author: Birdsong, Presiding Judge.

text:
    A94A0443.
    MALIN TRUCKING, INC. et al. v. PROGRESSIVE CASUALTY INSURANCE COMPANY.
    (441 SE2d 684)
   Birdsong, Presiding Judge.

Appellants Malin Trucking, Inc. et al. appeal the judgment of the superior court entered pursuant to the grant of appellee/plaintiff's motion for directed verdict. Held:

1. Appellants claim the trial court erred in directing verdict in favor of appellee. This enumeration cannot be judicially determined without examination of the trial transcript; the trial transcript has not been forwarded on appeal. Without access to the necessary trial transcript or a statutorily authorized substitute therefore, we must conclude the trial court did not err as enumerated. Brown v. Frachiseur, 247 Ga. 463, 464-465 (277 SE2d 16). Appellants, however, contend that the judgment entered on its face establishes conclusively that the trial court erred in directing verdict; we disagree. Additionally, if a judgment entered pursuant to the grant of a directed verdict is right for any reason it will be affirmed. See Star Mfg. v. Edenfield, 191 Ga. App. 665, 668 (382 SE2d 706); see also Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). Access to the trial transcript would be necessary to determine whether the directed verdict was right for any reason, and in the absence of the required transcript we arrive at the same appellate result; the judgment and directed verdict of the trial court must be affirmed. See Brown, supra; see also Siegel v. Gen. Parts Corp., 165 Ga. App. 339 (2) (301 SE2d 292); Attwell v. Heritage Bank &c., 161 Ga. App. 193, 194 (291 SE2d 28).

2. Appellants enumerate that the trial court erred in not forwarding the transcript with this appeal. In support of this enumeration appellants assert, without factual support in the record, that “the transcript of record in the above styled case was not forwarded on to this Honorable Court because of a private agreement between the reporter and the appellee.” Factual assertions in appellate briefs unsupported by the record cannot be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (2) (366 SE2d 223). In any event, we fail to see how this factually unsupported contention legally supports the specific enumeration that the trial court erred in not forwarding the transcript. This enumeration, as crafted, is without merit.

Decided February 16, 1994

Reconsideration denied March 4, 1994.

Serio & Swilley, Salvatore J. Serio, for appellants.

Moreover, appellee expressly asserts in its brief that “the trial transcript was not forwarded with this appeal because the appellants failed to take the steps necessary to obtain it. . . . No evidence was presented on why a transcript was not filed and no extension was requested. The fact that a transcript was not filed is the appellants’ fault alone.” Appellee’s contention is supported both by some evidence of record and by law. An appellant who seeks to prove error in the trial proceedings has the burden to produce a transcript of the allegedly erroneous matters (Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108)); the burden to file a transcript timely or to request an extension timely rests upon the appellant and cannot be shifted either to the court reporter or the trial court. See Dunbar v. Green, 232 Ga. 188 (205 SE2d 854). Further, the record establishes that the original notice of appeal did not contain an announcement by appellants of their intent to file a trial transcript. The amended notice of appeal reveals that the following statement was deleted by line-through therefrom: “Transcript of evidence and proceedings will be filed for inclusion in the record on appeal.” Accordingly, the amended notice of appeal on its face refutes appellants’ enumeration that the trial court erred in failing to forward the transcript with this appeal.

3. Appellee has filed, pursuant to the provisions of OCGA § 5-6-6, a motion for damages for frivolous appeal. “As appellants’] arguments are wholly devoid of support from the record, * “we must conclude that the appeal to this court was for the purpose of delay only.” ’ ” Harris v. Wilwat Properties, 201 Ga. App. 161, 162 (3) (410 SE2d 372). The motion is granted. The trial court is directed to enter judgment in favor of appellee for damages in the amount of ten percent of the judgment; the award shall be entered in the remittitur in accordance with OCGA § 5-6-6.

Judgment affirmed with direction.

Cooper and Blackburn, JJ., concur.

Michael H. Saul, for appellee.


source: Caselaw Access Project

author: Smith, Judge. Beasley, Presiding Judge,

license: Public Domain

text:
    A93A1811.
    BROWN et al. v. RENTZ et al.
    (441 SE2d 876)
   Smith, Judge.

Roy and Sheila Brown brought suit against Rentz Builders, Inc., Lonnie S. Rentz, and Linda Rentz, alleging claims for negligent construction of a residence and negligent misrepresentation in the sale of the residence to them. The defendants moved for summary judgment. The trial court denied the corporation’s motion and granted those of Lonnie and Linda Rentz.

The record reveals that Lonnie Rentz was a shareholder, director, and officer in Rentz Builders, Inc. His wife, Linda, was not a shareholder in Rentz Builders, Inc. but was the corporate secretary. She is a real estate agent for Royer Realty, and her listings included homes built by Rentz Builders, as well as others. She was both the listing agent and the selling agent on the house built by Rentz Builders and purchased by the Browns. At the time the house was listed for sale, Rentz Builders, Inc. was listed as the owner.

The Browns alleged in their complaint that immediately after purchasing the house they began having structural problems. Among other things, the roof leaked and the basement flooded. They complained to Lonnie Rentz, and although he responded several times by sending subcontractors to repair the problems, the defects were not fixed to the Browns’ satisfaction, necessitating costly repair by other contractors. The Browns alleged in their complaint that the problems were caused by defective construction and that the Rentzes knowingly and falsely represented to them that the house was properly constructed and of good quality. At the time of the Rentzes’ depositions, Rentz Builders, Inc. had no assets, and Lonnie was building homes under another corporate name.

The trial court granted the Rentzes’ motions on the ground that plaintiffs had presented no evidence showing that either of the Rentzes, in their individual capacities, had participated in the sale or ■had disregarded the corporate entities they represented.

The Browns contend the trial court erred by granting the Rentzes’ motions for summary judgment because the Rentzes so disregarded the corporate form in their respective activities with regard to the construction and sale of the house that the corporate veil was pierced.

1. With respect to the claims against Linda Rentz, we do not agree.

“An inherent purpose of incorporation is insulation from liability. A corporation possesses a legal existence separate and apart from that of its officers and shareholders so that the operation of a corporate business does not render officers and shareholders personally liable for corporate acts. [Cits.] . . . [To pierce the corporate veil,] there must be abuse of the corporate form. ‘Sole ownership of a corporation by one person or another corporation is not a factor, . . . and neither is the fact that the sole owner uses and controls it to promote his ends.’ [Cit.] The law intervenes when the separate personalities of the corporation and its owner no longer exist.” Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (392 SE2d 37) (1990).

The Browns alleged that the corporate veil was pierced by evidence that Linda Rentz had chosen paint colors or selected and hung wallpaper in the house, that she had picked up a whirlpool which was to be installed in the bathroom, and that she had paid bills for certain materials. Even though the Browns point to isolated instances in which Linda Rentz played some role, however minimal or indirect, in the construction of the house, there is no evidence that she did so in any capacity except that of real estate agent or as a favor to her husband, a principal in the corporation. Contrary to the Browns’ contentions, the evidence shows only that suppliers sometimes placed the name of either of the Rentzes individually on invoices, and not that the Rentzes instructed them to do so or that the Rentzes individually purchased construction supplies and materials. The evidence does show without dispute that the property sign indicated the house was owned and was being offered for sale by the corporation and that Linda Rentz was listed as the agent. The evidence does not show commingling of corporate and private funds or disregard of the corporate form sufficient to pierce the corporate veil. See Fuda v. Kroen, 204 Ga. App. 836, 837-839 (1) (420 SE2d 767) (1992). Therefore, the trial court did not err in granting Linda Rentz’s motion for summary judgment.

2. With respect to Lonnie Rentz, however, our analysis does not end with our determination that the corporate veil was not pierced. Although we agree with the trial court that the evidence established that Lonnie did not build the house in his individual capacity, “it is well established that ‘(a)n officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, (and) an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein.’ . . . [Cits.]” Cherry v. Ward, 204 Ga. App. 833, 834 (1) (a) (420 SE2d 763) (1992).

The record shows that although much of the major work on the house was subcontracted, Lonnie Rentz oversaw the subcontract work, did “small stuff” — “trim work,” “a little of the paint work,” responded personally when the Browns called, and personally performed some repair work they now claim was defective. Given this evidence and his status as a corporate officer, if a jury found the corporation negligent in constructing the house, it would also be authorized to find that Lonnie Rentz is personally liable for the negligent construction “because he specifically directed the manner in which the house was constructed or participated or cooperated in its negligent construction. [Cit.]” Id.

Summary judgment is proper only when the moving party demonstrates that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the respondent, entitle the movant to judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Because Lonnie Rentz did not, and could not, demonstrate that he was entitled to judgment as a matter of law on the Browns’ claim for negligent construction, the trial court’s grant of summary judgment to Lonnie Rentz was erroneous. See Weir v. McGill, 203 Ga. App. 431, 432-433 (3) (417 SE2d 57) (1992).

Judgment affirmed in part and reversed in part.

Cooper, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur in the affirmance of summary judgment to Linda Rentz because she had no involvement whatsoever in the construction of the roof and basement, of which plaintiffs complain, and because there is no evidence that she misrepresented their condition.

As to Lonnie Rentz, appellants do not contend that he is personally liable as a corporate officer. The theory advanced by plaintiffs below was, instead, that he acted individually, as general contractor, and entered into the sales contract individually. There is some evidence of this, such as his signing the sales contract “Lonnie S. Rentz (Seller)” above the typed line “Lonnie S. Rentz (Rentz Buildings, Inc.)”; signing the addendum to the contract virtually the same way; signing both a mortgage document and the amendment to contract to sell merely as “Lonnie S. Rentz” above the typed line “Seller.” In ruling on the motion for summary judgment, the trial court concluded that although plaintiffs had an opportunity to pierce the corporate veil, they did not do so. This was the basis for granting summary judgment to Lonnie as an individual.

On appeal, plaintiffs enumerate this judgment as error “in that the trial court found that Lonnie S. Rentz acted as an agent and not as an individual in the sale and construction of’ their home. Their sole argument, and the cases they cite, relate to the piercing of the corporate veil. The theory on which the majority bases its decision was not advanced by appellants and should not be volunteered by the court. We will not even review issues raised by appellants in their enumerations of error which are not raised and ruled on by the trial court. Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202, 204 (421 SE2d 713) (1992). Only grounds raised and ruled on below are subject to review at this appellate stage. James v. State, 204 Ga. App. 723, 724 (1) (420 SE2d 383) (1992).

Decided March 4, 1994.

Garner & Still, Dennis T. Still, for appellants.

Ray B. Burrus, Jr., Sutherland, Asbill & Brennan, Alfred A. Lindseth, Dulaney L. O’Roark III, King, Taylor & Stovall, James F. Stovall III, for appellees.

Plaintiffs do not seek to impose liability on Lonnie on the theory now imported for them, by the majority, into review of the summary judgment proceeding; this is a practice which reaches beyond the court’s review function into the realm of advocacy.

Since there is some evidence that, as stated in a case cited by appellants, “the corporation serve [d] as the alter ego or business conduit of its owner,” summary judgment in favor of Lonnie was error. Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (2) (a) (392 SE2d 37) (1990). See also Smith v. Hawks, 182 Ga. App. 379, 384 (4) (355 SE2d 669) (1987), another case relied on by appellants.

       In an amendment to her answer, Linda Rentz impleaded Royer Realty, Inc., but Royer is not involved in this appeal.


author: Andrews, Judge.

text:
    A93A2103.
    KELLY v. THE STATE.
    (442 SE2d 462)
   Andrews, Judge.

Stanley Kelly was indicted on February 24, 1992 for the armed robbery of Annette Barber on December 21, 1991; the armed robbery of Yun Chae Yi on October 5, 1991; the robbery of Eugene Argo on December 14, 1991; and the robbery of Sanh Tran on October 5, 1991. Kelly’s brother, Curtis Phillips, was listed as a co-defendant in Count 1.

Kelly was tried before a jury on Count 1, for armed robbery, and Count 4, for robbery. He was found guilty of the armed robbery charge and acquitted of the robbery charge.

At trial, regarding the crime against Ms. Barber, Officer Athis of the Avondale Police Department testified that he received a call with reference to an armed robbery on the evening of December 21, 1991. Thereafter, he followed a burgundy Pontiac, which was occupied by three men, which matched the one identified as stolen, into the parking lot of a restaurant. Another police vehicle arrived at the business lot and the Pontiac collided with that vehicle. One of the men in the Pontiac got out of the car and held a gun on Officer Athis. Then, the gunman and another man from the Pontiac ran off. A third man, who had remained in the vehicle, was apprehended. Handguns and Ms. Barber’s purse were found in the vehicle.

Detective Bumgardner of the DeKalb County Police Department testified. He stated that the man who remained in the vehicle after the first two men fled was Mr. Phillips, Kelly’s brother. The detective testified that Kelly eventually turned himself in to the police.

Detective Bumgardner stated that on December 3, 1992, Kelly was read his rights and then gave a statement. Bumgardner stated that Kelly’s statement recounted that he, his brother and another man approached the victim as she was getting out of her car. Kelly’s statement conceded that he pointed his gun at the woman, but stated that “he didn’t pull the trigger.”

Ms. Barber also testified at trial. She stated that on December 21, 1991, she saw three men in an apartment parking lot in which she intended to park. After she parked her car, the men ran up to her, and one of them put a gun to her side and demanded her money. She was then forced to the ground and a gun was held to her head. The man told her to drop her keys and purse. She heard scrambling and then the men drove off in her car.

The defense called several witnesses including Kelly. He admitted taking Ms. Barber’s keys, purse and car. He denied pulling a gun, or even seeing a gun pulled on Ms. Barber. Curtis Phillips corroborated Kelly’s testimony.

1. In his first enumeration of error, Kelly claims that the trial court erred in allowing an in-court identification of him by Ms. Barber after she viewed an impermissibly suggestive line-up. Kelly’s argument is based on the fact that a picture of one of his brothers, who was not involved in the instant case, was stapled to the inside of the police file folder which was used during the photographic line-up.

At a hearing outside the presence of the jury, DeKalb County Police Detective Bumgardner testified that approximately two weeks after the crime, a photographic line-up was conducted. He stated that he laid his file upside down on his desk and went out of the room. Ms. Barber saw the photograph stapled to the file before she identified the perpetrator of the crime. The detective testified that Kelly did not resemble the brother whose photograph was attached to the file folder.

Detective Bumgardner testified that the photographic line-up was composed of six pictures. Ms. Barber picked photograph #3, a photograph of someone who is not associated with this case; and photograph #5, which was of Kelly. She told the detective that she chose #3 because he resembled the photograph in the folder. She reported that she chose #5, because he resembled one of the men who robbed her, specifically the one who held a gun to her head.

Ms. Barber testified that the area of the robbery was well lit and that she was able to get a good look at the man who held the gun to her head. She said that while she was held to the ground, she was able to see the robber’s facé and that she remembered the shape of his nose and of his face. She recalled that when the police arrived, she gave a description of the robber.

Her testimony regarding her choices from the line-up was somewhat equivocal. First she recalled that her identification of the man pictured in photograph] #3 was based solely on the picture she had seen in the folder. She later stated that the man from photograph #3 also looked like the man involved in the robbery. She consistently testified that her identification of the man in photograph #5, which was Kelly, was based on the fact that he looked like the man who robbed her. Because of the unclear nature of the victim’s testimony, the court ruled that it would not allow evidence of the photographic array and the identification by the victim.

A later hearing was conducted concerning the admission of an independent in-court identification. Ms. Barber testified again outside the presence of the jury. She stated that she based her identification of Kelly on having seen him at the time of the robbery and that his face was the one she remembered from the date of the robbery. She stated that the area was well lit and that she had ample opportunity to observe his face. She stated more clearly that she had identified #3 and #5 as two separate individuals — and that Kelly was the one she recalled from the robbery. She stated that the photograph she observed in the police file had no bearing on her identification of Kelly.

Thereafter, the court found that Ms. Barber’s identification was based upon her view of him at the crime and that there was no resemblance between the two photographs. The court also found that there were no improper influences on her identification. Accordingly, the court permitted her to testify in court and she identified Kelly as her assailant. On cross-examination, the defense questioned her regarding the photographic identification.

“Whether a subsequent in-court identification is tainted depends on all the circumstances of the case. Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Daniels v. State, 207 Ga. App. 689, 691 (4) (428 SE2d 820) (1993). The identification procedure here was not impermissibly suggestive in that the trial court found that the photograph attached to the file folder did not resemble Kelly and Ms. Barber’s identification of the photograph of Kelly was not related to her having seen the photograph in the file. Although Ms. Barber’s initial testimony was confusing, her later testimony made it clear that the photograph she saw was unrelated to her identification of Kelly. The photograph she saw influenced her choice of photograph #3 in the line-up, a person unconnected to the case.

Assuming arguendo that the photographic identification procedure here was impermissibly suggestive, there was not a substantial likelihood of irreparable misidentification. The second prong of this test considers: “(I) opportunity of the victims to view the perpetrator at the time of the crime; (2) the victims’ degree of attention; (3) the accuracy of their prior descriptions of the perpetrator; (4) the level of certainty of their identifications; and (5) the length of time between the crime and the confrontation.” Banks v. State, 203 Ga. App. 355, 356 (416 SE2d 866) (1992).

Here, Ms. Barber testified that she was able to observe Kelly at the time of the crime and that she focused on him so that she would be able to identify him later. She remembered details of his appearance. She based her in-court identification of him on her view of him during the crime, not on the photographic line-up. She identified Kelly within two weeks of the crime and appeared certain that Kelly was the perpetrator of the crime. We do not find a substantial likelihood of irreparable misidentification and the trial court did not err. See also Jacobs v. State, 207 Ga. App. 714 (1) (429 SE2d 256) (1993); Johnson v. State, 169 Ga. App. 943 (1) (315 SE2d 667) (1984).

2. In his second enumeration of error, Kelly argues that the trial court erred in failing to instruct the jury as to the “two theories” charge upon request since it was demanded by the evidence. The charge that he requested stated: “where all the facts and circumstances of the case and all reasonable deductions from it present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused.”

Kelly’s enumeration is without merit. Moss v. State, 209 Ga. App. 293, 295 (433 SE2d 397) (1993). We are mindful 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.” Robinson v. State, 261 Ga. 698, 699-700 (410 SE2d 116) (1991); see also Postell v. State, 261 Ga. 842 (412 SE2d 831) (1992).

The charge which Robinson requires upon request is that which guides the jury on the “quantum of circumstantial evidence which will authorize a conviction.” Robinson, supra at 699. We interpret Robinson as requiring, upon request in appropriate cases, a charge pursuant to OCGA § 24-4-6. Although the language of the charge may vary from the statutory language, OCGA § 24-4-6 states: “[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.” See Suggested Pattern Jury Instructions, Criminal Cases (2d ed.), p. 12, item J2. Kelly requested no such charge in this case. See generally Manning v. State, 207 Ga. App. 181 (2) (427 SE2d 521) (1993). Robinson does not require that the “two theories” charge which was requested here be given. See Moss, supra; Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993). Moreover, Kelly’s request for the “two theories” charge did not constitute a request for a charge on circumstantial evidence pursuant to Robinson.

Decided March 4, 1994.

William T. Hankins III, for appellant.

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Barbara B. Conroy, Assistant District Attorneys, for appellee.

To the extent that our decision in Lowe v. State, 208 Ga. App. 49, 53 (3) (430 SE2d 169) (1993) might be read to suggest a different result, it is disapproved.

3. Finally, Kelly contends that the court erred in failing to charge the jury regarding a witness testifying under a promise of leniency. It does not appear that this charge was adjusted to the facts of this case and we find this enumeration without merit.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur.


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A93A2488.
    LITTLE OCMULGEE ELECTRIC MEMBERSHIP CORPORATION v. LOCKHART.
    (441 SE2d 796)
   McMurray, Presiding Judge.

On August 1, 1990, plaintiff Lockhart was employed as a house mover and was involved in the moving of a house along a public road when he came into contact or close proximity with an electric power line and was injured. Defendant Little Ocmulgee Electric Membership Corporation had received prior notice of the house move and had dispatched an experienced lineman, Alligood, to accompany and render assistance to the house movers. Plaintiff alleged that his injuries resulted from the negligence of Alligood and the complaint provided several alternative theories for his claim.

The case was tried before a jury which returned a verdict in favor of plaintiff and against defendant in the amount of $1,800,000. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. Plaintiff Lockhart was one of two men working on top of the house being moved when he grasped a television cable line in order to lift it over the peak of the house. As plaintiff carried the television cable line up towards the peak of the house he came too close to the high voltage line above it and was severely burned when the current arced to the television cable line through plaintiff’s body.

Defendant’s employee drove out in front of the move seeking to identify trouble spots, keep a watch for where clearances were too narrow, and when needed would de-energize power lines under which the house passed. In addition to evidence which suggested that Alligood should have de-energized the line which caused plaintiff’s injury, plaintiff maintained that Alligood was under a duty to ascertain the level of training or knowledge among the house movers in regard to working near electrical transmission lines, and should have provided appropriate instruction as to the dangers involved, proper use of safety equipment, and directed the establishment of a protocol or plan for the move which would have assured the use of safe procedures in the course of the move. Plaintiff presented expert testimony as to industry standards for safe work practices, and further evidence that Alligood, although well trained in safety procedures, had not complied with those standards. Thus, the evidence established that Alligood did nothing to ascertain the lack of knowledge of safety procedure for working close to electrical transmission lines on the part of plaintiff’s employer and of plaintiff, failed to give any instruction which might remedy deficiencies in their knowledge and particularly did not instruct plaintiff or his employer on the use of insulated gloves while handling non-energized lines. There was evidence that if plaintiff had been using such gloves, of which there was one pair in use by the two men on top of the house, his injuries would have been averted.

The evidence presented at trial was sufficient to establish that defendant undertook to render services necessary for the protection of plaintiff in the course of the house move, that plaintiff’s employer and plaintiff relied upon defendant to provide those services, and that there was a failure by defendant’s agent to exercise reasonable care in the completion of that undertaking, all of which resulted in the injuries suffered by plaintiff. See Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191); Welch v. City of Camilla, 86 Ga. App. 609, 615 (72 SE2d 83). The trial court did not err in denying defendant’s motion for directed verdict.

2. In the second enumeration of error, defendant complains of the charge on comparative negligence used by the trial court and also complains of the trial court’s refusal to use the charge which it had requested on this issue. The comparative negligence charge given by the trial court is taken from the Suggested Pattern Jury Instructions, Vol. 1, Civil Cases, 3d ed., p. 236, and is predicated on the decision in Underwood v. Atlanta &c. R. Co., 105 Ga. App. 340, 341 (8) (124 SE2d 758), rev’d in part on another issue 218 Ga. 193 (126 SE2d 785). The trial court did not include in its charge any instruction concerning what result is appropriate where plaintiffs negligence is equal to or greater than the negligence of defendant. Defendant objected that the charge on comparative negligence was incomplete in the absence of instructions relating to these circumstances and urged the use of the charge which it had requested which did address this issue.

This court has held that: “ ‘A charge on the subject of comparative negligence, which is not qualified by a statement of the principle of law that if the plaintiff’s negligence is equal to or greater than the defendant’s, the plaintiff can not recover, is erroneous. [Cits.]’ Shackleford v. Ridley, 71 Ga. App. 568 (1) (31 SE2d 429).” Reynolds v. Rentz, 98 Ga. App. 4, 10 (2) (104 SE2d 608); Atlantic Coast Line R. Co. v. Green, 98 Ga. App. 704 (106 SE2d 814). We reject the plaintiff’s suggestion that the charge given informed the jury that his negligence must be less than that of defendant in order for plaintiff to recover damages. Nor do we find the above cited cases distinguishable on the facts which do vary somewhat from case to case.

We acknowledge that the decision in Pickering v. Wagnon, 91 Ga. App. 610, 612-613 (86 SE2d 621) does approve of a charge substantially similar to that at issue in the case sub judice. Nonetheless, that decision does not state the nature of the challenge to the charge which was rejected, has not to our knowledge ever been cited for the proposition which it is called upon to support in the case sub judice, and was both preceded and followed by multiple decisions noting the rule of law quoted above. Additionally, we have examined the record of Pickering preserved in our archives and found that even though some portions of that record are lost, the issues raised in the objections made to the charge in that case could not provide the foundation for a holding relevant to the case sub judice. In Pickering, the argument as to the charge approved there was that it would “mislead the jury in believing that even if the negligence of the defendant exceeded the negligence of the deceased that recovery of any damages sustained was not required, but that such was left to the discretion of the jury, which is contrary to law . . . the court erred in stating under such circumstances that she ‘might’ recover, instead of stating that she would be entitled to recover. ...” Under these circumstances we do not disapprove of Pickering, but need only direct attention to these facts which lead us to state that it should only be cited in relation to the issues raised therein.

While we find that the trial court erred in using an incomplete charge on comparative negligence, the trial court did not err in rejecting the charge on comparative negligence submitted by defendant which while complete was also duplicitous and argumentative. As an aid to the bench and bar, we direct attention to the charge entitled “Equal Negligence; No Recovery” which precedes the pattern charge on comparative negligence in the Suggested Pattern Jury Instructions.

3. Defendant also complains of a charge to the jury that: “Ordinary care is that reasonable care and caution which ordinarily cautious and prudent persons would exercise under the same or similar circumstances. Electricity is an invisible, impalpable force highly dangerous to life and property. And those who make, distribute, use or handle it are bound to exercise care in proportion to the danger involved. Therefore ordinary care in this context requires a high degree of care in maintaining electricity where other persons are likely to come in contact with it. This does not in any way affect the rule that the person maintaining such instrumentality is required to exercise ordinary care.” This language derived from this court’s decision in Welch v. City of Camilla, 86 Ga. App. 609, 613, supra, is a technically correct statement of law.

Nonetheless, as argued by defendant this language is inappropriate for use in a jury charge. While defendant’s objection that the charge was argumentative is meritorious since the charge emphasizes the reasoning and a view of the evidence favorable to plaintiff, the charge may also be criticized for invading the province of the jury. It is for the jury to determine what level of care and prudence is appropriate for a specific set of facts and circumstances in order to meet the standard of ordinary care. It is error for the trial judge to instruct the jury that under certain stated circumstances, greater care and prudence is required to meet the standard set by law. See Seabolt v. Cheesborough, 127 Ga. App. 254, 257 (1) (193 SE2d 238); Wright v. Dilbeck, 122 Ga. App. 214, 228 (8) (176 SE2d 715).

4. We have considered each of defendant’s remaining enumerations of error and found them to lack merit. The judgment of the trial court must be reversed due to errors in the jury instructions.

Judgment reversed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

The trial court charged on comparative negligence: “If you find that the Defendant was negligent, so as to be liable to the Plaintiff and the Plaintiff was also negligent, thereby contributing to Plaintiffs injury and damage; but that the Plaintiff’s negligence was less than the Defendant’s negligence, then the negligence of Plaintiff would not prevent the Plaintiff’s recovery of damages. But would require that you reduce the amount of damages otherwise awarded to Plaintiff in proportion to the negligence of the Plaintiff, compared with that of the Defendant.” The majority at p. 284 faults this charge for its failure to contain “ ‘ “the principle of law that if the plaintiff’s negligence is equal to or greater than the defendant’s, the plaintiff can not recover.” ’ ” However, I am of the opinion that the trial court’s charge did contain “the principle of law” required by the majority, even though it did not contain the exact language required by the majority. I see little difference in a charge which requires that the plaintiff’s negligence be less than the defendant’s negligence for recovery and one which requires that if the plaintiff’s negligence is equal to or greater than the defendant’s, the plaintiff cannot recover. See Underwood v. Atlanta &c. R. Co., 105 Ga. App. 340, 360 (124 SE2d 758), rev’d in part on another issue 218 Ga. 193 (126 SE2d 785) (1962) (describes the comparative negligence rule as allowing plaintiff to recover when less negligent than defendant or when the defendant was more negligent that the plaintiff); Brown v. Meikleham, 34 Ga. App. 207, 209 (128 SE 918) (1925) (supports charge requiring that fault of plaintiff does not equal but is less than the fault of the defendant). It is a distinction without a difference. For this reason, I must specially concur with the judgment.

Decided March 4, 1994.

Jones, Cork & Miller, C. Ashley Royal, Jerry A. Lumley, William T. Prescott, for appellant.

Knox & Zacks, David M. Zacks, R. Perry Sentell III, Gary J. Toman, Kilpatrick & Cody, Ted H. Clarkson, Chambless, Higdon & Carson, Joseph H. Chambless, for appellee.


author: Cooper, Judge.

text:
    A93A2498.
    TRUITT v. THE STATE.
    (441 SE2d 800)
   Cooper, Judge.

Defendant was convicted by a jury of one count of selling cocaine and appeals her conviction and sentence. Her sole enumeration of error is that the trial court erred in denying her challenge to the jury array.

Decided March 4, 1994.

Word & Flinn, T. Michael Flinn, for appellant.

Specifically, defendant contends that blacks were significantly underrepresented on both the traverse jury venire and, in particular, on her individual panel. She presents the following evidence: According to the 1990 census, Carroll County has a total population of 71,422 of which 11,231 are black. Thus, blacks comprise 15.7 percent of the total population. The traverse jury list consisted of seventy-eight jurors of which nine were black. Thus, blacks comprised 11.5 percent of the jury pool. The disparity between these two figures is 4.2 percent. Defendant, however, contends that her panel was underrepresented by 12.7 percent because only one of the thirty jurors on her panel was black.

“Criminal defendants in state courts may challenge discriminatory selections of grand and petit juries through the equal protection clause of the Fourteenth Amendment. Moreover, criminal defendants in state courts have the right to challenge, under the Sixth Amendment, petit juries not selected from a fair cross section of the community. The two challenges are not entirely analogous. However, common to each is the requirement that the defendant must establish prima facie that a distinct and identifiable group in the community is substantially underrepresented on the jury venire being challenged.” (Citations and punctuation omitted.) Wilson v. State, 250 Ga. 630, 635 (3a) (300 SE2d 640) (1983).

As shown above, only a 4.2 percent disparity existed between the percentage of blacks on the traverse jury list and the percentage of blacks in the total population. We do not find this percentage showed substantial underrepresentation of blacks on the jury venire. See Wilson, supra at 635; Cochran v. State, 256 Ga. 113 (8) (344 SE2d 402) (1986); see also Hill v. State, 263 Ga. 37 (2) (427 SE2d 770) (1993). “The fact that the jury panel in this particular case actually contained a lower percentage of blacks is not especially significant. There is no constitutional guarantee that the grand or petit juries, impanel-led in a particular case will constitute a representative cross-section of the entire community.” (Citation and punctuation omitted.) Adams v. State, 180 Ga. App. 546, 547 (3) (349 SE2d 789) (1986). Accordingly, the trial court did not err in denying defendant’s challenge to the jury array.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.

Peter J. Skandalakis, District Attorney, Jeffrey W. Hunt, Assistant District Attorney, for appellee.

       Although it would be more accurate to determine the total amount of the black population over the age of 18 (since persons under 18 years of age are ineligible for jury service), defendant has not provided us with this information.


text:
    A93A2513.
    CANTRELL v. THE STATE.
    (441 SE2d 879)
   Cooper, Judge.

Appellant was convicted by a jury of selling cocaine and appeals from the judgment of conviction entered on the verdict.

Officer Bridgefarmer of the Gwinnett County Police Department testified that on the night of November 22, 1991, he was participating in an undercover operation targeting street-level drug dealers. As a result of a call from a confidential informant, Officer Bridgefarmer went to a location in Buford, Georgia, where he saw two men standing on a corner. One of the men wore a blue baseball cap backward. Officer Bridgefarmer approached the man in the blue cap and asked whether he had any “rocks.” The man went across the street to a fire plug, and when he returned, he opened his hand and displayed approximately four to five small packets, each containing what appeared to be one piece of crack cocaine. Officer Bridgefarmer gave the man a $20 bill in exchange for one of the packets. The substance in the packet tested positive for crack cocaine. Officer Bridgefarmer testified that although the area was dimly lit, he was able to get a good clear look at the man’s face. When he returned to his office, Officer Bridgefarmer obtained a photograph from which he identified appellant as the man in the backward blue baseball cap who sold him the cocaine. Officer Bridgefarmer also identified appellant at trial as the man who sold him the cocaine.

1. Appellant first argues that the trial court erred in admitting evidence of appellant’s prior conviction for selling cocaine. After Officer Bridgefarmer testified, the trial court held a hearing outside the presence of the jury to determine the admissibility of the State’s similar transaction evidence, which consisted of a certified copy of appellant’s 1991 conviction for selling cocaine and the testimony of Officer Voltner of the Gwinnett County Police Department. Officer Voltner testified that in 1990 while assigned to an undercover operation targeting street-level drug dealers, he drove down a street where he encountered appellant, wearing a blue baseball cap backward. Appellant waved Officer Voltner’s car down and asked him what he wanted. Officer Voltner said he needed “one,” and appellant reached in his front pants pocket and took out several small bags containing suspected crack cocaine. Officer Voltner gave appellant a $20 bill in exchange for one of the packets. The substance in the packet tested positive for crack cocaine. The street on which Officer Voltner purchased the cocaine was less than a mile from the area where Officer Bridgefarmer purchased the cocaine. The State offered the evidence for the purpose of showing intent, scheme, bent of mind and course of conduct. The trial judge found the requisite similarity based on the close proximity of the two offenses, the wearing of the backward blue baseball cap and the fact that the crimes occurred in an almost identical manner. Prior to admitting evidence of the similar transaction, the judge gave an appropriate limiting instruction to the jury, informing them that they could only consider the evidence to illustrate state of mind, scheme, course of conduct and identity. Appellant argues that the evidence should have been excluded because there was not sufficient similarity. “[T]here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” (Citations and punctuation omitted.) Hall v. State, 198 Ga. App. 434, 435 (1) (401 SE2d 623) (1991). Therefore, the court did not err in admitting evidence of appellant’s prior conviction.

2. In his second enumeration of error, appellant argues that the trial court erred in denying his motion for mistrial on the ground that the officer repeatedly testified as to the hearsay statements of the confidential informant. In response to the prosecutor’s question about how he first came in contact with appellant, Officer Bridgefarmer began to explain that he received a call from a confidential informant. Before he completed his response, appellant’s counsel objected on the ground that the answer was not responsive. The prosecutor rephrased the question by asking Officer Bridgefarmer what caused him to go to the area where the drugs were sold, and the officer answered: “We worked that area nightly, plus we had received a phone call.” Appellant’s counsel objected on the grounds that the response was hearsay. The trial judge instructed the prosecutor not to ask about any conversation between Officer Bridgefarmer and the informant. A short time later, the prosecutor asked Officer Bridgefarmer how he was able to put a name with the face of the person who sold him the cocaine. Officer Bridgefarmer responded that it was through a confidential informant who was in the area that evening. The trial judge sustained appellant’s objection and ordered the jury to disregard the response. On redirect examination, the prosecutor attempted to bolster Officer Bridgefarmer’s identification of appellant and asked him why he took a good long look at the photograph he obtained. The officer responded: “Just to verify in my mind that the name that I was given —” At this point, appellant’s counsel objected and moved for a mistrial. The trial court denied the motion, finding that the testimony was not sufficient to infer that it was through the informant that the officer identified appellant. “The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” (Citations and punctuation omitted.) Owens, v. State, 204 Ga. App. 579, 580 (1) (420 SE2d 79) (1992). Considering the state of the record and the totality of the evidence, we conclude that the trial judge did not abuse his discretion in denying appellant’s motion for mistrial.

Decided March 4, 1994.

Ronnie K. Batchelor, for appellant.

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

3. In his final enumeration of error, appellant contends the trial court should have charged the jury that where the evidence and all reasonable deductions therefrom present two theories, one of guilt and one of innocence, the jury must acquit the defendant. “[W]e have recently held that this statement of law does not accurately state the principle addressed and should never be given.” (Citations omitted.) Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458) (1993). Accordingly, we find no error with the trial court’s failure to give the charge.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A0503.
    WILLIAMS v. THE STATE.
    (444 SE2d 166)
    Decided March 4, 1994.

      Calhoun & Associates, John R. Calhoun, Gregory N. Crawford,
      for appellant.
   McMurray, Presiding Judge.

Defendant’s conviction for selling cocaine was affirmed in Williams v. State, 201 Ga. App. 384 (411 SE2d 316). This direct appeal followed the denial of defendant’s extraordinary motion for new trial based on newly discovered evidence. Held:

This appeal “is dismissed for want of jurisdiction, based on the [defendant’s] failure to follow the application procedures applicable to ‘(a)ppeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial.’ OCGA § 5-6-35 (a) (7). See Pitts v. State, 254 Ga. 298 (328 SE2d 732) (1985); McDonald v. State, 180 Ga. App. 713 (350 SE2d 581) (1986).” Scott v. State, 200 Ga. App. 481 (1) (408 SE2d 495).

Appeal dismissed.

Pope, C. J., and Smith, J., concur.

Spencer Lawton, Jr., District Attorney, for appellee.


text:
    A94A1007.
    In the Interest of A. M. D., a child.
    (444 SE2d 166)
    Decided March 4, 1994.
    . Donald T. Salter, for appellant.

      Arline S. Kerman, for appellee.
   McMurray, Presiding Judge.

This is a child custody case where the minor child was placed in the father’s custody. The mother appeals directly from an order denying her motion for new trial and her motion for a stay of enforcement of the order changing custody. The mother did not seek nor did this court grant a discretionary appeal. Held:

“ ‘ “OCGA § 5-6-35 (a) (2) and (d) (Code Ann. § 6-701.1) provides that appeals from judgments awarding or refusing to change child custody shall be by application in the nature of a petition to the appropriate appellate court filed with the clerk of that court within 30 days of the entry of the order. This court has held that appeals from orders dealing with child custody which are not filed pursuant to OCGA § 5-6-35 (Code Ann. § 6-701.1) must be dismissed for lack of jurisdiction. (Cit.)” Jones v. Warrenfells, 166 Ga. App. 519 (305 SE2d 147) (1983).’ Dudai v. Spisak, 170 Ga. App. 744 (318 SE2d 501). It follows that [the] direct [appeal] in [this] child custody [case] must be dismissed.” Hamilton v. Deutscher, 201 Ga. App. 883 (412 SE2d 875).

Appeal dismissed.

Pope, C. J., and Smith, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A1918.
    STONE v. WINN DIXIE STORES, INC.
    (442 SE2d 1)
   Beasley, Presiding Judge.

Stone and his wife filed this negligence action as a result of personal injuries sustained by him when he tripped and fell while shopping at Winn Dixie.

Stone testified that when he and his wife arrived, she went into the grocery store and he went into a garden center in a tent on the parking lot. After walking around the tent looking for vegetable plants, he asked a cashier for directions and she pointed towards some tomato plants. After surveying them, he again approached the cashier and they conversed for several minutes. When he turned to leave, he tripped and fell over a garden hose which had been coiled up and placed directly behind him by a store employee who was watering plants while Stone was talking to the cashier. Stone acknowledged that the hose was in plain view in the aisle, and that if he had turned around and looked at the ground to see what was at his feet before he turned to leave, he would probably have seen it. In his opinion, doing such is not a standard practice by anyone.

Stone appeals the trial court’s grant of Winn Dixie’s motion for summary judgment based on the “plain view” doctrine. We reverse.

Although a merchant has the right to place certain articles in the aisles of his store, “ ‘nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.’ [Cit.] ” Big Apple Super Market v. Briggs, 102 Ga. App. 11, 14 (115 SE2d 385) (1960).

It is true that, as in such cases as Riggs v. Great A & P Tea Co., 205 Ga. App. 608 (423 SE2d 8) (1992), and Wal-Mart Stores v. Hester, 201 Ga. App. 478 (411 SE2d 507) (1991), the article may have constituted a discernible object within plain view of persons who approached it as they walked in the aisle. But that is not the situation here. A jury would be authorized to find that the store employee placed the coiled part of the hose so that it was not in full sight and observation of plaintiff but rather constituted a hidden obstruction as to him. See Bodenheimer v. Southern Bell Tel. &c. Co., 209 Ga. App. 248 (433 SE2d 75) (1993); Ga. Farmers’ Market Auth. v. Dabbs, 150 Ga. App. 15, 16 (2) (256 SE2d 613) (1979); see generally Sears Roebuck & Co. v. Chandler, 152 Ga. App. 427, 429 (1) (263 SE2d 171) (1979), and cits. One is under a duty to use his or her eyesight for the purpose of discovering any discernible obstruction in the person’s path, Riggs, supra, but one is not required to look continuously without intermission for defects in a floor in all circumstances. Bodenheimer, supra at 249.

Winn Dixie’s argument, that there is no evidence that the hose was placed behind Stone while he was talking to the cashier, is without merit. Such evidence is found in Stone’s testimony.

The general rule is that issues of negligence are not appropriate for summary adjudication except in plain and palpable cases where reasonable minds could not disagree. Trillet v. Vulcan Materials Co., 199 Ga. App. 583, 584 (405 SE2d 572) (1991). This is not such a case. For one thing, if the aisle was unobstructed when Stone walked in it moments before, it is a jury question whether he exercised due care in relying on the existence of the same condition when he turned to leave. See Chotas v. J. P. Allen & Co., 113 Ga. App. 731 (149 SE2d 527) (1966). In considering negligence, the relationship between the plaintiff and the obstruction is affected by such factors as visibility, time of placement, location, nature of premises, etc. Thus, what is a plainly visible obstruction to one patron may not be to another who approaches it differently. The identification of the negligence, if any, and the party to whom it is attributable, are thus jury questions in this case. Oliver v. Complements, Ltd., 190 Ga. App. 30, 32 (378 SE2d 154) (1989).

Decided January 27, 1994

Reconsideration denied March 7, 1994

G. G. Kunes, Jr., for appellant.

Young, Clyatt, Turner, Thagard & Hoffman, Daniel C. Hoffman, Sherry S. Harrell, for appellee.

Judgment reversed.

Cooper and Smith, JJ., concur.


text:
    A93A2365.
    MOBLEY v. THE STATE.
    (441 SE2d 780)
   Beasley, Presiding Judge.

Mobley was tried before a jury and found guilty of aggravated sodomy. OCGA § 16-6-2. He appeals his conviction.

The victim testified that she met appellant when he invited her and her son to his son’s birthday party. He eventually began living with her. She ended the relationship after approximately two months, after becoming aware of his violent side.

About a month later, he called at about 11:00 p.m. and talked for about 20 minutes. She was in bed reading when she later heard him tap on her window. She was afraid but let him in because she was also afraid of what he would do otherwise. He began trying to kiss her, but she resisted. He said he wanted to have sex with her, but she told him she could not because of recent surgery. When he forced her to put her mouth on his penis, she bit him. He beat her in the face and head and choked her. He carried her into the bedroom and forced her to perform oral sodomy but she could not do so for long because of breathing difficulty due to the choking. Before he left, he put the bed sheet in the washing machine and wiped everything he had touched to remove his fingerprints. He told her she had no reason to call the police because there was no evidence of his having been there, and if she did call, he would burn her house and kill her.

She called the police anyway. They found her very upset and observed extensive injuries to her face and head. Photographs of the injuries, and the testimony of the treating physician, were admitted in evidence. Photographs taken of the bite marks on appellant’s penis were also admitted in evidence.

Appellant testified that it was he who ended the parties’ relationship, as a result of which the victim became very upset, but he agreed to remain friends. The last time he saw her was when he cut the grass at her home the day before the incident. He was home all evening of the day in question, and the victim called him at about 8:00 or 8:30 p.m. They had an aggravated conversation and she told him she was pregnant. The marks on his penis were from his zipper, caught while in the bathroom trying to avoid exposing himself to her young son on the day he cut the grass. He suggested that her injuries may have been caused by a man she was seeing before. She had told appellant this man had beat her.

Appellant’s alibi witnesses testified that they were with him at his house that evening, but they could not account for his whereabouts after about 11:45 p.m. He lives two to five minutes from the victim in the same mobile home park.

1. Appellant first alleges error in the court’s grant of the State’s motion in limine, contending that the rape shield statute (OCGA § 24-2-3) does not apply in cases of aggravated sodomy. He claims that it has been applied only in prosecutions for certain rape-type offenses in addition to rape, i.e., statutory rape (Barnes v. State, 244 Ga. 302, 306 (3) (260 SE2d 40) (1979)); incest (Estes v. State, 165 Ga. App. 453, 454 (1) (301 SE2d 504) (1983)); kidnapping with the bodily injury of rape (Roberts v. State, 158 Ga. App. 309, 310 (2) (279 SE2d 753) (1981)). However, under the facts of sexual offense cases in which the rape shield statute has not applied, it nonetheless has been held that the past sexual behavior of the victim with persons other than the defendant was not admissible as direct evidence or on cross-examination. See Lynn v. State, 231 Ga. 559 (1) (203 SE2d 221) (1974), a case of rape prosecuted prior to enactment of the rape shield statute; Decker v. State, 139 Ga. App. 707, 708 (2) (229 SE2d 520) (1976), a case of child molestation.

Here, the State’s motion, patterned after but not citing the rape shield statute, sought to prohibit evidence relating to the complaining witness’ past sexual behavior, except insofar as relevant to the issue of consent.

The prosecuting attorney argued that although case law does not apply the rape shield statute to aggravated sodomy, the acts of rape and aggravated sodomy are very similar. Defense counsel countered that the rape shield statute does not apply and stated that as to the sexual relationship of the victim with anyone else, he intended to briefly touch on some matters and ask a few questions which probably would be affected if the rape shield law were to apply. The court questioned the relevancy. After learning that appellant’s defense was that he was not there .rather than that the victim had consented, the court granted the State’s motion and excluded evidence of any sexual behavior other than between appellant and the complaining witness. Defense counsel stated that the witness was married before and had some severe problems from that, but he would not go into the sexual aspects of it. The court later opined that the rape shield statute did not apply as such, and the rape shield statutory procedures were not followed. Rather, the court exercised its discretion to restrict admission of evidence and scope of cross-examination to relevant issues. “The scope of cross examination is not unlimited. The extent of permissible cross examination lies within the sound discretion of the court. [Cits.] An irrelevant or immaterial line of inquiry may be curtailed. [Cits.]” Decker, supra at 708. As articulated in Haynes v. State, 180 Ga. App. 202, 203 (3) (349 SE2d 208) (1986), “[t]he admission of evidence is a matter which rests largely within the sound discretion of the trial court. [Cit.] Each party has a right to a thorough and sifting cross-examination of the other party’s witnesses, but such right is not unfettered, and a trial court may restrict the scope of cross-examination to the issues, and its exercise of discretion will not be interfered with on appellate review unless manifestly abused. [Cit.]” Appellant did not relate any past sexual behavior of the victim with others to this incident such that it was probative of any issue. There was no abuse of discretion in excluding the evidence.

Appellant argues that he wished to elicit testimony suggesting that the victim’s abusive relationship with another man accounted for her facial injuries, and that he was prohibited from conducting a thorough and sifting cross-examination of the victim concerning this nonsexual conduct. He did not make this desire known to the trial court, and he did testify on this point, to which no objection was made. The argument now offered lacks merit.

2. Appellant next urges that the court erred: (1) in allowing one of the police officers who observed the marks on appellant’s penis to testify that in his opinion they appeared to be teeth marks, and (2) in denying appellant’s request for a curative jury instruction.

At the trial’s outset, appellant orally moved in limine that no opinion testimony concerning the bite marks be allowed, as there was no expert witness to testify to it. The State responded that this was a matter for the jury to determine from the evidence, and the court agreed. The police officer later gave the complained-of testimony on direct examination without objection. On cross-examination, the officer referred to the “bite marks,” but when defense counsel corrected him by saying “alleged bite marks,” the officer agreed. Appellant requested a curative instruction that whether these were in fact bite marks was for the jury to determine. The court ultimately charged the jury that it judges the facts and is not bound or concluded by the opinion testimony of any witness.

Decided February 16, 1994

Reconsideration denied March 7, 1994.

Davis Cohen, for appellant.

Rene J. Martin III, District Attorney, Richard A. Mallard, Assistant District Attorney, for appellee.

This testimony was admissible. It was essentially his way of describing what he saw, so the jury could visualize the same physical condition. “[T]he opinion given by the [witness] was a conclusion or opinion based upon [his] personal observation of a physical fact and not an [expert] opinion. Description of one’s physical observations and opinions logically flowing therefrom have long been admissible in this state. [Cits.]” Robinson v. State, 168 Ga. App. 569, 571 (2) (309 SE2d 845) (1983). Robinson held that a lay witness could testify that in her opinion bruises observed by her were caused by a shoe. In its instructions to the jury, the court gave the substance of appellant’s request to charge. We find no error.

Judgment affirmed.

Cooper and Smith, JJ., concur.


text:
    A93A2469.
    WATKINS v. THE STATE.
    (441 SE2d 801)
   Cooper, Judge.

Appellant was convicted by a jury of statutory rape, aggravated child molestation, incest and child molestation. He appeals from the judgment of conviction entered on the jury verdict.

The victim, appellant’s niece, testified that appellant began “messing” with her when she was in kindergarten. Specifically, the victim stated that appellant would touch and kiss her mouth and private parts, perform oral sex on her and force her to perform oral sex on him. The victim said that appellant was “away” during the period between her second grade and sixth grade years, but when he returned, he continued “messing” with her and began having sexual intercourse with her. The victim reported these incidents to her school counselor after seeing a sex education video at school. A physician who examined the victim testified that the victim had an irregular hymen and in his opinion the victim was “nonvirginal.” Cindy Doss, a psychologist with the Victim Assistance Program and an expert in the field of child sexual abuse, testified that the victim exhibited dissociative behavior which was consistent with a child who has been sexually abused.

1. Appellant first contends that the trial judge abused his discretion in denying appellant’s motion for reasonable funds to hire a psychiatric expert. Appellant argued at the hearing on his motion that the funds were needed to hire an expert to evaluate the victim. In State v. Haynie, 240 Ga. 866 (242 SE2d 713) (1978), the Supreme Court recognized that in criminal cases it is violative of the rights of witnesses or victims for them to be required to submit to surgery or examinations. The trial judge acknowledged this and did not abuse his discretion in denying appellant’s motion. See Collar v. State, 206 Ga. App. 448 (1) (426 SE2d 43) (1992). Appellant argues that even if the expert did not examine the victim, he could have used the expert to assist in his defense. However, this argument was not raised below and was not preserved for appellate review. Yelverton v. State, 199 Ga. App. 41 (2) (403 SE2d 816) (1991).

2. Appellant next argues that the trial court erred in admitting testimony of the victim’s friend and a police officer under the Child Hearsay Statute, OCGA § 24-3-16, without making a finding of sufficient indicia of reliability. Both witnesses testified as to statements the victim made to them about the sexual acts appellant committed. Although the trial court made no specific finding of reliability, “the record amply demonstrates that the statement[s] carried sufficient indicia of reliability.” Cells v. State, 186 Ga. App. 866 (2) (369 SE2d 53) (1988). Furthermore, “the victim testified at trial and was subject to cross-examination, thereby providing an additional safeguard of appellant’s rights.” Dupree v. State, 206 Ga. App. 4 (1) (424 SE2d 316) (1992).

3. Appellant contends that the trial court erred in admitting testimony of a child sexual abuse expert which went to the ultimate issue in the case. The following' colloquy took place between the prosecutor and the expert: “Q: In your therapy as far as her dissociative behavior was concerned, what was that geared toward? What were you trying to accomplish? A: When you have an individual who is dissociating, the target of therapy is to determine the nature of that dissociation and so that was my initial target. There are three factors that you look for being present. One is the external stress and I talked about that, about there being some type of trauma in the individual’s life, the child’s life. Q: That being the sexual abuse? A: That was the sexual abuse. And I was able to ascertain that there was indeed sexual abuse.” The trial court sustained appellant’s objection and instructed the jury to disregard the witness’ statement in its entirety. Appellant did not request any further curative instruction or move for a mistrial.

Further along during the expert’s testimony, the following dialogue took place: “Q: As part of your therapy, did you try to ascertain from her who it was that was — that she said was sexually abusing her? A: Yes, sir. Q: Who was that? A: It was [Appellant].” Appellant’s counsel objected and following a bench conference, the prosecutor rephrased the question and asked the expert who it was the victim said was doing this to her. The expert then responded that the victim said it was appellant. No further objection was made and there was no request for curative instructions. We find no abuse of discretion which warrants a reversal. See Synder v. State, 201 Ga. App. 66 (7) (410 SE2d 173) (1991).

Decided March 7, 1994.

Shaffer & Combs, Brian G. Combs, for appellant.

Joseph H. Briley, District Attorney, Al Martinez, Jr., Assistant District Attorney, for appellee.

4. In his final enumeration of error, appellant argues that the trial court erred in denying his motion for directed verdict because the only evidence of abuse came from the victim. “A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty. When a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find the appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)], it cannot possibly be said the evidence demanded a verdict of acquittal.” (Citations and punctuation omitted.) Clark v. State, 207 Ga. App. 50, 51 (1) (427 SE2d 43) (1993). The testimony of the victim was sufficient to authorize the jury’s finding of guilt beyond a reasonable doubt. Therefore, the trial court did not err in denying appellant’s motion for directed verdict of acquittal. Clark, supra.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Pope, Chief Judge.

text:
    A93A1755.
    HOWARD v. THE STATE.
    (441 SE2d 759)
   Pope, Chief Judge.

Defendant was convicted by a jury of raping a 50-year-old woman who was mentally retarded and partially paralyzed. Following the denial of his motion for a new trial, he appeals the judgment entered on his conviction.

The victim testified that one night a man came into her bedroom where she was sleeping; that he moved her panties down, touched her with his penis and put it inside her; that she did not want him to do this; and that it hurt. The victim’s personal physician testified that the victim’s hymen was intact eight months prior to this incident, and the emergency room doctor who examined the victim following the assault testified that her hymen was not intact at that time. The emergency room physician further stated that there was a large amount of discharge in her vaginal vault and a small tear in the posterior wall of the vault.

Investigator Teresa Evans was assigned to the case when the rape was reported. The victim described the rapist as a bearded man with glasses. Evans canvassed the neighborhood, asking if anyone had seen someone fitting this description. Defendant, who wore a beard and glasses, was staying with his sister’s family next door to the victim’s apartment. Investigator Evans testified that defendant appeared very nervous and was reluctant to talk when she asked him questions. She obtained his birth date and social security number, and subsequently discovered that he had a prior rape conviction. Evans returned several days later to ask defendant to have blood drawn for DNA testing, which he agreed to do. Defendant had shaved off his beard at that time.

Several months later, Evans received the results of the DNA testing. Four probes of defendant’s DNA were conducted. Defendant’s DNA matched the DNA taken from semen at the rape scene in three probes. The evidence showed that depending on whose figures are used, there is a one in one million or one in one hundred thousand chance of this happening randomly. The fourth probe did not produce a match, but the State’s expert did not consider this probe in making his conclusion because of evidence of degradation of the DNA sample. Generally, if any of the probes do not match, the DNA is not the same and the suspect is eliminated. Defendant’s expert said the State should not have assumed the failure to match on the fourth probe was the result of degradation and described tests that could have been used to confirm the degradation but were not. Defendant’s expert acknowledged, however, that it was very unlikely that there would be matches on three probes but not on the fourth.

1. Viewed in a light most favorable to the verdict, this evidence was sufficient to enable rational jurors to find defendant guilty of rape beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant argues that the trial court erred in allowing the State to introduce evidence regarding a prior rape conviction. Evidence of an independent offense is admissible if, at a hearing outside the presence of the jury, the State establishes that it is presenting the evidence for a proper purpose, that the defendant did in fact commit the independent offense, and that the independent offense and the charged offense are sufficiently similar that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (2b) (409 SE2d 649) (1991). The hearing, as well as the trial court’s determination that the three requirements have been met, must be on the record. Id.

In this case, a pre-trial hearing was held at which the State said it was offering the evidence to show bent of mind, identity and motive. The State presented a certified copy of the conviction based on defendant’s guilty plea and stated that witnesses would testify that in the independent offense, like the instant one, defendant entered the residence of a woman he did not know and raped her. Defendant argued that the crimes were dissimilar because the victim in the prior offense was younger (age 20) and not mentally retarded, and further argued that any probative value of the evidence was outweighed by its prejudicial impact. At the end of the hearing the trial court ruled that the evidence would be admitted. The State’s purpose for offering the evidence was a permissible one, see Holloway v. State, 187 Ga. App. 716 (1) (371 SE2d 259) (1988), and defendant’s conviction based on his guilty plea established that he did in fact commit the offense, see Adams v. State, 208 Ga. App. 29 (1) (430 SE2d 35) (1993). Moreover, we agree with the trial court that, despite some dissimilarities, the offenses were sufficiently similar to make the independent offense relevant. See Davis v. State, 180 Ga. App. 190 (2) (348 SE2d 730) (1986). Accordingly, the trial court did not err in ruling the evidence of the prior offense admissible.

Defendant further argues that even if the requirements for admissibility set forth in Williams were met, reversal is required because the trial court did not make the explicit and specific determinations required by Adams, 208 Ga. App. at 35-36 (3) (d). In Adams, we held that “[i]n subsequently making the three determinations of Williams,” the trial court should explicitly state its determination as to each of the three requirements individually, and should also explicitly state its determination that the probative value of the evidence outweighs its prejudicial impact. (Emphasis supplied.) Id. at 35. The determination of admissibility at issue here was made prior to the decision in Adams, however, so the requirements established by that case do not apply. Moreover, we note that the State properly addressed each of the three Williams prongs individually at the hearing, and defendant argued that the probative value of the evidence was outweighed by the prejudicial impact before the trial court made its ruling on admissibility. Under these circumstances, it appears that the court considered everything it should have considered and its failure to make more explicit determinations did not constitute reversible error.

3. Defendant contends the trial court erred in denying his motion to strike the victim’s testimony on the grounds that she was mentally incompetent. In response to questioning, the victim stated that she knew what a promise was and that it was good to keep a promise and bad to break it, and then she promised to tell the truth. The trial court has broad discretion to determine the competency of witnesses, and its determination will not be overturned unless the discretion is abused. See Gallagher v. State, 196 Ga. App. 153 (395 SE2d 358) (1990); OCGÁ § 24-9-7 (a). The trial court did not abuse its discretion in this case.

Decided December 23, 1993

Reconsideration denied March 8, 1994.

Joe F. Harris, for appellant.

T. Joseph Campbell, District Attorney, H. Gray Skelton, Jr., Assistant District Attorney, for appellee.

4. Defendant’s assertion that the testimony of the victim’s personal physician should have been excluded as irrelevant is also without merit. One of defendant’s arguments at trial was that there was no penetration because semen was found on the sheet but not in the victim’s vagina. The personal physician’s testimony that the hymen of the 50-year-old victim was unbroken eight months prior to the assault, coupled with the emergency room physician’s testimony that her hymen was gone after the assault, was clearly relevant to the issue of whether penetration occurred. Thus, the trial court did not err in admitting this testimony.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


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    A93A1787.
    GIBSON v. THE STATE.
    (441 SE2d 803)
   Pope, Chief Judge.

Following denial of his motion for new trial, defendant Major Gibson appeals from his convictions and sentence for conspiracy to traffic in cocaine, criminal attempt to traffic in cocaine, violation of the Georgia Controlled Substances Act by having cocaine in his possession, and being a habitual felon.

In his sole enumeration of error, defendant argues the trial court erred in denying his motion for new trial because there was insufficient evidence to support his conviction. At trial defendant’s only defense was entrapment. Construing the evidence in the light most favorable to support the verdict, the evidence shows that defendant and the State’s informer met while in prison. Both testified that while on a work detail they had a conversation concerning drugs, although their recollection of the conversation varied. Defendant gave the informer his telephone number and the informer called defendant shortly after he was released from prison. The informer testified that defendant inquired if the informer could get him cocaine. The informer told him that he could, although his only intention at that point was to sell him fake cocaine and take his money. Defendant then called the informer back and told him he did not want the cocaine yet and when he was ready for it, he would call the informer. It was only after the informer had these initial conversations with defendant that he contacted the Dalton Police Department and told them about his discussions with defendant. An agreement was reached that he would work as a police informer on this deal in exchange for a portion of the purchase money.

Thereafter defendant called the informer and said he was ready to go forward with the cocaine deal. The informer let his police contact know defendant had contacted him and afterwards all conversations between the defendant, the informer and the police contact, who defendant believed to be a drug dealer, were taped with one exception. On the designated day, defendant and several accomplices arrived at the designated spot to complete the transaction but with less money than had been discussed, so the quantity to be sold was adjusted to only a half kilo. The police contact posed as the drug dealer, and defendant and his accomplices were arrested after they gave the police officer the purchase money and received what they believed to be a half kilo of cocaine. Although the police officer did not have personal knowledge of the conversations that took place between the informer and defendant before the informer contacted him, he and the informer consistently testified concerning what happened after the informer contacted him about the deal.

Defendant argues our decision in Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350) (1992) requires reversal of his convictions because in both cases the evidence demanded a finding of entrapment. We disagree. As we noted in Wilkey, the entrapment defense consists of three elements: “ ‘(1) [T]he idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. (Cits.)’ [Cit.]” Id. at 1. Once the defendant presents a prima facie case of entrapment, the burden shifts to the State to disprove entrapment beyond a reasonable doubt. Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991). That determination generally rests with the jury and only when there is no conflict in the evidence and all evidence demands a finding of entrapment must the trial judge direct a verdict of acquittal. Id. at 377.

In both Hill and Wilkey, the informer’s testimony corroborated the defendant’s and demanded a finding of entrapment. In this case the informer and the police officer involved in the deal corroborated the testimony of each other concerning what happened after the informer went to the police. There was no dispute that the informer initially called defendant; however, there was conflicting testimony concerning who brought up the subject of a cocaine deal during that conversation. Although the defendant disputed the informer’s testimony concerning what happened before the police officer was brought into the deal, matters of credibility are strictly within the province of the jury and this court will not substitute its judgment for that of the jury. Browning v. State, 207 Ga. App. 547, 548 (1) (428 SE2d 441) (1993). The jury was authorized to accept the testimony of the police officer and the informer, even though the latter was an admitted con man, and reject the testimony of defendant. Sufficient evidence was presented from which the jury could find the State met its burden of disproving entrapment beyond a reasonable doubt. Smith v. State, 206 Ga. App. 138 (424 SE2d 371) (1992).

Decided December 23, 1993

Reconsideration denied March 8, 1994.

J. Tracy Ward, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


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    A93A1996.
    SHELBY INSURANCE COMPANY v. FORD.
    (441 SE2d 764)
   Pope, Chief Judge.

Plaintiff Karenna Marie Ford was injured while at K. C.’s 24-Hour Child Care Center. She filed suit, by her next friend and mother, Martie Louise Ford Foushi, against Kathy D. Cain, and K. C.’s 24-Hour Child Care Center seeking damages for her injuries. The Only insurance in effect at the time of the accident was a general commercial liability policy issued by appellant, Shelby Insurance Company (“Shelby”) to Kathy D. Cain as the named insured. Shelby denied coverage on the basis that it was not notified of the incident in a timely manner and because the corporate entity operating the daycare center was not a named insured under the policy, and plaintiff brought this declaratory judgment action. Both parties filed motions for summary judgment and the trial court granted summary judgment to plaintiff on the issue of whether the corporate entity was an insured under the policy, but found a fact question remains as to whether Shelby was given proper notice of the claim. The trial court also denied Shelby’s motion for summary judgment. Shelby appeals.

At issue in this case is whether the corporate entity established to operate the day-care center where the plaintiff was injured should be considered an insured under a policy in which the only named insured is an individual. Under the facts of this case, we hold that the trial court correctly granted plaintiffs motion for summary judgment on this issue.

As is relevant to this inquiry, Section II of the policy provides under the heading “WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.” The record in this case shows the day-care center where plaintiff was injured was operated through a subchapter S corporation formed by Kathy D. Cain for that purpose. Although the evidence is somewhat unclear as to the exact ownership of the shares of the corporation, the record is clear that the only shareholders were Kathy D. Cain and her husband. 26 USC § 1361 (c) (1) provides that for the purpose of determining the number of shareholders of a subchapter S corporation, “a husband and wife (and their estates) shall be treated as 1 shareholder.” Thus the sole shareholder of the corporation was the named insured on the policy in question, and as such she was the sole “owner” of the corporation. Shelby’s assertions to the contrary, the fact that the corporation and the individual are to be treated as separate and distinct legal entities even when the stock of the corporation is owned by a single individual does not require a different conclusion; in other words, a finding that an individual who owns all the shares of a corporation is the “sole owner” of that corporation is not synonymous with a finding that the corporate veil has been pierced. See Byrd v. Brand, 140 Ga. App. 135 (230 SE2d 113) (1976) (referring to the sole stockholder of the corporation as the “sole owner” but further holding that for the sole stockholder to be liable for corporate debts more than mere ownership of all the stock of the corporation must be shown). Because the named insured was the “sole owner” of the business entity in question, the trial court did not err in finding that both Kathy D. Cain and the corporate entity operating the day-care center were insureds under the policy for the incident in question. See generally Aetna Cas. &c. Co. v. Starrett, 102 Ga. App. 278, 280 (1) (115 SE2d 641) (1960).

Decided February 4, 1994

Reconsideration denied March 8, 1994

Hobgood & Toler, T. Tucker Hobgood, for appellant.

Moore & Moore, W. Newton Moore, Barksdale, Irwin, Talley & Sharp, David B. Irwin, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       Although the corporation was not originally named in the complaint, by consent of the parties the complaint was amended to add the corporation as a party.

       Although the trial court also found that the child-care center was the only business owned by Kathy D. Cain, that finding is irrelevant to a determination of coverage under the policy and we will not address Shelby’s contentions challenging that finding.


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    A93A2162.
    DOE v. HOWELL.
    (441 SE2d 767)
   Cooper, Judge.

Appellant, a minor child, filed an action against appellee, his second-grade teacher, for injuries suffered when appellant was sexually molested by another student in the class. The trial court granted appellee’s motion for summary judgment and this appeal followed.

Viewing the evidence in favor of appellant as the opponent of the summary judgment motion, Eiberger v. West, 247 Ga. 767 (1) (281 SE2d 148) (1981), the record reveals that appellant was a student in appellee’s second-grade class. On the day of the incident, the lights in the classroom were off because appellee was creating silhouettes for the students with the use of an overhead projector. One of the students in the classroom, J. F., received permission from appellee to go to the coat closet to get a pencil from his bookbag, and while he was in the closet, he told appellant to come into the closet with him. When appellant went into the closet, J. F. forced appellant to perform oral sex on him and then performed oral sex on appellant. Appellee was not aware that anything had happened in the classroom until the following day. Appellant alleged in his complaint that appellee failed to provide adequate care and supervision. Appellee responded and moved for summary judgment on the grounds that the sexual assault was not foreseeable and because she was entitled to sovereign immunity.

1. Appellant first contends that the trial court erred in granting summary judgment to appellee because the issue of foreseeability is a matter for jury resolution. We disagree. “Under [general tort principles], a defendant is not liable in tort to a plaintiff for a negligent act when a superseding criminal act by a third party is the cause of plaintiff’s injuries, unless the defendant had reasonable grounds for apprehending that such criminal act would be committed. [Cits.]” Thurmond v. Richmond County Bd. of Ed., 207 Ga. App. 437, 440 (4) (428 SE2d 392) (1993). There is no evidence that J. F. had a propensity to commit forced sexual acts and no evidence of any prior similar occurrence in appellee’s classroom. Thus, there is no evidence that would support a finding that appellee knew or should have known that J. F.’s presence in her classroom subjected her students to an unreasonable risk of a sexual attack. See Cooper v. Baldwin County School Dist., 193 Ga. App. 13 (1) (386 SE2d 896) (1989). Consequently, we find no merit to appellant’s first enumeration of error.

Decided February 8, 1994

Reconsideration denied March 8, 1994.

Cynthia W. Harrison, for appellant.

Arnold Wright, Jr., for appellee.

2. Appellant’s argument that appellee is not entitled to sovereign immunity because she is not a state employee must fail. The type of immunity invoked by appellee in support of her motion for summary judgment is official immunity rather than sovereign immunity. Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988). “ 'It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that “where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” ’ ” (Emphasis omitted.) Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980). Appellant’s argument that appellee’s immunity was waived by the purchase of insurance is also without merit, because the record reveals that appellee’s insurance was provided by a private rather than a governmental entity. See Guthrie v. Irons, 211 Ga. App. 502 (439 SE2d 732) (1993). Appellant also contends that the act giving rise to appellant’s complaint constitutes a ministerial rather than a discretionary act. We disagree. The gravamen of appellant’s argument is that appellee did not provide enough supervision of J. F. and thereby fostered an environment which allowed J. F. to assault appellant. A decision regarding the amount of supervision to provide in a classroom is discretionary, not ministerial. Hennessy v. Webb, supra; Lewis v. McDowell, 194 Ga. App. 429 (3) (390 SE2d 605) (1990). Accordingly, we find no error with the trial court’s grant of summary judgment to appellee on the basis of official immunity.

Judgment affirmed.

Beasley, P. J., and Smith J., concur.


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    A93A2335.
    MEINTZER et al. v. WEINBERG.
    (441 SE2d 774)
   Pope, Chief Judge.

Plaintiffs/appellants Robert and Vesta Meintzer brought this personal injury and loss of consortium action against defendant/appellee Charles Weinberg after plaintiff Robert Meintzer was injured by a weed eater operated by defendant. The jury returned a verdict against plaintiffs and judgment was entered accordingly. Plaintiffs appeal, enumerating three errors.

1. In their first enumeration of error, plaintiffs argue that the trial court erred in refusing to excuse juror Guy Sears for cause, which action, according to plaintiffs, forced them to use one of their peremptory strikes against the juror.

As to this issue, the record shows the following: Plaintiffs’ counsel asked the potential jurors to indicate if any of them believed it wrong for a neighbor to sue another neighbor, as was the situation in the case at hand. Juror Sears raised his hand and then responded “I just feel like it’s wrong to sue your neighbor under any circumstances.” Although during further questioning juror Sears indicated that he would try to follow the judge’s instructions, and that he would have to “weigh the circumstances,” he opined further that he did not think that he could be fair “because it’s wrong to sue your neighbor.” The juror concluded by indicating that his belief about it being wrong to sue a neighbor was a moral conviction held by him, and responded affirmatively when asked if he would have to go with his moral conviction above what the judge might instruct.

Under these facts, we agree with plaintiffs that the trial court abused its discretion in refusing to disqualify the challenged juror, who clearly indicated a fixed and definite opinion in cases involving a neighbor against a neighbor. See generally Morris v. Bonner, 183 Ga. App. 499 (1) (359 SE2d 244) (1987); Parisie v. State, 178 Ga. App. 857 (2) (344 SE2d 727) (1986). Moreover, unlike cases where the juror was “rehabilitated” upon further questioning by the court or counsel for the parties, see Garland v. State, 263 Ga. 495 (435 SE2d 431) (1993); Nelson v. State, 199 Ga. App. 487, 489 (5) (405 SE2d 310) (1991), the questioning of the juror in this case concluded with the juror reiterating his “moral conviction” that it is wrong for one neighbor to sue another, and that he would follow his moral conviction over the judge’s instructions. “ ‘Jurors should come to the consideration of a case . . . free from even a suspicion of prejudgment or fixed opinion upon any material fact in. the issue to be tried — as to the parties, the subject-matter, or the credibility of the witnesses.’ [Cit.] ‘In such a case when a challenge is made and improperly overruled but such juror does not serve on the jury trying the case because he is stricken by the complaining party, such ruling is not error unless it appears that the party had to exhaust his peremptory challenges in order to get rid of the juror.’ [Cit.]” Ellison v. National By-Products, 153 Ga. App. 475, 476 (265 SE2d 829) (1980). As all the plaintiffs’ peremptory challenges were exhausted in this case, a new trial is required.

Decided February 11, 1994

Reconsideration denied March 8, 1994

Timothy W. Wolfe, Hartley, Rowe & Fowler, Jeffrey P. Richards, for appellants.

Fain, Major & Wiley, Christopher E. Penna, Gary W. Powell, for appellee.

2. We have examined plaintiffs’ remaining enumerations and find them to be without merit and unlikely to recur upon retrial.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.