text:
    A90A1611.
    REID v. ODOM.
    (404 SE2d 323)
   Carley, Judge.

Appellant-plaintiff brought suit against appellee-defendant, seek ing to recover for personal injuries arising out of an automobile collision. The case was tried before a jury and a general verdict in favor o: appellee was returned. Appellant appeals from the judgment entered| by the trial court on the jury’s verdict.

1. Over objection that it was not authorized by the evidence,! counsel for appellee was allowed to make the following closing argu ment to the jury: “[I]f [you] determine from your review of the evi-| dence that [appellant] should have had his seatbelt on, and if he hai his seatbelt on his injuries would have been less or different or mayb not at all, well, then you can’t make [appellee] pay for those damages. Those are caused by [appellant’s] negligence, not by anything [ap-pellee] did, and [appellee is] not responsible for those, and the judge is going to charge you on that.” (Emphasis supplied.) The trial court’s failure to sustain appellant’s objection to this closing argument is enumerated as error.

OCGA § 40-8-76.1 (d), which became effective September 1, 1988, provides: “Failure to wear a seat safety belt in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, . . . and shall not diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a passenger vehicle.” Accordingly, if the collision at issue in the instant case had occurred after the effective date of this law, the closing argument of appellee’s counsel clearly would have been statutorily barred. However, the instant collision occurred prior to September 1, 1988, and the priority of the closing argument must be resolved under the applicable pre-OCGA § 40-8-76.1 (d) case law. Payne v. Joyner, 197 Ga. App. 527 (1) (399 SE2d 83) (1990). Under that applicable decisional authority, “the failure to use an available seat belt could arguably be considered by the jury only on the question of ‘ “amount of damages to be recovered” subject to a showing that injuries could have been reduced by the use of a seatbelt. (Cit.)’ [Cits.]” (Emphasis supplied.) Katz v. White, 190 Ga. App. 458 (379 SE2d 186) (1989).

“The principles applied in Katz v. White, [supra at 459], control. It emphasized the necessity of a showing that the injuries received could have been reduced by the use of a seat belt. In this case, a seat belt was available and not used, and [appellant] received injuries to [his] head . . . from impacting the windshield. ... As in Katz, there was no evidence that using the seat belt would have reduced [appellant’s] injuries. The jury could not infer an element of causation from the fact of nonuse and/or from the nature of the injuries. [Cit.]” (Emphasis supplied.) Boatwright v. Czerepinski, 194 Ga. App. 697, 698(2) 391 SE2d 685) (1990). See also City of Fairburn v. Cook, 188 Ga. App. 58, 68-69 (10) (372 SE2d 245) (1988); Menendez v. Jewett, 196 Ga. App. 565, 567 (3) (396 SE2d 294) (1990). The evidence shows only ;hat appellant was not wearing a seat belt at the time of the collision, md there was no additional showing that appellee’s injuries would lave been less severe had he been wearing his seat belt. Therefore, it ollows that the closing argument of appellee’s counsel was “not based >n evidence or legitimate inferences from evidence and [was] under he law improper.” J.J. Woodside Storage Co. v. Carr, 108 Ga. App. 4, 39 (10) (132 SE2d 241) (1963).

The closing argument erroneously urged the jury to consider ap->ellant’s failure to use his seat belt as a basis for diminishing his recovery under the comparative negligence theory. The jury may well have relied upon that uncorrected erroneous argument to conclude that, notwithstanding appellee’s negligence in causing the collision, a verdict in her favor was nevertheless authorized because appellant’s purported negligence in failing to use his seat belt was comparatively greater. Since it cannot be established that the general verdict in ap-pellee’s favor was unaffected by the uncorrected erroneous argument, it follows that the judgment must be reversed and a new trial held.

Decided March 13, 1991.

Howard, Secret & Howard, James W. Howard, for appellant.

Freeman & Hawkins, Thomas F. Wamsley, Jr., H. Lane Young II, for appellee.

2. Appellant’s remaining enumeration of error need not be addressed as it concerns circumstances unlikely to recur at retrial.

Judgment reversed.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1759.
    RENSHAW v. FEAGIN.
    (404 SE2d 457)
   Cooper, Judge.

On July 27, 1989, appellant brought an action for declaratory judgment and to set aside a 1987 order changing the custody of a minor child. The trial court upheld the order, and we granted appellant’s application for discretionary appeal to consider appellant’s allegations that the court erred in failing to set aside the order.

The marriage of appellant and appellee was terminated by a Fi nal Judgment and Decree of Divorce in 1982, and custody of the mi-| nor child, then one year old, was awarded to appellant, the mother. I: 1986, appellant began to experience financial difficulties and believe^ she could not adequately support herself and the child. Appellan contacted appellee, and an agreement was reached wherein the chili would live with appellee during the school year and with appellan during the summer months, each party having visitation rights. Ap pellee conditioned his consent on a change of custody to prevent recurrence of appellant allowing the child to remain with appellee fo: an extended period of time and suddenly taking her away. Appelle also insisted that the agreement be written. Appellant and the chilcj were residing in Fulton County, and appellant explained that sh| could not afford to hire an attorney to prepare an agreement. As result, appellee, a resident of Jones County, arranged for a local atto: ney to prepare a written agreement. At the attorney’s office, appella: and appellee each read and signed a document in which appellant was listed as “plaintiff” and referred to as “wife,” filing a complaint for Modification in the Superior Court of Jones County. Appellant testified that she reviewed the agreement and raised an objection to the visitation provision which allowed appellee visitation two weekends each summer month. She stated that she had intended that the child visit every other weekend and one week during vacation but signed the document after assurance from appellee that the provision would not be enforced. The record contains no objection to the agreement in any other respect. Appellee and the attorney presented the agreement in Jones County Superior Court with a complaint for modification and a proposed order prepared by the attorney changing custody to appellee and incorporating the agreement. Appellant was not present when the order was presented and signed.

1. In her first enumeration of error, appellant contends that ap-pellee and his attorney committed an act of fraud and misrepresentation on the court resulting in injury to her. Appellant argues that the order entered by the court changing custody differed significantly from the agreement which appellant claims provided for “temporary shared custody”; that appellant was never sent a copy of the order and the inconsistency constituted misrepresentation of a material fact; that fraud was further evidenced by the attorney’s failure to notify appellant of her right to be present in court when the agreement and order were presented; that the attorney represented to the court that he represented both parties when in fact he only represented ap-pellee; that the attorney failed to advise appellant that the appropriate venue for a change of custody was in the county of her residence; and that the attorney failed to disclose the likelihood of conflicts of interest or to independently advise appellant of her options. Having heard the testimony of appellant, appellee and the attorney, the trial court found no merit in appellant’s allegations and held that the agreement was voluntary, and the order was valid and legally entered.

1 “ ‘A trial judge sitting without a jury is entitled to have his judg-ement considered as a verdict by a jury, and if there is any evidence to upport the finding, it should be affirmed. Also the evidence must be onstrued most strongly in favor of the prevailing party. (Cit.)’ [Cit.]” American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 705 (1) (391 SE2d 688)(1990). The evidence adduced at the tearing shows that appellant initiated the change in custody, which ippellee testified he would accept only if he were given custody. Vhen appellee insisted that the agreement be memorialized and ap-tellant indicated that she could not afford an attorney, appellant was ully aware that appellee intended to engage counsel to prepare a vritten agreement and that appellee would bear the expense of legal ees. Appellant testified that she read the agreement before signing it, and she acknowledged that the agreement began, “In the Superior Court of Jones County,” referred to her as “plaintiff” and referred to her as the party filing a “Complaint for Modification” but claimed not to realize the agreement would be filed in court. Nevertheless, appellant voiced no objection to the agreement as to the custody provisions. The attorney testified that he was contacted by appellee to handle an uncontested change of custody. The attorney maintained that he was “just basically doing paperwork” and was representing both parties since the change was uncontested. He also testified that the complaint was styled with appellant as plaintiff for jurisdictional purposes only, so that the process could be completed in Jones County. The attorney testified further that although he did not tell appellant to come to court on the day the order was entered, he did call her in advance of the day to inform her that he planned to “finalize” the matter and asked her if she had problems with “it,” to which she replied “No.”

As to the venue issue, since appellant consented to the preparation of the agreement in Jones County, traveled to the county to execute the agreement and voluntarily signed the agreement which on its face reveals that it was a document to be filed in Jones County in connection with a change of custody, appellant, “ ‘affirmatively conceded and confirmed the jurisdiction of the court with respect to the person. . . .’ [Cit.]” New v. Wilkins, 178 Ga. App. 337, 341 (2) (343 SE2d 136) (1986), citing Smith v. Smith, 248 Ga. 268 (2) (282 SE2d 324) (1981). Any claims, with respect to improper venue, therefore, are waived. Hopkins v. Hopkins, 237 Ga. 845, 847 (229 SE2d 751) (1976). We also do not find that the conduct of appellee or the attorney cited by appellant deceived the court or was in any regard inconsistent with appellant’s expectations or the understanding reached by the parties. Appellant’s contentions are without merit, and we find there was sufficient evidence to support the judgment of the trial court.

2. Appellant argues that the attorney’s conduct violated certain disciplinary rules and ethical considerations of the State Bar of Georgia in failing to disclose appellant’s right to independent counsel, the likelihood of conflicts of interest and alternatives to relinquishing custody. This issue was not alleged in appellant’s complaint, argued before the court or addressed in the trial court’s decision and will nolB be considered by this court for the first time on appeal. Southern Store &c. v. Maddox, 195 Ga. App. 2 (1) (392 SE2d 268) (1990).

3. Appellant contends, in her third enumeration of error, that theM court abused its discretion in entering the order which incorporated® the agreement without hearing evidence and making appropriate find» ings. Appellant acknowledges that no record of the 1987 presentation of the order was requested and argues that because neither the appelH lee, the attorney who represented him, nor the court could recall whether or not any evidence was submitted under oath prior to the signing of the order, a presumption is raised against the validity of the evidence which appellee argues was submitted to the court. This contention is utterly without merit. The 1987 order recites, “evidence having been presented to the Court that there has been a material change of circumstances and conditions . . . ,” and the 1990 order from which appellant appeals recites that although the court did not specifically remember the presentation of the 1987 order, it was the custom of the court to “inquire into the matter thoroughly and to question the person before the Court as to the facts of the reason for the custody change and the Court is of the opinion that that procedure was followed in the case where Mr. Feagin appeared. . . .” “ ‘ “Since in the absence of a transcript or other appropriate substitute, OCGA § 5-6-41 (g), an appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence, for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction, (cit.), we are constrained to affirm the (judgment).” (Cit.)’ [Cit.]” Coffee v. Silver, 195 Ga. App. 247, 248 (1) (393 SE2d 58) (1990).

Decided March 13, 1991.

Turner, Turner & Turner, Nelson G. Turner, for appellant.

4. Next, appellant maintains that the trial court abused its discretion in demanding a stipulation from counsel before the court questioned appellant that she not be recalled for follow-up questions, thereby eliminating appellant’s right of rebuttal. However, appellant voiced no objection to the court’s request at the hearing. “ ‘No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. [Cits.]’ ” Capes v. Bretz, 195 Ga. A.pp. 467, 469 (2) (393 SE2d 702) (1990).

5. Finally, appellant enumerates as error the trial court’s exami-lation of appellant, which appellant contends was argumentative with clear intent to impeach and discredit her testimony. This conten-ion is without merit. The transcript shows that the six questions pro-lounded by the court were not harsh and argumentative but were diect and relevant, not requiring elaborate responses. It does not .ppear from the record that her responses were limited by the court ir that the court breached its duty to provide a fair and impartial ribunal.

Judgment affirmed.

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

Groover & Childs, Frank H. Childs, Jr., for appellee.


author: McMurray, Presiding Judge.

text:
    A90A1928.
    GRIMES v. THE STATE.
    (404 SE2d 324)
   McMurray, Presiding Judge.

Defendant Grimes was charged by indictment with the offense of murder. Upon the trial of the case, a jury returned a verdict of guilty of involuntary manslaughter (in the commission of an unlawful act). Defendant appeals his conviction of involuntary manslaughter (in the commission of an unlawful act). Held:

1. Defendant’s second enumeration of error raises the sufficiency of the evidence to authorize his conviction for involuntary manslaughter (in the commission of an unlawful act). The evidence construed most strongly in favor of the verdict, is as follows: The victim, defendant’s female friend, and defendant were alone at defendant’s apartment when the victim was fatally wounded by a single gunshot to her head. Defendant admitted that the shot was fired by his pistol and that he had pulled the trigger causing the pistol to fire.

Relying upon the defense of accident, defendant testified that he was walking across the room to put the pistol away when he tripped and the pistol fired. Defendant conceded that as he fell he put pressure on the trigger causing the pistol to fire. However, defendant’s testimony regarding the manner in which the pistol was caused to fire was contradicted by defendant’s prior statements.

One of the first two police officers at the scene was told that defendant and the victim were playing on the bed, where the victim was found when police arrived, and that the victim had rolled over on th« pistol and it had gone off. When the officer noticed blood on a chai» in the adjoining living room and directed defendant’s attention tel this, defendant stated that he and the victim had been wrestling around the living room and that the pistol had gone off there. ThS second officer was told by defendant that the pistol discharged wheil he dropped it on the bed. When the third officer arriving at the seen® overheard defendant repeating this version of his story and asked! “Did he say it went off when it hit the bed?” defendant responded! “Well, it really didn’t fall on the bed, it actually hit her in the heal and fell on the bed after it went off.” In a subsequent statement to I homicide detective, defendant stated that the pistol fired when hi tripped over a chair. I

At the hospital, where the victim’s family had gathered as she lal in a coma from which she never recovered, defendant spoke to thl victim’s mother and told her that “he slipped over the sterel dropped the gun, the gun went off, . . .” In a separate conversatiol with the victim’s father, defendant stated that he stumbled, the pistol fell, hit the floor, went off, the bullet ricocheted off the bathroom wall and came back and hit the victim. Defendant told the victim’s brother that he tripped over a coffee table and was falling when the pistol went off.

“It is well established that ‘the essential elements of the crime of involuntary manslaughter in the commission of an unlawful act are, Irst, intent to commit the unlawful act; and secondly, the killing of a luman being without having so intended but as the proximate result of such intended unlawful act,’ (Emphasis supplied.) Passley v. State, 62 Ga. App. 88, 89 (8 SE2d 131).” Paulhill v. State, 229 Ga. 415, 417 (2a), 418 (191 SE2d 842). Defendant contends that there is no evidence showing that he intended to perform any unlawful act not amounting to a felony which was the proximate cause of the victim’s death.

We cannot agree. The defendant having admitted firing the pistol, the jury could consider defendant’s myriad of conflicting explanations as to the circumstances which precipitated the discharge of the pistol, determine that defendant was successfully impeached, and reject defendant’s testimony that the firing of the pistol was not deliberate. The deliberate firing of the pistol in the confines of the apartment could be viewed by the jury as a violation of OCGA § 16-5-60 (b) prohibiting reckless conduct.

As the evidence would authorize a finding that defendant unintentionally killed the victim in the commission of a misdemeanor offense of reckless conduct, a finding of guilt of involuntary manslaughter (in the commission of an unlawful act) was authorized. Truitt v. State, 156 Ga. App. 156 (274 SE2d 42). After a review of the entire record, we find that a rational trier of fact could reasonably have ’ound from the evidence adduced at trial proof of defendant’s guilt of nvoluntary manslaughter (in the commission of an unlawful act) beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 61 LE2d 560).

2. After they had retired to deliberate, the jury sent out the fol-owing written question: “May we be given a definition of the possible 'erdicts again and may we write these definitions down?” The trial :ourt then recharged on murder, malice, felony murder, simple as-ault, aggravated assault, involuntary manslaughter in the commis-ion of an unlawful act, reckless conduct, and involuntary manslaughter in the commission of a lawful act in an unlawful manner. The trial ourt did not recharge as to the verdict of not guilty or the defense of ccident.

Defendant contends that the trial court erred in not including in pe recharge a verdict of not guilty and the principle of legal accident [pon which defendant relied. “Responding to a jury’s request to restate portions of the charge is generally required of the trial judge, see Edwards v. State, 233 Ga. 625 (2) (212 SE2d 802) (1975), and it is within the court’s discretion to recharge only that which is specifically requested. Williams v. State, 249 Ga. 6, 9 (287 SE2d 31) (1982).” Appling v. State, 256 Ga. 36, 38 (343 SE2d 684). The recharge requested by the jury was for the “definition of the possible verdicts” and thus clearly included the verdict of not guilty. The omission of the verdict of not guilty and the underlying principles which would authorize this verdict was error. Edwards v. State, 233 Ga. 625, 626 (2), supra. Compare Williams v. State, 249 Ga. 6, 9 (5), supra.

Decided March 13, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Eliza\ beth G. MacNamara, Assistant District Attorneys, for appellee.

Following a second inquiry from the jury, the trial court elected to respond by having an excerpt from the charge prepared setting forth that portion defining the various offenses of which defendant could be convicted. Over defendant’s objection to the procedure, each juror was given a copy of the written excerpt from the charge to take into the jury room. The accepted practice in Georgia (except where required by statute as in OCGA § 17-10-30 (c)) is not to allow jurors to take written instructions with them into the jury room. Gholston v. Gholston, 31 Ga. 625, 638 (11); Planters Warehouse Co. v. McMekin, 36 Ga. App. 219, 221, 222 (136 SE 104); Collins v. State, 191 Ga. App 289 (2), 291 (381 SE2d 430). Unlike the following cases, defense counsel in the case sub judice objected to the procedure adopted by the trial court. Woodard v. State, 91 Ga. App. 374 (2) (85 SE2d 723); Chattahoochee Brick Co. v. Sullivan, 86 Ga. 50, 67 (6) (12 SE 216). We conclude that it was error to provide the jury with a written ex cerpt of the charge to take into the jury room.

3. Defendant’s remaining enumerations of error, being unlikely b recur upon a retrial, need not be addressed.

Judgment reversed.

Sognier, C. J., and Carley, J., concur.


author: Banke, Presiding Judge.

text:
    A90A1939.
    BI-LO, INC. v. McCONNELL.
    (404 SE2d 327)
   Banke, Presiding Judge.

The appellant, Bi-Lo, Inc., brought criminal charges against onj of its employees, the appellee herein, for shoplifting a soft drink. St generally OCGA § 16-8-14. The appellee was tried and acquitted that charge and then instituted the present action for malicious prosecution. The jury returned a verdict in his favor for $30,000, and this appeal followed.

As the appellee, who was 17 years of age at the time, was refilling a soft drink machine located in front of the store, he noticed that one of the Coke cans was badly damaged and would not fit into the machine. After he had finished filling the machine, he opened this can and began drinking from it. He explained at trial that he had seen other employees consume damaged soft drinks in this manner and was under the impression that such drinks would “be thrown out anyway.” He testified that he was openly drinking the Coke as he returned the vending machine key to the employee on duty at the customer service desk.

After returning the key to the customer service desk and returning the remaining soft drinks to stock, the appellee went inside the dairy cooler, which was located outside his normal work area, to finish drinking the Coke. While there, he was discovered by the store manager, who exclaimed upon seeing him, “Aha, I caught you, didn’t I?” The appellee was subsequently summoned to the manager’s office, where he was asked whether he had paid for the drink. When he responded that he had not, he was asked no further questions but was immediately informed by the manager that the police had been called and that he would be taken downtown. The appellee testified that he was upset, scared, and crying at this time and that he asked the manager if he could call his parents, but that the manager replied, “No. People like you don’t have any rights.”

There was testimony that the appellant was experiencing a serious problem with employee theft and shoplifting and had decided to take a strong stance against such conduct. The appellant’s “Director of Loss Prevention” maintained at trial that the profit margin at the store in question was only one cent on the dollar and that it would consequently take 50 dollars of sales to cover the loss of a 50-cent can of Coke. Held:

1. The appellant enumerates as error the denial of its motion for lummary judgment. That ruling was, however, rendered moot by the ury’s verdict. See Brown Realty Assoc. v. Thomas, 193 Ga. App. 847 1) (389 SE2d 505) (1989).

2. The appellant contends that it was entitled to a directed ver-lict because the evidence established without dispute that it had nobable cause to believe the appellee was guilty of shoplifting. We Hisagree.

1 “ ‘Probable cause is that apparent state of facts existing after Seasonable and proper inquiry; the prosecutor is under a duty of cau-Bion and avoidance of haste.’ [Cit.] ‘While a prosecutor need not be Bully satisfied of the truth of the charge . . . and is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless, where slight diligence would have brought to his attention facts which would have shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.’ [Cit.]” Voliton v. Piggly Wiggly, 161 Ga. App. 813, 814 (288 SE2d 924) (1982). “ ‘The ap- j pearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. . . Melton v. La-Calamito, 158 Ga. App. 820, 824 (282 SE2d 393) (1981).

While the immediate appearances in this case may have been such as to lead a reasonable person in the store manager’s position to believe that the appellee had acted with criminal intent in taking the soft drink, even the most cursory investigation would have revealed that the can would not fit in the machine because it was damaged and that the appellee consequently believed it would be discarded. Given the somewhat trivial nature of the alleged theft, the fact that the ap-pellee was a teenaged employee with an apparently unblemished record, and the manager’s complete failure to question him regarding the circumstances under which he had taken the drink, we hold that the jury was authorized to conclude that the appellant had acted maliciously and without probable cause in prosecuting him for shoplifting. See generally OCGA § 51-7-40.

3. The appellant further contends that it was immune from liability pursuant to OCGA § 51-7-60 (1), which provides that the owner or operator of a mercantile establishment cannot be held liable for damages for false arrest or false imprisonment “where it is established by competent evidence . . . [t]hat the plaintiff had so conducted himself or behaved in such manner as to cause a man of reasonable prudence to believe . . . at or immediately prior to the time of the detention or arrest [he] was committing the offense of shoplifting. . . .” Cf. Turner v. Bogle, 115 Ga. App. 710, 713 (155 SE2d 667) (1967) (holding that the statute applies also to malicious prosecution actions). This contention is also without merit. “The determination of whether ths defendant acted with reasonable prudence . . . [was a matter] for the jury, not the court, to determine. [Cits.]” United States Shoe Corp. v Jones, 149 Ga. App. 595, 597 (2) (255 SE2d 73) (1979).

4. In Monroe v. Sigler, 256 Ga. 759 (4) (353 SE2d 23) (1987), the Supreme Court held that the defendant in a malicious prosecutior action is entitled to judgment as a matter of law where the plaintiff ifl shown to have moved unsuccessfully for a directed verdict of acquitfl tal in the underlying criminal proceeding. The appellant concede® that the appellee in this case did not move for a directed verdict durfl ing the trial of the criminal case but contends that his failure to do so, along with the trial court’s failure to direct a verdict of acquittal sua sponte, “is equivalent to [his] moving for a directed verdict which is denied.” We find this contention to be wholly without merit.

Decided March 13, 1991.

Whitehurst & Frick, Stephen P. Riexinger, Scott A. Wharton, for appellant.

George L. Williams, Jr., Walter G. Sammons, Jr., for appellee.

5. For the foregoing reasons, we hold that the trial court did not err in denying the appellant’s motion for directed verdict. The appel-lee’s motion for an assessment of “attorney fees” against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal is, however, denied.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A90A2020.
    A90A2021.
    STEWART v. THE STATE. LOGAN v. THE STATE.
    (404 SE2d 461)
   Pope, Judge.

Appellant Richard Stewart and appellant Otis Logan were tried together for the offense of possession of cocaine with intent to distribute along with a third man, Ricky Bernard Harper, whose appeal s not before us. Each was convicted. Because Stewart and Logan rave raised the same enumerations of error, we combine their appeals or consideration in this opinion.

1. Stewart and Logan each argue the general grounds. On the ivening of February 23, 1990, officers of the Moultrie/Colquitt County Jrug Squad set up surveillance across the street from the Chickasaw ! nightclub. The officers watched the scene from inside a van parked n a lot across the street from the club. An undercover officer from mother jurisdiction drove the van to the lot, parked it and went into he club. This was done to maintain the cover of the van. During the pproximately two-hour period of the surveillance, the two officers in-ide the van observed three men conducting what appeared to be rug sales just outside the club. Each officer positively identified itewart and Logan as participants. The distance from the van to the oint officers observed Stewart and Logan was estimated variously rom 30 feet up to 125 feet. People would approach one of the men nd something was exchanged. From time to time, each of the three íen under surveillance, including Stewart and Logan, would walk round the side of the club to a car parked there. They would go behind the car, squat down, appear to take something out and then return to the front of the club. The officers observed 25 to 30 exchanges. No one other than the three suspects ever went to the back of the parked car. Although it was dark, the officers testified that the scene was lighted sufficiently from the lights of the club and from street lights to enable them to positively identify Logan and Stewart (as well as Harper) as the men involved in the activity. After Stewart left the scene, the officers in the van called other officers to the club to investigate. The officers found in excess of $1,000 in fives, tens and twenties on Harper, but found no drugs on either Harper or Logan and found no cash on Logan. However, a search revealed 11.8 grams of crack cocaine in a plastic bag lying on top of the left rear tire of the parked car that officers had seen all three men go behind, squat down and take something away from time to time during the surveillance.

The evidence adduced was sufficient to show that Logan and Stewart had joint constructive possession of the cocaine found on top of the tire. See McLeod v. State, 170 Ga. App. 415 (3) (317 SE2d 253) (1984). The quantity of the cocaine possessed and the activity in which officers observed Logan and Stewart engage were sufficient to show intent to distribute. See Holbrook v. State, 177 Ga. App. 318, 321 (2) (339 SE2d 346) (1985). Although there was conflict in the evidence regarding the adequacy of light to enable the officers to make positive identifications, nonetheless the officers did positively identify Stewart and Logan. This court does not weigh the evidence. Questions of the weight to be given evidence and to the credibility of wit nesses are solely for the jury. Williams v. State, 197 Ga. App. 36( (398 SE2d 427) (1990). The evidence was sufficient to enable a ra tional trier of fact to find Stewart and Logan guilty beyond a reasona ble doubt of the offense of possession of cocaine with intent to dis tribute.

2. Stewart and Logan argue that the trial court erred in denyinj their motion for mistrial for failure of the State to provide them ex culpatory evidence. The evidence at issue was the fact that an under cover officer from another jurisdiction drove the van from which thl other officers conducted the surveillance. Stewart and Logan argue hi was an eyewitness and his identity should have been revealed tl them. Lt. Morris, one of the surveillance officers, testified that thl out-of-town undercover officer was used only to drive them to the lcl cation and to park the van to protect the cover of the surveillance anl to go inside the club to determine if “strip” shows were being hell He did not participate in the subsequent drug surveillance or investí gation. Lt. Morris never mentioned the presence of this officer in anl of his written reports. We find no error. In complying with a discoverl request pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 1 LE2d 215) (1963), “counsel for the State can make available onll such evidence as it has in its file, or of which it has knowledge, and is under no requirement to conduct an investigation on behalf of a defendant. Nor is an accused, as a matter of right, entitled to receive copies of police reports and investigations made in the course of preparation of a case against a suspect. Further, there is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” (Citations and punctuation omitted.) Massengale v. State, 189 Ga. App. 877, 881 (377 SE2d 882) (1989).

Decided March 13, 1991.

John G. Runyan, for appellant (case no. A90A2020).

Short & Fowler, James M. Bivins, for appellant (case no. A90A2021).

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

Judgments affirmed.

Beasley and Andrews, JJ., concur.


text:
    A90A2341.
    MITCHELL v. THE STATE.
    (404 SE2d 329)
   Cooper, Judge.

Appellant was indicted for the alternative offenses of malice murder and felony murder but was convicted by a jury of voluntary manslaughter. He appeals the denial of his motion for new trial, enumerating as error that there was insufficient evidence to support the [giving of a jury charge on voluntary manslaughter.

The evidence adduced at trial shows that the victim took a bor-owed truck being used by appellant from two of appellant’s female riends, Yohania Martin (“Martin”) and Lisa King (“King”). Martin otified appellant that the truck had been stolen, and another friend, rancis Roberson (“Roberson”), drove appellant to King’s apartment, here the women fully explained how the truck was stolen. Appellant eft the apartment in search of the victim and the truck, tried several laces, including the victim’s home, and finally found the victim at ome on a second visit. Appellant and the victim argued outside the ome over the truck and money owed to the victim by appellant. The hree men got into Roberson’s car and drove back to King’s apart-ent complex. The argument continued in the car and after their ar-ival at the complex. Martin and King came out into the parking lot o identify the victim as the individual who stole the truck. Appellant estified that the women positively identified the victim; however, ing testified that they were not certain. Appellant and the victim continued their argument on the passenger side of the car near the rear bumper, while Martin and King stood next to the driver’s side window and talked with Roberson. The victim was wearing a long jacket, and both appellant and King testified that the victim said to appellant, with his hands in the jacket’s pockets, “I can take you out now.” The victim never displayed a weapon; however, there was testimony that the victim was known to carry a weapon and had told others that he wanted to kill appellant for the money appellant owed. Appellant testified that he then took Roberson’s gun from the console between the two front seats and shot the victim in the chest. King testified that the victim fell to his knees, said “I’m sorry” and asked appellant not to kill him. Roberson said appellant then walked over to the victim, stood over his body and attempted to put another bullet in the gun. He pointed the gun at the victim’s head and said he was going to shoot him again to prevent the victim from injuring appellant; however, Roberson pushed appellant away.

The court charged the jury as follows: “Should you find the defendant not guilty of the offenses of murder or felony murder, or if you have a reasonable doubt as to his guilt of those offenses, you would be authorized to consider under the evidence whether or not he did, at the same time and place, commit the lesser offense of voluntary manslaughter which is defined as follows: A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as a result of a sudden, violent and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. However, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, for which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.”

Appellant contends there was no evidence that he acted “solely as a result of a sudden violent, irresistible passion resulting from serious provocation.” He maintains that there was essentially a quiet argument over repayment of a debt and that the evidence establishes that he acted in self-defense. However, we do not find that the evidence requires such a finding. “The distinguishing characteristic between voluntary manslaughter and justifiable homicide is that the accused was so influenced and excited that he reacted passionately rather than simply to defend himself. [Cit.] Circumstances necessary to show voluntary manslaughter, as opposed to justifiable homicide relate to a situation which arouses sudden passion in the person kill ing so that, rather than defending himself, he willfully kills the at tacker, albeit without malice aforethought, when it was not necessar; for him to do so in order to protect himself. [Cits.]” Syms v. State 175 Ga. App. 179 (1), 180 (332 SE2d 689) (1985). Appellant’s reaction to a perception that his life was in danger by the victim’s words and actions, despite the fact that the victim never displayed a weapon, does not require a finding of self-defense. “The fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. [Cit.] ‘While words and threats alone are generally not sufficient provocation, the issue of whether a reasonable person acts as the result of an irresistible passion may be raised by words which are connected to provocative conduct by the victim.’ [Cit.]” Id. The victim’s statement, “I can take you out now,” and gestures amounted to provocative conduct. See Thomas v. State, 184 Ga. App. 131 (2) (361 SE2d 21) (1987).

Decided March 13, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Thomas IS. Clegg, Assistant District Attorneys, for appellee.

“ ‘(I)t is a question of law for the courts to determine whether there is slight evidence that the defendant acted as the result of sudden, violent and irresistible passion resulting from serious provocation.’ [Cits.]” Gooch v. State, 259 Ga. 301, 302 (3) (379 SE2d 522) (1989). Taking into account the prolonged argument between appellant and the victim and the bad blood between the two, there was sufficient evidence of voluntary manslaughter to justify the court’s charge, and the trial court did not err in denying appellant a new trial.

Judgment affirmed.

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


text:
    A90A2384.
    THOMAS v. HELEN’S ROOFING COMPANY, INC.
    (404 SE2d 331)
   Cooper, Judge.

We granted this discretionary appeal from a decision of the full Doard of workers’ compensation affirmed by operation of law pursu-mt to OCGA § 34-9-105 (b).

The transcript from the hearing before the ALJ shows that ap-Dellant was replacing a roof on a building when he lost his footing and ’ell off the roof. It is undisputed that appellant was in the course of is employment with appellee at the time of the accident. Appellant /as immediately taken to the hospital and was admitted for four .ays. The medical history taken from appellant indicated that he had sed marijuana and cocaine in the past, and laboratory results revealed the presence of cocaine in appellant’s urine. Appellant testified that he had used drugs in the past; that he did not remember the last time he used cocaine; but that he did not use any cocaine the day of his injury. Appellant’s supervisor testified that he did not see the accident; however, he examined the roof and the area where appellant fell after the accident and in his opinion appellant had to have jumped from the roof. He also testified that he had worked with appellant on another job where he witnessed appellant jump from a roof. The ALJ found that appellant’s injury was caused by his intoxication from the use of cocaine and denied appellant’s claim pursuant to OCGA § 34-9-17.

1. OCGA § 34-9-17 formerly provided that compensation would be denied for injuries due to intoxication. The statute was amended, effective July 1, 1990, to provide that no compensation would be allowed for injury due to intoxication by alcohol or “being under the influence of marijuana or a controlled substance. . . Appellant, whose injury occurred prior to the effective date of the amendment contends that the ALJ erred in finding that he was “intoxicated” as defined by Georgia law. Regardless of whether at the time of appellant’s injury “intoxication” referred only to being under the influence of alcohol, previous case law indicates that it meant something more than having merely ingested alcohol or drugs. See Parks v. Maryland Cas. Co., 69 Ga. App. 720 (3) (26 SE2d 562) (1943). There was no evidence that appellant was under the influence of cocaine to the extent that he was not entirely himself or that his judgment was impaired or that his actions and conduct were noticeably affected. Parks v. Maryland Cas. Co., supra. “ Tt is axiomatic that any finding of fact by the board, if supported by any evidence, is conclusive and binding upon the superior court and this court. (Cits.)’ [Cits.]” Henry Gen. Hosp. v. Stephens, 189 Ga. App. 619, 620 (1) (376 SE2d 705) (1988). However, we do not find that the presence of cocaine in appellant’s urine constitutes evidence of appellant’s intoxication at the time of his injury. The record being devoid of any evidence that appellant’sl behavior or conduct was visibly or noticeably affected by the presence! of cocaine in his urine, the ALJ erred in finding that appellant was] intoxicated.

2. Appellee also failed to meet its burden of proving that thel presence of the cocaine in appellant’s urine proximately caused thel accident. Appellant’s supervisor testified that he did not see the acci-l dent, yet opined that appellant must have jumped from the roof. Ap-I pellant testified that he did not jump off the roof but that he slippedl and fell. Appellee argues that the mere ingestion of cocaine should b J considered wilful misconduct sufficient to deny compensation unde* OCGA § 34-9-17. However, “to deny compensation it is not sufficient for [the] employer to show wilful misconduct; the employer also ha» the burden of proving [that] the employee’s misconduct proximately caused his injury. [Cits.]” City of Buford v. Thomas, 179 Ga. App. 769, 770 (1) (347 SE2d 713) (1986). Appellee having failed to meet its burden under OCGA § 34-9-17, the ALJ erred in denying compensation.

Decided March 13, 1991.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Divine, Wilkin, Deriso & Raulerson, W. Douglas Divine, for ap-pellee.

Judgment reversed.

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


text:
    A91A0562.
    JACKSON v. THE STATE.
    (404 SE2d 333)
   McMurray, Presiding Judge.

Defendant was convicted of armed robbery in the Superior Court of Gwinnett County. He appeals, raising four enumerations of error. We consider the enumerations of error seriatim. Held:

1. The victim identified defendant as the perpetrator. She testified that “he had short black hair with a distinctive marking, I wasn’t sure if it was a baldness or a discoloration in his hair. . . .”

Cross-examining defendant, the assistant district attorney asked him how long he had the “balding spot” on his head. When defendant replied that he took after his father, the assistant district attorney asked defendant if his father had the “same kind of unique bald spot. . . .” Defendant replied affirmatively. Then defense counsel objected: “I don’t think there is any evidence that the bald spot that Mr. Jackson has is unique.” The court replied: “Well, that will be a question of [fact] for the jury to decide. All right. Y’all remember the evidence. You may proceed.” Following the court’s reply, the assistant district attorney changed course, asking defendant about his use of cocaine.

Defendant contends the trial court erred in failing to sustain his objection to the assistant district attorney’s characterization of his ¡bald spot as “unique.” In this regard, defendant insists that the word unique means “one of a kind” and that, by using the word “unique,” the assistant district attorney improperly commented on the force and effect of the evidence during the evidentiary stage of the trial. We |disagree.

The word “unique” does not simply mean one. of a kind. It may also mean, colloquially speaking, “peculiar,” “odd,” or “queer.” Webster’s New Intl. Dictionary (2d ed. 1960). Thus, by referring to defendant’s “bald spot” as “unique,” the assistant district attorney was simply picking up on the victim’s characterization of defendant’s hair as “distinctive.”

We fail to see how the assistant district attorney’s use of the word “unique” amounted to a remark on the force or effect of the evidence. Compare Bryant v. State, 197 Ga. 641 (30 SE2d 259). Besides, defendant has failed to demonstrate how he was harmed by the word “unique.” After all, the jurors could see defendant’s “bald spot” and decide for themselves whether it was “distinctive,” “unique,” “peculiar,” “odd,” or “queer.” Defendant’s first enumeration of error is without merit.

2. Taking the stand in his own defense, defendant testified that he committed several other armed robberies (in DeKalb County) using a “BB” gun. Cross-examining defendant on this point, the assistant district attorney asked: “Would it surprise you if each of the victims from these DeKalb robberies told this jury that it looked exactly like a real gun? That wouldn’t surprise you, would it?” Before defendant answered the question, defense counsel interposed an objection, adding: “[T]here is no testimony . . . about what the DeKalb victims would have said or did say.” The trial court sustained the objection with a simple “yes” and the assistant district attorney went on to another line of questioning.

In his second enumeration of error, defendant contends the trial court erred in failing to (1) “clearly” rule on his objection and (2) give a curative instruction to the jury. This contention is meritless. The trial court ruled in favor of defendant — the question posed by the assistant district attorney was not answered. With regard to a curative instruction, we fail to see the need for one. Moreover, defendant did not request one.

3. During direct examination of defendant, defendant was asked a question which called for hearsay. The trial court sustained the State’s objection to the question. Defense counsel informed the court that defendant was simply going to explain why he pleaded guilty to the other armed robbery charges. No offer of proof was made.

In his third enumeration of error, defendant contends the trial court erred in sustaining the State’s objection. We disagree. “As a general rule, in order for a refusal to permit a witness to answer a question propounded to him by his counsel to constitute a ground for new trial, it must appear that a pertinent question was asked, that the court ruled out an answer, that a statement was made to the court at the time, showing what the answer would be, and that such testi-l mony was material and would have benefited the complaining party.” Barron v. Barron, 185 Ga. 346 (2), 347 (194 SE 905). No proper offer! of evidence having been made, it cannot be said that the trial court erred in sustaining the State’s objection.

Decided March 13, 1991.

Nelson H. Turner, for appellant.

Thomas C. Lawler III, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

4. The trial court charged the jury: “Our law provides that every person is presumed innocent until he is proved guilty, and that no person shall be convicted of a crime unless the state proves each essential element of such crime beyond a reasonable doubt.” The charge substantially apprised the jury that defendant entered the trial with a presumption of innocence and that the presumption remained until rebutted by proof satisfying the jury of defendant’s guilt beyond a reasonable doubt. Locklear v. State, 131 Ga. App. 536, 538 (7) (206 SE2d 527). See also Blair v. State, 179 Ga. App. 519 (347 SE2d 337). It was not erroneous. Defendant’s final enumeration of error is without merit.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A90A2283.
    A90A2284.
    SPICEWOOD, INC. et al. v. DYKES PAVING & CONSTRUCTION COMPANY, INC. CHESNUT et al. v. DYKES PAVING & CONSTRUCTION COMPANY, INC.
    (404 SE2d 305)
   Birdsong, Presiding Judge.

These appeals arise from an action filed by Dykes Paving & Construction Company (hereinafter Dykes) in DeKalb Superior Court on January 20, 1987, against Spicewood, Inc., Stratton Paxton, individually, and David Chesnut and John P. Kanes as co-executors of the estate of Leroy Still.

These parties were previously before this court on appeal from a jury verdict and judgment in the Superior Court of Gwinnett County. Spicewood, Inc. v. Dykes Paving &c. Co., 185 Ga. App. 397 (364 SE2d 298). Dykes had contracted with Spicewood to perform certain construction work for a building project in Cobb County, and Ferro Grading Company (hereinafter Ferro) was subcontracted by Dykes to Ido some of the work. A dispute arose between Dykes and Spicewood [as to performance of the contract resulting in Spicewood declaring it (reached. Ferro filed a lien claim in Cobb Superior Court and Spice-rood filed and recorded a bond to discharge the lien for the purpose if substituting the bond for its real estate. Paxton, Bracewell and Still were sureties on this bond. Ferro then sued Dykes in Gwinnett County on their contract; Dykes answered and filed a counterclaim and Spicewood intervened as a defendant, filing an answer, counterclaim and cross-claim. Dykes also filed a cross-claim against Spice-wood for breach of contract seeking damages. The jury returned a verdict in favor of Ferro against Dykes in the amount of $36,347.60; in favor of Ferro on Dykes’ counterclaim; in favor of Dykes on its cross-claim against Spicewood in the amount of $63,379.63; and for Dykes on Spicewood’s cross-claim. Judgment was entered on Ferro’s verdict against Dykes on April 10, 1986. The next day the trial court issued an order directing a verdict in favor of Spicewood against Ferro’s claim of a materialman’s lien in the amount of $36,347.60 on Spice-wood’s property. The jury verdict was reversed on appeal, but the directed verdict was not.

On February 12, 1986, following the death of Leroy Still, an indemnity agreement between his co-executors and Spicewood, Paxton and Bracewell was entered into, holding the estate harmless “from any liability of any nature . . . arising from the operation of the Corporation” (Spicewood). On July 15, 1986, Ferro executed the assignment of its rights under Spicewood’s bond to Dykes.

In the instant action Dykes, as assignee of Ferro’s interest in the bond discharging the lien, sought to enforce Ferro’s rights to the bond, alleging that Spicewood and the sureties were indebted to Dykes for the principal amount of $36,347.60 plus interest. Spice-wood, Paxton, and Still’s co-executors answered, denying any right of recovery based upon several defenses, including res judicata. Spice-wood and Paxton also filed a counterclaim against Dykes on the ground that the suit was frivolous as contemplated by OCGA § 9-15-14. The co-executors filed a cross-claim against Spicewood, Paxton and Bracewell asserting that under the indemnity agreement they were obligated to indemnify and hold the estate harmless for any liability under the bond. Dykes moved for summary judgment on the ground that the judgment against Spicewood in Gwinnett County was conclusive as- to all issues and, through its assignment of Ferro’s rights, it was entitled to judgment as a matter of law against Spice-wood and the sureties under the bond. Spicewood and the sureties responded that they had the right to raise certain defenses which were not litigated between Ferro, Dykes and Spicewood in the Gwin-nett County action. Chesnut and Kanes as co-executors of the Still estate filed a motion for summary judgment on their cross-claim against Spicewood based upon the indemnification agreement. The trial court granted both motions for summary judgment, from which separate appeals have been taken. Held:

1. Dykes has filed a motion with this court to compel Spicewood! and the sureties to post a supersedeas bond in the amount of $75,000.1 However, OCGA § 5-6-46 (a) provides that such bonds are required only when the judgment is “for the recovery of money not otherwise secured. . . .” The judgment here is “otherwise secured,” as the trial court expressly imposed a special lien against the property of Paxton and the Still estate to secure the bond discharging the lien. Therefore the motion is denied.

2. The trial court concluded as a matter of law that the requirements for mechanics and materialmen’s liens set forth in OCGA § 44-14-361.1 had been fully complied with by Ferro in filing its lien, and that Ferro had obtained a judgment against Dykes in the Gwinnett County action. It further concluded that Spicewood’s motion to intervene was premised upon the defense that because it had expended sums in excess of its contract with Dykes, Ferro was not entitled to a lien upon its property. Thus, it ruled that any question whether Ferro’s claim was within the contract price Spicewood agreed to pay Dykes was placed in issue and decided adversely to Spicewood when judgment was entered in favor of Dykes based upon the pleadings and the uncontradicted affidavits of Jim Dykes and William Ferro. Accordingly, the trial court held that Dykes was entitled to summary judgment as a matter of law in the instant action since all of Spice-wood’s defenses were raised and vigorously litigated in the Gwinnett County case; and that the judgment against Spicewood was likewise conclusive against Paxton and Still as sureties on the bond, but because the liability of the Still estate was covered by the indemnification agreement, the motion of the co-executors Chesnut and Kanes for summary judgment on their cross-claim against Paxton and Bracewell based on this agreement was also granted.

Spicewood contends that “[w]here a statutory bond has been provided to release realty from a recorded lien, it is still incumbent upon the lien claimant who brings suit against the principal and surety on the bond to prove entitlement to the underlying lien. [Cit.]” North v. Waffle House, 177 Ga. App. 162, 163 (1) (338 SE2d 750). They argue that although Ferro obtained a judgment against Dykes, the contractor, it did not obtain a judgment against Spicewood, the principal, or the sureties on the bond, and “a judgment against the general contractor [does] not make the principal (owner) and surety liable ‘in the absence of a judgment in favor of the materialman and against the owners establishing the right to a lien.’ (Emphasis supplied.) In short, to enforce the bond the lienor must establish his rights both to a lien and foreclosure thereof upon the recorded lien which the bond replaced. . . .” M. Shapiro & Sons v. Yates Constr. Co., 140 Ga. App. 675, 678 (231 SE2d 497). Thus appellants insist Ferro failed to establish its rights to the underlying lien or to foreclosure thereon; and that since it therefore cannot enforce the bond, Dykes is likewise not entitled to recover under the bond against Spicewood or the sureties based upon Ferro’s assignment of rights.

Dykes responds that Ferro’s claim against it was a part of its claim against Spicewood, since as general contractor it was responsible for the performance of Ferro, its subcontractor; that the evidence on motion for summary judgment clearly established its entitlement to judgment on the bond against Spicewood and the sureties under the doctrine of res judicata because its judgment against Spicewood, which included the amounts for which Ferro had sued, showed that its claim and Ferro’s claim were within the contract price which Spicewood agreed to pay; that this was a conclusive judgment for which Spicewood had no defense; and that the trial court therefore correctly ruled that all of Spicewood’s defenses were raised and determined in the Gwinnett County case and Dykes was entitled to judgment on the bond as a matter of law.

We agree. “To establish and foreclose a lien on the owner’s property it. . . must be shown . . . that the owner contracted with someone for these supplies to be furnished; that the person to whom the plaintiff furnished them was connected with that contract; and that the value of the material was within the contract price to which the owner agreed.” Athens Elec. Supply Co. v. Delta Oil, 101 Ga. App. 515, 519 (3) (114 SE2d 289). Spicewood in its motion to intervene in the Gwinnett County case maintained that because it had a substantial interest in the litigation between Ferro and Dykes it should be allowed to assert certain defenses and claims. One issue raised was that because Spicewood had expended sums in excess of the contract with Dykes, Ferro was not entitled as a matter of law to a lien upon Spicewood’s property; and that an order should be entered declaring the lien null, void and of no effect, and discharging it. However, the evidence clearly established that Spicewood contracted with Dykes to perform certain work, that Dykes then contracted some of this work to Ferro, and that both Dykes’ and Ferro’s claims were within the contract price that Spicewood agreed to pay. Thus any defense in regard to the invalidity of Ferro’s lien was adjudicated adversely to Spicewood when judgment was rendered in Dykes’ favor in Gwinnett County, and the issue became res judicata. When Ferro assigned its lien to Dykes, this issue remained res judicata, as in this context “one party is a privy of another where there is a mutual or successive relationship to the same right. [Cit.]” Smith v. Wood, 115 Ga. App. 265, 268 (4) (154 SE2d 646).

“ ‘While the moving party on a motion for summary judgment has the burden of establishing the non-existence of any material fact and all doubts are resolved in favor of the party opposing the motion,! the burden of proof can be shifted . . . when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time or suffer a judgment against him.’ (Citations and punctuation omitted.) [Cit.]” McClure v. Equitable Real Estate &c. Mgmt., 195 Ga. App. 54, 55 (392 SE2d 272). It follows that since Spicewood produced no evidence to refute the above facts, the trial court correctly ruled Dykes was entitled to judgment as a matter of law against it as principal under the bond.

Decided March 4, 1991

Rehearing denied March 15, 1991.

Rowe & McGarity, J. Michael McGarity, for appellants.

Zachary & Segraves, Stephen M. Gibbs, Kenneth W. Carpenter, Chestnut & Livingston, Tom Pye, for appellee.

3. Spicewood, Stratton Paxton and Gene Bracewell enumerate as error the grant of partial summary judgment to Chesnut and Kanes as co-executors of the Still estate on their cross-claim against Spice-wood. This motion was supported by Chesnut’s affidavit averring that following the death of Leroy Still, Spicewood, Paxton and Bracewell entered into the indemnity agreement under which the co-executors for the Still estate conveyed all of the estate’s interest in the stock and assets of Spicewood in consideration for the payment of certain money and the indemnification of the estate from any liabilities of Spicewood; and that the bond made by Spicewood as principal and Still and Bracewell as sureties was a potential “liability of any nature . . . arising from the operation of the corporation,” as contemplated by the indemnity agreement.

The construction of a contract is a question of law for the court, OCGA § 13-2-1, unless it contains ambiguous terms or expressions. Price v. Age, Ltd., 194 Ga. App. 141 (1) (390 SE2d 242). When Spice-wood filed a response to the co-executors’ motion for partial summary judgment, it submitted no evidence by deposition, affidavit or otherwise to rebut Chesnut’s affidavit explaining that the parties to the agreement intended any liability of the estate as surety on Spice-wood’s bond to be indemnified. Accordingly, summary judgment was properly granted on this issue. McClure, supra.

4. Dykes’ motion for sanctions against appellants pursuant to OCGA § 5-6-6 is denied as the record on appeal does not establish that the appeal was without merit or filed for purposes of delay only. Carco Supply Co. v. Dick Clem, Master Plumber, 194 Ga. App. 566 (7) (391 SE2d 134).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2371.
    KAN v. THE STATE.
    (404 SE2d 281)
   Banke, Presiding Judge.

The appellant and a co-defendant, Michael Swaney, were jointly convicted of trafficking in cocaine. The appellant brings this appeal from the denial of his motion for new trial.

A vehicle owned and occupied by the appellant but being driven by Swaney was stopped by a state trooper about a mile outside of Perry, at a roadblock set up for the purpose of examining the drivers’ licenses, vehicle registration papers, and insurance documentation of passing motorists. The trooper testified that when neither Swaney nor the appellant could produce a registration document for the vehicle, which had an out-of-state tag, he questioned them separately about their destination and the purpose of their trip and that the appellant responded that they were going deer hunting, while Swaney said they were going to Perry. Based on the discrepancies between their stories, the absence of any hunting gear, and the fact that the vehicle was headed away from rather than towards Perry, the trooper then asked them if they would consent to a search of the vehicle. He testified that both men consented and that, after they did so, he looked through the front window of the vehicle and observed under the front passenger seat a brown box which was taped shut. He stated that when questioned about the box, the appellant told him it contained old jewelry and gave him permission to open it. The trooper did so and discovered inside it the cocaine on which this prosecution was predicated. A further search of the vehicle conducted at the sheriff’s office resulted in the discovery of a set of electronic scales in the trunk of the vehicle. The appellant denied that he had consented to any search of the vehicle, while Swaney testified that he had consented only to a search of the trunk. Held:

1. The appellant enumerates as error the denial of his motion to suppress the contraband, contending that the roadblock was being conducted as a mere pretext to search for drugs. The Georgia Supreme Court has held that the police may operate roadblocks “for the purpose of checking the legality of licensing of drivers and registration of vehicles,” without the necessity of any particularized suspicion of wrongdoing. State v. Swift, 232 Ga. 535 (1) (207 SE2d 459) (1974). In this case, the trooper testified that he was conducting a wholesale, nonselective credentials check of all drivers passing by the location in question. Thus, the initial detention of the vehicle at the roadblock was lawful. Futhermore, “[t]he extent of the stop in this case did not exceed the permissible scope of investigation by the officer to deter-j mine whether the driver was properly licensed and in lawful possession of the vehicle and the motor vehicle was properly registered.” Davis v. State, 194 Ga. App. 482, 483 (391 SE2d 124) (1990). The appellant’s reliance on United States v. Smith, 799 F2d 704 (11th Cir. 1986), as authority for a contrary holding is misplaced, inasmuch as the detention in that case was based on a “drug courier profile.”

Decided February 25, 1991

Rehearing denied March 15, 1991

Sonya J. Calhoun, for appellant.

Edward D. Lukemire, District Attorney, Robert E. Turner, Assistant District Attorney, for appellee.

2. The appellant contends that the trooper did not have probable cause to conduct a search. However, the search was not predicated on probable cause but on consent. “Having already effected a valid stop of the vehicle, the trooper certainly did not violate the appellant’s] Fourth Amendment rights merely by requesting such consent.” Pupo v. State, 187 Ga. App. 765, 766 (2) (371 SE2d 219) (1988). The evidence of record supports the trial court’s determination that the search did not exceed the scope of the consent.

3. The appellant contends that the trial court erred in failing to give his requested charge on equal access. The two defendants sought such a charge based on their testimony that two acquaintances, whom they identified only as “John and Billy,” could have placed the contraband in the car the previous night while they were sharing a motel room in Orlando. “Equal access is merely a defense available to the accused to whom a presumption of possession flows. . . . [W]hen the trial judge elects not to charge the [jury] on the presumption of possession [arising from ownership or exclusive control of the vehicle in which the contraband is found] an equal access instruction is not required.” Lance v. State, 191 Ga. App. 701, 703 (2) (382 SE2d 726) (1989). As the jury in this case was not charged on the presumption of possession arising from ownership or exclusive control of a vehicle, a charge on equal access was not required.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A1714.
    INTERNATIONAL INDEMNITY COMPANY v. KEITH et al.
    (404 SE2d 335)
   Pope, Judge.

Appellant International Indemnity Company (Indemnity) brought an action for declaratory judgment and other relief against appellees Robin and Phillip Keith and appellee Yvonne C. Tidwell to determine whether it was obligated to provide excess liability coverage under an automobile insurance policy issued to Robin Keith. The trial court denied both International’s and Tidwell’s motions for summary judgment and we granted International’s application for interlocutory appeal. We reverse.

On May 18, 1987, Phillip Keith, while driving his employer’s truck, struck and killed Tidwell’s husband, who was riding a bicycle. International, which provided insurance coverage to Robin Keith, Phillip Keith’s wife, on her 1978 Monte Carlo, investigated the accident pursuant to a reservation of rights dated July 22, 1987. Although International never formally denied coverage, it did not participate (did not defend Keith) in the wrongful death action Tidwell’s wife, Yvonne Tidwell, filed against Phillip Keith and his employer, Jimmy Ray Stiles, on May 9, 1988.

On January 13, and January 25, 1989, Tidwell’s attorney and Keith’s attorney, respectively, wrote International a letter notifying it of the pendency of trial and advising it of what they contended was International’s obligation to participate in Keith’s defense because of its alleged excess liability coverage arising from its policy with Robin Keith. International filed the present declaratory judgment action on February 2, 1989. On February 8, 1989, pursuant to the agreement of the parties, the trial court entered a final order and judgment in the wrongful death action wherein Tidwell was awarded $95,000, plus costs, to be paid as follows: $30,000 to be paid by Keith, individually, $50,000 to be paid by Canal Insurance, and “$15,000 to be paid solely by . . . International... , if and only if, upon the ultimate final conclusion of that certain Declaratory Judgment suit. . . now pending in Bartow Superior Court, International is found to have coverage under its policy. ...”

1. The issue to be decided by this court is whether the trial court correctly denied summary judgment to International and Tidwell, apparently concluding that issues of fact remain as to whether coverage exists under the policy. The policy here specifically excluded from liability coverage “any vehicle which is owned by or furnished or available for the regular use of any family member.” “[T]he purpose of the . . . non-owned regular use provision is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase of the premium. The covered use is also variously described as casual and infrequent while the term regular use has been held to suggest a principal (though not necessarily exclusive) use as distinguished from a casual or incidental use. Thus the key to the insurer’s intention in the use of such clause is its obvious intention to cover only those uses, whether described as occasional, incidental, casual, infrequent or by other similar adjectives, which will not materially increase the insurer’s risk without a corresponding and compensating increase [in premium].” (Citation, punctuation and italics omitted.) Mattox v. Cotton States Mut. Ins. Co., 156 Ga. App. 655, 657 (275 SE2d 667) (1980).

Decided March 15, 1991.

Gurley & Fowler, James B. Gurley, Louis B. Lusk, Jr., for appellant.

Ben Lancaster, Diane Q. House, for appellees.

The undisputed facts of record in this case, including Keith’s responses to International’s requests for admissions and the deposition of Keith’s employer, show that the vehicle was furnished or available to Keith for his regular use, and that he regularly used the furnished vehicle. Consequently, the trial court’s order denying summary judgment to International must be reversed. Greenway v. Southern Gen. Ins. Co., 192 Ga. App. 674 (385 SE2d 793) (1989); American Southern Ins. Co. v. Golden, 188 Ga. App. 585, 587 (373 SE2d 652) (1988); Mattox v. Cotton States, supra.

2. We find no merit to Tidwell’s contention that the trial court should have dismissed International’s declaratory judgment action. Contrary to Tidwell’s contentions on appeal, it is impossible to determine from the record before us that International had in fact issued a firm denial of coverage prior to the filing of the declaratory judgment action, thereby barring its recourse to that procedure. Cf. Sentry Ins. v. Majeed, 194 Ga. App. 276 (2) (390 SE2d 269) (1990). “The question of coverage is still in issue, and the trial court properly denied the motion to dismiss the declaratory judgment complaint.” State Farm &c. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332, 335 (208 SE2d 170) (1974).

Judgment reversed.

Beasley and Andrews, JJ., concur.

       Canal Insurance Company, Stiles’ insurer, provided primary coverage in the amount of| $50,000 for the accident.


author: Beasley, Judge. Andrews, Judge,

text:
    A90A1824.
    TROUP ENTERPRISES et al. v. MITCHELL, CARRINGTON & RAYFIELD, INC.
    (404 SE2d 337)
   Beasley, Judge.

Cord Construction Company was the general contractor to construct a motel for Troup Enterprises. Pursuant to a bid, Mitchell, Carrington & Rayfield, Inc., t/a MCR, subcontracted for the project. When MCR was not paid the balance of what it was owed, it filed a notice of lien on the property and then brought its claim against Troup seeking a general judgment for $10,712, interest and costs, plus a special judgment imposing a lien on Troup’s real property. Troup filed an answer and a counterclaim for $2,350 for repairs necessitated by defective work performed by MCR and for $20,000 as the diminished value of Troup’s property.

At trial both parties moved for directed verdicts. The court directed a verdict in favor of MCR on the special lien, in favor of Troup on MCR’s claim for general damages, and against Troup’s counterclaim. Troup appeals and assigns error on the direction of the verdict because there was a conflict in the evidence as to entitlement and as to the amount owed under the lien. It also assigns error on the failure to direct a verdict in favor of Troup on the lien, based on the contention that the lien was filed prematurely and was thus invalid.

1. We turn first to the issue of prematurity, or timeliness, of the lien. In September 1986, MCR had completed most of its contractual obligations except pouring concrete mix inside the stair treads. It is referred to in MCR’s brief as a slab. This had to await the placing of the metal stairs. On October 10 MCR executed a materialman’s lien which was filed on October 28.

Troup argues that the lien was not filed after the completion of the work and was premature under OCGA § 44-14-361.1 as construed in Yates Paving &c. Co. v. Waters, 181 Ga. App. 537, 539 (3) (352 SE2d 791) (1987) (dicta). This assertion is based on testimony of MCR’s secretary-treasurer that pouring concrete “inside the step after the metal stairways was [sic] installed” was completed “the first of November or somewhere within the first week in November.” Troup had admitted that materials were “last provided on October 10, 1986.” A party will not be allowed to disprove an admission in his pleadings without withdrawing it. Grigsby v. Fleming, 96 Ga. App. 664, 665 (1) (101 SE2d 217) (1957). Because concrete was the principal material furnished by MCR, this evidence tended to show that the work was completed on October 10 when the notice of lien was executed. This would leave an issue of fact, precluding a directed verdict for either the lienor or the property owner. Under such circumstances, a jury must determine whether the lien was filed after work was completed and material furnished within the meaning of OCGA § 44-14-361.1 (a) (2).

Nevertheless, MCR in its brief in opposition to Troup’s motion for judgment n.o.v. admitted that work, although amounting to less than eight hours, was completed following the filing of the lien. We consider the issue of prematurity assuming that the described work was not completed until after the lien was filed, because the jury could find this to be the fact. OCGA § 44-14-361.1 (a) provides for creation of a lien within three months after completion of the work or after the material is furnished. See L & W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680 (399 SE2d 272) (1990); Cumberland Bridge Assoc. v. Bldrs. Steel Supply, 169 Ga. App. 945 (315 SE2d 484) (1984) [physical precedent only]. MCR asserts that its case involves only the furnishing of materials, as the notice of lien states, but there is evidence that both labor and material were encompassed in MCR’s entire contractual obligation, of which the lien for $10,712 is a part.

“A lien of a contractor or materialman on real estate ... attaches from the time the work under the contract is commenced or the material is furnished.” Marbut-Williams Lumber Co. v. Dixie Elec. Co., 166 Ga. 42 (2) (142 SE 270) (1927). In order to become effective as a claim two requirements must be met by the lienor. 1) There must be a substantial compliance with the contract for building or for materials furnished by the party claiming the lien. 2) The claim must be filed for record within three months after the completion of the work or the furnishing of the materials. OCGA § 44-14-361.1 (a) (1 & 2). Whether substantial compliance also applies to the second requirement is problematic. According to the view expressed in Yates, supra, and argued for by Troup, it does not. Although the language in Yates is dicta, the rule of strict construction of lien provisions, Allied Elec. Contractors v. Kern & Co., 184 Ga. App. 747, 748 (362 SE2d 452) (1987), and allowance of preliminary notice of lien by OCGA § 44-14-361.3 support the validity of that view. Our appellate courts have not defined, or devised a test to ascertain, exactly what “completion” or “furnished” means, in terms of fulfillment of the obligations under the contract.

The record does not disclose as a matter of law whether the work performed by MCR should be considered as completion of the original contract. In such circumstances the matter rests with the factfinders. See Sears, Roebuck & Co. v. Superior Rigging &c. Co., 120 Ga. App. 412 (170 SE2d 721) (1969); Cumberland Bridge Assoc., supra. Cf. Downtowner of Atlanta v. Dunham-Bush, 120 Ga. App. 342 (170 SE2d 590) (1969).

The trial court did not err in refusing to find the lien invalid but should not have approved it as a matter of law. Whether MCR has a : valid lien should be considered by the jury after proper instruction from the trial court.

2. The second issue involves the amount and entitlement of judgment in MCR’s favor on the lien claim. Troup attempted to demonstrate by testimony and photographs that the work engaged in by [MCR, including that involving certain poured concrete portions, was >oorly and improperly performed so that the contract was not sub-tantially complied with and that the amount sought by means of the lien was incorrect. This was disputed. A principal witness for Troup admitted on cross-examination that he viewed the work over six months after it was performed and that he had no personal knowledge of who was responsible for it. The evidence was not conclusive as to either side.

The narrowed issue is whether MCR as a lien claimant showed substantial compliance with the contract. OCGA § 44-14-361.1 (a) (1); Jones v. Ely, 95 Ga. App. 4 (4) (96 SE2d 536) (1957). Troup sought to defeat MCR’s claim by showing that MCR had failed to complete its contractual duties in a workmanlike manner. MCR countered with evidence that the general contractor was solely at fault.

“Where part of a construction contract is sublet to a subcontractor by a prime contractor, the owner may not be subjected to a lien for any claim or amount which the main contractor could not assert against the owner.” McCrary v. Barberi, 100 Ga. App. 167, 169 (110 SE2d 426) (1959). This case fits within McCrary, for the work is alleged to have been completed in a faulty or defective manner by MCR, although perhaps also by the acts of the prime contractor. If the improper construction was the fault of the prime contractor, owner Troup may be liable to MCR as subcontractor, but that liability only extends to the reasonable value of the improvements, which must be determined by the trier of fact. McCrary, supra at 170-171. It was error for the trial court to sidestep the jury and determine on motion for directed verdict whether and to what extent the work was defectively completed.

Judgment reversed.

Pope and Andrews, JJ., concur specially.

Andrews, Judge,

concurring specially.

While I concur with the result reached, and all that is said in Division 2,1 do not agree with all that is said in Division 1, because I believe the opinion leaves the implication that whether or not the last work performed was “substantial” is a factor to consider in whether or not the work is “complete.”

OCGA § 44-14-361.1 (a) (1) & (2) provide that, in order for a subcontractor such as MCR to enforce a lien against the owner’s property, (1) there must be a “substantial compliance by the party claiming the lien with his contract for building, repairing, or improving; . . . .” and (2) the claim of lien must be filed of record “within three months after the completion of the work. . . .”

In Yates Paving &c. Co. v. Waters, 181 Ga. App. 537 (352 SE2d 791) (1987), this court considered the situation where four dates were put forward by the parties as the completion date, two of which made the lien filing beyond three months, one of which made it timely, and the last of which made the filing premature. We held that “[e]ven assuming the date alleged by appellant . . . was correct, the lienl would still be invalid, having been filed before the work was completed rather than within three months after the completion of the work, as required by OCGA § [44-14-361.1].” (Emphasis in original.) Id. at 539. While technically dicta because resolution of the issue before this court hinged upon conflicting testimony of the lien claimant/movant for summary judgment, Division 1 accepts the conclusion that “premature filing” does not satisfy the statute. Our disagreement is not here, but with the issue of whether the quantity of the last work performed is or can be determinative of “completion.”

Although MCR’s subcontract required it to supply concrete for the project, it was not a “materialman” as that term is used in the lien statute. As acknowledged in Division 1 of the opinion, MCR was a “subcontractor” who provided labor as well as materials for the work and was assigned portions of the work covered by the prime contractor’s agreement with the owner for completion, i.e., laying out the building, digging the footings, placing the forms for the concrete, pouring the concrete, finishing the concrete, assembling the pre-fab components of the motel, pouring and finishing the second floor slab, etc. Therefore, I do not believe the discussion in Division 1, regarding the “last furnishing of material” as in any way affecting the issue of the completion of the work under the subcontract is helpful.

In making the determination of timeliness of the filing of the claim, the relative amount of work last completed is not the issue, but whether, in the case of a subcontract such as present here, the work done last was part of the work encompassed by that subcontract. In Sears, Roebuck & Co. v. Superior Rigging &c. Co., 120 Ga. App. 412 (170 SE2d 721) (1969), Sears had contracted with American Incinerator to build an incinerator. American then subcontracted with Superior for actual erection which involved providing both labor and equipment. The claim of lien by Superior was filed on October 17, 1967, which Sears contended was too late. Superior billed for its work on a time basis and there was evidence that the last day for which time charges were made was July 14.

In differentiating materialmen’s claims, for which the last deliv-Iery of materials to the contractor or subcontractor is the determinate, we stated that “Superior was more than a mere supplier. The evidence . . . shows that Superior was engaged to do a certain specified job or work, to wit, to erect an incinerator. . . .” The question involved . . . is at what point in time did completion of Superior’s work bccur? That Superior made no charge for manhours after July 14, 1967, is some evidence that the work was completed on that date. But there is some evidence to the contrary. The affidavit of H. M. Jorgen-sen states . . . that he personally did welding on July 20, 1967, necessary to complete the job; and that on July 24, 1967, he inspected the |ob, cleaned up debris and made final adjustments.” The matter of when the job was complete was, under these facts, left for the jury’s determination.

Decided March 15, 1991.

R. Michael Key, for appellants.

Duncan, Thomasson, & Aeree, Marc E. Aeree, for appellee.

While the issue of whether the quality of the work, referred to in OCGA § 44-14-361.1 (a) (1), meets the requirement of the contract is judged by “substantial compliance,” the issue of whether the pouring of the concrete on the stairwell here was included in the subcontract work which MCR was to perform does not depend on what percentage of the overall job that task equated.

I agree that the denial of the directed verdict to Troup was correct because the issue of “completion” of the work required by MCR’s subcontract was properly for the jury.

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


author: Pope, Judge. Beasley, Judge,

text:
    A90A1854.
    A90A1855.
    IN THE INTEREST OF A. H., a child. IN THE INTEREST OF A. M. G., a child.
    (404 SE2d 341)
   Pope, Judge.

A. H. and A. M. G., juveniles, were each charged with one count of possession of cocaine with intent to distribute. On appeal, they argue the general grounds. Held:

The evidence showed that a confidential informer told police that he had been asked to deliver cocaine to the apartment of Mark Harris. Police had the apartment under surveillance for approximately one-and-one-half hours before the delivery of the cocaine. They observed A. H. and A. M. G. arrive at the apartment 15 to 20 minutes before the cocaine was delivered. A half hour after the delivery, police executed a no-knock search warrant. Upon entering the apartment, police found A. H. and A. M. G., Harris’ girl friend and Tony Harris in the living room and immediately ordered them to lie down on the floor. Mark Harris and Stanley Wells were caught in the rear of the apartment, apparently attempting to dispose of cocaine in the bath-1 room. The cocaine had been delivered in cake form. The cocainel found on a table in the living room was in “rock” form. Police alsd found a razor blade on the table that apparently had been used to cull the cocaine, as well as small glassine bags used to package the col caine. The entire living room was approximately ten feet by 12 feetl Although A. H. testified that he and A. M. G. were watching televil sion and were not aware of the cocaine, police officers who executed the warrant testified that the table upon which the cocaine was being cut and packaged was easily visible from all parts of the living room.

A. H. and A. M. G. rely upon Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216) (1988), and argue that the evidence in this case is similar to that in Ridgeway and shows no crime, but only their presence at the place others committed the crime. We disagree and affirm. In Ridgeway, the court found that Ridgeway’s presence in the living room of premises did not, without more, connect him with heroin and cocaine found in other rooms of the house. This was true even though Ridgeway had a key to the premises and was found with cocaine on his person. (The court noted that the conviction based upon the cocaine found on Ridgeway was not appealed.) In the present case, A. H. and A. M. G. were found in the same small room in which cocaine was being prepared for retail sale. There was evidence that they arrived only after the delivery of the cocaine was arranged, but well before the actual delivery took place. A rational trier of fact would be justified in concluding from this evidence that the defendants were more than merely present but were parties to the conversion of the cocaine from cake form into “rocks” suitably packaged in glassine bags for retail sale. The evidence is sufficient to satisfy the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Cooper and Andrews, JJ., concur. Carley, J., concurs in judgment only. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Other than presence in an apartment living room with four idults, a toddler and a baby when cocaine was being packaged into small quantities, the only evidence that defendants were parties to ;he crime of possession of cocaine with intent to distribute was non->robative hearsay. It was the officer’s testimony that he had informa-ion from a confidential informant that led him to believe they were ‘involved” in Harris’ business of selling cocaine, i.e., that they “were unning the drugs ... for Mr. Harris.” Because it is inadmissible íearsay, Hart v. State, 174 Ga. App. 134 (1) (329 SE2d 178) (1985), it nust be discounted and what is left, considered.

The one defendant who testified said they were watching television and he was unaware of the cocaine. He stated that it did not Hrrive while he was present. Even if the factfinder disbelieved these Statements and found that the defendant was not speaking the truth Hi these respects, this fact together with what was admissible evidence of guilt, was insufficient to find commission of the acts “beyond fl reasonable doubt.” OCGA § 15-11-33 (c). Knowledge of the presence of, and activity surrounding, the cocaine, and even approval of it which does not amount to encouragement, is not sufficient. Ridgeway v. State, 187 Ga. App. 381, 382 (370 SE2d 216) (1988), applies this and other principles relevant to this case. See also Edwards v. State, 194 Ga. App. 571, 573 (4) (391 SE2d 137) (1990).

Decided March 15, 1991.

Ronnie K. Batchelor, for appellants.

Phyllis Miller, Solicitor, for appellee.