316 was opened to the public at that site. The collision occurred when the driver of the car in which Lamont Jackson was a passenger disregarded a stop sign at the intersection. Jackson brought this action against the Georgia Department of Transportation (DOT), Holloway Construction Company, and Sheets Construction Company, alleging that the driver, Polite, ignored the stop sign at the intersection because defendants negligently led him to believe that Highway 316 was still closed at that intersection. The defendants’ alleged negligence was in failing to cover the stop signs on Highway 81 at the intersection of Highway 316 until the latter was opened to the public, and in otherwise failing to do more to signal the opening of the road.

Defendants filed motions to dismiss for failure to state a claim, relying on this Court’s unpublished decision in Hill v. Sheets Constr. Co., Case No. A95A0500, June 26, 1995, involving the same collision at issue here. In Hill, the parents of another passenger in Polite’s car brought a wrongful death action against these defendants, making essentially the same allegations as those made in the complaint in this case. We held in Hill that the plaintiffs failed to state a claim because the sole proximate cause of the injury was the driver’s failure to stop at the stop sign. The trial court in this case, however, denied defendants’ motions to dismiss based on the Supreme Court’s recent opinion in Dept. of Transp. v. Brown, 267 Ga. 6 (471 SE2d 849) (1996). The court concluded that because in Brown a driver’s failure to stop at a stop sign did not preclude plaintiff’s recovery against DOT, Jackson should not be denied recovery here. We conclude that because Jackson’s complaint clearly shows the sole proximate cause of his injuries to be Polite’s negligence and because Brown is inappo-site to the facts of this case, defendants’ motion to dismiss should have been granted.

We recognize the strict standard for granting a motion to dismiss for failure to state a claim: such a motion “should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim.” (Citation and punctuation omitted.) English v. Liberty Mtg. Corp., 205 Ga. App. 141, 142 (421 SE2d 286) (1992). Even taking this standard into account, however, we agree with defendants that dismissal is warranted. Jackson’s complaint admits that Polite failed to heed the stop sign and contains no allegations that the sign was obscured or that he was otherwise prevented from observing it. Regardless of whether the signs were uncovered prior to the opening of the intersection and whether Highway 316 was opened at the time the signs were erected, it is beyond all dispute that “STOP” means stop under the Uniform Rules of the Road: “every driver of a vehicle approaching a stop sign shall stop.” OCGA § 40-6-72 (b). To fail to stop where directed to do so by a stop sign is negligence per se. See generally Williams v. Calhoun, 175 Ga. App. 332, 333 (333 SE2d 408) (1985); Johnson v. McAfee, 151 Ga. App. 774 (261 SE2d 708) (1979); OCGA § 40-6-20 (e). It is true that once negligence per se is shown, the burden then shifts to the defendant to show that the violation was unintentional and in the exercise of ordinary care. See, e.g., Cox v. Cantrell, 181 Ga. App. 722, 724 (5) (353 SE2d 582) (1987). But here, although he claimed the defendants were negligent in leading the public “into a false sense of security,” it is nonetheless clear that Polite’s failure to heed the stop sign was intentional. As alleged in his complaint: “As a result of the negligence of the defendants, Robert L. Polite did not heed the stop sign, at what he thought was a closed highway.” (Emphasis supplied.)

Although Jackson contends that defendants caused Polite to disregard the stop sign, as aptly argued by DOT, “Georgia law does not allow drivers to selectively obey stop signs based upon their belief as to the appropriateness of the sign.” OCGA § 40-6-72 does not provide that a driver may intentionally disregard a clearly visible traffic control device simply because he believes the highway he is approaching is not open for public travel. The language of that statute is mandatory, stating that the driver “shall stop” and “shall yield the right of way” at a stop sign “except when directed to proceed by a police officer.” OCGA § 40-6-72 (b).

Taking all the allegations in Jackson’s complaint as true, it nonetheless fails to state a cause of action against defendants. At most the complaint shows that defendants failed to do all that could have been done to assure that drivers on Highway 81 took heed of the stop sign after the intersection was opened to the public. Such action does not excuse Polite’s failure to stop where clearly directed to do so as required by the Uniform Rules of the Road, particularly OCGA § 40-6-72 (b). We therefore cannot agree with Jackson’s argument that the collision was caused by defendants’ conduct. Polite’s intentional disregard of the stop sign proximately caused the collision. Because Polite’s conduct was intentional, constitutes negligence per se, and was the proximate cause of Jackson’s injuries, the trial court erred in denying defendants’ motions to dismiss.

The cases relied on by Jackson do not demand a different result. Brown, supra, is inapposite. Notwithstanding the Supreme Court’s observation regarding how the collision occurred, that case does not address the issue presented here: whether plaintiff is precluded from recovery when his complaint admits that he was injured after the driver of the car causing the collision intentionally failed to heed a stop sign. That decision instead focuses on certain exceptions to liability under the Georgia Tort Claims Act, see OCGA § 50-21-24, and on the discretionary function of the DOT in determining whether to install a stop sign or a traffic signal at a particular intersection. Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159 (91 SE2d 135) (1955) and Bozeman v. Blue’s Truck Line, 62 Ga. App. 7 (7 SE2d 412) (1940), also relied on by Jackson, are similarly inapposite. In those cases, more than one concurrent negligent act combined to cause plaintiffs’ injuries. Here, on the contrary, the complaint shows on its face that Polite deliberately failed to stop at the stop sign. There are no allegations that the sign was improperly placed or was not obvious. The previous uncovered status of this traffic control device notwithstanding, this failure was the sole proximate cause of Jackson’s injuries.

Finally, Mixon v. City of Warner Robins, 264 Ga. 385 (444 SE2d 761) (1994) likewise is not controlling. It is true that the facts in Mixon involve a collision in which a driver disregarded a stop sign and struck the decedent’s car, killing her. But the issues presented in Mixon differ vastly from those here. Mixon focuses on the policy issues surrounding the liability of police officers engaged in a high speed chase. It addresses the statutory duty of a police officer involved in such activity to exercise due regard for others’ safety. OCGA § 40-6-6 (d). The facts of this case do not involve a high speed chase, and as aptly argued by DOT, no such duty exists under these circumstánces. DOT’s argument is persuasive: Under Jackson’s argument, despite proper placement of stop signs at the intersection, DOT would be required to anticipate that drivers “would decide of their own volition that they did not need to stop at such stop signs. . . . [S]uch a ruling would send a message that drivers in fact can decide whether to stop at a stop sign based upon their own determination as to whether such stop sign is ‘appropriate.’ ”

Decided October 22, 1997

Reconsideration denied November 13, 1997

Thurbert E. Baker, Attorney General, George P. Shingler, Kathleen M. Pacious, Deputy Attorneys General, C. Latain Kell, Senior Assistant Attorney General, for Department of Transportation.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Jo Beth Gosdeck, for Holloway Construction Company.

Goodman, McGuffey, Aust & Lindsey, Leslie S. Sullivan, for Sheets Construction Company.

Greer, Klosik & John F. Daugherty, Robert J. McCune, for Jackson.

Because Jackson failed to state a claim against defendants on which relief can be granted, the trial court erred in denying their motions to dismiss.

Judgments reversed.

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

       The complaint also alleged professional malpractice in that defendants failed to exercise a reasonable degree of care employed by contractors and the Georgia DOT under similar conditions and like circumstances.

       The plaintiffs in Hill did not include a claim for professional malpractice, but that difference is immaterial to our analysis.


text:
    A97A1270.
    GREENE et al. v. BOWERS et al.
    (493 SE2d 709)
   Blackburn, Judge.

James D. Bowers and William R. Humphlett sued H. Darrell Greene, Paul Owenby, and the estate of Al F. Hallman, Jr., seeking to recover commissions allegedly due on the sale of certain real estate to the United States Postal Service. In Bowers v. Greene, 217 Ga. App. 468, 470 (1) (458 SE2d 150) (1995), we reversed the trial court’s grant of summary judgment to defendants on plaintiffs’ claim for breach of contract, and affirmed the court’s denial of summary judgment on plaintiffs’ quantum meruit claim. Following a trial, the jury awarded plaintiffs $62,770.20 from Greene and $41,846.80 from Owenby. The jury did not award any damages against Hallman’s estate. Greene and Owenby appeal, contending that the court erred in denying their motions for directed verdict, j.n.o.v., and new trial. They also contend that the court erred in admitting certain evidence and in allowing improper closing argument. For the reasons set forth below, we affirm.

1. Appellants claim that the trial court erred in denying their motions for j.n.o.v. or for a new trial because there was no evidence that Bowers and Humphlett were responsible for the sale of the property to the Postal Service. “The standard for review of a directed verdict and a judgment n.o.v. are the same: Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. And, the standard of appellate review of the trial court’s denial of a motion for a directed verdict [or j.n.o.v.] is the ‘any evidence’ standard.” (Punctuation omitted.) Halta v. Bailey, 219 Ga. App. 178, 180 (2) (464 SE2d 614) (1995); see also Dunkin’ Donuts of America v. Gebar, Inc., 202 Ga. App. 450, 451 (1) (c) (414 SE2d 683) (1992). “The ‘trial (court’s) denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.’ ” Mansfield v. Pizza Hut of America, 202 Ga. App. 601, 602 (415 SE2d 51) (1992).

The relevant facts of this case are as follows. In late 1986 or early 1987, Bowers, a real estate broker, learned that the United States Postal Service was seeking to purchase approximately six to eight acres of property in east Cobb County for a new postal facility. Bowers contacted Humphlett, another real estate broker, to see if he knew of any suitable property. Humphlett then contacted Greene, who he believed owned a 25-acre tract of land in the area.

Bowers and Humphlett met with Greene, who agreed to offer a portion of the 25-acre parcel to the Postal Service at a price of $130,000 per acre and to pay a commission to Bowers and Humphlett upon completion of the sale. Bowers and Humphlett prepared a commission agreement providing that they would receive a ten percent commission upon the sale of the property to the Postal Service, and presented this document to Greene. The commission agreement did not contain a termination date. At this time, Bowers and Humphlett were under the belief that Greene owned the entire 25-acre parcel. However, Greene did not in fact own the entire tract; portions were owned by Owenby and Hallman. On or about February 19, 1987, Greene, Owenby, and Hallman each executed the commission agreement and returned it to Bowers and Humphlett.

Bowers and Humphlett commenced negotiations with the Postal Service regarding the sale of the property. On February 25, 1987, they presented to the Postal Service an offer to sell approximately eight acres at a price of $130,000 per acre. This offer was signed by Greene, Owenby, and Hallman, although Greene later testified that he did not own any part of this parcel. The Postal Service expressed strong approval of the site, but required that the property be rezoned. Bowers met with the owners to select a development plan to submit to the county for rezoning. The owners hired an attorney to represent them in the rezoning procedure. Bowers, Humphlett, and the Postal Service representative accompanied the owners to the zoning hearing, and the county agreed to rezone the property for a post office only, subject to certain conditions.

Bowers then met with the Postal Service representative and others to discuss any possible problems that would need to be addressed prior to closing. The Postal Service required that the owners remove a house located on the property, which the owners accomplished. After a satisfactory appraisal was obtained, it appeared that closing was imminent. However, around October 1987, the Postal Service informed the parties that, because of a recent budget bill passed by Congress, it could not close on the purchase of the property at that time. The Postal Service encouraged the owners to continue negotiations.

At this time, in the fall of 1987, Greene instructed Bowers and Humphlett to cease any further contact with the Postal Service, and informed them that all future negotiations would be conducted by the owners and their attorney. Thereafter, the owners submitted a new proposed contract to the Postal Service, providing for closing to occur by October 25, 1988. This contract also provided that a commission would be paid to Bowers and Humphlett. The seller was identified as “Johnson Mill Associates,” a joint venture consisting of Greene, Owenby, and Hallman. However, in February 1989, the Postal Service informed the owners that they could not close the deal.

Pursuant to the owners’ instructions, Humphlett and Bowers did not attempt to continue negotiations with the Postal Service. However, Humphlett continued to try to market the property. In February 1990, Humphlett, Greene, and Owenby signed a separate commission agreement relating to a potential sale of approximately six acres of property to another entity, Cobb Healthcare Associates. Hallman did not execute the agreement because he had sold his portion of the property to Owenby. The property offered to Cobb Healthcare consisted of a portion of the property previously offered to the Postal Service. Although a sales contract was executed with Cobb Healthcare, the deal did not ultimately close.

In 1990, a representative of the Postal Service contacted Greene to see if he was still interested in selling the property. On December 10, 1990, the owners presented a written offer to sell 7.2683 acres of property to the Postal Service at a price of $110,000 per acre. This was the same piece of land that had previously been rezoned by the county. The offer was signed by Greene, Owenby, and Hallman.

The owners did not notify Bowers or Humphlett of the offer or of the Postal Service’s renewed interest in the property. However, in May 1991, Humphlett heard that the Postal Service was appraising the property and was again interested in the site. Humphlett and Bowers then went to see Greene on June 11. According to Bowers, Greene acted surprised that the Postal Service was interested, and said that he had not heard from them except for one phone call several months earlier. He did not inform them that he had already submitted a written offer to the Postal Service. Bowers testified that Greene told them to contact the Postal Service to see if there was any interest. Humphlett testified that Greene told them to stay on top of the situation and report back to him about what was happening with the Post Office. Greene said that, as far as he was concerned, the brokers would receive their commission, but he would need to check with Owenby.

Humphlett tried to reach Owenby by telephone for 17 days, but Owenby did not return his calls. On June 28, Humphlett wrote a letter to Greene, Owenby, and Hallman, seeking confirmation that a commission would be paid upon consummation of a sale to the Postal Service. Humphlett stated that, unless he heard otherwise within five days, he would assume that the owners agreed he and Bowers were entitled to a commission.

Following the June 11 meeting with Greene, Bowers contacted the Postal Service representative, Kelly Pfrimmer, offering to assist in facilitating the transaction. On July 12, Bowers wrote Greene to inform him that he had met with a Postal Service appraiser and provided information to assist in preparing an acceptable appraisal. In August, Humphlett spoke with the Postal Service’s appraiser regarding the value of the property. On August 16, Bowers wrote Greene and Owenby to inform them that he had attended a meeting with the facilities service manager for the Postal Service, and that he had been informed that the appraisal had been approved and that closing should take place within approximately six weeks.

On August 23, Bowers received a letter from Owenby’s attorney, stating that Bowers had not been authorized to present the property to the Postal Service. On October 11, 1991, the sale to the Postal Service was consummated. The warranty deed conveying the property to the Postal Service was executed by Owenby, but not by Greene or Hallman. On October 10, the day before the sale, Greene had executed a quitclaim deed to Owenby, conveying any interest Greene may have possessed in the property to Owenby. Greene claimed that he did not in fact own any part of the property sold to the Postal Service, and that he had executed the quitclaim deed at the Postal Service’s request merely to clear up a discrepancy in the boundary line between such property and adjacent property owned by him.

As we recognized in our earlier decision in this case, “[a] broker is entitled to a commission whenever negotiations conducted by him on behalf of the principal culminate in the purchase of the property or would have so culminated but for the principal’s interference. The agreement between the parties in this case did not provide that Bowers and Humphlett were the exclusive agents for the owners. Thus, as non-exclusive agents, Bowers and Humphlett were entitled to recover the commissions claimed only upon proof that they were the procuring cause of the sale, which can be established by showing that negotiations for the sale were set on foot through their efforts, that they performed every service required by their employment which it was possible to perform, and that the failure on their part to personally consummate the trade was due to the interference of the owners.” (Punctuation omitted.) Bowers v. Greene, supra at 470.

On the above facts, there was sufficient evidence to support the verdict. It is undisputed that Bowers and Humphlett were responsible for bringing the Postal Service to the attention of appellants, and that negotiations with the Postal Service were set on foot through their efforts. They were active participants in the initial negotiations which, but for the unexpected budget problems, would likely have resulted in the closing of the sale. There was evidence from which the jury could have concluded that the Postal Service’s inability to consummate the initial transaction was merely a temporary setback caused by budgetary problems, and that continued negotiations would have led to a final sale. Indeed, there was evidence that, when the Postal Service was in a position to purchase the property, it did not advertise for a suitable location as it had done previously, but merely contacted Greene directly about this particular property.

There was also evidence that plaintiffs performed every service required by their employment which it was possible to perform. Plaintiffs’ failure to continue active negotiations with the Postal Service was caused by appellants’ direct instructions that they cease all contact with the Postal Service. As we recognized in our prior opinion, the fact that “the sale was consummated without further assistance from Bowers and Humphlett could be attributed to the owners’ directive to cease contact with the Postal Service, and the question of whether Bowers and Humphlett would have ultimately consummated the sale to the Postal Service but for the owners’ interference [was a] question[ ] for the jury.” Bowers, supra at 471 (1). The jury having decided such issue in favor of Bowers and Humphlett, we will not interfere with its judgment.

2. Greene contends that he was entitled to a directed verdict or j.n.o.v. because there was no evidence that he owned any portion of the property actually conveyed to the Postal Service. As an initial matter, we note that not all the relevant plats to this action are contained in the record transmitted to this Court on appeal. However, Greene signed the commission agreement with Bowers and Hum-phlett, and they acted pursuant to such agreement. Greene’s later testimony that he did not own any of the property initially offered to the Postal Service in February 1987, does not change his commitment to pay a commission upon the sale of such property. Notwithstanding his lack of ownership, Greene does not contend that he would not have been liable for a commission if the original sale had closed. He testified that he, Owenby, and Hallman had agreed to market their separately-owned property together and that he would derive a benefit from the sale.

Although Greene claims that he had withdrawn from his arrangement with Owenby and did not receive any benefit from the ultimate sale of the property to the Postal Service, the jury was free to believe otherwise. It is undisputed that Greene signed the final offer to sell the property to the Postal Service even though he claims not to have owned any of the property. He also executed a quitclaim deed to Owenby the day before the sale. Furthermore, after they learned of the Postal Service’s renewed interest in the property, Bowers and Humphlett testified that Greene instructed them to continue contacts with the Postal Service and report back to him. They testified that Greene never denied during these conversations that he would be liable for a commission upon consummation of the sale; indeed, he indicated that as far as he was concerned a commission would be payable, but that he would need to check with Owenby. The jury could have inferred from these facts that Greene’s arrangement with Owenby to jointly market and sell the property was still in effect, and that Greene was thus liable for commissions pursuant to the agreement with Bowers and Humphlett.

3. Appellants contend that the verdict was improper because no award was made against Hallman. They contend that the commission agreement contemplates joint and several liability, and that the failure to enter an award against Hallman is inconsistent with the awards against Greene and Owenby. This contention is without merit. Prior to the sale to the Postal Service, Hallman sold his interest in the property to Owenby. Humphlett admitted that, at the time of the sale to the Postal Service, he knew Hallman did not own any of the property. Indeed, prior to the sale to the Postal Service, when Humphlett was negotiating the potential sale of the property to Cobb Healthcare Associates, he entered into a commission agreement with Owenby and Greene, but not with Hallman, because Hallman had sold his portion of the property. Accordingly, the jury could have found that Hallman was no longer involved in the venture and that all parties understood he had been released from his original obligation to pay a commission on the sale of the property.

Decided September 11, 1997

Reconsideration denied November 13, 1997

H. Darrell Greene & Associates, Paul Shimek III, for appellants.

R. Britt Harris, Jr., for appellees.

4. Greene and Owenby contend the court erred in overruling their objection to plaintiffs’ closing argument, alleging that plaintiffs argued matters not in evidence. However, as the closing arguments were not transcribed, there is nothing for this Court to review, and this enumeration is without merit. See Hand v. State, 206 Ga. App. 501, 504 (5) (426 SE2d 18) (1992).

5. Greene and Owenby contend the court erred in admitting two plats into evidence, arguing that a proper foundation was not laid for their admission. However, the trial court admitted the documents on the grounds that the parties had stipulated to their admissibility in the pre-trial order. The pre-trial order provided that documents identified in the attached exhibits would be admitted without further proof of authenticity. Plaintiffs’ documentary exhibit listed numerous deeds and “[v]arious plats depicting the property in the above-referenced deeds.” Plaintiffs’ attorney advised the court that the plats in question had been provided during the pre-trial conference, and defendants’ attorney did not contradict this fact. Accordingly, the court was authorized to find that the plats were covered by the pretrial order, and did not err in overruling defendants’ objection to admissibility of the plats.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       Appellants do not contend that they were harmed by the jury’s entry of separate awards against Greene and Owenby, instead of a joint and several award.


author: Andrews, Chief Judge.

text:
    A97A1980.
    GAITHER et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (494 SE2d 27)
   Andrews, Chief Judge.

In this declaratory judgment action, the trial court held that Andrew Henderson was not a “permissive driver” of a van belonging to his mother, Hattie Mae Henderson, and insured by State Farm Fire & Casualty Company (State Farm). The court granted summary judgment to State Farm and ruled the insurer had no duty to provide coverage for claims against Andrew arising from his use of the van intentionally to kill Cynthia Gaither, his children’s mother. Cynthia’s administrator, Amma Gaither, sued Andrew and Hattie Mae for wrongful death. The court found that although questions of fact existed as to whether Hattie Mae gave Andrew permission to use the van, his use of the van as a weapon exceeded the scope of that permission and excluded him from the policy’s definition of an insured. For reasons which follow, we must reverse.

We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the party opposing the grant of summary, judgment to determine whether the existence of a genuine issue of fact prevented the court from granting judgment as a matter of law. See Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). Hattie Mae Henderson’s van was insured by a State Farm policy which defined “insured” to include “any other person while using [the van] if its use is within the scope of consent of [Hattie Mae].” Such clauses are enforceable and are not against public policy. See Massachusetts Bay Ins. Co. v. Wooten, 215 Ga. App. 386, 387 (1) (450 SE2d 857) (1994). The use of a vehicle is not permissive when it “is being driven at a time or a place or for a purpose not authorized by the insured.” (Citation and punctuation omitted.) Select Ins. Co. v. Register, 192 Ga. App. 145, 147 (384 SE2d 238) (1989).

Andrew apparently had a history of drug or alcohol abuse. On the day in question, Hattie Mae drove Cynthia in the van to Andrew’s house. As the women arrived and exited the van, Andrew told Cynthia to go across the street and retrieve her mail from a neighbor. He told his mother to leave the van running, as he wanted to check the “fluids.” When Cynthia walked across the neighbor’s yard, Andrew jumped in the van, drove across the street and through a fence, and ran over Cynthia in the neighbor’s yard. He continued a short distance down the street, turned around, returned, and ran over her again. Cynthia died from Andrew’s repeated violent attacks with the van. He later pleaded guilty to felony murder, with aggravated assault as the underlying felony.

The trial court found, and the record reflects, that Hattie Mae gave conflicting testimony regarding whether Andrew had permission to drive the van. In her deposition she testified that she had stopped allowing Andrew to use the van because he had stolen it and tried to sell it and that she did not know he was going to drive it away. At other places in her deposition, however, Hattie Mae states that Andrew had permission to use the van that day, that when he drove off with it he told her he was doing so “for the purpose of doing something with the oil or belts or hoses,” and that although she did not know he was going to drive it, it was permissible for him to do so. Because Hattie Mae is not a party to the declaratory judgment action, her conflicting testimony on the issue of permission may not be construed against her. English v. Crenshaw Supply Co., 193 Ga. App. 354, 359 (2) (387 SE2d 628) (1989). The trial court correctly concluded that genuine issues of fact remain regarding whether Hattie Mae gave Andrew permission to drive the van he used to kill Cynthia.

The court went on to determine, however, that Andrew exceeded the scope of permission as a matter of law when he used the vehicle as a weapon to murder his wife. Given the conflicting evidence before the trial court, that conclusion was error. The circumstances of this violent attack and Andrew’s plea of guilty but mentally ill to an intentional, malicious crime established that he intended to inflict injury. Gaither has produced no evidence to rebut that conclusion. See Merritt v. State Farm &c. Co., 218 Ga. App. 652, 653 (463 SE2d 42) (1995); State Farm &c. Co. v. Moss, 212 Ga. App. 326, 327-328 (441 SE2d 809) (1994); OCGA §§ 16-5-1 (b); 16-5-21 (a). But the fact that Andrew intended harm is not determinative. The policy apparently insures claims arising from both accidental and intentional injury by vehicle. See Martin v. Chicago Ins. Co., 184 Ga. App. 472, 474 (361 SE2d 835) (1987). Moreover, the Supreme Court has determined that a permissive “use” of a vehicle is the use of a vehicle for a purpose not prohibited by the owner and “cannot reasonably relate to the particular manner of its operation. At most it could relate only to whether or not permission to operate the vehicle had been given.” Strickland v. Ga. Cas. &c. Co., 224 Ga. 487, 490 (2) (162 SE2d 421) (1968). As the court there stated, “if the named insured permitted the use of the vehicle and at the same time prohibited its negligent or unlawful operation, it would defeat the very purpose of the policy.” Id. Therefore, the fact that Andrew intentionally drove the vehicle into Cynthia does not require the conclusion that he acted outside the scope of permission.

Hattie Mae Henderson’s vague and contradictory testimony could potentially allow a jury to conclude she placed no limits on Andrew Henderson’s use of the van. The parties have produced no testimony from Andrew indicating whether or not he had permission to use the vehicle. Therefore, a jury must determine whether, at the time of the injury, he was using the vehicle “within the scope of consent” granted by Hattie Mae. Compare Register, supra (employer specifically forbade personal use of vehicle); Barfield v. Royal Ins. Co. of America, 228 Ga. App. 841 (_SE2d_) (1997) (employer expressly forbade use of truck after consumption of alcoholic beverages).

Decided October 27, 1997

Reconsideration denied November 13, 1997

Richard E. Stark, for appellants.

Fortson, Bentley & Griffin, J. Edward Allen, Jr., Blasingame, Burch, Garrard, Bryant & Ashley, Andrew J. Hill III, Milton F. Eisen- , berg II, William S. Cowsert, for appellee.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       Gaither’s suit claims Hattie Mae negligently entrusted the van to Andrew, an issue not material to this declaratory judgment action.

       In its brief, State Farm also references a transcript of Hattie Mae Henderson’s statement to an investigating police officer, which she made seven days after the incident. Although her statements to the officer are not material to our decision, we note that this transcript, though sworn to by the officer as accurate, is pure hearsay. Hattie Mae is not a party to this case, and her statement does not appear to be part of the res gestae. See Perez v. Malhenzie, 165 Ga. App. 520, 521 (1) (300 SE2d 226) (1983).

       Neither party has pointed to any “intentional acts exclusion” contained in the policy language. Compare Martin, supra.


author: Beasley, Judge.

text:
    A97A2150.
    BARTOW COUNTY BOARD OF EDUCATION v. RAY.
    (494 SE2d 29)
   Beasley, Judge.

This appeal is from the denial of a workers’ compensation subro-gation lien asserted by an employer pursuant to OCGA § 34-9-11.1.

On February 24, 1994, Linda Ray was injured in a motor vehicle collision that occurred in the course of her employment as a school bus driver for the Bartow County Board of Education. Bartow County paid her $39,926.20 in workers’ compensation benefits. Ray later sued both the driver and the owner of the other vehicle in tort, and Bartow County intervened to assert its subrogation lien as permitted in OCGA § 34-9-11.1.

At trial, Ray sought over $900,000 in damages for past and future lost wages, medical expenses and pain and suffering, but the jury returned a general verdict in her favor for only $175,000. Neither Bartow County nor any other party requested a special verdict. Bartow County presented no evidence at trial, and before entry of judgment it showed only the amount of workers’ compensation benefits Ray received, compared to the amount of special damages proven at trial and the amount of the verdict.

Emphasizing that an employer’s right to recover a subrogation lien under the statute depends upon the injured employee first being fully and completely compensated and that the employer has the burden of establishing such, the trial court concluded that, absent a special verdict or some evidence of the jury’s intent other than the amount of workers’ compensation benefits compared to the amount of the general verdict, it was unable to determine whether Ray had been so compensated. Finding that Bartow County failed to establish that the jury’s award fully and completely compensated Ray, the court denied the subrogation lien.

Bartow County contends that the trial court erred in requiring a special verdict, because Ray only demonstrated special damages of $34,984.42 in medical expenses and $19,455.54 in lost wages, and common sense dictates a finding that the jury’s award of $175,000 fully and completely compensated her. It argues that where the award exceeds the amount of special damages, a presumption arises that the award also fully and completely compensates for noneco-nomic losses, else a claimant could easily defeat an employer’s subro-gation lien by inflating the prayer for damages and thereby frustrate the legislative intent behind the statute.

OCGA § 34-9-11.1 (a) allows an employee, for whom workers’ compensation is payable, to pursue a third-party tort action for damages against the tortfeasor. Under OCGA § 34-9-11.1 (b), the employer has a subrogation lien for any benefits paid the employee and may intervene in such an action to protect and enforce such a lien. “[T]he employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.” Id.

The statute was enacted to allow an employer to recover the amount of workers’ compensation benefits paid out, but a primary legislative concern was that the injured employee first be made whole. Cole, Review of Selected 1992 Georgia Legislation: Labor & Industrial Relations, 9 Ga. State L. Rev., pp. 285, 293, n. 65 (1992). That concern is consistent with Georgia public policy that an insurer cannot seek subrogation unless and until its insured has been completely compensated for his or her losses. See Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997). The statute prescribes no method by which an employer can establish that a workers’ compensation recipient has been fully and completely compensated by a recovery from a third-party tortfeasor. As previously suggested in Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27 (464 SE2d 7) (1995), utilization of a special verdict form may be the most practical solution.

“Verdicts shall have a reasonable intendment and shall receive a reasonable construction.” OCGA § 9-12-4. Applying that principle in a workers’ compensation subrogation context, whether a claimant has been fully and completely compensated is easily determined where a general verdict awards less than the proven economic losses, or where the verdict awards exactly the amount of damages sought. A claimant would not be fully compensated for all losses in the former situation but would be in the latter. But where the jury awards more than the amount of economic losses and less than the noneconomic losses claimed, as in this case, reference to the general verdict alone is likely to be inadequate because of the impossibility of determining what portion of the award applied to economic losses and what portion applied to noneconomic losses.

Decided October 27, 1997

Reconsideration denied November 13, 1997

Although it is possible the jury intended first to award Ray all of her economic losses, with the remainder for pain and suffering, it is equally possible the jury intended most of the award to compensate for pain and suffering. The latter scenario would not leave Ray fully and completely compensated for her economic losses. Further, the tortfeasor in this case contested the causation of Ray’s damages and attempted to show that some damages were attributable to injuries she sustained in a previous accident. Given that circumstance, reference to the general verdict alone likewise cannot rule out the possibility that the jury reduced its award based on that defense.

No presumption of full and complete compensation arises merely from the fact that the award exceeds the amount of workers’ compensation benefits received or the amount of economic damages proven. To conclude otherwise would in effect relieve the subrogee employer of its burden to establish that the injured employee has been fully and completely compensated. Of course, the prayer for damages is not dispositive on the issue of whether the plaintiff was fully and completely compensated because a plaintiff could be in error or could defeat a subrogation lien by inflating the prayer for damages. The amount of damages claimed is merely a factor in determining the issue of full and complete compensation.

In the absence of some other evidence of the jury’s intendment, the record fails to establish that Ray has been fully and completely compensated for all economic and noneconomic losses. OCGA § 34-9-11.1 does not require use of a special verdict form, but its use would have given to the employer the answer it is now impossible to ascertain.

The trial court properly denied Bartow County’s subrogation lien.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

Goldner, Sommers, Scrudder & Bass, Alfred A. Quillian, Jr., Jane C. Taylor, for appellant.

Jeffrey S. Gilbert, for appellee.