text:
    A90A0423.
    HOLSTEIN v. NORTH CHEMICAL COMPANY et al.
    (390 SE2d 910)
   Birdsong, Judge.

This is a discretionary appeal brought by appellant Roger L. Holstein from the order of the superior court affirming the 2-1 decision of the Board of Review of the Georgia Department of Labor affirming the decision of the hearing officer and denying unemployment compensation benefits to appellant. Held:

1. Appellees assert this court lacks jurisdiction óf this appeal because appellant failed to file his appeal of the hearing officer’s decision, within ten days, as required by OCGA § 34-8-173. We disagree for two independent reasons.

First, we find that the-record does not contain any competent evidence establishing the exact date when the hearing officer’s decision whs mailed. ‘See generally OCGA § 34-8-173. While the record does contain some evidence, that the hearing officer’s decision was “issued” on March 3, 1988, there is absolutely no- evidence that the: decision was actually mailed on that date or that appellant was “duly notified” of the decision at this time. In fact, the record reflécts that appellant gave testimony by telephone the day before' and did not attend the hearing personally, and that the hearing officer informed appellant over the phone that he would “not today indicate one way or the other what my decision is going to be.” Mere issuance of a decision is not equivalent either to mailing or to duly notifying appellant thereof, because an opinion can be issued internally withofit being mailed and without actual notification to appellant. Moreover, if the legislature had desired to make “issuance date” father than “notification date” controlling, it would have been an easy matter tb have done so.

There being no competent evidence of record as to when the hearing officer’s decisión was actually mailed,, the critical question then becomes what dáte appellant was “duly .notified” thereof. The record reflects, without contradiction, that actual notification occurred when appellant, received' the mailed decision the! following. week, that is, not earlier than March 7, 1988. As appellant filed his notice of appeal on March 17, 1988, it was timely within the meaning of OCGA § 34-8-173.

Secondly, notwithstanding the timeliness of the appeal submitted by appellant, we find' thé Board of Review elected to and did hear the appeal on the merits. The effect of this action is a matter of first impression for this court.

In a determination óf when the decision of a hearing officer (appeals tribunal) becomes final, and the circumstances under which an appeal of such decision can be maintained, OCGA § 34-8-173 and OCGA § 34-8-172 (b), being in pari materia, must be construed together. Such construction makes it clear that notwithstanding the ten-day time limitation of OCGA § 34-8-173, the Board of Review has express statutory authority, under OCGA § 34-8-172 (b), to act “on its own motion” to “affirm, modify, or set aside any decision of an appeals tribunal [hearings officer]. (Emphasis supplied.) Id.; see Phillips v. Caldwell, 144 Ga. App. 376, 377 (241 SE2d 278). Moreover, as OCGA § 34-8-172 (b) contains no express time limitation for the Board’s actions, it appears to have been the intent of the legislature, considering the broad and complex powers therein granted, to vest the Board with a “reasonable time period” in which to exercise their statutory granted authority. Thus, assuming arguendo, appellant’s appeal was not timely within the meaning of OCGA § 34-8-173, the action of the Board of Review in accepting the appeal on its merits, being done within a reasonable time, was clearly within its express statutory powers. Accordingly, a jurisdictionally sound Board decision resulted from which a timely petition for judicial review could be filed in superior court. See generally OCGA § 34-8-176 (b).

2. OCGA § 34-8-158 (2) (B) expressly authorizes the Commissioner of Labor to promulgate certain rules and regulations to assist him in making those statutory determinations required therein. Promulgation is a formal act of official publication effected in writing. See generally Black’s Law Dictionary (5th ed.), p. 1093. Assuming without deciding that Labor Department Regulation (LDR) 300-2-9-.03 (1) (e), as currently promulgated, would be applicable in cases where an employee has quit his employment because of the aggravation of a pre-existing medical condition, we find it does not apply to the case sub judice.

LDR 300-2-9-.03 (1) (e) has an effective date of January 29, 1989, subsequent even to the date of filing of the claim in this case. In the absence of a genuine necessity existing to the contrary, administrative rules and regulations should not be amended so as to effect a retroactive change, and should not be applied retroactively in the determination of a claimant’s rights. Cross v. Balkcom, 102 Ga. App. 81, 84 (115 SE2d 783), reversed on other grounds, Balkcom v. Cross, 216 Ga. 530 (118 SE2d 185); see generally 73 CJS, Public Administrative Bodies & Procedure, § 107; compare OCGA § 1-3-5.

3. Appellees assert that the decision of the Board must be approved if there exists any evidence to sustain it.

OCGA § 34-8-176 (b) expressly provides that “[i]n any judicial proceeding under this Code section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” (Emphasis supplied.)

OCGA § 34-8-158 (1) pertinently provides that an individual shall be disqualified for benefits “after he has left his most recent employer voluntarily without good cause in connection with his most recent work,” until certain conditions not here applicable are met. (Emphasis supplied.)

Although this court on occasion (see, e.g., Bulloch Academy v. Cornett, 184 Ga. App. 42 (360 SE2d 615)) has been able to apply the “any evidence” test without attempting to differentiate between “voluntariness” and “good cause,” when critical to the proper adjudication of an appeal we have recognized the following difference. “Whether or not an employee voluntarily leaves employment is usually a question of fact, [cit.j, but whether there existed good cause for his voluntary termination more often requires a legal conclusion.” Western Elec. Co. v. Ellison, 170 Ga. App. 565, 566 (317 SE2d 595), cert. den.

We find that the question of whether appellant quit his job either with or without “good cause” requires a legal conclusion in this case. Review of the record before us reveals that the hearing officer found as fact, after the original hearing was reopened for good cause shown, that appellant “quit” his job, but he did not expressly find the reason for such “quitting.” He further found that appellant “did not provide medical evidence to the employer to show the work or work environment was detrimental to his health, however, he had discussions with the employer relative to his asthma and the effect the dust had on this condition.” (Emphasis supplied.)

We conclude that if appellant, in fact, voluntarily quit his job because the work environment caused or aggravated a pre-existing medical condition to the extent that he either was unable to perform properly his employment duties, or was unable to perform properly his employment duties without unreasonable risk of harm to his health due to continued employment, and that the employee timely notified his employer of the reason for his decision, such voluntary quitting would be with due cause as a matter of law. Compare Allen v. Caldwell, 169 Ga. App. 103 (311 SE2d 536); Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674 (302 SE2d 596). Conversely, if in fact, the employee quits his job, not because of health risk or inability to perform duties resulting from any existing medical condition, but to facilitate his moving to a different locality, such voluntary quitting would be without due cause as a matter of law.

In reaching any of the above factual determinations, the trial court should consider that “Georgia . . . has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2. The burden is on the employer urging the disqualification for benefits to show by a preponderance of evidence that the applicant for compensation comes within the [statutory exceptions of OCGA § 34-8-158].” (Second emphasis supplied.) Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818); Lamb v. Tanner, 178 Ga. App. 740, 741 (344 SE2d 534); Dalton Brick &c. Co. v. Huiet, 102 Ga. App. 221, 224 (2) (115 SE2d 748) (“an employer seeking to deny benefits . . . because of an excepting clause within the act has the burden of showing by a preponderance of the evidence that the employee comes within such exception”).

Decided February 15, 1990.

Kenneth G. Levin, B. Michel Phillips III, for appellant.

Smith, Gambrell & Russell, Theodore M. Forbes, Jr., Michael J. Bowers, Attorney General, William F. Amideo, Assistant Attorney General, for appellees.

As the record currently fails to contain those findings of fact from which this court could determine, as a matter of law, whether appellant’s voluntary quitting of employment was with good cause, within the meaning of OCGA § 34-8-158 (1), we will remand this case for such necessary findings and for such other disposition as is not inconsistent with this opinion. In this regard, any rules or regulations duly employed in the resolution of this matter may not shift the burden of proof to claimant in disregard of the precedent of Millen, Lamb, and Dalton, supra.

Judgment reversed and case remanded with direction.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0493.
    MANSFIELD v. PANNELL et al.
    (390 SE2d 913)
   Birdsong, Judge.

This court granted the petition of appellant, Donald L. Mansfield, M.D., to file an interlocutory appeal of the trial court’s order denying his motion for summary judgment.

This case involves an action for medical malpractice brought on behalf of a minor by the parents against the physician who assisted in the delivery of the child. It is averred in the complaint that the child was delivered “in a very depressed condition with a one minute Apgar score of one.” The date of delivery was August 20, 1980. Effective July 31, 1987, OCGA Title 9 was amended as part of a legislative package designed to provide substantive and comprehensive reforms affecting claims for medical malpractice, among those changes were certain amendments to OCGA § 9-3-73; suit subsequently was filed on September 30, 1988, when the child was eight years of age.

Appellant asserts that the trial court erred in denying his motion for summary judgment because the unambiguous statute of limitation of OCGA § 9-3-73 bars this action. Held:

OCGA § 9-3-73 was amended, effective July 31, 1987, inter alia, “so as to provide that minors who have attained the age of five years and incompetents shall be subject to limitations of actions provisions regarding medical malpractice,” and to provide for certain specified exceptions thereto. (Emphasis supplied.) Ga. L. 1987, p. 887.

Subsection (c) of OCGA § 9-3-73, is intended to create a statute of repose; likewise, subsection (b) is a statute of limitation. OCGA § 9-3-73 (d).

OCGA § 9-3-73 (b) pertinently provides: “Notwithstanding Article 5 of this chapter ... all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article. A minor who has not attained the age of five years shall have two years from the date of such minor’s fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.” (Emphasis supplied.) As the child obviously had not attained age five years at the time of his delivery, under the plain and clear language of subsection (b) above, any action commenced in his behalf would have to be brought two years from the date of the child’s fifth birthday to avoid being subject to the statute of limitation contained in OCGA § 9-3-73 (b).

Appellees have advanced certain arguments predicated on the assumption that it would constitute a retroactive application of the amended statute to subject this action to the above discussed statute of limitation. We.disagree. As the complaint was filed after the effective date of the statutory amendment, no issue of retroactivity is involved (Hunter v. Johnson, 259 Ga. 21 (3) (376 SE2d 371)), and the statute as amended governs (LFE Corp. v. Edenfield, 187 Ga. App. 785, 788 (371 SE2d 435)).

. The child was eight years of age when the complaint was filed in this case. Accordingly, this action appears to be subject to and barred by the statute of limitation contained in OCGA § 9-3-73 (b). Appellees, however, further assert that certain statutory principles, found in Article 5 of Chapter 3, exclude this cause of action from the limitations found in OCGA § 9-3-73 (b). At the outset, we note that subsection (b) expressly provides that certain classes of people, which include the injured child in this case, shall be subject to the statute of limitation therein contained “[notwithstanding Article 5 of this chapter.” However, appellees argue that this action nonetheless is exempted from the operation of subsection (b) by a statutory exception contained in OCGA § 9-3-73 (g).

The second sentence in OCGA § 9-3-73 (g) provides that “[n]o action which would be barred before July 1, 1987, by the provisions of this article, as amended, but which would not be so barred by the provisions of this article and Article 5 of this chapter in force immediately prior to July 1, 1987, shall be barred until July 1, 1989.” OCGA § 9-3-73 (g) does not contain any express exceptions for actions which would not have been barred before July 1,1987, but which would subsequently become barred within two years of the effective date of OCGA § 9-3-73 as amended. Thus, on its face OCGA § 9-3-73 (g) contains no exception applicable to the fact situation in the case sub judice.

The trial court, however, interpreted the pertinent provision in OCGA § 9-3-73 (g), “[b]y substituting July 1, 1989, for July 1, 1987 as the first date in the second sentence,” thereof. In so holding, the trial court in effect rendered moot appellees’ further assertion that OCGA § 9-3-73 as amended does not afford equal protection because not all claimants with similar causes of action are given the benefits of the two-year grace period.

We find that the trial court erred in substituting the year “1989” for the year “1987” found in the second sentence of subsection (g). The statute is plain and unambiguous on its face. “When a statute ‘is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.’ ” Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490). Further, we believe that it was the intent of the legislature to enact subsection (g) exactly as the subsection is drafted. In this regard, we note that one of the primary purposes attributed to the amendment of OCGA Title 9 was “so as to provide that minors who have attained the age of five years . . . shall be subject to limitations of actions provisions regarding medical malpractice.” Ga. L. 1987, p. 887. The current wording of the second section of OCGA § 9-3-73 (g) clearly is more compatible with this overall legislative intent than is the modification proposed by the trial judge which would substantially expand the category of actions falling within the exception. Moreover, if the legislature had intended to provide everyone with a two-year grace period from date of enactment, it would have been an easy matter for it to have done so.

It is sometimes but a very fine line separating legitimate statutory construction and unauthorized judicial legislation; we believe in this instance the trial court has inadvertently crossed the line. “[I]n construing the statute so as to give effect to the legislative intent a mere segment of the statute should not be lifted out of context and construed without consideration of all the other parts of the statute.” City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81). We believe this is precisely the effect it would have if we should substitute the year “1989” for the year “1987” as currently found in OCGA § 9-3-73 (g).

Decided February 15, 1990.

Alston & Bird, Judson Graves, Paul J. Quiner, Bryan A. Vroon, for appellant.

Barnes, Browning, Tanksley & Casurella, Charles B. Tanksley, for appellees.

As we find that appellees’ cause of action is not subject to any statutory exception, contained in OCGA § 9-3-73 (g), and as we find no retroactive application of the statute is involved in this case, appellees’ cause of action is subject to the provisions of OCGA § 9-3-73 (b) and to the statute of limitation therein contained. Further, although OCGA § 9-3-73 (a) allows for the limited application of the disabilities and exceptions prescribed in Article 5 of Chapter 3 to be generally applicable to actions for medical malpractice (compare Rose v. Hamilton Med. Center, 184 Ga. App. 182 (361 SE2d 1)), OCGA § 9-3-73 (b), which includes the statute of limitation under consideration, exempts itself from any of the statutory provisions of Article 5. Thus, appellees’ arguments as to the applicability of exceptions found in OCGA §§ 9-3-90 and 9-3-96 are without merit, particularly in light of our determination that the further exception contained in the second section of OCGA § 9-3-73 (g) cannot be construed so as to apply to appellees’ cause of action.

Accordingly, we find that the order of the trial court must be reversed. But, in view of the posture of this record, we will remand this case to the trial court for action consistent with this opinion, and so as to provide it with the opportunity to fully consider any remaining constitutional issues which have been timely and adequately raised before it.

Judgment reversed and case remanded with direction.

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


author: Cooper, Judge. Deen, Presiding Judge,

text:
    A89A2033.
    SNELLINGS v. THE STATE.
    (391 SE2d 36)
   Cooper, Judge.

Convicted in probate court of speeding, appellant appealed to superior court. This appeal is from the superior court’s affirmance of conviction. We reverse.

Probate courts are empowered by OCGA § 40-13-21 to entertain prosecutions for State traffic offenses. However, in OCGA § 40-13-23, that power is made contingent on the obtention of a written waiver of trial by jury: “No court defined in this article shall have the power to dispose of traffic misdemeanor cases as provided in this article unless the defendant shall first waive in writing a trial by jury.” (Emphasis supplied.) In appellant’s appeal to superior court, the court found as a fact that no such waiver was executed in probate court. The superior court held, nonetheless, that an oral waiver at a recorded hearing was sufficient compliance with the statute. We cannot agree.

The language of the Code section is clear and unambiguous: without a written waiver of trial by jury, the probate court is without authority to proceed to disposition of the case. Although the next sentence of the section puts the burden on the defendant to notify the court if a jury trial is desired, the first sentence unmistakably places on the probate court the responsibility of procuring a written waiver before disposing of the case. Since that responsibility was not met in this case, the contingency on which the probate court’s subject matter jurisdiction depended did not occur. “The judgment of a court having no jurisdiction of the person or subject matter ... is a mere nullity. . .” OCGA § 17-9-4. The judgment of conviction entered in probate court was, therefore, a mere nullity and the superior court’s failure to proclaim it so was error.

Our holding that all the proceedings below were a nullity renders it unnecessary to address the other issues raised by appellant.

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Beasley, JJ., concur. Been, P. J., dissents.

Deen, Presiding Judge,

dissenting.

The superior court found that the defendant is college educated, presently a law student at the University of Georgia, has appeared- in the probate court on two prior occasions with speeding tickets, and has received five other citations in other places. Further, he made no attempt to notify the probate court that he desired a jury trial although OCGA § 40-13-21 places upon him the affirmative duty of requesting one. The court noted a written waiver is required under OCGA § 40-13-21 because most of the defendants in probate court appear pro se, and this requirement protects the illiterate and incompetent.

I fully agree with the trial court that the defendant waived his right to a jury trial when a waiver appears as a part of the transcript of the proceedings in the probate court. He admitted in superior court that he made no request for a jury trial in the lower court. Appellant’s reliance upon Littlejohn v. State, 165 Ga. App. 562 (301 SE2d 917) (1983) is misplaced. The statute in question in that case required the magistrate, prior to trial on a traffic offense, to advise the accused of his right to a jury trial and, upon being informed that the accused did not desire a jury trial, to obtain a written waiver. Under OCGA § 40-13-21, the accused bears the burden of requesting a jury trial. The record plainly shows that the defendant knowingly and intelligently waived his right to a jury trial.

Decided February 19, 1990.

Ross S. Snellings, pro se.

Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assistant District Attorney, for appellee.

I must respectfully dissent.


author: Sognier, Judge.

text:
    A90A0254.
    PLEMONS v. THE STATE.
    (390 SE2d 916)
   Sognier, Judge.

William M. Plemons was convicted of voluntary manslaughter, attempted arson in the first degree, burglary, and possession of a firearm during the commission of a crime. He filed this appeal in the Supreme Court which, finding that it did not have jurisdiction, transferred the appeal to this Court.

1. Appellant first enumerates the general grounds. At trial, Alicia Mize testified that the victim, Lester “Reb” Bobo, had driven to her home on the morning of November 26, 1988 to inquire if she could watch his children while he cut firewood in his backyard. She agreed and followed him to his home in her car. In the few minutes it took to drive to Bobo’s house the two vehicles became separated in traffic, and when Mize arrived at Bobo’s residence, his truck was already parked, with the driver’s door open. Mize noticed a light blue pickup truck with a damaged right side backed into the driveway, and as she opened her car door she observed a man with a beard and dark hair coming out of the breezeway of the house. She recognized the man (later identified as appellant) as a frequent patron of a cafeteria at which she had worked for a year but did not know his name. Appellant walked to the light blue truck and drove away, and Mize entered the house calling for Bobo. She noticed broken glass on the floor and saw something “flickering” in a bedroom. Entering the bedroom, she found some clothing burning on the bed and extinguished the blaze. She called for Bobo several times and, when no one answered, discovered Bobo lying in the bathtub, gasping for breath, with multiple gunshot wounds. Mize called the victim’s cousin and the police. Both arrived at the house within minutes, but Bobo had died.

Ronnie Baker, the victim’s cousin, testified that the victim and his common law wife, Regina Bobo, had recently separated, and that since that time Regina had been seeing Larry Cook, who shared a house with appellant. Cook testified that he and the victim had argued about Regina approximately two weeks prior to the shooting. He testified further that early on the morning of the shooting, Bobo had come to Cook’s house brandishing a gun while Cook, Regina, appellant, and several others were playing poker and drinking, and that when Bobo left, appellant stated that “we ought to kick his ass.” After that incident, Cook went to sleep and was awakened about noon by appellant. The two men walked out on the porch, whereupon appellant told Cook that he did not have to worry about Bobo any longer because “I just wasted” the victim. Cook testified that appellant stated he “went in and set the house on fire, and [Bobo] came in on me.” After being ruled a competent witness by the trial court, Larry Cook’s nine year old son, Graham, testified that he heard the conversation on the porch and confirmed its content as testified to by his father.

Georgia State Patrol Officer Karen Pace testified that on the date in question she received a lookout for a light blue pickup truck with a damaged right side. She soon located such a truck in the parking lot of a bar. Floyd County Police Captain Stanley Sutton testified that he was off duty and driving by the bar when he noticed other police cars there and stopped to offer his assistance. Other officers present informed him of the circumstances, and he read appellant his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), after which appellant told the officers he had been at the bar all day and had not driven anywhere. Sutton and several other officers then felt the hood of appellant’s truck and, finding it warm, one of the officers asked appellant why the motor was so hot, whereupon appellant requested an attorney and the questioning stopped. Appellant later was returned to the scene of the crimes, where he was positively identified by Mize as the man she saw leaving the house. Appellant did not testify at trial.

“On the appeal of a criminal conviction, the evidence is viewed as the jury viewed it, that is, in favor of the verdict of conviction .... [Cit.]” Jones v. State, 188 Ga. App. 398, 399 (373 SE2d 86) (1988). We find the evidence in this case sufficient to have permitted the jury, as rational triers of fact, to find appellant guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates error in two charges given by the trial court.

(a) Appellant contends the trial court erred by charging the jury on attempted arson in the first degree because OCGA § 16-7-60 (a) requires knowing damage to real property by means of fire or explosives, whereas here only personal property was set afire. Because any crime of arson had been completed when the perpetrator set the clothing on fire and left the house, and because no damage resulted to the house, appellant argues that at best the crime must be classified as arson in the third degree.

Decided February 19, 1990.

W. Terry Hay good, Jr., for appellant.

Stephen F. Lanier, District Attorney, for appellee.

OCGA § 16-4-1 provides that “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” In this case, the jury would have been authorized from the evidence to conclude that appellant intended to set fire to the house and that he set fire to the clothing as a “substantial step toward the commission of that crime.” Id. Accordingly, a charge on attempted first degree arson was authorized. Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981), cited by appellant, is not applicable here.

(b) We find no error in the trial court’s charging the jury on alibi. Appellant asserts that because he did not take the stand in his own defense, there could be no defense of alibi, and thus the charge was improper. We do not agree. The “alibi” in question arose from Captain Sutton’s testimony that appellant made the statement that he had been at the bar all day. Thus the issue of alibi was raised by the evidence, albeit not by appellant’s testimony, and consequently a charge on this issue was authorized. See Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981); Johnson v. State, 185 Ga. App. 505, 506 (1) (364 SE2d 893) (1988).

3. Appellant’s final enumeration of error, in which he contends that his conviction for both voluntary manslaughter and possession of a weapon during the commission of a felony violates the double jeopardy clauses of the United States and Georgia Constitutions, has been decided adversely to him in Wilson v. Zant, 249 Ga. 373 (2) (290 SE2d 442) (1982), which overruled the cases cited by appellant.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A89A1784, A89A1785.
    COLLINS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and vice versa.
    (391 SE2d 16)
   Deen, Presiding Judge.

Rozzie Collins commenced this action against State Farm Mutual Automobile Insurance Company over PIP benefits and associated claims, and eventually won a jury verdict for certain past-due benefits, interest, penalty for late payment, and attorney fees. The jury did not award Collins any punitive damages.

Collins filed a notice of appeal on July 20, 1988. No transcript having been filed, and no extension of time for filing having been sought by Collins, State Farm filed a motion to dismiss the appeal on March 16, 1989, almost 8 months after the filing of the notice of appeal. The transcript eventually was filed on April 21, 1989. At the hearing on the motion to dismiss, it was undisputed that the delay in filing the transcript resulted from the court reporter’s failure to prepare the transcript. Counsel for Collins, however, admitted that he had never requested an extension of time to file the transcript, and had no explanation for that omission when specifically asked about it by the trial court. The trial court found that the 9-month delay in filing the transcript was unreasonable, but did not consider it inexcusable, since the delay was caused by the court reporter’s failure to prepare the transcript. For that reason, the trial court denied State Farm’s motion to dismiss.

Case No. A89A1784 is Collins’ appeal from the judgment entered on the jury verdict. Case No. A89A1785 is State Farm’s cross-appeal from the trial court’s denial of its motion to dismiss. Held:

1. “While it may not be the fault of the appellant that the transcript was not filed, it was the duty of the appellant to seek an extension of the period for filing the transcript before the period expired. See OCGA §§ 5-6-39 and 42. ‘(T)he fact that the initial delay in the preparation of the transcript may not have been the fault of the [appellant] does not excuse the filing delay, in the absence of a proper request by the [appellant] for an extension of time.’ Dampier v. First Bank &c. Co., 153 Ga. App. 756, 757 (266 SE2d 539) (1980).” Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327 (375 SE2d 492) (1988). In the instant case, although the transcript was not filed timely because of the court reporter’s tardy preparation of it, that reason provided no excuse since Collins failed to request any extension of time for filing of the transcript. The trial court thus erred in finding that the court reporter’s failure excused Collins’ unreasonably untimely filing of the transcript, and should have granted State Farm’s motion to dismiss.

The conclusion is consistent with McGuirt v. Lawrence, 193 Ga. App. 611 (389 SE2d 2) (1989), wherein the delay was also found not to be unreasonable. This court in Dampier and Glen Restaurants held that failure on the part of the court reporter does not excuse a delay in filing the transcript, unless the appellant makes a proper request for an extension of time. Applying that rule in the instant case, the trial court incorrectly excused Collins’ late filing of the transcript. Since there is no question that the delay was unreasonable, State Farm’s motion to dismiss should have been granted.

Decided February 8, 1990

Rehearing denied February 20, 1990

William Q. Bird, for appellant.

Powell, Goldstein, Frazer & Murphy, James W. Hawkins, Jerry B. Blackstock, John T. Sparks, for appellee.

2. The above disposition in Case No. A89A1785 renders Case No. A89A1784 moot.

Judgment reversed in Case No. A89A1785; Case No. A89A1784 dismissed.

Birdsong and Cooper, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A2011.
    SORRELLS v. EMORY HOSPITAL.
    (391 SE2d 10)
   Banke, Presiding Judge.

The appellant sued to recover for personal injuries she allegedly sustained when she slipped and fell on a parking deck owned and operated by the appellee. She brings this appeal from the grant of the appellee’s motion for summary judgment.

At the time the incident occurred, the appellant, accompanied by her son, was on her way to the Emory University Clinic to attend a scheduled doctor’s appointment. After parking, they proceeded to walk across the parking deck toward the clinic, taking a short cut because of construction in the area. As they were walking between two cars which were stopped at the toll booth waiting to exit the deck, the appellant’s son let go of her arm, and she fell. The appellant testified that she was unaware at the time of what had caused her to fall but that her son later told her there was a hole in the ground at the location in question. The son testified that he did not see his mother fall and did not know at the time what had caused her to do so but that he returned to the site later the same day “to find out exactly why she fell” and at that time noticed a hole in the concrete which he “assumed” had caused the fall. Held:

1. The appellant contends that the trial judge erred in refusing to recuse himself. Approximately one hour before the scheduled hearing on the appellee’s motion for summary judgment, the parties were advised that another judge would be sitting in for the judge to whom the case had originally been assigned. Counsel for the appellant expressed concern over the substitution on the ground that the new judge was employed by Emory University, but the judge assured the litigants of his impartiality and explained that while he had previously been employed as associate dean of the Emory University School of Law, he had resigned from that position and was presently connected with the law school only in the capacity of adjunct professor. Although the judge offered to take the matter off the calendar, appellant’s counsel elected instead to proceed with the hearing subject to an oral motion to recuse the judge, which was denied.

“All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be in writing, accompanied by an affidavit asserting the facts upon which the motion is founded, and timely filed.” Rule 25.1, Uniform Superior Court Rules, 253 Ga. at 841. See generally Patterson v. Butler, 187 Ga. App. 740, 741 (371 SE2d 268) (1988). Although the appellant in this case did not learn of the alleged grounds for disqualification until just prior to the hearing, it is apparent from the record that she was offered a continuance which she chose not to accept. Assuming that a recusal would have been appropriate under the circumstances, a continuance would have been necessary in any event to enable another judge to preside over the hearing. See State v. Fleming, 245 Ga. 700 (1) (267 SE2d 207) (1980). The appellant obviously could not have it both ways, and we must conclude that she waived any recusal rights she might otherwise have had by choosing to go forward with the hearing.

2. The appellant’s remaining enumerations of error concern the merits of the court’s grant of summary judgment to the appellee. There was no actual evidence that the appellant’s fall had resulted from a hole in the concrete surface of the parking deck, but only speculation. Moreover, the “assumption” by the appellant’s son that the fall had been caused by such a defect was rebutted by the deposition testimony of an Emory police officer who stated that it was his duty to inspect the parking deck for unsafe conditions, that he had no prior knowledge of any hole in the concrete prior to the appellant’s fall, and that after speaking with the appellant’s son on the afternoon in question he had inspected the location in question and had found no such defect. This witness further testified that when he had spoken with the appellant and her son on the day of the incident neither of them had been able to say what caused the fall. While the appellant produced photographs purporting to depict a hole in the concrete at the location in question, these photographs were not taken until approximately a year after the incident. Under the circumstances, we hold that the trial court did not err in granting the appellee’s motion for summary judgment. Hogans v. Food Giant, 185 Ga. App. 645, 646 (365 SE2d 496) (1988). See also Veazey v. F. W. Woolworth Co., 191 Ga. App. 601 (382 SE2d 411) (1989).

Judgment affirmed.

Sognier and Pope, JJ., concur.

Decided February 2, 1990

Rehearing denied February 20, 1990

MacDowell & Associates, C. Frederick MacDowell, for appellant.

Long, Weinberg, Ansley & Wheeler, Suzanne Trexler, Éarl W. Gunn, for appellee.


text:
    A89A2022.
    BALLENTINE v. THE STATE.
    (390 SE2d 887)
   Deen, Presiding Judge.

Frederick Ballentine brings this appeal from his conviction of five counts of child molestation, following the denial of his motion for a new trial.

1. Appellant first contends that the trial court erred in denying his motion for a new trial because a regular juror was improperly replaced by an alternate juror during jury deliberations.

Jury selection and voir dire occurred nine days before trial. Appellant did not object to the constitution of the jury or improper jury deliberation until he filed a motion for a new trial four months after trial. At the motion hearing, the Clerk of the Superior Court testified that Mr. Gordon, juror number two on the list, was selected as the alternate juror and that Mr. James, juror number forty-three, was selected as the first regular juror. The clerk remembered that during trial Juror James sat out in the front of the jury as an alternate juror, that Juror Gordon sat with the regular panel, and that the mix-up was an innocent mistake. Juror James testified that at all times during trial he sat in the alternate juror’s seat and did not participate in the jury’s deliberations. Juror Gordon testified that when he appeared to serve it was unclear whether he was an alternate or a regular juror, that Mr. James indicated to him that he (James) was the alternate juror, and that at all times during trial he sat as a regular juror. When the jury returned its verdict, Mr. Gordon and the other jurors were polled and the court received its verdict. The juror mix-up was not noticed, and no objection was made to the composition of the jury.

OCGA § 15-12-171 provides that “[u]pon final submission of the case to the jury, the alternate jurors shall not retire with the jury of 12 for deliberation.” Jury misconduct raises a presumption of harm that the State must overcome with a showing of harmlessness. Johnson v. State, 235 Ga. 486, 493 (220 SE2d 448) (1975). As the record shows that the alternate juror was drawn from the same source, in the same manner, had the same qualifications as the other jurors, listened to the same evidence and charge of court, the State has met its burden of proof. Appellant’s reliance upon Newsome v. State, 189 Ga. App. 329 (375 SE2d 621) (1988), is without merit. In Newsome the alternate juror was sent into the jury room with the regular jurors, and the State was unable to show the regular jurors were not influenced by him. In the instant case, the correct number of jurors deliberated, and the extra juror had no influence upon their decision. The prescribed mode of deliberation was not followed only because of an innocent error by the jurors as to who was the regular juror and who was the alternate. We find no harmful error.

2. The trial court did not improperly prohibit cross-examination of a State’s witness, Stella Selph, a police detective who investigated the molestations reported by Ballentine’s step-daughter.

The State first objected to defense counsel’s statement: “So you let Mr. Ballentine sit in jail for two days?” This statement to the prosecution’s witness is not really a question and would not mislead the jury as to the authority under which the defendant was being held. Ballentine was incarcerated under a lawful arrest warrant issued by a magistrate who found probable cause existed that the accused had committed the alleged crimes. “The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.” Johnson v. State, 158 Ga. App. 333, 334 (280 SE2d 379) (1981). See also OCGA § 24-2-1, which requires that “[e]vidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” Moreover, we find that this statement was argumentative. Coker v. State, 234 Ga. 555, 568 (216 SE2d 782) (1975).

The State also objected to the question: “When you read this transcript here, you think your questions were just the least bit suggestive to her?” After objection, which was followed by a bench conference, the court asked counsel to rephrase the question to Officer Selph and ask her: “Did she so frame her questions as to be suggestive to the child?” Counsel complied and asked: “Did you frame your questions as to be suggestive to the child at all?” We find no error. The question as originally asked invades the province of the jury. Proctor v. State, 235 Ga. 720, 725 (221 SE2d 556) (1975).

3. Appellant asserts as error the trial court’s refusal to compel the State to produce specific dates and times as to each offense alleged in the indictment because he could not otherwise prepare an adequate defense. Ballentine claims that his assertion of alibi made time and date a material issue in the case because he did not reside in Hines-ville during the week, but commuted to his home there on certain weekends while he was on a military assignment in Valdosta.

The State cites Edgehill v. State, 253 Ga. 343, 345 (320 SE2d 176) (1984), which holds that “when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” The State claims that the indictment put the defendant on notice that the dates alleged in its various counts were not material allegations and would not be relied upon by the State. “[W]here the variance between the allegata and probata surprises and prejudices the defendant by effectively barring an alibi defense he intends to assert . . . the trial court should grant the defendant a continuance in order to afford him sufficient time to prepare his defense to meet a new date.” Edgehill v. State, supra. As evidence of the accused’s guilt was not restricted to the date alleged in the indictment but was extended to any appropriate date within the statute of limitation prior to the filing of the indictment, and he did not seek a continuance, we find no error. Eberhardt v. State, 257 Ga. 420, 421 (359 SE2d 908) (1987); Keri v. State, 179 Ga. App. 664, 668 (347 SE2d 236) (1986).

Decided February 6, 1990

Rehearing denied February 20, 1990

Roger J. Dodd, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

4. OCGA § 17-9-1 permits a directed verdict of acquittal only where there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom, demands a verdict of not guilty. At trial the child claimed that her stepfather had sodomized her once and denied that the act had occurred more than once. Other witnesses testified that she reported three instances of such conduct. When counsel made a motion for a directed verdict, the court reserved ruling on the motion and permitted the case to go to the jury. In granting the motion after receiving the verdict, the court obviously determined that the child’s testimony supported only one count of sodomy and that the evidence of the other witnesses was not sufficient to support a conviction on those counts. We are unaware of any authority which does not permit the court to reserve ruling on a motion for a directed verdict of acquittal and rule upon it after the jury has dispersed. Assuming arguendo that such a ruling is error, appellant has failed to show harm. To warrant reversal, the alleged error must be harmful. Dill v. State, 222 Ga. 793, 794 (152 SE2d 741) (1966).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    77849.
    In the Interest of M. M., a child.
    (392 SE2d 577)
    Decided February 20, 1990.

      Elliott A. Shoenthal, Brian W. Wertheim, for appellant.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, George J. Robinson, Jr., Assistant District Attorneys, for appellee.
   Pope, Judge.

This court having entered a judgment in the above-styled case at 190 Ga. App. 795 (380 SE2d 75) (1989) vacating the judgment of the trial court, and remanding the case with direction, and the judgment of this court having been reversed on certiorari by the Supreme Court in State v. M. M., 259 Ga. 637 (386 SE2d 35) (1989), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A89A1677.
    DUNLAP v. FIRST ROCK CREDIT CORPORATION.
    (390 SE2d 919)
   Beasley, Judge.

Defendant Dunlap appeals the grant of summary judgment to First Rock Credit, which sued on two promissory notes signed by Dunlap, one for $45,352 and one for $61,060, both dated December 31, 1985. First Rock Credit Corporation is a wholly owned subsidiary of First Rock Financial Corporation. First Rock Financial Corporation and First Rock Associates I Limited Partnership offered for sale in Georgia a tax shelter security known as “FR Equipment Leasing Trust 85-4,” which had a closing date of December 31, 1985.

Dunlap met Doug Bowers in 1985. Bowers was an independent insurance agent who participated in providing insurance for Dunlap’s company employees. Dunlap consulted Bowers about other investments and paid $2,000 for this advice in May 1985. In December, Dunlap expressed interest in a private placement investment and Bowers introduced him to Ronald Verlander, a licensed registered representative of Investacorp., a securities broker-dealer. Bowers and Verlander met with Dunlap more than once in December. Verlander gave him a copy of the private placement memorandum for the Trust.

Verlander presented to Dunlap the First Rock Credit Corporation Promissory Notes, Credit Agreement and other documents necessary for the purchase of four units in the Trust, which Dunlap signed and returned with his check of December 17, payable to the “Trust.” On the memo line of the check is written “Subscription for LTD. Partnership.” Dunlap made only one payment on the notes.

Dunlap’s answer and counterclaim both alleged fraud in the inducement, claiming that Bowers was acting as an agent of First Rock Credit Corporation and that he misrepresented to Dunlap the nature of the investment and also falsely represented that he was licensed to sell securities in Georgia. Dunlap alleged that he was presented with a set of documents representing the investment as a limited partnership instead of a trust, although no copies of this alleged first set of documents are included in the record.

1. The second enumeration claims reversible error because the court granted summary judgment without considering the depositions of Condo, Dunlap, and Hammond. Although Dunlap contends that the depositions remained sealed until after the order was entered, there is no evidence of this. Allegations made in briefs but unsupported by the record will not be considered. Blue v. R. L. Glossom Contracting, 173 Ga. App. 622, 623 (1) (327 SE2d 582) (1985).

Even if they had remained sealed, “[i]f a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered.” General Motors v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979); Bailey v. Johnson, 245 Ga. 823, 829 (6) (268 SE2d 147) (1980); Light v. Equitable Mtg. &c., 191 Ga. App. 816, 817 (1) (383 SE2d 142) (1989); compare Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222) (1988). The order recites that it was issued “[a]fter carefully considering the arguments presented by counsel . . . and after reviewing all matters of record. ...”

2. The court granted summary judgment on two bases, either of which suffices. Dunlap contends that Bowers presented him initially with a limited partnership private placement memorandum instead of one relating to a trust. Verlander was present. Assuming that there was a difference in the initial presentation to Dunlap and the documents he signed, First Rock Credit was still entitled to summary judgment.

First Rock Credit Corporation was not a party to the underlying private placement memorandum which Dunlap claims was misrepresented or switched on him. It only provided the financing for Dunlap to participate in the investment. The promissory notes sued upon make no reference to the purpose for which the money was loaned.

In addition, the signed documents were clearly marked and defined by their terms as a trust, not a limited partnership. Dunlap’s accountant said there were no differences in the tax benefits offered by the partnership and the trust; the accounting records and proof were only treated differently in the event of an audit.

“A party to a contract who can read, must read or show a legal excuse for not doing so, and ordinarily if fraud is an excuse, it must be such fraud as would prevent the party from reading the contract. [Cit.] One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. [Cit.]. . . . ‘Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.’ ” Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152, 153 (351 SE2d 498) (1986); Credithrift &c. v. Whitley, 190 Ga. App. 833, 834 (1) (380 SE2d 489) (1989); Moran v. NAV Svcs., 189 Ga. App. 825, 827 (3) (377 SE2d 909) (1989); Delta Chevrolet v. Wells, 187 Ga. App. 694, 695 (1) (371 SE2d 250) (1988); Barnes v. Levenstein, 160 Ga. App. 115, 116 (286 SE2d 345) (1981).

Bowers’ affidavit denied that he had ever been an agent of First Rock Credit or that he had ever represented the company in any capacity. “Denial of an agency relationship by a purported party to that relationship is admissible as a statement of fact, rather than a mere conclusion of law. [Cits.] Such a denial pierces the pleadings and is sufficient to support a motion for summary judgment. [Cits.]” Georgia Mut. Ins. Co. v. Mims, 187 Ga. App. 783 (1) (371 SE2d 426) (1988); Nat. Property Owners Ins. Co. v. Wells, 166 Ga. App. 281, 282 (2) (304 SE2d 458) (1983).

Dunlap’s counter evidence at best shows a dual agency. Dunlap was paying Bowers for financial advice, making him his agent. Dunlap said Bowers denied being an employee of any of the First Rock corporations, at most saying he represented the company issuing the security (which was not First Rock Credit) in the same way in which insurance agents represent companies whose policies they sell. European Bakers v. Holman, 177 Ga. App. 172, 173 (2) (338 SE2d 702) (1985).

The other factual disputes offered to defeat summary judgment are not material. “ ‘The summary judgment law does not require the [movant] to show that no issue of fact remains, but rather tha(t) no genuine issue of material fact remains (cits.); and while there may be some “shadowy semblance of an issue” (cit.), the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ [Cit.] Because of appellant’s] failure to show evidence supporting their general allegation of fraud, no genuine issue of material fact is raised.” Roth v. McDaniel Enterprises, 192 Ga. App. 16, 18 (1) (383 SE2d 569) (1989).

Judgment affirmed.

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

Decided February 20, 1990.

Nancy H. Murphy, for appellant.

Hurt, Richardson, Garner, Todd & Cadenhead, Henry D. Fellows, Jr., Martha M. Glisson, for appellee.


text:
    A89A1696.
    CARCO SUPPLY COMPANY v. DICK CLEM, MASTER PLUMBER, INC.
    (391 SE2d 134)
   Birdsong, Judge.

Careo Supply Company, Inc. (“Careo”), a plumbing supply house, and Dick Clem, Master Plumber (“Clem”), a plumbing contractor, orally agreed to secure a contract to install plumbing in a motel to be constructed. After their relationship ended in dispute, Clem sued Careo for breach of contract, fraud, and attorney fees.

Clem alleged Careo breached the oral contract by not making payments owed him, charging him higher prices for materials than they agreed, making him pay for supplies not included in the contract, and making him perform work not included in the contract. Clem’s fraud claim alleged their agreement was for a joint venture in which they would share in the profits, and not the usual contractor and subcontractor relationship. Clem asserted Careo secretly submitted a bid to the general contractor which was almost $100,000 higher than they agreed and Careo fraudulently retained the difference. Clem also asserted Careo fraudulently overcharged for materials and fraudulently misrepresented the terms of the contract with the general contractor.

Careo answered, denied liability, and counterclaimed for amounts owed on Clem’s accounts, punitive damages, and attorney fees. The jury returned a verdict for Clem for general damages, punitive damages, and attorney fees; and for Careo on its counterclaim for general damages. The trial judge’s judgment offset the counterclaim, and awarded Clem $89,000. After a new trial motion was denied, Careo appealed. Held:

1. Carco’s first enumeration of error asserts the verdict is contrary to the evidence and principles of justice and equity. This enumeration is not supported by argument, reference to the transcript, or citation of authority, and is deemed abandoned. Court of Appeals Rule 15 (c) (2). Bicknell v. Joyce Sportswear Co., 173 Ga. App, 897, 898 (328 SE2d 564).

2. The second enumeration of error alleges the trial court erred by allowing Clem to state his “impression” of what their bid was to be, because OCGA § 24-9-65 prohibits such opinion testimony. The transcript shows Clem was not asked to give his opinion but was asked for his impression, i.e., his understanding, of what the bid was to be based upon their oral agreement. This evidence was properly admitted to explain Clem’s future conduct and show his understanding. Carter v. Ray, 70 Ga. App. 419, 426-427 (28 SE2d 361).

3. Carco’s third and fifth enumerations of error contend the trial court erred by allowing testimony about and admitting in evidence Carco’s contract with the general contractor because it was not relevant. The contract and its terms were clearly relevant. Further, such issues are for the trial court (Kilpatrick v. Foster, 185 Ga. App. 453, 457 (364 SE2d 588)) and we will not interfere unless the trial court has abused its discretion (Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38)). We find no abuse here.

4. Carco’s fourth and sixth enumerations assert the trial court erred by admitting in evidence summaries of the damages Clem allegedly suffered. The transcript shows that Careo also introduced similar exhibits, and both parties were on equal footing. If admitting these exhibits was error, there was no prejudice since the jury had exhibits showing the claims of both parties. The error, if any, was harmless. See generally Bellamy v. Edwards, 181 Ga. App. 887, 890 (354 SE2d 434); Foster v. Morrison, 177 Ga. App. 250, 251-252 (339 SE2d 307).

5. The seventh and eighth enumerations allege the trial court erred by allowing Carco’s agent to be cross-examined contrary to OCGA § 24-9-62. The witness’ rights under § 24-9-62 must be balanced with Clem’s right under § 24-9-64 to a thorough and sifting cross-examination. Crawford v. State, 144 Ga. App. 622, 625 (241 SE2d 492). This is within the trial judge’s discretion and it will not be curtailed unless clearly abused. Thomas v. Clark, 188 Ga. App. 606, 608 (373 SE2d 668). As no abuse of discretion is shown, these enumerations are without merit.

6. The ninth and tenth enumerations assert there was insufficient evidence to award punitive damages and attorney fees. If there is any evidence sustaining the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App. 432 (326 SE2d 777). Punitive damages are authorized when the evidence proves fraud was committed (Joseph v. Bray, 182 Ga. App. 131, 133 (354 SE2d 878)), and in such actions attorney fees may be recovered under OCGA § 13-6-11. F. N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 260 (208 SE2d 13); McMichen v. Martin Burks Chevrolet, 128 Ga. App. 482, 484 (197 SE2d 395). The evidence is sufficient to support the verdict.

Carco’s arguments also raise issues not included within the enumerations of error. “ ‘An enumeration of error cannot be enlarged to include other issues not made therein.’ ” Hurston v. Ga. Farm &c. Ins. Co., 148 Ga. App. 324, 326 (250 SE2d 886). Further, our review “cannot be enlarged or transformed through a process of switching, shifting, and ‘mending your hold.’ ” Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686). Therefore, we cannot consider these other issues. Sanders v. Hughes, 183 Ga. App. 601, 604 (359 SE2d 396).

Decided February 20, 1990.

Johnson, Beckham & Price, William P. Johnson, for appellant.

Tisinger, Tisinger, Vance & Greer, Paul E. Weathington, for appellee.

7. Clem’s motion for sanctions against Careo under OCGA § 5-6-6 for pursuing a frivolous appeal is denied. The record on appeal does not establish the appeal was filed for purposes of delay only.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A1888.
    BARNES v. JOHNSON et al.
    (390 SE2d 921)
   Birdsong, Judge.

We granted this interlocutory appeal to review the trial court’s denial of Barnes’ motion for summary judgment. Johnson sued Carter, the driver of a pickup truck, and Barnes, the owner of the pickup, for damages arising from a collision between the pickup and her car. The complaint alleged Carter caused the damages by driving negligently and while under the influence of alcohol, Carter operated the truck with Barnes’ knowledge and consent, and Barnes negligently entrusted the truck to Carter.

Barnes’ motion was supported by the pleadings on file, including Johnson’s interrogatory answers, and affidavits from Barnes and Kimbile Barnes, her former husband. Barnes’ affidavit admitted she owned the truck, but denied she gave Carter permission to repair or drive her truck. Her affidavit stated she knew Carter worked for her husband, but she did not know how or why he drove the truck. Her affidavit also stated she had no knowledge of Carter’s driving record or his propensity to drink.

Kimbile Barnes’ affidavit stated Carter had worked for him, but was fired before the accident. His affidavit denied that Carter had his permission to drive the truck, and that Carter was in his employ or acting in his behalf in any capacity at the time of the accident. The affidavit stated Kimbile Barnes left the truck at Carter’s house because it would not run, but denied he asked or gave Carter permission to repair the truck. Kimbile Barnes also stated he did not give Carter permission to drive the truck after it broke down and he did not know how Carter came to repair and drive the truck.

Johnson’s rebuttal to the motion for summary judgment consisted entirely of filing pleadings titled: “Plaintiff’s Response to Defendant’s Brenda J. Barnes’ Motion for Summary Judgment” and “Plaintiff’s Statement Of Genuine Issues For Trial.” No affidavit, deposition, or other factual material was filed with either pleading. The response, in toto, stated: “COMES NOW the [pjlaintiff in the above-described action and for her responses to the Defendant Brenda J. Barnes’ Motion for Summary Judgment shows the Court that genuine issues of material fact remain and that summary judgment is not proper and the Defendant Brenda J. Barnes’ Motion for Summary Judgment should be denied.” The Statement Of Genuine Issues For Trial contended there was no issue Carter was driving the truck or Barnes was the owner of the truck, but there was an issue whether Carter had Barnes’ express or implied permission to drive the truck because Barnes admitted the truck was driven by Carter, the truck had been left at Carter’s residence, and she knew where the vehicle was.

Finding genuine issues remaining, the trial court denied the motion. Held:

1. As a defendant moving for summary judgment, Barnes had to show there were no genuine issues of material fact remaining for trial and she was entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Her burden was to negate one of the essential elements of Johnson’s complaint (Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637)), and to establish, as a matter of law, Johnson could not prevail on any theory of recovery fairly drawn from her pleadings and evidence. Reed v. Adventist Health Systems &c., 181 Ga. App. 750, 752 (353 SE2d 523).

“ ‘Under the theory of negligent entrustment, “liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the [negligence] of the driver on account of his incompetency and recklessness. (Cits.)” Saunders v. Vikers, 116 Ga. App. 733, 735 (158 SE2d 324).’ May v. Phillips, 157 Ga. App. 630, 631 (2) (278 SE2d 172).” Young v. Wooldridge, 187 Ga. App. 661, 663-664 (371 SE2d 100); Wallace v. ARA Svcs., 185 Ga. App. 639, 641 (365 SE2d 461). Of course, neither Barnes’ ownership of the truck (Young v. Wooldridge, supra; Finnocchio v. Lunsford, 129 Ga. App. 694 (201 SE2d 1)), nor Carter having permission to use the truck would provide a basis for imposition of liability on Barnes. Wallace v. ARA Svcs., supra.

Barnes’ specific denial that she knew of Carter’s driving record or propensity to drive while intoxicated negated an essential element of the negligent entrustment theory. See Wallace v. ARA Svcs., supra; Saunders v. Vikers, supra. Accordingly, Barnes’ motion pierced Johnson’s pleadings (Waldrep v. Goodwin, 230 Ga. 1, 2 (195 SE2d 432)), and Johnson was required to set forth specific facts showing there was a genuine issue for trial or summary judgment would be entered against her. OCGA § 9-11-56 (e); Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173). She could have done this by showing Barnes had actual knowledge of Carter’s propensity to drive while intoxicated or facts from which such knowledge could be inferred. Saunders u. Vikers, supra., Johnson did neither. Further, there are no facts in the record from which one could infer that Barnes had such knowledge. Although Carter’s earlier employment by Kimbile Barnes and his driving the truck might create an inference he had permission to drive the truck, these facts do not create an inference that Barnes had actual knowledge of Carter’s driving record or his propensity to drive while intoxicated. Therefore, giving Johnson , the benefit of all reasonable doubts and construing the evidence and all inferences and conclusions arising therefrom in her favor (Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 422 (373 SE2d 515)), she failed to carry her burden.

2. We also have considered whether Johnson could recover from Barnes under any other theory of liability which might be fairly drawn from the pleadings and evidence and we find that she could not. The only other reasonable theory would be the doctrine of respondeat superior, which of course, was not alleged in the complaint. The evidence, however, does not prove, or create an inference, that Carter was engaged in Barnes’ business or was acting within the scópe of his employment at the time of the accident. Moreover, any inferences that might have been drawn could not overcome the specific statements in the affidavits that at the time of the accident Carter was not employed by Kimbile Barnes and was not acting on his behalf in any capacity. See Allen Katie’s Major Dodge v. Barnes, 243 Ga. 776, 779-781 (257 SE2d 186). (Moreover, this analysis gratuitously gives Johnson the benefit of construing the evidence to warrant the inference that Carter at one time was also Barnes’ agent or employee despite the statement in Barnes’ affidavit that she only knew that Carter worked for her former husband.)

Therefore, since the affidavits also negated an essential element for recovery under the doctrine of respondeat superior (see Sparks v. Buffalo Cab Co., 113 Ga. App. 528, 530 (148 SE2d 919)) to which Johnsbn did not respond, Barries was entitled to judgment as a matter of law on all theories of recovery fairly drawn from the pleadings. Accordingly, the trial court erred by denying the motion.

Judgment reversed with direction that the trial court enter judgment for Barnes.

Deen, P. J., and Cooper, J., concur.

Decided February 20, 1990.

McLain & Merritt, Williams S. Sutton, for appellant.

Bagby & Bagby, Lee H. Henley, Jr., for appellees.


text:
    A89A1979.
    EDWARDS et al. v. THE STATE.
    (391 SE2d 137)
   Beasley, Judge.

Edwards was convicted of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). Pelayo was convicted of the same offense and also of trafficking in cocaine, OCGA § 16-13-31 (a) (1).

Viewed in favor of the verdict, the evidence was that around 10:00 p.m. on December 25, 1987, a call complaining of loud music in the Long Street area was received by the Folkston and Charlton County police. Deputy Sheriff Jones was on duty and, because the call was from an area of high crime and drug activity, he asked the Sheriff to accompany him. They proceeded down Highway 252 and the Sheriff rolled down his window and heard music as they approached the Long Street area. They turned into an unpaved cross street between Highway 252 and Long Street, heading toward the music. A sportscar with four occupants was parked in the middle of the street with its lights off. The car was blocking the street. The officers turned on their car’s blue lights and takedown lights and saw frantic movement in the sportscar.

The officers approached the car with Deputy Jones arriving first at the driver’s window. Pelayo was the driver, a juvenile was in the front passenger seat, Jordan was behind Pelayo and Edwards was behind the juvenile. Deputy Jones saw the juvenile stuffing small hard objects into his pockets, which, based on his experience, Jones suspected were rock cocaine. He directed all four occupants to put their hands where he could see them and exit the car.

The sheriff, Deputy Jones and two city officers who had been called as backup when the car was first spotted then patted down the four occupants, finding crack cocaine on the juvenile. There were rocks of cocaine all over the rear floorboard of the vehicle and an empty container was found on Edwards.

Edwards and Jordan had been “hanging out” that night and had gone with the juvenile to a “juke” to find Pelayo with the intention of purchasing cocaine. The juvenile located Pelayo and they, along with Jordan, got in Pelayo’s car. They left Edwards at the “juke,” but he walked up to the car while it was parked in the street and got in moments before the police arrived. Discussions of the purchase were going on when the police approached.

Jordan, Pelayo and Edwards were all charged with both trafficking and possession with intent to distribute.

1. Edwards and Pelayo filed Motions to Suppress, the denial of which is enumerated as error in the first enumeration.

Both motions claim otherwise unspecified violations of the “United States Constitution and the Constitution and laws of the State of Georgia.” This being insufficient to adequately raise the State constitutional or statutory grounds, Burroughs v. State, 190 Ga. App. 467, 471 (2 a) (379 SE2d 175) (1989), we consider only the federal Fourth Amendment grounds.

Since Edwards disclaimed any rights in the cocaine and the car, the only item which he has standing to contest is the empty container seized from his person. Todd v. State, 184 Ga. App. 750, 751 (2) (362 SE2d 400) (1985). Although no cocaine was found on Pelayo’s person and he disclaimed interest in it, the car was his and he may contest the search of it.

Since the car was blocking the officers in the course of their duty to investigate the disturbance call, they could approach the occupied vehicle to ask that it be moved. Before this occurred, the officers saw activity which aroused their suspicions of drug activity. These suspicions were sufficient for a “Terry-type” inquiry. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); Brisbane v. State, 233 Ga. 339, 341 (211 SE2d 294) (1974); Jackson v. State; 191 Ga. App. 439, 440 (1) (382 SE2d 177) (1989); State v. Purdy, 147 Ga. App. 340, 341 (248 SE2d 683) (1978).

Once Officer Jones saw what he believed to be cocaine being stuffed into the pockets of the juvenile, he had probable cause to believe at least one of the passengers was possessing cocaine, and his arrest was legal. Patting down the remaining passengers was also warranted, for the protection of the officers. Id. When cocaine was found in the pockets of the juvenile, Deputy Jones returned to the car, flashed his light in, and saw cocaine all over the floorboards. The arrest of all four without a warrant was justified at this point, Durden v. State, 250 Ga. 325, 326 (297 SE2d 237) (1982); Napier v. State, 184 Ga. App. 770, 771 (1) (362 SE2d 501) (1987). The seizing and inventorying of the car pursuant to these arrests was proper, South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976), as was the search of the arrested individuals. United States v. Robinson, 414 U. S. 218 (94 SC 467, 38 LE2d 427) (1973).

Denial of the motions was not error.

2. The second enumeration, relating only to Pelayo, is that the court erred in charging both constructive and actual possession with regard to the trafficking count.

Prior to March 28, 1988, when it was amended, OCGA § 16-13-31 (a) (1) required “actual” possession for conviction and this case must be so considered. Christopher v. State, 190 Ga. App. 393, 394 (2) (379 SE2d 205) (1989).

Both trafficking and possession with intent to distribute were charged and considered by the jury as to Pelayo. While constructive possession will support possession with intent to distribute, it will not support a trafficking conviction under the unamended statute. Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988); Paul v. State, 191 Ga. App. 506, 507 (1) (382 SE2d 374) (1989); Coleman v. State, 189 Ga. App. 366, 368 (7) (375 SE2d 663) (1988); Deych v. State, 188 Ga. App. 901, 902 (2) (374 SE2d 753) (1988). The instructions given by the court were not separated as to counts, and constructive possession was repeatedly charged to the jury, once when, after beginning deliberations, they asked the court for a clear definition of “possession.” This was error and the conviction of Pelayo on Count 1 is reversed. Id. Constructive possession is an appropriate consideration under Count 2, and that conviction is affirmed.

Defendant Pelayo did request an instruction on actual and constructive possession, but since that was an appropriate concept under Count 2, the request did not amount to induced error. See Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980); Hill v. State, 237 Ga. 523, 525 (3) (228 SE2d 898) (1976); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975).

3. Edwards contends in the third enumeration that the court erred by not giving him an opportunity to object to the court’s charge, in spite of his filing a “Reservation of Right to Object to Charge.”

After the charge, the court did not ask for objections. This does not mean, however, as apparently believed by Edwards, that he thereby was deprived of the right to contest the charge. When the court does not specifically inquire of a defendant if there are objections, the defendant may raise objections either in his motion for new trial or on appeal. Bryant v. State, 256 Ga. 273, 274 (1) (347 SE2d 567) (1986); Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975); Jackson, supra. Having not done so, any such errors are waived.

4. Edwards claims error in the court’s denial of his motion for directed verdict based on insufficiency of evidence.

While the evidence supports the conclusion that Edwards went with Jordan to purchase cocaine, it is legally insufficient to support the conviction of possession with intent to distribute and must be reversed. Cochran v. State, 190 Ga. App. 884, 885 (1) (380 SE2d 319) (1989); Ridgeway v. State, 187 Ga. App. 381, 382 (370 SE2d 216) (1988).

5. The last enumeration need not be addressed.

Judgment affirmed in part and reversed in part.

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

Decided February 20, 1990.

Eleanor R. Dotson, Delman L. Minchew, for appellants.

Harry D. Dixon, Jr., District Attorney, for appellee.


author: Carley, Chief Judge.

text:
    A89A1986.
    FIRST UNION NATIONAL BANK OF GEORGIA v. GORLIN.
    (390 SE2d 923)
   Carley, Chief Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellee-plaintiff Steve Gorlin filed an action for fraud against appellant-defendant First Union National Bank of Georgia (Bank) and the Bank counterclaimed against Gorlin on a promissory note. The case was tried before a jury and cross-appeals were taken from the judgment that was entered by the trial court on the jury’s verdicts. In its appeal, the Bank enumerated error only as to the judgment in Gorlin’s main action for fraud. In Gorlin v. Halpern, 184 Ga. App. 10 (360 SE2d 729) (1987), this court found no merit in the Bank’s appeal and affirmed. On certiorari, however, the Supreme Court reversed, holding that the trial court had erroneously denied the Bank’s motion for a directed verdict. Burgess v. Gorlin, 258 Ga. 127 (365 SE2d 405) (1988). Accordingly, this court vacated its judgment of affirmance and, pursuant to the judgment of the Supreme Court, reversed the trial court’s denial of the Bank’s motion for a directed verdict. Gorlin v. Halpern, 187 Ga. App. 413 (371 SE2d 179) (1988). After this court’s remittitur had been filed in the trial court, a “new” judgment was entered in favor of the Bank on Gorlin’s main action for fraud but the trial court found that its original judgment on the Bank’s counterclaim against Gorlin on the promissory note remained in full force and effect. The Bank appeals from this “new” judgment of the trial court.

1. Gorlin’s motion to dismiss the Bánk’s appeal is denied. The “new” judgment of the trial court, entered after the remittitur of this court had been filed, is an appealable judgment. See generally Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646 (297 SE2d 307) (1982).

2. The trial court’s original judgment on the Bank’s counterclaim against Gorlin on the promissory note was totally unaffected by the prior appeal in this case. The issues that were raised and addressed in the prior appeal related only to the judgment entered on Gorlin’s main action against the Bank and not the judgment entered on the Bank’s counterclaim against Gorlin. Although the Bank now urges that the verdict returned by the jury on the counterclaim was erroneous, “it was incumbent on [the Bank] to have it struck either at the trial of the case or on appeal.” Lyons Mfg. Co. v. Wembley Indus., 253 Ga. 39, 40-41 (315 SE2d 906) (1984). The Bank did neither. Accordingly, the trial court did not err insofar as it found that its original judgment on the Bank’s counterclaim remains in full force and effect and that no “new” judgment on the Bank’s counterclaim would be authorized. The law provides for methods by which a judgment may be attacked in the trial court. See, e.g., OCGA § 9-11-60. However, the Bank has not attempted to pursue such an approved method of attack as against the judgment on its counterclaim. The Bank’s mere objection to the trial court’s post-appeal refusal to find that the original judgment entered on the counterclaim had in some way been affected by the prior appeal is without merit.

Decided February 20, 1990.

Meals, Kirwan, Goger, Winter & Parks, Larry H. Chesin, for appellant.

Jones, Brown & Brennan, Taylor W. Jones, Rickman P. Brown, Lisa R. Fields, for appellee.

3. The trial court’s failure to enter an “unconditional” judgment in favor of the Bank on its counterclaim is enumerated as error. The Bank’s contention is that it is entitled to have such an “unconditional” judgment entered because it has satisfied the condition that was imposed upon it by the original judgment.

Whether the provisions of a judgment have been satisfied is obviously an entirely separate and distinct consideration from the issue of what provisions should be incorporated into a judgment. The trial court’s original judgment, which was entered on the Bank’s counterclaim, correctly followed the uncontested substantive provisions of the verdict that was returned by the jury as to that counterclaim. See OCGA §§ 9-12-7; 9-12-9. The law provides for methods by which the issue of the satisfaction of a judgment may be resolved. See, e.g., Lyons Mfg. Co. v. Wembley Indus., supra. However, the Bank has not attempted to pursue such an approved method of resolution as to the issue of the satisfaction of the judgment on the Bank’s counterclaim. There is no viable basis for the assertion that the trial court erred in its post-appeal refusal to enter a “new” judgment on the counterclaim which would not follow the substantive provisions of the verdict that was returned by the jury on that counterclaim.

Judgment affirmed.

McMurray, P. J., .and Beasley, J., concur.


text:
    A89A2137.
    EDDY v. THE STATE.
    (391 SE2d 37)
   Birdsong, Judge.

Frederick A. Eddy appeals his conviction for possession of cocaine with intent to distribute. Appellant Eddy was arrested with Calvin Bryant after police received a call concerning two described black males selling drugs at a certain street corner in Atlanta. Four officers approached the location and surreptitiously watched two males, including appellant, who fit the description given. Officer Liber watched the men through binoculars; he saw Bryant remove from his trousers three clear plastic bags which contained smaller bags. Appellant Eddy placed two of these large bags in a tin coffee can and hid the can under a nearby trash dumpster, and crossed the street and hid the third bag under another dumpster. The officers retrieved the drugs and arrested appellant and Bryant.

Each of the two bags in the coffee can contained 50 smaller packets and the third large bag contained 46 packets, all containing an off-white chunky substance. They were counted and placed in the drug vault for transport to the State Crime Lab and delivery to expert Sylvia Guice. At trial it was shown that Ms. Guice received the correct number of 146 small packets, but they were in three bags containing 50 packets, 57 packets, and 39 packets. Five packets from each larger bag were tested and found positive for cocaine. Appellant enumerates three errors below. Held:

1. Appellant contends the plastic bags obviously were tampered with, or intermingled with contraband from some other source, and thus the State has not carried its burden to prove this evidence was the same as that seized.

We disagree. As appellant concedes, the State’s burden is to show “ ‘with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ ” (Emphasis supplied.) Toole v. State, 146 Ga. App. 305, 308 (246 SE2d 338). There is no requirement that the exhibit be proved the same with absolute certainty. Sims v. State, 243 Ga. 83, 85 (252 SE2d 501). The police officers seized 146 small packets of a chunky substance in three large bags; the crime lab expert received 146 small packets of a chunky substance in three bags. Five small packets from each large bag were tested and proved positive for cocaine. The State concedes that when the officers counted all the packets, they must have inadvertently returned some packets to the wrong large bag, but there is no evidence of tampering or substitution, and no evidence of a break in the chain of custody. There is no evidence these 146 packets constitute “false” evidence or are not the 146 packets seized from appellant. The evidence of 146 discreet packets in three bags was such that the jury could receive it and determine with reasonable certainty whether it was the same as the 146 packets in three bags seized from appellant. See Jung v. State, 237 Ga. 73, 74 (226 SE2d 599); Katzensky v. State, 228 Ga. 6 (3) (183 SE2d 749).

Decided February 20, 1990.

M. Muffy Blue, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Keith L. Lindsay, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

2. The trial court did not commit harmful error in refusing to charge the principle of “equal access.” Although, as appellant argues, there may have been an “infinite number” of persons with access to these trash dumpsters, appellant was directly observed placing these bags in the places from which they were directly seized. There was no evidence of other persons with access to the bags where they were found immediately after appellant placed them there. The cocaine was arguably in an open, notorious, and equally accessible area but the evidence was of actual possession. The verdict was not based upon a presumption of possession, and therefore the principle of “equal access” was not available to rebut such presumption. Castillo v. State, 166 Ga. App. 817 (305 SE2d 629); see Fears v. State, 169 Ga. App. 172, 174 (312 SE2d 174).

3. We have viewed the evidence in light of the jury’s verdict, and we find it sufficient to convince a rational trier of fact of appellant’s guilt of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2147.
    DIAZ v. THE STATE.
    (391 SE2d 140)
   Birdsong, Judge.

Appellant, Jose Nicolas Diaz, appeals his judgment of conviction of aggravated assault with a deadly weapon and sentence. Appellant enumerates three errors each pertaining either to charges given the jury or to written requests for charges which the trial court declined to give. Held:

1. The trial court gave a patterned instruction on self-defense which virtually mirrored the provisions of OCGA § 16-3-21 (a) & (b). Appellant asserts that the trial court erred in giving this charge as it was not tailored and there was no evidence that appellant attempted to commit, committed or fled after the commission of a felony (other than the offense charged) or evidence that the parties engaged in combat by agreement. We disagree.

This case is distinguishable from Joiner v. State, 163 Ga. App. 521 (295 SE2d 219), cited by appellant. We find the precedent of Bagley v. State, 153 Ga. App. 777 (266 SE2d 804) to be controlling.

In Bagley, supra, we held: “ ‘Even though not every phrase and portion of the Code section be applicable, it is generally held that a new trial will not be granted if the court gave in charge an entire statute or Code provision where a part thereof is applicable even though a part may be inapplicable under the facts in evidence.’ [Cits.] Hence, it was not reversible error for the trial judge to give a charge on Code Ann. § 26-902 (b) [now OCGA § 16-3-21 (b)], parts of which were applicable to the factual situation, even though a portion thereof was not specifically pertinent.”

2. The indictment averred that appellant committed aggravated assault by making an assault upon the named victim “with a knife, a deadly weapon.” The trial court in the charge to the jury inter alia read the indictment and instructed the jury on the elements of assault.

Thereafter the trial court pertinently charged the jury as follows regarding aggravated assault: “A person commits aggravated assault when he assaults another person: with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to, or actually does, result in serious bodily injury. ... If after considering the testimony and evidence presented to you, together with the charge of the [c]ourt, you should find and believe beyond a reasonable doubt that the [defendant . . . did . . . make an assault on the person of [the victim] with the knife, a deadly weapon, you would be authorized to find the [defendant guilty.” (Emphasis supplied.)

Appellant asserts that the trial court erred in charging the court in the above italicized words, as appellant was not charged in the indictment with committing aggravated assault with such an object, device, or instrument, and could not be convicted based on such a finding as it was incumbent on the State to prove that the aggravated assault was committed “with a knife, a deadly weapon.”

The charge of which appellant complains appears to be substantially a recital of the provisions of OCGA § 16-5-21 (a) (2). As above discussed, it is not usually reversible error that an entire Code section or subsection is charged “ ‘ “even though a part of the charge may be inapplicable under the facts in evidence.” ’ ” McBurse v. State, 182 Ga. App. 759 (4) (357 SE2d 144); Bagley, supra. Examining the charge in toto as we are required to do when determining whether charging error has occurred (Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)), we find that error did not occur. Lumpkin v. State, 249 Ga. 834 (295 SE2d 86), cited by appellant, is distinguishable from the facts before us.

Decided February 20, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert E. Statham, Assistant District Attorneys, for appellee.

Moreover, as the jury was read the indictment and was subsequently instructed that they would be authorized to return a verdict of guilty if they found the assault on the person of the victim was made “with the knife, a deadly weapon,” no fair risk of prejudice to appellant exists, it being highly probable the verdict was not the product of a misleading instruction. Compare Walker v. State, 172 Ga. App. 7 (2) (321 SE2d 772); Brown v. State, 159 Ga. App. 901 (3) (285 SE2d 552).

3. Appellant asserts that the trial court erred in failing to give his requested charges 19 and 20. The requested instructions defined circumstances under which an accused could be convicted of a lesser included offense and identified simple battery as a lesser included offense of the crime of aggravated assault, respectively.

Although the circumstances surrounding the incident were in contest, appellant made an admission in court that he had taken a knife from his pocket after the victim struck him and that the victim cut himself on the knife. The victim testified that appellant attacked and cut him with a “buck” knife which locks in place with a blade of four or six inches. He also testified that it was “a razor sharp knife.” The victim’s testimony concerning the type and sharpness of the knife was not controverted, although appellant did testify he used the knife at work to cut out frames and that it was “about that long (indicating).” As appellant’s testimony fails to disclose on the record the length of his knife, that portion of the victim’s testimony concerning this particular matter also remained uncontested. Likewise, it is uncontested that the victim’s cut was caused by the knife.

Examining the trial transcript in its entirety, we find that the offense of simple battery was not reasonably raised by the evidence adduced at trial and was not in issue so as to require instructions. Compare Cameron v. State, 187 Ga. App. 562 (2) (370 SE2d 812); Doss v. State, 166 Ga. App. 361 (304 SE2d 484); Guthrie v. State, 147 Ga. App. 351 (2) (248 SE2d 714).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.