author: Banke, Presiding Judge. Beasley, Judge,

text:
    76425.
    MR. PRIDE OF ATLANTA, INC. et al. v. METROPOLITAN PROPERTY & LIABILITY INSURANCE COMPANY.
    (371 SE2d 211)
   Banke, Presiding Judge.

Mr. and Mrs. Eldon Fritz were struck and killed by an automobile on the premises of a “Mr. Pride” car wash which, for purposes of this appeal, is assumed to have been owned and operated by the appellants. The automobile, which was owned by a third party, had just been pulled mechanically through the car wash tunnel and was being driven to the “drying bay” by a Mr. Pride employee when the accident occurred. The Fritz’s surviving children brought a wrongful-death action against the appellants, who, in turn, filed a third-party complaint against the insurer of the automobile in question, appellee Metropolitan Property & Liability Insurance Company. Metropolitan denied any obligation under the policy, based on the applicability of an “automobile business” exclusion contained therein. Cross-motions for summary judgment were filed on this issue, and the trial court granted Metropolitan’s motion while denying the appellants’ motion. This appeal followed.

The exclusion provided as follows: “We do not cover . . . (e) bodily injury or property damage arising out of automobile business operations.” The term “automobile business” was elsewhere defined in the policy as follows: “ ‘Automobile business’ means the business or occupation of selling, leasing, repairing, servicing, storing or parking motor vehicles or trailers.” Held:

1. Pretermitting consideration of appellants’ contention that the exclusion contravenes public policy by purporting to relieve the insurer of its obligation to provide the minimum liability insurance coverage required by law, we hold that the exclusion is not applicable by its terms. The only one of the categories listed in the policy’s definition of “automobile business” which would even arguably encompass the operation of a car wash is that of “servicing” motor vehicles. While the dictionary definition of the verb, “service,” includes “to repair or provide maintenance for,” (Webster’s Third New International Dictionary, Unabridged (1981 ed.)), it does not include cleaning or washing.

It is a well-settled principle of Georgia law that any ambiguity in an insurance policy will be strictly construed against the insurer. See Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983). Such construction is particularly applicable in the case of exceptions, limitations, and exclusions to coverage, on the theory that the insurer, having extended coverage by language which would otherwise encompass the loss, may reasonably be charged with the duty of setting forth any limitations on that coverage in clear and explicit terms. Id. See also U. S. Fidelity & Guar. Co. v. Gillis, 164 Ga. App. 278, 281 (296 SE2d 253) (1982).

Had the appellee insurer wished to exclude from the ambit of the coverage offered by its policy losses arising from the operation of a car wash, it could easily have done so simply by adding the words “cleaning” and/or “washing” to the list of activities subsumed within its definition of “automobile business.” Because those activities were not expressly included in the appellee’s definition, it is at best unclear whether the operation of a car wash is encompassed by the exclusion. It follows that the exclusion must be considered inapplicable to the plaintiffs’ claim.

Metropolitan’s reliance upon Sanders v. Liberty Mut. Ins. Co., 354 F2d 777 (5th Cir. 1965), as authority for a contrary construction of the exclusion is misplaced for at least two reasons. First, that decision was based on application of Alabama law, and, second, the business involved there was a “service station,” which, presumably, provided at least some automobile maintenance and repair services to its customers.

2. It being apparent from the briefs of the parties that the only issue involved in either of the motions for summary judgment was the applicability of the policy exclusion, we hold that the trial court erred in denying the appellants’ motion for summary judgment as well as in granting Metropolitan’s motion.

Judgment reversed.

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

Beasley, Judge,

I respectfully dissent. The business of a car wash service is to provide maintenance for automobiles. Automobile maintenance includes keeping the vehicle clean. It is common knowledge that such type maintenance protects the finish; it makes more than an aesthetic difference. The exterior as well as the interior of a car and its operating mechanisms require maintenance. Here the car was not only being washed but also waxed, vacuumed, and filled with gas. Particularly since the exclusion is expressed in a comprehensive serialization of various aspects of that segment of American business which is related to motor vehicles and trailers, and each aspect is one which would embrace a number of different establishments, the term “servicing” should not be construed to excise car-washing from its common meaning. Just because the business specialized in cleaning rather than offer the full range of service, including washing which is provided by a service station, does not render it any less the business of “servicing.” See Haley v. State Farm &c. Ins. Co., 130 Ga. App. 258, 259 (202 SE2d 838) (1973). Upon analysis, the term is not ambiguous.

I agree with the trial court that the insurer did not contract to be liable for injuries arising out of the operation of the automobile by the employee of the car-wash enterprise while it was being serviced, which process it was still in at the time of the incident.

That being the case, it would become necessary to consider whether this exclusion from liability coverage is contrary to public policy, as urged by appellants, and thus unenforceable. It would appear not, as it does not disserve the purposes identified in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 341 (329 SE2d 136) (1985) or the expression in Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692 (335 SE2d 186) (1987). The legislature has not stated, and the Supreme Court has not held, that all exclusions are invalid, or that all injuries and damages arising out of the use of the covered vehicle, regardless of who was operating it or in what context or for what purpose, are invalid. Each exclusion case must be evaluated individually. Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987).

In the circumstances here, which do not involve an uninsured motorist, nor any liability on the part of the car owner, the exclusion does not contravene public policy, as recourse is available against the business tortfeasor and parties related to her such as the business’ liability insurer. As said in Integon, supra at 693: “Expressions of the legislature through statutes are conclusive on the question of public policy; and courts cannot declare agreements or acts authorized by statute to be contrary to public policy. [Cit.]” Thus the auto insurer’s expressed intent in this case, not to cover the auto when it is turned over to the exclusive control of an establishment in the specified automobile industry businesses, should be honored.

I am authorized to state that Chief Judge Birdsong, Judge Carley, and Judge Sognier join in this dissent.

Decided June 14, 1988

Rehearing denied July 7, 1988

Kent T. Stair, Douglas A. Wilde, for appellants.

W. Wray Eckl, Debra L. Mixon, for appellee.


source: Caselaw Access Project

author:
Banke, Presiding Judge.
      Beasley, Judge,

license: Public Domain

text:
    76056.
    PATTERSON v. BUTLER et al.
    (371 SE2d 268)
   Banke, Presiding Judge.

The appellant filed suit against the five members of the Clayton County Board of Commissioners, the Solicitor of the Clayton County State Court, a Clayton County magistrate, and various Clayton County administrative officials and police officers, including the director of the police department, alleging that they had engaged in a conspiracy to close a lounge which he operated by subjecting him to unfounded charges of license violations and to other acts of harassment. During the pendency of the action, the appellant filed two separate motions seeking the recusal of the trial judge on the ground that his impartiality was called into question by certain actions and associations stemming from his past service as Clayton County District Attorney. The trial judge denied these motions summarily, without referring them to another judge, but certified the denial of the second motion for immediate review. The case is currently before us pursuant to our grant of the appellant’s application for an interlocutory appeal.

In his first recusal motion and supporting affidavit, the appellant asserted that because the judge, while serving as district attorney, had utilized the services of county police personnel in seeking restraining orders against such activities as rock concerts and bingo games, reasonable persons might question his ability to preside impartially over a suit to recover damages against other county officials and police officers based on their attempts to restrict similar activities in connection with the operation of his (the appellant’s) lounge, where such forms of entertainment as pool tables, video games, and live rock music had been offered. In his second recusal motion, the appellant challenged the judge’s impartiality on the basis of his past professional, political, and personal association with one of the defendants, the current director of the police department, who had served as chief investigative assistant for the district attorney’s office during the judge’s tenure there and had worked in the judge’s political campaigns during that period. Held:

1. “To warrant disqualification of a trial judge the affidavit supporting the recusal motion ‘must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.’ Berger v. United States, 255 U. S. 22, 33-34 (41 SC 230, 65 LE 481) (1921).” Jones v. State, 247 Ga. 268, 271 (4) (275 SE2d 67) (1981), cert. den. 454 U. S. 817 (102 SC 94, 70 LE2d 86). “[W]hen a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge’s duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse. . . . [I]t is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge. [Cit.]” State v. Fleming, 245 Ga. 700 (1), 702 (267 SE2d 207) (1980). See also Hardman v. Hardman, 185 Ga. App. 519, 520 (3) (364 SE2d 645) (1988).

The appellant does not suggest that the trial judge harbors any personal bias or prejudice against him, nor that he has any financial interest in the outcome of the case, nor that he has a prohibited familial relationship with any party to the case. See generally Canon 3 C (1) of the Code of Judicial Conduct, 231 Ga. 897, 900. Instead, the appellant calls the judge’s impartiality into question solely on the basis of allegations that his past activities and associations while serving as district attorney involved many of the police officers and county officials who are named in the complaint as defendants. There is no suggestion that any of these activities and associations involved the events giving rise to this litigation, nor is there any suggestion that the judge has otherwise had any involvement or connection with the events at issue in this case. Under such circumstances, we cannot agree that the judge’s past service as district attorney is sufficient to call into question his ability to preside impartially over the present case. Accord Hall v. Hall, 242 Ga. 15 (247 SE2d 754) (1978) (appearance of impropriety not created by the mere fact that one of the parties to the litigation is or has been represented by a former law partner of the judge). Indeed, were we to accept the appellant’s reasoning, the judge would be required to recuse himself, or at least refer the issue of his impartiality to another judge, in all criminal proceedings, particularly those in which county police officers were involved. Believing that such a result would be unreasonable in the extreme, we hold that the plaintiffs two recusal motions were properly denied.

2. The appellant’s remaining enumerations of error were not within the scope of his application for interlocutory review and consequently will not be addressed.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

Appellant’s first motion to recuse accompanied by his own affidavit was filed on the basis that the judge’s impartiality “might reasonably be questioned” because court records revealed that while he was district attorney of Clayton County he prosecuted cases in which he frequently utilized Clayton County police officers as witnesses and investigators; that in one of these cases he sought a restraining order to prevent continuation of rock concerts at Lake Spivey Amusement Park; that in another case he sought to restrain the operation of bingo games; and that since appellant offered pool tables, video games and occasional rock concerts at his lounge, reasonable persons could well believe that he had no chance for a fair trial before a judge who as district attorney had been so extensively involved with the defendants in the plaintiff’s action. The judge denied the motion, finding that it was not timely filed and was insufficient as a matter of law to authorize recusal.

After undertaking discovery, appellant filed a second motion to recuse and affidavit against the judge, asserting essentially the same grounds and also challenging the judge’s impartiality due to his past close professional, political and personal association with the defendant Director of Police Service, who had been his chief investigative assistant when the judge was district attorney. The second motion was also denied on the ground that the facts alleged were insufficient to authorize recusal.

The only ground pertinent is whether the judge’s impartiality might reasonably be questioned. See Birt v. State, 256 Ga. 483 (4) (350 SE2d 241) (1986); Moon v. State, 154 Ga. App. 312 (4) (268 SE2d 366) (1980).

USCR 25.2 (253 Ga. 841) is a restatement of the principles set forth in State v. Fleming, 245 Ga. 700, 702 (1) (267 SE2d 207) (1980). OCGA § 15-1-8 and Canon 3 C of the Code of Judicial Conduct (251 Ga. 897, 900) also establish the grounds for disqualification of a judge. The commentary following subsection (1) (b) of Canon 3 pinpoints the heart of the matter here when it refers to the judge’s prior activities and associations as a lawyer which “might reasonably” raise question as to impartiality in the current proceeding. Canon 2 (251 Ga. 897) likewise provides that judges must avoid all “appearance of impropriety.” Thus “[i]t is not necessary that there be shown ‘any actual impropriety on the part of the trial court judge. The fact that his impartiality “might reasonably be questioned” suffices for his disqualification.’ King v. State, 246 Ga. 386, 390 (7) (271 SE2d 630) (1980).” Birt v. State, 256 Ga. 483, 486, supra. Accord Isaacs v. State, 257 Ga. 126 (355 SE2d 644) (1987).

The conundrum posed by a motion to recuse is, in effect, whether a judge can judge himself. In cases where a judge’s impartiality might reasonably be questioned, which question embraces subjective rather than merely objective facts, he cannot. Whether his past relationships as alleged would affect his impartiality in the eyes of the parties and of the public would be difficult, if not impossible, for him to judge from a distance.

Decided July 7, 1988.

James T. Patterson, Sr., pro se.

Gary H. Brakefield, for appellees.

The Supreme Court in Isaacs has determined that a challenged judge’s “efforts at defending himself against a motion to recuse [himself] will inevitably create an appearance of partiality [in that] ... he becomes an adversary of the movant for recusal. ... We recognize that judges may be sorely tempted to respond to motions to recuse which they perceive as gratuitously defamatory. We also recognize that a judge who actively resists recusal may be fully capable of evenhandedly presiding if the motion is denied. Nevertheless, we think that these factors are heavily outweighed by the necessity of preserving the public’s confidence in the judicial system.” Id. at 128.

The facts alleged in appellant’s motions and affidavits, taken in the context of the nature of his lawsuit, are legally sufficient to raise at least plausibly an appearance of impropriety so as to require the trial judge to assign the motion to another judge for a hearing and ruling on the matter. Isaacs, supra; Birt, supra at (3) and (4). Compare Bouldin v. State, 179 Ga. App. 394 (2) (346 SE2d 871) (1986); Stevens v. Morris Communications Corp., 170 Ga. App. 612 (317 SE2d 652) (1984). If “[t]he fact that a judge’s impartiality might reasonably be questioned is sufficient for disqualification,” as cited in Isaacs, supra at 127-128, then surely it is sufficient as a preliminary for at least deferring to another judge the determination of that question. Accordingly, the order should be reversed and the case remanded for proceedings consistent with what is outlined here, as well as USCR 25.3 and 25.5.

I am authorized to state that Judge Sognier joins in this dissent.


author: Sognier, Judge.

text:
    76435.
    In the Interest of S. D. H.
    (371 SE2d 149)
   Sognier, Judge.

A petition of delinquency was filed against appellant alleging that he committed the offenses of conspiracy to commit murder, aggravated assault, theft by taking — motor vehicle, and theft by taking. At a hearing to determine if the case should be transferred to superior court for trial as an adult, the juvenile court, pursuant to a motion by appellant, dismissed the charge of conspiracy to commit murder. After an evidentiary hearing the juvenile court ordered the case transferred to superior court, which appellant alleges was error. He argues that the State did not meet its burden of showing that appellant was not amenable to treatment within the juvenile court system, and thus, the State was required to show that the interest to society outweighed the amenability factor. Appellant argues that the State did not meet that burden. We do not agree.

OCGA § 15-11-39 provides, in pertinent part: “(a) After a petition has been filed alleging delinquency based on conduct which is designated a crime . . . , the court before hearing the petition on its merits may transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if: (1) A hearing on whether the transfer should be made is held in conformity with Code Sections 15-11-28, 15-11-30, and 15-11-31; ... (3) The court in its discretion determines there are reasonable grounds to believe that: (A) The child committed the delinquent act alleged; (B) The child is not committable to an institution for the mentally retarded or mentally ill; and (C) The interests of the child and the community require that the child be placed under legal restraint and the transfer be made; . . "

In interpreting this statute our Supreme Court held: “Former Georgia Code Annotated § 24A-2501 (a) (3) (ii) required the juvenile court to make a determination that there were reasonable grounds to believe that the child was not amenable to treatment or rehabilitation through available facilities. Former Subsection (a) (3) (ii) was deleted by 1978 Ga. Laws, p. 1758. However, we have held that the transfer statute continues to subsume ‘the juvenile’s amenability to treatment within the concept, “the interest of the child,” and authorizes a juvenile court to transfer to the superior court a juvenile who is amenable to treatment if the juvenile court finds that the amenability factor is outweighed by the interests of the community in processing the child as an adult.’ [Cit.] Hence, there has been preserved the requirement that the state carry the burden of showing that the child is not amenable to treatment or rehabilitation. [Cit.]” In re E. W., 256 Ga. 681, 682 (2) (353 SE2d 175) (1987).

At a hearing on this issue the evidence disclosed that appellant planned to kill his stepfather, but “chickened out” and instead shot his stepfather through the hand and the fleshy part of the arm with a pistol taken from his gunrack. Appellant and his friend David Randall, who was with appellant at the time, then went to Randall’s home, where he got the keys to the car without permission. Appellant and Randall then departed in the car intending to drive to Vermont, but were apprehended in Virginia and returned to Georgia.

Both the chief investigator and the probation officer for the juvenile court testified that appellant’s case should be transferred to the superior court for trial. The probation officer testified that based on his experience the prospects for rehabilitation of a seventeen-year-old are low (appellant turned seventeen the day after the hearing), and appellant’s mother and stepfather both stated that appellant could not return home. The probation officer based his recommendation on the fact that appellant was on probation as a runaway, and he had dropped out of school. The probation officer testified that he felt appellant would run away again if kept in the juvenile system.

Dr. Frederick Brennan, a psychologist with the Georgia Mental Health Institute, testified that based on his examination and testing of appellant, he is not committable to an institution for mentally retarded or mentally ill persons. Dr. Brennan also testified that appellant demonstrated no grief or remorse, and the best recommendation Dr. Brennan could make was that appellant be placed in the Outdoor Therapeutic Program. In this regard, the director of that program testified that children in the program live outside in the North Georgia mountains in tents constructed by the boys themselves. Therefore, they have tools available such as axes, drawblades, and knives, which they are allowed to carry with them. The director testified that there is no security on a twenty-four-hour basis, and it would be simple for the boys in the program to run away. Finally, the director testified that the program would not accept a seventeen-year-old with a case like appellant’s.

Based on this evidence, the court found (1) that there are reasonable grounds to believe that appellant committed the delinquent acts alleged; (2) that appellant is not committable to an institution for the mentally retarded or mentally ill; (3) that it is in the best interest of appellant and the community that he be placed under legal restraint and transferred to the Superior Court of Gwinnett County, Georgia, for trial as an adult; (4) that there was evidence that appellant is not amenable to treatment or rehabilitation through available facilities of the Juvenile Court; and (5) that any likelihood of amenability is outweighed by the interests of the community in processing appellant as an adult. Thus, the court made all findings necessary to exercise its discretion under the provisions of OCGA § 15-11-39 to transfer appellant’s case to the superior court for. trial as an adult.

Under all the facts in this case we find that the State met its burden of establishing that appellant is not amenable to treatment or rehabilitation in the juvenile system, and the Juvenile Court of Gwinnett County did not abuse its discretion by transferring appellant’s case to the Superior Court of Gwinnett County for trial as an adult for the offenses charged. In re E. W., supra.

Judgment affirmed.

Been, P. J., and Carley, J., concur.

Decided July 7, 1988.

Lawrence L. Washburn III, for appellant.

Robert L. Waller III, Solicitor, for appellee.


author: McMurray, Presiding Judge.

text:
    76522.
    CHAPMAN v. THE STATE.
    (371 SE2d 273)
    Decided July 7, 1988.

      Walton Hardin, for appellant.

      Dennis C. Sanders, District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant appeals his conviction of forgery in the first degree. Held:

“A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.” OCGA § 16-9-1 (a). In the case sub judice, the evidence adduced at trial showed that Billy McAvoy, defendant’s employer, gave defendant a $50 check made out to Ansley Garage and drawn on Mr. McAvoy’s business account. Mr. McAvoy instructed defendant to deliver the check to Ansley Garage to satisfy an outstanding debt. Defendant did not comply and instead endorsed the back of the check, “Ansley Garage,” and presented the instrument to a clerk at “Fareway Builders Supply” in Washington, Georgia as part consideration for “a small item . . .” of merchandise. Having reviewed the evidence in the light most favorable to the jury’s verdict, we find the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of the offense of forgery in the first degree beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Consequently, defendant’s argument that “[t]he Trial Court erred in failing to grant [his] Motion for a New Trial . . .” is without merit.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76538.
    MURRAY v. THE STATE.
    (371 SE2d 272)
    Decided July 7, 1988.

      Carl Greenberg, for appellant.

      Robert E. Wilson, District Attorney, J. Michael McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Via indictment, defendant was charged with burglary, but was convicted of criminal attempt (to commit burglary). Defendant’s motion for a new trial was overruled and he appeals. Held:

In his sole enumeration of error, defendant asserts the general grounds. In this regard, he argues that the evidence was insufficient to demonstrate that he attempted to enter the victim’s dwelling with the intent to commit a theft therein.

The evidence shows that at about 11:00 p.m. on the night in question, the victim, a female, was home alone because her husband was in the hospital. Defendant knocked on the front door; the victim observed him through the peephole. The victim did not answer the door but returned to her room. Defendant knocked on the front door again. The victim came to the door and again observed defendant through the peephole. When the victim did not answer, defendant went to the back door where he began to knock. Finally, defendant broke a window in the back of the victim’s apartment and attempted to crawl through the opening.

We think these facts were sufficient to enable any rational trier of fact to find defendant guilty of the offense of criminal attempt (to commit burglary) beyond a reasonable doubt. Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209); Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174). “Whether the defendant entertained an intent to commit a felony [or a theft] after entering is a matter for the jury to say, under the facts and circumstances proved. Coney v. State, 125 Ga. App. 52 (1b) (186 SE2d 478). As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. Flewellen v. State, 77 Ga. App. 804 (49 SE2d 921). And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of [criminal attempt to commit] burglary improper. [Cits.]” Poole v. State, 130 Ga. App. 603, 605 (203 SE2d 886).

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    76879.
    GLAD v. SCOTT.
    (371 SE2d 271)
   Deen, Presiding Judge.

C. W. Scott died testate in 1968, leaving his widow a life estate in his Gordon County, Georgia farm, and directing that upon her death the farm should be sold and the proceeds divided equally among their seven children. Scott’s son-in-law, Billy L. Gurley, was named as executor of the estate but predeceased the widow, thereby leaving a vacancy upon her death in 1987.

The seven children were sharply divided as to who should be appointed as administrator of the unadministered portion of the estate; that is, the farm. Two of the siblings, appellant Molean Scott Glad and Kenneth Scott, applied for appointment as administrators with the will annexed, pursuant to OCGA §§ 53-6-24 and 53-6-26. Two of the other five siblings, with the written and notarized consent of the remaining three, filed a caveat, pursuant to OCGA § 15-9-88, stating the grounds for their opposition to the appointment of the two applicants, and nominating in their stead appellant Waymond Scott and Jerelene Scott Gurley, pursuant to OCGA § 53-6-24 (3). The judge of the probate court appointed as co-administrators c.t.a. the attorneys who represented the opposing parties. Appellee Waymond Scott and Jerelene Scott Gurley filed an application for a de novo appeal in the Superior Court of Gordon County, which found that no proper selection of administrator(s) had been made in the probate court and appointed Waymond Scott administrator de bonis non c.t.a. During the hearing Clinton Scott, one of the three siblings who had joined in the nomination of Jerelene Gurley and Waymond Scott, stated that he no longer wished to nominate either of these two siblings but would acquiesce in the appointment of either.

Molean Scott Glad and Kenneth Scott now appeal from the appointment of Waymond Scott, enumerating as error (1) the court’s alleged abuse of discretion in appointing a caveator as administrator “without any evidence to support this decision”; and (2), (3) the court’s failure to appoint applicants as administrators when they had filed a sworn application which was subsequently opposed by an unsworn caveat allegedly failing to show the standing of the caveators or to present evidence in support of the caveators’ allegations. Held:

1. We find no prohibition of the appointment of a caveator as administrator. OCGA § 53-6-24; see also OCGA §§ 53-6-29; 53-6-30; 53-6-31. Appellant’s first enumeration is without merit.

2. As to the second and third enumerations of error, the law is silent as to any necessity vel non that a caveat be sworn; the sole statutory requirement is that it be written. The caveat at issue here was in writing, and no abuse of discretion was involved. OCGA § 15-9-88. Moreover, the record reveals that the caveators did show their standing as heirs at law and beneficiaries of the will, and also presented evidence to support the objection to the appointment of applicants, including, inter alia, the fact that Kenneth Scott was in bankruptcy at the time the cause of action arose. Neither of these two enumerations of error has merit.

Decided July 7, 1988.

Douglas R. X. Padgett, for appellant.

David K. Smith, J. C. Maddox, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Benham, Judge.

text:
    75932.
    BROOKHAVEN ASSOCIATES v. DeKALB COUNTY et al.
    (371 SE2d 231)
   Benham, Judge.

Brookhaven Associates appeals from the judgment in a condemnation action after a jury found that $775,000 was just and adequate compensation for the property that DeKalb County took for the construction of a MARTA station. Brookhaven contends that the trial court erred in refusing to admit two pieces of evidence at trial. We disagree and affirm the judgment.

1. At trial, MARTA called its appraiser of the condemned property to testify about his findings. He had concluded that as of March 31, 1983, the date of condemnation, the fair market value of the property was $4.65 per square foot. Brookhaven cross-examined him about that valuation and how it compared with an appraisal report he had prepared in 1974, in which he valued the parcel at $6.50 per square foot, and an appraisal he made in 1982, when he valued the property at $2.00 per square foot. The appraiser admitted to all of the valuations as stated, and did not say that those figures were inaccurate for those dates. When Brookhaven sought to have the actual 1974 appraisal report admitted into evidence so that it could be sent out with the jury in its deliberations, appellees objected, and the trial court ruled in appellees’ favor. Brookhaven cites this ruling as error, arguing that the report was a prior inconsistent statement and that under Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), and its progeny, the document itself was admissible. We find no error.

Brookhaven mistakenly characterizes the 1974 report as a prior inconsistent statement. A prior inconsistent statement is one that is contradicted by a later statement on the same issue. See, e.g., Lockhart v. State, 169 Ga. App. 931 (1) (315 SE2d 455) (1984), in which the State impeached a witness who testified at trial that certain persons were not involved in a burglary on a particular day by introducing a tape recording of the witness’ prior statement that those persons were involved in the same burglary. The 1974 report Brookhaven sought to introduce did not contradict any statement that the appraiser had made at trial about the property’s 1974 value; the report merely offered a property value different from the value assigned in 1983, the time of the taking. Since there were two different time frames involved, 1974 and 1983, and two different sets of circumstances existing when the appraiser determined the 1974 and 1983 values, we must conclude that the 1974 report was not a prior inconsistent statement, and therefore was not admissible for impeachment purposes or as substantive evidence under Gibbons. “[T]he only question for decision in this case was the value of the property at the time of its actual taking, and the jury could not consider the value of the property prior to the actual taking, which both parties admitted was [March 31,1983].” City of Atlanta v. West, 123 Ga. App. 255 (1) (180 SE2d 277) (1971). Since the 1974 report was not admissible as a prior inconsistent statement, and the jury could not otherwise consider it as evidence of the value of the property prior to the date of taking, the report was not relevant and the trial court did not err in refusing to admit it as evidence. “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1.

2. Brookhaven also claims that the trial court erroneously excluded certain testimony concerning what MARTA representatives told Brookhaven’s representatives about the possibility of preserving Brookhaven’s air rights over the condemned property. The contention is an inaccurate one. The testimony was discussed at the pre-trial conference, and when Brookhaven’s counsel specifically asked the trial court whether his client would be allowed to testify about the matter, the trial court responded that he would not, because the issue involved, whether MARTA had acted in good faith, had been decided in previous litigation. See Concept Capital Corp. v. DeKalb County, 255 Ga. 452 (339 SE2d 583) (1986). The trial court went on to say that “if you think at some point it becomes relevant, we can send the jury out and take it up then.” Although it argues in its brief that the testimony became relevant after the appraisal report was discussed at trial, Brookhaven did not cite us to nor did we find any part of the record showing that Brookhaven attempted to have the testimony in question admitted during the trial. In light of the pre-trial ruling, Brookhaven had the opportunity to raise the issue at trial. It chose not to do so. Since Brookhaven did not seek the trial court’s final ruling on the matter at the appropriate time, we cannot rule on whether the trial court properly or improperly excluded the evidence. When there is nothing in the record to support the contention of error, there is nothing presented to this court for review. Jackson v. Springfield, 172 Ga. App. 59 (1) (321 SE2d 802) (1984).

Decided June 23, 1988

Rehearing denied July 8, 1988

Henry R. Bauer, Jr., for appellant.

Charles N. Pursley, Jr., Thomas A. Bowman, for appellees.

Judgment affirmed.

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


text:
    75941.
    CURRIN v. SEABOARD SYSTEM RAILWAY, INC.
    (371 SE2d 142)
   Benham, Judge.

The issue presented is whether the trial court erred in granting partial summary judgment to Seaboard System Railway, Inc. (“Seaboard”) in a Federal Employers’ Liability Act (“FELA”) claim wherein a railway employee contends that the negligence of Seaboard caused his injury.

Since this matter is before the court on a review of the trial court’s grant of partial summary judgment, it is our duty to view the evidence in the light most favorable toward the party opposing the motion for summary judgment and give him the benefit of all reasonable inferences that can be drawn from the record. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). With this statement in mind, we now turn to the record, which consists of the pleadings, motions, briefs, appellant’s deposition, and the trial court’s order.

This action was filed in the State Court of Fulton County by Alvin Clinton Currin, who contends that as an employee of Seaboard he suffered two injuries for which he is entitled to damages. The first injury, a lumbar strain, which is not the subject of this appeal, occurred on August 29, 1985, near Hamlet, N. C., while Currin was helping other workers lift a cart weighing over 1,000 pounds. The second injury was sustained some five days later on September 3, 1985. After the first injury, appellant was taken by his supervisor to the nearby town of Hamlet, where a company doctor examined him and prescribed medication. He was instructed to return for another doctor’s visit on September 3, 1985, and placed on “light duty” status at his job. Appellant requested that he be allowed to see the company doctor in his home town of Henderson, N. C., since he was going home for the Labor Day weekend, but this request was denied and he was instructed to return to Hamlet, over 130 miles from his home, for the doctor’s visit. Since the first injury occurred shortly prior to the Labor Day weekend, appellant returned home for the holidays and returned to the railway camp site one day prior to the doctor’s visit. Being on “light duty” status he had no tasks to perform other than answering roll call while waiting in the vicinity until time to go to the doctor. On September 3, 1985, while Currin was climbing elevated steps in an attempt to enter a railway camp car, he contends that he experienced back pain which caused him to fall and injure his knee. He later brought this tort action against Seaboard under 45 USCA § 51 et seq., alleging that the company’s negligence caused his injuries on August 29 and September 3, 1985. The pertinent parts of his complaint allege that Seaboard was negligent in the following particulars: (1) failure to provide reasonably safe equipment; (2) failure to adequately supervise the manner and conditions of work; and (3) failure to provide a reasonably safe workplace. The trial court granted partial summary judgment to Seaboard on the September 3, 1985, injury and this appeal followed.

45 USCA § 51 (FELA) provides as follows: “Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”

While the FELA does provide for a cause of action against the employer for negligent conduct which causes an injury to an employee, the Act does not make the employer an insurer of the employee for any injury he receives. Seaboard &c. R. Co. v. Thomas, 125 Ga. App. 716 (1) (188 SE2d 891) (1972). Nevertheless, the employer has a duty to provide the employee a reasonably safe workplace which includes safe conditions, tools, facilities, and supervision. Headrick v. Kan. City &c. R. Co., 305 SW2d 478, 483 (Mo. 1957). That duty of providing a safe workplace also extends to providing a workplace which does not aggravate a pre-existing injury. Massimiani v. Monongahela R. Co., 339 FSupp. 832, 833 (W. D. Pa. 1972). A determination must be made as to whether the employer’s diligence was commensurate with the danger reasonably apprehended. Williams v. Atlantic &c. R. Co., 190 F2d 744, 747 (5th Cir. 1951).

In determining that no genuine material issue of fact remains as to the September 3, 1985, injury, the trial court relied on Brooks v. Southern R. Co., 178 Ga. App. 361 (343 SE2d 143) (1986). Appellee argues that the injury was not foreseeable; therefore, the trial court was correct in granting summary judgment.

“ ‘Under (the FELA) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. . . Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence.’ ” Cook v. Seaboard &c. R., 184 Ga. App. 838, 839 (363 SE2d 56) (1987), quoting Rogers v. Mo. &c. R. Co., 352 U. S. 500 (77 SC 443, 1 LE2d 493) (1957).

Decided June 24, 1988

Rehearing denied July 8, 1988.

Gary F. Easom, C. Michael Hardman, for appellant.

Paul Oliver, Leslie A. Dent, for appellee.

Appellant’s deposition was the only testimony submitted with regard to the motion for summary judgment, and appellant states in his deposition, although somewhat equivocally, that he was pressured by the doctor and his supervisor to accept the “light duty” status, and that even though he requested to go to the company doctor in his home town, he was forced to travel to Hamlet, N. C., a distance of some 130 miles, over his objection. He further testified that the company pressured him into staying in the camp car with the attendant hazard of climbing up stairs and that there was a failure to provide anyone to help him negotiate the stairs.

We are unable to agree with the trial court that under these circumstances, this court’s ruling in Brooks v. Southern R. Co., supra, would authorize the granting of summary judgment to the employer. In Fletcher v. Union Pacific R. Co., 621 F2d 902 (8th Cir. 1980), it was held that whether an assignment was negligent was a jury question. The same question exists in this case. Therefore, we must reverse the trial court’s grant of summary judgment as to the September 3, 1985, injury.

Judgment reversed.

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


author: Beasley, Judge.

text:
    76026.
    HILL et al. v. CENTURY 21 MAX STANCIL REALTY, INC. et al.
    (371 SE2d 217)
   Beasley, Judge.

Mr. and Mrs. Hill appeal the grant of summary judgment to individual and joint defendants Century 21 Max Stancil Realty, Inc., John Doe, d/b/a Century 21 and Herb Kruezburg in their suit in which they contend that defendants fraudulently induced them to enter a commercial real estate transaction by misrepresenting material facts related to the property’s zoning status.

The Hills alleged: Mr. Hill entered into a contract for certain real property, relying upon statements made to him by Kruezburg. Defendants through Kruezburg intentionally gave him false and misleading information, enticing him through fraud into the purchase of the property. Defendants assured Hill that the property had previously been zoned for commercial use and he would have no difficulty using the property for a used car lot. Defendants informed him that there was a small strip of property less than 50 feet wide which had to be rezoned but in no way would affect his use of the property for a used car lot nor his ability to obtain a commercial building permit. Relying on such information, Hill purchased the property through a sales contract contingent upon the property being zoned for the commercial use of a used car lot, seller to provide proof thereof. Hill closed on the property and, relying on the statements and assurances, applied for a building permit. It was denied because the property was not zoned for commercial use. Hill had to rezone the property, resulting in delayed construction. Because of the delay, Hill was unable to use materials he had planned to use and incurred additional expenses for substitution of other materials. Also, he was required to grant a right-of-way without compensation in order to obtain the rezoning. He lost business due to the delay in rezoning and constructing a building and moving his business to the new location. Hill lost 3,300 feet of his property valued at $30,000, plus $20,000 income; he incurred legal expenses in rezoning; and finally he also claimed punitive damages.

In granting summary judgment, the trial court determined that the evidence was undisputed that purchaser Hill accepted from defendants, as seller’s agents, a check payable to the county zoning department and thereafter closed on the property. It concluded that therefore, Hill waived any right he had under the contract pertaining to the rezoning requirement. The court further concluded that because the “selling” agent Kruezburg as well as the “listing” agent were employed by the seller, the selling-agent was a sub-agent of the seller and could not be a fiduciary upon whom the purchaser might justifiably rely, thus precluding an element of fraud.

Appellant contends that the trial court erroneously concluded 1) that he waived the conditions precedent in the sales contract by accepting a check for the application for rezoning at the closing; and 2) that because a selling agent is paid from proceeds of the seller, he is an agent employed by the seller and not by the purchaser and therefore cannot be a fiduciary upon whom the purchaser may justifiably rely. He argues that his reliance upon defendants was justified and that he did not waive the conditions precedent to the contract since he was misled as to what portion of the real property needed to be rezoned, that there was never a meeting of the minds.

1. “[A] waiver of conditions precedent can be implied by the conduct of the parties.” Royal Atlanta Dev. Corp. v. M. D. Hodges Enterprises, 141 Ga. App. 838 (1) (234 SE2d 676) (1977). Hill’s undisputed acceptance of the check for the rezoning application might well be interpreted as an intentional and knowledgeable waiver of the zoning condition stipulated in the contract. But whether or not Hill waived the zoning condition is not dispositive or even relevant to his claims against defendants. This is not a breach of contract action, but one for fraud. The claim is that Kruezburg misrepresented the zoning status of the property, i.e., that only a small triangle was not zoned commercial, so whether or not there was a waiver of the contractual provision has no bearing on the alleged misrepresentation.

Furthermore, the acceptance of the check does not raise any question of ratification of the alleged fraud because, while Hill knew at the closing that some of the land needed to be rezoned, his assertion is that the portion of land needing rezoning was also misrepresented.

2. The record shows without dispute that Kruezburg was indeed an agent of the seller by virtue of the agency of the listing agent, and that the trial court was not in error in determining that Kruezburg was not Hill’s agent and not in a fiduciary relationship with him. However, one may justifiably rely upon representations of even those who are not in fiduciary relationships with them. A fiduciary relationship is not an element of fraud but merely gives a special basis for reliance. Day v. Randolph, 159 Ga. App. 474, 475 (283 SE2d 687) (1981). Therefore, the court erred in determining that justifiable reliance, an element of fraud, was missing in plaintiffs’ action by virtue of the lack of a fiduciary relationship between Hill and Kruezburg. However, the evidence, construed most favorably for plaintiffs shows that this necessary component of an action for fraud; i.e., justifiable reliance, is totally lacking for another reason.

The gravamen of the dispute is what portion of land was represented as needing to be rezoned. There is no evidence whatsoever that plaintiffs attempted to ascertain for themselves the zoning status of the property prior to closing, even though plaintiffs allege the zoning status was critical to the purchase of the property.

Decided June 21, 1988

Rehearing denied July 8, 1988.

Russell L. Adkins, Jr., for appellants.

George H. Connell, Jr., for appellees.

The trial court accurately observed that Hill had a duty of due diligence which he must exercise. Lorick v. Na-Churs Plant Food Co., 150 Ga. App. 209, 210 (257 SE2d 332) (1979). While questions of due diligence often must be resolved by the trier of fact, that is not always the case. One may fail to exercise due diligence as a matter of law. See Bowen & Bowen v. McCoy-Gibbons, 185 Ga. App. 298, 303 (1) (363 SE2d 827) (1987). This is such a situation. Because plaintiffs failed to exercise due diligence, they were not justified in relying upon any zoning representations made by Kruezburg. “ ‘ “(W)hen the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.” [Cit.]’ [Cit.]” Lorick, supra at 210.

Inasmuch as there was no justifiable reliance, defendants were entitled to judgment in their favor as to the fraud claim as a matter of law. This is not altered by the fact that the trial court’s reasoning was not error-free. A judgment which is right for any reason will be upheld. Health Help Svcs. v. State Health Planning Agency, 174 Ga. App. 640, 641 (1) (329 SE2d 628) (1985).

In addition, the record being devoid of actionable fraud, we find no evidence of defendants’ bad faith and stubborn litigiousness in the transaction. OCGA § 13-6-11. Defendants were due summary judgment on these claims as well.

Judgment affirmed.

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


text:
    76112.
    HOWARD et al. v. JONES et al.
    (371 SE2d 196)
   Benham, Judge.

Appellant Nancy Howard was a victim of a motor vehicle collision involving her van, a Ford Bronco driven by appellee Cucci, and a tow truck driven by appellee Jones. The tow truck struck the rear end of the Bronco, which in turn struck the rear end of Mrs. Howard’s van. Mrs. Howard suffered injuries which she alleged resulted from the accident, and for which she and her husband sued appellees and their employers for damages. At the close of the evidence, the Howards moved for partial directed verdict against appellees on the issues of negligence and proximate cause, based on Davis v. Pachuilo, 169 Ga. App. 677 (314 SE2d 692) (1984). The trial court denied the motion. The jury returned a verdict in favor of the defendants, and the Howards filed this appeal, challenging the denial of their motion and the trial court’s giving of a charge on sudden emergency as to one of the defendant drivers.

1. According to the testimony adduced at trial, the accident occurred in the afternoon of January 13, 1984, on a busy street in Macon, Georgia. A drizzling rain had caused the roads to be slick. Mrs. Howard was driving her van in the left center northbound lane of Pio Nono Avenue, with her four-year-old son in a bed in the rear of the van. She came to a stop about four to five feet behind a vehicle that had stopped to turn left. Traffic was heavy and moving too quickly in the right-hand lane for Mrs. Howard to shift her vehicle to that lane, so she waited for the automobile in front of her to turn. She had her foot on the brake and the brake lights were operating properly. She had been stopped long enough for several cars to go by in either direction, and when she looked in her rearview mirror she saw the Bronco and the tow truck coming up behind her. Since they appeared to her to be going too fast to stop, she braced herself for an impact and told her son to do likewise. Her van was then struck by the vehicles, although she could not say for sure whether there was one impact or two. She was thrown against the front interior of the van, and her son was thrown from his bed in the rear of the van to the front of it.

Cucci, the Bronco’s driver, testified that he saw the van stopped in front of him with its brake lights on, and that he did not know of anything Mrs. Howard did that would have caused the collision. It was his position that he had also come to a stop behind the van, that he looked in his rearview mirror and saw the tow truck coming at him but could not get out of the way, and that, as a result, the tow truck struck his vehicle and knocked it into Mrs. Howard’s van. The police officer who filed the accident report testified that Cucci reported his speed as being 25 m.p.h. before he struck Mrs. Howard’s vehicle. The tow truck driver, Jones, testified that he saw Cucci’s vehicle in front of him and could see its brake lights; and that while Jones was traveling at about 25 m.p.h., a small brown car pulled in ahead of him from the right-hand lane, traveled a short distance, and then pulled back into the right-hand lane. Jones admitted that because it was a small foreign vehicle, the brown car did not obstruct his view of the Bronco and its brake lights. Jones also testified that right after the brown car returned to the right-hand lane, he noticed an accident in the left southbound lane, and that he then took his foot off the accelerator and hit his brakes lightly. He then noticed that the Bronco had stopped suddenly, so Jones hit his brakes and went into a skid. Another eyewitness, the victim in the southbound accident, said Jones was traveling about 7 m.p.h. in the skid when he hit the Bronco. Evidence was also presented regarding the Howards’ injuries, medical expenses, and loss of consortium. The medical evidence included expert testimony that indicated Mrs. Howard’s medical problems may have originated from a condition that existed before the accident, and not from the accident itself.

At the close of the evidence, the Howards moved for a directed verdict on the issues of appellees’ negligence and proximate cause. The trial court denied their motion. We find that the trial court erred in part in denying the motion. Nothing in the transcript indicates that Mrs. Howard acted negligently or in any way caused or contributed to the occurrence of the accident. In fact, the evidence presented showed unequivocally that she was not at fault and that Jones was negligent in his driving conduct. However, there was evidence that Cucci may or may not have been driving negligently. Therefore, the motion should have been granted in appellants’ favor on the negligence issue as to Jones, but not as to Cucci. Davis v. Pachuilo, supra, Division 1. The evidence did not demand a directed verdict on the issue of proximate cause, due to the nature of the medical testimony. OCGA § 9-11-50.

2. The trial court instructed the jury on the doctrine of sudden emergency, stating that “if you find that one of the defendants was confronted with a sudden emergency, and that it was not of his own creation and he didn’t have sufficient time to decide with certainty the best course to pursue, then he would not be held to the same accuracy of judgment as would be required if he had had time for deliberation.” Appellants objected to that charge at trial, arguing that under the facts there was no sudden emergency. We agree with appellants’ contention that the application of the sudden emergency doctrine requires that the defendant have a choice of conduct and that this case is analogous to Davis v. Calhoun, 128 Ga. App. 104 (1) (195 SE2d 759) (1973). In Davis, the defendant driver failed to stop in time to avoid colliding with the rear of an automobile that had stopped in his lane of traffic and was waiting for the driver of the vehicle in front of it to make a left turn. The trial court in that case refused to charge the jury on the defense of sudden emergency, and this court upheld that decision. The facts in Davis were remarkably similar to those in the case before us, and we find here, as in Davis, that under the evidence there was “no real choice of conduct open to the defendant after he realized the situation which would make the doctrine of emergency applicable, because . . . there was ... no question of passing on the left, and the defendant did not contend that he had a choice between attempting to stop and attempting to [pass on] the right. The real thrust of his argument was not that he made an emergency choice when confronted by a sudden danger, but rather that he was not negligent in any particular and the collision, as to him, was an accident or due to the negligence of others.” Id. at 107. The facts of appellants’ case as presented at trial did not justify a sudden emergency charge for either of the defendant drivers, and the trial court erred in giving that charge.

Decided June 9, 1988

Rehearing denied July 8, 1988

Russell M. Boston, for appellants.

Wallace Miller III, William C. Harris, Emitte H. Griggs, Thomas S. Carlock, for appellees.

Judgment reversed.

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


text:
    76161.
    BYCOM CORPORATION v. WHITE et al.
    (371 SE2d 233)
   Benham, Judge.

The basic subject of this appeal is the scope of the Fireman’s Rule; specifically, whether it applies in a case in which the defendant is not the owner or occupier of the premises where the injury to the plaintiff occurred. The appellees are a husband and wife, the husband a DeKalb County fireman who was seriously burned by exploding natural gas. Appellant is the corporation whose agents were allegedly negligent in rupturing a natural gas pipeline and in failing to indicate the location of the leak to the firemen who responded to a call that a gas leak had occurred. We granted appellant’s application for an interlocutory appeal to review the trial court’s denial of that portion of appellant’s motion for summary judgment based on the Fireman’s Rule.

The facts of this case are essentially undisputed. Appellant’s agents ruptured a natural gas pipeline. Although they reported the occurrence to the Atlanta Gas Light Company, they did not report it to governmental authorities. However, the principal of a nearby school reported the leak after being told of it by a parent. A fire truck was dispatched to deal with the leak, but the location given it was that of the school, several blocks from the site of the actual leak. A school crossing guard pointed in the direction of the leak when the truck arrived at the location given it, and the truck continued on in the indicated direction. The truck stopped at the site of the leak, and White debarked from the truck, apparently believing the leak to be on an adjoining cul-de-sac. In fact, the leak was beneath the truck and the gas caught fire shortly after White left the truck.

1. The Fireman’s Rule was recognized in Georgia in Ingram v. Peachtree South, 182 Ga. App. 367, 368 (355 SE2d 717) (1987): “Basically, the principle is that while a fireman may recover for negligence independent of the fire, a landowner is not liable for negligence in causing the fire. As an oft-cited case holds, one ‘cannot complain of negligence in the creation of the very occasion for his engagement.’ [Cit.]” That rule, stated in terms of a landowner’s liability, was perfectly adequate for that case since the fire there occurred on premises owned by the defendant. In the present case, however, the alleged negligence and the injury occurred off the premises of the alleged tortfeasor.

“Because we are bound by the case law set out in [Ingram] as to on-premises injuries, and because it would create a dichotomy to establish policies which deny recovery to a fireman injured on-premises but allow recovery to a fireman injured off-premises, the fireman’s rule must be applied to off-premises injuries sustained by firemen acting in their professional capacity. Just as the fireman who as a licensee and barring actual wrongful acts by the landowner ‘takes all risks as to the safe condition of the premises upon which he enters,’ [cit.], so the fireman incurs the risks inherent in the situation when he undertakes an off-premises [emergency call] in his official capacity.” Koehn v. Devereaux, 495 NE2d 211, 215 (Ind. App. 3 Dist. 1986). It is necessary, therefore, to examine two alternative bases which have been used as support for the Fireman’s Rule: assumption of risk and public policy.

Both of those rationales are cogently explained in a 1985 decision from the Court of Special Appeals of Maryland, Flowers v. Sting Security, 62 Md. App. 116 (488 A2d 523 532) (1985): “The major modern justification for the Fireman’s Rule is based upon the notion of assumption of risk . . . Within the context of serving as the primary basis for the Fireman’s Rule, the notion of assumption of risk is used in a very special sense. It is necessary to distinguish between a ‘primary’ assumption of risk, which arises out of the special relationship between the firefighter and the public, and a ‘secondary’ assumption of risk, which is an affirmative defense on a case-by-case basis and which closely resembles contributory negligence . . . Perhaps the leading statement on the Fireman’s Rule generally and on the special sense in which the notion of ‘assumption of risk’ is used specifically, was that by Chief Justice Joseph Weintraub in Krauth v. Getter, 31 N. J. 270, 157 A.2d 129, 130-131 (1960): ‘The rationale for the prevailing rule is sometimes stated in terms of “assumption of risk,” used doubtless in the so-called “primary” sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty.’ ... A fireman does not assume a risk in the secondary sense, hazard by hazard and fire by fire, and only when he lacks a safer alternative, but in the broad, primary sense as an inherent incident of his occupation . . . Closely intertwined with the primary assumption of risk rationale, and strongly supporting it, but with an independent content of its own is the public policy rationale. That rationale, in a nutshell [has been] articulated [as follows]: ‘A public safety officer cannot base a tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope. . . . Such officers, in accepting the salary and fringe benefits offered for the job, assume all normal risks inherent in the employment as a matter of law and thus may not recover from one who negligently creates such risk.’ . . . The Fireman’s Rule, almost universally accepted and nowhere rejected constitutionally, stands for the principle that societal responsibility rather than possible tort recovery is the better, surer, and fairer recourse for a fireman or policeman injured in the line of duty . . . The most forceful statement of the public policy rationale for the Fireman’s Rule was probably that of Chief Justice Weintraub in Krauth v. Getter, supra: ‘(I)t is the fireman’s business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said that there is none owed the fireman to exercise care so as not to require the services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injury suffered by the expert retained with the public funds to deal with those inevitable, although negligently created, occurrences. Hence, for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen’s compensation benefits for the consequences of the inherent risks of the calling.’ ”

In adopting the Fireman’s Rule, the Supreme Court of Iowa set out its public policy considerations: “[S]ince government entities employ and train firefighters and policemen, at least in part, to deal with those hazards that may result from the actions or inaction of an uncircumspect citizenry, it offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services. [Cit.] Citizens should be encouraged and not in any way discouraged from relying on those public employees who have been specially trained and paid to deal with these hazards. Additionally, a citizen does not have the right to exclude public safety officers from emergency situations or to control their actions once they have been alerted to an emergency and arrive on the scene. Indeed, a citizen may have a legal duty to summon a public safety officer in some instances and to say he may, in the course of discharging that duty, risk tort liability to officers who are specially trained and hired to cope with these hazards, strikes us as inconsistent and unfair. Finally, although we are aware of the widespread existence of liability insurance, we believe these risks are more effectively and fairly spread by passing them onto the public through the government entities that employ firefighters and police officers.” Pottebaum v. Hinds, 347 NW2d 642, 645 (Iowa 1984).

We are persuaded by the considerations mentioned above that the public policy of the State of Georgia requires adoption of a Fireman’s Rule in Georgia broader than that stated in Ingram. Paraphrasing the language of the Supreme Court of Kansas in Calvert v. Garvey Elevators, 236 Kan. 570 (694 P2d 433) (1985), we now hold that it is a public policy of the State of Georgia that a public safety employee cannot recover for injuries caused by the very negligence that initially required his presence in an official capacity and subjected the public safety employee to harm; that public policy precludes recovery against an individual whose negligence created a need for the presence of the public safety employee at the scene in his professional capacity.

“This is not to say that firemen or police officers are barred from recovery in all instances in which they are injured by negligent acts. The relevant inquiry is whether the negligently created risk which resulted in the fireman’s or policeman’s injury was the very reason for his presence on the scene in his professional capacity. If the answer is yes, then recovery is barred; if no, recovery may be had.” Pottebaum v. Hinds, supra at 646. Furthermore, it is important to note that our holding in this case addresses only the initial negligence which requires the public safety employee’s presence in his official capacity. We make no rule in this case concerning liability for subsequent acts of negligence or for intentional wrongdoing.

In opposition to the adoption of a broader rule than that stated in Ingram, appellees rely on Walker Hauling Co. v. Johnson, 110 Ga. App. 620 (139 SE2d 496) (1964), for the proposition that a fireman has a right to sue anyone other than the owner or occupier of land. However, this court made clear in that case that it was not making the assumption that the plaintiff was a “fireman,” just someone skilled in fighting fires who volunteered to help. Contrary to appellees’ argument, this court did base its decision on the plaintiff’s status as a volunteer, fitting the case into the rescue doctrine. The Fireman’s Rule is an exception to the rescue doctrine. Koehn, supra. We find Walker Hauling to be no impediment to the establishment of the rule we announce in this case.

Appellees argue that although recovery for appellant’s negligence in creating the gas leak may be barred to appellees by adoption of a broader version of the Fireman’s Rule, even the expanded rule would not bar their action based on appellant’s negligence in failing to warn the firemen of the location of the leak. We disagree. The conduct on which appellees base their second allegation of negligence is the same conduct on which they base their first allegation. Appellant created a risk of fire and explosion by rupturing a gas pipe and then got out of the area. That is the only conduct upon which both allegations of negligence are premised. There is no assertion that appellant did anything to conceal the leak or to prevent its detection or did anything to increase the danger of fire or explosion. Under the allegations of the complaint in this case, appellees are barred from asserting a claim against appellant. It follows that the trial court erred in denying appellant’s motion for summary judgment. ,

Decided June 23, 1988

Rehearing denied July 8, 1988

R. Chris Irwin, Kathleen M. Pacious, for appellant.

Andrew M. Scherffius, Edward R. Still, Charles B. Merrill, Jr., for appellees.

2. Since our holding requires the entry of summary judgment for appellant, other issues raised on appeal are moot and need not be addressed.

Judgment reversed.

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


text:
    76340.
    BANK OF LOGANVILLE v. LISLE.
    (371 SE2d 215)
   McMurray, Presiding Judge.

The Bank of Loganville brought suit against Loganville Factory Outlet, Inc., F. W. Lisle and Larry B. Beall. It was alleged that Lisle was liable to the bank pursuant to a “guaranty” in which he promised to pay the corporation’s debt to the bank. Lisle answered the complaint and denied that he was indebted to the bank. Following discovery, F. W. Lisle moved for summary judgment. The motion was granted and the bank appealed. Held:

Viewing the evidence in favor of the bank as we are bound to do, Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618), we find the following: Lisle was president of Loganville Factory Outlet, Inc., and Beall was the corporation’s vice-president and secretary. On July 19, 1983, the corporation executed a promissory note payable to the bank. The note was signed by Lisle and Beall in their corporate capacities. It was in the amount of $50,000 and it bore interest at the rate of 13.5 percent. Thereafter, the note was renewed three times, on October 19, 1983, January 19, 1984, and April 19, 1984. The renewal notes were also in the amount of $50,000. They bore interest at the rate of 14 percent, 13.5 percent and 14.5 percent, with the last note bearing the greatest interest rate.

Although Lisle denies it, there is evidence that he signed a written “guaranty” with regard to the first promissory note and the renewal notes dated October 19, 1983, and January 19, 1984. In pertinent part, the “guaranty” instruments read: “For value received the undersigned . . . hereby unconditionally guarantee(s) the payment of the Note on the reverse side hereof and all extensions or renewals thereof . . . Undersigned also agree(s) that the holder of said Note may from time to time and without notice . . . grant any releases, compromises or indulgences with respect to said Note or any extension or renewal thereof . . ) all without notice to or consent of the undersigned and without affecting the liability of the undersigned hereunder ...”

It is undisputed that Lisle did not sign a written guaranty with respect to the last note. He contends his obligation to the bank was discharged pursuant to OCGA § 10-7-22 because his risk was increased when the bank charged interest at the rate of 14.5 percent on that last note.

We agree that Lisle’s risk was increased by the change in the terms of the last note. Nevertheless, we cannot agree that Lisle was discharged. Why? Because there is evidence that Lisle consented to the change in advance. As in Rice v. Ga. R. Bank &c. Co., 183 Ga. App. 302 (359 SE2d 882), Lisle “unconditionally guaranteed payment of the note, all extensions or renewal thereof, and agreed that the bank, without notifying him or getting his consent, might extend or renew the note without affecting his liability.” Citizens & Southern Nat. Bank v. Scheider, 139 Ga. App. 475, 476 (228 SE2d 611).

Since it would appear that Lisle consented to the change in the terms of the note in advance, it cannot be said that he was discharged by the increased risk. Rice v. Ga. R. Bank &c. Co., 183 Ga. App. 302, supra. It follows that the trial court erred in granting Lisle’s motion for summary judgment.

Bank of Terrell v. Webb, 177 Ga. App. 715 (341 SE2d 258), cited by Lisle is not apposite. As this court pointed out in Rice v. Ga. R. Bank &c. Co., 183 Ga. App. 302, supra, the language of the instrument in that case did not demonstrate that the co-maker consented to future changes in the terms of the notes. Here, on the other hand, Lisle purportedly agreed to pay the first three promissory notes and “all extensions or renewals thereof.” Since the last note was a renewal note, it was covered by the guaranty instruments purportedly executed by Lisle. Rice v. Ga. R. Bank &c. Co., 183 Ga. App. 302, supra.

Decided June 15, 1988

Rehearing denied July 8, 1988

Charles R. Hager III, for appellant.

Anthony O. L. Powell, for appellee.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Banke, Presiding Judge.

text:
    76677.
    76678.
    PUPO v. THE STATE. DONABY v. THE STATE.
    (371 SE2d 219)
   Banke, Presiding Judge.

The appellants, Pupo and Donaby, were stopped by a Georgia State Patrol officer while proceeding northbound on 1-75 in a vehicle registered in Donaby’s name but being driven by Pupo. The trooper testified that he stopped the vehicle because he observed it “weaving” across its lane of traffic and into the emergency lane. He further testified that, upon being informed of the reason for the stop, Pupo acknowledged that he had been driving for a considerable length of time and was very tired. The trooper administered a breath test to Pupo, with negative results, and then asked for and obtained his signed consent to a search of the vehicle.

The ensuing search led to the discovery of small quantities of marijuana and cocaine inside the vehicle’s trunk. The appellants were arrested on the basis of this discovery, and during a more thorough search of the vehicle which was later conducted at the jail, an additional pound of cocaine was discovered inside the heater cannister of the vehicle’s engine compartment. On appeal from their convictions of trafficking in cocaine, the appellants contend that the original search was conducted in violation of their Fourth Amendment rights and that the trial court consequently erred in refusing to suppress the contraband as evidence.

1. Citing United States v. Smith, 799 F2d 704 (11th Cir. 1986), the appellants argue that the initial stop of the vehicle was unlawful because the asserted “weaving” of the vehicle was used as a mere pretext to conduct an investigation for drugs. In Smith, as in the present case, the arresting officer testified that he had observed the defendants’ vehicle “weaving” prior to stopping it; however, the trooper there conceded that he had not stopped the vehicle on the basis of this observation but “had determined to make an ‘investigative stop’ of the vehicle from the moment he began pursuit in reliance on the drug courier profile.” Id. at 706. Furthermore, the trial court in Smith determined, on the basis of the evidence presented at the suppression hearing, that no traffic violation whatever had in fact occurred. Concurring in this assessment, and further concluding that none of the observed “drug courier profile” characteristics had been sufficient to give rise to an articulable suspicion of criminal wrongdoing, the Federal Court of Appeals accordingly held that the stop had violated the defendants’ Fourth Amendment rights.

The case before us is clearly distinguishable from Smith in that the trial court in the present case determined, on the basis of the evidence presented at the suppression hearing, that the observed “weaving” of the appellants’ vehicle had in fact served as the actual reason for the stop, the immediate purpose of which had been to investigate a possible DUI violation rather than to effect a search for drugs. Moreover, although it was shown that the trooper had participated in a program known as “operation Pipeline,” the goal of which was to increase the interception of drug trafficking on the interstate highways, and that he had been accompanied at the time of the stop by a GBI agent, there was no indication that his decision to stop the appellants’ vehicle had been influenced, much less dictated, by a “drug courier profile.” Consequently, the trial court’s factual determination that the trooper’s initial detention of the vehicle had constituted a bona fide traffic stop is supported by the evidence and must be sustained on appeal. See generally State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974).

2. The appellants contend that, even assuming that the initial detention of the vehicle was valid, the trooper was without probable cause to conduct a search. We agree. However, the search was not predicated on probable cause but on appellant Pupo’s consent. Having already effected a valid stop of the vehicle, the trooper certainly did not violate the appellants’ Fourth Amendment rights merely by requesting such consent. Accord Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1972).

3. The appellants contend that the trooper’s conduct in obtaining Pupo’s consent must be considered coercive pursuant to this court’s decision in Radowick v. State, 145 Ga. App. 231 (244 SE2d 346) (1978). We disagree. In Radowick, it was shown that the police had held the defendants for “an inordinate period of time” prior to obtaining their consent and had informed them that a search warrant “would” be obtained in the event they did not consent. Id. at 242. No such circumstances were shown in the present case.

4. The appellants contend that Pupo’s consent cannot be considered knowing and voluntary because he was without sufficient knowledge of the English language to read and understand the written consent form which he was called upon to sign and because the trooper misrepresented the scope of the proposed search by stating that he intended to look for weapons rather than drugs. With regard to the former contention, the trooper verbally communicated to Pupo in no uncertain terms his desire to search the vehicle, and there was no suggestion that Pupo had any problem with spoken English. Also, the trooper testified that after being given an opportunity to read the form and being asked whether he understood it, Pupo responded in the affirmative, without revealing any language difficulties. Under the circumstances, the trial court was authorized to conclude that Pupo was fully aware of what he was being asked to consent to. Accord Jothier v. State, 177 Ga. App. 655 (340 SE2d 624) (1986). With respect to the contention that the trooper misrepresented the scope of the search by stating that he was looking for weapons rather than drugs, we do not understand how such a statement on the part of the trooper could affect the validity of Pupo’s consent, the area to be searched being identical in either event.

5. The appellants further contend that Pupo was not authorized to consent to a search of the vehicle because he did not own it. Initially, we observe that Pupo himself is in no position to raise such an objection, for to the extent that he was without authority to consent to the search he clearly lacks standing to complain that the search violated his Fourth Amendment rights. Insofar as appellant Donaby is concerned, we hold that Pupo’s status as driver of the vehicle afforded him sufficient authority over it to enable him to consent to the search, particularly in the absence of any objection by Donaby. “[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. ...” United States v. Matlock, 415 U. S. 164, 171 (94 SC 988, 39 LE2d 242, 249-250) (1974). Accord Walker v. State, 119 Ga. App. 782 (347 SE2d 711) (1986); Wilson v. State, 179 Ga. App. 780 (347 SE2d 709) (1986).

6. Based on the foregoing, we hold that the trial court did not err in refusing to suppress as evidence the contraband seized from the vehicle, with the result that the evidence was sufficient to enable a rational trier of fact to find the appellants guilty of trafficking in cocaine beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

7. Appellant Pupo has raised certain additional enumerations of error without providing any argument or citation of authority in support thereof. These enumerations of error are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

8. Appellant Donaby has filed a supplemental enumeration of error and brief challenging the correctness of one of the court’s jury charges. We also decline to consider this enumeration of error, based on the rule that enumerations of error may not be supplemented after the time for filing has expired. See Waters v. State, 174 Ga. App. 916, 919 (6) (331 SE2d 893) (1985).

Decided June 22, 1988

Rehearing denied July 8, 1988.

Theron M. Moore, for appellant (case no. 76677).

R. Robider Markwalter, for appellant (case no. 76678).

G. Theron Finlayson, District Attorney, George R. Christian, Assistant District Attorney, for appellee.

Judgments affirmed.

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


author: Birdsong, Chief Judge.

text:
    75514.
    ELBERT COUNTY v. GEORGIA INSURERS INSOLVENCY POOL.
    (372 SE2d 11)
    Decided July 8, 1988.

      E. Freeman Leverett, Cynthia G. Weaver, for appellant.

      Andrew J. Ekonomou, Teresa W. Pendergrast, for appellee.
   Birdsong, Chief Judge.

The Supreme Court, on certiorari, reversed our holding in this case at 185 Ga. App. 803 (366 SE2d 153) and held that Elbert County is a “person” within the meaning of OCGA §§ 33-1-2 (5) and 33-36-3 (2) (f).

Accordingly, we remit the case below, with the trial court’s judgment affirmed.

Judgment affirmed.

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


text:
    75894.
    GIBSON v. THE STATE.
    (371 SE2d 413)
   Banke, Presiding Judge.

Gibson filed this appeal from the denial of her motion for new trial after being found guilty of the offenses of driving with an improper tag, driving without a license, and driving without an emissions control sticker.

The appellant’s car was stopped by the Cobb County police because it bore a license plate which read as follows: “JUSTICE TOWNSHIP, COMMON-LAW MUNICIPALITY, SOUTH CAROLINA, PERMANENT, 58.” The officer asked the appellant for her driver’s license and for proof of insurance and placed her under arrest when she refused either to comply with this request or to identify herself. It was shown that her vehicle did not have the required emissions control sticker. Held:

1. The appellant contends that the accusation was void because it was not “signed by the prosecuting attorney of the court” in accordance with OCGA § 17-7-71 (a) but was signed by an assistant solicitor with the solicitor’s name. Pretermitting whether this challenge to the accusation was timely raised in the court below, see OCGA § 17-7-111, we conclude that it is without merit. The Legislature has specified that “[a]ll prosecutions in criminal cases instituted in the State Court of Cobb County shall be by written accusation made by the solicitor or assistant solicitor. . . .” (Emphasis supplied.) Ga. Laws 1964, pp. 3211, 3216. The Legislature has further provided that “[i]t shall be within the sole authority of the [Cobb County] solicitor to prescribe the duties and assignments of the assistant solicitors.” Ga. Laws, 1986, pp. 5065, 5066. Pursuant to these statutes, we must presume, in the absence of a contrary showing, that the assistant solicitor was authorized to sign the solicitor’s name to the accusation. We note that this court has previously upheld the validity of an accusation which contained no actual signature whatever in the space provided therefor but only the solicitor’s typewritten name. Hardeman v. State, 147 Ga. App. 120 (1) (248 SE2d 189) (1978). The appellant’s reliance on Cook v. Walker, 161 Ga. 551 (131 SE 288) (1926), is misplaced, as in that case the space on the accusation where the solicitor’s signature should have appeared was left completely blank.

2. The appellant was issued a uniform traffic citation at the time of her arrest, specifying as follows: “Resident has 30 days to obtain tag in violation of Section 40-2-90.” Subsequently, a formal accusation was filed pursuant to OCGA § 17-7-71, charging her, in Count 1, as follows: “Driving with improper tag, to wit: Did being a resident of the state for a period of 30 days or more operate a motor vehicle in this state without first obtaining a license plate to operate same.” The appellant contends that the trial court erred in denying her motion for a directed verdict of acquittal with respect to this charge because the state failed to prove the allegation that she had been a resident of Georgia for 30 days prior to her arrest.

The statute under which the appellant was convicted was quite clearly OCGA § 40-2-8 (a), which contains no residency requirement but applies by its terms to “[a]ny person owning or operating any vehicle described in Code Section 40-2-20.” Although OCGA § 40-2-90 exempts certain vehicles owned by nonresidents from the requirements of §§ 40-2-8 (a) and 40-2-20 where such vehicles are registered in another state and have not been used in this state for more than 30 days, it is not contended that such an exemption is applicable in the present case. Consequently, we conclude that the allegation that the appellant had resided in this state for a period of 30 days or more was mere surplusage. There having been no showing as to how the presence of this extraneous allegation could have impeded the appellant’s ability to prepare a defense or how it could possibly result in her being subjected to a subsequent prosecution based on the same conduct, we further conclude that the failure to prove the allegation did not constitute a fatal variance. See Shackelford v. State, 179 Ga. App. 595 (347 SE2d 346) (1986). See also DePalma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969). As the evidence introduced at trial established without dispute that the appellant was operating an unregistered motor vehicle on the public streets of this state in violation of OCGA § 40-2-8 (a), we consequently hold that her motion for a directed verdict of acquittal on this count of the accusation was properly denied.

3. The appellant contends that the state impermissibly placed her character in issue in violation of OCGA § 24-2-2 when, during direct examination by the state, one of the arresting officers characterized the arrest as a “felony stop” and went on to explain this characterization as follows: “We did that because of some previous knowledge from school that I have had for certain types of stops of this nature. The type of tag displayed on this automobile that we are looking for is common to people who are tax evaders.”

The trial court admitted this testimony over the appellant’s objection for the limited purpose of showing the officer’s state of mind upon approaching the vehicle. The officer subsequently testified that he had received no information prior to the arrest concerning the appellant’s character or reputation and that he had no reason to believe that she was dangerous. It was thus made clear to the jury that this line of questioning was not intended to imply any prior misconduct on the part of the appellant but merely to establish the police procedures applicable to the stop of any vehicle under similar circumstances. Even assuming arguendo that the admission of the testimony was improper under these circumstances, we can perceive no reasonable possibility that it contributed to the verdict in the context of the undisputed facts of this case. See generally Dill v. State, 222 Ga. 793 (1) (152 SE2d 741) (1966).

Decided June 1, 1988

Rehearing denied July 11, 1988

Thomas E. Fortenberry, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, Benjamin M. First, Assistant Solicitors, for appellee.

4. During the course of their deliberations, the jury inquired of the court whether the failure to produce a driver’s license upon request by a police officer constituted the offense of driving without a license. See OCGA § 40-5-20. In response, the trial court supplemented his original jury instructions with a charge on OCGA § 40-5-29, as follows: “[E]very licensee shall have his driver’s license in his immediate possession at all times when operating a motor vehicle. Every licensee shall display his license upon the demand of a law enforcement officer. A refusal to comply with such demand may give rise to an inference of a violation of Code Section 40-5-20.”

The appellant contends that this supplemental charge injected an extraneous matter into the case and was therefore erroneous. We disagree. The instruction was a correct statement of the law and was adjusted to the evidence. See generally Parks v. State, 180 Ga. App. 31 (5) (348 SE2d 481) (1986). This enumeration of error is without merit.

5. From the evidence presented at trial, a rational trier of fact could reasonably have found the appellant guilty of each of the offenses charged beyond a reasonable doubt. Accordingly, her motion for new trial on the general grounds was properly denied. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

6. The appellant enumerates as error the trial court’s grant of the state’s petition for an assessment of the costs of prosecution against her pursuant to OCGA § 17-11-1, contending that this Code section does not apply to misdemeanor prosecutions. This issue was recently decided adversely to the appellant in Walden v. State, 185 Ga. App. 413 (364 SE2d 304) (1987) (cert. granted). To the extent that the appellant complains of the amount of the costs assessed against her, we are unable to address the merits of this enumeration of error due to the absence of a transcript of the evidence presented on the state’s motion. “[A]bsent a transcript, we must assume the ruling of the trial court is supported by the evidence.” Sheriff v. State, 184 Ga. App. 180 (361 SE2d 53) (1987).

Judgment affirmed.

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


text:
    75905.
    PLESS v. THE STATE.
    (371 SE2d 406)
   Benham, Judge.

Appellant was convicted of trafficking in and selling cocaine; possessing less than one ounce of marijuana; and possessing a firearm during the commission of a felony. On appeal his several enumerations of error concern the content of the trial court’s charge to the jury on entrapment.

The trial court instructed the jury: “If an officer of the law has reason to believe that the law is being violated, he may proceed to ascertain whether those who are thought to be doing so are actually committing a criminal offense. If the conduct of the officer is such as not to induce an innocent person to commit a crime, but to secure evidence upon which a guilty person can be brought to justice, then there is no entrapment.” This charge was found to be “a correct statement of the applicable law” in Keaton v. State, 253 Ga. 70, 71, fn. 1 (316 SE2d 452) (1984).

1. Appellant maintains that the charge was not adjusted to the evidence since there was no evidence that the officer had “reason to believe that the law [was] being violated.” It is undisputed that the officer, acting in an undercover capacity, met appellant during a visit to appellant’s place of employment and that the officer and appellant there had a conversation about the availability of cocaine. While the officer testified at the hearing on appellant’s motion to suppress that he had approached appellant based on information he had received from a confidential informant, the officer did not explain at trial why he had approached appellant. Thus, appellant is correct in his assertion that the charge given was not adjusted to reflect the evidence presented. However, why an officer approached a certain person is irrelevant to the presentation of an entrapment defense wherein it must be proved that the idea for the commission of the crime originated with the law enforcement officer or agent; that the crime was induced by the officer’s or agent’s undue persuasion, incitement, or deceit; and that the defendant was not predisposed to commit the crime. Keaton v. State, supra at 72; OCGA § 16-3-25. Due to the irrelevancy of the offensive language, it was not reversible error to include that phrase in the jury charge. Harm, in addition to error, must be shown to warrant a reversal.

2. Appellant contends that the inclusion of the portion of the charge for which there is no evidentiary support “necessarily suggests” that appellant was predisposed to commit the crime charged. We disagree. The charge states that “if an officer . . . has reason to believe the law is being violated, he may proceed. . . .” Contrary to appellant’s assertion, the conditional statement did not mandate the conclusion that the officer had reason to believe a crime was being committed and that the officer’s reasoning was based on the fact that he knew appellant had committed this crime in the past.

Decided April 20, 1988

Rehearing denied July 11, 1988

Larry Cohran, for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Assistant District Attorney, for appellee.

3. Appellant also contends that the inclusion of the conditional language which was without evidentiary support amounted to an impermissible judicial expression of opinion as to what had been proved. See OCGA § 17-8-57. However, the court’s instruction did not assume the truth of the fact stated therein (compare Sweat v. State, 173 Ga. App. 441 (326 SE2d 809) (1985)), and did not intimate to the jury any conclusion of the trial court regarding what the evidence had shown. Freeman v. State, 183 Ga. App. 264 (2) (358 SE2d 623) (1987). Giving the charge did not violate OCGA § 17-8-57.

Judgment affirmed.

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