author: Eldridge, Judge.

text:
    A96A1485.
    MARTIN v. BROWN et al.
    (474 SE2d 742)
   Eldridge, Judge.

On March 15, 1992, appellant was struck by Nathaniel Brown, Jr., who, while DUI, crossed the centerline and hit the vehicle driven by appellant, which collision killed Brown. Bobbie Brown is the widow of Nathaniel Brown, Jr. and executrix of his estate. The initial suit was dismissed without prejudice and refiled within six months, but in such interval the executrix closed out the estate and obtained a discharge from the Probate Court of Stephens County. Appellee answered the refiled complaint pleading the discharge and the lack of capacity to be sued as executrix of the estate of Nathaniel Brown, Jr. and moved for the dismissal of the renewed action. Appellant amended his complaint on January 4, 1996, to sue the appellee personally as recipient of the assets of the estate as a creditor as well as suing her in her representative capacity. A hearing was held on February 2, 1996, on the motion to dismiss, and the motion was granted.

The record is silent as to whether or not Bobbie Brown owned or maintained the vehicle driven by her late husband at the time of the collision or whether the vehicle was insured so that a chose in action, the right to indemnification and defense, existed which would be an asset of the estate. The record is also silent as to whether or not the probate court has granted or denied any motion to open the order discharging appellee or if there has been appointed an administrator to take charge of any subsequently found asset of the estate, i.e., any insurance coverage.

There appears in the record attached to the brief of appellee in support of the motion to dismiss documentary evidence, and the answer was verified. There has been no pretrial order entered in the case although the record contains two unsigned proposed pretrial orders.

Under the Civil Practice Act, OCGA § 9-11-12 (b) (6), an action can be dismissed upon the merits where the complaint “[f]ail[s] to state a claim upon which relief can be granted.” In dealing with such motion the trial court can look only to the complaint and not to the answer, because to consider the answer and other pleadings converts to a motion for judgment on the pleadings under OCGA § 9-11-12 (c). If any evidence is considered from any source, the motion has been converted to a motion for summary judgment under OCGA § 9-11-56 and must have the requisite notices, time to respond after notice and presumptions. Since no executed and recorded pretrial order has been entered pursuant to OCGA § 9-11-16, then the appellant, as a matter of right without an order from the court granting leave to amend, could amend the complaint to set forth that appellee was being sued personally as well as in her representative capacity. On the motion to dismiss this amended capacity had to be considered.

Lack of capacity to be sued must be specifically pled under the requirement of OCGA § 9-11-9 (a), which appellee did. Appellee has the duty not only to specifically raise such issue but also as to proof of such defense; see Youmans v. Riley Properties, 180 Ga. App. 176 (349 SE2d 1) (1986); Patterson v. Duron Paints of Ga., 144 Ga. App. 123 (240 SE2d 603) (1977).

A complaint can be dismissed for failure to state a claim upon which relief may be granted only “ ‘if it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.’ ” (Citation omitted.) Bourn v. Herring, 225 Ga. 67, 70 (166 SE2d 89) (1969); Williams v. Hajosy, 210 Ga. App. 637 (436 SE2d 716) (1993). A plaintiff does not have to plead in the complaint facts sufficient to set out the element of a cause of action so long as the complaint puts the opposite party on reasonable notice of what issues must be defended against; therefore, no matter how poorly a complaint has been drafted, if the complaint sufficiently raises possible theories of recovery, it should not be dismissed. Dillingham v. Doctors Clinic, P.A., 236 Ga. 302 (223 SE2d 625) (1976). On motion to dismiss the trial court must construe plaintiff’s amended complaint most favorably for the plaintiff with all doubts resolved in his favor. Quetgles v. City of Columbus, 264 Ga. 708 (450 SE2d 677) (1994).

When plaintiff’s amended complaint is examined in such light, there exist several possible theories of personal liability which might be supported by evidence not in the record. Appellee may have owned or maintained the vehicle within the family purpose doctrine or may have negligently entrusted the vehicle to her husband. Appellant may be able to have the order of the probate court set aside, and appellee may be individually liable for the debts of the estate to the extent of such assets. There may exist insurance on the vehicle; appellant may have provided notice and service on the uninsured motorist carrier of the borrowed vehicle that he was driving to allow an uninsured motorist action. Any statute of limitation or capacity defense may be shown to have been waived or tolled upon presentation of evidence. A motion for summary judgment would be the proper motion to preclude appellant from such theories of liability by showing the absence of a material issue of fact and piercing the pleadings, requiring appellant to come forward to show that a material issue of fact does in fact exist.

While the trial court through pretrial may be aware that no facts exist to support any theory of liability and that it is unlikely that appellant after this length of time may obtain such evidence, the record is silent and procedurally the order of dismissal must be reversed. The issues raised in the motion to dismiss can be properly addressed on a proper motion for summary judgment.

Decided August 20, 1996.

Willie J. Woodruff, Jr., for appellant.

James T. Irvin, for appellees.

Judgment reversed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A0935, A96A0936.
    FOUTS et al. v. BUILDERS TRANSPORT, INC. et al.; and vice versa.
    (474 SE2d 746)
   Ruffin, Judge.

These cross-appeals stem from a June 15, 1990 automobile collision involving a mini-van driven by Gracie Fouts and a tractor-trailer truck owned by Builders Transport, Inc. (“Builders”) and driven by Earnest W. Brinser. Gracie Fouts sued for medical expenses, lost wages, loss of ability to work, and past and future physical and mental pain and suffering, and her husband, Bartow Fouts, sued for loss of consortium. The jury returned a $37,779 verdict in favor of Gracie Fouts for her personal injuries, but returned a verdict in favor of Builders and Brinser for Bartow Fouts’ loss of consortium claim. Subsequently, the trial court amended the judgment to reduce the verdict by $5,000, which was the amount of no-fault benefits paid to Gracie Fouts by her insurance carrier. In Case No. A96A0935, the Fouts appeal evidentiary rulings, jury charges and the no-fault setoff. In Case No. A96A0936, Builders and Brinser cross-appeal, citing errors in the admission of evidence, jury charges, and denial of their motions for directed verdict. For reasons which follow, we reverse Case No. A96A0935 and affirm Case No. A96A0936.

The collision occurred at the intersection of Dietz Road and State Route 2. Gracie Fouts was stopped at a red traffic signal in the southbound lane of Dietz Road. Brinser, driving westbound on State Route 2, approached the Dietz Road intersection as the traffic light changed from green to yellow. Brinser applied his brakes, but failed to stop prior to reaching the intersection. There was no dispute that at the time of the collision the traffic signal was red for Brinser and green for Gracie Fouts. Another vehicle in the lane to the left of Gracie Fouts was also stopped for the traffic signal. According to an eyewitness, the vehicle to the left of Gracie Fouts began to pull into the intersection when the light turned green for Dietz Road. After pulling out two or three feet, this vehicle then stopped, apparently having seen the tractor-trailer coming into the intersection. After the vehicle to the left of Gracie Fouts stopped, however, Gracie Fouts began to move into the intersection, and she collided with Brinser’s tractor-trailer. Gracie Fouts testified that she saw the vehicle to her left begin to pull into the intersection, at which point she began to move into the intersection. She further testified she was not aware of other accidents at the intersection and that she could not recall looking up State Route 2, in the direction Brinser was traveling, prior to entering the intersection.

Case No. A96A0935

1. The Fouts correctly assert that the trial court’s jury instruction on the last clear chance doctrine warrants a new trial. The trial court charged the jury as follows: “I charge you that a person is under an obligation to use ordinary care to avoid injuring another after finding him in a dangerous place regardless of how he gets there or she gets there and is liable for his failure or her failure to do so. This is known as the last clear chance rule.” For reasons which follow, we find that this charge, while properly given in relation to Brinser’s actions, did not apply to the Fouts based on the evidence in the record, and therefore, the language charged was harmful and may have misled the jury.

Contrary to Builders and Brinser’s argument, the last clear chance rule is not strictly related to liability, but is also related to damages when applied within the context of the doctrine of comparative negligence. See Seaboard Coast Line R. Co. v. Daugherty, 118 Ga. App. 518, 522 (4) (164 SE2d 269) (1968). In Daugherty, a case involving the Federal Employer’s Liability Act (“FELA”), this Court held that “the last clear chance rule is obsolete except insofar as it defines one variety of negligence and is merged into the rule for apportioning damages. [Cit.] ‘The doctrine of contributory negligence and the rule of last clear chance are involved in, and vanish as such into, the principle of comparative negligence and apportionment of damages.’ [Cit.]” Id. Although the holding in Daugherty applied only to cases under the FELA, which adopts the comparative negligence standard, we believe that this reasoning is equally applicable to cases under Georgia’s comparative negligence statute, OCGA § Sill-?, and that the last clear chance rule necessarily affects damages when coupled with this statute. Thus, the jury verdict in favor of Gracie Fouts does not preclude the Fouts from arguing this issue.

The last clear chance rule contains two essential elements: (1) party number one, by his own negligence, “must have put himself in a position of peril from which he could not extricate himself (but the [second party] presumably could have extricated him)” and (2) party number two “must have knowledge and appreciation of the injured person’s peril in time to avoid the injury.” (Citations and punctuation omitted.) Stallings v. Cuttino, 205 Ga. App. 581, 583 (422 SE2d 921) (1992). The last clear chance doctrine “cuts both ways and can be applied to prevent any recovery by a plaintiff who could have extricated [herself] from peril and failed to do so.” Daugherty, supra at 522.

While the Fouts contend Brinser could not have avoided the collision due to brake failure, the jury was authorized to conclude, based on the evidence at trial, that Brinser’s brakes were working at the time of the collision and that Brinser could have stopped his tractor-trailer in time to avoid entering the intersection and colliding with Gracie Fouts’ van. There was no dispute that Brinser was at least 75 feet from the intersection when the light changed from green to yellow. According to the investigating officer, Brinser’s tractor-trailer left skid marks on both the right and left side measuring 150 feet prior to impact and 60 feet after impact. These skid marks indicated that the vehicle’s brakes were working to some degree. Brinser testified he previously had no problem with the brakes, and his brakes were working when he started down the hill toward the intersection. In addition, an eyewitness testified she saw the truck’s brake lights come on when the light turned yellow. This eyewitness further testified that, based on her experience and knowledge of the intersection, Brinser could have stopped the truck prior to entering the intersection if his brakes were working properly. This testimony was reinforced by the testimony of Brinser and the DOT signal engineer regarding the distance Brinser’s vehicle traveled, the speed of his vehicle, and the timing of the lights.

“It is well established that an instruction is not abstract nor inapplicable where there is some evidence, however slight, on which to predicate it. [Cit.] To justify a charge on a given subject, it is not necessary there should be overwhelming evidence going to that point, it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. [Cit.]” Sapp v. Johnson, 184 Ga. App. 603, 605 (2) (362 SE2d 82) (1987). Based on the above evidence, we find that a jury was authorized to conclude that Gracie Fouts placed herself in a perilous position and Brinser knew and appreciated her peril in time to avoid the injury. Thus, while we are not sure why Brinser and Builders would request such a charge which, if properly given, would benefit the Fouts, a charge on last clear chance with respect to the liability of Brinser and Builders was warranted by the evidence. See Hurst v. J. P. Colley Contractors, 167 Ga. App. 56 (1) (306 SE2d 54) (1983).

However, the evidence in the present case is undisputed that Gracie Fouts did not see or hear Brinser’s tractor-trailer prior to the collision. Thus, she did not have knowledge and appreciation of Brinser’s peril in time to avoid the injury. The last clear chance doctrine “does not apply to a ‘should know’ or ‘should have known’ situation.” (Citations and punctuation omitted.) Stallings, supra at 583. Accordingly, the trial court incorrectly determined that last clear chance was applicable to both parties, and “the instruction as given may have misled the jury into believing that the doctrine could be applied, not to hold [Brinser and Builders] liable even if the [Fouts] were negligent, but to find that [Gracie Fouts’] alleged negligence proximately caused the accident. . . . [T]he jurors could have construed the last clear chance instruction as meaning that if [Gracie Fouts] had the last clear chance to remove [her vehicle from the intersection], and failed to do so, then that failure, rather than any possible negligence by [Brinser], proximately caused [the Fouts’] injuries. That is an incorrect application of the last clear chance doctrine.” Townsend v. Wright, 220 Ga. App. 324, 326 (1) (469 SE2d 281) (1996).

Because the instruction as given may have misled the jury and we do not know what effect the charge had upon the application of comparative negligence, the court’s error in giving the instruction in the language charged was harmful, and a new trial is required. Id. See also Richardson v. Coker, 78 Ga. App. 209, 213 (1) (50 SE2d 781) (1948).

Since the Fouts’ remaining enumerations of error may recur upon retrial, we will also address the remaining enumerations.

2. The Fouts correctly assert the trial court erred in giving a charge regarding the lack of an absolute duty to have one’s vehicle under control in order to avoid a collision. The charge as given stated, “the law of this state does not impose upon the driver of a motor vehicle the absolute duty of having his vehicle under such control that he can bring it to a stop in order to avoid an injury to any person or property which may be in the path of such motor vehicle.” Contrary to Builders and Brinser’s argument, the Fouts can properly challenge this charge, notwithstanding the jury verdict in their favor, since the charge is not strictly related to liability, but is also related to damages in a case applying the doctrine of comparative negligence. See id. at 213.

Builders and Brinser cite no cases, and we can locate none, where this statement of the law has been applied to a factual pattern similar to that in the present case. Historically, the notion that an individual does not possess an absolute duty to have his vehicle under such control to enable him to stop in time to avoid a collision has been applied in cases where there is no negligence per se. See, e.g., Meeks v. Cason, 208 Ga. App. 658, 659 (1) (431 SE2d 407) (1993) (vehicle slid on rain-slicked road when brakes were applied); Simpson v. Reed, 186 Ga. App. 297, 298 (2) (367 SE2d 563) (1988) (car struck riding lawn mower as it crossed rural highway); Slaton Machine Sales v. Owens-Illinois, Inc., 138 Ga. App. 80, 82 (4) (225 SE2d 473) (1976) (tractor-trailer struck another truck in the rear); Attaway v. Morris, 110 Ga. App. 873, 874 (5) (140 SE2d 214) (1965) (collision due to lane change).

In the present case, it is undisputed that Brinser’s tractor-trailer ran the red light. Thus, Brinser violated OCGA § 40-6-20, which mandates an absolute duty to stop a vehicle for a traffic control device. Whether Brinser’s vehicle experienced brake failure, as contended by the Fouts, or whether Brinser’s brakes were working and complied with the regulatory requirements regarding braking distances, as we discussed in Division 1, is irrelevant. “We think that under the facts of the case this charge was error. It had the effect of relieving [Brinser] of the positive duty of stopping his [truck at the red light]. . . . The rule stated in the charge applies to intersecting highways and streets where right-of-way rules apply. [Cits.]; but it does not apply where there is a requirement to stop. . . Richardson, supra at 213.

As in Division 1, “[w]e cannot say that the charge was harmless merely because the jury probably found both parties negligent and applied the comparative-negligence doctrine. We do not know what effect the charge had upon their application of the doctrine, if they applied it.” Id. Thus, this issue also warrants a new trial.

3. On June 8, 1990, seven days prior to the collision at issue in this case, a traffic signal was installed at the intersection of Dietz Road and State Route 2. In two enumerations of error, the Fouts contend the trial court erred in admitting evidence of forty accidents which occurred at this intersection prior to June 8, 1990, and eight accidents which occurred at this intersection after June 8, 1990. According to the Fouts, these accidents were irrelevant, and the collision diagrams should have been excluded. We agree that evidence of accidents occurring prior to June 8, 1990, should have been excluded, but disagree that evidence of accidents occurring after June 8, 1990, should have been excluded.

Builders and Brinser did not offer the collision diagrams as evidence of similar incidents or proof of negligence, but offered the reports for the purpose of showing the dangerous character of the intersection. The collision diagrams at issue were part of a study and evaluation of the intersection by the Georgia Department of Transportation (“DOT”) to determine the need for a signal and the effectiveness of the signal after it was installed.

The trial court permitted evidence of the accidents to show the characterization of the intersection. However, the trial court ruled the witness needed to testify that the character of the intersection changed before the accident in the present case. The trial court concluded: “I don’t think that it is in error for the court to admit that. It may cause me to have to give some special instruction to the jury, but 1 will let the evidence go in and just let the jury decide what they feel is competent and incompetent about it.”

While ordinarily evidence of other accidents at the same intersection is not admissible, such evidence may be admissible for the purpose of showing a dangerous condition. Wright v. Dilbeck, 122 Ga. App. 214, 216 (4) (176 SE2d 715) (1970). See also Dept. of Transp. v. Brown, 218 Ga. App. 178, 183 (4) (460 SE2d 812) (1995). However, this basis for the inclusion of other accidents has been limited to “[ejvidence of other accidents or near accidents at the same intersection at other times under the same or similar circumstances. . . .” (Emphasis supplied.) Id. at 183. See also Wright, supra at 218 (“for such evidence to be admissible, however, it must appear that the physical conditions at the crossing on the other occasions were substantially similar to those at the time of the collision under investigation”). It is clear that the intersection of Dietz Road and State Route 2 changed dramatically on June 8, 1990, when the traffic signal was installed and it became a controlled intersection. Thus, any accident which occurred prior to June 8, 1990, did not occur under the same or similar circumstances and should have been excluded.

On the other hand, the proffered accidents which occurred after June 8, 1990, did occur under the same or similar conditions, and the trial court did not abuse its discretion in allowing the jury to hear evidence of these accidents at the intersection. “The [Fouts’j attempt to factually distinguish this accident from the others on the basis of the speed or direction of the cars involved is unavailing as there is no requirement that the other accidents be identical. [Cit.]” Brown, supra at 183. “Relevancy of evidence is a matter for a trial court’s discretion. If relevancy is doubtful, it should be admitted and its weight left to the jury’s determination. [Cit.]” Pope v. Propst, 179 Ga. App. 211, 217 (9) (345 SE2d 880) (1986).

4. The Fouts claim the trial court erred by improperly charging the jury on comparative negligence. The trial court charged as follows: “I charge you, ladies and gentlemen, that therefore if you find the plaintiff negligently failed to exercise care for the plaintiff’s own safety, then in that event, ladies and gentlemen, that is the doctrine of comparative negligence. The comparative negligence doctrine in this state is as follows: If you find that the negligence of the defendants, if any, was less than the negligence of the plaintiff, Gracie Fouts, if any, then in that event the plaintiffs could not recover. ... If you find the negligence of the defendants, if any, was greater than the negligence of the plaintiff, Gracie Fouts, if any, then in that event the plaintiffs could recover but the amount of recovery would be reduced by the degree of negligence chargeable to the plaintiff, Gracie Fouts. Where a plaintiff’s injury or damages, if any, are the result of their own erroneous judgment or due solely to their own negligence, the doctrine of comparative negligence is not applicable and the plaintiffs are not entitled to recovery.” The Fouts contend the emphasized portion of this charge was erroneous because it “bastardize[d] comparative negligence by inappropriately cross-breeding it with an erroneous charge on duty to exercise care for one’s own safety[J misstating that princip[le] as well.”

It is well established that “[t]he entire charge must be considered, not just one sentence. [Cit.]” Lawhorn v. Gulf Oil Corp., 145 Ga. App. 80, 81 (243 SE2d 253) (1978). The portion of the charge to which the Fouts take exception is included within an extensive charge on comparative negligence. The complete charge clearly states that negligence on the part of Gracie Fouts would not prevent recovery by the plaintiffs if her negligence was less than the defendants’. Although it would have been preferable to substitute the word “and” for the word “or” in the last sentence, as suggested by the Fouts, “viewing the charge as a whole, as we must, [cit.], we cannot say that it misstated the law or was confusing to the jury.” Ingram v. Peterson, 196 Ga. App. 888, 889 (3) (397 SE2d 141) (1990). Accordingly, the trial court did not err in giving this charge.

5. In their last enumeration of error, the Fouts contend the trial court erred in granting a no-fault write-down to Builders and Brinser pursuant to OCGA § 33-34-3 (d). We disagree.

After the verdict and judgment were entered, the trial court amended the judgment by writing the verdict down by $5,000, the amount of no-fault benefits paid to Gracie Fouts by her insurance carrier. The Fouts claim that the write-off was not proper because Gracie Fouts’ no-fault carrier and Builders and Brinser’s liability insurance carrier were the same, the Insurance Company of North America (“INA”). The Fouts offer no authority in support of their argument, but contend that “as an equitable matter, INA cannot subrogate against INA.” We find no support in OCGA § 33-34-3 (d) for the Fouts’ argument. If the Fouts’ argument is correct, INA would have paid no-fault benefits to Gracie Fouts and would also be obligated to pay an additional $5,000 on behalf of Builders and Brinser for the verdict and judgment in favor of Gracie Fouts, thus giving Gracie Fouts a double recovery. Accordingly, the trial court did not err in amending the judgment to write off the amount of no-fault benefits paid to Gracie Fouts.

Case No. A96A0936

Although we have reversed the verdict and judgment of the trial court, the enumerated errors alleged by Builders and Brinser may recur when the case is retried. Hence, we will also address these enumerations.

6. In their first enumeration of error, Builders and Brinser assert the trial court erred in permitting a lay witness to testify as to whether the tractor-trailer driven by Brinser could have stopped in time if the brakes were in working order. Witness Debbie Sansing was following the tractor-trailer driven by Brinser. According to Sansing, she observed the speed of the truck, the truck’s brake lights come on when the traffic light turned yellow, the distances the truck traveled when the traffic light was green, yellow and red, and the collision. In addition, Sansing testified regarding her experience observing cars and trucks driving up and down the highways, on hills, and valleys, while stopping and braking.

Plaintiffs’ counsel asked Sansing: “At the speed the truck was traveling, at the time you saw the brake lights come on, had the brakes been working, do you think he could have stopped at his speed?” Defense counsel objected to this question on the ground that it called for a conclusion he was not sure the witness knew how to answer.

It is well established that a lay witness may express opinions regarding traffic signals, speed, distance, and stopping distances based on the witness’s observations. Whidby v. Columbine Carrier, 182 Ga. App. 638, 645 (6) (356 SE2d 709) (1987); Witt v. Robbins, 163 Ga. App. 182, 183 (2) (292 SE2d 894) (1982). “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor.” OCGA § 24-9-65. In addition, “ ‘[i]t has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury.’ [Cits.]” Whidby, supra at 645. See also Ewing v. Johnston, 175 Ga. App. 760, 766 (3) (334 SE2d 703) (1985).

We find the trial court did not err in permitting Sansing to testify to her opinion because she included the reasons therefor.

7. Builders and Brinser next contend it was error to admit evidence of Brinser’s prior traffic violations. This enumeration lacks merit.

Brinser was asked whether he had received any prior traffic convictions or informed Builders of such citations. While the trial court had previously ruled, pursuant to a motion in limine, that such evidence would not be admitted, the Fouts attempted to cross-examine Brinser concerning a form filled out by Brinser for Builders. This form inquired as to previous traffic violations in the 12-month period prior to completing the form and indicated no violations. Allegedly, the form was contradicted by a United States Department of Transportation form, which showed one violation.

The record shows that the trial court instructed the jury that it was to disregard any moving or non-moving traffic violations which Brinser may have had prior to the motor vehicle accident. Builders and Brinser did not object nor request a mistrial or additional curative instructions. Therefore, we find this enumeration to be without merit. See Smith v. State, 261 Ga. 512 (407 SE2d 732) (1991).

8. In their third enumeration of error, Builders and Brinser claim the trial court erred in permitting a DOT engineer to testify whether the State of Georgia was negligent in designing the intersection and signal timing at the intersection. Defense counsel objected on the ground that the question sought testimony as to the ultimate issue in the case.

Pursuant to OCGA § 24-9-67, “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” In this case, the DOT engineer was qualified as a signal engineer, was familiar with the intersection in question, and was familiar with DOT signaling records at the intersection in question. Moreover, he testified that traffic and safety engineering were not simple, and he recited the factors considered by the DOT in complying with the Manual for Uniform Traffic Control Devices at this intersection.

Based on the foregoing, we cannot find that the trial court abused its discretion in allowing the DOT engineer to respond to the question regarding DOT negligence. The average layperson is not familiar with design and function features of traffic control devices, and it is well established that an expert witness may testify even as to the ultimate issue of fact where the inferences to be drawn from the evidence are beyond the ken of jurors. Three Notch Elec. Member ship Corp. v. Bush, 190 Ga. App. 858, 859 (2) (380 SE2d 720) (1989).

Furthermore, while Builders and Brinser argue in their reply brief that the DOT engineer’s testimony was also irrelevant, they failed to raise this objection at trial and, therefore, waived their objection on this ground. Ramey v. Leisure, Ltd., 205 Ga. App. 128, 131 (2) (421 SE2d 555) (1992).

9. The trial court correctly denied Builders and Brinser’s motion for directed verdict on the issues of lost earnings and correctly charged the jury on the issue of lost earnings. At the close of the evidence, Builders and Brinser moved for a directed verdict on the ground that Gracie Fouts’ claim for lost earnings was more accurately characterized as a claim for lost profits. Such a claim for lost profits, they argued, should be dismissed since Gracie Fouts failed to produce sufficient evidence to allow the jury to compute lost profit. The trial court denied this motion and charged the jury as to lost earnings. Builders and Brinser then objected to the charge on the ground that lost profits are different than lost earnings.

“ A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. [Cit.]’ [Cit.]” (Emphasis in original.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2 (1) (392 SE2d 268) (1990). In the present case, the record shows that Gracie Fouts offered her own testimony, as well as tax returns, federal 1099 forms, information from Tupperware establishing her income from personal sales and unit sales, and testimony from two distributors of the Tupperware company. Contrary to Builders and Brinser’s argument, we conclude this evidence did support a claim for lost earnings. See Beal v. Braunecker, 185 Ga. App. 429, 433 (5) (364 SE2d 308) (1987); Kroger Co. v. Perpall, 105 Ga. App. 682, 685 (3) (125 SE2d 511) (1962). Thus, we find no error in the trial court’s denial of Builders and Brinser’s motion for directed verdict on this issue. This finding is further supported by the jury’s verdict in favor of Gracie Fouts on this issue. Ga. Power Co. v. Hinson, 179 Ga. App. 263, 266 (2) (346 SE2d 73) (1986).

Based on the foregoing, we further find that the trial court did not err in charging the jury regarding lost earnings. Even if the evidence was “arguably insufficient to provide a basis for calculation of the amount of lost earnings with reasonable certainty,” reversal is not mandated since the trial court charged the jury that lost earnings were properly recoverable if measured by “ ‘the value of the earnings which the evidence shows with reasonable certainty that [she has] lost as a result of [her] injur[y].’ ” Williams v. Adams, 170 Ga. App. 35, 36 (316 SE2d 1) (1984).

10. The trial court correctly denied Builders and Brinser’s motion for directed verdict on the issue of negligent maintenance of brakes on the tractor-trailer and correctly charged the jury regarding Builders and Brinser’s duties to maintain operational brakes on the tractor-trailer. At the close of the evidence, Builders and Brinser moved for directed verdict as to this issue, maintaining the Fouts failed to introduce any evidence that Builders or Brinser had actual or constructive knowledge of the defective condition of the brakes. The trial court denied this motion and charged the jury concerning the maintenance and operation of the brakes.

Decided August 21, 1996

Coppedge, Goddard & Leman, Warren N. Coppedge, Jr., James A. Hammontree, for appellants.

Dennis, Corry, Porter & Gray, William E. Gray II, Stephanie F. Goff, Jacob S. Fisher, for appellees.

The evidence shows that Georgia DOT inspector Lillard checked all of the undamaged brakes on the tractor-trailer and testified that (1) three of the nine brakes were out of adjustment and (2) the truck should have been “out of service.” Based on this evidence, the jury was authorized to conclude that Builders and Brinser could have and should have known of the defective condition. Contrary to Builders and Brinser’s argument, the Fouts were not obligated to prove that Builders and Brinser had actual knowledge of the defective condition of the brakes. “ ‘The owner or driver of a motor vehicle must exercise reasonable care in the inspection of his machine to discover any defects that may prevent its proper operation, and is chargeable with knowledge of any defects which such inspection would disclose.’ [Cit.]” Cruse v. Taylor, 89 Ga. App. 611, 615 (80 SE2d 704) (1954).

We read nothing in Atlanta Metallic Casket Co. v. Hollingsworth, 104 Ga. App. 154, 162 (6) (121 SE2d 388) (1961), suggesting that the brakes must have been tested and shown to be defective prior to their failure. The fact that Lillard tested the brakes after the truck was towed, and not at the scene of the accident, merely goes to the weight of her testimony.

Based on the foregoing, the trial court did not err in denying Builders and Brinser’s motion for directed verdict on this issue. Likewise, this evidence was sufficient to authorize the trial court to charge the jury regarding Builders and Brinser’s duties to maintain operational brakes on the tractor-trailer. Id.

Judgment reversed in Case No. A96A0935. Judgment affirmed in Case No. A96A0936.

McMurray, P. J., and Johnson, J., concur.

       While Brinser and Builders contended in the pretrial order that the collision was caused by brake failure, evidence to the contrary was introduced by both parties, without objection. “[A]n issue that is clearly outside the scope of a pre-trial order is generally not a viable issue in the trial of the case.” (Citations and punctuation omitted.) Tahamtan v. Tahamtan, 204 Ga. App. 680, 681 (1) (420 SE2d 363) (1992). However, since evidence was introduced without objection on Brinser’s ability to stop, the Fouts expressed no surprise, and the issue was fully litigated. The fact that the pretrial order expressed the opposite contention is not controlling. Id. See also Carreras v. Austell Box Board Corp., 154 Ga. App. 135, 136 (2) (267 SE2d 792) (1980).

       This case was overruled on other grounds in Pender v. Witcher, 194 Ga. App. 72 (2) (389 SE2d 560) (1989). However, the Pender case was subsequently vacated when the Supreme Court reversed the case, and the decision of the Court in Whidby remains viable authority. Pender v. Witcher, 196 Ga. App. 856 (397 SE2d 193) (1990).


text:
    A96A1818, A96A2045.
    S & S FOOD SERVICES, INC. v. DEPARTMENT OF TRANSPORTATION; and vice versa.
    (475 SE2d 197)
   Eldridge, Judge.

S & S Food Services, Inc. (“S & S”) entered into a lease agreement with W. W. Anderson Estate Partnership (“Anderson estate”) on August 19, 1971. S & S assigned this lease to Shanes Food Company, Inc. (“Shanes”) on September 1, 1976. S & S is the parent corporation of Shanes.

The lease covers a 200-foot by 200-foot square restaurant site which covers land in the southwest quadrant of Interstate 75 and Georgia Route 83 (Lee Street), Monroe County, per plat by S. J. Gos-tin Company dated August 4,1971, recorded in plat book 4, page 276, Monroe County Clerk’s Office. The leasehold parcel is separated from the highway right-of-way of Frontage Road by a 20-foot easement owned by the Anderson estate. The plat shows a proposed driveway adjacent to the “restaurant site” over the easement to provide access to Frontage Road. The proposed driveway is also referenced in Article IV of the lease between the Anderson estate and S & S where the lessor agreed to grade the demised premises about two feet above Frontage Road and to fill between the demised property and Frontage Road a width of 50 feet for use by the lessee as an ingress to the premises from Frontage Road.

The driveway from Frontage Road over the easement was used by Shanes and other lessees of the Anderson estate, including various motels, from its construction in 1972 and remained in continuous use and operation until the driveway was closed by the Department of Transportation (“DOT”). This driveway was also mentioned in a lease from the Anderson estate to Edward Bear et al. The Bear lease, which is for property occupied by the Tradewinds Motel, refers to the same plat that is attached to the S & S lease and gives the lessee an easement over such driveway subject to its use by other lessees of the lessor and their customers, which includes appellant.

The DOT filed a condemnation petition and declaration of taking on May 18,1987, against appellant and the Anderson estate and paid the sum of $30,100 into the registry of the court. The condemned property was a .006-acre tract or 250 square feet of land in Land Lot 170 of the 6th Land District in Monroe County. Such 250 square feet of land did not encompass any of S & S’s 200-foot by 200-foot square restaurant site. However, it did acquire 250 square feet of the 20-foot-wide easement that separates the S & S leasehold parcel from Frontage Road and which deprived Shanes of access from Frontage Road. However, Shanes still had access by a road that led from the restaurant to North Lee Street. After such taking, and access to the Frontage Road was closed, Shanes ceased to do business because it was losing money.

S & S filed a timely notice of appeal seeking a jury trial on the issue of just and adequate compensation for its property interests, if any, acquired in the condemnation.

On April 5, 1993, DOT filed a motion for direction pursuant to OCGA § 32-3-17.1 in which it asked the trial court to determine whether S & S had a compensable interest in the condemnation.

On February 2, 1994, S & S filed a response objecting that there were questions of fact to DOT’s motion for direction and on February 17, 1994, the DOT replied to this response.

On February 10, 1995, the trial court entered an order finding that S & S did not have a compensable interest in this condemnation as none of its 200-foot by 200-foot square restaurant site was acquired by the DOT and that S & S had no easement.

S & S’s notice of appeal was timely made. The trial court mailed S & S’s attorney the notice of costs on March 21, 1995. However, S & S failed to make a payment of appeal costs until March 7, 1996, almost one year after it filed its notice of appeal.

The DOT, pursuant to OCGA § 5-6-48 (c), made a motion to dismiss S & S’s appeal on the ground that there was an unreasonable delay in the transmission of the record to the appellate court and that such delay was inexcusable and was caused by S & S’s failure to promptly pay costs to the trial court or file an affidavit of indigence.

On March 28, 1996, the trial court overruled DOT’s motion to dismiss S & S’s appeal nunc pro tunc to March 15, 1996. DOT filed a notice of appeal from this order on April 26, 1996.

Case No. A96A1818

1. The first enumeration of error raised by S & S states that the trial court “erred in its determination that a compensable interest may be decided under OCGA § 32-3-17.1.”

DOT argues that S & S waived this argument as it was not raised prior to appeal on the trial level. It is well settled that this Court will not consider an argument that is raised for the first time on appeal. City of College Park v. Pichon, 217 Ga. App. 53 (456 SE2d 686) (1995); Smith v. State, 204 Ga. App. 576 (420 SE2d 29) (1992); Holland v. State, 197 Ga. App. 496 (398 SE2d 810) (1990). However, in this case S & S put up evidence in response to DOT’s motion for direction in the form of an affidavit and made known to the Court that the issue before the trial court was a question of law and fact as to the existence and value of the easement.

Under OCGA § 9-11-46 (a) formal exceptions to rulings and orders are unnecessary, and it is sufficient that a party, at the time the ruling or order of the court is made or sought, maJkes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not hereafter prejudice him. S & S by the filing of an affidavit with its brief made it clear to the court that S & S felt the question before the trial court was one of law and fact, and under OCGA § 9-11-46 (a), this was a sufficient objection. Therefore, S & S has standing to now raise this issue on appeal.

Whether or not S & S had a compensable interest in the condemned property is a mixed question of law and fact and cannot be dealt with as a matter of law only. The trial court must construe factual issues such as the terms of the lease between S & S and the Anderson estate, the lease between the Anderson estate and Edward Bear et al., the affidavits filed, and any other facts S & S may have been able to show to determine if S & S had an easement, either express or implied, over the condemned property. Such evidence would also include the open and notorious use of such driveway by S & S, its customers, suppliers and others servicing S & S.

OCGA § 32-3-17.1 was enacted by Ga. L. 1985, p. 149, § 32. The General Assembly passed Ga. L. 1985, p. 149 to correct provisions in the recodification of the Official Code of Georgia; however, § 32 created a new Code section, OCGA § 32-3-17.1. The amendment does not give the trial court any more power than the original enactment did which was to rule on issues of law only and not mixed issues of law and fact. Since condemnation proceedings are statutory and in derogation of common law, such statute must be strictly construed. Therefore, any questions of law and fact or fact questions can be dealt with by the court on only evidentiary hearing, trial before the court on non-value issues, or summary judgment and not under OCGA § 32-3-17.1.

In this case, it appears that the trial court must determine as a matter of fact the nature of the interest S & S has in the condemned property, if any. If the court finds that S & S has an easement, either express or implied that runs with the land, even if such easement has no value, S & S may still be entitled to consequential damages resulting from the taking if the property was unique. Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723 (409 SE2d 281) (1991). The trial court must also determine, if it finds S & S had either an express or implied easement, what effect the loss of traffic across such easement by appellant, appellant’s customers or suppliers has had on appellant’s business.

Easements, according to OCGA § 44-9-1, may originate by express grant, prescription or by implication of law when the right is necessary to the enjoyment of lands granted by the same owner.

This Court hereby reverses and remands this case to the trial court for determination and consideration of the factual issues of the nature of S & S’s interest, if any, in the condemned property and the value, if any, of such interest.

Decided August 21, 1996.

W. Franklin Freeman, Jr., for appellant.

Michael J. Bowers, Attorney General, Harris & James, William C. Harris, Lisa D. Neill-Beckmann, for appellee.

2. This Court having found the trial court erred in its determination that a compensable interest could be decided under OCGA § 32-3-17.1 will not decide appellant’s second enumeration of error.

Case No. A96A2045

3. The only enumeration of error alleged by DOT is that the trial court erred in failing to grant DOT’s motion to dismiss appeal.

Whether or not there has been an unreasonable delay is a fact issue for the trial court’s determination. Merrill Lynch &c. v. Echols, 138 Ga. App. 593, 594 (2) (226 SE2d 742) (1976); Johnson v. Clements, 135 Ga. App. 495 (218 SE2d 109) (1975). “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower courtfs finding absent an abuse of discretion.” (Citations and punctuation omitted.) Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992); Hunt v. Lee, 190 Ga. App. 403 (379 SE2d 215) (1989); Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425 (274 SE2d 786) (1980); Patterson v. Professional Resources, 242 Ga. 459 (249 SE2d 248) (1978); DuBois v. DuBois, 240 Ga. 314 (240 SE2d 706) (1977).

There has been no abuse of discretion by the trial court under the facts and circumstances of this case in the trial court’s denial of DOT’s motion to dismiss appeal.

Judgment reversed in Case No. A96A1818. Judgment affirmed in Case No. A96A2045.

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


text:
    A96A2021.
    SMITH et al. v. SOUTHERN GENERAL INSURANCE COMPANY.
    (474 SE2d 745)
   Eldridge, Judge.

On August 26,1994, Dennis Edison, the father of the appellants, was involved in a fatal collision with a tractor-trailer owned and operated in the collision by Tony Frank Smith in Laurens County. The tractor-trailer was insured under a commercial motor vehicle liability policy issued by Southern General Insurance Company. Smith was an independent contractor hauling logs from the woods to the mill under contract with the timber producer and was working in such capacity at the time of the occurrence, carrying a load of logs. The policy of insurance covering this occurrence had not been approved by the Georgia Public Service Commission (PSC) nor had it even been submitted for approval.

Appellant did not sue the owner-driver of the vehicle and sued only appellee under a direct action under OCGA § 46-7-12 (e) in the State Court of Cobb County. Smith was a resident of Mount Vernon, Georgia. Appellee in its answer raised the issue that it did not come within OCGA § 46-7-12 and after giving notice filed its motion for summary judgment. The trial court granted the appellee’s motion for summary judgment on the grounds that Smith was an exempt carrier of forest products and that the insurer did not come within OCGA § 46-7-12 because the insured was exempt from regulation by the PSC.

1. By the express language of Ga. L. 1931, p. 199, § 7; Ga. L. 1937, p. 730, § 2; Ga. L. 1996, p. 950, § 3, OCGA § 46-7-12 (e) states: “If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.” This provision is in derogation of common law and must be strictly construed against the party seeking to invoke it. Nat. Indem. Co. v. Tatum, 193 Ga. App. 698, 700 (388 SE2d 896) (1989); see Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 509 (359 SE2d 351) (1987); Seaboard Air-Line R. v. Bishop, 132 Ga. 71, 85 (63 SE 1103) (1909); Haralson v. Speer, 1 Ga. App. 573, 575 (58 SE 142) (1907).

2. In Ga. L. 1931, Ex. Sess., pp. 99, 101, § 2 and then in Ga. L. 1939, p. 207, § 1, the General Assembly expressly exempted forest products and logs being transported from the forest to the mill from the jurisdiction of the PSC and its regulation; in Ga. L. 1980, p. 479, § 1, the General Assembly re-enacted such exemption, as well as in Ga. L. 1984, p. 1394, § 1; Ga. L. 1986, p. 1283, § 1; Ga. L. 1990, p. 709, §§ 1, 2; Ga. L. 1993, p. 579, § 1 (OCGA § 46-1-1 (9) (C) (x)). By such express exemption from the jurisdiction of the PSC, timber haulers were removed from the effect of OCGA § 46-7-12.

3. The evidence is not in dispute that at the time of the occurrence the insured was acting as a timber hauler which placed his insurer, appellee, outside the ambit of OCGA § 46-7-12 so that no direct action could be maintained against appellee under Georgia law. Unless the vehicle comes within the definition of either a common carrier or contract carrier and has no exemption, there can be no direct action against the insurer. See Nat. Union Fire Ins. Co. v. Sorrow, 202 Ga. App. 517 (414 SE2d 731) (1992); see also Nat. Indem. Co., supra at 700. Therefore, as a matter of law the insurer was entitled to summary judgment.

Decided August 21, 1996

Jason T. Schneider, for appellants.

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A95A0048, A95A0049.
    PEMBROKE STATE BANK et al. v. WARNELL et al.; and vice versa.
    (474 SE2d 770)
    Decided August 22, 1996.

      Glover & Davis, J. Littleton Glover, Jr., Webb, Carlock, Copeland, Semler & Stair, Melissa C. Duffey, for appellants.

      Adams & Ellis, Laura W. Adams, Ronald C. Berry, Tracy A. O’Connell, for appellees.
   Birdsong, Presiding Judge.

On certiorari of Pembroke State Bank v. Warnell, 218 Ga. App. 98 (461 SE2d 231), the Supreme Court held: “Under the facts in this case, the Court of Appeals erred by holding that the trial court improperly instructed the jury on the principles of Brumbelow [v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544)].” (Emphasis supplied.) Pembroke State Bank v. Warnell, 266 Ga. 819, 821 (471 SE2d 187). The judgment of the trial court is thus affirmed in part and reversed in part, in accordance with the ruling of the Supreme Court which was specifically and expressly limited to “the facts in this case.”

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ, concur.


author: Blackburn, Judge.

text:
    A95A2509.
    VAUGHN et al. v. PLEASENT et al.
    (474 SE2d 771)
   Blackburn, Judge.

In Vaughn v. Pleasent, 219 Ga. App. 8 (463 SE2d 548) (1995), we affirmed the jury verdict entered in this personal injury action. The Supreme Court granted certiorari and reversed our decision in Vaughn v. Pleasent, 266 Ga. 862 (471 SE2d 866) (1996). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Decided August 22, 1996.

Robert Altman, for appellants.

Tittsworth & Grabbe, John C. Grabbe TV, Fain, Major & Wiley, Charles A. Wiley, Jr., Kim M. Jackson, for appellees.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


text:
    A96A0757.
    SMITH v. MANGRAM.
    (474 SE2d 758)
   Blackburn, Judge.

James Smith appeals the trial court’s order which granted Homer Mangram’s motion for summary judgment. Smith brought the underlying action to recover for injuries he received while performing mechanical work on Mangram’s truck.

Smith alleged that he was injured while changing out the transmission on Mangram’s Ford pickup truck. He contends that Man-gram modified the truck’s transmission so that it would not remain in a parked position when placed in park and failed to warn him of the hazardous condition thereby created. However, Smith presented no evidence supporting his allegations that Mangram modified the transmission or that any such modification caused the truck to roll off the car ramps. In fact, the evidence in the record shows that Smith was in sole control of the truck, that he was aware of the potential danger of the truck rolling off the ramps and took precautions to avoid such danger, and that he had vast experience in performing automobile mechanical work.

Smith placed the front truck tires on two car ramps which were approximately eight to ten inches high. Prior to positioning himself under the truck, he made sure the truck was in park, the emergency brake was engaged, and he put either concrete blocks or two-by-fours behind the back wheels to prevent the truck from rolling off the ramps. Smith deposed that with the transmission out of the truck, it no longer had a parking gear. Therefore, he took precautions to prevent the truck from rolling backward. After Smith drained the transmission fluid, the truck rolled off the ramps and over his body.

Smith contends issues of fact remain as to Mangram’s failure to warn him that the truck had a history of “jumping” out of gear. Smith’s contention is without merit. There is no evidence in the record that the truck rolled off the ramps because it “jumped” out of gear. Furthermore, Smith’s admission that he had drained the transmission fluid from the truck before it rolled is the only evidence of proximate cause in the record.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In the present case, Smith’s action fails because there is no evidence that his injuries were proximately caused by any action or failure to act on Mangram’s part. As proximate cause is an essential element in a negligence claim, the trial court did not err in granting Mangram’s motion for summary judgment.

Furthermore, defendant was also entitled to summary judgment based on the plaintiff’s assumption of the risk. “The defense of assumption of the risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom; and (3) that he voluntarily exposed himself to that risk. In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication[,] where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion^] the issue of assumption of risk may be determined on summary judgment.” (Citations and punctuation omitted.) Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344) (1993).

In the present case, Smith’s testimony makes it clear that he had actual knowledge that the truck could roll backward, especially after the transmission fluid was drained, that he understood this risk, that he took action to prevent this risk, and that he voluntarily exposed himself to it. Therefore, the trial court properly granted Mangram’s motion for summary judgment. See Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99, 101 (432 SE2d 675) (1993) (“ ‘[a] person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk’ ”).

Decided August 22, 1996.

Carl A. Veline, Jr., for appellant.

Chambliss, Higdon & Carson, Jon C. Wolfe, for appellee.

Judgment affirmed.

Beasley, C. J., and Senior Appellate Judge Harold R. Banke concur.


author: Pope, Presiding Judge.

text:
    A96A0953.
    WELLS v. THE STATE.
    (474 SE2d 764)
   Pope, Presiding Judge.

Defendant Joe Henry Wells was convicted by a jury on two counts of child molestation (OCGA § 16-6-4) and two counts of enticing a child for indecent purposes (OCGA § 16-6-5). The trial court sentenced him to ten years to serve on each of the enticement counts, fifteen years to serve on the first child molestation count, and fifteen years probation for the second child molestation count. On appeal, defendant challenges the sufficiency of the evidence, the admission of hearsay evidence which bolstered the victim’s story, and the trial court’s failure to merge the child molestation and enticement counts for purposes of sentencing. While defendant’s first two arguments are without merit, we agree that the child molestation and enticement counts merged under the circumstances of this case, and therefore remand for resentencing.

1. The victim, who was 11 years old at the time of the charged offenses, testified that she was at her aunt’s house when defendant (her cousin) offered to take her to the store for a soft drink. She went with him, expecting him to go to a nearby store. Defendant instead drove to a store farther away, and during the drive he touched and rubbed her genital area. Later the same night defendant took the victim and another young girl to visit relatives, and on the way home he rubbed her genital area again.

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

2. Several witnesses testified regarding what the victim told them about this incident soon after it occurred, and defendant challenges the admission of this testimony as hearsay. This testimony was admissible under OCGA § 24-3-16, however, since the victim testified at trial and was under 14 years of age at the time the statements were made. See Greer v. State, 201 Ga. App. 775 (4) (412 SE2d 843) (1991). Contrary to defendant’s suggestion, the trial court need not make an explicit finding of sufficient indicia of reliability. See Green v. State, 212 Ga. App. 250 (441 SE2d 689) (1994). Considering the child’s age, the fact that she made the statements soon after the charged offenses occurred, and the consistency of her statements, the record contains sufficient indicia of reliability; and this is all that is necessary. See Gregg v. State, 201 Ga. App. 238 (3) (411 SE2d 65) (1991).

3. Defendant also contends that the child molestation and enticement charges should have merged for purposes of sentencing. Defendant failed to raise this issue below, and we have held that an argument based on merger is not preserved for appellate review if it is not raised below. See Henderson v. State, 218 Ga. App. 311 (3) (460 SE2d 876) (1995). Nonetheless, in the interest of justice and judicial economy (lest the issue appear again in a habeas petition), we exercise our discretion to address this question. Cf. Barnes v. State, 244 Ga. 302 (1) (260 SE2d 40) (1979).

Under Georgia law, offenses merge and multiple punishment is prohibited if one offense is included in the other as a matter of law or fact. See, e.g., Horne v. State, 192 Ga. App. 528 (6) (385 SE2d 704) (1989). Child molestation and enticement do not merge as a matter of law, since each has an element not necessary to prove the other (the actual commission of an immoral or indecent act for child molestation; asportation for enticement). Williams v. State, 156 Ga. App. 481 (1) (274 SE2d 826) (1980); see also Kirby v. State, 187 Ga. App. 88 (2) (369 SE2d 274) (1988). And they need not merge as a matter of fact, since they generally occur sequentially (i.e., the enticement offense is completed before the child molestation occurs), such that it is not necessary to prove one by using the same or less than all the facts used to prove the other. Williams, 156 Ga. App. at 482 (1); see also Robinson v. State, 210 Ga. App. 175 (2) (435 SE2d 466) (1993).

The allegations of the indictment are important, however: if an offense as charged in the indictment includes the commission of another charged offense, the latter offense is necessarily included in the former as a matter of fact. Horne, 192 Ga. App. at 533 (6). In this case, the enticement counts of defendant’s indictment specifically alleged that defendant enticed the child for the purpose of child molestation, “in that said accused did commit an immoral and indecent act to and with [the victim] by fondling the genital area of said child, with intent to arouse and satisfy the sexual desires of said accused.” Thus, in order to prove the enticement counts as alleged in the indictment, the prosecution had to prove all the facts used to prove the child molestation counts. As in Horne, therefore, the offenses merge as a matter of fact and defendant here cannot be convicted and sentenced for both. See OCGA § 16-1-7.

Decided August 22, 1996.

Walter E. Van Heiningen, for appellant.

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

We remand to allow the trial court to vacate defendant’s convictions on either the child molestation counts or the enticement counts. And because the existence of four counts obviously influenced the trial court’s exercise of its discretion in sentencing on each count, we vacate defendant’s sentence with respect to all counts and remand to allow the trial court to resentence on the remaining two counts. See United States v. Alvarez-Moreno, 874 F2d 1402, 1414 (11th Cir. 1989).

Judgment affirmed in part and reversed in part, and case remanded for resentencing.

Smith, J, concurs. Andrews, J., concurs in judgment only.


text:
    A96A1010.
    In the Interest of L. N. M., a child.
    (474 SE2d 762)
   Blackburn, Judge.

L. N. M. appeals the trial court’s adjudication of her as a delinquent for violating OCGA § 16-11-127.1.

It is not disputed that L. N. M. brought an instrument to school described as a “silver retractable razor blade” or a utility knife with a blade less than three inches long. The sole issue on appeal is whether the instrument she brought to school fell within the definition of a weapon pursuant to OCGA § 16-11-127.1.

OCGA § 16-11-127.1 (a) (2) defines “weapon” to include “any pistol, revolver, or any weapon designed or intended to propel a missile of any kind, or any dirk, bowie knife, switchblade knife, ballistic knife, any other knife having a blade of three or more inches, straight-edge razor, spring stick, metal knucks, blackjack, any bat, club, or other bludgeon-type weapon, or any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain, or any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart, or any weapon of like kind, and any stun gun or taser as defined in subsection (a) of Code Section 16-11-106.” The State asserted that the instrument herein involved fell under the straight-edge razor designation.

“ Tt is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning.’ ” Fields v. State, 216 Ga. App. 184, 186 (453 SE2d 794) (1995). The term razor is defined in Webster’s Third New International Dictionary as “a keen-edged cutting instrument made with the cutting blade and handle in one (as a straight razor) or with the cutting blade inserted into a holder (as a safety razor or electric razor) and used chiefly for shaving or cutting the hair.” It is clear that a utility knife is a “keen-edged cutting instrument” made either with a connected handle or with a razor inserted into a holder. From the testimony describing the instrument, it is evident that the razor had a straight edge as listed in the applicable Code section. The positioning of the handle on the straight-edged razor, whether it folds over the razor or allows the razor to slide into the holder, is of little significance to whether the instrument is a weapon pursuant to OCGA § 16-11-127.1 (a) (2) because the instrument has a razor with a straight edge.

“We have recognized that mathematical certainty is not necessary in statutes. A criminal statute is sufficiently definite if its terms furnish a test based on knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command. In addition, the statute must be read as a whole, each phrase or word in conjunction with the other in order to determine the scope of prohibited activity.” (Citations and punctuation omitted.) Dorsey v. State, 212 Ga. App. 830, 831 (442 SE2d 922) (1994).

Whether the silver retractable razor blade met the definition set forth in OCGA § 16-11-127.1 (a) (2) was a question for the finder of fact. Cf. id. Furthermore, “[d]eterminations of fact. . . are questions which must be resolved by the fact finder, and appellate courts must accept such determination on review unless they are clearly erroneous” (Punctuation omitted; emphasis supplied.) State v. Wilson, 220 Ga. App. 538, 539 (469 SE2d 804) (1996).

We cannot say that the trial court erred in finding that the retractable razor blade at issue was one which was prohibited by OCGA § 16-11-127.1. As the trial court’s determination is not clearly erroneous, L. N. M.’s adjudication as a delinquent is correct.

Judgment affirmed.

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

Decided August 22, 1996.

Twitty & Bankston, Michael L. Bankston, for appellant.

Robert E. Hughes, for appellee.


author: Smith, Judge.

text:
    A96A1303.
    FARMER v. THE STATE.
    (474 SE2d 760)
   Smith, Judge.

Robert Dennis Farmer was charged with the offenses of vehicular homicide in the second degree (OCGA § 40-6-393 (b)), driving an unsafe or improperly equipped vehicle (OCGA § 40-8-7), driving with a suspended license (OCGA § 40-5-121), and driving with an improper class license (OCGA § 40-5-23). He was tried before a jury, which found him guilty of driving with a suspended license and driving with an improper class license. The jury acquitted him on the remaining two counts. He appeals only the judgment of conviction and sentence entered on the jury’s verdict of guilty of driving with a suspended license.

“In order to establish the offense of driving with a suspended license, the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension. [Cits.]” Arnold v. State, 189 Ga. App. 900, 901 (1) (377 SE2d 918) (1989). In his sole enumeration of error, Farmer raises the general grounds, contending specifically that the State failed to prove he received actual or legal notice that his license was suspended, which is an essential element of the offense. State v. Orr, 246 Ga. 644 (272 SE2d 346) (1980).

A review of the record in this case leaves little doubt that it is entirely possible, even probable, that Farmer was, indeed, aware of his license suspension. But here, as in every criminal prosecution, the State must prove every element of its case beyond a reasonable doubt. We are constrained to agree with Farmer that the evidence presented in this case falls short of establishing beyond a reasonable doubt that at the time of the accident Farmer had received either actual or legal notice that his license had been suspended.

The evidence presented by the State in this regard consisted entirely of testimony from the arresting officer, Trooper M. T. Dukes of the Georgia State Patrol, who responded to the call following the collision between the tractor-trailer truck driven by Farmer and another car on February 23, 1992. Dukes testified that upon request, Farmer produced his driver’s license, which Dukes observed had expired on November 8, 1991. Dukes then ran a license check by calling his dispatcher, who checked the license on the computer. Id. The dispatcher’s computer check showed three suspensions of Farmer’s driver’s license.

Dukes testified the information he received from the dispatcher was that Farmer’s license was suspended on October 22, 1990, and again on March 11,1991, for insurance cancellation, and on February 17, 1991, under the Safety Responsibility Act when he was involved in another accident and the damages had not been taken care of. Dukes testified that Farmer’s license was “currently under suspension at the time of this accident ... for insurance cancellation” under the March 1991 suspension. When asked whether Farmer had been served notice of the suspension, however, Dukes responded only that Farmer was served notice “on the safety responsibility suspension ... on January 19, 1991.”

Even were we to assume that Dukes’s testimony constitutes proof that Farmer received actual notice of the suspension under the Safety Responsibility Act, Farmer was not charged under OCGA § 40-9-8 with operating a vehicle during a license suspension under the Motor Vehicle Safety Responsibility Act. He was charged under OCGA § 40-5-121 with driving during a license suspension for insurance cancellation. The State introduced no documentary evidence of any of the license suspensions or of notice to Farmer.

Farmer took the stand and testified that he had no knowledge that his license was suspended until the night of the collision in issue. His expired license was taken from him at that time. Several days later, he “had it taken care of and had [his] license renewed.”

Contrary to the State’s argument, Arnold v. State, supra, does not support its argument that the fact that Dukes informed Farmer at the scene after the accident that his license had been suspended constitutes sufficient actual notice to Farmer that his license had been suspended. The State misconstrues Arnold. In that case, the defendant had been told by a police officer during a prior stop in 1986 that his license was suspended. The same defendant was stopped again the following year, and he was charged with driving with a suspended license. On appeal, this court held because Arnold had been informed during the first stop that his license had been suspended, the defendant then had actual knowledge of that fact at the time of the second stop. Here, the information imparted by Dukes after the accident cannot serve to establish that at the time of the accident Farmer was driving after receiving actual or legal notice of the suspension.

“[A]bsent proof by the State of actual or legal notice to the defendant a conviction for [driving with a suspended license] cannot be sustained.” Sumner v. State, 184 Ga. App. 374, 375 (361 SE2d 536) (1987). Accordingly, Farmer’s conviction for driving with a suspended license must be reversed.

Decided August 22, 1996.

Robert W. Lavender, for appellant.

Lindsay A. Tise, Jr., District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.


author: Judge Harold R. Banke.

text:
    A96A0846.
    FORD v. ATKINSON DREDGING COMPANY.
    (474 SE2d 652)
   Judge Harold R. Banke.

On May 5, 1995, Tina Marie Ford filed this action against Atkinson Dredging Company (“Atkinson”) claiming she sustained personal injuries after the pleasure boat on which she rode collided with Atkinson’s barge, moored in a cut on the Middle Savannah River. The incident occurred on August 10, 1987, while Ford was a minor. Ford appeals the trial court’s order granting Atkinson’s motion for judgment on the pleadings on statute of limitation grounds. Held:

We reject Ford’s argument that during her minority Georgia law tolled the three-year statute of limitation established under federal admiralty law for suits arising out of maritime torts. 46 USC App. § 763a. In concluding that Georgia law does not apply, we rely in part on cases interpreting the substantially identical statute of limitation under the Federal Employers’ Liability Act (“FELA”), 45 USC § 56. Garrett v. Moore-McCormack Co., 317 U. S. 239, 244 (63 SC 246, 87 LE 239) (1942) (noting uniform interpretation of FELA and Jones Act, to which § 763a applies); see Maxwell v. Swain, 833 F2d 1177, 1178 (5th Cir. 1987) (construing § 763a and the FELA statute of limitation in pari materia).

The Georgia tolling statute is not applicable here because it is undisputed that the claim arises under federal maritime law. Burnett v. New York Central R. Co., 380 U. S. 424 (85 SC 1050, 13 LE2d 941) (1965) (FELA case declining to apply state tolling statute); Brooks v. Southern Pacific Co., 466 P2d 736, 737-738 (Ariz. 1970) (FELA case). The legislative history of § 763a demonstrates that Congress sought to eliminate “ ‘forum shopping and the presentation of stale claims which can result when claimants seek to bring their suit in the jurisdiction having the most advantageous procedural rules.’ ” (Citation omitted.) Butler v. American Trawler Co., 887 F2d 20, 22 (1st Cir. 1989). Applying the Georgia tolling statute would undermine these concerns for fairness and uniformity. Id. Other courts have likewise declined to apply state tolling statutes under similar circumstances. Brooks, 466 P2d at 738; Chesapeake & Ohio R. Co. v. Miles, 249 SW2d 160, 161 (Ky. Ct. App. 1952) (FELA case); see Logwood v. Apollo Marine Specialists, 772 FSupp. 925, 927 (2) (E.D. La. 1991). We believe that Congress would have contemplated the application of state law tolling provisions to § 763a, had it intended such.

Decided August 7, 1996

Reconsideration denied August 23, 1996.

Portman & Felser, Barnard M. Portman, Rebecca C. Benton, for appellant.

Hunter, MacLean, Exley & Dunn, Robert S. Glenn, Jr., George M. Earle, Robert E. Spears, Jr., for appellee.

The absence of such a provision distinguishes Yamaha Motor Corp. v. Calhoun, 516 U. S. _ (116 SC 619, 133 LE2d 578, 592) (1996), which does not require the application of Georgia’s tolling statute, notwithstanding Ford’s argument to the contrary. Calhoun turned on the fact that Congress specifically provided that state law wrongful death remedies for nonseafarers’ deaths within territorial waters would not be displaced by the Death on the High Seas Act, 46 USC App. § 767. Calhoun, 516 U. S. at _ (133 LE2d at 592).

Ford limited her argument to the application of Georgia’s tolling statute and failed to raise the issue of whether her action could remain viable under any other theory. See Burnett, 380 U. S. at 427 (tolling appropriate to further humane and remedial purpose of FELA); Brooks, 466 P2d at 738 (4) (limitations period may be equitably tolled for mentally incompetent person); see Logwood, 772 FSupp. at 927 (equitable tolling applies principally when defendant’s deception prevents plaintiff from asserting rights). Therefore, we are constrained to affirm.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       The trial court based its disposition on the fact that the § 763a limitation period was “substantive.” In the instant case, the distinction between the substantive and procedural matters is misplaced because a maritime tort is “ ‘a type of action which the Constitution has placed under national power to control in “its substantive as well as its procedural features.” ’ ” (Emphasis omitted.) Butler, 887 F2d at 21 (quoting Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 409 (74 SC 202, 98 LE 143) (1953). However, a judgment right for any reason will be affirmed. Mail & Media v. Rotenberry, 213 Ga. App. 826, 832 (446 SE2d 517) (1994).


text:
    A96A0908.
    REDD v. THE STATE.
    (474 SE2d 651)
   Judge Harold R. Banke.

Ronnie Lamont Redd was convicted of armed robbery (OCGA § 16-8-41) and sentenced to 20 years in prison. The State’s chief witness, a convenience store cashier, identified Redd as the man who entered his establishment, pointed a gun at him, and demanded the “tens and twenties” from the cash register. The trial court denied Redd’s motion for new trial, and he appeals. Held:

1. Redd claims the trial court erred by denying his motion for a continuance to secure an alibi witness who did not appear for trial. His attorney stated he delivered to the sheriff’s office three subpoenas for service on three alibi witnesses. Two of those witnesses appeared for trial and testified, even though they apparently did not receive the subpoenas. Redd does not claim the sheriff’s office failed to exercise due diligence in serving the subpoena on the missing witness. See Shaw v. State, 163 Ga. App. 615, 618 (2) (294 SE2d 676) (1982) (right to compulsory process does not guarantee service of subpoena), rev’d on other grounds, 251 Ga. 109 (303 SE2d 448) (1983). Because Redd did not show that the witness had been subpoenaed, that she lived within 100 miles of the court, or that he expected to procure her testimony at the next term of court, as required by OCGA § 17-8-25, we cannot say the trial court abused its discretion in denying the motion for continuance. Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250) (1986).

2. Redd also complains his character was improperly injected into the trial through the testimony of the convenience store cashier. The cashier testified he had seen Redd in the store the night before the robbery and explained that a co-worker asked Redd and his companion to leave the store. The State then asked, “And [the co-worker] told them to leave the store?” The witness replied, “Yes, because he didn’t want them shoplifting in there.” Redd moved for a mistrial, which the trial court denied. We find no error. “A passing reference to a defendant’s record does not place his character in evidence. [Cit.]” Chapman v. State, 217 Ga. App. 264, 265 (2) (457 SE2d 206) (1995). This unsolicited comment explained the cashier’s reason for remembering Redd’s prior visit to the store. Although the statement showed the co-worker was suspicious of Redd or his companion, the witness did not impugn Redd’s character because nothing he said indicated Redd had a criminal record or had ever been arrested for shoplifting. Id. See Cook v. State, 162 Ga. App. 778, 779 (2) (293 SE2d 46) (1982).

3. Finally, Redd contends he was improperly denied counsel at a preliminary hearing. He has not provided us with a transcript of that hearing. Assuming such a hearing was held, Redd has provided us with no evidence that his failure to be supplied with counsel at that hearing contributed to his conviction. Any error in denying him counsel at a preliminary hearing was, therefore, harmless error as a matter of law. Tarpkin v. State, 236 Ga. 67 (1) (222 SE2d 364) (1976); Henderson v. State, 204 Ga. App. 884, 888 (5) (420 SE2d 813) (1992).

Decided August 6, 1996

Reconsideration dismissed August 23, 1996.

Hunnicutt & Samper, Ricardo G. Samper, for appellant.

Ronnie L. Redd, pro se.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1162.
    EMERSON v. THE STATE.
    (474 SE2d 638)
   Judge Harold R. Banke.

John Alan Emerson was indicted on a charge of aggravated assault, but convicted on the lesser offense of misdemeanor battery. He enumerates five errors, most of which challenge the jury instructions trial counsel requested or failed to request.

The State’s evidence at trial revealed that this case arose after the victim, Emerson’s supervisor at Delta Airlines, instructed Emerson to leave the break area and get back to work. Another employee informed the victim that after receiving this instruction Emerson had thrown his coffee all over the break area. The victim then located Emerson, instructed him to clean up the mess, and went into an office to use the telephone. Emerson walked into the office, admitted that he was about to “lose it,” and struck the victim in the head with a crowbar. The resulting laceration required 14 staples. The victim then struggled with Emerson, who had raised the crowbar to strike again. The victim subsequently filed a civil suit against Emerson. Held:

1. The trial court did not commit reversible error by instructing the jury on battery because Emerson’s counsel requested the charge. Such self-induced error cannot be complained of on appeal. Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988). Therefore, we need not reach Emerson’s arguments that the conviction violated his due process rights.

2. We reject Emerson’s contention that his counsel was ineffective for (a) requesting the charge on battery; (b) failing to request a charge on self-defense; and (c) failing to request a charge on accident. To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Review of counsel’s performance, however, must be highly deferential. Rogers v. State, 195 Ga. App. 446, 448 (2) (394 SE2d 116) (1990). Tactical errors do not constitute ineffective assistance. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994). Moreover, we need not inquire into counsel’s alleged deficiency, absent a showing of prejudice. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

(a) Emerson failed to make the requisite showing of prejudice with regard to his assertion that counsel was ineffective for requesting the battery charge. The evidence against Emerson was overwhelming. In addition to the victim’s testimony, other corroborating witnesses saw Emerson argue with the victim, throw the coffee, retrieve his crowbar from his tool chest, follow the victim with crowbar in hand, raise the crowbar, and swing it. They also testified to breaking up the ensuing struggle. But for counsel’s request for the battery charge, given the overwhelming evidence of guilt, it is highly likely that Emerson would have been convicted of aggravated assault. See Postell v. State, 212 Ga. App. 868, 870 (443 SE2d 530) (1994). Because Emerson failed to demonstrate that he was prejudiced by what was undoubtedly a tactical decision, the trial court did not clearly err in finding that Emerson’s counsel was not ineffective. Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993).

(b) Emerson’s counsel was not ineffective for failing to request a charge on self-defense because the evidence did not support that charge. Emerson’s counsel testified that before trial Emerson denied ever striking the victim with the crowbar, a statement in keeping with Emerson’s trial testimony. Because such testimony was inconsistent with the theory that Emerson struck the victim with the crowbar in self-defense, the decision not to request that charge was appropriate. Peterson v. State, 212 Ga. App. 147, 152 (4) (441 SE2d 481) (1994).

(c) This same reasoning applies to Emerson’s claim of ineffectiveness for failing to request an accident charge. Emerson’s denial that he struck the victim with the crowbar at all foreclosed a claim that he struck the victim by accident. See id.

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

Decided August 5, 1996

Reconsideration denied August 23, 1996

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Lisa S. Estes, Assistant District Attorney, for appellee.


text:
    A96A1250.
    ECHOLS v. THE STATE.
    (474 SE2d 766)
   Pope, Presiding Judge.

Defendant Bobby Echols was convicted by a jury of burglary. The evidence was sufficient to support defendant’s burglary conviction. But the evidence also could have supported a conviction for the lesser offense of criminal trespass. Thus, the trial court erred in denying defendant’s timely written request to charge the jury on this lesser offense. See State v. Alvarado, 260 Ga. 563 (397 SE2d 550) (1990). We therefore reverse the conviction and remand for a new trial.

The State alleged in the indictment that defendant committed burglary by breaking into a church building with the intent to commit theft. To prove its case, the State presented testimony that an officer responded to a silent alarm at a church building at about 4:45 one morning. When he arrived, he saw a man standing on the porch of the building near an open doorway. The man was not wearing a shirt, but had a cloth item in one hand. He hurried off the porch and ran behind the building, but officers soon found the man lying in nearby bushes, still not wearing a shirt. The man — whom the officer identified as defendant at trial — appeared moderately intoxicated but coherent.

At the church, the officer discovered that nothing had been taken, though a window pane and two burglar alarm panels had been damaged. The intruder had apparently kicked in a window pane on a door and then had reached in to open it. The officer testified that he observed a footprint on a piece of broken glass from the pane which matched the tennis shoes defendant was wearing. The print must have been from water which dried, however, because forensics officers were unable to find it later.

Defendant gave a statement in which he did not deny breaking into the church, but said he was drunk and did not remember what he did or why.

1. Viewing this evidence in a light favorable to the verdict, it was sufficient to enable rational jurors to infer that defendant broke into the church with the intent to commit theft, and thus to find defendant guilty of burglary beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Almond v. State, 152 Ga. App. 661 (263 SE2d 533) (1979).

2. Defendant filed a timely written request that the court charge the jury on criminal trespass as well: “A person commits the offense of criminal trespass when he knowingly and without authority . . . [ejnters upon the land or premises of another person . . . for an unlawful purpose.” OCGA § 16-7-21 (b) (1). Although the jurors were authorized to infer from the evidence that defendant broke into the church to commit theft, they also could have inferred from the evidence that defendant broke in to find a place to sleep, or for some other reason not involving theft. If so, they could have found him not guilty of burglary as charged in the indictment, but guilty of the lesser offense of criminal trespass. See Hambrick v. State, 190 Ga. App. 119 (1) (378 SE2d 340) (1989). Accordingly, the trial court erred in denying defendant’s written request to charge on criminal trespass, and this error requires reversal. See Alvarado, 260 Ga. at 564.

Citing Lowe v. State, 179 Ga. App. 377 (1) (346 SE2d 845) (1986) and Raymond v. State, 170 Ga. App. 676, 677 (2) (318 SE2d 71) (1984), the State argues that a charge on criminal trespass need not be given for a defendant charged with burglary. But in these cases, a burglary/theft had clearly occurred, and the defendants denied that they had done it. Here, on the other hand, defendant does not deny that he entered the premises, but since there was no theft, it is unclear why he did so. Under these circumstances, the charge on criminal trespass should have been given.

The State points out that the charge actually requested by defendant included words of the statute omitted in the quote above: “or into any part of any vehicle, railroad car, aircraft, or watercraft of another person.” Because this phrase is not applicable to this case, the State asserts that its inclusion in the requested charge rendered the whole charge incorrect and confusing, thus excusing the trial court’s failure to give it. The inclusion of extraneous statutory language which is inapplicable but nonetheless would not confuse a reasonable juror does not render a charge incorrect, however, and the inapplicable language would not have confused a reasonable juror in this case. The State’s reliance on Vaughan v. State, 210 Ga. App. 381, 384 (4) (a) (436 SE2d 19) (1993) is misplaced, as the extraneous language in defendant’s request in that case — unlike the request here — included OCGA § 16-7-21 (a) (causing property damage of less than $500) as well as subsection (b) (1) (entry upon property of another for unlawful purpose); and since there was evidence of property damage but no evidence of the amount of damage, the extra language in Vaughan could have easily confused a reasonable juror.

Decided August 23, 1996

Debra G. McDonald, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews and Smith, JJ, concur.

        Willis v. State, 162 Ga. App. 420, 421 (4) (291 SE2d 736) (1982) is distinguishable for two reasons: in that case there was no written request to charge on criminal trespass, and the defendant admitted to the victim that he broke in to take some clothes.


author: McMurray, Presiding Judge.

text:
    A96A1362.
    McCAULEY v. THE STATE.
    (475 SE2d 669)
   McMurray, Presiding Judge.

Defendant McCauley appeals his conviction of the offenses of reckless conduct and battery. The sole enumeration of error maintains that the jury should have been directed to return a verdict of acquittal because defendant was illegally arrested. Held-.

Stated in the light most favorable to sustaining the verdict of the jury, the evidence at trial shows that at approximately 3:00 a.m., two Gilmer County Sheriff’s deputies responded to a report of a domestic disturbance at defendant’s residence. They found defendant’s wife outside the home. She was crying and very upset. The wife told Brooks, the first officer to arrive at the scene, that her husband had been drinking, had struck her, and had threatened her. She indicated that she wanted to leave the premises if she could get the child who was in the house.

The deputies were able to observe defendant through a window and could see that he was walking about the living room holding the four-month-old infant. With the consent of and accompanied by the wife, the two deputies entered the residence where they observed that the room in which defendant sat was in disarray relative to the remainder of the house, and that defendant displayed the slurred speech, bloodshot eyes, and odors commonly associated with alcoholic beverages. The deputies determined that defendant was impaired to a degree which endangered the child and asked defendant to give them the child.

Defendant stood up and withdrew with the child, and the deputies advanced on him in an attempt to secure the safety of the child. Defendant cursed and ordered the deputies from his home while the deputies continued to attempt to reach the child. Defendant then struck Brooks. This was followed by an announcement by Trammell, the second deputy, that defendant was under arrest but he continued to withdraw, and it was a moment more before Brooks was finally able to reach the child. As he released the child, defendant struck Trammell, causing an injury which required three stitches. Immediately thereafter defendant was subdued and handcuffed.

Decided August 26, 1996.

Weaver & Weaver, George W. Weaver, Jan A. Wheeler, for appellant.

Roger G. Queen, District Attorney, for appellee.

The reckless conduct charge of which defendant was convicted was predicated on defendant’s endangerment of the infant by striking the deputies while holding the child. The battery conviction was based on the injuries received by Trammell when defendant struck him.

The arguments submitted by defendant raise four issues. Two of these questions are answered by reference to the wife’s statement to Deputy Brooks that her husband had struck her. This provided probable cause to arrest defendant, and since the offense which the officers had probable cause to believe had been committed was an act of family violence, this also provided authority, pursuant to OCGA § 17-4-20 (a), to make a warrantless arrest. Dennis v. State, 220 Ga. App. 420 (2) (469 SE2d 494).

The fact that the warrantless arrest of defendant occurred in his home did not amount to a Fourth Amendment violation under the facts and circumstances of this case. Probable cause provides no justification for a warrantless intrusion of a person’s home absent exigent circumstances. Carranza v. State, 266 Ga. 263, 266 (467 SE2d 315). But, in the case sub judice, the pending danger of injury to the four-month-old infant held by defendant provides the exigency which authorized the officers to make the warrantless arrest in defendant’s home.

Finally, there is no merit in defendant’s argument that the deputies failed to comply with the procedures set out in OCGA § 17-4-20.1. Some of defendant’s arguments in relation to this statute are predicated on apparent misconstruction of its provisions while other arguments are unsupported by the evidence presented at trial.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.