author: Blackburn, Judge. Ruffin, Judge,

text:
    A94A1604.
    RIGGINS v. WYATT.
    (452 SE2d 577)
   Blackburn, Judge.

Dr. Richard S. Riggins, M.D., an orthopedic surgeon, appeals the judgment entered on the jury’s verdict awarding damages to Vivian R. Wyatt in her medical malpractice action against him. Dr. Riggins performed surgery on Wyatt and installed a device known as a ken nail to repair her fractured hip. Four months later, after the ken nail broke, Dr. Riggins performed a second surgery on Wyatt.

Wyatt filed her complaint against Dr. Riggins ten days before the expiration of the statute of limitation without an expert affidavit. Wyatt noted that an expert affidavit would be filed pursuant to OCGA § 9-11-9.1 (b). After an extension of time granted by the trial court, Wyatt filed the affidavit of Timothy M. Wright, Ph.D., to support her claim of negligence. Dr. Riggins filed a motion to dismiss, alleging Dr. Wright was not an expert competent to testify in this medical malpractice case. The trial court denied Dr. Riggins’ motion which Dr. Riggins enumerates as error.

“The affidavit required by OCGA § 9-11-9.1 to be filed with a malpractice complaint is insufficient if it fails to show the affiant is competent to testify as an expert in the case. [Cits.]” Milligan v. Manno, 197 Ga. App. 171, 172 (397 SE2d 713) (1990). Therefore, the trial court erred in considering Dr. Wright’s affidavit as he was not competent to testify as an expert under OCGA § 9-11-9.1.

“ [Competency as an expert is not demonstrated by mere familiarity [with the standard of care]. During the course of one’s education, training, or experience as a [professor], it is possible to become ‘familiar’ with the standard of care and treatment generally employed by [a practicing surgeon]. Such familiarity would not, however, qualify one as an expert in that regard. An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates. Absent some evidence to show that the affiant’s education, training, or experience as a [professor] would likewise demonstrate his similar expert qualifications as to [a practicing surgeon], the ‘exception’ in Milligan, supra would not be shown.” (Citations and punctuation omitted.) Chandler v. Koenig, 203 Ga. App. 684, 687 (417 SE2d 715) (1992).

There is no evidence in the present case which shows that Dr. Wright had any expertise as to the standard of care of a practicing surgeon in treating patients with biomechanical devices such as the ken nail. Dr. Wright possesses impressive credentials as a tenured professor of applied biomechanics in surgery at Cornell University Medical College. However, his credentials do not include, as they must, the ability, education, training or experience to perform the necessary surgery or prescribe any care to a patient with a bio-mechanical device. A person cannot be qualified as an expert in an area where he or she would not be lawfully qualified (by holding a valid state license) to perform the treatment which is the subject of the expert opinion.

This is not a case where an “overlap” of medical expertise allows one in a different profession to testify as to a standard of care applicable to both. See Avret v. McCormick, 246 Ga. 401 (271 SE2d 832) (1980). In Bethea v. Smith, 176 Ga. App. 467, 470 (336 SE2d 295) (1985), we determined that no overlap of expertise existed “between the orthopedic and podiatric general procedures insofar as the diagnosis and treatment of a fractured ankle [was] concerned.” In that case, unlike the subject case, the “expert” was a licensed, medical doctor. The trial court erred in determining Dr. Wright was competent to testify as an expert in the present case.

In light of the foregoing, we need not address Dr. Riggins’ remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Beasley, P. J., and Ruffin, J., dissent.

Ruffin, Judge,

dissenting.

I respectfully dissent because I do not agree with the majority’s position that one who is otherwise qualified to render an expert opinion should be disqualified merely because he or she is not a practitioner holding a valid state license to perform the treatment which is the subject of the expert opinion.

The Supreme Court of Georgia held in Avret v. McCormick, 246 Ga. 401 (271 SE2d 832) (1980), a case cited by the majority, that “[m]edical experts are persons possessing technical and peculiar knowledge, and any person learned in medical or physiological matters is qualified to testify as an expert thereon, even though he is not a medical practitioner.” (Citation and punctuation omitted.) (Emphasis supplied.) Id. at 401.

Furthermore, this court held in In the Interest of S. T., 201 Ga. App. 37 (1) (410 SE2d 312) (1991), that “[a]n expert is one possessing, in regard to a particular subject or department of human activity, knowledge not acquired by ordinary persons. ... It is not essential that [an expert] should be actively engaged in the practice of medicine. Nor is it essential that one who really has a scientific education on the subject should . . . have a license to practice from any medical board. . . . Accordingly, a person who is neither a physician nor surgeon can express an opinion on a medical question, when the matter inquired about lies within the domain of the profession or calling which the witness pursues.” (Citations and punctuation omitted.) Id. at 38.

“[F]or an affiant to constitute ‘an expert competent to testify’ under OCGA § 9-11-9.1 (a), the affiant’s expertise must include knowledge of the standard of care applicable to the defendant-physician as to at least one of the matters on which the plaintiff’s malpractice claim is based.” Chandler v. Koenig, 203 Ga. App. 684, 685 (417 SE2d 715) (1992).

In the instant case, Wyatt alleged in her complaint that Dr. Rig-gins “failed to give appropriate directions regarding therapy upon discovering that the ken nail was bent. . . .” Accordingly, in order for Dr. Wright to qualify as an expert in this case, there must be some evidence to show his education, training, or experience as a professor of applied biomechanics in surgery, would likewise demonstrate his knowledge of the standard of care applicable to surgeons treating patients with biomechanical devices such as the ken nail. Chandler, 203 Ga. App. at 687.

Decided December 5, 1994

Reconsideration denied December 20, 1994

Allen & Peters, Jonathan C. Peters, Gary R. McCain, for appellant.

Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, R. Hutton Brown III, for appellee.

Dr. Wright’s affidavits show he is a tenured professor of applied biomechanics in surgery at Cornell University Medical College, where he teaches medical students and residents the appropriate standards of care involving the installation and use of orthopedic implant devices such as the ken nail. He further states that based upon his training, education, and experience, he is an expert on the proper design, installation, and use of devices such as the ken nail used in this case, including the generally accepted standard of care among physicians and surgeons relating to instructions to patients and appropriate physical therapy when such devices are installed. Although Dr. Wright was not a practitioner, his credentials and statements establish he is an expert on biomechanics and a surgeon’s standard of postoperative care for patients with biomechanical devices such as the ken nail. There is nothing in the record of this case to suggest the methods of care he teaches to his students, and within his expertise, are any different from those practiced by orthopedic surgeons.

I am authorized to state that Chief Judge Pope, Presiding Judge McMurray and Presiding Judge Beasley join in this dissent.

On Motion for Reconsideration.

In appellee’s motion for reconsideration, she argues that this court overlooked the controlling authority of Hewett v. Kalish, 264 Ga. 183 (442 SE2d 233) (1994). However, the trial court did follow the mandates of Hewett, supra, by allowing the plaintiff to present a second affidavit supporting the competency of her OCGA § 9-11-9.1 expert. Although the defendant’s motion was entitled a motion to dismiss, it was actually treated as a motion for summary judgment by the trial court’s allowance of additional evidence and a hearing. Our decision found that the “trial court erred in determining Dr. Wright was competent to testify as an expert in the present case.” Therefore, our holding was correct even in light of Hewett.

Motion for reconsideration denied.

       The decision to grant the extension was affirmed by this court in Emory Clinic v. Wyatt, 200 Ga. App. 184 (407 SE2d 135) (1991).

       Although this case has been to trial twice, Dr. Riggins adequately preserved this issue for appeal.


source: Caselaw Access Project

author: Pope, Chief Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A94A1620.
    NEWBERRY et al. v. D. R. HORTON, INC.
    (452 SE2d 560)
   Pope, Chief Judge.

Plaintiffs brought this breach of contract and negligent construction action against defendant homebuilder. The trial court granted defendant’s motion for directed verdict as to plaintiffs’ claims for negligent construction, punitive damages and expenses of litigation, and the jury returned a verdict for defendant on plaintiffs’ breach of contract claim.

1. Plaintiffs state in their brief, “[t]his appeal is limited to the refusal of the [trial] court to charge and instruct the jury on the plaintiffs’ theories of negligent construction, the damages rules applicable and the expenses of litigation.” We find no error in the trial court’s refusal to charge on these issues. The trial court did not charge the jury on the law governing plaintiffs’ negligent construction claim because it had directed a verdict on that claim at the close of the evidence. Clearly, the trial court did not err in refusing to charge the law applicable to the consideration of one of plaintiffs’ claims when it had already removed that issue from the jury’s consideration.

Moreover, plaintiffs have shown no error requiring reversal in this case even if their enumeration challenging the trial court’s failure to charge is read expansively so as to include a challenge to the directed verdict for defendant, both arguments being in essence a challenge to the trial court’s failure to submit plaintiffs’ claim of negligent construction to the jury for its consideration. The record reveals that the trial court’s stated reasons for directing a verdict on this claim were plaintiffs’ failure to offer expert testimony about the standard of care required of a professional builder and their failure to present expert testimony about whether the construction complained about deviated from that standard.

It is well established that plaintiffs in a negligent construction case must establish the standard of care applicable to the defendant builder by the introduction of expert testimony. Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521 (2) (301 SE2d 688) (1983); see also Hudgins v. Bacon, 171 Ga. App. 856 (1) (321 SE2d 359) (1984). Plaintiffs argue and the dissent urges that plaintiffs satisfied this requirement through the testimony of John Wayne Mandato. The record reveals, however, that Mandato, who testified that he was engaged in the business of home repairs and improvements, not home building, was never tendered by plaintiffs as an expert, and the trial court never ruled on his qualifications to give expert testimony.

The trial court has broad discretion to decide whether a witness is qualified to give his opinion as an expert, Jim Ellis Atlanta v. McAlister, 198 Ga. App. 94 (400 SE2d 389) (1990), and it is not for this court to decide whether a witness is qualified to testify as an expert when such witness was never tendered as an expert by a party and was never accepted or rejected as such by the trial court. If anything, the trial court in this case implicitly rejected the witness as an expert by directing a verdict for defendant on plaintiffs’ negligent construction claim for the reasons stated above. Moreover, a review of Mandato’s testimony reveals he never testified about the standard of care required of professional home builders generally, and, based on his credentials, an abuse of discretion could not be shown if the plaintiffs had attempted to qualify him as an expert and the trial court had explicitly refused to find him qualified to give such expert testimony.

Plaintiffs’ first three enumerations of error are thus without merit.

2. Contrary to plaintiffs’ remaining enumeration of error, the trial court did not err in refusing to charge the jury on litigation expenses.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., and Blackburn, J., concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I fully agree that the trial court correctly directed the verdict as to plaintiffs’ claim for OCGA § 13-6-11 attorney fees. However, regarding the claim for negligent construction, my analysis of both procedure and substance differs from that of my colleagues in the majority and so I respectfully dissent from the judgment insofar as it affirms the direction of the verdict on that claim.

In their first enumeration, plaintiffs contend the trial court erred in “refusing to charge the jury on plaintiffs’ theory of negligent construction,” arguing that a verdict for defendant was not demanded. I fully agree with the majority that any error in the refusal to charge the substance of plaintiffs’ contentions is moot after the direction of the verdict unless and until that directed verdict is set aside as erroneous. Unlike the majority, I would hold that the error enumerated is sufficient to authorize this court to determine the sufficiency of the evidence under the “any evidence” standard of OCGA § 9-11-50 (a), pursuant to the broad reach of OCGA § 5-6-48 (f). Even if the decision of the Supreme Court of Georgia in Adams-Cates Co. v. Marler, 235 Ga. 606 (221 SE2d 30) does not mandate that this court consider the underlying substance of the directed verdict, it is my view that, certainly that decision authorizes this court to do so.

When plaintiffs put their expert, Mr. Mandato, on the stand, they questioned him as to his years of home repair/home improvement experience in the locality but they never formally tendered him as an expert witness. Defendant did not cross-examine Mr. Mandato as to his credentials nor did it make any contemporaneous objection to the lack of his qualifications as an expert witness. Neither did defendant move to strike Mr. Mandato’s testimony on the ground that it was incompetent. Instead, at the close of plaintiffs’ case, defendant moved for a directed verdict.

“ ‘The record as it exists at the close of the trial controls as to whether the verdict should be directed and as to whether motion for judgment notwithstanding verdict should be granted.’ Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 670 (92 SE2d 567).” DeLoach v. Myers, 215 Ga. 255, 256 (1) (109 SE2d 777). “ ‘Under this rule the trial court may not on motion for [directed verdict or] judgment notwithstanding the verdict eliminate evidence on the ground that it was improperly received at the trial and then dispose of the case on the basis of the diminished record.’ [Cits.]” Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 670 (on rehearing), supra. It follows that a motion for directed verdict is not an authorized vehicle to challenge the competency of expert opinion testimony on the ground that the witness was not tendered as an expert. Consequently, it is my view that the majority errs in holding that the discretion of the trial court in qualifying a witness as an expert under OCGA § 24-9-67 (when the question is raised for decision) is so broad as to permit the trial court, of its own motion, silently and without notice to the adverse party, to strike the testimony of a witness who has testified without objection but who was not formally tendered as an expert.

In the whole court decision of Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 574 (2), 575 (396 SE2d 562), this court found a waiver of any challenge to the qualifications of an expert witness on the following ground: “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the party might have had.” (Citations and punctuation omitted.) In the case sub judice, defendant made no contemporaneous challenge to Mr. Mandato’s credentials as an expert in residential construction. Accordingly, it is my view that, any foundation objection thereto was waived. Truck Parts &c. v. Rutledge, 211 Ga. App. 166 (1) (438 SE2d 404). Since defendant waived its foundation objection to Mr. Mandato’s opinion evidence by permitting its introduction without objection, that opinion evidence should be treated as “altogether competent” under the holding of the Supreme Court of Georgia in Patton v. Bank of LaFayette, 124 Ga. 965, 973 (7), 974 (53 SE 664). It is my view that the trial court would abuse any discretion it may possess by excluding, sua sponte, unobjected-to evidence on a ground which had been waived by the party adversely affected by that evidence.

Defendant’s motion for directed verdict was made, in part, on the ground that “I don’t think that they established a professional standard of care under a negligent construction theory, even for those items that the garage insulation and the slab that Mr. Mandato talked about. ...” The trial court directed the verdict as to negligent construction, concluding “there was no testimony to what the standard within the industry with regard to the care — necessary care or degree of workmanship, et cetera, and that these matters were less than that standard.”

A claim for negligent construction “arises in tort and exists independently of any claim for breach of contract. Sam Finley, Inc. v. Barnes, 156 Ga. App. 802 (1) (275 SE2d 380) (1980).” Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522 (1a) (428 SE2d 426). “ ‘The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession. [Cits.]’ [Cits.] ‘In a proper case the question of whether the defendant exercised the required degree of skill is, like any other question of fact, to be decided by the jury.’ Mauldin v. Sheffer, 113 Ga. App. 874, 880 [(150 SE2d 150)].” Howell v. Ayers, 129 Ga. App. 899, 900 (1) (202 SE2d 189). “In an action against a builder, ‘(i)t is essential to present competent evidence as to the acceptability of specific professional conduct.’ Coursey Bldg. Assoc. v. Baker, [165 Ga. App. 521, 523 (2) (301 SE2d 688)].” Hudgins v. Bacon, 171 Ga. App. 856, 857 (1), 859 (321 SE2d 359). To qualify as an expert within the purview of OCGA § 24-9-67, “ ‘generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. (Cits.)’ ” Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521, 522 (1), supra.

In the case sub judice, plaintiffs’ witness, Mr. Mandato, lives in Doraville, Georgia, and “[renovates] homes and [does] home repairs.” He started in this business “with [his] family growing up and [has] been doing ever since.” During the past 15 years, he has worked on “[t]housands” of home improvement projects, covering “ [everything that has to be done with the home, except heating and air.” Mr. Mandato inspected plaintiffs’ house, described numerous flaws in the workmanship, offered solutions, and gave his estimation of the costs of the necessary remedial work. “The record is replete with evidence of [defendant’s] mistakes and inefficiencies in building [plaintiffs’ residence], as well as [plaintiffs’ steps] to rectify the problems created thereby.” Savannah Indus. Constr. &c. v. Sumner, 189 Ga. App. 319, 320 (375 SE2d 486). It is true that, in the case sub judice, Mr. Mandato never uttered the phrase: “I am familiar with the degree of reasonable care, skill, and ability which is generally taken to be that degree of care and skill as is ordinarily employed by residential contractors under similar conditions and like surrounding circumstances, and defendant failed to meet that standard in the following particulars. . . .” Nevertheless, Mr. Mandate’s testimony was “competent evidence as to the acceptability [or unacceptability] of specific professional conduct.” Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521, 523 (2), supra. Accordingly, in the absence of a timely objection, I would hold that these repeated references to deviations from good construction practice were sufficient to establish a prima facie case of negligent construction. See Shaw v. Petersen, 180 Ga. App. 823, 824 (1) (350 SE2d 831). See also White Repair &c. Co. v. Daniel, 171 Ga. App. 501 (1), 502 (320 SE2d 205). The jury would not “be left to speculate too freely on what constitutes actionable negligence,” based upon this evidence. Hudgins v. Bacon, 171 Ga. App. 856, 857 (1), 859, supra. In my view, the trial court erred in directing the verdict for defendant on plaintiffs’ claim of negligent construction, as the “evidence here did not demand a finding that the . . . construction work was performed with a reasonable degree of care, skill and ability.” Howell v. Ayers, 129 Ga. App. 899, 900 (1b), supra. Accordingly, I respectfully dissent from that portion of the judgment affirming the direction of the verdict as to this claim.

Decided December 5, 1994

Reconsideration denied December 20, 1994

William R. Hurst, for appellants.

T. Tucker Hobgood, T. Gabriel Hotard, Jr., for appellee.

I am authorized to state that Judge Blackburn joins in this opinion.

       It is thus understandable that defendant made no contemporaneous challenge to Mandato’s credentials as an expert in residential construction.

       For a case illustrating the unusual situation when such testimony may not be necessary to submit a negligent construction claim to the jury, see Hudgins v. Bacon, 171 Ga. App. at 856 (1).


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A1645.
    TRUSTEES OF THE INDEPENDENT PRESBYTERIAN CHURCH OF SAVANNAH v. SAVANNAH KIDSWEAR, INC.
    (452 SE2d 546)
   Smith, Judge.

The Trustees of the Independent Presbyterian Church of Savannah (“the landlord”) filed a declaratory judgment action against Savannah Kidswear, Inc. (“the tenant”), seeking a declaration of its continuing obligations under a lease agreement following a fire which destroyed the leased premises. The tenant counterclaimed for breach of contract and prayed for specific performance of the landlord’s alleged duty to rebuild. The landlord filed a motion for summary judgment, and the tenant filed a motion for partial summary judgment on its breach of contract claim. The trial court ruled that the obligations under the contract were continuing in nature, but found that the tenant was not entitled to specific performance. The court granted the tenant’s motion for partial summary judgment, ruling that the landlord had breached the lease agreement as a matter of law by failing to make a decision whether to rebuild within 90 days as expressly provided. The landlord appeals.

1. The landlord contends that the lease terminated when it notified the tenant of its decision not to rebuild and that the trial court erred in denying its motion for summary judgment on this issue. We agree.

The lease agreement unambiguously states that “[s]hould Landlord decide not to rebuild or restore, then this Lease shall terminate and neither party shall be further obligated.” The provision in the preceding paragraph requiring the landlord to make a decision within 90 days did no more than establish that the landlord would breach the contract by failing to make a decision within that time period. See Separk v. Caswell Builders, 209 Ga. App. 713, 714 (1) (434 SE2d 502) (1993). The trial court erred in construing the contract provision in question as dependent on whether the landlord breached a separate provision requiring a decision to rebuild to be made within 90 days. Separk, supra; OCGA §§ 13-2-2 (9); 13-1-7. No further obligations remain under the lease agreement, and the landlord therefore is not obligated to give tenant “the first right of refusal to purchase the Premises” as provided therein.

2. The landlord contends that the trial court erred in granting summary judgment to the tenant on its breach of contract claim. We disagree. The agreement provides that “[t]he determination whether the Premises shall be rebuilt or restored shall rest solely with the Landlord, which determination Landlord shall make as soon as practicable but in no event later than ninety (90) days following the date of occurrence. . . .” It is undisputed that the landlord failed to do this. The tenant was entitled to a decision within that period of time and was likewise entitled to forego other options until a decision was finally made some six months after the premises were originally destroyed by fire. The tenant is therefore entitled to damages flowing from that breach, if any such damages can be proven. We therefore find no error.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson and Ruffin, JJ., concur. Pope, C. J., McMurray, P. J., and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the landlord did not breach the lease agreement by failing to give the tenant notice of its intention not to rebuild the leased premises within 90 days after destruction of the premises by fire and that the tenant is not entitled to damages flowing from this alleged breach of contract.

The lease agreement provides, in pertinent part, as follows: “10. Damage or Destruction. In the event that the Premises are damaged or destroyed by fire, storm or other casualty so that Tenant is unable to conduct Tenant’s business on the Premises, payments of rent may be discontinued, at the option of Tenant, until the Premises may be rebuilt or restored to their former condition. The determination whether the Premises shall be rebuilt or restored shall rest solely with the Landlord, which determination Landlord shall make as soon as practicable but in no event later than ninety (90) days following the date of occurrence that renders such portion of the Premises untenantable or unusable. . . . Should Landlord decide not to rebuild or restore, then this Lease shall terminate and neither party shall be further obligated to the other. . . . Should Landlord decide to rebuild or restore, then any such rebuilding or restoration shall be commenced as quickly as possible and diligently pursued to completion.”

“The court must construe the contract, even in the presence of possible ambiguity, OCGA § 13-2-1, but, no construction is permissible where the contract language is ‘plain, unambiguous and capable of only one reasonable interpretation.’ Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 861 (338 SE2d 63) (1985). . . . The ultimate rule of contract construction is to ascertain the intention of the parties, OCGA § 13-2-3, which is accomplished by a consideration of the entire contract. Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353 (160 SE2d 659) (1968).” F & F Copiers v. Kroger Co., 194 Ga. App. 737, 738 (1), 739 (391 SE2d 711).

In the case sub judice, my reading of section 10 of the lease agreement unambiguously defines the parties’ rights upon damage or destruction of the leased premises. This provision provides the landlord with the right to hold the tenant to the terms of the lease agreement if the premises is damaged or destroyed, but conditions this right upon notification within “ninety (90) days following the date of occurrence that renders such portion of the Premises untenantable or unusable” of the landlord’s intention to restore the premises. From this construction, it becomes apparent that the landlord did not breach the lease agreement by failing to notify the tenant of its intention not to rebuild the leased premises within 90 days after the fire. It is my view that the landlord’s omission simply constitutes a forfeiture of the landlord’s right to hold the tenant to the terms of the lease agreement and that, 90 days after destruction of the leased premises, the tenant was free to seek other accommodations for its business.

Decided December 5, 1994

Reconsideration denied December 20, 1994

Inglesby, Falligant, Horne, Covington & Nash, Thomas A. Nash, Jr., for appellant.

Buchsbaum & Lowe, Alan S. Lowe, for appellee.

I would reverse the trial court’s order granting summary judgment in favor of the tenant for breach of contract and allowing the issue of damages to be resolved by a jury.


author: McMurray, Presiding Judge. Beasley, Presiding Judge, Smith, Judge,

text:
    A94A1754.
    BRINKS, INC. v. ROBINSON.
    (452 SE2d 788)
   McMurray, Presiding Judge.

This is an action for damages arising from two motor vehicle collisions. Sheila Robinson (plaintiff) seeks damages for injuries arising from a collision in Columbus on December 31, 1990, between a vehicle in which she was a passenger and an armored truck operated by Brinks, Inc. (“Brinks”). Plaintiff also seeks damages for injuries suffered on April 29, 1991, when a car she was driving collided with a vehicle operated by defendant Cowling. The case was tried before a jury which returned a verdict in favor of plaintiff. The judgment provides that plaintiff recover $25,000 from defendant Cowling and $850,000 from defendant Brinks, plus interest and costs. Only the defendant Brinks has appealed. Held:

1. Brinks enumerates as error the trial court’s joinder of parties defendant and claims against successive tortfeasors. Plaintiff’s complaint alleges that Brinks and Cowling were joint tortfeasors because their actions combined to produce a single indivisible injury. See Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421), aff’d Mitchell v. Gilson, 233 Ga. 453 (211 SE2d 744). The trial court denied Brinks’ motion to sever based upon misjoinder of parties and also denied Cowling’s motion to transfer for improper venue.

The Civil Practice Act provides for permissive joinder of parties and claims as follows: “All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given . . . against one or more of the defendants according to their respective liabilities.” (Emphasis supplied.) OCGA § 9-11-20 (a). If they were joint tortfeasors, the defendants in this case could have properly been sued jointly despite their residing in different counties. Ga. Const. 1983, Art. VI, Sec. II, Par. VII.

However, these defendants were not joint, but successive tortfeasors. The defendants did not act in concert, the acts of negligence involved were separated by several months, and the plaintiff did not suffer an indivisible injury. Plaintiff having survived the separate wounds inflicted upon her, a basis for division exists and no matter how difficult the proof may be, the torts are several. Posey v. Med. Center-West, 257 Ga. 55, 56 (354 SE2d 417); Knight v. Lowery, 228 Ga. 452, 455 (185 SE2d 915); Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 178-181 (2, 3) (358 SE2d 468); Phillips v. Tellis, 181 Ga. App. 449, 450 (352 SE2d 630); Gilson v. Mitchell, 131 Ga. App. 321, 325, supra. The two separate accidents are insufficiently connected to constitute a “series of occurrences” giving rise to plaintiff’s claims.

We cannot agree with the dissent’s reliance on the Supreme Court’s decision in Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616 (423 SE2d 659) to find otherwise. As the dissent notes, defendants in a “crashworthiness” case are properly sued as joint tortfeasors in that one accident is conceptually comprised of two collisions: A vehicle initially collides with another vehicle, after which a plaintiff experiences a so-called “second collision” with the ground or with interior parts of his vehicle. The two collisions are inextricably linked in a “series of occurrences.” Thus, unlike the case sub judice, in “crashworthiness” cases alleged negligence of a defendant manufacturer and a defendant driver converge at the time of a single accident so that they logically constitute a “series of occurrences” in satisfaction of the first prong of OCGA § 9-11-20 (a). Similarly, in Gilson v. Mitchell, 131 Ga. App. 321, supra, aff’d 233 Ga. 453, supra, cited by the Supreme Court in support of its analysis in Polston and by the dissent herein, separate acts of negligence by three doctors in connection with using a central venous pressure catheter in plaintiff’s right external jugular vein during his hospitalization for stomach surgery converged in the harm of subjecting the plaintiff to unnecessary medical procedures and mental distress, thus constituting a “series of occurrences.” In the case sub judice, however, the plaintiff was involved in separate accidents four months apart involving different vehicles, and different circumstances. The alleged acts of negligence by Brinks and Cowling are not sufficiently connected to constitute a “series of occurrences” within the meaning of OCGA § 9-11-20 (a). To allow joinder of plaintiff’s claims over objection by either defendant is to disregard the first requirement for permissive joinder. To force Brinks and Cowling to defend plaintiff’s claims in a single action is to exceed the direction pointed by the Supreme Court in Polston. Indeed, such a holding would invite plaintiffs to join any number of disconnected and unrelated wrongdoers in one action by alleging that the “series” of alleged intentional or negligent acts caused them emotional distress, mental injury, or other intangible, “indivisible” harm.

The dissent reasons that improper joinder in this case has worked no harm to Brinks that would not necessarily recur at a second trial. However, “it is not essential for defendants to prove prejudice for if joinder is not authorized by the plain language of the statute, no amount of judicial economy can justify it.” Howard Motor Co. v. Swint, 214 Ga. App. 682, 683 (448 SE2d 713); see also Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 175 (1), 179 (c) (421 SE2d 767) (“goal of judicial economy cannot justify sacrificing the rights of the parties”). Plaintiff not having satisfied the first requirement for permissive joinder of parties under OCGA § 9-11-20 (a), she must bring separate actions against the successive tortfeasors. Accordingly, the trial court abused its discretion by denying Brinks’ motion to sever plaintiff’s claims for misjoinder of parties and as to defendant Brinks, we reverse. Compare Vitner v. Funk, 182 Ga. App. 39, 40 (1) (354 SE2d 666).

2. In light of our decision in Division 1, it is not necessary to address Brinks’ enumeration that the court erred in instructing the jury to apportion damages as between joint tortfeasors in a personal injury action, and entered an illegal judgment on the jury’s verdict. We address those evidentiary matters likely to recur on retrial of this case, however.

3. Brinks next argues the trial court erred in allowing plaintiff’s treating chiropractor to offer an opinion as to which of the two collisions was responsible for the injury to her right hip and sacroiliac. “ ‘The question of whether a witness is qualified to give his opinion as an expert is one for the court. (Cit.) His determination will not be disturbed except that it be manifestly abused.’ [Cits.]” City of Fairburn v. Cook, 188 Ga. App. 58, 67 (10) (372 SE2d 245).

The Supreme Court’s decision in Chandler Exterm. v. Morris, 262 Ga. 257 (416 SE2d 277), cited by Brinks, does not control this issue. In that case the court held a psychologist was not qualified to offer an opinion concerning the medical or organic causation of mental dysfunction. Here, the chiropractor’s opinion concerned the relationship between his patient’s symptoms and the relative impacts to which she had been subjected in two automobile collisions, a matter logically within his expertise. The chiropractor had treated numerous accident victims, had seen the plaintiff on some 50 visits and was thus competent to offer an opinion as to which impact caused the injury to her right hip and sacroiliac.

Brinks also argues the trial court erred when it questioned the chiropractor about his education and qualifications so as to bolster that witness’ credibility. In response to Brinks’ objection at the bench, however, the trial court explained to the jury that it had no opinion about the case or the witness’ credibility and simply asked the questions so the jury might know the chiropractor’s background. The final charge to the jury also included a curative instruction that “[n]othing that I do or say during the trial of this case was intended to hint, suggest, or somehow communicate to you in some way or another which party should prevail in this matter.” “[I]n the absence of clear evidence to the contrary, qualified jurors, under oath, are presumed to follow the instructions and procedural directives of the trial court. [Cit.] . . . Nothing contained on the face of this record is so compellingly erroneous as to preclude the jury from following this curative instruction, and we note that [Brinks] entered no exception to the curative instruction at the conclusion of the court’s charge.” Harris v. State, 202 Ga. App. 618, 619 (3a), 620 (414 SE2d 919).

4. The trial court did not abuse its discretion in allowing one of plaintiff’s treating psychologists to testify at trial upon one day’s notice to Brinks when Brinks had the psychologist’s office notes and was aware well before trial that she had treated the plaintiff in association with Dr. Falls, whose deposition testimony was read to the jury. City of Monroe v. Jordan, 201 Ga. App. 332, 335 (4), 336 (411 SE2d 511).

5. The trial court did not err in admitting, over Brinks’ hearsay objection, the office notes of plaintiff’s psychologist Dr. Falls containing observations and conclusions of his associate Dr. Angela Register, who did not testify at trial; and the clinical records from Capital Rehabilitation Hospital containing notes of a physical therapist who also was not called to testify at trial. Dr. Falls testified that based upon his examination of the plaintiff, he concurred in the opinions of Dr. Register and discussed with her all notations before they were entered in the clinical record. Dr. Falls signed and thus ratified each note in plaintiff’s record. Since Brinks thoroughly cross-examined Dr. Falls as to the notes, the purpose of the rule against hearsay has been served.

“Although we may conclude that the admission of certain portions of these medical records was error, nevertheless, there was no error of magnitude to warrant reversal of the jury’s verdict. At worst the [physical therapist’s] reports were merely cumulative and any error in admitting them was harmless. [Cit.]” Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 678 (4) (278 SE2d 100).

6. Brinks contends there was insufficient evidence for the jury to make an award of future lost earnings, and the court therefore erred in charging the jury on this aspect of the plaintiff’s damages and the use of mortality tables to calculate such an award.

“[W] her ever there is evidence of the pecuniary value of the plaintiff’s earning capacity at the time of injury coupled with evidence of the nature and extent of the diminution of that capacity [,] the jury may arrive at a reasonable and just compensation for impairment of earning capacity.... Based on [such] evidence . . . , a jury may make an award as compensation for diminished earning capacity, whether or not the evidence establishes with any exactitude the lost future earnings.” Jones v. Hutchins, 101 Ga. App. 141, 144 (2), 147 (113 SE2d 475). “In Michaels v. Kroger Co., 172 Ga. App. 280 (322 SE2d 903) (1984), this court, relying on Jones v. Hutchins, supra, and on Hunt v. Williams, 104 Ga. App. 442 (122 SE2d 149) (1961), held at 286 that ‘all future earnings or diminished future earnings are uncertain and difficult of ascertainment. . . , but this does not mean that a plaintiff should be denied a recovery. Prior decisional authority requires only that there must be evidence from which the jury can estimate, or reasonably infer the loss or decrease in earning capacity.’ ” Walkley v. Dukes, 175 Ga. App. 820, 823 (4), 824 (334 SE2d 868). In the case sub judice, the evidence showed that due to her injuries, the plaintiff had physical difficulty performing her current job as a Coats & Clark loomer, and had in fact been encouraged to seek other work. As the plaintiff testified, her lack of education limits her prospects for better-paying work, and her physical limitations now make it unlikely that she will find work paying as well as her current job. We find there was sufficient evidence in the record upon which the jury could base an award of future lost wages.

Judgment reversed.

Pope, C. J., Birdsong, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. Beasley, P. J., concurs specially. Smith, J., dissents.

Beasley, Presiding Judge,

concurring specially.

I concur because the requirements for permissive joinder in this case were not present. In the words of OCGA § 9-11-20 (a), there was no “question of law or fact common” to both of the occurrences, four months apart, which arose so as to justify the joinder.

The alleged commonality was indivisibility of plaintiff’s psychological injuries, a question of fact. There was no commonality in the injury which was to be tried, although there was evidence that the second occurrence exacerbated these injuries. That is shown by examining the record and confirmed by what transpired at trial. The evidence at trial from the medical experts was essentially the same as it was in the depositions and thus the separability was determinable before trial. Although plaintiff’s treating neurologist deposed that he could not differentiate what was caused by one collision as opposed to the other, another of her treating physicians deposed and testified that her depression always led back to the first accident; in his deposition he testified that it seemed like “the epicenter of her affect” came from the first accident. He just could not divide up the portions. There was other pre-trial evidence that the injuries were separable from the outset. The point is that the pre-trial evidence of the psychological injury was that it was caused by the first incident and increased in severity or duration by the second. That does not make it “common” for the purpose of joinder.

At trial, plaintiff withdrew her request for a charge on joint liability for indivisible or non-apportionable damages. The court gave a charge only on apportionment; the jury was not instructed to consider joint liability. In instructing on possible verdicts, the court gave three options, and three options only, in the event the jury found in plaintiff’s favor: against both defendants “and apportion the damages, that is the money, accordingly”; against one defendant in a certain amount; or against the other defendant in a certain amount. Joint liability was not an option. As instructed by the court, the verdict against each defendant was returned separately.

Thus there was no reason to require Brinks to have its liability tried with that of Cowling because of a tenuous relationship between two disparate vehicular collisions, distanced by time and location and dissimilar in circumstances. Between them a relationship existed only by a thin thread of plaintiff’s continuing depression. The jury had no discernible trouble apportioning the damages against the separate defendants. Indeed, the court had instructed that it should find against each defendant only for the amount the jury was “able to rationally apportion between the two defendants the extent of plaintiff’s injuries caused by each defendant.”

It was inconsistent to join the two defendants as “joint tortfeasors” when the jury was not to decide if there was any joint liability. For this reason I agree that it was an abuse of discretion to refuse severance.

To the extent that appellant must show prejudice before we require a new trial for it, Brinks has demonstrated that it was harmed in a number of ways by the participation of Cowling and the presence of his evidence. Not only plaintiff but also Cowling was aligned against Brinks, and Cowling attempted to prove and argued that the sole cause of plaintiff’s injuries and the sole defendant liable for recoverable damages was Brinks.

It is entitled to a trial as the sole defendant, with respect to the collision of December 31, 1990.

Smith, Judge,

dissenting.

I respectfully dissent, as I cannot agree with Division 1 of the majority opinion. The majority concludes joinder was improper because the defendants were not joint tortfeasors and “[t]he two separate accidents are insufficiently connected to constitute a ‘series of occurrences’ giving rise to plaintiff’s claims.”

No bright-line rule exists regarding permissive joinder, and in my view, this was an appropriate case for permissive joinder of the two defendants and the application of OCGA § 9-11-20 (a). Robinson’s claims arose out of a “series of occurrences”: a collision with a Brinks truck on December 31, 1990, and a collision with a vehicle driven by Brinks’s co-defendant, Cowling, approximately four months later, in April 1991. From this series of occurrences, common questions of law and fact arose regarding the nature, extent, and causation of her injuries, the damages attributable to them, and which party or parties might be liable for them. The statute provides that in those circumstances, defendants may be joined and “[j]udgment may be given for one or more of the plaintiffs according to [the defendants’] respective liabilities.” That is exactly what occurred here.

It is true that each independent claim must satisfy constitutional venue provisions. This need not be our concern, however, because the issue raised by the joinder was the trial court’s jurisdiction over Cowling. Brinks was a “resident” of Muscogee County, and it admitted the court had jurisdiction over it. Brinks therefore has no standing to raise this issue. Cowling has not appealed the judgment against him, and thus this issue is not properly before us.

Ryder Auto. Leasing Co. v. Tates, 112 Ga. App. 18 (143 SE2d 411) (1965), is cited by Brinks as authority for its contention that it may raise this issue. This reliance upon Ryder is entirely misplaced. The Ryder court authorized a challenge to service on a co-defendant because in that case the appellant was a non-resident party and would have been entitled to remove the action to federal court if its co-defendant had not been served properly. That is obviously not the case here.

Further, even if joinder were improper, as urged by the majority, I cannot see any harm to Brinks resulting from the first trial that would not necessarily also recur at a second trial. Retrial as to Brinks would necessarily take place in Muscogee County, the county of residence of Brinks, where the first trial was held. Evidentiary matters relating to the Cowling accident would have to be brought into the retrial because the plaintiff’s doctors cannot separate the two accidents in terms of causation of plaintiff’s injuries. A separate verdict against Brinks in a definite amount would be returned by the jury, just as it was in the first trial. This is exactly the result sought by Brinks in arguing for severance on the ground that it and Cowling were not joint tortfeasors.

The issue of whether the plaintiff’s injuries are indivisible so as to render the defendants joint tortfeasors is immaterial here. The issue was explored by the trial court only insofar as it pertained to how the trial should proceed. The plaintiff suffered neck and back injuries, a permanent limp, and severe depression. Her treating psychologist testified both on deposition and at trial that he could not apportion between the two wrecks responsibility for the injuries he treated. Her neurologist testified similarly on deposition. Faced with this evidence that damages could not be apportioned rationally, the trial court allowed a joint trial to proceed, taking the position that although some of the plaintiff’s injuries may have been apportionable, at least her mental injuries were indivisible and incapable of apportionment. At trial, Brinks offered the testimony of a psychologist that he was able, on a rational basis, to apportion the plaintiff’s mental injuries. The jury returned a verdict apportioning damages between the defendants.

In my view, the approach taken by the trial court was both fair and correct. It also appears to me to be in harmony with and analogous to the procedure recently prescribed by the Georgia Supreme Court in Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616 (423 SE2d 659) (1992), dealing with a similar issue involving crashworthiness and enhanced injuries, in which a similar question was contested. In Polston, the plaintiff was severely injured in an automobile crash and brought suit against the driver of the other car. She also sued several car dealers and the car’s manufacturer, alleging that the design of her car enhanced her injuries. Responding to a certified question from the Eleventh Circuit regarding the burden of proving apportionment of damages among the defendants, the Supreme Court held that the plaintiff bears the initial burden of proving a prima facie case, at which point the burden “shifts to the defendant which wishes to limit its liability to demonstrate a rational basis for apportioning the liability for the injuries.” Id. at 619.

Decided December 5, 1994

Reconsideration denied December 20, 1994

Self, Mullins, Robinson & Marchetti, Richard A. Marchetti, for appellant.

Charles A. Gower, Denney, Pease, Allison, Kirk & Lomax, John W. Denney, Taylor & Harp, Jefferson C. Callier, for appellee.

Polston indicates recognition that situations arise in which the question of the indivisibility of the injuries to the plaintiff is exactly the point in issue. In reaching its conclusion in Polston, the Supreme Court drew on the Restatement Second of Torts and case law from other jurisdictions. The court also noted that prior Georgia decisions, including Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff'd 233 Ga. 453 (211 SE2d 744) (1975), indicate that Georgia law had long been moving toward and pointing in the direction taken in Polston. I believe the trial court in this case read those sign posts correctly, and it approached this difficult issue with fairness and common sense.

Since I agree with the majority that none of Brinks’s other enumerations has merit, I would affirm the judgment in this case.

       This gives rise to the problem of the enforceability of the separate verdict against a non-resident defendant. Motor Convoy v. Brannen, 194 Ga. App. 795 (391 SE2d 671) (1990), aff'd 260 Ga. 340 (393 SE2d 262) (1990). Since Cowling did not appeal, that issue is not before us.

       The Supreme Court noted that “crashworthiness” cases are often referred to as “second collision” cases, to refer to the passenger’s collision either with interior parts of the vehicle or with the ground, after the initial impact with another vehicle. Polston, supra at 619, n. 2. This interesting aside demonstrates graphically the factual similarities between Polston and cases such as this, involving actual second collisions.


author: Per curiam. Birdsong, Presiding Judge, Beasley, Presiding Judge, Andrews, Judge, Pope, Chief Judge, Ruffin, Judge,

text:
    A94A1767.
    STUBBS v. THE STATE.
    (452 SE2d 571)
   Per curiam.

Appellant, Freddie Stubbs, was convicted of burglary, possession of tools for the commission of a crime and a misdemeanor traffic charge of operating a vehicle with an improper tag and appeals from that judgment.

The evidence showed that at approximately 6:00 a.m., a police officer on patrol noticed a parked car approximately 50 feet away from a furniture store. The police officer testified he saw a man standing beside the car holding a television set. When the officer approached the parked car, the man put the television down and ran away. The officer did not pursue the fleeing man (later identified as Bryant), but approached the parked car and asked Stubbs to get out. Shortly thereafter, the burglar alarm from the furniture store sounded. The officer found a metal bar and a padlock with pry marks on it in the back of Stubbs’s car. The owner of the furniture store testified that the padlock was the one used to lock the store’s door and identified the television as having come from her store.

Stubbs testified that he had been out all night drinking and playing cards and the combination of alcohol and his prescription medication made him feel sick as he was driving home. He therefore pulled over to get himself together and had a small blackout. He was awakened by Bryant knocking on the windows of his car asking if he was all right. Stubbs testified that Bryant told him he was trying to get into a boarding room for a week and that he had a television he could sell. Bryant then walked towards the building to get the television, and when he returned with it, the police officer drove up. Stubbs stated that when the officer approached, Bryant threw something into the back of his car and ran off down the street.

1. Stubbs contends the trial court erred, even in the absence of a request, in failing to charge the jury on the law of circumstantial evidence as required by OCGA § 24-4-6. That Code section provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” For the reasons set forth in the opinions below, we reject Stubbs’s argument.

2. In his second enumeration of error, Stubbs claims that the trial court erred in submitting the case to the jury since the evidence presented was not sufficient to authorize conviction. The standard of reviewing the denial of a motion for directed verdict is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994). Here, we find that a rational trier of fact could find from the evidence adduced at trial proof of Stubbs’s guilt beyond a reasonable doubt.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson and Smith, JJ., concur specially. Pope, C. J., McMurray, P. J., and Blackburn, J., concur in part and dissent in part. Ruffin, J., dissents.

Birdsong, Presiding Judge,

concurring specially.

Because appellant failed to request the trial court to give a specific instruction to the jury utilizing the statutory language of OCGA § 24-4-6, and because the trial court did give detailed instructions defining, inter alia, circumstantial evidence, properly placing the burden of proof on the State, and charging that mere presence at the crime scene was insufficient to support conviction, I would affirm.

The time has come to clarify this area of the law in a manner compatible with the recent holdings of the Supreme Court of Georgia in Mims v. State, 264 Ga. 271 (443 SE2d 845) and Robinson v. State, 261 Ga. 698 (410 SE2d 116). In Mims, supra at 272, the Supreme Court held: “Since a jury could consider circumstantial evidence in every instance where it has been introduced, upon request, the trial court must give the charge so that the jury will be familiar with how to weigh that circumstantial evidence.” (First emphasis supplied.) In Dunaway v. State, 214 Ga. App. 128, 129 (1) (447 SE2d 153), it was further clarified that “[w]henever the State introduces circumstantial evidence of a defendant’s guilt, OCGA § 24-4-6 must be charged if the defendant requests it.” (Emphasis supplied.) The only reasonable legal corollary to this rule is that it is not error to fail to give an OCGA § 24-4-6 charge in the absence of a timely request to do so. Compare Brown v. State, 214 Ga. App. 481, 482 (2) (448 SE2d 259) (physical precedent only), citing Jenkins v. State, 209 Ga. App. 19 (432 SE2d 270).

The rule of Mims, supra, and Dunaway, supra, should be construed as follows: Whenever the State introduces circumstantial evidence of the defendant’s guilt, it is error not to give an OCGA § 24-4-6 charge if such has been timely requested; however, it is not error to fail to give an OCGA § 24-4-6 charge in the absence of a timely request where, as here (as clearly established in fact recitation of the majority’s opinion), the State’s case depends both upon direct and circumstantial evidence. This is not a case where the State’s evidence was solely circumstantial. It is well-established that, even absent a request to charge, where the case against the defendant is doubtful and is composed solely of circumstantial evidence, it is reversible error for a trial court not to charge substantially in the statutory language of OCGA § 24-4-6. Jenkins v. State, supra at 20.

Whether a particular charging error would be harmless, of course, would depend upon the circumstances of the case then under consideration in light of existing law pertaining to the doctrine of harmless error.

In Croker v. State, 101 Ga. App. 742 (115 SE2d 413), the facts are distinguishable, as there was only opinion evidence offered that certain items found in the automobile were items commonly used as burglary tools. In this case, the arresting officer personally observed in the car not only a bar with pry marks on it but also a lock, which was later identified as coming from the burglarized premises. Secondly, neither Hogan v. Atkins, 224 Ga. 358 (162 SE2d 395), nor Croker, supra, expressly address the legal issue here before us. It is well established that questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedent. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529); Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152). Thus, Croker, supra, does not constitute binding precedent for the proposition that an instruction as to the statutory language of OCGA § 24-4-6 must be given in the absence of a timely and specific request for such charge. Incidentally, although Croker, supra, was decided over 34 years ago, it has never been cited previously as authority by any appellate court of this state.

As the record reveals that appellant failed to tender a timely request for a charge in the statutory language of OCGA § 24-4-6, I would find that no charging error has occurred as enumerated. Accordingly, there exists no need to determine whether appellant failed to present a reasonable hypothesis save that of his guilt, thereby rendering any charging error harmless, by his testimony that a fleeing stranger who apparently had just committed the burglary threw the metal bar and padlock into the back seat of his car.

Beasley, Presiding Judge,

concurring specially.

1.1 concur in the judgment because it was not reversible error for the court to omit charging the language of OCGA § 24-4-6, which was not requested by defendant. Charging such language should be abolished. See the reasons therefor in Roura v. State, 214 Ga. App. 43 (447 SE2d 52) (1994).

The court charged on the definitions of direct and circumstantial evidence and that the weight of either is a question for the jury. The court fully instructed the jury on burden of proof, presumption of innocence, reasonable doubt, the essential elements of the crimes, and other usual instructions. The omission of OCGA § 24-4-6 was not prejudicial.

2. The dissent states that OCGA § 16-7-20 requires direct proof of “intent to use the tools in the commission of a crime.” This overlooks the law that “the trier of facts may find [criminal] intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. See Suggested Pattern Jury Instructions, Vol. II, p. 10. Rarely, if ever, is there direct proof of what was in a defendant’s mind when he or she committed the act charged as being criminal. The court in this case gave the pattern charge, as well as a further explanation of what is meant by the element of intent and what may be used to prove it. Moreover, defendant was charged as a party to the crimes, and the court so instructed the jury. OCGA §§ 16-2-20; 16-2-21.

3. As to Croker v. State, 101 Ga. App. 742, 743 (2) (115 SE2d 413) (1960), the quotation comes from a civil case in the very first volume of this court’s reports, Ga. R. &c. Co. v. Harris, 1 Ga. App. 714 (57 SE 1076) (1907). Croker also cites another civil case (Camp v. Emory Univ., 95 Ga. App. 442 (98 SE2d 66) (1957)), which quotes that first volume civil case and another civil case (White v. Executive Comm. of Bapt. Convention, 65 Ga. App. 840, 842 (16 SE2d 605) (1941)). The history of the circumstantial evidence charge used in criminal cases and found in OCGA § 24-4-6 is substantially set forth in Roura, supra.

Andrews, Judge,

concurring specially.

I concur in the judgment because there was no error in the trial court’s failure to charge the law of circumstantial evidence.

In Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994), the Supreme Court reiterated the bright-line rule from Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), with regard to the trial court’s duty to charge the jury regarding circumstantial evidence. That rule is that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” (Emphasis supplied.) Robinson, supra at 699-700.

The Supreme Court’s analysis in Mims recognized the difficulty of determining whether the evidence a jury will consider in reaching its verdict will be direct or circumstantial. Mims stressed the importance of the Robinson bright-line test in that it eliminated the speculative procedure of evaluating the significance of the circumstantial evidence to the case.

Here, we are faced with the applicability of the Robinson bright-line test in a case which the defendant argues depends wholly on circumstantial evidence and in which no charge on circumstantial evidence was requested. Compare Barner v. State, 263 Ga. 365 (1) (434 SE2d 484) (1993). Robinson and its progeny have obviated the need for discerning whether the case depends in whole or in part on circumstantial evidence and mandate that in cases which contain circumstantial evidence, upon request, the OCGA § 24-4-6 charge must be given. Conversely, there is no requirement that the charge be given absent a request.

As Mims demonstrated, Robinson intended to eliminate the analysis of whether a case depends in whole or in part on circumstantial evidence. This analysis was eliminated because it is fraught with difficulties. Because of the complexity of determining when a case depends on circumstantial evidence, Robinson’s bright-line rule applies even in a case which is wholly dependent on circumstantial evidence.

Prior to Robinson, the law was that “[a] trial judge, even in the absence of a request, must charge the jury on the law set forth in [OCGA § 24-4-6] in those cases which are wholly dependent on circumstantial evidence.” (Emphasis supplied.) Henderson v. State, 200 Ga. App. 200, 201 (2) (407 SE2d 448) (1991). Because Robinson eliminated the analysis of determining which cases are “wholly dependent” on circumstantial evidence, that rule is no longer applicable. By eliminating the procedure of evaluating whether cases depend in whole or in part on circumstantial evidence, Robinson implicitly overruled the cases based on this distinction. See Gentry v. State, 208 Ga. 370 (2) (66 SE2d 913) (1951); Campbell v. State, 202 Ga. 705 (3) (44 SE2d 903) (1947); Germany v. State, 235 Ga. 836 (2) (221 SE2d 817) (1976); Stoker v. State, 177 Ga. App. 94 (1) (338 SE2d 525) (1985). To the extent that post-Robinson cases continue to recognize this distinction, they too should be overruled. See McChargue v. State, 209 Ga. App. 612, 613 (434 SE2d 153) (1993).

I am authorized to state that Judge Johnson and Judge Smith join in this special concurrence.

Pope, Chief Judge,

concurring in part and dissenting in part.

Where the State’s case depends solely on circumstantial evidence, a charge based on OCGA § 24-4-6 must be given even if it is not requested by the defendant. Hamilton v. State, 96 Ga. 301 (22 SE 528) (1895); see also Williams v. State, 239 Ga. 12 (2) (235 SE2d 504) (1977); Gentry v. State, 208 Ga. 370 (2) (66 SE2d 913) (1951); Henderson v. State, 200 Ga. App. 200 (2) (407 SE2d 448) (1991); Yarn v. State, 215 Ga. App. 883 (452 SE2d 537) (1994).

Judge Andrews suggests that Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) changed this longstanding rule. He notes that Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994) reiterates the rule of Robinson that “ ‘where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.’ ” However, he omits the sentence immediately preceding this quote: “In Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), we intended to establish a bright-line rule with regard to the trial court’s duty to charge the jury in circumstances where the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence.” (Emphasis supplied.) Mims, 264 Ga. at 271.

In both Robinson and Mims the defendants did request the circumstantial evidence charge. That was the only situation before the Court, and that was the only situation addressed in its holding. What we have are two different rules governing two separate situations: one governs when the trial court must instruct the jury on OCGA § 24-4-6 if it is requested, and one governs when it must do so even without a request. If the instruction is requested, it must be given if the State relies to any degree on circumstantial evidence; but if the charge is not requested, it must be given only if the State’s case depends solely on circumstantial evidence. As these rules are in no way inconsistent, the Supreme Court’s statement of the former rule in no way implicitly overrules the latter. And if the Court had intended to overrule such a longstanding rule, surely it would have done so more clearly.

Notably, this is the first suggestion that a 1991 case changed a rule which comes up fairly frequently. Indeed, we have assumed on several occasions since Robinson that the OCGA § 24-4-6 charge must always be given if the case against a defendant is wholly circumstantial. See, e.g., McGarity v. State, 212 Ga. App. 17 (3) (440 SE2d 695) (1994); McChargue v. State, 209 Ga. App. 612 (434 SE2d 153) (1993); Jenkins v. State, 209 Ga. App. 19, 20 (432 SE2d 270) (1993).

With respect to this case, the determinative question is whether the evidence against Stubbs was wholly circumstantial. As Justice Hunt pointed out in his special concurrence in Mims, 264 Ga. at 273, n. 5, “direct evidence” is a relative term. Testimony is direct evidence of a given proposition when, if believed, it proves the proposition without further inference; “[d]irect evidence is the testimony given by a witness who has seen or heard the facts to which [he] testifies.” Suggested Pattern Jury Instructions, Vol. 2, p. 11; see also Black’s Law Dictionary at 413-414 (West 5th ed.); IA Wigmore on Evidence, § 25. “Circumstantial evidence is the proof of facts or circumstances, by direct evidence, from which [jurors] may infer other related . . . facts which are reasonable and justified in the light of [the jurors’] experience.” Suggested Pattern Jury Instructions, Vol. 2, p. 12. All testimony is direct evidence of something, but if it is not the testimony of someone present at the time the crime occurred (or at the time an act constituting an element of the crime occurred), it is probably not direct evidence of the defendant’s guilt.

Here, the officer actually observed defendant’s possession of the metal bar, and thus was able to provide direct evidence of defendant’s guilt of that crime. However, neither the officer nor any other witness saw defendant participating in the burglary; the evidence against him on this charge was wholly circumstantial, as his guilt of burglary could only be inferred from various circumstances which the officer did see and relate to the jury. Accordingly, defendant’s conviction for possessing tools for the commission of a crime should be affirmed, but his conviction for burglary should be reversed.

In my opinion, the legislature, judiciary and bar should seriously consider abolishing the distinction in treatment between direct and indirect or circumstantial evidence. This case is a perfect example of the fact that almost no one — not judges, not lawyers, and certainly not jurors — understands the distinction between direct and circumstantial evidence. And the distinction should not matter. As I used to instruct juries when I was a trial judge, “No greater degree of mental conviction is required to base a conviction on circumstantial evidence than on direct evidence”: the State has the burden of proving its case beyond a reasonable doubt, regardless of the type of evidence it uses. See White v. State, 210 Ga. 708 (1) (82 SE2d 498) (1954). I do not believe the instruction based on OCGA § 24-4-6 adds to that burden or helps to clarify it for the jury. “Instructions to the jurors seeking to differentiate between ‘direct’ and ‘circumstantial’ lines of proof are not helpful.” I Weinstein’s Evidence, § 401 [09] at p. 401-64; see also Roura v. State, 214 Ga. App. 43, 52 (447 SE2d 52) (1994). I therefore suggest we consider eliminating such instructions, as the federal courts have done. See I Federal Jury Practice & Instructions, § 12.04, pp. 337-344 (4th ed.).

In the meantime, however, the rules we have should be correctly applied. And in this case, that means defendant’s conviction for possession of tools for committing a crime should be affirmed and his conviction for burglary should be reversed.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this opinion.

Ruffin, Judge,

dissenting.

I respectfully dissent because I believe both convictions should be reversed. In McChargue v. State, 209 Ga. App. 612 (434 SE2d 153) (1993) we held that “a trial judge, even in the absence of a request, must charge the jury on the law set forth in OCGA § 24-4-6 in those cases, which are wholly dependent on circumstantial evidence.” (Citations and punctuation omitted.) Id. at 613. In contrast to Judge Andrews’s opinion, I do not believe Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) changes the rule in McChargue. I agree with Chief Judge Pope, Presiding Judge McMurray and Judge Blackburn that because the evidence that Stubbs burglarized the furniture store was circumstantial, he was entitled to the charge even in the absence of a request.

I also believe the conviction of possession of tools for commission of a crime should be reversed given OCGA § 16-7-20’s requirement that the State present direct evidence of the intent to use the tools in the commission of a crime. In Hogan v. Atkins, 224 Ga. 358, 359 (162 SE2d 395) (1968) our Supreme Court held that “[v]ery clearly, [OCGA § 16-7-20] requires two elements for conviction, viz.: (1) possession of the tools and implements and (2) intent to use these tools and implements in the commission of a crime . . . proof of both of these elements [is] essential to a conviction.” (Emphasis supplied.) Id. Here, the State’s evidence of Stubbs’s requisite intent to use the metal bar in the commission of a crime was entirely circumstantial. Furthermore, Stubbs offered a reasonable hypothesis for his possession of the metal bar which the jury could have determined was less probable than the State’s conclusion. He was therefore entitled to have the jury consider his explanation under proper instructions, regardless of whether requested, as the evidence was entirely circumstantial. Cf. Langston v. State, 208 Ga. App. 175, 178 (430 SE2d 365) (1993) (failure to give charge not reversible error where no reasonable hypothesis of innocence was offered and none appeared); Germany v. State, 235 Ga. 836 (221 SE2d 817) (1976) (unequivocal identification of the defendant and his car tag left no other hypothesis save the guilt of the defendant).

Decided December 5, 1994

Reconsideration denied December 20, 1994

Lewis R. Lamb, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Gregory W. Edwards, Assistant District Attorneys, for appellee.

Moreover, we have held that when the party with the burden of proving intent in these circumstances seeks to carry the burden “ ‘not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury’s decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion but also render less probable all inconsistent conclusions.’ ” (Citations omitted; emphasis supplied.) Croker v. State, 101 Ga. App. 742, 743 (2) (115 SE2d 413) (1960) (decided under Code Ann. § 26-2701). Significantly, this language is very similar to that of the circumstantial evidence charge. Accordingly, I believe the jury was not adequately instructed that the State’s circumstantial evidence of Stubbs’s intent to use the metal bar in the commission of a crime should exclude “every other reasonable hypothesis save that of the guilt of the accused” and the conviction on this count should also be reversed.


author: Ruffin, Judge.

text:
    A94A1787.
    ROBERTS v. THE STATE.
    (452 SE2d 570)
   Ruffin, Judge.

James Stanley Roberts was convicted of aggravated assault. He appeals from the judgment of conviction and sentence and the denial of his motion for new trial, raising the general grounds as his sole enumeration of error.

Viewed in a light to support the verdict, the evidence shows James Roberts and his cousin, Howard Roberts, lived next door to each other for a number of years and there was bad blood between them. Days before the incident giving rise to James’ conviction, the two quarreled over James’ dog, Sugarbear, who was in heat and, as a result, attracted a pack of noisy male dogs. Because Sugarbear lived under Howard’s house, Howard had difficulty sleeping due to the noisy dogs. When Howard confronted James and threatened to shoot Sugarbear, James hit Howard in the jaw. Later Howard moved in with his brother, Bascom Roberts, for several days to get some sleep away from the dogs.

One afternoon, Howard decided to return home. Howard admitted he was drunk at the time. Armed with two shotguns and a cooler “plumb full of beer,” Howard and Bascom stopped by a Wal-Mart store en route to Howard’s house and bought two boxes of shotgun shells, enough to “shoot every dog” and “in case there was trouble . . . enough to hold out until the deputies got there.” When they arrived, they were greeted by Sugarbear. Howard shot and killed the dog on the spot. Howard then yelled for James, who was inside his house. When James saw Howard shoot Sugarbear, James retrieved his shotgun and fired shots from his doorway in the direction of Howard’s truck. Howard and Bascom took cover behind the truck, and a gun battle commenced. The gun battle went on for several minutes until James was wounded by a gun blast from Howard. James admitted he had been drinking before the shootout. Howard testified that he “knocked out” three more beers during the shootout. James, Howard and Bascom were tried together, and all three men were convicted of aggravated assault.

James Roberts contends the evidence did not support a conviction of aggravated assault because he was not the aggressor, he was justified in using force to defend himself, and Howard and Bascom were not placed in apprehension of immediate violent injury by him. James also contends he retreated to the upstairs floor of the house. However, the evidence shows that he fired a shot while upstairs and that subsequently he returned downstairs where he was eventually wounded when he stuck his head out of the front door, as he had done previously before firing shots at Howard and Bascom. James then yelled out that he had been hit, and the shooting ceased. James then climbed the stairs and sat on the top step until the police arrived.

“OCGA § 16-3-21 in substance provides that a person is justified in using deadly force against another when and to the extent that he reasonably believes that such force is necessary to defend himself against the other person’s imminent use of unlawful force. The use of defensive force however is not justified when the defender engages in combat by agreement and there was no evidence of withdrawal from the fight by [James Roberts]. OCGA § 16-3-21 (b) (3).” Rhodes v. State, 170 Ga. App. 473, 475 (1) (317 SE2d 285) (1984). “Being suddenly aroused by anger, and mutually intending to fight, the law of mutual combat is involved. Such combat sufficiently appears where it is shown that there was a mutual intent by the accused and [another] to fight, and one or more shots were fired. It makes no difference who fires the first shot, nor is it necessary that both parties shoot.” (Citations and punctuation omitted.) Harris v. State, 183 Ga. App. 219, 220 (1). (358 SE2d 634) (1987).

Decided December 5, 1994

Reconsideration denied December 20, 1994.

H. Christopher Keown, Donald W. Singleton, for appellant.

Garry T. Moss, District Attorney, for appellee.

The evidence demonstrated that James Roberts was engaged in mutual combat for several minutes with Howard and Bascom from which he did not withdraw until he was injured, at which time all the shooting ceased. Therefore, we find no error in the trial court’s denial of Roberts’ motion for new trial because the evidence was sufficient to enable a rational trier of fact to find him guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge. Beasley, Presiding Judge, Andrews, Judge, Ruffin, Judge,

text:
    A94A1799.
    YARN v. THE STATE.
    (452 SE2d 537)
   Pope, Chief Judge.

Yarn was charged with the sale of cocaine and possession of cocaine with the intent to distribute in violation of the Georgia Controlled Substances Act. He was tried and convicted and appeals.

Viewing the evidence in the light most favorable to the verdict, it shows that on June 10 and 11, 1992, the Gwinnett County Police Department conducted an investigation into prostitution at the Apartment Inn in Norcross. Gwinnett County Investigator Moore testified that on June 11, 1992, he made three arrests for prostitution. He then enlisted the cooperation of the prostitutes in a narcotics investigation.

Detective Diaz, a narcotics investigator, met with the prostitutes in room 117 at the Apartment Inn after they agreed to cooperate. As part of the operation, one of the prostitutes paged a man known as “Mark,” who called back and agreed to come to that room later that night to sell her $250 of crack cocaine. Diaz was to remain in the room with the prostitutes and purchase the crack cocaine with county funds. Another police officer was positioned in a back room. Moore remained in the parking lot to watch for the suspect’s vehicle and secure it if someone else came with “Mark.”

At about midnight, Moore saw a vehicle pull into the parking lot of the Apartment Inn, and back into a parking space about four spaces away from room 117. He observed a man, later identified as Mark Jackson, exit the passenger side of the vehicle and approach room 117. The other man, later identified as Yarn, remained in the vehicle with the engine running. Moore testified that the fact that Yarn backed the vehicle into the space aroused his suspicions.

Jackson entered the room and the prostitute introduced him to her “friend,” Diaz, who was to purchase the drugs. Jackson produced nine clear plastic bags containing a white, chunky substance. Jackson told Diaz that he had put the packet of drugs in his mouth on the way to the motel so that if he got stopped by police, he could swallow the drugs. Diaz stated that the amount of cocaine which Jackson put in his mouth would have made speaking difficult.

Jackson instructed Diaz to select five “nickel” or $50 chunks from those in the bag. Diaz selected five chunks and gave the county funds to Jackson. Jackson then offered to sell the remaining chunks to Diaz. Evidence at trial was that the weight of the bags was 2.7 grams.

At this point, Diaz gave a pre-arranged signal and Jackson was arrested. At the same time, Moore approached Yarn in the parking lot and arrested him.

Diaz then questioned Yarn and informed him that he was being arrested as a party to the crime of selling cocaine and for possession of cocaine with intent to distribute.

According to Moore, after being arrested, Yarn stated that Jackson had asked him to bring him to the Apartment Inn “for a delivery” in exchange for gas, food, or cigarettes. Moore stated that Yarn was very calm after his arrest and that this fact aroused his suspicion. Diaz testified that Yarn understood the reason for his arrest. Diaz stated that he asked Yarn what his involvement in the incident was and that Yarn stated that Jackson asked him “to give him a ride.” Diaz testified that Yarn said that he knew Jackson’s purpose in going to the Apartment Inn, although Yarn did not tell Diaz what this purpose was.

At trial, Jackson, who pled guilty to the charges, testified that Yarn was unaware that he was taking drugs to the Apartment Inn. Jackson stated that he told Yarn only that he was going to see a girl at the Apartment Inn in exchange for gas and cigarettes. Yarn’s defense was that he knew nothing regarding the drug transaction and that he believed that he was taking Jackson to meet a girl.

1. In his first enumeration of error, Yarn argues that the evidence was insufficient to support the verdict and that the denials of his motions for directed verdict were erroneous. We disagree. We find that a rational trier of fact could find from the evidence adduced at trial proof of his guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, Yarn contends that the court erred in failing to charge on the principles of OCGA § 24-4-6. That section provides that in order to convict on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of Yarn’s guilt. Yarn argues that his sole defense was that the circumstantial evidence was insufficient to convict, and that the jury should have been charged in this regard.

Although the record indicates that Yarn requested certain instructions of the court, such requests are not included in the record. Moreover, there is no transcript of the charge conference. In the absence of any evidence to the contrary, we assume that no request for this particular charge was made.

Even when no request for a charge based on OCGA § 24-4-6 is made, the trial court must give the charge if the case against the defendant is composed solely of circumstantial evidence. See Williams v. State, 239 Ga. 12 (2) (235 SE2d 504) (1977); Gentry v. State, 208 Ga. 370 (2) (66 SE2d 913) (1951); Henderson v. State, 200 Ga. App. 200 (2) (407 SE2d 448) (1991). Contrary to Yarn’s contention, however, the evidence of Yarn’s guilt is not wholly circumstantial. Officer Moore saw Yarn drive his co-defendant to the hotel where the sale of drugs took place. While proof of Yarn’s knowledge and intent is necessarily circumstantial, Officer Moore’s testimony is direct evidence that Yarn committed acts making him a party to the crime. Accordingly, Yarn’s failure to show he requested the charge is fatal to his argument.

3. In a separate concurrence, Judge Andrews suggests that Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) changed the longstanding rule that where the case against the defendant is composed solely of circumstantial evidence, it is error to fail to charge the jury on OCGA § 24-4-6 even absent a request. See Hamilton v. State, 96 Ga. 301 (22 SE 528) (1895). He notes that Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994) reiterates the rule of Robinson that “ ‘where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.’ ” However, he omits the sentence immediately preceding this quote: “In Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), we intended to establish a bright-line rule with regard to the trial court’s duty to charge the jury in circumstances where the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence.” (Emphasis supplied.) Mims, 264 Ga. at 271.

In both Robinson and Mims the defendants did request the circumstantial evidence charge. That was the only situation before the Court, and that was the only situation addressed in its holding. What we have are two different rules governing two separate situations: one governs when the trial court must instruct the jury on OCGA § 24-4-6 if it is requested, and one governs when it must do so even without a request. If the instruction is requested, it must be given if the State relies to any degree on circumstantial evidence; but if the charge is not requested, it must be given only if the State’s case depends solely on circumstantial evidence. As these rules are in no way inconsistent, the Supreme Court’s statement of the former rule in no way implicitly overrules the latter. And if the Court had intended to overrule such a longstanding rule, surely it would have done so more clearly.

Notably, this is the first suggestion that a 1991 case changed a rule which comes up fairly frequently. Indeed, we have assumed on several occasions since Robinson that the OCGA § 24-4-6 charge must always be given if the case against a defendant is wholly circumstantial. See, e.g., McGarity v. State, 212 Ga. App. 17 (3) (440 SE2d 695) (1994); McChargue v. State, 209 Ga. App. 612 (434 SE2d 153) (1993); Jenkins v. State, 209 Ga. App. 19, 20 (432 SE2d 270) (1993).

4. We take this opportunity to express our belief that the Georgia legislature, judiciary and bar should seriously consider abolishing the distinction in treatment between direct and indirect or circumstantial evidence. No greater degree of mental conviction is required to base a conviction on circumstantial evidence than on direct evidence: the State has the burden of proving its case beyond a reasonable doubt, regardless of the type of evidence it uses. See White v. State, 210 Ga. 708 (1) (82 SE2d 498) (1954). We do not believe the instruction based on OCGA § 24-4-6 adds to that burden or helps to clarify it for the jury. “Instructions to the jurors seeking to differentiate between ‘direct’ and ‘circumstantial’ lines of proof are not helpful.” I Weinstein’s Evidence, § 401 [09] at p. 401-64. We should therefore consider eliminating such instructions, as the federal courts have done. See I Federal Jury Practice & Instructions, § 12.04, pp. 337-344 (4th ed.). In the meantime, however, a trial court must give the charge based on OCGA § 24-4-6 absent a request if the case against the defendant is wholly circumstantial, and must give the charge upon request if the case relies to any degree upon circumstantial evidence.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur. Beasley, P. J., concurs and concurs specially. Birdsong, P. J., concurs in judgment only. Andrews, Johnson and Smith, JJ., concur specially. Ruffin, J., dissents.

Beasley, Presiding Judge,

concurring specially.

I agree with Chief Judge Pope except as follows. First, McChargue v. State, 209 Ga. App. 612 (434 SE2d 153) (1993), should be overruled. I stand by the dissent in that case. Second, the distinction in treatment between direct and circumstantial evidence should not be abolished. However, charging the jury in the language of OCGA § 24-4-6 should be abolished. See the reasons therefor in Roura v. State, 214 Ga. App. 43 (447 SE2d 52) (1994).

Andrews, Judge,

concurring specially.

I concur with Division 2 for the following reasons. In Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994), the Supreme Court reiterated the bright-line rule from Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), with regard to the trial court’s duty to charge the jury regarding circumstantial evidence. That rule is that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” (Emphasis supplied.) Robinson, supra at 699-700.

The Supreme Court’s analysis in Mims recognized the difficulty of determining whether the evidence a jury will consider in reaching its verdict will be direct or circumstantial. Mims stressed the importance of the Robinson bright-line test in that it eliminated the speculative procedure of evaluating the significance of the circumstantial evidence to the case.

Here, we are faced with the applicability of the Robinson bright-line test in a case which the defendant argues depends wholly on circumstantial evidence and in which no charge on circumstantial evidence was requested. Compare Barner v. State, 263 Ga. 365 (1) (434 SE2d 484) (1993). Robinson and its progeny have obviated the need for discerning whether the case depends in whole or in part on circumstantial evidence and mandate that in cases which contain circumstantial evidence, upon request, the OCGA § 24-4-6 charge must be given. Conversely, there is no requirement that the charge be given absent a request.

As Mims demonstrated, Robinson intended to eliminate the analysis of whether a case depends in whole or in part on circumstantial evidence. This analysis was eliminated because it is fraught with difficulties. Because of the complexity of determining when a case depends on circumstantial evidence, Robinson’s bright-line rule applies even in a case which is wholly dependent on circumstantial evidence.

Prior to Robinson, the law was that “[a] trial judge, even in the absence of a request, must charge the jury on the law set forth in [OCGA § 24-4-6] in those cases, which are wholly dependent on circumstantial evidence.” (Emphasis supplied.) Henderson v. State, 200 Ga. App. 200, 201 (2) (407 SE2d 448) (1991). Because Robinson eliminated the analysis of determining which cases are “wholly dependent” on circumstantial evidence, that rule is no longer applicable. By eliminating the procedure of evaluating whether cases depend in whole or in part on circumstantial evidence, Robinson implicitly overruled the cases based on this distinction. See Gentry v. State, 208 Ga. 370 (2) (66 SE2d 913) (1951); Campbell v. State, 202 Ga. 705 (3) (44 SE2d 903) (1947); Germany v. State, 235 Ga. 836 (2) (221 SE2d 817) (1976); Stoker v. State, 177 Ga. App. 94 (1) (338 SE2d 525) (1985). To the extent that post-Robinson cases continue to recognize this distinction, they too should be overruled. See McChargue v. State, 209 Ga. App. 612, 613 (434 SE2d 153) (1993).

Decided December 5, 1994

Reconsideration denied December 20, 1994

George L. Kimel, Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

I am authorized to state that Judge Johnson and Judge Smith join in this special concurrence.

Ruffin, Judge,

dissenting.

At the outset I must state that I agree with the majority to the extent it disagrees that Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) changed the longstanding rule that where the case against the defendant is composed solely of circumstantial evidence, it is error to fail to charge the jury on OCGA § 24-4-6, even in the absence of a request to do so. Like Chief Judge Pope, I believe that if the court had intended to overrule such a longstanding rule, it surely would have done so with unmistakable clarity.

I disagree with the majority with respect to its contention that there was direct evidence that Yarn sold and possessed cocaine. Evidence that Yarn drove another individual to the motel is not direct evidence of either charge. The State concedes its only “direct” evidence is Yarn’s statement that he knew what was going on (i.e., he knew that he was going to get gas and cigarettes in exchange for providing transportation). Such is hardly direct evidence of either charge. This obvious point is further underscored by the trial court’s skepticism and extended questioning on the issue, particularly when the court asked the State how it “had proved that this man had anything to do with this crime” during Yarn’s motion for a directed verdict. For these reasons, I believe the charge should have been given and the conviction reversed. Accordingly, I dissent.