text:
    74207.
    SAMPLES v. MONROE.
    (358 SE2d 273)
   McMurray, Presiding Judge.

This action arises from the unmarried cohabitation of plaintiff and defendant for a period of approximately 14 years. Following the separation of the parties defendant established a residence with another woman.

Plaintiff alleges that during the period of cohabitation (1968-1982) she provided defendant with a residence, food, utilities and “paid all the necessary living expenses” for defendant, based upon the promises of defendant that his earnings would be saved for their mutual benefit. Plaintiff further alleges that the promises and statements of defendant made at the inception and during the course of their cohabitation were intentionally made to deceive plaintiff, resulting in the unjust enrichment of defendant and causing plaintiff to suffer monetary loss and mental pain and suffering. Based on theories of contract and fraud, plaintiff seeks the value of her services rendered defendant, a recovery of one-half of defendant’s savings, exemplary damages, attorney fees, and costs.

Following discovery, the superior court granted defendant’s motion for summary judgment. Plaintiff appeals the grant of summary judgment in favor of defendant. Held:

Insofar as plaintiff’s action is predicated upon contract principles, it is barred by OCGA § 13-8-1, which provides in part that: “A contract to do an immoral or illegal thing is void.” Plaintiff’s deposition acknowledges that sex had always been part of her relationship with defendant, that sex was a part of what she furnished defendant and that defendant probably would not have moved in with her had she indicated to him that she wasn’t going to give him any sex. Plaintiff’s arrangement with defendant is further illustrated by the following excerpt from her deposition: “Q. Alright. Let me see if I’ve got this straight now. When he moved in with you, you told him that you’d render all the services to him that a wife would render to a husband, including sex. A. Yes sir. Q. And including takin’ care of him? A. Yes. Q. If in consideration for that, if he’d save his money and he’d put it into an account where you two would have a nest egg where you could retire early? A. That’s right.” In Georgia, sexual intercourse outside of marriage is a criminal offense. See OCGA § 16-6-18. “It is well settled that neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration [OCGA § 13-8-1]; Wellmaker v. Roberts, 213 Ga. 740 (101 SE2d 712) (1958); Watkins v. Nugen, 118 Ga. 372 (45 SE [260]) (1903).” Rehak v. Mathis, 239 Ga. 541, 543 (238 SE2d 81).

Plaintiff’s reliance on Liles v. Still, 176 Ga. App. 65 (335 SE2d 168), is misplaced as the uncontradicted evidence shows that plaintiffs arrangement with defendant envisioned a meretricious relationship rather than a simple agreement to share living expenses. “A contract founded upon a promise to live in the future in a meretricious state is void. See Watkins v. Nugen, 118 Ga. 375 (5) (45 SE 260) (1903).” Liles v. Still, 176 Ga. App. 65, 66, supra. Additionally, even if some portion of plaintiff’s testimony may be construed as presenting evidence that sex was a collateral aspect of her relationship with defendant, the absence of any explanation of the self-contradictory nature of her testimony would require that it be construed most strongly against her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680).

Decided May 22, 1987

Rehearing denied June 3, 1987.

Joe L. Anderson, for appellant.

Larry Cohran, Fletcher Thompson, for appellee.

Insofar as plaintiffs action is predicated on a theory of fraud and deceit, it must fail. In the case sub judice, plaintiff alleges that she was misled by defendant’s promises that his savings would be used by both of them in the future. However, actionable fraud cannot be based on statements and promises as to future events. See Bentley v. Nat. Bank of Walton County, 175 Ga. App. 732, 733 (1) (334 SE2d 331); Beard v. McDowell, 174 Ga. App. 793, 794 (2) (331 SE2d 104). The trial court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74205.
    BASDEN v. BASDEN.
    (358 SE2d 317)
   Benham, Judge.

Appellant and appellee were married from 1980 until October 11, 1984, when a judgment of divorce was entered. On September 24, 1984, the parties entered into a written settlement agreement, which the trial court incorporated into the divorce judgment. The agreement stated that it settled all questions of division of property. On July 2, 1985, appellant filed suit against her former husband, alleging that he owed her over $21,000 in loans she had made to him. He answered the complaint by denying the allegations and raising as a defense the divorce judgment and settlement agreement as a discharge and satisfaction of all the claims she asserted. Appellee moved for summary judgment on the grounds of res judicata, and the trial court granted appellee’s motion. Appellant appeals, and we affirm.

1. Appellant contends that the trial court erred in granting summary judgment because the prior divorce proceeding in which the parties were involved is not res judicata as to the matters raised by appellant’s complaint and because the agreement entered into by the parties as part of their divorce proceeding has been misinterpreted. We disagree. The September 24, 1984, agreement, which was incorporated into their final divorce decree, stated that it was the intention of the parties to settle all questions of division of property and other property rights; that there were no promises, terms, conditions or obligations other than those contained in the agreement; and that the agreement superseded all previous oral or written communications, representations, or agreements between the parties. The agreement also included a statement that appellant agreed to waive any right to alimony payments to be paid by appellee. Appellant was aware that the monies in dispute were allegedly owed to her at the time of the settlement agreement and divorce proceedings, and the statements therein indicate that the judgment in the alimony and division of property case is res judicata. Prince v. Prince, 147 Ga. App. 686 (250 SE2d 21) (1978). Compare Fletcher v. Fletcher, 143 Ga. App. 404 (2) (238 SE2d 753) (1977), in which a directed verdict on a complaint in trover was reversed because the divorce decree only settled property rights with regard to the parties’ “furnishings,” a term that was not defined in the divorce decree.

2. Appellant also argues that her deposition and affidavit show that the parties agreed orally that the loans in question would not be involved in the divorce proceeding. She cites Cooper v. Vaughan, 81 Ga. App. 330, 338 (58 SE2d 453) (1950), for the proposition that all prior or contemporaneous parol agreements between the same parties are not necessarily merged into a written contract. However, in Cooper, the court said that “ [a] distinct collateral oral agreement, not inconsistent with the written one, is not so merged.” Id. (Emphasis supplied.) The oral agreement appellant seeks to enforce here is inconsistent with the written agreement, since the written agreement clearly states that it superseded all previous oral agreements between the parties. Here, as in Cooper, the appellant is making an “attempt to vary the terms of a written contract by parol testimony and [it] can not be done.” Id. at 339. Appellant’s deposition and affidavit raise no issue of material fact, and the trial court properly granted appellee’s motion for summary judgment.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided June 3, 1987.

Charles F. Reeves, for appellant.

Ernest H. Stanford, Jr., for appellee.


author: McMurray, Presiding Judge.

text:
    74306.
    ROBINSON v. THE STATE.
    (358 SE2d 318)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of burglary and the following evidence, construed most favorably to support the verdict, was adduced at his jury trial: On January 7, 1984, at approximately 10:00 in the morning, Officer Linda Boyles and Officer Tim Robinson of the Clayton County Police Department responded to a report of a man walking in the area of West Fayetteville Road and Flat Shoals Road carrying a shotgun. Officer Boyles arrived first “at West Fayetteville and Creel” and observed defendant carrying what appeared to be a shotgun. Defendant was also observed “dragging a pillow case.” Officer Boyles asked defendant for the gun and upon inspection, the officer discovered that the weapon was a “.22 pellet gun.” Officer Boyles then told defendant why he was stopped and defendant “explained . . . that he had been at a friend’s house and he had been staying there and he had gone back over there to get some of his personal belongings and he was walking back home . . .” Officer Boyles then asked defendant if she could look in the pillowcase. Defendant consented and an unveiling revealed gold chains, “a VCR and some camera equipment.” As defendant emptied the contents of the pillowcase, Officer Robinson arrived at the scene. After the officers observed the items in the pillowcase, defendant described the location of the house where he obtained the articles. Officer Boyles went to the house while Officer Robinson waited at the scene with defendant. Officer Boyles found no one at the house; however, upon further investigation, she discovered evidence of a forced entry. Officer Boyles communicated this information to Officer Robinson and Officer Robinson transported defendant to the house. Because the officers were unable to locate the owner of the house, defendant was not arrested. However, Officer Boyles informed defendant that she was going to hold the articles that defendant was carrying until his information could be confirmed.

The next day, Officer Boyles contacted the victim and discovered that the house described by defendant was the victim’s home.

At trial, the victim testified that she left her home at “about 8:30” during the morning of January 7, 1984, and when she returned, at “[a]bout 12:00,” she discovered that her house had been burglarized. The victim further testified that the articles seized by Officer Boyles from defendant were taken from her home and that defendant did not have authority to enter her home and take the items found in the pillowcase.

Defendant’s sole defense at trial was mistake in identification by Officer Boyles. Defendant testified that he did not commit the burglary and that he had never been to the victim’s house. Upon cross-examination, defendant related his Social Security number. On rebuttal, Officer Boyles testified that on January 7, 1984, while she detained the defendant “on the side of the road” (before going to the victim’s house), she obtained personal information from him which included his Social Security number. The Social Security number obtained by Officer Boyles from the man she stopped “on the side of road” on the morning of the burglary matched defendant’s Social Security number. From this and other evidence adduced at trial, defendant was found guilty of burglary and now appeals. Held:

1. In his first enumeration of error defendant contends the trial court erred in failing to conduct a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), hearing because the Social Security number given by defendant to Officer Boyles on the morning of the burglary amounted to a confession.

“The decision in Jackson v. Denno deals with the voluntariness of a confession . . .” Wilburn v. State, 230 Ga. 675, 679 (2), 680 (198 SE2d 857). “In Watson v. State, 227 Ga. 698, 700 (182 SE2d 446) (1971), [the Supreme Court] noted that a requirement for a hearing on the issue of voluntariness applies only if the evidence presents a fair question as to its voluntariness.” Craver v. State, 246 Ga. 467 (1), 468 (271 SE2d 862). In the case sub judice, no such question was presented.

At the time defendant related his Social Security number to Officer Boyles, defendant was not under arrest, in police custody or suspected of committing a crime. In fact, when Officer Boyles obtained defendant’s Social Security number, the officer was not aware that a crime had been committed and there appeared to be little, if any, probable cause indicating that defendant was involved or had been involved in criminal activity. Under these circumstances, it is apparent that defendant’s Social Security number was not derived by Officer Boyles as a result of coercive inquiry stemming from a reasonable suspicion or on probable cause that a crime had been committed. See Alexander v. State, 166 Ga. App. 233 (2), 234 (303 SE2d 773). On the contrary, the facts in the case sub judice indicate that the information was derived by Officer Boyles as a result of a routine inquiry concerning personal identification during a permissible police-citizen encounter. See King v. State, 161 Ga. App. 382 (1) (288 SE2d 644). Consequently, in the case sub judice, since defendant’s statement regarding his Social Security number was not derived from coercive interrogation which was likely to reveal incriminating information, (see Loftin v. State, 180 Ga. App. 613 (5), 617 (349 SE2d 777)), a fair question as to the voluntary nature of this information did not arise which required a hearing in accordance with Jackson v. Denno, supra. See Gaston v. State, 153 Ga. App. 538, 539 (3) (265 SE2d 866). This enumeration of error is without merit.

Decided June 3, 1987.

John C. Campbell, for appellant.

Robert E. Keller, District Attorney, Debra Benefield, Albert B. Collier, Assistant District Attorneys, for appellee.

2. In his second enumeration of error defendant contends there was not sufficient evidence at trial showing that he was the man stopped by Officer Boyles on January 7, 1984. We do not agree.

Not only did defendant’s Social Security number match the Social Security number of the man stopped by Officer Boyles on the morning of the burglary, Officer Boyles identified defendant from recollection. This was sufficient evidence to sustain the jury’s conclusion as to the defendant’s identification under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    74309.
    GIBSON v. WINN-DIXIE ATLANTA, INC.
    (358 SE2d 320)
   Sognier, Judge.

Mark Gibson, by next friend Donald Gibson, appeals from the trial court’s order granting the motion for summary judgment made by Winn-Dixie Atlanta, Inc. and denying his motion for summary judgment.

1. The record reveals that the trial court, in its May 13, 1985 order denying appellant’s motion to enter default judgment against appellee, found that appellee was substituted by the parties for the corporate defendant originally named in the complaint, Winn-Dixie Stores, Inc., appellee’s parent corporation. No appeal was taken from this order. Appellee was thus the sole corporate defendant in the motions for summary judgment made by the parties and the order on those motions, the subject of this appeal, names appellee as the sole corporate defendant. Thus, we find no merit in appellant’s arguments concerning the status of appellee’s parent corporation, as the record reveals that corporation is not a party to this litigation.

2. Appellant contends the trial court erred by granting summary judgment to appellee and denying his motion for summary judgment. The record reveals that appellant was fired from his job at J. C. Penney for stealing merchandise. It is uncontroverted that appellant then lied about this episode in his work history when he filled out appel-lee’s employment application forms. Appellant had no oral or written contract of employment with appellee and when appellee discovered the discrepancy in appellant’s application forms, it terminated appellant’s employment within appellant’s ninety-day probationary period. However, appellee’s manager, Bruce Vaughn, stated in his affidavit that in order to spare appellant and his parents any embarrassment, he told appellant he was being laid off due to lack of business. Appellant obtained other employment within three days after leaving ap-pellee but stopped by subsequently to ask appellee’s store supervisor, Wayne Deriso, why he was terminated. Deriso told appellant there was something in appellant’s background that indicated he was not the type of employee appellee was looking for. Subsequently, appellant testified in his deposition that an acquaintance of his who still worked for appellee informed him that David Ellis, appellee’s junior assistant manager at the store in question, stated appellant was fired for stealing. Appellant thereupon brought the instant suit against ap-pellee and three non-parties to this appeal, Vaughn, Deriso and Ellis, alleging, inter alia, (a) wrongful discharge, (b) communication of a false reason to appellant for his termination, and (c) defamation.

We affirm the trial court’s grant of summary judgment to appel-lee and the denial of summary judgment to appellant, (a) It is axiomatic that appellant has no cause of action against appellee for the alleged wrongful termination in light of the uncontroverted evidence that there was no employment contract, either written or oral, between the parties. Georgia Power Co. v. Busbin, 242 Ga. 612 (250 SE2d 442) (1978). (b) We need not address appellee’s argument that Georgia does not recognize a cause of action for communicating a false reason to an employee for termination since assuming, arguendo, such a cause of action exists, appellant has failed to show harm resulting from this false communication. It is uncontroverted appellant was employed within three days after leaving appellee by virtue of a previously extended job offer and has subsequently worked for two competitors of appellee’s. Further, there is no evidence that appellant will suffer any future harm in view of the unrebutted affidavit submitted by appellee’s manager that when asked for a reference check, consistent with appellee’s policy they would verify only appellant’s salary and dates of employment. “[I]t is hornbook law that an action in tort requires one to allege a duty, a breach of that duty, and damages proximately flowing from that breach.” (Emphasis supplied.) Green Property Corp. v. O’Callaghan, Saunders &c., 177 Ga. App. 686, 687 (1) (340 SE2d 652) (1986). (c) As to appellant’s defamation allegation, appellant has failed to rebut the affidavit submitted by Ellis that neither the store manager nor anyone else connected with appellee authorized him to make any statements to anyone about appellant’s termination. Thus, in the absence of affirmative evidence that Ellis, as the agent of appellee, was expressly authorized by appellee to speak the defamatory words, appellee is not liable for any damages resulting therefrom. Garren v. Southland Corp., 237 Ga. 484, 485 (228 SE2d 870) (1976).

Decided June 3, 1987.

James W. Bradley, for appellant.

Robert 0. Sands, for appellee.

Our review of the remaining allegations in appellant’s complaint reveals either an absence of legally cognizable causes of action under the facts sub judice or an absence of any genuine issue of material fact concerning those allegations.

Judgment affirmed.

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


text:
    74460.
    PHILLIPS v. THE STATE.
    (358 SE2d 480)
   McMurray, Presiding Judge.

Defendant was convicted of armed robbery, kidnapping and aggravated assault (with intent to rob). He was sentenced to life imprisonment and two consecutive 20-year terms and this appeal followed. Held:

1. In his first enumeration of error, defendant contends the pre-evidentiary charge rendered by the trial court minimized the State’s burden of proof. He also asserts that the trial court intimated an opinion concerning the guilt of defendant in the pre-evidentiary charge. Our examination of the pre-evidentiary charge reveals no such defects. Moreover, a complete and accurate charge was given upon the conclusion of the evidence. Accordingly, we find no error. See Levesque v. State, 172 Ga. App. 760 (324 SE2d 580); Farmer v. State, 180 Ga. App. 720, 721 (1) (350 SE2d 583).

2. One of the State’s witnesses testified that shortly before the crimes were committed a co-defendant said to defendant that “they had to go hit a lick.” The witness averred that the expression “means to take something, steal, to rob, something like that.” Defendant complains that this testimony improperly placed his character in issue. We disagree. The statement tended to establish that defendant was a participant in the crimes for which he was charged. It was not, therefore, inadmissible. Davis v. State, 255 Ga. 598, 606 (9) (340 SE2d 869).

Decided June 3, 1987.

Donald J. Stein, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Chris Jen sen, Joseph J. Drolet, Assistant District Attorneys, for appellee.

3. Defendant contends the trial court erred by allowing a co-defendant’s confession into evidence. He argues that he was implicated improperly by the allowance of the confession.

The co-defendant’s confession was edited so that the names of defendant and a second co-defendant were omitted. The words “another person” were used in place of defendant’s name and the name of the second co-defendant. What’s more, trial counsel registered no objection when the confession was introduced in evidence. Under these circumstances, we find no error. Fortner v. State, 248 Ga. 107, 108 (1) (281 SE2d 533); Brooks v. State, 169 Ga. App. 543, 545 (5) (314 SE2d 115).

4. Next, the defendant contends the trial court erred by permitting a victim to identify him following an on-the-scene, one-on-one identification. No objection was interposed by trial counsel to the victim’s testimony. Accordingly, defendant’s contention cannot be raised on appeal. Urban v. State, 152 Ga. App. 110, 111 (2) (262 SE2d 259).

5. Defendant asserts the trial court erred when it charged the jury on “flight” because the words “if any” or “if proven” were omitted. See in this connection Hale v. State, 135 Ga. App. 625, 626 (2) (218 SE2d 643). At the conclusion of the entire charge the trial court inquired whether there were any objections. Defendant’s trial counsel neither objected nor reserved the right to object later. Accordingly, defendant has waived his right to raise this issue on appeal. Jackson v. State, 246 Ga. 459 (271 SE2d 855); Gaines v. State, 177 Ga. App. 795 (341 SE2d 252).

Was the error so blatantly apparent and prejudicial that it raises a question as to whether defendant was deprived, to some extent, of a fair trial? See Maynard v. State, 171 Ga. App. 605, 606 (2) (320 SE2d 806); OCGA § 5-5-24 (c). We think not. The jury was apprised that flight was a “circumstance not sufficient of itself to establish guilt. . . and at most is only one of a series of circumstances from which guilt might be inferred.” See Hale v. State, 135 Ga. App. 625, supra. Moreover, the evidence of flight in this case was overwhelming. Thus, it cannot be said that the charge on flight was harmful as a matter of law. OCGA § 5-5-24 (c).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Pope, Judge.

text:
    73609.
    REGIONAL PACESETTERS, INC. v. ECKERD DRUGS OF GEORGIA, INC. et al.
    (358 SE2d 481)
   Pope, Judge.

This case arises from the trial court’s grant of appellees’ motion for summary judgment as to appellant’s claim for damages purportedly resulting when appellee Eckerd Drugs of Georgia, Inc. (hereinafter “Eckerd”), as sublessor of premises subleased to appellant, failed to timely exercise its option to extend the master lease. In light of the facts set forth below, we affirm.

The background facts of this case are set forth at length in the previous appellate appearance of this matter, Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777 (300 SE2d 180) (1983). The facts in a nutshell are as follows: Eckerd and Halpern Enterprises, Inc. occupied the positions of tenant and landlord, respectively, under the terms of a master lease dated October 6, 1964. This master lease granted Eckerd the option to renew or extend the lease for three successive five-year terms upon and subject to the same conditions and provisions as provided with respect to the original term, provided Eckerd gave the landlord Halpern written notice of its intention to extend the term “at least thirty (30) days prior to the expiration of the original or any extended term” of the lease. Also, the master lease provided that Eckerd could not sublet the premises without the prior written consent of Halpern. Eckerd sublet the premises to appellant, but no written consent to same was obtained from Halpern.

In the previous appearance of this matter, we held that, in the absence of Halpern’s written consent, the sublease agreement between appellant and Eckerd gave appellant no enforceable rights as to Halpern under the terms of the master lease, notwithstanding appellant’s assertion to the contrary. Thus, appellant’s attempted renewal of the master lease imposed no contractual duty on Halpern to honor same or even to respond to it. 165 Ga. App. at 781. Appellant now argues that the sublease agreement between it and Eckerd obligated Eckerd to exercise the option to extend the master lease. In support of this claim appellant relies on a written agreement between itself and Eckerd modifying their sublease. This modification provided in pertinent part: “It is acknowledged that. . . this instrument is ... a sublease pursuant to and under a master lease. . . . Tenant [appellant] acknowledges receipt of a copy of said master lease, and both Tenant and Landlord [Eckerd] agree that each of them has all the rights, privileges, duties and responsibilities which applied to the Landlord and Tenant, respectively, under the master lease. . . . The parties agree to be bound by all terms and conditions of said master lease that are in conflict with the terms and conditions of this sublease. ...” Appellant contends that by the foregoing language Eckerd granted to it an option to renew the sublease. Assuming arguendo that appellant’s contention has merit, nevertheless, “[a] sublessee is bound by the rights of his lessor; he is charged with notice by implication of every fact affecting the rights of his lessor, and discoverable by examination of his lessor’s lease with the owner; and of every fact with which he by reasonable diligence ought to have become acquainted. [Cit.]” Gulden v. Newberry Wrecker Svc., 154 Ga. App. 130, 132 (267 SE2d 763) (1980). Perusal of the master lease in the case at bar discloses that Eckerd had the option to extend or renew the master lease; there is no language compelling extension or renewal. Yet, despite this absence of a duty on Eckerd to extend or renew, the sublease agreement likewise contains no express language imposing an obligation on Eckerd to exercise the option.

However, appellant contends that an agreement by Eckerd to renew the master lease can be implied from the cited language of the sublease. “In deciding whether to imply promises or duties to the terms of a contract, the introduction of an implied term into the contract of the parties . . . can only be justified when the implied term is not inconsistent with some express term of the contract and where there arises from the language of the contract itself, and the circumstances under which it was entered into, an inference that it is absolutely necessary to introduce the term to effectuate the intention of the parties.” (Citations, punctuation and emphasis omitted.) Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 149 (304 SE2d 365) (1983). “[W]hatever may be fairly implied by the terms of the agreement is in the eyes of the law embodied in the agreement. One who undertakes to accomplish a certain result agrees by implication to do everything to accomplish the result intended by the parties.” (Punctuation omitted.) Orkin Exterminating Co. v. Buchanan, 108 Ga. App. 449, 452 (133 SE2d 635) (1963). The sublease agreement between appellant and Eckerd is entirely devoid of any reference to extension or renewal of same. The general reference in the sublease to the parties’ rights and obligations under the master lease provides no indicia of their intent in this regard. We thus discern no intention of the parties one way or the other concerning extension or renewal of the sublease. This being the case, we can imply no duty or obligation on Eckerd in this regard.

In light of the circumstances in this case, we find persuasive the holding of the Court of Appeals of New York in Minister &c. of the Reformed &c. Church v. 198 Broadway, Inc., 59 NY2d 170, 173 (451 NE2d 164, 464 NYS2d 406, 39 ALR4th 818) (1983): “Where a sublease is expressly made subject to the terms of the master lease, the subtenant has no legal right to compel the tenant to exercise an option granted the latter for renewal of the master lease of the entire premises ... in order to enable the subtenant to exercise an option granted it for renewal of its sublease ... in the absence of either proof of an agreement on the part of the tenant to exercise its option or proof of special circumstances entitling the subtenant to such relief.” Compare Gilman v. Nemetz, 203 Cal.App.2d 81 (21 Cal. Rptr. 317, 94 ALR2d 1332) (1962) (sublessor liable for breach of express covenant to exercise his option to renew the master lease). See generally Annot., 39 ALR4th 824 (1985). Appellant cites no “special circumstances” entitling it to relief in this case. Therefore, in the absence of an agreement by Eckerd to exercise the option to extend or renew, summary judgment was properly entered in favor of appellees. Accord Futterman v. South African Airways, 126 Misc.2d 90 (481 NYS2d 283) (1984).

Decided June 4, 1987.

Taylor W. Jones, Timothy R. Brennan, for appellant.

Patricia B. Cunningham, Alfred G. Adams, Jr., for appellees.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: Beasley, Judge.

text:
    73647.
    YARBOROUGH v. THE STATE.
    (358 SE2d 484)
   Beasley, Judge.

Defendant, charged in a two-count indictment with murder and voluntary manslaughter, was convicted of voluntary manslaughter (OCGA § 16-5-2), for the shooting death of her husband.

1. The first error claimed is the denial of a new trial sought on the general grounds. The question is whether a new trial was demanded by law because of insufficience to sustain a conviction. In so considering, we view all of the evidence in the light most favorable to the verdict. Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985). We also have the added persuasiveness of the “thirteenth juror’s” by way of the trial court’s discretion based denial of the motion for new trial. Barnes v. State, 175 Ga. App. 621, 623 (1) (334 SE2d 205); rev’d in part on other grounds 255 Ga. 396 (339 SE2d 229) (1986).

Defendant admitted to two neighbors and to the police when they arrived that she had shot her husband with a handgun. The issue was whether she shot him with criminal intent or whether it was in self-defense.

Defendant had repeatedly threatened to kill her husband if she ever caught him with another woman. On the evening of the shooting, defendant had seen the truck driven by her husband parked at a woman’s apartment. This woman denied he was there, although he was. Defendant then found a young man who helped her move the truck back to their neighborhood, where she parked it at a neighbor’s house.

When her husband had not returned home by 3:00 a.m., defendant left the house and went to a phone where she called his foster mother. When she returned home, defendant said she found her husband sitting on the couch with a shotgun across his lap demanding to know where the truck was. She then went into the kitchen. She said he followed her, she heard the shotgun “click,” she grabbed the gun, pointed it over her shoulder and it just went off. She used her left hand, although she is right-handed. The victim was struck in the area of the left cheek and lower temple.

Defendant argues that since her hypothesis of self-defense is as reasonable as the theory put forth by the state, there is insufficient evidence to uphold the verdict as a matter of law. OCGA § 24-4-6. Although the court charged on OCGA § 24-4-6, it was not required to do so, as this case was not entirely circumstantial. Jones v. State, 243 Ga. 584 (255 SE2d 702) (1979); Griffith v. State, 172 Ga. App. 255, 259 (2) (322 SE2d 921) (1984); Galloway v. State, 165 Ga. App. 536 (1) (301 SE2d 894) (1983). Defendant admitted the shooting, although she contended self-defense, and this alone takes the case out of the “entirely circumstantial” category. Stewart v. State, 163 Ga. App. 735, 737 (1) (295 SE2d 112) (1982). The only question thus becomes whether there was sufficient evidence pursuant to Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence was sufficient to enable the jury to conclude that defendant acted solely as a result of sudden, violent and irresistible passion resulting from serious provocation, so as to authorize the manslaughter conviction. It did not demand a verdict that she acted in self-defense. Jackson v. Virginia, supra; Hatcher v. State, 175 Ga. App. 768 (334 SE2d 709) (1985).

2. Defendant was charged in a two-count indictment for murder and voluntary manslaughter. In her enumerations # 2, 3, & 4, defendant complains that the court did not require the return of a written verdict as to both counts, and that the court incorrectly advised the jury of the total number of possible verdicts available to them, contending there were eight instead of six. The record reflects that the court charged the jury that, although the defendant was indicted in two counts, she could be found guilty of only one charge, which is correct and with which defendant agrees. OCGA §§ 16-1-6; 16-1-7. The court also charged the jury on voluntary manslaughter and both types of involuntary manslaughter; carefully instructing them that they should consider the charges seriatim and that they could find her guilty of only one of the described crimes or not guilty of all. With this, defendant does not quarrel. Her complaint is that the court, while sending out several forms of verdict for the jury’s consideration did not require that a written “not guilty” of murder be returned. Since, however, the return of a verdict of guilty of voluntary manslaughter in these circumstances is an acquittal of the charge of murder, we see no merit to defendant’s contention in this regard. Cook v. State, 56 Ga. App. 375 (2) (192 SE 631) (1937); Goldsmith o. State, 54 Ga. App. 268, 272 (187 SE 694) (1936). The six possible verdicts, as instructed, necessarily included the two others because they were mutually exclusive. The court was not required to complicate the choice of verdicts by redundancy.

Defendant also contends that the court erred in instructing that the verdict could be any one of four possible verdicts, contending that there could have been any one of six. It is apparent from the charge complained of that what the judge was indicating was that there were four possible crimes which were to be considered, i.e., (1) murder, (2) voluntary manslaughter, (3) involuntary manslaughter (by unlawful act), and (4) involuntary manslaughter (by lawful act done in unlawful manner). The actual return of the verdict was not transcribed. Since the verdict form in the record is fully typed and nothing contrary appears in the record, we must assume that all were similar and that the jury was provided with eight forms encompassing all of the possible verdicts upon which they were instructed. See Sanders v. State, 179 Ga. App. 168, 169 (345 SE2d 677) (1986); Baugh v. Robinson, 179 Ga. App. 571, 572 (346 SE2d 918) (1986).

3. In the last enumeration, defendant complains of the trial court’s refusal to allow her counsel to use and display during his opening statement the shotgun shell found under her husband’s body. The prosecutor objected on the ground that the evidence was not yet admitted and might be objectionable. “[T]he trial court has a sound discretion to control the content of the opening statement of either party, particularly with regard to matters of questionable admissibility. [Cits.]” Sims v. State, 251 Ga. 877, 879 (3) (311 SE2d 161) (1984). The court ruled that defendant could not use the shell but could use the shotgun, although we are unable to tell if she did so, since the opening statements were not transcribed. Under these circumstances, there was no abuse of discretion. Osborne v. State, 177 Ga. App. 408 (339 SE2d 627) (1985); Mathis v. State, 171 Ga. App. 620, 621 (2) (320 SE2d 861) (1984).

Decided June 4, 1987.

Donald E. Manning, John W. Davis, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The number sent is not apparent from the record, as the court refers both to 4 and 5 forms, and the only one included in the record is the one of guilty to count 2 actually returned by the jury.


text:
    73674.
    HENDRIX v. SCHRECENGOST.
    (358 SE2d 486)
   Pope, Judge.

Defendant Hendrix appeals from the trial court’s denial of his motion for summary judgment on plaintiff’s medical malpractice claim. On June 4, 1979 defendant Hendrix performed an abdominal hysterectomy on plaintiff Schrecengost. During surgery, defendant visually examined the excised tissue and confirmed he had removed the entire uterus and cervix. This conclusion was further confirmed by the written pathology report. After surgery, plaintiff continued to complain of irregular bleeding and was examined by defendant on four occasions between July 17, 1979 and February 20, 1980. On each occasion, defendant found no evidence of cervical tissue. In his opinion, the bleeding originated from the internal surgical scar which had not entirely healed. On three occasions the scar was treated with silver nitrate which afforded the patient temporary relief from her symptoms. Although the symptoms reappeared after her last treatment on February 20, 1980, she did not seek any further medical treatment from defendant at that time. In fact, correspondence from plaintiff to defendant after the February 1980 office visit indicates she had lost faith in the defendant, implied she believed her complications were his fault and indicated if she needed further medical attention she would go elsewhere. Nevertheless, she did not seek a second opinion until August 7, 1981, at which time she was told she still had cervical tissue remaining. On March 23, 1982 she was examined again by defendant and, again, he saw no evidence of cervical tissue. Finally on June 23, 1982 she underwent a second surgical procedure in which cervical tissue the size of a normal cervix was removed. Plaintiff claims her complications and the necessity of the second surgical procedure were caused by defendant’s failure to remove the entire cervix in the first procedure.

Plaintiff filed her medical malpractice claim against defendant on June 29, 1983, more than three years after the allegedly negligent surgery was performed by defendant on June 4, 1979. Plaintiff claims the applicable statute of limitation was tolled by defendant’s fraudulent failure to inform her that she still had a portion of her cervix present. We reverse the trial court’s denial of defendant’s motion for summary judgment.

1. The applicable statute of limitation requires plaintiff’s claim to be brought within two years after the date on which the negligent act occurred. Ga. L. 1976, p. 1363, § 1 (former Code Ann. § 3-1102); amended Ga. L. 1985, p. 556, § 1 (now OCGA § 9-3-71). However, if the defendant is “guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiffs discovery of the fraud.” OCGA § 9-3-96. This is the case in medical malpractice suits. Wade v. Thomasville Orthopedic Clinic, 167 Ga. App. 278 (2) (306 SE2d 366) (1983). The confidential relationship between doctor and patient creates a duty to inform the patient of his or her condition. “Failure to fulfill this duty would constitute fraud, which would operate to toll the statute of [limitation].” Id. at 281.

Plaintiff claims she was deterred from learning the truth of her condition by defendant’s knowing failure to inform her that she had undergone an incomplete hysterectomy. However, she has failed to show any inference that defendant knew the cervix or any part of it remained. At best, plaintiff has shown defendant failed to detect the remaining tissue. “While this failure may be evidence of negligence, it is not evidence of fraud which would toll the statute of limitation.” Shved v. Daly, 174 Ga. App. 209, 211 (329 SE2d 536) (1985). A patient must present evidence of a known failure to reveal negligence in order to show fraud. See Bray v. Dixon, 176 Ga. App. 895 (338 SE2d 872) (1985). Plaintiff presented no evidence the tissue was visible and discernible at anytime before she sought a second opinion some two years after the surgery. In fact, plaintiff’s own expert witness testified the tissue he observed on August 7, 1981 grew and regenerated itself over time and would have been much smaller in mass when defendant examined her seventeen months earlier. Defendant denied ever observing cervical tissue in his several post-operative examinations of the plaintiff. His assumption that all tissue had been removed was supported by an independent pathology report. “In the case at bar, there is absolutely nothing from which we can make any inference that [the defendant doctor] had any knowledge of improper conduct on his part or that he tried to cover up such conduct in any way.” Gillis v. Palmer, 178 Ga. App. 608, 610 (344 SE2d 446) (1986). In the Gillis case, the fact that the doctor had assured the patient “there was no problem” drew a dissenting opinion over whether sufficient evidence existed to show the patient had been deterred from seeking medical treatment. In the case sub judice, no such factual issue exists. In fact, defendant repeatedly informed plaintiff her symptoms arose from complications in the healing process after surgery. A mere misdiagnosis “is insufficient to raise an issue of fraud. . . .” Johnson v. Gamwell, 165 Ga. App. 425, 427 (301 SE2d 492) (1983).

Decided June 4, 1987.

Hunter S. Allen, Jr., William L. Ballard, Dennis A. Elíseo, for appellant.

L. Prentice Eager III, John W. Henderson, Jr., for appellee.

“If facts do exist which would toll the statute of [limitation, plaintiff] has the burden of setting forth and supporting these facts, [cit.]” Wade v. Thomasville Orthopedic Clinic, supra at 281. We find the defendant has pierced plaintiff’s mere allegation of fraud and is entitled to summary judgment.

2. Even if evidence of fraud exists, the statute of limitation is not tolled when the plaintiff knew all facts necessary to show malpractice before the running of the period of limitation. See Hamilton v. Mitchell, 165 Ga. App. 717 (302 SE2d 589) (1983). In this case, the repeated recurrence of symptoms of medical complications prior to the running of the statute of limitation should have put plaintiff on notice of possible negligent medical treatment or misdiagnosis of the condition. In fact, plaintiff expressed her dissatisfaction with the medical treatment she received from defendant in a letter to the defendant just eight months after surgery. The statute of limitation is not tolled where “[t]here is nothing in the record to suggest that [plaintiff] was prevented from learning of [the doctor’s] alleged negligence. . . Shved v. Daly, supra at 211.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74070.
    CARRUTH v. THE STATE.
    (358 SE2d 610)
   Benham, Judge.

Appellant was indicted for and convicted of the offense of forgery in the first degree.

In asserting the general grounds, appellant contends that the State failed to prove (1) that the writing was fictitious; (2) that it was made without authority; and (3) that he intended to defraud. We do not agree.

“A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.” OCGA § 16-9-1 (a).

Decided April 20, 1987.

Franklin H. Thornton, Kenneth L. Gordon, for appellant.

Arthur E. Mallory III, District Attorney, Agnes T. McCabe, Peter Skandalakis, Assistant District Attorneys, for appellee.

Appellant stipulated that he knowingly possessed a particular check drawn on the account of his former employers, and that he uttered the check by depositing it in his account. He was identified as the person charged with the offense. Sam Snider, whose name appeared on the check as one of the signators, testified that it was not his signature on the check, that he did not authorize anyone to sign the check on his behalf, and that the signature purporting to be that of his brother, Ronald E. Snider, was not. Snider also denied any agreement, as sworn to by appellant in explaining the purpose for the check, to compensate appellant for producing a computer program. The company auditor who examined the check testified that the signature of Sam Snider thereon did not look like his signature and that the check appeared “irregular.” The jury was able to examine exemplars of Sam Snider’s handwritten signature.

Criminal intent is a question of fact which can seldom be proved by direct evidence. OCGA § 16-2-6; Johnson v. State, 158 Ga. App. 183 (1) (279 SE2d 483) (1981). We find the circumstances in this case sufficient to authorize a rational trier of fact to determine beyond a reasonable doubt that appellant, with the requisite intent to defraud, possessed and uttered a check purportedly made by another. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Walden v. State, 173 Ga. App. 478 (1) (326 SE2d 838) (1985).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    73691.
    WILSON v. WILLARD.
    (358 SE2d 859)
   Pope, Judge.

This is an appeal from the trial court’s de novo hearing in which the court granted appellee Willard’s petition for letters of administration on the estate of Jackie Wilson. The decedent, Jackie Wilson, was a renowned singer and entertainer. Wilson suffered a heart attack and stroke while performing in New Jersey on September 29, 1975 and remained comatose and incompetent from that date until his death on January 21, 1984. Appellant, decedent’s legally separated wife, was appointed guardian of the person of Jackie Wilson in 1978 by the Surrogate of Camden County, New Jersey. Shortly after his death, appellant was granted letters of administration on the estate of Jackie Wilson by the appropriate New Jersey court.

In 1968 the decedent entered into a separation agreement with appellant which included an agreement to pay permanent alimony. Even though Wilson and the appellant were never legally divorced, in 1971 Wilson attempted to enter into a ceremonial marriage with Len-nie B. Wilson. From 1971 to the date of his stroke, Jackie Wilson lived with Lennie B. Wilson and fathered two children from that relationship. From 1972 until the date of his stroke, the decedent resided with Lennie B. Wilson in Georgia. Appellee was retained by Lennie B. Wilson, acting on behalf of her two minor children, to petition the Probate Court of Cobb County for letters of administration on the estate of Jackie Wilson. Appellant filed a caveat to that petition since letters of administration had already been issued to her in the state of New Jersey.

1. Appellant maintains that the Georgia court is required by Article IV, Section I, of the United States Constitution to grant full faith and credit to the order of the New Jersey Court awarding letters of administration to appellant. The trial court based its award upon a finding that at the time the decedent suffered his disabling stroke, and therefore at the time of his death, the decedent was domiciled in Georgia and not in New Jersey. In determining the issue of domicile, the Georgia court was not constrained by the previous order of the New Jersey court. See Williams v. North Carolina, 325 U. S. 226 (65 SC 1092, 89 LE 1577) (1945); Tilt v. Kelsey, 207 U. S. 43 (28 SC 1, 52 LE 95) (1907). Since the New Jersey order did not recite any finding of domicile, one is not to be presumed. Thormann v. Frame, 176 U. S. 350 (20 SC 446, 44 LE 500) (1900). Even if a finding of domicile is implied by the New Jersey order, the Full Faith and Credit Clause of the United States Constitution allows a state in disposing of local assets of a decedent to determine the question of domicile anew, even if the re-examination of the issue results in conflicting decisions. Riley v. New York Trust Co., 315 U. S. 343 (62 SC 608, 86 LE 885) (1942). The New Jersey proceeding “amounted to no more than an ex parte application for letters of administration” which would have res judi-cata effect only as an in rem judgment applying to property within that state. Thormann v. Frame, supra at 354. The trial court expressly recognized the jurisdiction and governing authority of the New Jersey court for the limited purpose of administering those assets of the estate found in the state of New Jersey. However, the Georgia court was not required to give full faith and credit to any findings or presumptions made by the New Jersey court on the issue of domicile.

2. Appellant maintains the trial court erred in finding the decedent entered into a common law marriage with Lennie B. Wilson which, even though void because of his inability to marry, would serve to legitimate the children of that relationship. Conflicting testimony was presented on the factual issue of whether the parties held themselves out to be married and exhibited an intent to be married so as to establish a marriage at common law. We find sufficient evidence existed to support the trial court’s finding that the decedent entered into a void common law marriage. Therefore, this finding will not be disturbed. See Askew v. Askew, 212 Ga. 46 (2) (90 SE2d 409) (1955); Smith’s Properties v. Munford, Inc., 165 Ga. App. 204 (1) (300 SE2d 3) (1983).

3. Likewise, we will not disturb the trial court’s finding that the decedent was domiciled in Georgia at the time of his death. Sufficient evidence existed for the trial court to find decedent was a resident of Georgia at the time of his stroke.

The court was justified in concluding that once the decedent became ill, he lacked the mental capacity to change his domicile. See Sorrells v. Sorrells, 247 Ga. 9 (274 SE2d 314) (1981). Once the decedent became mentally incapacitated, appellant, a resident of New York, was appointed as his guardian. Normally, a person under guardianship is deemed to have the same domicile as the guardian. OCGA § 19-2-5. However, “[a] guardian cannot change the domicile of his ward by a change of his own domicile or in any other fashion so as to interfere with the rules of inheritance ... of third persons.” OCGA § 19-2-6 (b). We uphold the trial court’s finding that the decedent remained a resident and domiciliary of the state of Georgia until the date of his death.

4. The trial court properly concluded that appellant had no interest as an heir to the decedent’s estate. The evidence shows the appellant entered into a separation agreement with the decedent which included an agreement for the payment of permanent alimony. “After permanent alimony is granted, upon the death of the party liable for the alimony the other party shall not be entitled to any further interest in the estate of the deceased party by virtue of the marriage contract between the parties. . . .” OCGA § 19-6-7; McKie v. McKie, 213 Ga. 582 (1) (100 SE2d 580) (1957). This ruling would not affect appellant’s status as a creditor of the estate, if such can be shown.

5. Finally, appellant maintains the trial court erred in appointing appellee as administrator of the estate when the surviving spouse and a majority of the heirs at law objected to said appointment and expressed a preference for the appellant. According to the statutory rules for granting letters of administration, the surviving spouse shall be first entitled. OCGA § 53-6-24 (1) (Code 1933, § 113-1202 (1); Ga. L. 1979, p. 1325, § 1; amended Ga. L. 1986, p. 200, § 1). However, as noted in Division 4, appellant has waived her right to inherit as a surviving spouse by entering into an agreement for permanent alimony. Pursuant to OCGA § 53-6-24 (3), the person selected in writing by a majority of those interested in the distribution of the estate shall be appointed. In this case a majority of the heirs have expressed a preference for the appellant. Nevertheless, appellant is not qualified to serve as administrator of the estate since she is not a resident of this state and is not an heir at law. See OCGA § 53-6-23. The heirs to the estate may select a disinterested person as administrator. OCGA § 53-6-24 (6). In this case, two of decedent’s minor children, by and through their natural guardian, have expressed a preference for the appointment of the appellee. Therefore, we uphold the trial court’s denial of appellant’s petition to administer the estate and the grant of letters of administration to appellee.

Decided June 4, 1987.

Benjamin W. Spaulding, for appellant.

Wendell K. Willard, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    73699.
    BROWN v. SHIVER.
    (358 SE2d 862)
   Pope, Judge.

This appeal arises out of an automobile collision which occurred when appellant Brown drove her vehicle into the rear of appellee Shiver’s vehicle, which had stalled on a bridge approximately ten to fourteen minutes earlier. As Brown crossed the bridge she was driving approximately two car lengths behind a large vehicle which blocked her view of the road ahead. She first saw the stalled car when the vehicle ahead of her moved to the left lane to pass it. At that time, Brown was three to four car lengths from the stalled car but was unable to stop before striking it. A complaint was filed against both Brown and Shiver by the injured passenger in Brown’s car. The original plaintiff dismissed her claim, leaving only Brown’s cross-claim against Shiver. The trial court granted summary judgment to Shiver (hereinafter “defendant”) on the cross-claim and Brown (hereinafter “plaintiff”) appeals.

1. In her first ten enumerations of error, plaintiff asserts the trial court erred in resolving various factual issues which should have been determined by a jury and in granting summary judgment to defendant when the facts created an issue of negligence. We disagree. The undisputed facts of the case show defendant’s car was disabled and defendant had made reasonable efforts to start the car to no avail. While the Uniform Rules of the Road prohibit stopping or parking on a bridge, an exception to that prohibition is made to “the driver of any vehicle which is disabled while on the roadway in such a manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.” OCGA § 40-6-204. Therefore, defendant was not in violation of any statute and no evidence existed by which a jury could find him negligent per se.

Even though the presence of the stalled car may have created a hazard for other drivers, the undisputed evidence in this case creates no issue of negligence on the part of the defendant for creating the hazard. Just prior to the accident, defendant had retrieved his car from a repair shop where extensive repairs and reconditioning had been performed. Defendant had no prior notice that the car was likely to stall.

Neither is there any evidence the collision was proximately caused by defendant’s alleged failure to warn plaintiff of the hazard created by his stalled car. Plaintiff testified she could not see the stalled car until the large vehicle immediately in front of her swerved to avoid striking it. Upon seeing the stalled car she applied her brakes but was unable to avoid the collision. Under this set of facts, the disputed issue of whether defendant had turned on his car’s flashing hazard lights creates no genuine issue of negligence for failure to warn because the facts demand the conclusion that plaintiff could not have seen the warning in time to avoid the collision. Moreover, plaintiff was under a duty to keep a proper lookout for potential hazards. “A driver has no right to assume that the road ahead of him is clear of traffic, and it is his duty to maintain a diligent outlook ahead.” Wallace v. Yarbrough, 155 Ga. App. 184, 185 (270 SE2d 357) (1980); Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469) (1961); Kirkland v. Wheeler, 84 Ga. App. 352 (1) (66 SE2d 348) (1951).

2. In her final three enumerations of error, plaintiff takes exception to the procedure whereby defendant’s motion for summary judgment was heard and claims she was not afforded proper and sufficient notice of the hearing. Defendant’s motion was filed on March 14, 1986 and, after obtaining an extension of time to file a response, plaintiff filed a brief in opposition to said motion on May 1, 1986. In this case, neither party requested an oral hearing on the motion and no rule nisi was served. Notice of a hearing date was mailed by the court to the attorneys of record on August 5, 1986, and oral argument was heard August 8, 1986. The trial court offered to change the position of the case on the upcoming trial calendar or to continue the case to the next available trial calendar to accommodate plaintiff’s request for additional time to prepare for the hearing, but plaintiff declined. We find no error in the procedure by which the trial court heard defendant’s motion for summary judgment.

Decided June 4, 1987.

Randolph H. Phillips, for appellant.

Terry J. Marlowe, Clayton Jones, Jr., for appellee.

Plaintiff argues she was entitled, by Section 6 (d) of the Civil Practice Act (hereinafter “CPA”), to notice of the hearing not later than five days before the time specified for the hearing. Section 6 (d) of the CPA governs the hearing of motions in general, except those for which “a different period is fixed by this chapter. . . In fact, it is Section 56 (c) of the CPA which specifically governs the procedure for hearing a motion for summary judgment. Section 56 (c) allows the party opposing a motion for summary judgment at least thirty days to respond before the motion is heard. “We view the purpose of the 30-day waiting period required by CPA § 56 (c) as placing the opposing party on notice as to the material relied upon by the movant in support of his motion so that he might have sufficient opportunity to prepare his response.” Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 449 (278 SE2d 40) (1981). The hearing referred to in Section 56 (c) simply means the opportunity to respond. “ ‘If the adverse party is given this opportunity, then he has been heard within the meaning of [Section] 56.’ Kibort v. Hampton, 538 F2d 90, 91 (5th Cir. 1976).” Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 737 (350 SE2d 265) (1986). Once the opposing party has been allowed the statutory period to respond, the CPA does not require any specific period of notice be given before oral argument will be heard. Under the circumstances of the case at hand, we find reasonable notice of the oral argument was given by the court.

We find no merit in plaintiff’s argument that the court violated Rule 6.6 of the Uniform State Court Rules when it offered to remove the case from the trial calendar in order to accommodate plaintiff’s request to reschedule the motion hearing. Rule 6.6 prohibits the continuance of a trial when there has been delay in filing a motion for summary judgment. Defendant’s motion was filed almost five months before the hearing date and in no way delayed the trial of the case.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    73852.
    RUSSELL v. THE STATE.
    (358 SE2d 631)
   Pope, Judge.

Cantino Russell brings this appeal from his conviction and sentence of armed robbery (OCGA § 16-8-41) and possession of a firearm during the commission of a felony (OCGA § 16-11-106). Held:

1. Appellant first enumerates as error the denial of his motion in limine which sought to preclude the introduction into evidence of an oral, in-custody statement made to police. The basis of this motion was the State’s alleged noncompliance with the discovery provisions of OCGA § 17-7-210. As is pertinent here, the record discloses that appellant was arraigned on April 4, 1986. At that time defense counsel was permitted to review the State’s file, which included appellant’s oral, in-custody statement reduced to writing. On April 14, 1986 appellant made a proper and timely demand for discovery pursuant to OCGA § 17-7-210. The State responded to the motion on May 6, seven days before trial.

In light of the State’s failure to furnish a written copy of appellant’s oral, in-custody statement upon request at least ten days prior to trial, the trial court erred in denying appellant’s motion in limine. Walls v. State, 169 Ga. App. 80 (1) (311 SE2d 243) (1983). We now turn to the question of whether this error was harmful to appellant so as to require reversal of his conviction and sentence.

The evidence showed that the victim positively identified appellant as the perpetrator of the crimes. Appellant accosted the victim with a loaded handgun and demanded money and car keys. The victim surrendered the car keys, and appellant fled in the victim’s car. The victim immediately reported the robbery to the police, who a short time later spotted appellant in the victim’s car and gave chase. Following an extended, high-speed chase, appellant abandoned the car and fled on foot. The police pursued appellant and apprehended him attempting to hide behind a bush. Appellant presented no evidence in his defense.

In light of the foregoing facts of record, we find it highly probable that the error here did not contribute to the verdict. “This is a plain and simple case of the evidence of the appellant’s guilt, exclusive of the custodial statement, being overwhelming. Accordingly, the [S]tate’s failure to [timely] provide the appellant with a [written copy of his] . . . in-custody statement was harmless error.” Dickey v. State, 179 Ga. App. 383, 385 (346 SE2d 864) (1986). See Talley v. State, 251 Ga. 42 (302 SE2d 355) (1983); Wallin v. State, 248 Ga. 29 (5) (279 SE2d 687) (1981).

2. Appellant’s remaining enumeration of error challenges the trial court’s refusal to give his requested charge on theft by taking. However, “[i]t is clear from the record that there was no evidence to support a charge on theft by taking. The victim testified that [the keys to his car were taken at gun point.] The appellant did not testify. . . . Appellant’s reliance upon Hensley v. State, 228 Ga. 501 (186 SE2d 729) (1972), is misplaced. While the defendants in that case denied taking the victim’s property while holding him at knife point, they did admit taking his property, and it was this admission that authorized a conviction of theft by taking.” Seawright v. State, 170 Ga. App. 58 (316 SE2d 168) (1984). Appellant’s in-custody statement contained no comparable admission. Thus, “where the evidence shows completion of the greater [offense], as here, it is not necessary for the court to charge on a lesser included offense. [Cits.]” Hambrick v. State, 174 Ga. App. 444, 447 (330 SE2d 383) (1985). Accord Jacobs v. State, 137 Ga. App. 592 (4) (224 SE2d 462) (1976); Timley v. State, 134 Ga. App. 727 (215 SE2d 735) (1975).

Decided June 4, 1987.

Drew R. Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Joseph J. Drolet, Paul Howard, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: Carley, Judge.

text:
    73971.
    ARNOLD v. ECKERD DRUGS OF GEORGIA, INC.
    (358 SE2d 632)
   Carley, Judge.

Appellant-plaintiff sued appellee-defendant, alleging claims for false arrest and malicious prosecution. The trial court granted appel-lee’s motion for summary judgment and appellant appeals.

Notwithstanding the trial court’s written findings denominating certain facts as undisputed, we have conducted our own review of the record. When the evidence is construed most strongly in appellant’s favor, the material facts are as follows: After making purchases in ap-pellee’s store, appellant attempted to leave the premises. Appellee had posted notice of its utilization of an antishoplifting device. See OCGA § 51-7-61 (c). As she approached the antishoplifting device, the alarm sounded. Appellant immediately realized why the alarm had been activated. She had mistakenly put an item from appellee’s store in her pocket and had then forgotten to pay for it. That item was a pen. While appellee’s cashier searched appellant’s package to determine whether there were any undecoded items among those that appellant had bought, appellant walked across the store to a magazine rack. After leafing through a magazine for a few minutes, she removed the pen from her pocket and placed it on a candy rack. Appellee’s store manager had observed appellant’s behavior after the an-tishoplifting alarm had sounded. Appellant was arrested and charged with shoplifting, notwithstanding her after-the-fact explanation that she had simply forgotten about the pen and had acted surreptitiously to place it on the candy rack only because she was upset and embarrassed, not wanting anyone to think that she was a shoplifter. After a jury acquitted appellant of the criminal charge of shoplifting, she brought this civil action.

Appellant contends that the trial court erred in granting summary judgment because the question of the existence of probable cause for her arrest and prosecution is a jury issue. “The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court. [Cits.]” Hearn v. Batchelor, 47 Ga. App. 213, 214 (3) (170 SE 203) (1933). “The material facts in this case were essentially undisputed. Therefore, whether or not probable cause existed was for determination by the court. [Cit.]” Melton v. LaCalamito, 158 Ga. App. 820, 823 (2b) (282 SE2d 393) (1981). See also Abernathy v. Dover, 139 Ga. App. 323 (228 SE2d 359) (1976); Fisher v. Kentucky Fried Chicken, 175 Ga. App. 542 (333 SE2d 877) (1985).

Contrary to appellant’s assertions, the evidence shows that it was not the mere activation of the automatic alarm that provided appellee with probable cause to have appellant arrested arid prosecuted for shoplifting. The activation of the alarm provided reasonable cause to detain appellant while making an inquiry into the circumstances thereof. OCGA § 51-7-61 (b). While appellant was so detained, she was observed to remove from her pocket and then to place on a rack an item of appellee’s merchandise for which she had not paid and with which she had attempted to leave the store. These observations of appellant’s activities constituted a visual “inquiry into the circumstances surrounding the activation of the [antishoplifting] device.” OCGA § 51-7-61 (b). Although appellant gave an exculpatory explanation for her activation of the device and her subsequent actions, it was not offered until after she had been observed removing the un-purchased merchandise from her pocket and returning it to a shelf. However innocent appellant’s intentions may have been, her actions were highly suspicious and she does not deny that she did have the merchandise on her person and that she did attempt to return it under suspicious circumstances. Compare Tomblin v. S. S. Kresge Co., 132 Ga. App. 212 (207 SE2d 693) (1974); United States Shoe Corp. v. Jones, 149 Ga. App. 595 (255 SE2d 73) (1979). Appellant’s exculpatory explanation of her admitted actions was not capable of independent verification. Her guilt or innocence depended entirely upon the credibility of her denial of any intent to steal the merchandise. Compare Colonial Stores v. Fishel, 160 Ga. App. 739 (288 SE2d 21) (1981). If there was probable cause to believe that appellant was shoplifting, appellee cannot be held civilly liable for requiring that a jury in a criminal proceeding determine the credibility of her explanation. See OCGA § 51-7-60. Under the circumstances, the trial court did not err in concluding that probable cause existed for believing that appellant was guilty of shoplifting. See Fisher v. Kentucky Fried Chicken, supra; Nunnally v. Revco Discount Drug Centers, 170 Ga. App. 320 (316 SE2d 608) (1984). Accordingly, appellant is not entitled to recover on her claim for false arrest. OCGA § 51-7-60.

Decided June 4, 1987.

William T. Haywood III, for appellant.

R. Chris Irwin, for appellee.

With regard to appellant’s claim for malicious prosecution, “[t]he overriding question ... is not whether [she] was guilty, but whether [appellee] had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. [Cit.]” Fisher v. Kentucky Fried Chicken, supra at 545. We have held that, under the undisputed evidence, appellee’s agent had reasonable grounds to believe appellant to be guilty of shoplifting at the time of her arrest. Appellant produced no evidence that, subsequent to her arrest, appellee acquired further information tending to show that its earlier assessment of the existence of probable cause was erroneous. Compare Wilson v. Bonner, 166 Ga. App. 9 (1) (303 SE2d 134) (1983). Accordingly, as to appellant’s malicious prosecution claim, the grant of summary judgment in appellee’s favor was correct.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    73989.
    DAVIS v. CHARTER BY-THE-SEA, INC. et al.
    (358 SE2d 865)
   Beasley, Judge.

There was a jury verdict for defendants Charter By-The-Sea and Dr. Thagard on plaintiff Davis’ claims for false imprisonment (OCGA § 51-7-20) and assault (OCGA § 51-1-13).

Davis enumerates as error the denial of her motion for directed verdict at the close of the evidence and the giving of two jury charges requested by defendants.

1. The motion for directed verdict addressed only the false imprisonment claim, which is therefore all that will be considered here. Gabrowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986).

Such motion is appropriate only if there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions therefrom, demands a particular verdict. OCGA § 9-11-50 (a); Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 498 (1) (277 SE2d 785) (1981).

On review, this Court must view the evidence in the light most favorable to the party opposing the motion, as must the trial court in ruling on the motion. United Fed. Savings &c. Assn. of Waycross v. Connell, 166 Ga. App. 329, 330 (1) (304 SE2d 131) (1983); Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981).

In this light, the evidence showed that on October 7, 1984, Davis’ daughter, a registered nurse, went to Davis’ apartment late in the afternoon or early evening after conversing by phone with her. The call led the daughter to believe her mother, who had a long history of alcohol abuse, was inebriated. Upon arriving she found her mother not fully conscious or in control of herself, mentally or physically. The daughter attempted to help Davis and then called her brother. They wrapped Davis in a blanket and took her to Charter. Davis was then awake and struggling and refusing to go voluntarily to the hospital.

They arrived at Charter at 6:55 p.m. Davis had to be bodily carried by her children, both because of her drunken condition and because of her struggling. They explained Davis’ circumstances and medical history as related to her current condition to defendant Dr. Thagard.

In his initial observation of Davis, Dr. Thagard noted slurred speech, staggering gait, bloated face, strong odor of alcohol, and combative and uninhibited behavior. As Director of Addictive Disease at Charter and a specialist in alcohol and drug addiction, Dr. Thagard testified that in his opinion, she was highly intoxicated, “uncontrollable” physically and mentally, “maniacal,” somewhat incoherent, and disoriented. The children described her history, including prior treatment for hypertension. The daughter also signed a consent form authorizing treatment of her mother.

Upon examination, Dr. Thagard was unable to detect any diastolic blood pressure. He then called Dr. Tucker, an internist at Charter, who was not able to detect the blood pressure by regular examination, but did pick up a low pressure in Davis’ leg. Tucker also noted that she was suffering tachycardia, was cramping, and appeared to be dehydrated. Plaintiff’s own testimony was that she was “in shock” when she arrived at Charter.

Both doctors stated that, based on all these factors, they determined that Davis was medically unstable and should be admitted. The objective was to keep her until she became medically stabilized and non-intoxicated. She was placed in restraints for approximately two hours and given a mild sedative. The next morning, she was released at her insistence and against medical advice. Her blood pressure had then stabilized. Although Davis would not allow a blood sample to be taken upon admission, one was taken the next morning, and her blood alcohol was still .03. Dr. Thagard stated that, in his opinion, her blood alcohol level upon admission would have been .27. (The level at which one is intoxicated in Georgia is .10. OCGA § 40-6-392 (b) (3).) He also said that, at .30, most people become unconscious.

False imprisonment is the unlawful detention of the person of another, thereby depriving that person of his personal liberty. OCGA § 51-7-20. In order to prevail, plaintiff Davis must show that there was no legal justification for her restraint and treatment by the defendants. In an effort to do this, plaintiff relies on Kendrick v. Metro. Psychiatric Center, 158 Ga. App. 839 (282 SE2d 361) (1981), and Williams v. Smith, 179 Ga. App. 712 (348 SE2d 50) (1986), and their rulings concerning OCGA §§ 37-3-41 and 37-7-41.

Chapter 7 of Title 37, originally enacted in 1971, provides mechanisms for involuntary delivery of an alcoholic or drug abuser to an “emergency receiving facility,” OCGA § 37-7-1 (9), for examination. Both sides agree that Charter was “certified” as an emergency receiving facility.

There has been much attention paid in this case to OCGA § 37-7-41, which provides two mechanisms for the involuntary delivery, by a peace officer, of a patient suffering from alcoholism or drug abuse to an “emergency receiving facility” for the purpose of obtaining an examination of that person. It envisions a civil arrest and custody and delivery, but it is not involved here, because Ms. Davis was brought by her children and not by a peace officer.

After admission pursuant to Article 3, Part 1, OCGA § 37-7-43 (a) requires that a patient must be examined by a physician within 24 hours (48 hours after July 1,1985) and may be given emergency treatment in this period but must be released unless a certificate is executed which provides the basis for the transfer of the patient to an evaluating facility, OCGA §§ 37-7-1 (10) and 37-7-81. Despite contentions otherwise, it is not involved here because Ms. Davis was released within 24 hours.

Upon arriving at Charter, Davis was immediately examined by Dr. Thagard, who at that point was conducting the examination provided for by OCGA § 37-7-43, not the examination referred to in OCGA § 37-7-41 (a) which allows for “delivery-by-peace-officer” to an emergency receiving facility.

Appellant cites two cases for support of her position that there was no legal justification for holding and treating her: Kendrick v. Metro. Psychiatric Center, supra, and Williams v. Smith, supra.

In the first place, Kendrick is physical precedent only, because two of the three judges ruling concurred in the judgment only. Rule 35 (b). Moreover, Kendrick is not persuasive because it involved a very different situation. The plaintiff’s minor daughter was a voluntary patient at the hospital and plaintiff was tricked into coming into the facility for the ostensible purpose of discussing her daughter. While there, the doctor tried to have her voluntarily commit herself as an alcoholic, and when this failed, she was not allowed to leave. This same doctor then executed the certificate required by what is now OCGA § 37-7-43 (a), for transfer to an evaluating facility, after examining her against her will. (The transfer was not effectuated.) As far as the opinion reflects, there was no medical emergency and plaintiff had walked in under her own power. Defendants argued that the doctor’s initial opinion that the patient needed treatment satisfied the requirements of OCGA § 37-7-41 (a), and since she was released within 24 hours, neither this section nor OCGA § 37-7-43 was violated as a matter of law. The Court was asked to rule on whether the grant of a directed verdict to the hospital and doctor was appropriate under those circumstances. It held that the same doctor could not provide both certificates or examinations, thus not justifying the trial court’s conclusion that plaintiff’s detention was legal as a matter of law. It based the holding on the requirements of the laws then in effect, that each of these certifications be executed by a separate doctor. Thus there are material distinctions between the two cases. We point out, however, that we do not agree with the statement that the OCGA § 37-7-41 (a) certificate is required even in a non-peace officer delivery case.

Williams holds that, where a person is delivered to an emergency receiving facility by peace officers pursuant to a valid § 37-7-41 (a) certificate, false imprisonment, as a matter of law, is not an available remedy against the doctor executing the certificate. The present case does not involve delivery by a peace officer, but Williams also reiterates that false imprisonment may be a remedy where there is no valid process and states that, in such a situation, “liability depends upon whether a detention without supporting process was legally authorized under the circumstances.” Williams, supra at 714.

The question in this case, then, is whether there was evidence of any other legal justification for receiving, examining, and treating Davis.

There were at least two theories which required the jury’s consideration and precluded a directed verdict in plaintiff’s favor. The evidence, both from plaintiff’s daughter, the nurse, and from the two doctors who examined her, was that they concluded that a medical emergency existed which, for plaintiff’s safety as well as concern for others if she were not treated, see Bradley Center v. Wessner, 161 Ga. App. 576 (287 SE2d 716), aff’d 250 Ga. 199 (296 SE2d 693) (1982), required that she be treated. This defense was raised in the pleadings, and defendants requested and received, without objection from plaintiff, an instruction on this theory.

OCGA § 37-7-163 (e) provides that “[i]n cases of grave emergency where the medical staff of the facility in which an alcoholic . . . has been accepted for treatment determines that immediate surgical or other intervention is necessary to prevent serious physical consequences or death and where delay in obtaining consent would create a grave danger to the physical health of such person, as determined by at least two physicians, then essential surgery or other intervention may be administered without the consent of the person, the spouse, next of kin, attorney, guardian, or any other person. In such cases, a record of the determination of the physicians shall be entered into the medical records of the patient and this will be proper consent for such surgery or other intervention.” The section also provides that any physician relying on such consent and who has acted in good faith has immunity from suit.

Plaintiff was brought to the hospital by her children, and her daughter signed the consent form authorizing her treatment. Therefore, there existed a jury question as to whether there was such a grave emergency and whether the consent of the daughter satisfied the “next of kin” reference in the statute. Even if it did not, the issue of whether the doctors could proceed under the legally implied consent provided for by this statute remained.

Absent a “grave” emergency under OCGA § 37-7-163, there could still be a question of whether the provisions of OCGA § 31-9-3 were applicable. OCGA § 37-7-163 (d) states that “Except as provided in subsections (b) [not at issue here] and (e) [set out above] of this Code section, consent to medical treatment and surgery shall be obtained and regulated by Chapter 9 of Title 31.” OCGA § 31-9-3 provides that a medical “emergency” exists where, according to competent medical judgment, proposed treatment is reasonably necessary and a person authorized to consent under § 31-9-2 is not available and delay could jeopardize the health of the person affected. Under § 31-9-2 a child is not authorized to consent for a parent, presenting a question of whether an emergency existed so that consent could be implied under § 31-9-3 (b), given plaintiff’s condition.

Thus, denial of plaintiff’s motion for directed verdict was not error. F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

2. Plaintiff also complains in her second and third enumerations of two jury instructions. No objection was made to Charter’s Request #11 by plaintiff after the charge was given, although the court specifically inquired of plaintiff if there were objections. It will not be considered for the first time on appeal. OCGA § 5-5-24 (a); AAA Van Sues. v. Willis, 180 Ga. App. 18, 19 (3) (348 SE2d 475) (1986).

Decided June 4, 1987.

James V. Pleasants, Donald R. Sullivan, for appellant.

Davis did object to Thagard’s Request #2: “If you should find that the entries by Dr. Thagard in the hospital chart contained essentially the same information that would have been required by him had he signed a certificate to have Mrs. Davis transported to an emergency receiving facility as I’ve described to you, and if you find that Charter-by-the-Sea is an emergency receiving facility, then you would be authorized to find that the plaintiff, Mrs. Davis, was appropriately admitted to this hospital and her desire not to stay would be immaterial.”

The objection made was “I don’t believe that is [in] accordance with the statute, Your Honor.”

Defendants argue that this objection does not provide the required specificity to warrant consideration by the trial court or this court. We find a borderline objection that, although lacking in the detail it should have contained, informs the court that plaintiff was objecting' on the ground that the charge did not comply with OCGA § 37-7-41 (a). Thus, the form of the objection marginally met OCGA § 5-5-24 (a). See Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976).

The pleadings show that plaintiff acknowledged that she was transported by her children and that her only claim against the hospital and the doctor was for the detention thereafter. The hospital defended on the basis of an emergency, which provided a totally independent basis for her detention and treatment.

The instruction set out above is erroneous in that there is no statutory or other precedent which would provide for the substitution of a chart recordation for the required certificate. See Williams, supra. It is undisputed, however, that plaintiff received an immediate examination pursuant to OCGA § 37-7-43, thus obviating the need for the certificate under OCGA § 37-7-41 as the legal basis for the continued detention. An emergency intervened and the further detention was validated by implied consent or consent of the daughter rather than a certificate. Thus, any error in this regard was harmless. See DeKalb County v. Metro Ambulance Svcs., 253 Ga. 561 (322 SE2d 881) (1984).

Judgment affirmed.

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

Wallace E. Harrell, Philip R. Taylor, for appellees.

       In 1982, the legislature amended both OCGA §§ 37-3-43 (psychiatric treatment) and 37-7-43 (treatment of drug abusers and alcoholics) to provide that the same physician or psychologist may execute both certificates.


text:
    74134.
    HARRIS v. THE STATE.
    (358 SE2d 634)
   Pope, Judge.

Defendant Joseph Harris was indicted for the murder of Eugene Austell Wright a/k/a Eugene Washington and was convicted by a jury of voluntary manslaughter.

1. Defendant argues that the trial court erred in failing to grant his motions for directed verdict and contends that the evidence adduced at trial showed an “absolute case of self-defense.” The record shows that while defendant was in the hospital recovering from a gunshot wound to the stomach he received during the altercation with the victim, he stated to one of the investigating officers that on the night the incident occurred he had accepted an invitation to come to apartment 3B at the Dutch Colony Apartments to gamble. Defendant further stated that while he was sitting at a card table with several men he did not know, there was a knock at the door and the victim and another man were admitted. According to this version of events, the victim began to argue about the cards and started shooting. Defendant was vague as to his participation in the shooting.

Defendant later gave a written statement to police, which was introduced into evidence without objection, in which he stated that on the day of the incident he was sitting in apartment 3-B, which defendant stated was his girl friend’s apartment, with his brother and that the two of them were going to gamble. His brother left to get something to eat and a person named “Trick” and another man he did not know knocked on the door of the apartment. He admitted Trick, but told the victim he could not come in. The victim allegedly raised a pistol and shot at the defendant who then removed his own gun from the right rear side of his pants and returned fire. The record shows the victim subsequently died, without regaining consciousness, from the 8 gunshot wounds he received during this altercation. The record also shows that the only playing cards found in the apartment were the king of hearts and a partial king of diamonds.

“ ‘A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. . . .’ OCGA § 16-5-2 (a).

“OCGA § 16-3-21 provides that a person is justified, and thus has a defense to prosecution under OCGA § 16-3-20, ‘in using force (against another) which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself . . . (b) A person is not justified in using force . . . if he: . . . (3) Was the aggressor or was engaged in a combat by agreement. . . .’

“ ‘ “The evidentiary circumstances necessary to show voluntary manslaughter, as opposed to circumstances showing the homicide was justified, relate to a situation which arouses sudden passion in the person killing so that, rather than defending himself, he willfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself.” (Cit.)’ Peacock v. State, 154 Ga. App. 201, 202 (1) (267 SE2d 807) (1980). ‘If, upon a sudden quarrel, the parties agree to a fight, . . . and one of them is killed, such killing is voluntary manslaughter, no matter who strikes the first blow. (Cit.) A mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties. (Cit.) “Being suddenly aroused by anger, and mutually intending to fight, the law of mutual combat is involved. Such combat sufficiently appears where it is shown that there was a mutual intent by the accused and deceased to fight, and one or more shots were fired. It makes no difference who fires the first shot, nor is it necessary that both parties shoot.” (Cits.)’ Strickland v. State, 137 Ga. App. 419, 421-22 (1) (224 SE2d 87) (1976).” White v. State, 179 Ga. App. 276 (1) (346 SE2d 91) (1986).

“ ‘The evidence here was in dispute as to whether [defendant shot the victim] with malice aforethought (since he was charged with murder), out of passion, or out of justification in self-defense. The resolution of this question depended heavily on the credibility of the witnesses, including [defendant]. Decisions regarding credibility are exclusively for the jury. (Cits.) A rational trier of fact was authorized to find the elements of voluntary manslaughter beyond a reasonable doubt. [Cits.]’ ” Hardeman v. State, 180 Ga. App. 632, 633 (349 SE2d 839) (1986). See also Mims v. State, 180 Ga. App. 3 (1) (348 SE2d 498) (1986); Tew v. State, 179 Ga. App. 369 (1) (346 SE2d 833) (1986).

“ ‘For the same reason, it was not error for the trial court to deny the motions for directed verdict. . . . Only where there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law is it error for a trial court to refuse to direct a verdict of acquittal.’ [Cit.] Therefore, [defendant’s] first enumeration of error is without merit.” Daniels v. State, 158 Ga. App. 476, 477 (282 SE2d 118) (1981).

2. Defendant also contends that the trial court erred in denying his motion in limine concerning the introduction of evidence concerning trace amounts of cocaine and drug paraphernalia found in the apartment. The State argued for the admissibility of the evidence on the theory that the shooting was drug-related. The record shows that a search of the apartment yielded measuring spoons, a sifter, scales, rubber bands, plastic bags, a sealing device known as seal-a-meal, a brown handbag, a floor-type safe and a smaller safe (in which the cocaine was found), a box of ammunition and $3,000 in cash.

“ ‘[E]vidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. (Cit.) Even where the evidence is of questionable relevancy or competency, it is the rule in this state that it should be admitted, leaving its weight for the determination of the jury. (Cits.)’ [Cit.]” Turner v. State, 178 Ga. App. 888, 889 (345 SE2d 99) (1986). We believe that in the present case “the jury was authorized to consider the [evidence of drugs and drug paraphernalia] as evidence which tended to show [defendant’s] intent, motive, plan, scheme and bent of mind.” Walker v. State, 156 Ga. App. 842, 844 (275 SE2d 755) (1980). See also Parker v. State, 169 Ga. App. 966 (2) (315 SE2d 683) (1984); Layne v. State, 147 Ga. App. 511 (249 SE2d 324) (1978). Thus, the trial court did not err in denying defendant’s motion in limine.

In a related argument, defendant also contends the trial court erred in denying his motion for mistrial based on statements made by the prosecutor during his closing remarks to the jury, and argues the State’s argument that the shooting in the case sub judice was drug-related impermissibly interjected evidence of extraneous and prejudicial matters. Although our review of the record reveals that defendant did interpose several objections during the course of the State’s closing remarks, at no time was a motion for mistrial made. “Whether overruled or sustained, a mere objection to alleged improper argument by the State in a criminal case raises on appeal only the issue of whether the trial court erred in failing to sustain the objection so as to require the State’s counsel to desist from the argument, not whether the trial court erred in failing to take any other additional curative actions.” Hall v. State, 180 Ga. App. 881, 883 (350 SE2d 801) (1986). Our examination of the instances complained of on appeal in the present case convinces us that the trial court did not err in overruling defendant’s objections to the State’s allegations that the shooting was drug-related. “Attorneys will be allowed all reasonable latitude in the argument of cases to a jury provided they do not go outside the facts legitimately appearing from the trial and ‘lug’ in extraneous matters as if they were part of the case. [Cit.] Counsel may draw remote deductions and inferences from the evidence and there is no basis for objection even if the deductions and inferences are illogical or unreasonable. [Cit.]” Callahan v. State, 179 Ga. App. 556, 563 (347 SE2d 269) (1986). See also Truitt v. State, 174 Ga. App. 687 (3) (331 SE2d 64) (1985); Griffin v. State, 170 Ga. App. 287 (7) (316 SE2d 797) (1984).

Decided June 4, 1987.

Murray M. Silver, for appellant.

Lewis R. Slaton, District Attorney, Russell Parker, H. Allen Moye, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

       Because defendant originally made his motions for directed verdict to the murder charge, we note that “even if the ruling [denying defendant’s motion for directed verdict of acquittal as to the murder charge] was erroneous, it was harmless: ‘If the motion had been granted, a prosecution for voluntary manslaughter would nonetheless have been permissible, and [defendant] was convicted only of the lesser offense of voluntary manslaughter.’ [Cit.]” White, supra at 277.


text:
    74186.
    DANIELS v. THE STATE.
    (358 SE2d 637)
   Pope, Judge.

Defendant was convicted by a jury of burglary, criminal interference with government property and giving a false name to a law enforcement officer. On appeal, defendant challenges his conviction only as to the burglary charge.

1. Defendant’s first enumeration concerns a question propounded to him by the State during cross-examination. The record shows that defendant admitted entering the Kuppenheimer Distribution Center warehouse (said entry formed the basis for the burglary charge), but contended that he entered the building not to commit a theft but because he was curious to know why two men were standing and a truck was parked in front of the warehouse late at night. Defendant further testified that the men and the truck were no longer there by the time he parked his car and walked down to talk to them, and that he went inside the warehouse because he “was curious as to what was happening.” The record shows that after questioning defendant at length concerning his alleged reason for being in the building, the State propounded the following question: “Mr. Daniels, is this something, this stopping at strange businesses to talk to people that you’ve never seen before, who appear to be doing nothing particularly unusual, is this something that you do on a regular basis?”

Defendant enumerates as error the trial court’s decision overruling defendant’s objection to this question and argues the question was irrelevant. On appeal defendant also argues that the question required defendant to admit to prior behavior of a possibly criminal nature. Addressing this contention first, our review of the record clearly shows the question was part of the State’s extensive cross-examination of defendant as to the truthfulness of his story concerning why he was in the warehouse that night and was not intended to elicit testimony concerning possible past criminal activity.

Moreover, the record also shows that at trial defendant objected to the question on the basis that it was irrelevant, and did not raise the argument now asserted on appeal as to the interjection of past criminal activity. “Our appellate courts have consistently adhered to the rule that an objection to the admission of evidence on the sole ground that it is ‘irrelevant’ is insufficient to show error requiring reversal. [Cits.] Furthermore, it is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. [Cits.] For the foregoing reasons, this enumeration of error is without merit.” Jefferson v. State, 157 Ga. App. 324, 325-26 (277 SE2d 317) (1981).

2. Defendant next enumerates as error the trial court’s refusal to instruct the jury as follows: (Defendant’s Request to Charge No. 7) “I charge you that a jury is not impanelled in a criminal case to answer the question: ‘Is the defendant guilty?’ The question you are to decide is: ‘Has there been testimony in this courtroom which proves the guilt of the defendant beyond a reasonable doubt?’ ”

The record shows that the trial court’s charge to the jury on reasonable doubt and as to what constitutes proper evidence for the jury’s consideration, including the testimony of witnesses, was taken from the Council of Superior Court Judges Suggested Pattern Jury Instructions, Vol. 2, Criminal Law, and that the charge as given correctly states the law in this state on these two issues. “It is well established that a requested charge need not be given unless it embraces a correct and complete principle of law which has not otherwise been included in the trial court’s instruction to the jury. Because the charge given is fair and complete, and substantially covers the applicable principles, we find no error in failing to give [defendant’s] request to charge number [7]. [Cit.]” Garner v. State, 182 Ga. App. 251, 252 (355 SE2d 451) (1987). Accord Ivey v. State, 180 Ga. App. 407 (2) (349 SE2d 272) (1986); Pratt v. State, 180 Ga. App. 389 (2) (348 SE2d 922) (1986).

3. Lastly, defendant also complains of the trial court’s failure to give his requested charges on the lesser included offense of criminal trespass. Again, we find the charge given by the trial court on the lesser included offense to be sufficient. “There is no error in failing to use the exact language of a requested charge when the relevant principles are stated in the charge given. [Cit.]” Banks v. State, 178 Ga. App. 54, 55 (341 SE2d 859) (1986). Accordingly, this enumeration is also without merit.

Decided June 4, 1987.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.