author: Birdsong, Presiding Judge. Pope, Judge, Beasley, Judge,

text:
    A92A0806.
    PERRYMAN v. ROSENBAUM et al.
    (423 SE2d 673)
   Birdsong, Presiding Judge.

This is an interlocutory review of the trial court’s order denying appellant/plaintiff’s motion to strike certain sworn statements of jurors and granting appellees/defendants’ motion for new trial in part as to an award of compensatory damages.

During medical malpractice litigation arising from the death of Rebecca Perryman, appellant settled with certain co-defendants for $500,000. As a result, the trial court pertinently charged the jury as follows: “If you find . . . plaintiff is entitled to recover compensatory damages in this case, you should determine the total amount of compensatory damages due plaintiff and deduct from that amount the five hundred thousand dollars previously received by plaintiff from [the stated former co-defendants] in determining the amount of compensatory damages against [appellee/defendants]. ... By compensatory damages, the court means damages awarded for the pain and suffering of Rebecca A. Perryman and damages awarded for the full value of the life of Rebecca A. Perryman.” (Emphasis supplied.) Appellees tendered no objection or exception to this particular charge, or to the trial court’s instructions to the jury to record their verdict in writing on the verdict form provided. Subsequently, the jury inquired whether they could award exemplary damages without awarding compensatory damages. A recharge was given in answer to this question; the pertinent portion of this recharge states: “Before you could award any exemplary damages, you would have to award compensatory damages for the pain and suffering, or the alleged pain and suffering of Rebecca Perryman. Now, in this particular case you have been instructed that if you determine that the plaintiff is entitled to compensatory damages, you must then deduct from whatever amount you determine plaintiff is entitled to, the five hundred thousand dollars previously paid to the plaintiff by some other defendants who were in this case initially. So if you determine that the plaintiff is entitled to compensatory damages for the pain and suffering of Rebecca Perry-man, and after deducting the five hundred thousand dollars, come up with a net award of zero, that would still be an award of compensatory damages insofar as it is necessary to award exemplary damages. If that doesn’t answer your question, then put whatever other question, or questions you have in writing, and we will try again.” (Emphasis supplied.) Although appellees posed a timely exception to the recharge, it was on a specific ground not here at issue and was not on the grounds that the recharge was confusing, ambiguous, or otherwise misleading. The jury thereafter posed no further questions concerning instructions to the court. Subsequently, a verdict in the following form was returned. “We, the jury, find for the plaintiff and against the defendants in the amount of $500,000 in compensatory damages, and in the amount of $85,000 in exemplary damages. . . . We, the jury, find that Dr. Rosenbaum was negligent. We, the jury, find that Nina Hill was not negligent and Dr. Rosenbaum is not liable for her negligence.” Appellees’ counsel, after being given the opportunity to examine the form of the verdict and to tender any objections thereto, stated: “Yes sir, it appears to be in proper form,” and posed no objection. Notwithstanding the amount of the verdict, appellees elected not to poll the jury and acquiesced in the excusal of the jury. The verdict was filed with the clerk; judgment was entered the same day.

After the jurors had been excused, it became apparent to appellees upon talking with certain jurors that a mistake in the verdict may have occurred. Thereafter, contemporaneous with the tender of an amended motion for new trial, appellees tendered the sworn statements of 11 of the 12 jurors (the 12th juror on advice received from some source apparently elected not to tender a sworn statement but indicated she would talk to the court) stating that they had mistakenly believed the court would subtract the sum of $500,000 from the like award of compensatory damages, and that after deducting the $500,000 settlement the verdict should have reflected “$0” compensatory damages. Held:

1. The standard of review in this case is whether the trial court abused its discretion in denying appellant’s motion to strike the affidavits and in granting a new trial on the issue of compensatory damages. Compare OCGA § 5-5-50 with § 51-12-12; see Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 739 (4) (320 SE2d 863). For reasons hereinafter discussed, we find that an abuse of discretion did occur.

2. OCGA § 9-10-9 provides: “The affidavits of jurors may be taken to sustain but not to impeach their verdict.” This statute follows a time-tested general rule necessary for the preservation of the integrity of the judicial system and for the protection of jurors.

(a) In, 1886, Justice Hall opined “[j]urors cannot impeach their verdict, and affidavits by members of the jury or of counsel as to their sayings after dispersing, cannot be received for that purpose.” Nelling v. Indus. Mfg. Co., 78 Ga. 260 (1). Although it is now settled law that a juror’s affidavit will be allowed to explain a verdict in an attempt to sustain the same, nothing coming from the juror, either directly or indirectly, with respect to the manner in which a verdict was arrived at, will be heard to impeach the same. Bowman v. Bowman, 230 Ga. 395, 397 (2) (197 SE2d 372). “That the verdict was caused by mistake, or a misunderstanding of the evidence, as disclosed by a member of the jury, will not be heard.” (Emphasis supplied.) Id.; accord Bickford v. Bickford, 228 Ga. 353, 358-359 (3e, f) (185 SE2d 756).

And, “[a]fter a verdict has been received and the jury have dispersed, a juror will never be heard to say that he did not agree to the verdict.” Sims v. Sims, 113 Ga. 1083 (1) (39 SE 435). Appellees’ assertion that the affidavits in question are not impeaching in nature is without merit. An affidavit is impeaching in nature whether its effect is to attack directly or merely to undermine indirectly the legitimacy of a verdict. These affidavits attempt to establish a mistake as to the meaning of the court’s instructions and have been tendered for the ultimate purpose of impeaching the $500,000 compensatory damage award. Compare Bowman, supra, and Bickford, supra.

(b) A trial court “ ‘has no legal power to receive or hear affidavits of jurors to impeach their verdict.’ ” Reece v. State, 208 Ga. 690, 691 (1) (69 SE2d 92); compare Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 59 (1) (390 SE2d 55) (affidavits of five jurors not allowed to show another juror’s bias and failure to communicate that information when queried on voir dire); Hilliard v. Arnold, 147 Ga. 15 (1) (92 SE 531). “In passing upon a motion for new trial, the trial judge has no power to receive, hear, or consider affidavits of jurors submitted for the purpose of impeaching their verdict, though submitted without objection.” Wellbeloved v. Wellbeloved, 209 Ga. 709, 711 (4) (75 SE2d 424); see Bowman, supra at 397 (2); Swift v. S. S. Kresge Co., 159 Ga. App. 571 (1) (284 SE2d 74). The order of the trial court unequivocally reflects on its face that the trial court considered the jurors’ affidavits, and that “the import of their sworn statements is clear: the verdict they returned is not the verdict they thought they were returning.” In view of the above precedent, we find the trial court abused its discretion in receiving and considering the affidavits of the 11 jurors, which in effect impeached their verdict on the grounds of a mistake as to whether the jury or the court would subtract the $500,000 from any compensatory damage award.

3. Appellees, however, relying on Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179), argue that goals protected by the provisions of OCGA § 9-10-9 are not absolute and that the statute cannot be applied in such an unfair manner as to deny due process. Spencer is a criminal case, and although it was interpreting OCGA § 17-9-41, which is identical to OCGA § 9-10-9, we recognize that the necessity for protection of jurors from harassment or other unlawful inducement, the need for certainty of verdicts, the need to foster open jury discussion, and the need to insulate jury value judgments from judicial review, will be compelled to yield in certain very limited occasions where human life or liberty sways in the balance. But such compelling personal interests of life and liberty rarely are at issue in civil litigation and are not so at issue in this case. Nevertheless, assuming the dictates of OCGA § 9-10-9 are no longer to be applied in bright-line fashion, we are satisfied that this is not a case meriting departure from a rule that has ably assisted in protecting the integrity of our jury system for more than a century.

In entering its order the trial court relied upon the precedent of Setzer v. Latimer, 40 Ga. App. 247 (149 SE 281). Setzer, a case decided in 1929, is an anomaly, as expressly reflected on the face of the decision, as follows: “While we entertain no doubt of the justness and correctness of the judgment herein rendered by this court, we do not wish to relax the general rule that jurors can not impeach their own verdict, and therefore deem it not amiss to say that the judgment here rendered is based on the particular facts of this case, taking into consideration the irregularity in the form of the verdict, the ambiguity of the question and the answer which constituted the verdict, the pleadings in the case, the affidavit of all the jurors who tried the case, and the evidence, which amply supports the finding which they all swear they made.” (Last emphasis only in original text.) Id. at 250-251. In this case, the form of the verdict is clear, unambiguous, and regular on its face. However, assuming the form of the verdict was, under the circumstances of this case, improper, irregular or incomplete, it remained incumbent upon appellees to object timely thereto, otherwise any such deficiency was waived. West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864, 870 (3) (198 SE2d 420). As appellees cannot now directly attack the regularity of the form of the verdict, they cannot indirectly attack that form in an attempt to meet the criteria of Setzer, because of the general rule of law that “one cannot do indirectly that which the law does not allow to be done directly.” Richmond County v. McElmurray, 223 Ga. 440, 443 (1) (156 SE2d 53). We further find the charges of the trial court, regarding the deduction by the jury of the amount of $500,000 from any award of compensatory damages to have been clear and unambiguous on their face. Likewise, appellee cannot now, in an attempt to meet the Setzer criteria, indirectly attack those charges (Richmond County, supra), as having been confusing or misleading to the jury, when he failed to take timely exception to the charges on these specific grounds at trial (see generally Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532)). Additionally, we note that one of the jurors in this case, unlike Setzer, did not supply a sworn statement; while this difference may not seem significant, we are mindful of the fact that if eleven affidavits per se will create an exception, why not ten, and if ten will suffice, why not nine ad infinitum (until no verdict will be safe from attack by post-verdict affidavits). However, even if all the jurors’ statements had been obtained in this case, such factor would not be controlling for reasons which will hereafter become apparent. Thus, in view of the clear pronouncement in Setzer that the opinion was strictly based on all of the specific facts therein enumerated, we find that the case at bar is distinguishable in significant respects, and that Setzer, supra, is not controlling.

Rather we find controlling the 1966 holding by this court in Saint v. Ryan, 114 Ga. App. 489 (3) (151 SE2d 826). In Saint the verdict was as follows: “ ‘We the jury, find in favor of the plaintiff in the amount of $3000’ ” (id.); however, the jury mistakenly failed to deduct $2,000 from the verdict as instructed. Saint is directly on point with the case at bar, except that in Saint the jury had been instructed to reduce damages only by $2,000, rather than by $500,000, and the fact that all 12 jurors had filed affidavits attesting to their mistake, rather than only 11 as in this case. In affirming the judgment the Saint court opined: “ ‘The affidavits of jurors may be taken to sustain but not to impeach their verdict.’ [Cit.] The instruction to the jury as to deducting the $2,000 was clear and unambiguous. The verdict is clear and unambiguous and is not subject to explanation by the jurors.” Id. at 490 (3). Moreover, Saint expressly acknowledges Setzer, supra, and declines to follow it, thereby tacitly finding Setzer substantially distinguishable even though in both cases all 12 jurors had filed affidavits attesting to their mistake. The trial court recognized that Saint, supra, would require a different result than he reached; however, he chose to apply Setzer and distinguish Saint. In doing so, the only reason articulated by the trial court for not following Saint is that the latter case “involved a $2,000 rather than a $500,000 mistake.” As appealing as it may be to correct an alleged jury mistake, we cannot base the law on distinctions based on the amounts of the verdicts. Moreover, as recognized as early as 1850 in Bishop v. State, 9 Ga. 121, 127, if we alter and relax the rule to accommodate appellees, no verdict will be safe from subsequent attack. Where would we draw the line? How many jurors must attest to the mistake before it warrants correction; how many dollars must be involved before this court will be swayed to set aside a verdict that is unambiguous on its face? Yet, it is this very type of uncertain precedent which appellees urge this court to adopt in their attempt to prevent the reversal of the trial court’s order. We cannot succumb to this siren’s call. It has long been recognized that “the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky.” Autry v. State, 150 Ga. App. 584, 587 (258 SE2d 268). The trial court further abused its discretion by failing to follow the controlling precedent of Saint, supra. Ga. Const. of 1983, Art. VI, Sec. V, Par. Ill; OCGA § 9-11-60 (h).

Further, the trial court cannot render its ruling viable merely by asserting the authority to grant a motion for new trial as to compensatory damages under the provisions of OCGA § 51-12-12. Under OCGA § 51-12-12 (b), only if the jury’s award is clearly so inadequate or so excessive as to any party to be inconsistent with the preponderance of the evidence, may the trial court order a new trial as to damages only. Nothing in the trial court’s order reflects that the trial court in fact based its ruling on such a finding. To the contrary, the order conclusively establishes that the grant of the new trial was inextricably and improperly based on the jurors’ affidavits, asserting a $500,000 mistake in the judgment rendered. Accordingly, we find the trial court’s order erroneous for all the reasons above discussed. Moreover, only the charge and verdict portions of the trial transcript were forwarded by the parties for appellate review. Accordingly, we must decline to speculate whether the record would have supported a grant of new trial as to compensatory damages based, as required by statute, on a finding that the jury’s award of $500,000 was clearly so excessive as to be inconsistent with the preponderance of the evidence in this case. OCGA § 51-12-12 (b).

4. Finally, we are compelled to observe that the appellees’ brief repeatedly and forcefully urges that we take into account and primarily be guided by the magnitude of the jury’s alleged mistake. We would, therefore, be remiss not to address this issue further. Assuming a $500,000 mistake occurred, as asserted, it was aided unequivocally by the trial strategy and conduct of the appellees. At no time did they timely object on grounds of lack of clarity to the now questioned instructions or request that additional clarifying instructions be given. At no time did they object to the verdict form given to the jury, and in fact even after the verdict was announced, appellees assented to the correctness of the form of the verdict without question. Moreover, the record does not reveal appellees attempted to have the court utilize a form for the verdict tailored to address the issue of settlement subtraction in the event compensatory damages were awarded. Even after examining the verdict, appellees’ counsel expressly stated on the record that the verdict “appears to be in proper form.” Further, notwithstanding the $500,000 compensatory damage award contained within the verdict, appellees elected not to request a poll of the jury by the trial court in an attempt to ascertain the intendment of the jury’s verdict (OCGA § 9-12-7; Ballard v. Turner, 147 Ga. App. 584, 586 (3) (249 SE2d 637); compare McGahee v. Samuels, 61 Ga. App. 773 (7 SE2d 611)) and did not object to the jury’s immediate excusal thereafter. Viewed in the totality, appellees’ trial procedure and conduct aided in allowing the dispersal of the jury before the alleged mistake could be detected and corrected, if not aiding at least indirectly in the jury’s accomplishment of the mistake itself. One cannot complain of a verdict, judgment, order, or ruling that his own trial procedure or conduct aided in causing. West v. Nodvin, 196 Ga. App. 825, 829 (3e) (397 SE2d 567).

The order of the trial court granting appellees’ motion for new trial as to compensatory damages is reversed.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Carley, P. J., Andrews and Johnson, JJ., concur. Pope and Cooper, JJ., concur specially. Beasley, J., dissents.

Pope, Judge,

concurring specially.

While I share the majority’s concern about preserving the rule against the impeachment of verdicts, I agree with the dissent that the sworn statements of the jurors in this case were submitted to explain and sustain their verdict in this case. As our Supreme Court recently stated in Spencer v. State, 260 Ga. 640, 643 (398 SE2d 179) (1990), cert. denied, _ U. S. __ (111 SC 2276, 114 LE2d 727) (1991) “[t]he rule against allowing jurors to impeach their verdict serves important public interests. The rule discourages post-verdict harassment of jurors, enhances verdict finality and certainty, encourages free and open discussion among jurors during deliberations, and insulates jury value judgments from judicial review.” However, these interests are not harmed when sworn statements or affidavits of jurors are submitted to explain the true meaning of their verdict rather than counter it in any way. See Watkins v. State, 237 Ga. 678 (229 SE2d 465) (1976). By refusing to allow jurors to assist the trial court in determining the true meaning of their verdict, we have applied the dictates of OCGA § 9-10-9 too broadly. For that reason, our decisions in King Cotton, Ltd. v. Powers, 190 Ga. App. 845 (380 SE2d 481) (1989) and Saint v. Ryan, 114 Ga. App. 489 (151 SE2d 826) (1966) should be disapproved to the extent they hold that sworn statements of jurors offered to explain their verdict run afoul of the dictates of OCGA § 9-10-9.

I agree with the majority that the error committed by the jury in rendering its verdict was aided, if not caused, by the apparent trial strategy and conduct of the defendants. At a minimum, defendants should have requested that the jury be polled after their verdict was returned. Contrary to the dissent’s assertion otherwise, polling the jury would have quickly and easily resolved this misunderstanding. The trial judge could have asked the jury if they followed his instructions and deducted the $500,000 settlement from the total amount of compensatory damages they found plaintiff was entitled to receive. As the majority points out, the defendants did not offer a proposed form for the verdict that would have clarified the jury’s responsibility regarding deducting the earlier settlement with the other co-defendants from the total amount of damages they determined were due to plaintiff. Under the facts of this case, I agree that the trial court erred by granting defendants’ motion for new trial as to compensatory damages.

I am authorized to state that Judge Cooper joins in this special concurrence.

Beasley, Judge,

dissenting.

A jury is unlettered in legal procedure. It has only its common sense, collective experience, the evidence and argument presented to it, and the court’s charge to guide it in discharging its duty.

In this case involving multiple defendants, the jury was asked to consider the separate negligence vel non of two individuals and, if there was negligence, two separate types of damage. The second type was dependent on the first, and the jury was informed that, with respect to the first, other defendants had already agreed to pay plaintiff a half million dollars. The jury was told how to calculate in this fact, and it was clear to counsel and the court. It was clear to the jury as well. It was also clear to counsel and the court what the jury was to record on the verdict form, but they misunderstood the jury’s message.

When the jury verdict is read in conjunction with the court’s charge, it is consistent with the jurors’ explanation of their written communication: the jury found that plaintiff was entitled to compensatory damages of $500,000 which the jury knew was already forthcoming from the other defendants. Since they had to show that compensatory damages were awarded, in order to support their award of exemplary damages, they indicated this finding. They had been instructed, after expressly asking, that exemplary damages could not be awarded if they found no compensatory damages. Thus, if they had indicated “0” in compensatory damages, the exemplary damages would have been unauthorized. If they had indicated less than $500,000 as compensatory damages, they thought their award of exemplary damages would be reduced by the difference.

A jury poll would not have uncovered this explanation, as the jurors would have answered “yes” to the questions posed. Their sworn statements, taken in deposition form, do not impeach the verdict but rather explain and sustain it, so they are not counter to the rule contained in OCGA § 9-10-9 but rather conform to it. Setzer v. Latimer, 40 Ga. App. 247 (149 SE 281) (1929); Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 59 (390 SE2d 55) (1989). The eleven jurors who gave statements unanimously and independently stated that plaintiff was to receive zero from Dr. Rosenbaum in compensatory damages. Eleven citizens (the twelfth juror preferred to talk directly to the court, which apparently was deemed unnecessary) who worked long and hard on this case agreed that plaintiff was entitled to a total of $500,000 in compensatory damages and that is what they wrote in their verdict. They knew that he had already been assured that amount from co-defendants, which was not reflected in any verdict. Their explanation of the meaning of the “$500,000” on the verdict form is entirely harmonious with what they had been told about plaintiff’s recovery and the instructions of the court. By returning the exact amount of the previous settlement, they indicated the gross amount of the compensatory damages, inferring that the net amount was to be zero.

The sworn statements of the jurors in this case do not seek to undermine the deliberative process or the integrity of the jury or its work. Consideration of them does not deserve the “important public interests” served by the rule against the impeachment of verdicts, as listed in Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990). The jurors merely clarify their verdict, as the trial court recognized.

Saint v. Ryan, 114 Ga. App. 489 (3) (151 SE2d 826) (1966), is not controlling to the extent that it held that the verdict could not be amended to reflect substantive correction. Here the verdict was not amended; it was explained and, the judgment having been partially nonconforming (see OCGA § 9-12-9), a new and limited trial was granted. The court deemed the compensatory part of the verdict illegal because, as originally construed, it recorded gross rather than net compensation and left extant the legal parts, i.e., the findings as to negligence and the exemplary damages. This it was permitted to do. OCGA § 9-12-8. Saint also differs because the complicating factor of exemplary damages was not present in that case, so the jury was not prompted to show compensatory damages in order to provide the prerequisite for the exemplary damages. The jury in Saint was simply and unequivocally told to deduct $2,000 from any amount they found plaintiff entitled to; in this case, the jury was told it needed to find compensatory damages in order to award exemplary damages, and it did so by finding that the amount previously agreed to be paid plaintiff fully compensated plaintiff. In Saint there was no reason not to deduct the $2,000 and so reflect on the verdict form; here there was good reason, i.e., the necessity to show the compensatory damages to support exemplary damages.

There was error in the lack of clarity, from the jury’s perspective, in the court’s instructions, which carried through to the written recordation of the verdict and so into the judgment which reflected the court’s misconstruction of the true verdict. There was not error in the court’s rectification of the same by the grant of a new trial on the issue of compensatory damages, the court apparently having concluded that the change would have been one of substance and not of form so that the verdict could not be amended under the authority of OCGA § 9-12-7.

Near the end of the court’s long charge, the court instructed the jury on compensatory and punitive damages and stated, just before it discussed the verdict form: “I further charge you that if you find that the plaintiff is entitled to recover punitive damages, you should not deduct anything from that [compensatory] amount.” With respect to the verdict form, it instructed in part: “If you determine from a preponderance of the evidence that the plaintiff is entitled to recover from the defendants in this case, then you would mark that choice and fill in the blank the amount of compensatory damages for which you find the plaintiff is entitled to recover. ... If you find that the plaintiff is entitled to recover against the defendants and determine the amount of compensatory damages, you must then determine whether or not you find that the plaintiff is also entitled to recover exemplary damages.”

Earlier the court had instructed the jury to determine the “total” amount plaintiff was entitled to, which it did in its deliberations and recorded on the verdict form. The court did not make clear that the net, not the gross, was to be recorded. The form did not ask for recordation of the net amount to be awarded; it simply asked for the amount of compensatory damages “against the Defendants.” In order for exemplary damages to be authorized, the jury had to show that it was awarding the $500,000 compensatory damages and it did so, recognizing from what it was told that this would in the end net to zero because of the settlement with the other parties. Had it shown “zero” compensatory damages, the prerequisite for exemplary damages would have been missing, and the verdict would be void on its face.

Insofar as there being no objections by defendant to the charge, the recharge, or the verdict form on this point, that should not be controlling because these matters were not objectionable. There simply was a conveyance of an idea as to what to write on the verdict form which was understood by the jury in one way and to counsel and the court in another way, and it did not become evident until after the trial.

The trial court was prompted to reflect on the verdict by the motion for new trial and, by expressly invoking OCGA § 51-12-12 as amended in 1987, concluded that its construction of the verdict so as to award an additional $500,000 would constitute excessive compensatory damages inconsistent with the preponderance of the evidence in the case. It specifically utilized the remedy provided by subsection (b) of that Code section. If this basis was wrong and the court was not authorized to conclude that recovery of one million dollars was excessive, then OCGA § 5-5-50 controls. See OCGA § 51-12-12 (c).

We are not authorized under OCGA § 5-5-50 to disturb the presiding judge’s first grant of a new trial because appellant has not shown an abuse of discretion or that the verdict of $500,000 compensatory damages, as the verdict was construed in the judgment, was required. There is evidence in the trial and in connection with the motion to support the movant, and a verdict of $500,000 on top of the $500,000 settlement is not demanded for plaintiff. See Winn Dixie Stores v. Whaley, 127 Ga. App. 381, 382 (1) (193 SE2d 279) (1972); Wellbeloved v. Wellbeloved, 209 Ga. 709, 710 (1) (75 SE2d 424) (1953). The trial court has the power to correct errors and grant new trials, OCGA § 5-5-1 (a), and it may do so under OCGA § 5-5-20 “when the verdict ... is found contrary to evidence and the principles of justice and equity.” See also OCGA § 5-5-21. These are addressed to the sound legal discretion of the trial judge. Kendrick v. Kendrick, 218 Ga. 460 (1) (128 SE2d 496) (1962). The court obviously concluded that as originally construed, the verdict fell into that category. I cannot agree that it was contrary to the “law . . . usages and customs of courts,” in the words of OCGA § 5-5-1 (a), for the court to exercise this power when all the evidence shows that the jury’s verdict was misconstrued and an injustice will otherwise result. A “verdict is a ‘true saying’ . . . [A] verdict delivered into court by a jury, which does not comport with the findings of that jury, is not a true saying. It would not speak the truth as the jury found it. The jury’s oath is to give a ‘true verdict.’ A verdict declaring contrary to the findings of the jury is not a true verdict. To hold otherwise would be to treat a solemn legal investigation as a game where victory may be won by inadvertence and methods that are worse.” Groves v. State, 162 Ga. 161, 162 (132 SE 769) (1926).

Decided September 9, 1992

Reconsideration denied October 13, 1992

Orr & Edwards, W. Fred Orr II, James G. Edwards II, for appellant.

Allen & Peters, Hunter S. Allen, Jr., Bradley C. Reeves, Gary R. McCain, for appellees.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A0975.
    McKIM v. KAUFFMAN.
    (424 SE2d 11)
   Birdsong, Presiding Judge.

This dispute is between the buyer and seller of agricultural property, wherein plaintiff McKim filed suit against seller Kauffman for his failure to convey to McKim two-thirds of the seller’s agricultural bases, including his peanut quota, as provided by the purchase contract. The case was heard by a jury and the jury awarded $8,000 to plaintiff McKim. Kauffman filed a motion for new trial which was granted. Subsequently the trial court granted summary judgment to seller Kauffman, ruling that it did not have jurisdiction of the matter because this is a dispute controlled by the Agriculture Stabilization & Conservation Service (ASCS) pursuant to 7 USCA § 1361 et seq. The trial court found and held in its decision granting summary judgment to seller Kauffman that the purchase contract provided that the conveyance of two-thirds of Kauffman’s peanut quota was “to be adjusted to conform to all rules and regulations of ASCS”; that McKim went to the ASCS office in 1989 to request a reconstitution of the peanut allotment and the ASCS, according to its own procedures, gave McKim a 55 percent allotment. McKim had sought a reconsideration of the allotment to conform to the purchase contract between him and Kauffman, but the ASCS determined that this was a dispute between two growers, and the county ASCS committee would not become involved in that dispute.

According to the trial court’s ruling and to the appellee, under the decisions of Conifer Farms v. Brent, 237 Ga. 42 (226 SE2d 585), and Carr v. Glass, 190 Ga. App. 148 (378 SE2d 383), appellant’s exclusive remedy in this matter was compliance with procedural requirements of the Agricultural Adjustment Act, 7 USCA § 1281 et seq., under which an adverse review of an ASCS determination by a committee of three local farmers is then subject to review in federal court or state court. See Carr, supra at 149. The trial court in this breach of contract case found that appellant failed to pursue these remedies and, pursuant to Carr, that the court was without jurisdiction to interfere.

Appellant contends the dispute was not with the ASCS determination; rather, the ASCS officer testified the ASCS would have had no problem giving appellant a two-thirds allotment and would have done so if Kauffman had come to the ASCS office and signed the necessary transfer form, but because Kauffman did not sign the necessary forms, the allotment was made according to ASCS determination according to its regulations. Held:

The trial court erred in granting summary judgment to appellee Kauffman. According to the record, it would have been fruitless for appellant to pursue all ASCS procedural remedies because the problem lay not with the ASCS ruling under its regulations, which appellant does not actually contest, but with Kauffman’s refusal to file the necessary transfer forms to effect a two-thirds reconstitution of his peanut allotment. According to the trial testimony of the ASCS officer, which is now a part of the record and which moreover was by stipulation considered in the summary judgment procedure, if Kauffman had filed the necessary transfer form, an allotment of two-thirds to McKim would not have been in violation of ASCS regulations and would not have presented a problem to the ASCS, and the reason the allotment of 55 percent was made was that, without a transfer form being filed by Kauffman, the ASCS could not give such an allotment.

In his breach of contract suit, appellant addressed Kauffman’s refusal to file the necessary transfer forms pursuant to his agreement to sell and convey in the contract for the sale of the real estate and “agricultural bases.” This breach of contract suit is not a challenge to the ruling which the ASCS made; in fact, appellant in effect concedes this particular ASCS ruling was required on account of Kauffman’s refusal to file the transfer forms. According to the evidence of the ASCS officer, the ruling would have been different if Kauffman had filed the transfer forms. Kauffman’s failure to file the necessary transfer forms in this case was not the domain of the ASCS office; it is the domain of Georgia law as to enforcement of contractual obligations.

The parties’ contract required Kauffman to convey two-thirds of his peanut allotment; he refused to do it, and according to the evidence if he had done it by filing the necessary transfer form, the two-thirds allotment would have been granted. The jury’s determination that Kauffman caused McKim $8,000 damage by failing to comply with his contractual obligations for conveyance of two-thirds of his peanut allotment is not an attempt to encroach upon the jurisdiction of the ASCS under federal law, and it does not challenge the findings of the ASCS; in fact, the jury’s verdict in effect upholds the ASCS determination giving McKim a 55 percent allotment and finds that Kauffman was liable for failing to convey a two-thirds allotment. This case is riot controlled by Carr v. Glass, supra, because it is not clear in that opinion that the dispute was not centered upon the determiriation by the ASCS, and it appeals the purchaser’s damage in that case was caused by his failure to pursue all ASCS procedural remedies. This case is more related to Combustion Engineering v. Norris, 246 Ga. 413 (271 SE2d 813), where it was held in effect that as to a loss of ASCS allotment to certain farmland, by reason of the owner’s transfer of the allotment to a third party, the purchaser of the farmland had a remedy at law. The bone of contention in that case, as here, is not the action of the ASCS, but the action or inaction of the seller of the farmland. Accordingly, the trial court erred in granting summary judgment to appellee Kauffman on the grant of new trial and erred in denying appellant’s renewed motion for summary judgment in the case. Inasmuch as appellant did not properly appeal and enumerate as error the grant of new trial which vacated the jury verdict and award of $8,000, we are not authorized to reinstate the jury verdict as to the amount of damages.

Judgment reversed.

Beasley and Andrews, JJ., concur.

Decided September 10, 1992

Reconsideration dismissed October 13, 1992.

Jon L. Coogle, Walker, Hulbert, Gray & Byrd, Charles W. Byrd, for appellant.

Chew & Lamberth, Walter S. Chew, Jr., for appellee.


author: Johnson, Judge.

text:
    A92A1007.
    PACKER PLASTICS, INC. v. JOHNSON.
    (423 SE2d 690)
    Decided September 30, 1992
    Reconsideration denied October 13, 1992.

      McArthur & McArthur, John J. McArthur, for appellant.
   Johnson, Judge.

Packer Plastics, Inc., obtained a default judgment in Kansas for $17,462.25 against Brad Johnson d/b/a Poss Sage’s Restaurant. Johnson, a Georgia resident, filed a motion to set aside the default judgment in the Kansas court, arguing that his failure to file an answer to Packer Plastic’s complaint was due to excusable neglect. The Kansas court denied Johnson’s motion to set aside the judgment. Packer Plastics then filed an action in the Superior Court of Clarke County, Georgia to domesticate and enforce the Kansas judgment. In response, Johnson filed a motion to vacate the Kansas judgment on the ground of lack of personal jurisdiction. The Georgia court granted Johnson’s motion and vacated the judgment of the Kansas court. Packer Plastics appeals.

A collateral attack upon a petition to domesticate a foreign judgment on the basis of lack of personal jurisdiction is precluded if the defendant has appeared in the foreign court and has thus had the opportunity to litigate the issue. Southeastern Metal Prods. v. Horger, 175 Ga. App. 143, 144 (3) (332 SE2d 662) (1985); International Systems v. Bladen County, 168 Ga. App. 316 (1) (308 SE2d 679) (1983). Here, Johnson appeared in the Kansas court and thus had the opportunity to litigate the issue of lack of personal jurisdiction when he filed his motion to set aside the default judgment. Johnson is therefore precluded from collaterally attacking Packer Plastic’s action to domesticate the default judgment on the basis of lack of personal jurisdiction. Accordingly, the trial court erred in granting Johnson’s motion to vacate the Kansas judgment.

Judgment reversed.

Carley, P. J., and Pope, J., concur.

Hudson & Montgomery, J. David Crowe, for appellee.


author: Cooper, Judge.

text:
    A92A0948.
    FEDERATED DEPARTMENT STORES, INC. v. CLUM.
    (423 SE2d 716)
   Cooper, Judge.

In this personal injury case, we granted appellant’s application for interlocutory review of the trial court’s denial of its motion for summary judgment. Appellant contends that summary judgment should have been granted because there was no defect in its premises of which it had superior knowledge and because appellee failed to exercise ordinary care for her own safety as a matter of law.

Viewing the record in a manner most favorable to appellee as the non-moving party on a motion for summary judgment, it appears that, while shopping in appellant’s store, appellee stopped in the rug department to look at oriental rugs. Appellee was particdlarly interested in appellant’s hallway runners, which were stored in rolls like paper towels and displayed standing on end against one wall of the rug department. While appellee watched, á sales associate unrolled two or three feet of a runner in the aisle so appellee could take a better look at it. Appellee viewed the rug, but decided not to make a purchase. As she began to leave the sales associate asked her to take a business card, which she did. Upon noticing that the sales associate had an unusual surname, appellee engaged in a conversation with the sales associate which lasted several minutes. Appellee then turned to leave and, forgetting about the partially unrolled rug in the aisle, tripped over the still-rolled portion and slipped as the unrolled portion slid out from under her.

Appellant argues that it is not liable because appellee’s fall was not caused by a defect or dangerous condition of which appellant had knowledge superior to that of appellee. “ ‘The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. . . . The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ [Cit.]” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (2) (138 SE2d 77) (1964). (Emphasis in original.) Although we reject appellant’s suggestion that the presence of a half-rolled roll of carpet is a “usual” obstruction that should be expected in the aisles of a rug department rather than a hazardous condition, see, e.g., Meriwether Mem. Hosp. Auth. v. Gresham, 202 Ga. App. 535 (1) (414 SE2d 694) (1992), it is undisputed that appellee watched the sales associate create the hazardous condition by unrolling the carpet halfway, without a pad, and leaving it that way. Thus, “[appellee’s] means of knowledge being equal with that of [appellant], it follows that she has failed to show a right of recovery based upon the acts of negligence alleged.’ [Cit.]” Pound v. Augusta National, 158 Ga. App. 166, 168 (279 SE2d 342) (1981).

Decided October 13, 1992.

Sullivan, Hall, Booth & Smith, John.E. Hall, Jr., David V. Johnson, for appellant.

Erwin, Epting, Gibson & McLeod, Malcolm C. McArthur, for appellee.

Appellee argues that she was distracted by the lengthy conversation she had with the sales associate after the sales associate asked appellee to take her business card. Appellee’s reliance on the distraction doctrine to counteract her equal knowledge is misplaced, however, because her alleged distraction was self-induced, was not created by appellant, and could not have been reasonably anticipated by appellant. As such, the conversation cannot provide appellee with an excuse for her lack of care for her own safety. See, e.g., Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473 (249 SE2d 276) (1978). Accordingly, the trial court erred in denying appellant’s motion for summary judgment.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1393.
    MELVIN v. THE STATE.
    (423 SE2d 718)
   Birdsong, Presiding Judge.

Johnny David Melvin was charged by accusation with one count of DUI (OCGA § 40-6-391 (a) (1)) and driving with an unlawful blood alcohol level (OCGA § 40-6-391 (a) (4)). In a bench trial, he was found not guilty of DUI and guilty of driving with an unlawful blood alcohol level; his motion for new trial was denied. Melvin appeals the denial of his motion for new trial.

Appellant was stopped for speeding. The police officer observed appellant was unsteady on his feet and his eyes were “real glassy.” After being given an alcosensor test, appellant was arrested and transported to the police station and administered an Intoximeter 3000 test. Appellant was informed of his test result (.19 grams) and right to additional testing; he requested a blood test.

Appellant also was informed that he had the responsibility to make the arrangements for his additional test, and that he would be transported to the hospital “if” he could make the necessary test arrangements. The arresting officer phoned the Houston County Medical Center and allowed appellant to converse with the emergency room nurse concerning the test. The nurse informed appellant that his attorney would have to be present before the blood test would be performed. Appellant informed the arresting officer of this requirement. The arresting officer overheard appellant on the phone informing the nurse that he did not have an attorney. The arresting officer also talked to the nurse to confirm personally what he had been previously told about the hospital’s requirement that before they performed a blood alcohol test the person’s attorney must be present or must call and authorize the procedure. The arresting officer observed appellant fumbling in his wallet for his attorney’s number, and suggested that he might be able to look the number up in a phone book. Appellant was given a phone book. Melvin attempted to locate his attorney but could not do so with one phone call. He asked and was allowed to make another call to a friend whom he requested to locate his attorney and meet him at the hospital.

The arresting officer, based on all his observations and appellant’s comments, concluded appellant could not meet the hospital’s requirements. Generally, when a person is not belligerent or causing a disturbance (and appellant was cooperative) the police do not restrict the number of phone calls he may make. After his calls were completed, appellant never asked to make any more calls. Appellant was then fingerprinted, placed in a jail cell, and the arresting officer returned to patrol duties. The arresting officer did not transport appellant to the hospital that evening primarily because appellant did not contact an attorney. Approximately three hours later, appellant’s friend arrived at the police station without an attorney. Although appellant never received a blood test, the arresting officer testified he would have transported appellant to the hospital had he made the necessary arrangements to take the test. Appellant never informed the police that he had made the necessary arrangements for his test, nor did he indicate to anyone that an attorney would be able to meet him at the hospital.

Appellant testified that he told the nurse he had the money to pay for the test, but she informed him that his attorney must be present. Appellant asked the nurse to tell the officer what she had said and handed the officer the phone. The officer “locked [appellant] back in the cell and that was the last time [appellant] was able to use the phone.” He was not given an opportunity to try to obtain an attorney, and he was never transported to the hospital. However, appellant also testified that he had “made an attempt” to call his attorney, but was unable to do so as he had only the attorney’s office number. Being unable to contact his attorney, appellant “called [his] employer” and told him to meet him at the hospital with appellant’s attorney. Appellant claimed that if he had been allowed to go to the hospital he could have had an attorney there.

On cross-examination appellant clarified his testimony on direct regarding being returned to the jail cell, by explaining that he had been placed back in his cell within a 10-15 minute range after the hospital call was concluded and that he had been allowed to call his employer and a bail bondsman. Appellant claimed that he “wasn’t able to” make any other calls that evening. He did not ask anyone at the police station if he could make any more calls as he assumed he was being transported to the hospital because the arresting officer told appellant he would take him there. However, he was locked up and left alone in a cell thereafter. Appellant claimed that he had the money to make calls and, consequently, if he had been transported to the hospital he could have called his attorney from there. He did not attempt to call any other attorney. Held:

1. Appellant asserts the trial court erred in admitting the intoximeter test results, as he had been denied his right to an independent test.

(a) “ ‘Questions of credibility arising out of conflict in testimony regarding the circumstances of pursuing the additional testing . . . (are) for resolution by the court.’ ” Dozier v. State, 187 Ga. App. 51, 53 (1) (369 SE2d 328). On appeal evidence must be viewed in the light most favorable to support the verdict; an appellate court determines evidence sufficiency and does not weigh evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737).

(b) “OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. [Cit.] While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. [Cit.] The statute also states that ‘the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.” State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548).

Appellant places great emphasis on the fact that had he been transported forthwith to the hospital he could have contacted his attorney and met the hospital testing requirements in time to obtain a valid test. Apart from the speculativeness of this argument, as the record does not establish any actual police interference in appellant’s contacting the hospital or others who could assist him, we find the police had no requirement to transport appellant until after appellant adequately arranged for testing by meeting the hospital testing requirements. “Where a defendant makes no arrangements to secure an independent test, the mere fact that it was not made ‘fails to disclose any reason to suppress the evidence merely because the defendant was unable to obtain a test of his own choosing.’ [Cit.] Before the duty of the police arises to transport a defendant to the location of the test, he must first show that he had made arrangements with a qualified person of his own choosing, that the test would be made if he came to the hospital, that he so informed the personnel at the jail where he was under arrest,'and that those holding him then ‘either refused or in any event failed to take him to the hospital for that purpose.’ [Cit.] Because appellant never informed anyone that a test was available ... it cannot be said that the arresting officers breached their duty and prevented him from exercising his right to an independent test; and it was not their duty ‘to insure the performance of such test.’ ” (Emphasis supplied.) Harper v. State, 164 Ga. App. 230, 231 (296 SE2d 782). Further, “[i]n cases such as this where the testimony is conflicting, the credibility of the witnesses is for the trial court, as the trier of fact, and in such cases the findings of the trial court will not be reversed if there is evidence from which the trial court could conclude that a reasonable effort was made to accommodate the request for an independent test and the law enforcement officers did not prevent the defendant from obtaining the independent test. [Cit.] As there is evidence supporting the ruling of the trial court, it will not be reversed. The mere fact [appellant] was not able to obtain an independent test does not require the exclusion of the State’s test.” Thornhill v. State, 202 Ga. App. 826, 827 (415 SE2d 473). The trial court did not err in admitting the evidence of the State’s intoximeter results. Compare Pruitt v. State, 203 Ga. App. 125 (416 SE2d 524) (prosecution satisfied its burden of proof by the procedure used).

2. Appellant asserts the trial court erred by refusing to allow him to give limited testimony and be subject to cross-examination only over the issue of the admissibility of the independent chemical test, that is, the issue of the admissibility of the State’s intoximeter testing results. Appellant was granted a continuous objection to being denied the right to give such limited testimony. Thereafter, he testified and was subject to the full range of cross-examination covering matters relevant to both offenses of which he was charged.

Decided October 13, 1992.

Williams, Sammons & Sammons, George L. Williams, Jr., for appellant.

Robert E. Turner, Solicitor, Cynthia T. Adams, Assistant Solid- tor, for appellee.

Pretermitting the question whether error occurred as enumerated (cf. Williams v. State, 231 Ga. 508, 509 (2) (202 SE2d 433)) is whether any such error would have been harmless. For the following reasons, we find that it would.

First, the record establishes that appellant was found not guilty by the trial judge of the offense of DUI. Accordingly, any issue whether appellant was prejudiced by being compelled to testify concerning this particular offense has been rendered moot.

Secondly, assuming appellant had been allowed to give limited testimony and to be subjected to restricted cross-examination as proposed at trial, he still would have been subjected to full and searching cross-examination as to each and every matter relevant to the issue of the admissibility of the State’s intoximeter results. The record reveals that appellant’s proposed limited testimony and restricted cross-examination encompassed the testimony of the accused “on the question of the admissibility of that [the State’s intoximeter] test.” Thus, the State would have been entitled, in any event, to cross-examine appellant searchingly as to all matters relevant to that limited issue. OCGA § 24-9-64. Under Georgia law any evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues. Smith v. State, 181 Ga. App. 136 (1) (351 SE2d 530). Thus, we find that, as to any testimony falling within this category, no error occurred by virtue of the trial court’s ruling.

Thirdly, as to any evidence disclosed by this procedure, which would have had no relevance as to the issue of admissibility of the State’s intoximeter test, we find, beyond a reasonable doubt, that the disclosure of this evidence in a non-jury trial did not contribute to the subsequent finding by the trial judge that appellant was guilty of the offense of driving with an unlawful blood alcohol level. “The trial judge is presumed to know the law and to be capable of separating admissible grains of evidence from inadmissible chaff.” Rowe v. Rowe, 195 Ga. App. 493, 494 (2) (393 SE2d 750). The record fails to establish that the trial judge did not so perform his duties in this case.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1654.
    MANOUS v. THE STATE.
    (423 SE2d 721)
   Cooper, Judge.

Appellant was convicted by a jury of possession of tools for the commission of a crime (OCGA § 16-7-20) and appeals from the judgment of conviction entered on the verdict.

The evidence adduced at trial reveals that while on patrol at approximately 3:00 a.m., an officer observed a car parked near the back of a Firestone store. The officer noticed that the car was in an unusual location and that the car had not been there when he patrolled the area approximately two hours earlier. The officer drove back by the area with his lights off and saw a white male coming from the back of a building bordering the Firestone store. The man was wearing a white shirt and black pants and carrying something in his hands. Upon seeing the officer, the man began to run away, and the officer pursued him until the suspect ran into some nearby woods. The officer called for backup and waited for the suspect to emerge from the woods. The officer ran a check on the car parked at the Firestone store and discovered that it was registered to appellant. When he saw a take-out box from Pizza Hut on the floor of the car, the officer suspected that the Pizza Hut next door had been burglarized and immediately went there. The officer found the glass front door knocked out and a locked cash box and an open bank bag on the counter inside. As the officer left the Pizza Hut, he saw the suspect coming from the woods back toward the Pizza Hut. The suspect was now wearing black pants without a shirt or shoes, and his face and body were covered with scratches and mud. The suspect identified himself as appellant and was placed under arrest. Appellant gave a statement to officers, contending that he had been knocked over the head by a hitchhiker and did not remember anything. The officers searched the woods appellant ran into and found a pair of gloves and a screwdriver. Appellant denied that the gloves and screwdriver belonged to him. However, the manager of the Pizza Hut testified that the gloves found in the woods were the same gloves appellant used to wear when he worked at the restaurant cleaning ovens. Appellant’s car was searched and a glass cutter and three lock picks were found. Appellant’s explanation for these items was that he was studying to be a locksmith.

1. In his first enumeration of error, appellant contends that the evidence was insufficient to support the conviction. OCGA § 16-7-20 (a) provides that “[a] person commits the offense of possession of tools for the commission of crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.” Appellant was seen walking from an area in close proximity to the Pizza Hut, which had been forcibly entered. A glass cutter and lock picks were found in appellant’s car, which was parked in the lot of a store adjacent to the Pizza Hut. Appellant ran when he saw the police officer and carried something with him into the woods. A screwdriver and a pair of gloves were found in the area of the woods where appellant ran, and the gloves were subsequently identified as belonging to appellant. Appellant’s reliance on Burnette v. State, 168 Ga. App. 578 (2) (309 SE2d 875) (1983), is misplaced because that case is factually distinguishable. In Burnette, the tools found were ordinary household tools and showed signs of rust, indicating that they had not been recently used. Also, the burglarized premises did not appear to have been forcibly entered. In this case, the State presented evidence from which the jury could conclude that appellant possessed the tools with the intent to use them in a burglary of the Pizza Hut. Viewing the evidence in the light most favorable to upholding the jury’s verdict, as we are required to do, we conclude that a rational trier of fact could have found appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ranson v. State, 198 Ga. App. 659 (1) (402 SE2d 740) (1991).

2. Appellant contends in his second enumeration of error that the trial court erred in denying his motion for mistrial. Appellant moved for a mistrial on the grounds that his character was impermissibly placed in evidence when an officer testified that following his arrest, appellant stated that he had to be in court in Cherokee County in the morning. The trial court denied appellant’s motion and instructed the jury to disregard the response given by the officer. We do not find that the testimony of the police officer reflected upon the character of the accused. See, e.g., Cherry v. State, 220 Ga. 695 (3) (141 SE2d 412) (1965). Moreover, we conclude that the trial court’s instruction to the jury was sufficient to cure any error. Accordingly, we find that the trial court did not abuse its discretion in denying appellant’s motion for mistrial.

3. Appellant argues that the trial court erred in charging the jury as follows: “While mere presence at the scene of the commission of the crime is not sufficient evidence to convict one of being a party thereto, presence and conduct before and after [the] offense [are] circumstances from which one’s participation in the criminal intent may be inferred. ...” Appellant contends that the charge unduly emphasized the circumstances surrounding the crime. The charge was authorized by the evidence, and “taken as a whole, clearly instructed the jury of the factors it was to consider in its deliberations. . . .” Tate v. State, 198 Ga. App. 276, 279 (4) (401 SE2d 549) (1991).

Decided October 13, 1992.

Awtrey & Parker, Barbara H. Martin, Robert B. Silliman, for appellant.

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

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Carley, Presiding Judge.

text:
    A92A1463, A92A1464.
    DORMINEY v. THE STATE (two cases).
    (423 SE2d 698)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of marijuana with intent to distribute. In Case No. A92A1463, he appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict. In Case No. A92A1464, he appeals from the denial of his motion for appeal bond.

Case No. A92A1463

1. Appellant enumerates as error only the denial of his motion to suppress the marijuana which was seized from his residence pursuant to a search warrant.

The warrant had been sought on the basis of information supplied by an otherwise unidentified “concerned citizen.” At the hearing on appellant’s motion, it was shown that the affidavit submitted to the magistrate may have contained “embellishments” as to the extent of the information supplied to the affiant by the concerned citizen. However, these embellishments certainly cannot be characterized as deliberate falsehoods and, when these embellishments are eliminated from consideration, the affidavit contains the following unchallenged information: The concerned citizen had seen at least two pounds of marijuana in appellant’s residence on several occasions in the last three months. The concerned citizen confirmed information already obtained by police regarding appellant’s relationship with a suspected drug supplier and a suspiciously high volume of vehicular and pedestrian traffic at his residence. The affiant determined that the concerned citizen had no criminal record himself and he assessed the concerned citizen to be intelligent, mature, sober, and coherent.

It would appear that the affidavit meets even the abandoned two-pronged Aguilar-Spinelli test. See Hardy v. State, 162 Ga. App. 797, 798-799 (2) (292 SE2d 902) (1982); Devier v. State, 247 Ga. 635, 638 (5, 6) (277 SE2d 729) (1981). Moreover, this more stringent test has now been replaced by the less rigorous “totality of the circumstances” test. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983); State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984). See also Peacock v. State, 170 Ga. App. 309, 310 (1) (316 SE2d 864) (1984); Bromley v. State, 259 Ga. 377, 379 (3) (380 SE2d 694) (1989). This test has been met in the instant case, in that the information set forth in the affidavit provided a substantial basis from which the magistrate could determine that marijuana was currently being stored at appellant’s house. See Bell v. State, 204 Ga. App. 528 (1) (419 SE2d 729) (1992); McQueen v. State, 189 Ga. App. 743, 744 (377 SE2d 682) (1988); Hunter v. State, 198 Ga. App. 41, 42 (1) (400 SE2d 641) (1990).

“At the hearing on the motion to suppress, there was no evidence that the affidavit upon which the search warrant was issued contained deliberate falsehoods or had been made with reckless disregard for the truth or that the affiant had consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable cause. [Cits.]” Dale v. State, 198 Ga. App. 479, 480 (4) (402 SE2d 90) (1991). See also State v. Thomas, 203 Ga. App. 623, 624 (417 SE2d 328) (1992); Ledbetter v. State, 190 Ga. App. 843, 844 (1) (380 SE2d 313) (1989); McQueen v. State, supra at 744; Hunter v. State, supra at 42-43 (1). “In the absence of such evidence, the presumption of validity of an affidavit executed in support of a search warrant must stand. [Cit.]” Hayes v. State, 182 Ga. App. 319, 320 (1) (355 SE2d 700) (1987). Even if the statements alleged to have been embellished are “excised from the affidavit, the remaining information is sufficient to show probable cause; therefore, the search warrant is valid. [Cit.]” State v. Thomas, supra at 624. See also Rimmer v. State, 197 Ga. App. 294, 295 (1) (398 SE2d 282) (1990).

Moreover, “[b]ased on the totality of the circumstances, we find the law enforcement officials acted in objective good faith, within the meaning of [United States v.] Leon[, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984)], in . . . obtaining . . . the search warrant and that any deficiency in the warrant or its affidavit would not result in the invocation of the exclusionary rule. The correct decision of a trial court will not be reversed regardless of the reason ascribed thereto. [Cit.] The trial court did not err in denying appellant’s motion to suppress.” Talley v. State, 200 Ga. App. 442, 445 (3d) (408 SE2d 463) (1991). See also Taylor v. State, 204 Ga. App. 236, 237 (2) (419 SE2d 56) (1992); Davis v. State, 198 Ga. App. 310 (1) (401 SE2d 326) (1991).

Decided October 2, 1992

Reconsideration denied October 14, 1992

John G. Cicala, Jr., George L. Kimel, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Case No. A92A1464

2. “Appellant contends that . . . the trial court’s denial [of his motion for a post-conviction supersedeas bond] should be reversed and a bond granted during the pendency of the appeal process. However, ‘ “the issue is moot because we affirm the conviction.” [Cit.]’ [Cit.]” Griffin v. State, 199 Ga. App. 646, 649 (4) (405 SE2d 877) (1991). See also Ledesma v. State, 251 Ga. 885, 891 (11) (311 SE2d 427) (1984); Harris v. State, 196 Ga. App. 304, 307 (6) (396 SE2d 288) (1990).

Judgment affirmed in Case No. A92A1463. Appeal dismissed in Case No. A92A1464.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A1574.
    SAUNDERS et al. v. BAILEY et al.
    (423 SE2d 688)
   Pope, Judge.

Claimant Charlotte A. Bailey sustained a severe back injury which arose out of her employment with Burger King. She underwent surgery for the treatment of two ruptured disks and was unable to resume her job. She was unemployed for several months and then had a succession of jobs ranging from waitress to receptionist to gas station attendant but due to her physical condition was unable to hold the jobs. She then obtained a job as a janitorial worker with John Saunders, doing business as Spic-N-Span Janitorial Service (“Spic-N-Span”). During the job interview the employer described the duties as involving dusting, sweeping, mopping, vacuuming and removing the trash. According to the employer the claimant was asked if she had any health problems that would keep her from doing the type of work described to her, and the claimant answered that her health would not be a problem. The claimant did not disclose that she had a preexisting back injury. Claimant was offered the job and approximately six weeks after commencing work she re-injured her back.

Claimant requested a hearing on her claim of a compensable injury against Spic-N-Span and her claim of a change in condition against Burger King. The ALJ found the claimant “knowingly and willfully lied to [Spic-N-Span] at the time of hire when she stated that she had no physical problems that would prevent her from doing the work.” The ALJ also found the employer relied on the claimant’s representations and would not have hired her if her history of back problems had been revealed and further found a direct causal relationship between the misrepresentations and the new injury. Consequently, the ALJ concluded that the claim against Spic-N-Span was barred pursuant to the holding in Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989). On appeal to the full board, the board made a de novo consideration of the evidence and found that the information supplied by the claimant was not sufficient to show a wilful misrepresentation of her physical condition as required by the Rycroft opinion. In reaching this finding, the board noted that the information supplied by the claimant was not given in response to a written application and the board concluded that the questions asked by the employer were “vague verbal questions” which “provided the employee with an opportunity to form a subjective opinion as to any impairment of her ability to work and respond accordingly.” The board ordered Spic-N-Span to pay benefits to the claimant for the new injury she had sustained and the superior court affirmed the board’s order. Spic-N-Span filed this appeal.

The Rycroft opinion sets forth a three-pronged test for determining when an employee is barred from collecting workers’ compensation benefits on the ground of fraudulent procurement of employment. One of the factors which must be shown to establish the Rycroft defense is that the employee “knowingly and wilfully made a false representation as to his physical condition.” (Citation omitted.) 259 Ga. at 158. We find no requirement in Rycroft that the misrepresentation be made in response to written questions. In fact, the recitation of facts in the Rycroft opinion indicates the misrepresentation at issue in that case was made both on a written form and orally “during an interview. . . .” Id. at 156. The only issue in this case, then, is whether the claimant’s oral statement constituted a knowing and wilful misrepresentation of her physical condition. Given the claimant’s knowledge of her inability to perform several other jobs involving a wide range of physical activities, and given the claimant’s admission at the hearing on the claim that other employers had refused to offer her a job once they learned that she had suffered a previous back injury, a question was presented for the trier of fact concerning whether claimant’s statement was fraudulent. Under the “any evidence rule,” it is our opinion that sufficient evidence was presented to support the finding of the ALJ. On the other hand, sufficient evidence was presented to support the conclusion that the claimant’s answer to the question concerning whether her health would permit her to perform the job was her good faith opinion and not a knowing misrepresentation. In reviewing a claim heard by a single ALJ, the board may make new and different findings of fact, even though the findings of fact by the ALJ are supported by some evidence. See, e.g., Automatic Sprinkler Corp. of America v. Rucker, 87 Ga. App. 375 (2) (73 SE2d 609) (1952). Thus, the superior court did not err in affirming the de novo findings of the board.

Decided September 28, 1992

Reconsideration denied October 14, 1992

Lowendick & Speed, Wallace Speed, Leigh A. Lockridge, Kenneth B. Donahue, for appellants.

Divine, Wilkin, Raulerson & Fields, W. Douglas Divine, William J. Murray, for appellees.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1499.
    SMITH v. THE STATE.
    (424 SE2d 56)
   McMurray, Presiding Judge.

Defendant Smith appeals his conviction on 14 criminal charges, including possession of cocaine with intent to distribute, criminal attempt to possess cocaine with intent to distribute, burglary, aggravated assault with a deadly weapon, 4 counts of terroristic threats (upon Jimmie King, Sharon King, Keisa King, and Cora Ammons), criminal attempt to commit extortion, 3 counts of false imprisonment (of Jimmie King, Sharon King, and Keisa King), possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Held:

1. Defendant contends that the State failed to prove his guilt beyond a reasonable doubt. The evidence viewed in the light most favorable to upholding the jury’s verdict shows that co-defendant Hollis was distributing cocaine in and around Unionville when he sold out and went to get a resupply from co-defendant Stuckey. Hollis was accompanied by defendant. Stuckey went to the yard behind a duplex occupied by the King family and reported back that his cache of cocaine was missing. Defendant then accompanied Hollis and Stuckey in a search for the cocaine which they were unable to find in the dark. After some discussion the three concluded that Jimmie King, who had been in the back yard, must have stolen the missing cocaine. Defendant and Stuckey walked around to the front of the apartment and defendant kicked in the door. Jimmie King, his wife Sharon King, and their daughter Keisa King were present in the apartment. The three intruders demanded the return of the cocaine and were told that they did not have it. Stuckey then drew a pistol and pointed it at Jimmie King’s head as the demands for return of the cocaine continued. During the interval which followed, Cora Ammons, Sharon King’s mother, was repeatedly telephoned by each of the members of the King household concerning the intruders and requesting her help. Ms. Ammons traveled as rapidly as possible to the King home where she found five men (the three original intruders having been joined by co-defendants Rhodes and Davis). Defendant attempted to prevent Ms. Ammons’ entrance but she pushed past him. When Ms. Ammons arrived Stuckey had the gun to Jimmie King’s head. None of the intruders attempted to interfere with Stuckey’s use of the gun or threats against Ms. Ammons and the King family. All five of them were continuing to demand return of the cocaine. They threatened to kill the entire King family and Ms. Ammons if the cocaine was not returned. At this time Sharon King was trying to get to her husband and defendant was holding her back. The King family and Ms. Ammons tried to leave but the intruders would not permit them to leave. Ms. Ammons began to negotiate with the intruders, asking what was the value of the missing cocaine. Finally, in exchange for Ms. Ammons’ promise to pay them a sum in excess of $2,000 later that morning, Ms. Ammons was permitted to leave with her daughter and granddaughter approximately 30 to 45 minutes after she arrived. Ms. Ammons was unable to raise the money, and, after ascertaining that the intruders were still at the King home, called the police and the five intruders were soon arrested. Police later found crack cocaine in the front yard of the adjoining unoccupied residence.

In order to show that defendant was guilty of the offense of possession of cocaine with intent to distribute, the evidence must establish, along with other elements of the crime, that defendant alone or jointly with another had actual or constructive possession of cocaine. There is clearly no evidence of actual possession by defendant. Constructive possession is shown where one knowingly has both the power and the intention at a given time to exercise authority or control over a thing. Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339); Wright v. State, 199 Ga. App. 718, 719 (2), 720 (405 SE2d 757). It cannot be reasonably suggested that one has the power to exercise control over something which has been lost or stolen. The entire sequence of events at issue unfolded after Stuckey discovered that he no longer possessed the power to exercise control over the cocaine he had hidden. While defendant participated in the attempt to recover the cocaine there is no evidence that defendant shared possession of the cocaine before it was lost. Defendant attempted to commit the crime of possession of cocaine with intent to distribute and there is evidence that he took significant steps to accomplish this goal, was thwarted only by the loss of the cocaine, and defendant’s conviction for the offense of criminal attempt to possess cocaine with intent to distribute was authorized by the evidence. OC.GA §§ 16-13-33 and 16-4-1. However, because the evidence fails to establish that defendant /ever possessed the cocaine, his conviction of possession of cocaine with intent to distribute must be reversed.

Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. “A person is concerned in the commission of a crime only if he: . . . Directly commits the crime . . . [or] Intentionally aids or abets in the commission of the crime. . . .” OCGA § 16-2-20 (b). The jury was authorized to conclude that defendant was either the perpetrator or an aider and abettor of each of the remaining charges of which defendant was convicted. The evidence showed much more than defendant’s mere presence at the scene of these crimes. Defendant plainly took an active role in the criminal conspiracy described by the evidence. Henderson v. State, 200 Ga. App. 200 (1) (407 SE2d 448); Williams v. State, 200 Ga. App. 84, 85 (1), 86 (406 SE2d 498).

It was not necessary that the gun have been in defendant’s immediate possession for him to be convicted on the firearms charges. As defendant was a party to the crimes, he and his co-conspirator were responsible for the acts of the others. Defendant, being responsible for the acts of Stuckey, was in possession of the gun in violation of the penal provisions. Coursey v. State, 196 Ga. App. 135 (1), 136 (395 SE2d 574).

After carefully examining the record and transcript, we find that the evidence is not sufficient to authorize defendant’s conviction of possession of cocaine with intent to distribute. As to the remaining offenses of which defendant was convicted, we find that a rational trier of fact could reasonably find defendant guilty beyond a reasonable doubt of each of these offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends that all of the charges merged into one conviction. The double jeopardy provisions invoked by this enumeration of error are set out in OCGA §§ 16-1-6 and 16-1-7.

The contention that the two drug charges merged is rendered moot by the reversal of defendant’s conviction of possession of cocaine with intent to distribute. “The offense of possession of a firearm during the commission of a felony does not merge into the felony upon convictions for both.” Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714). See OCGA § 16-11-106 (e). Neither were the two firearms charges included one within the other as each has its distinctive element, the status of the offender as a previously convicted felon in the offense of possession of a firearm by a convicted felon, and the pending commission of a specified crime in the offense of possession of a firearm during commission of a crime. After examining each of the remaining convictions, we conclude that none of these offenses merge as a matter of fact or law.

Decided October 14, 1992.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Vernon R. Beinke, Assistant District Attorneys, for appellee.

3. Defendant’s remaining enumerations of error complain of the trial court’s refusal to give requested instructions to the jury. The first two of these requests, for a charge on mistake of fact and on a person’s right to use force to protect a third person were not adjusted to any principle involved in the case or authorized by the evidence at trial. Grant v. State, 197 Ga. App. 878, 879 (2), 880 (399 SE2d 743).

Nor did the trial court err in refusing to charge that the testimony of an accomplice must be corroborated. The requested charge was argumentative and in any event unnecessary since none of defendant’s convictions rested solely on the testimony of a single accomplice. Ross v. State, 245 Ga. 173, 177 (5) (263 SE2d 913).

Defendant’s final enumeration of error contends the trial court erred in giving the requested charge on evaluating a witness’ motive for testifying against defendant. To the extent that this charge was adjusted to the evidence, its substance was adequately covered in the trial court’s general charge which instructed the jury to consider the believability of witnesses as well as their interest and bias. Pace v. State, 201 Ga. App. 475, 476 (2) (411 SE2d 361); Williams v. State, 199 Ga. App. 566, 571 (5) (405 SE2d 716).

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1570.
    HARRIS v. THE STATE.
    (423 SE2d 723)
   Johnson, Judge.

Palace Harris was indicted for possession of cocaine. His pre-trial motion to suppress evidence was denied by the trial court. Harris entered a guilty plea to possession of cocaine and properly reserved his right to appeal from the order denying his motion to suppress.

1. Harris contends that the trial court erred in denying his motion to suppress as his alleged consent to be searched resulted from an illegal detention.

Reasons for brief investigatory stops need not rise to the level of probable cause to make an arrest, but merely to the level of articulable suspicion that the law was being violated. Terry v. Ohio, 392 U. S. 1, 30 (88 SC 1868, 20 LE2d 889) (1968); see also Shaw v. State, 179 Ga. App. 807 (348 SE2d 132) (1986).

At the hearing on Harris’ motion to suppress, Officer Gary Casteloes testified that he and other drug agents were performing a routine patrol in a “known drug area” where there are “many shootings.” When Harris and several other individuals saw the patrol car, they began running. The flight of the individuals prompted the officers to chase them.

Casteloes testified that it had been his experience that when police patrol “high drug areas,” individuals with drugs on their person usually run upon the arrival of the police. An individual’s flight upon seeing a police officer may be some evidence of guilt. See generally Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972) (where this court held that flight along with other circumstances is sufficient to create probable cause for a warrantless arrest). Under the totality of the circumstances, we conclude that Harris’ flight after observing the police car gave the officers sufficient articulable suspicion to conduct a Terry “stop and frisk.”

2. Harris further contends that the trial court erred in ruling that the evidence sought to be suppressed was obtained as a result of a valid consensual search as Harris’ consent to the search was not given freely and voluntarily.

After Harris was apprehended, Casteloes frisked him and, in doing so, felt an object in his pocket. Casteloes asked Harris what the object was, and Harris replied that it was tissue. Casteloes testified that he asked Harris if he could remove the tissue from his pocket, and Harris consented. Casteloes then removed the tissue from Harris’ pocket and found a piece of “crack” cocaine wrapped inside.

The lower court’s decision on questions of fact and credibility at a suppression hearing must be accepted by the reviewing court unless clearly erroneous. Garcia v. State, 200 Ga. App. 741, 742 (409 SE2d 683) (1991). At the hearing on Harris’ motion to suppress, the defense offered no evidence and there is no other evidence presented in the record which would contradict the State’s contention that Harris freely and voluntarily consented to Casteloes’ removal of the tissue containing the cocaine from Harris’ pocket. Furthermore, there is no evidence present in the record that any coercion or pressure was placed on Harris which would have compelled him to “consent” to Casteloes’ request to remove the tissue. Accordingly, the trial court did not abuse its discretion in denying Harris’ motion to suppress.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided October 14, 1992.

Moore, Chambliss & Allen, David R. Tyndall, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee


text:
    A92A1639.
    WALTHER v. MULTICRAFT CONSTRUCTION COMPANY et al.
    (423 SE2d 725)
   Cooper, Judge.

Appellees entered into a contract with appellant whereby appellees were to perform certain construction services. Following a series of disputes stemming from appellant’s failure to make payments to appellees pursuant to the contract, appellees filed a 12-count complaint against appellant for breach of contract, seeking damages as well as attorney fees and expenses of litigation. In his answer, appellant contended that the payments were withheld because the work performed by appellees was unsatisfactory. The case was tried before a jury, and at the conclusion of the evidence, the trial court directed a verdict in favor of appellees in the amount of $90,529.94 plus interest in the amount of $13,861.09 and submitted appellees claim for attorney fees to the jury. The jury returned a verdict awarding appellees attorney fees in the amount of $52,195.52. Appellant’s motions for new trial and judgment notwithstanding the verdict were denied, and this appeal followed.

1. Appellant argues that the trial court erred in directing a verdict in favor of appellees because there was no evidence supporting appellees’ claims. “A directed verdict is proper when ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .’ OCGA § 9-11-50 (a). ‘On appeal from an order directing a verdict, the question before this court is whether the evidence was without conflict as it pertains to the material issues in the case and, thus, when viewed in a light most favorable to the losing party, demanded the verdict ordered.’ [Cit.]” Lester v. Bird, 200 Ga. App. 335, 337 (1) (408 SE2d 147) (1991). We have reviewed the record and find that appellees’ uncontroverted evidence supported each of their claims against appellant for nonpayment by showing that the work requested by appellant was performed by. appellees in a workmanlike manner and that appellant had not paid for the work. Appellant submitted no evidence showing that either the claims had been paid or the work had not been performed. There being no conflict in the evidence, the trial court did not err in directing a verdict in favor of appellees.

2. We next address appellant’s contention that the issue of attorney fees should not have been submitted to the jury because there was no evidence that appellant acted in bad faith, was stubbornly litigious or caused appellees unnecessary trouble and expense. Appellant argues that he had a bona fide dispute about the quality of the work performed by appellees; therefore, appellees were not entitled to recover attorney fees. “A plaintiff may recover for bad faith concerning the transactions and dealings out of which the cause of action arose. OCGA § 13-6-11; [cits.]. A bona fide controversy within the contemplation of the code section pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant ‘acted in the most atrocious bad faith in his dealing with the plaintiff.’ [Cits.]” Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 63 (3) (390 SE2d 55) (1989). Appellees presented evidence that they performed the work requested by appellant in a workmanlike manner; that appellant refused to pay the invoices submitted in connection with the work performed; and that although appellant expressed dissatisfaction with the work of appellees, appellant gave no specific reasons for his dissatisfaction but steadfastly maintained that he would not pay for the work. We conclude that there was some evidence from which the jury could find that appellant acted in bad faith in his refusal to pay the contracted amounts.

3. In four enumerations of error, appellant contends that the trial court erred in denying his motions for new trial and j.n.o.v. on the issue of attorney fees because there was no evidence as to either the value or the reasonableness of the professional services rendered by appellees’ attorney. The following colloquy constitutes the evidence presented on the issue of attorney fees:

“[Appellees’ attorney]: We are on a one-third contingency, which means, ladies and gentlemen, if a recovery is made in this case whatever it is then we are entitled to one-third. If there is no recovery in the case, we’re entitled to nothing.

“I want to explain to you that that is the usual and customary manner of handling matters in our profession.

“As [appellant’s attorney] said, he usually charges 40 percent, but we on a contingency case try to grade the matter from 33 and a third to 50 to determine the possibility of collecting. And in this case we set it at one-third. So that’s the basis of our fee.

“Our fee is based on one-third the amount recovered. If we don’t recover, we’re not entitled to a nickel. And if we do recover, when we collect the money, not on judgment, we are entitled to one-third of that which we have in hand. That’s it.

“[Appellant’s attorney]: Do you have a written contract?

“[Appellees’ attorney]: I do not.

“[Appellant’s attorney]: You say that it varies from one-third to 50; Correct?

“[Appellees’ attorney]: In the industry, yes.

“[Appellant’s attorney]: But how about in your office?

“[Appellees’ attorney]: Absolutely.

“[Appellant’s attorney]: When do you get 50 percent?

“[Appellees’ attorney]: . . . [I]f there is a malicious prosecution case, something of that kind where the liability is small, where the possibility of a recovery is not good, we then charge 50 percent contingency fee. Slip and fall cases where it’s raining and snowing and there’s ice on the sidewalk and somebody walks in off of ice into the front door of a shop and slips and falls, where we’re going to have a hard time proving negligence, if we take this case, we charge them 50 percent.”

It is axiomatic that “ ‘ “[a]n attorney cannot recover for professional services without proof of their value.” (Cit.)’ [Cits.]” Price v. Mitchell, 154 Ga. App. 523, 526 (6) (268 SE2d 743) (1980). Furthermore, “[i]t is well established that a party’s ‘attorney himself is competent to testify as to his opinion on reasonable fees ((Cit.)).’ [Cit.]” Campbell v. Bausch, 195 Ga. App. 791, 792 (2) (395 SE2d 267) (1990). Appellees’ attorney testified that a contingency fee ranging from 33 1/3 to 50 percent was a usual and customary fee for handling cases in the legal profession and that the range varied depending on the type of case. In addition, appellant’s attorney testified that he charged 40 percent as a “usual and customary fee.” We find that the evidence was sufficient to establish that the contingency fee charged by appellees’ attorney was reasonable. U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744 (5) (320 SE2d 868) (1984); see also American Motorists Ins. Co. v. King Shrimp Co., 199 Ga. App. 847 (3) (406 SE2d 273) (1991).

4. Appellant also alleges that there is no evidence to support the jury’s award of attorney fees in the amount of 50 percent of the judgment. “ ‘The amount of damages found by the jury must be authorized by the evidence.’ [Cit.]” Orkin Exterminating Co. v. Durden, 189 Ga. App. 479, 482 (1) (376 SE2d 376) (1988). Appellees’ attorney testified that his fee in the case was 33 1/3 percent of the damages awarded in the case. He also explained that a contingency fee of 50 percent is reserved for certain categories of cases, such as slip and fall, where liability is difficult to establish and the possibility of a recovery is not good. It is clear from the evidence that appellees’ attorney neither charged appellees a fee of 50 percent nor considered the case to be of the type warranting a 50 percent contingency fee. Consequently, we conclude that the award of attorney fees in the amount of 50 percent of the damages was not authorized by the evidence. “However, ‘(w)here the jury finds damages in an amount which exceeds that which is authorized by the evidence it is not necessary to grant a new trial if the erroneous amount can be accurately measured and deducted from the verdict. [Cit.]’ [Cit.]” Morris v. Bonner, 183 Ga. App. 499, 502 (3) (359 SE2d 244) (1987). The jury’s award is capable of recalculation to reflect the proper amount of attorney fees. Accordingly, the judgment of the trial court is affirmed in part and reversed in part with direction that the trial court determine the attorney fees in the amount of 33 1/3 percent of the judgment.

Decided October 14, 1992.

Gambrell, Clarke, Anderson & Stolz, Robert D. Feagin, Nancy E. Gordon, for appellant.

Rich, Bass, Kidd & Witcher, Casper Rich, for appellees.

Judgment affirmed in part and reversed in part with direction.

Sognier, C. J., and McMurray, P. J., concur.

       Appellant’s contention in subpart (a) of this enumeration that the trial court erred in directing a verdict on Count 3 of appellees’ complaint in the amount of $68,146.69 instead of $66,146.69 is without merit. The invoice submitted with respect to this Count reflected an additional $2,000 owed by appellant to cover punch out charges, therefore bringing the total owed by appellant to $68,146.69.


author: Sognier, Chief Judge.

text:
    A92A1359.
    WIMBERLY v. THE STATE.
    (423 SE2d 728)
   Sognier, Chief Judge.

Denny Wimberly was convicted of violating OCGA § 16-13-30 (b) by selling marijuana and he appeals.

1. Appellant first enumerates the general grounds. At trial, undercover agent Mike Gasaway of the Middle Georgia Narcotics Unit testified that while he was at the American Legion post near Gray on the night of October 17, 1990, Wesley Bridgers told him that appellant had some marijuana to sell. Gasaway observed Bridgers approach appellant, who was behind the bar, and talk briefly. When Bridgers returned and reported that appellant did have some marijuana to sell for $45 a quarter ounce, Gasaway indicated his agreement. Gasaway testified that he watched Bridgers again approach appellant behind the bar and obtain a set of keys from appellant. Bridgers and Gasaway proceeded outside to a beige car, and Bridgers opened the passenger door with the keys he had obtained from appellant, removed a tissue box from the glove compartment, and displayed three rolls of what was later identified by the State’s forensic chemist as marijuana. Gasaway testified he selected the largest roll and paid Bridgers. Gasaway and Bridgers then returned to the bar together, and Gasaway observed Bridgers give appellant both the keys and the money.

Appearing as a witness for the State, Bridgers testified that he had pled guilty to a charge of selling marijuana to Gasaway arising out of the same incident. He also testified that the marijuana belonged to appellant and that he gave appellant all the money he received from Gasaway for the marijuana. Appellant testified that he was a car salesman; that he and Bridgers, whom he had known for many years, had driven to the American Legion together on the evening in question in appellant’s demonstrator automobile; and that he had never sold marijuana and had no knowledge of the drugs in the glove compartment.

Although the evidence conflicted regarding some facts, such conflicts were for the jury to resolve, and they apparently did so in favor of the State’s witnesses. See Harris v. State, 198 Ga. App. 503, 506 (11) (402 SE2d 62) (1991). This court is restricted to determining the legal sufficiency of the evidence to support the conviction, not its weight. Cook v. State, 198 Ga. App. 886 (1) (403 SE2d 872) (1991). We cannot agree with appellant that no evidence existed linking him to the drug sale. The jury was charged regarding parties to a crime, OCGA § 16-2-20, and we find the evidence adduced at trial more than sufficient to have authorized the jury to find appellant guilty of being a party to the sale of marijuana under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Compare Oldwine v. State, 184 Ga. App. 173-176 (1) (360 SE2d 915) (1987).

2. Appellant contends the trial court erred by failing to charge the jury on the general principle of law concerning the weight to be given the testimony of Bridgers. Appellant did not request such a charge, and it is unclear what charge appellant contends should have been given. Although the out-of-court confession of a co-defendant or co-conspirator made after the enterprise is ended is admissible in evidence only against him, OCGA § 24-3-52, if such co-defendant appears as a witness at trial, he may testify against his co-defendant or co-conspirator and such testimony is to be treated as all other evidence. Rhodes v. State, 135 Ga. App. 484, 486 (2) (218 SE2d 159) (1975). Thus, if appellant is arguing that the trial court should have charged the jury on OCGA § 24-3-52, that Code section is inapplicable because Bridgers testified at trial. Moreover, since such testimony “is to be received and weighed as other evidence in the trial, [cit.],” Rhodes, supra, no special principle applies to that testimony other than the general instructions with regard to all evidence. Accordingly, this enumeration is without merit.

Decided October 15, 1992.

Nancy A. Atkinson, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.