author: McMurray, Presiding Judge.

text:
    75363.
    WIMBUSH v. THE STATE.
    (363 SE2d 347)
   McMurray, Presiding Judge.

Defendant was convicted of driving under the influence of alcohol and homicide by motor vehicle. His motion for new trial was denied and he appealed. Held:

1. Defendant contends the trial court erred in refusing to grant a directed verdict of acquittal because the State failed to prove that the victim’s death was the proximate result of defendant’s unlawful acts. We disagree. Viewing the evidence in a light favorable to the verdict, as we must do, we find the following: On January 1, 1982, at dawn, defendant was intoxicated as he travelled south on U. S. Highway 19-41. Visibility was poor — it was foggy and damp — and defendant was “moving pretty fast.” (Based on skid marks, a policeman opined that defendant was going 50 m.p.h. The speed limit was 45 m.p.h.) Defendant approached the intersection of U. S. Highway 19-41 and State Highway 92. The victim was travelling in an easterly direction on the state highway. She left her home just a few minutes previously in order to pick up her son from church. As she crossed U. S. Highway 19-41, defendant ran the red light at the intersection. His vehicle slammed into the victim’s car. A patrolman came upon the scene almost immediately. Although the victim’s car was heavily damaged, the patrolman managed to crawl inside and pull the victim to him. He observed that she was “real severely injured” — she had difficulty breathing, her pulse was faint and she was unconscious. Moreover, the victim suffered a “bad cut right behind her ear.” An emergency medical team arrived and transported the victim to the hospital. She was pronounced dead in the emergency room.

Given these facts, we find the evidence sufficient to establish the corpus delicti. True, no one testified specifically that the victim died as a result of the injuries inflicted in the collision. The evidence demonstrated, however, that the victim was living just prior to the collision, that she suffered very severe injuries in the collision, and that she died shortly after the collision. “The mere fact that there was no specific testimony that the ‘extensive’ injuries suffered in the collision were the proximate cause of the victim’s death ‘would not prevent the jury, after hearing a description of the wound which had been inflicted, from determining for themselves whether or not the wound was the cause of death; and if the jury decided that the wound was a cause sufficient to produce the death, and no other cause was shown to have existed, there was sufficient basis for the conclusion that death resulted from the wound rather than from some other cause, the existence of which there was not the slightest evidence to establish.’ Long v. State, 60 Ga. App. 517, 519 (4 SE2d 75) (1939). It was not error to deny appellant’s motion for directed verdict. Compare Brown v. State, 152 Ga. App. 273 (262 SE2d 497) (1979).” Beaman v. State, 161 Ga. App. 129 (1) (291 SE2d 244).

2. It is argued that the evidence was insufficient to establish that defendant was guilty beyond a reasonable doubt of driving under the influence of alcohol. This argument is wholly meritless. The patrolman who first arrived on the scene smelled a strong odor of alcohol on defendant and he opined that defendant was a less safe driver. Moreover, a blood sample was taken from defendant less than three hours after the collision. From the sample, it was determined that defendant’s blood contained .20 percent of alcohol. In view of the patrolman’s testimony and the results of the blood test, a rational trier of fact could reasonably have found defendant guilty of driving under the influence beyond a reasonable doubt. Johnson v. State, 125 Ga. App. 607 (1) (188 SE2d 416); Simon v. State, 182 Ga. App. 210, 211 (3) (355 SE2d 120). “[T]he absence of testimony about the metabolic rate of alcohol in the blood (presumably so as to permit calculation of the blood alcohol content at the actual time of the offense from the results of a subsequently administered chemical test) does not render the evidence insufficient to support the conviction. Morris v. State, 172 Ga. App. 832, 833 (1) (324 SE2d 793).” Simon v. State, supra at 212.

Decided November 24, 1987.

Johnny B. Mostiler, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

3. The vehicle driven by defendant was occupied by three other people at the time of the collision. In his closing argument, the district attorney observed that those individuals were not called as witnesses by defendant. Defendant interposed an objection, asserting that the prosecution impermissibly commented on the failure of defendant to testify. The objection was overruled, but the trial court instructed the jury at that point that defendant has no burden of proof whatsoever. Continuing his argument, the district attorney later commented that “only two people . . . really know what happened that night. One of them [is defendant] and the other one is gone from the face of the earth.” No objection was made with regard to that comment.

Defendant asserts the trial court erred in permitting the prosecution to comment upon defendant’s failure to testify. Following his initial objection and the trial court’s instruction in response to it, defendant made no further request for relief. There was no motion for a mistrial and no objection was made to the second comment by the district attorney. Accordingly, even if it was error to permit the prosecution’s arguments, the error was not preserved. See Hall v. State, 163 Ga. App. 515, 517 (4) (295 SE2d 194). Defendant’s final enumeration is without merit.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    74368.
    RODRIGUEZ v. PIGGLY WIGGLY SOUTHERN, INC.
    (363 SE2d 291)
   McMurray, Presiding Judge.

Plaintiff brought this “slip and fall” case against Piggly Wiggly Southern, Inc. She alleged that she was injured when she slipped and fell in a puddle of rainwater just inside the door of the grocery store. In the amended complaint, plaintiff maintained that at the time she entered defendant’s store, the floor was wet and extremely slippery; that defendant negligently removed a floor mat (in order to allow it to dry) and failed to replace it; and that defendant was negligent in permitting the floor to become and remain wet and in failing to warn plaintiff of the dangerous condition.

Defendant denied the material allegations of the complaint and moved for summary judgment. The motion was granted by the trial court and plaintiff appealed. Held:

On summary judgment, under OCGA § 9-11-56, “ ‘[t]he evidence must be construed most favorably to the opposing party, and the trial court must give him the benefit of all favorable inferences that may be drawn from the evidence. (Cits.)’ [Cit.]” Norton v. Ga. R. Bank & Trust, 253 Ga. 596, 603 (322 SE2d 870) (1984).

Viewing the evidence in favor of plaintiff, we find the following: Plaintiff often shopped in defendant’s store, going there about once a week. On the day in question, plaintiff, her husband and a friend drove to the store in a hard driving rain. It was still raining when they arrived. Plaintiff was dropped off in front of the store by her husband. She was sheltered from the weather by a twelve-foot canopy which extended out from the roof of the building. She did not notice that it was wet under the shelter or in the store. As she stepped inside the front door she fell when she slipped in a puddle of water approximately six inches in diameter and one-eighth of an inch deep. The store was crowded at the time. A floor mat, approximately three feet by five feet, which was normally inside the entrance to the store had been removed because it was wet. There was no indication to customers that the floor was wet or that the mat had been removed. The sole purpose of the mat was to keep dirt off the floor finish so it would not grind down the wax. Just inside the doorway was a built-in black rubber mat which was designed to electronically open the doors and which had rubber ridges on it that channel water. There was a mop and a bucket in the area of plaintiff’s fall to keep the floor mopped although store personnel were not aware of the particular puddle in which plaintiff slipped until after her fall.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

A proprietor may be held to have constructive knowledge of a hazardous substance on the floor if an employee of the proprietor was in the immediate area and could have seen the substance and taken measures to lessen the hazard. Caree v. Revco &c. Centers, 175 Ga. App. 487, 489 (333 SE2d 387). Although defendant’s employees were not aware of the particular puddle which caused plaintiff’s fall, a mop and bucket were in the immediate vicinity. Defendant’s store manager deposed that the mop and bucket were being used “to keep [the floor] mopped.” He averred further that the floor “was mopped all afternoon.” This evidence indicates that defendant’s employees were in the area of plaintiff’s fall continuously and that they were aware that the floor needed to be mopped on a regular basis. Given these facts, we think a question of fact exists as to whether defendant had constructive knowledge of the water puddle. See Piggly Wiggly Southern v. Conley, 139 Ga. App. 532, 533 (1) (229 SE2d 25).

We also think a question of fact exists as to whether plaintiff was without knowledge of the puddle of water. Although plaintiff knew it was raining when she entered defendant’s supermarket, she averred that she did not know that water had accumulated inside the supermarket entrance. Accordingly, this case is governed by Weight Watchers of Greater Atlanta v. Welborn, 165 Ga. App. 290, 291 (299 SE2d 760). In Weight Watchers of Greater Atlanta v. Welborn, supra, as was done in Telligman v. Monumental Properties, Inc., 161 Ga. App. 13 (288 SE2d 846), this court “rejected the argument that the equal knowledge of the parties as to weather conditions would bar the plaintiff from recovering, holding that the plaintiff would be barred only if she knew of the specific hazard which caused her fall.” Since plaintiff averred she did not know of the water puddle, the grant of summary judgment to defendant was improper.

Allen v. Big Star Food Market, 172 Ga. App. 879 (324 SE2d 820), is inapposite. In that case, plaintiff knew of the wet condition of the floor but walked across it anyway. Likewise, inapplicable is the case of Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480). There, unlike the case sub judice, defendant placed a “wet floor” sign immediately in front of the entrance.

Judgment reversed.

Deen, P. J., Banke, P. J., Pope and Ben-ham, JJ., concur. Birdsong, C. J., Carley, Sognier and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

“[Liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative ‘knowledge’ possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. ‘ “The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” ’ [Cit.]” Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (2) (288 SE2d 846) (1982).

In order for defendant to prevail on summary judgment, then, the evidence must show as a matter of law that defendant did not have superior knowledge to that of Mrs. Rodriguez of the condition or hazard which resulted in the slip and fall. The trial court specifically pointed out that defendant was not on notice of the puddle of water until Rodriguez’s fall and that there was no question of fact that the store’s knowledge of the presence of the accumulated rainwater was not superior to that of Rodriguez. Rodriguez urges that the trial court erred in making these findings and in granting the store summary judgment.

“It is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet; it is a matter of common knowledge that some water will normally be present where shoppers pass during rainy weather. [Cit.] It is not the duty of persons in control of such buildings to keep a large force of moppers to remove the rain as fast as it collects. [Cit.] The duty owed to such invitees is one of ordinary care, or to protect against an unreasonable risk of harm. [Cit.] The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate. [Cits.]” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985).

I conclude that “there is simply nothing in the evidence to show superior knowledge on the part of the defendant of a hazard which could give rise to a duty to remove it or warn customers, so that failure to do so could be found to constitute a failure to exercise the duty of ordinary care in keeping the premises safe, which befalls the one who is in control of the premises. OCGA § 51-3-1. [Cits.] In this state, the proprietor is not an insurer of its customers’ safety. [Cit.]” Cook v. Arrington, 183 Ga. App. 384, 386 (358 SE2d 869) (1987).

Appellant relies heavily on the fact that the store had removed the surface mat. But the undisputed evidence is that the purpose of this mat was solely to keep dirt from being ground into the wax surface and that the mat was not intended or useful for drying the soles of customers’ footwear, such as the “fliprflops” which plaintiff was wearing. Furthermore, the undisputed evidence is that the store personnel were periodically mopping the floor because of the rainy weather. That the small accumulation of rainwater occurred in the crowded store and went unnoticed by store personnel until after Rodriguez’s fall would not of itself raise an issue as to the store’s liability under OCGA § 51-3-1.

Decided November 5, 1987

Rehearing denied November 25, 1987

Thomas R. Herndon, for appellant.

John T. Woodall, Leesa A. Bohler, Carmel W. Sanders, for appellee.

The trial court properly concluded that there was no dispute that the store had no notice, actual or constructive, of the specific water accumulation and had no superior knowledge to that of plaintiff in this regard or in regard to the presence of rainwater generally.

I am authorized to state that Chief Judge Birdsong, Judge Carley, and Judge Sognier join in this dissent.


author: Sognier, Judge. Beasley, Judge,

text:
    74654.
    BURGESS v. TRAVELERS INDEMNITY COMPANY.
    (363 SE2d 308)
   Sognier, Judge.

James R. Burgess III, a subcontractor, filed a claim of lien against property owned by Grant Laboratories, Inc., for amounts owed Burgess by Seaco Builders, Inc. (Seaco), the general contractor. Seaco obtained a bond from the Travelers Indemnity Company (Travelers) to discharge the lien pursuant to OCGA § 44-14-364. After Burgess obtained a judgment against Seaco on its cross-claim in an action filed by another supplier against Burgess, Seaco and others, Burgess initiated this action against Travelers to recover on the bond. The trial court granted Travelers’ motion to dismiss, and Burgess appeals.

OCGA § 44-14-361.1 (a) provides in pertinent part that “[t]o make good [mechanics’ and materialmen’s liens], they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable: . . . (3) The commencement of an action for the recovery of the amount of [the party’s] claim within 12 months from the time the same shall become due. In addition, at the time of filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. . . .”

It is uncontroverted that appellant did not file the notice required by OCGA § 44-14-361.1 (a) (3). Notwithstanding that failure, and the fact that such notice is a prerequisite to foreclosure of the lien, Hancor, Inc. v. Fleming Farms, 155 Ga. App. 579 (271 SE2d 712) (1980), appellant contends the trial court erred by dismissing his complaint to recover on the bond. Appellant concedes that, in general, where a bond is filed to release a lien pursuant to OCGA § 44-14-364, a principal and surety are entitled to present any defense to an action on the bond which would have been available as a defense to the lien foreclosure. M. Shapiro & Sons v. Yates Constr. Co., 140 Ga. App. 675, 677 (231 SE2d 497) (1976). In M. Shapiro & Sons, however, affirmative defenses were raised by the contractor which went to the merits of the claim. Appellant asserts that we have never held that failure to fulfill the technical notice requirement in question here (filing notice in the county where the lien was filed) is a valid defense in a suit to recover on the bond which discharged the lien. We find persuasive appellant’s argument that this defense is inapplicable in factual situations such as the one sub judice and reverse.

We have held that the purpose of the notice requirement in OCGA § 44-14-361.1 (a) (3) is to protect persons dealing with the real estate against which the lien was claimed. Amafra Enterprises v. All-Steel Bldgs., 169 Ga., App. 388, 389 (1) (313 SE2d 110) (1984). Once the bond has been filed, the real estate has been released from the lien, and the action against the contractor has no further significance to persons interested in the property since, although defenses as to the lien foreclosure can be raised in an action on the bond, no judgment rendered in a successful action against the contractor on the bond can reach the real estate.

“ ‘ “In construing a statute, wherever the intention of the legislature can be discovered, it should be followed with reason and discretion, though such construction should seem contrary to the letter of the statute.” ’ In reaching a correct result in this case we are not unmindful that, where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. [Cit.] However, even though the literal language of an Act may be plain and unequivocal it is the duty of the courts, in determining the legislative intent... to refrain from ascribing to the legislature a wholly unreasonable intention or an intention to do a futile and useless thing. [Cit.]” City of Jesup v. Bennett, 226 Ga. 606, 608-609 (2) (176 SE2d 81) (1970). In this case, construing OCGA § 44-14-361.1 (a) (3) to mean that the notice designed to protect persons interested in the real estate against which the lien was claimed is a necessary precondition to a suit on a bond, where the real estate can no longer be affected, is not only “wholly unreasonable,” but “futile and useless” as well, and we decline to so interpret the statute.

Nothing in our holding in M. Shapiro & Sons, supra, or North v. Waffle House, 177 Ga. App. 162, 163 (1) (338 SE2d 750) (1985), cited by appellee, requires a contrary result. The general language employed in M. Shapiro & Sons was appropriate to the factual situation of that case. As the contractor there had defenses to the merits of the claim, it would be manifestly unjust were he unable to assert those defenses merely because a bond had been filed to release the lien. The circumstances are entirely different in the case at bar, where the defense raised is a technical defense whose purpose can no longer be served by its assertion. Although North did involve a suit on a bond, our decision in that case was premised on the fact that, for technical reasons, the real estate in question had not been released from the lien. Thus the factual situation in North was totally inapposite to the case at bar.

We hold that, under the circumstances presented here, appellant’s failure to file the notice required under OCGA § 44-14-361.1 (a) (3) was not a bar to a recovery in a suit against appellee on the bond, and the trial court erred by granting appellee’s motion to dismiss for failure to state a claim. See generally Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974).

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur specially, prompted by the various views expressed in M. Shapiro & Sons v. Yates Constr. Co., 140 Ga. App. 675 (231 SE2d 497) (1976), which I believe we are actually modifying in the instant decision. By the same token, a modification of North v. Waffle House, 177 Ga. App. 162 (338 SE2d 750) (1985) results.

The purpose of the bond is to free up the land for conveying or encumbering without the baggage of the lien. It operates on the title to the land, removing a barnacle. It is instigated by the landowner or the general contractor who are permitted, by statutory authority since 1953, to substitute the bond for the lien insofar as the property is concerned. It dissolves the lien and the strictly construed technical procedure carried by this extra-common-law device constructed to protect suppliers and laborers on the property in addition to the straightforward contractual cause of action on the debt. Since it eliminates that statutory creature, it wipes out also the prerequisite for its enforcement, that notice of it (the lien, not the claim for work done or materials supplied) be filed.

But obviously it does not destroy the defenses to the claim; the money is still owed. It jettisons the barnacle, baggage (i.e., procedural requirements) and all. What is left is a claim on the bond, and the statute does not require notice of it to be filed. Defenses to enforcement of liens as liens would go out with the lien. Defenses on the bond could include that the work was never done or the materials never supplied, i.e., that plaintiff’s claim is outside the bond coverage to begin with. A different res is substituted, and a different procedure for reaching that res.

Decided November 12, 1987

Rehearing denied November 25, 1987

James A. Mackay, Philip B. Cordes, for appellant.

Robert A. Freyre, R. Chris Irwin, for appellee.

By choosing to substitute a bond for the lien, the owner or general contractor gives up those defenses it would have had to foreclosure of lien which relate to the technical procedure for establishing and foreclosing on a lien, but not those defenses which relate to the underlying claim itself. The establishment of the lien does not establish the claim for non-payment. The lien is just a way to collect on the claim for non-payment, providing a res against which the claim can be satisfied. The bond provides a different res. In either event, landowner or general contractor could defend and say the money is not owed it in the first place.

Why should a subcontractor who had had a lien be required to file notice of lien foreclosure per OCGA § 44-14-361.1 when the lien had already been extinguished by the owner’s filing of a bond as a substitute for the lien and the subcontractor’s other suit was not a lien foreclosure? As expressed in the opinion, no reason reveals itself.

Burgess’ lien is unenforceable not because it failed to file notice of suit, but because it was extinguished, by choice, via the owner’s filing of the surety bond in its place. Burgess’ cross-claim in DeKalb on the underlying debt was commenced after the lien had been extinguished by the owner’s choosing the option of substituting a bond for the barnacle on the property’s title.


author: Benham, Judge.

text:
    74907, 74908.
    GIELOW v. STRICKLAND et al.; and vice versa.
    (363 SE2d 278)
   Benham, Judge.

The plaintiffs’ suit against Gielow for the wrongful death of their daughter resulted in a verdict in favor of the plaintiffs for $750,000. In Case No. 74907, Gielow appeals from the judgment entered on that verdict. In Case No. 74908, the plaintiffs cross-appeal from the judgment entered on a verdict awarding them zero damages on their abusive litigation claim.

1. Anticipating that plaintiffs’ counsel would argue that the jury should punish the defendant by entering a sizable verdict against him, defense counsel requested that the trial court forbid such an argument. The trial judge ruled that it would not charge the jury on the penal nature of wrongful death actions, but permitted plaintiffs’ counsel to argue that point.

Plaintiffs point to Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 889 (311 SE2d 193) (1983), for authority that there was no error in permitting the argument. However, that decision did not have the general concurrence of a full division of this court since one judge concurred in the judgment only. It is, therefore, not a binding precedent. Haynes v. Hoffman, 164 Ga. App. 236 (2) (296 SE2d 216) (1982). Being free to consider the issue anew, we choose not to follow the holding in that case.

The language discussed in Reliance Ins. Co., supra, was a quote from Savannah Elec. Co. v. Bell, 124 Ga. 663, 668 (53 SE 109) (1905), where the Supreme Court was explaining that the reason the legislature established a measure of damages which would provide more than compensation for plaintiffs in wrongful death actions was to provide a punishment for carelessness which was Pot provided by the criminal law. It is because the statute is itself punitive that punitive damages are not permitted in wrongful death actions. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331 (7) (319 SE2d 470) (1984). It should be noted that the decision to punish was the legislature’s, and that it chose to do so by prescribing a particular measure of damages. There is nothing in the statute or in the case law to indicate that the jury is to be permitted to increase the amount of the award to express outrage at the manner in which the defendant caused the death of another.

A suggestion to the jury that it increase its award for the purpose of punishing the defendant is, therefore, a suggestion that the jury use some other measure of damages than that prescribed by statute. We cannot countenance argument which urges a jury to do something not authorized by the statute governing the action for the trial of which that jury was impaneled. We hold, therefore, that the trial court’s decision to permit plaintiffs’ counsel to argue the punitive nature of the action was error.

Plaintiffs’ argument that defendant cannot raise the issue because he did not object to the argument when made is without merit: since defendant, in effect, made a motion in limine seeking an order forbidding the argument, and the trial court denied that relief, no objection was necessary to preserve the issue for appellate review. Cf. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (1) (260 SE2d 20) (1979).

The harm caused by the error became apparent during jury deliberation. The jury sent a communication to the trial judge as follows: “It is our understanding that the statute governing the award of damages considers two types of monetary dispensation: one, punitive; two, compensatory. Is the insurance company who insured the Gielow vehicle liable for the total amount of damages awarded?” Defendant asked for a mistrial and, when that was denied, an instruction that punitive damages could not be awarded. The trial court, instead, merely told the jury that “punitive damages is a legal concept relating to a separate award of damages as a separate element and a separate item. You are entitled to bring an award, as I have instructed you, relating to the full value of the life based on the statute as I have explained it.” Defendant objected to the charge. The court’s recharge, especially when considered in light of the inappropriate argument and the jury’s question, was such as to “confuse the jury and cause them to adopt a measure of damages which they might not otherwise use . . . [Cit.]” Trust Co. v. Kite, 164 Ga. App. 119, 121 (294 SE2d 606) (1982). The error in permitting the argument and in the recharge require reversal of the judgment of the trial court.

2. Plaintiffs called defendant to testify by deposition, then offered evidence of defendant’s prior felony conviction for impeachment. The admission of that impeaching evidence is enumerated as error.

Although plaintiffs contend on appeal that defendant was called for the purpose of cross-examination, the record does not support that assertion. Where a party calls the opposite party to testify without an announcement that the witness is called for cross-examination, the witness is the calling party’s witness. Wight Hardware Co. v. American Lubricants Co., 91 Ga. App. 339 (2) (85 SE2d 507) (1954). “A party may not impeach his own witness without a showing of entrapment. OCGA § 24-9-81.” Hood v. State, 179 Ga. App. 387, 389 (346 SE2d 867) (1986). It was error to permit the introduction of the felony conviction to impeach the defendant.

3. Other issues raised by defendant on appeal depend on the conduct of the trial and the nature of the evidence presented. Since those may be different in the event of a retrial, we need not rule on those issues at this time.

4. In Case No. 74908, plaintiffs cross-appeal from the judgment entered on a jury verdict awarding them zero dollars on their abusive litigation claim. Their argument, basically, is that a finding for them required an award of damages. However, we cannot say that the verdict was for them: “The jury verdict for zero damages on [that] claim was a judgment for the [defendant]. [Cit.]” Menchio v. Rymer, 179 Ga. App. 852 (3) (348 SE2d 76) (1986). Although the evidence clearly authorized a finding that plaintiffs were entitled to damages on the abusive litigation claim, we are not convinced that an award of such damages was demanded. That being so, we find no error in the trial court’s entry of judgment on that verdict.

Decided November 4, 1987

Rehearing denied November 25, 1987

B. Dean Grindle, Jr., Charles K. Higgins, for appellant.

Joe C. Freeman, Jr., Warner S. Fox, Michael J. Goldman, for appellees.

Judgment reversed in Case No. 74907. Judgment affirmed in Case No. 74908.

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


author: Beasley, Judge.

text:
    74936, 74998.
    WALTON v. DATRY.
    (363 SE2d 295)
   Beasley, Judge.

On May 8, 1985, Eric Datry, d/b/a Interface Construction Consultants (general contractor), and Edwin Walton (landowner) entered into a contract to renovate Walton’s veterinary office. The contract was on an American Institute of Architects document A-11 entitled: “Standard Form of Agreement Between Owner and Contractor where the basis of payment is the cost of work plus a fee. 1978 Edition.” Datry in turn engaged Tip Top Roofer, Inc. (subcontractor), to perform roofing repairs and replacement for a contract price of $9,998.

Disputes arose among the three parties regarding performance and payment under the contract, engendering two lawsuits which in turn resulted in the two appeals we now consider. The first suit (now Case No. 74998) was brought by Walton against Datry and set forth claims for breach of contract, accounting, breach of warranty, fraud and punitive damages. Datry answered and counterclaimed for breach of contract, quantum meruit, attorney fees and slander.

In the second action (Case No. 74936) Tip Top filed suit against Walton and Datry alleging that because the contract price for the roofing work had not been paid, Datry was indebted for that amount to Tip Top and Tip Top is entitled to a special lien on Walton’s property.

Walton filed its answer along with a counterclaim and a cross-claim against Datry. Datry also answered and counterclaimed and brought a five-count crossclaim against Walton. The fifth count alleged that work done by Tip Top was performed at the instance of Datry on behalf of Walton pursuant to a contract between Datry and Walton which provided for reimbursement of costs incurred by, as well as indemnity for losses and expenses sustained by, Datry; and that Datry was entitled to a judgment over against Walton for any amount found to be due Tip Top.

Case No. 74936

Because it involves basically procedural issues, we first consider Tip Top’s action against Walton and Datry, and their counterclaims and cross-claims.

After the last answer was filed October 22, 1986, the case was scheduled for trial on December 8 but by consent of the parties was continued. Trial was reset for February 9, 1987. Proposed pretrial orders were filed but not signed by the court. Both Walton and Datry moved to continue the case and on February 9, Walton renewed his motion for continuance. Walton amended his proposal for pretrial order by disclosing additional witnesses on February 10. On that same day Datry filed a motion for the limitation, formulation and simplification of issues. Attached thereto was Datry’s motion for summary judgment in the direct suit plus citations to depositions taken in that case.

Datry’s motion was granted; the trial court ruled that the written contract was for “cost plus” with no maximum, rather than for a “fixed price” as contended by Walton, and determined that Walton was precluded from offering evidence of prior or contemporaneous representations contradictory to its terms. The trial court also limited the issues between Walton and Datry solely to whether Datry had a claim over against Walton; the remaining issues were left for trial in the other lawsuit between Walton and Datry (Case No. 74998).

The case was then called for trial and the motions for continuance denied. A jury was selected and then excused until the next day. Walton orally moved to dismiss Datry’s counterclaim on the ground that Datry had admitted not paying Tip Top and under the terms of the contract could not recover against Walton. This motion was overruled.

The parties entered into a consent judgment whereby Tip Top obtained a judgment against Datry for the price of the roofing work. It also obtained a special lien against Walton’s property for that amount and both defendants agreed to indemnify and hold Tip Top harmless as to any claims arising out of the controversy between Walton and Datry.

The parties consented to the dismissal of the jury and for the matter to be determined by the trial court. After a hearing, the trial court entered an order which recited that Walton and Datry had entered into a construction contract which as determined by the ruling on Datry’s motion in limine was a “cost plus” rather than a “fixed price” contract; that pursuant to the contract a new roof was put on Walton’s premises the cost of which was included in the contract; that under Article 8 of the contract Walton was to pay Datry the cost of work; that this included under “article 8.1.5” the cost of all materials, supplies and equipment incorporated in the work and under “article 8.1.12” all losses and expenses, “not compensated by insurance or otherwise, sustained by the contractor in connection with the work, provided they have resulted from causes other than the fault or neglect of the contractor, including settlements made with the written consent and approval of the owner.” The trial court further found that “reimburse” includes “indemnify or made whole” that “reimburse” is a synonym for “indemnify” which means “to save harmless; to secure against loss or damage.” The court reasoned that, since Datry had confessed judgment in favor of Tip Top and Walton had confessed a special lien against his property in favor of Tip Top, the expense of Tip Top’s judgment against Datry was a part of the cost to be reimbursed to Datry by Walton. It also found for Datry on the remaining portion of his crossclaim against Walton and entered judgment in his favor.

Walton appealed, enumerating as error: 1) the overruling of his motion for continuance; 2) the sustaining of Dairy’s motion in limine (motion to limit, formulate and simplify the issues); 3) the entry of judgment in favor of Datry; 4) the denial of Walton’s oral motion to dismiss.

1. Because USCR 5 provides that discovery must be commenced promptly and completed within six months after the filing of the answer unless the time has been extended or shortened by court order, Walton urges that it was error to refuse to grant his continuance for additional discovery where six months had not elapsed. Walton’s argument concerning his motion for continuance has been decided adversely to his contention by our Supreme Court in Alexander v. Macon-Bibb County &c. Auth., 257 Ga. 181, 184 (5) (357 SE2d 62) (1987): “This rule does not, as appellant suggests, require that he be given 6 months in which to complete discovery.”

2. Walton urges that Datry’s written motion in limine was filed on the day of the trial in violation of Walton’s right to five days’ notice under OCGA § 9-11-6 (d) which specifies: “A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court.” It is also argued that the inclusion of materials from the other case converted the motion into one for summary judgment requiring service 30 days before a hearing. OCGA § 9-11-56 (c).

Motions in limine, which evolved outside the ambit of the Civil Practice Act, invite the court’s determination as to admissibility of evidence preliminary to its introduction. Pierce v. State, 173 Ga. App. 551, 552 (2) (327 SE2d 531) (1985); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285 (260 SE2d 20) (1979). In a broad sense the term refers “to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U. S. 38, 40 n.2 (105 SC 460, 83 LE2d 443) (1984). A motion in limine may be made either in writing or orally at time of trial. Gosnell v. Waldrip, 158 Ga. App. 685, 686 (282 SE2d 168) (1981). It is used in two ways: “1) The movant seeks not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury. [Cits.] 2) The movant seeks a ruling on the admissibility of evidence prior to the trial.” State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982).

Here the extrinsic proof offered did not convert the motion into one for summary judgment because such proof is part and parcel of the showing necessary to obtain the preliminary exclusion of evidence via a motion in limine. Neither OCGA § 9-11-12 (b) nor OCGA § 9-11-56 (c) apply.

With regard to OCGA § 9-11-6 (d), we are disinclined to apply it to a motion in limine which frequently is oral, not written, and often is made at the commencement of trial. This would have a negative effect on written motions, for to apply the code section strictly would penalize one who submitted a written motion rather than an oral one which has no time requirement. Moreover, since the issue can always be raised during the trial, a prospective movant need only wait until just before the evidence is sought to be elicited and then make an oral objection. In that instance the party opposing the motion has even less time to prepare a counter showing.

However, even if OCGA § 9-11-6 (d) is applicable a violation is not cause for reversal unless harm be shown. Burger Chef System v. Newton, 126 Ga. App. 636, 639 (1) (191 SE2d 479) (1972). The purpose of subsection (d) is to prevent a party from being surprised on the day of the hearing by an affidavit he is not in a position to answer. Fairington, Inc. v. Yeargin Constr. Co., 144 Ga. App. 491 (1) (241 SE2d 608) (1978). See Southwest Ga. Prod. Credit Assn. v. Wainwright, 241 Ga. 355, 356 (1) (245 SE2d 306) (1978).

Walton cannot assert he was surprised by the issue raised nor contend he did not have ample time to prepare for it. The primary factor is that only a question of law (i.e., construction of a contract, OCGA § 13-2-1) was presented. See Phillips v. Marcin, 162 Ga. App. 202, 204 (2) (290 SE2d 546) (1982), which found no error in ruling on a law issue even though no hearing was held. Walton does not assert the trial court erred in its ruling on the substantive issue, and nothing else appearing, the absence of notice is inconsequential and provides no basis for reversal.

3. & 4. These two grounds can be considered together because they are both based on the argument that the contract required payment before Datry need be reimbursed and Datry was not paid. Thus, Walton proposes that Datry may not recover from him.

This assertion lacks merit. OCGA § 9-11-13 (g) provides: “The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.” Thus, it contemplates the precise situation here, where liability is sought to be imposed directly on one defendant and he seeks recovery over against the other defendant who agreed to indemnify or otherwise reimburse him. If he is found liable then he is entitled to recover against the other defendant. See Berry v. Cordell, 120 Ga. App. 844, 847 (1) (172 SE2d 848) (1969); Benefield v. Elder Bldg. Supply, 132 Ga. App. 195, 197-198 (207 SE2d 678) (1974). In this case judgment had been entered in favor of Tip Top against Datry, and Datry was thereby entitled by cross-claim to recover that amount from Walton under the terms of the contract. See, e.g., Benefield, supra. Payment shall discharge the lien and the cross-claim judgment insofar as the roofing work is concerned.

Case No. 74998

This appeal involves the direct proceedings between Walton and Datry. After discovery, Datry filed a motion for partial summary judgment on the issues raised by Walton of cost overages to the contract price and lost income due to untimely completion of the construction. Walton responded to the motion and requested oral argument pursuant to USCR 6.3. Prior to hearing, Walton filed and served his amended complaint plus two affidavits. On the day of the hearing Walton filed exhibits obtained from prior discovery. Datry made a motion to disregard the affidavits for failure to timely file them as required by USCR 6.2 which provides affidavits in response must be filed “not later than 30 days after service of the motion, or on the date of the hearing . . . whichever occurs sooner.” The court sustained the motion and refused to consider the affidavits. Walton then tendered the two affidavits in opposition to the motion for summary judgment but the court refused to admit them. The court granted Datry’s motion for partial summary judgment and Walton appeals from that judgment.

Walton asserts error 1) in the trial court’s grant of Datry’s partial motion for summary judgment and 2) the refusal to consider Walton’s two affidavits tendered in opposition to the motion for summary judgment prior to the hearing thereof.

While USCR 6.2 requires opposing affidavits to be filed not later than 30 days after service of a summary judgment motion, OCGA § 9-11-56 permits the adverse party to serve affidavits prior to the day of hearing. In the event of a conflict the rules yield to substantive law. Russell v. Russell, 257 Ga. 177, 178 (356 SE2d 884) (1987).

But the primary and dispositive issue involves the construction of the written contract between the parties and whether the court properly held that the contract was complete and entire and not subject to extrinsic proof of its terms.

5 (a). “Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains.” Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986). The contract terms here were within the trial court’s domain.

Walton contends that the contract price was for a certain fixed amount, $65,442, plus 10 percent of that amount reduced by negotiation to $6,400 for a total of $71,842. The contract is entitled: for cost of work, plus a fee. However, Walton points out that paragraph 5.2, which reads as follows, was left blank so as to admit parol evidence to establish a maximum, agreed-upon amount: “The maximum cost to the Owner, including the Cost of the Work and the Contractor’s Fee, is guaranteed not to exceed the sum of dollars ($ ); such Guaranteed Maximum Cost shall be increased or decreased for Changes in the Work as provided in Article 7. (Here insert any provision for distribution of any savings. Delete Paragraph 5.2 if there is no Guaranteed Maximum Cost.)” The contract also contains a “merger clause” in Paragraph 16.2: “The Contract Documents, which constitute the entire agreement between the Owner and the Contractor, are listed in Article 1 and, except for Modifications issued after execution of this Agreement, are enumerated as follows: The contract. The drawing.”

Datry contends that this clause prevents the utilization of extrinsic proof to establish the contractual terms. But Wood v. Phoenix Ins. Co., 199 Ga. 461, 468 (2) (34 SE2d 688) (1945) held: “[I]f testimony is otherwise admissible to explain an ambiguity, ... it [would not] be rendered inadmissible by a stipulation in the contract to the effect that it expresses ‘the whole agreement,’ and that there is no agreement or modification of any kind in connection therewith that is not expressly set forth therein. In other words, if a contract is in fact ambiguous as to some matter, such a stipulation would not prevent explanation in the usual manner.” Accord Baker v. Jellibeans, 252 Ga. 458, 459 (2) (314 SE2d 874) (1984); Hanson v. Stern, 102 Ga. App. 341, 345 (3) (116 SE2d 237) (1960).

Of course, this does not prevent the merger or entire agreement clause from expressing the intent of the parties that the writing was to constitute the sum of the agreement. “The cardinal rule in the construction of contracts is to ascertain the intention of the parties.” Head v. Hook, 248 Ga. 818, 819 (285 SE2d 718) (1982). “The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement.” McKibben v. Fourth Nat. Bank of Macon, 32 Ga. App. 222 (1) (122 SE 891) (1924). Accord Undercofler v. Whiteway Neon Ad, 114 Ga. App. 644, 645 (2) (152 SE2d 616) (1966).

The question remaining is whether leaving the blank spaces in paragraph 5.2 of the contract creates an ambiguity which may be explained by parol. A word or phrase is ambiguous “when it is of uncertain meaning and may be fairly understood in more ways than one.” Dorsey v. Clements, 202 Ga. 820, 823 (44 SE2d 783) (1947). Language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances. Emerson v. Cousins Mtg. &c. Investments, 145 Ga. App. 883, 885 (1) (244 SE2d 890) (1978).

Under normal circumstances, the fact that paragraph 5.2 was left blank would simply mean that there was no maximum amount. Despite the contract language requiring deletion of 5.2 if there is no Guaranteed Maximum Cost, examining the contract within its “xour corners” (see Stephens v. Parrino & Ware, 138 Ga. App. 634 (226 SE2d 809) (1976)) leads to the conclusion that the failure to fill in the blanks in effect did delete paragraph 5.2, for there is no provision setting forth a limit or a maximum amount. The opportunity was patently presented on the face of the contract form to include a maximum but it was rejected by nonuse.

“The rule which permits parol proof in cases of apparent incompleteness in written statements of the obligations of the parties, denies parol proof, variant from the written terms, which imposes additional and other terms dependent upon a prior or contemporaneous parol agreement.” Roberts v. Investors Savings Co., 154 Ga. 45 (4) (113 SE 398) (1922). Moreover, if extrinsic proof were considered, Walton states he signed the instrument with the understanding that paragraph 5.2 would be filled in. “If a writing is signed with blanks left to be filled in by the other party, the person signing is bound by it.” Butts v. Atlanta Fed. &c. Assn., 152 Ga. App. 40, 42 (262 SE2d 230) (1979).

The trial court did not err in granting the motion for partial summary judgment on the contract.

(b). Insofar as Walton sought recovery of lost profits, the following rules are applicable. “Damages growing out of a breach of contract, in order to form the basis of a recovery, must be such as can be traced solely to the breach, must be capable of exact computation, must have arisen naturally and according to the usual course of things from such breach, and must be such as the parties contemplated as a probable result of the breach.” Sanford-Brown Co. v. Patent &c. Co., 199 Ga. 41 (33 SE2d 422) (1945). Accord Crawford & Assoc. v. Groves-Keen, 127 Ga. App. 646, 650 (1) (194 SE2d 499) (1972). One of the reasons is that “[t]he jury must be able to calculate the amount of loss from the data furnished, and will not be placed in a position where an allowance of the loss is based on guesswork.” Roland v. Byrd, 163 Ga. App. 408, 410 (294 SE2d 626) (1982). “The party claiming damages carries not only the burden of proving the damages, but also furnishing the jury with sufficient data to estimate the damages with reasonable certainty.” Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 740 (6) (320 SE2d 863) (1984).

Decided November 6, 1987

Rehearings denied November 25, 1987

Neil L. Heimanson, for appellant.

A. Joseph Nardone, Jr., for appellee.

Even if we consider Walton’s affidavit, which the trial court refused to admit, the proof failed to come within the requirements of Johnston v. Lyon, 173 Ga. App. 524, 525 (2) (327 SE2d 519) (1985). Walton failed to produce figures as to before and after profits which fit the time span for which recovery was sought. Moreover, applying the rule that a party’s contradictory testimony, unexplained, will be construed against him (see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986)) the viability of any lost profits is undermined.

The trial court correctly determined there was no issue as to lost profits. Hip Pocket, Inc. v. Levi Strauss & Co., 144 Ga. App. 792, 794 (2) (242 SE2d 305) (1978).

6. Because the evidence contained in the affidavits would have had no effect on the trial court’s ruling, the failure to consider the affidavits was not harmful error.

Judgments affirmed.

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

        Prophecy Corp. held that the Court of Appeals had incorrectly interpreted Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971). It did not discuss the similar interpretation that the Supreme Court had likewise given Burnette. See Jordan v. Ailstock, 230 Ga. 67, 70 (195 SE2d 425) (1973). We assume that holding has been overruled sub silentio.


author: Deen, Presiding Judge.

text:
    74269.
    DALTON FIRE DEPARTMENT et al. v. GOSSAGE.
    (363 SE2d 349)
   Deen, Presiding Judge.

The pertinent facts in this case are recorded in Dalton Fire Dept. v. Gossage, 182 Ga. App. 257 (355 SE2d 459) (1987), and will not be repeated here. In that previous appearance of this case, this court held that the claimant had not given the employer notice of a job-related injury. The Supreme Court, however, concluded otherwise. Gossage v. Dalton Fire Dept., 257 Ga. 430 (360 SE2d 249) (1987). That judgment is now made the judgment of this court. Issues presently to be decided include (1) whether the claimant’s injury was in fact job-related, and (2) whether the employer was not responsible for medical expenses incurred by Gossage before he filed his claim. Held:

1. Gossage testified that his exposure to inclement weather as a fireman caused him to catch a cold a couple of days before his injury. On the day of his injury, he was assigned the task of inspecting a warehouse that stored dyestuffs. Because of these dyestuffs, in conjunction with his cold, Gossage sneezed while he was bent over on a ladder, and he suffered a herniated disc in his lumbar spine.

Although we agree with the employer that a common cold is not compensable, this evidence of a job-related exposure to respiratory irritants while in an awkward posture was sufficient to support the board’s finding that Gossage’s back injury resulting from the sneeze was job-related and compensable. Where there is any evidence to support the board’s finding, of course, this court must affirm. N. G. Gilbert Corp. v. Cash, 181 Ga. App. 775 (353 SE2d 840) (1987).

2. It is undisputed that Gossage initially sought medical treatment from his personal physician who was not on the employer’s posted panel of physicians. The board found the employer responsible for these medical expenses that were incurred by Gossage before he filed a claim and before the employer had an opportunity to controvert the claim. This court has held that “[ujnder such circumstances, we will not construe Rule 201 (b) [which provides that an employer/ insurer cannot restrict treatment to the panel physicians when it has controverted the claim] to prevent [the employer] from denying responsibility for the charges. . . .” Scandrett v. Talmadge Farms, 174 Ga. App. 547, 550 (330 SE2d 772) (1985). The medical expenses Gossage incurred before filing his claim were unauthorized, and the board thus erred in requiring the employer to pay them. Accord State of Ga. v. Tungler, 181 Ga. App. 21 (351 SE2d 248) (1986).

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Pope, J., concur.

Decided November 25, 1987.

Ann Bishop Conn, John A. Ferguson, Jr., for appellants.

Don L. Hartman, for appellee.


author: Carley, Judge.

text:
    74835.
    INTERCHANGE VILLAGE et al. v. CLARK.
    (363 SE2d 350)
   Carley, Judge.

On June 25, 1984, appellee-employee suffered an injury to her back while she was engaged in her employment with appellant-employer. As the result of this injury, appellee eventually became bedridden. Appellee apparently did not require institutional or professional medical care but, according to her physician, she was in need of non-medical, at-home attendant care on a 24-hour basis. Appellee lived alone and, in order that she be provided with the care that her doctor had indicated was needed, appellee’s daughter obtained a leave of absence from her own employment and moved into appellee’s home. Since December 1, 1984, appellee has been provided with non-medical, at-home attendant care by her daughter. Appellant-insurer initially agreed to assume financial responsibility for the costs of the services that were being provided by appellee’s daughter and to pay $200 a week for those services, calculated at a rate of $5 per hour for a 40-hour week. Pursuant to that agreement, a payment of $4,950 was made by appellant-insurer in April of 1985. When, however, no other payments were forthcoming, appellee filed this workers’ compensation claim. Appellee sought to recover, as an element of the workers’ compensation benefits to which she was entitled for her on-the-job injury, the cost of the services that had been and were being provided by her daughter.

In October of 1985, appellee’s claim came on for a hearing before an administrative law judge (ALJ). The ALJ’s award ordered appellants to pay $350 for each seven-day week of services provided to appellee by her daughter, beginning in December of 1984 and continuing until such time as appellee no longer required non-medical, at-home attendant care. Appellants appealed directly to the superior court. The superior court affirmed the ALJ’s award in part and reversed it in part. The superior court reversed the ALJ’s award insofar as it had ordered appellants to pay the cost of such services as had been provided to appellee by her daughter prior to July 1, 1985. The superior court affirmed the ALJ’s award insofar as it had ordered appellants to pay the cost of such services as had and would be provided to appellee subsequent to July 1, 1985. Appellants applied to this court for permission to file a discretionary appeal from the superior court’s order. This appeal results from the grant of appellants’ application.

1. It is clear that, prior to July 1, 1985, appellee could not have filed a valid workers’ compensation claim for the cost of such non-medical, at-home attendant services as her daughter provides to her. The controlling statute then in effect, former OCGA § 34-9-200, provided as follows: “ ‘The employer shall furnish the employee, entitled to benefits under [OCGA § 34-9-1 et seq.], such medical, surgical, hospital, vocational rehabilitation, and other treatment. . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.’ The only portion of the above-quoted [former statutory] provision that might reasonably be interpreted to include the type services rendered by [appellee’s] daughter is that which states ‘medical, surgical, hospital and other treatment.’ While it may have been necessary for [appellee] to have someone to assist her in her home during her period of recovery, it cannot be said that such services was ‘treatment’ of [appellee].” (Emphasis in original.) Insurance Co. of N. A. v. Money, 152 Ga. App. 72, 73 (262 SE2d 240) (1979). However, effective July 1, 1985, former OCGA § 34-9-200 was stricken in its entirety and existing OCGA § 34-9-200 was enacted in its stead. Subsection (a) of existing OCGA § 34-9-200 now provides as follows: “The employer shall furnish the employee entitled to benefits under [OCGA § 34-9-1 et seq.] compensation for costs of such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” (Emphasis supplied.) Accordingly, the issue presented for resolution in this appeal is what effect, if any, the enactment of existing OCGA § 34-9-200 in 1985 has upon appellee’s entitlement to claim the cost of her daughter’s services as a recoverable element of workers’ compensation benefits.

Appellants first urge that existing OCGA § 34-9-200 (a) cannot be interpreted as authority for appellee’s entitlement to recover the cost of her daughter’s services. However, the interpretation of existing OCGA § 34-9-200 (a) that is advanced by appellants fails to give general consideration to former OCGA § 34-9-200 or specific consideration to the interpretation given to that former statute in Money, supra. “ ‘All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law,. . . and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.’ [Cit.]” Thornton v. Anderson, 207 Ga. 714, 718 (64 SE2d 186) (1951). “ ‘To ascertain the intention of the legislature, after examining the words of the Act itself, it is necessary to take into view every fact and circumstance that influenced its passage. We must consider what the law was before; the mischiefs against which the law did not provide; the nature of the remedy proposed; the true reason of the remedy.’ ” McGuire v. McGuire, 228 Ga. 782, 785 (187 SE2d 859) (1972). It is clear that, in its interpretation of former OCGA § 34-9-200, the opinion in Money employed the word “services” to connote the concept of just such at-home, non-medical services as were provided to appellee by her daughter. Thus, the subsequent inclusion of “services” in existing OCGA § 34-9-200 (a) undoubtedly evinces the intent of the General Assembly to rectify what this court had identified as a possible deficiency in the former law. “[T]he statute just does not provide for the payment of the type service which the claimant’s daughter provided. . . . [I]t seems clear from the record that the cost of the services of the daughter was a reasonable expense which was the direct result of the claimant’s injury. ... It is unfortunate that the daughter cannot be compensated for her efforts, however, that is a legislative and not a judicial matter.” (Emphasis supplied.) Insurance Co. of N. A. v. Money, supra at 73-74. Accordingly, we hold that subsequent legislation has obviated the holding in Money and that “services” as employed in existing OCGA § 34-9-200 (a) includes the type of non-medical, at-home attendant care provided by appellee’s daughter.

2. Appellants further urge that existing OCGA § 34-9-200 (a) cannot be applied retroactively to workers’ compensation claims which are based upon an injury which pre-dates July 1, 1985, as appellant’s injury does. However, “[i]t has been held that the 1985 enactment is to be retroactively applied in those cases which involve pre-existing compensable on-the-job injuries, since to do so ‘would not render compensable an injury which would not otherwise be compensable but would, at most, merely expand the scope of treatment required to be provided for an injury the compensability of which is not in question.’ [Cit.]” (Emphasis in original.) Hopson v. Hickman, 182 Ga. App. 865, 867 (1) (357 SE2d 280) (1987). There is no dispute that appellee’s injury, although occurring prior to July 1, 1985, is otherwise compensable for purposes of her entitlement to receive workers’ compensation benefits. Accordingly, the superior court correctly held that, pursuant to existing OCGA § 34-9-200 (a), appellee is entitled to recover, as an element of her workers’ compensation benefits, the cost of such non-medical, in-home attendant care as was prescribed by her physician and was being provided to her on and after July 1, 1985. Appellee has filed no cross-appeal from that portion of the superior court’s order which reverses the ALJ’s award and holds that existing OCGA § 34-9-200 (a) is not authority for appellee to recover the cost of those services of her daughter which were provided prior to July 1,1985. Accordingly, that holding of the superior court is unaffected by this appeal.

Decided November 25, 1987.

Michael K. Jablonski, Anthony P. Griffin, for appellants.

Robert K. Finnell, for appellee.

3. Appellee does not seek to recover from appellants the cost of any services which were performed by her spouse, by any one who was a member of her household at the time of her injury, or by any one having a legal rather than moral obligation to provide for her care. Compare Bituminous Cas. Corp. v. Wilbanks, 60 Ga. App. 620 (4 SE2d 916) (1939). Appellee’s non-medical, at-home attendant care is being supplied by her emancipated daughter who moved into appellee’s home to attend to her needs. There is no question but that appellee intended that her daughter be compensated and that appellee’s daughter likewise expected that she would be compensated. See generally Babb v. Potts, 183 Ga. App. 785, 786 (1) (360 SE2d 44) (1987). Compare Bituminous Cas. Corp. v. Wilbanks, supra. As we have held in Division 1 of this opinion, appellee, as an employee suffering from an on-the-job injury, is entitled to recover from appellants, as the employer and insurer, the cost of such non-medical, at-home attendant care as is prescribed by her physician. Appellants cannot escape legal responsibility for the cost of those services simply because it is appellee’s emancipated daughter and not a stranger who is providing them.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    74974.
    GORDON v. GORDON.
    (363 SE2d 353)
   Banke, Presiding Judge.

This is a child custody dispute involving application of the Uniform Child Custody Jurisdiction Act (UCCJA), OCGA § 19-9-40 et seq.

The child was born to the parties in Atlanta, Georgia, on April 28, 1976. In September of 1978, the family moved to Athens, Ohio, where the parties were later divorced. By the terms of the Ohio divorce decree, which was entered by the Court of Common Pleas of Athens County, Ohio, on November 12,1981, the appellee mother was granted custody of the child, and the appellant father was granted certain specified visitation rights. In 1983, the father filed a motion in the Ohio court for a change in custody. That motion was denied by the Ohio court later that same year. While it was pending, the mother moved to Macon, Georgia, with the child, to begin attending Mercer University Law School. She and the child have lived in Georgia ever since.

In July of 1985, the father initiated a second change of custody proceeding in the Court of Common Pleas of Athens County, Ohio, based on the mother’s alleged failure to pay her court-ordered share of visitation transportation expenses and on other conduct by her allegedly calculated to discourage the father from exercising his visitation rights. The Ohio court denied a motion by the mother seeking to dismiss this proceeding on jurisdictional grounds and, on August 28, 1986, awarded custody of the child to the father. The mother appealed this judgment to the Ohio Court of Appeals, obtaining a stay of its enforcement during the pendency of the appeal.

In December of 1986, while the Ohio appeal was pending, the mother filed the present action in the Superior Court of Muscogee County, Georgia, seeking initially merely to restrict the father’s exercise of his visitation rights but later amending her complaint to seek the domestication of the original Ohio divorce decree and to obtain an upward modification of the father’s child support obligations as set forth therein. The father challenged the superior court’s jurisdiction to make any determination regarding child custody based on the pendency of the Ohio litigation, but the superior court nevertheless proceeded to the merits of the case without specifically addressing the jurisdictional issue. After hearing testimony from the child to the effect that the father had smoked marijuana in the child’s presence during a recent visit by the child to the father’s home and had lived during that visit in a state of meretricious cohabitation with a woman whom he has since married, the court, in January of 1987, entered an order granting the mother’s request for domestication of the original Ohio decree. The effect of this ruling was, of course, to designate the mother as the legal custodian of the child.

Because the mother’s requests for increased child support and for a restructuring of the father’s visitation rights were left pending by this ruling, the court, on the father’s motion, subsequently designated the domestication order as a final judgment pursuant to OCGA § 9-11-54 (b), making it subject to direct appeal. We thereupon granted the father’s application for a discretionary appeal to this court. During the pendency of the present appeal, the Ohio Court of Appeals issued a decision affirming the decision of the Athens County Court of Common Pleas to grant custody of the child to the father. Gordon v. Gordon, _ Ohio App. 3d _(Case 1334, decided 10/19/87). Held:

The Uniform Child Custody Jurisdiction Act, as enacted in Georgia, mandates that “[t]he courts of this state shall recognize and enforce an initial or modification decree which was made by a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this article or which was made under factual circumstances meeting the jurisdictional standards of this article, so long as the decree has not been modified in accordance with jurisdictional standards substantially similar to those of this article.” OCGA § 19-9-53. The Act further provides that “[a] court of this state shall not exercise its jurisdiction under this article if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this article, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.” OCGA § 19-9-46 (a).

The decision of the Athens County Court of Common Pleas to accept jurisdiction over the father’s second motion for a change in custody was based on application of the Ohio version of the Uniform Child Custody Jurisdiction Act, which is identical in all pertinent respects to ours. See Ohio Revised Code Ann. § 3109.21 et seq. Because the jurisdictional issue was fully litigated by the mother in the Ohio proceeding, it follows that the courts of this state are both constitutionally and statutorily required to afford full faith and credit to the Ohio change of custody decree. See Gordon v. Gordon, 237 Ga. 171 (1) 172 (227 SE2d 53) (1976); Brenner v. Cavin, 163 Ga. App. 694 (295 SE2d 135) (1982). The order of the Muscogee County Superior Court domesticating the original Ohio divorce decree is consequently vacated, and the case is remanded for the entry of a domestication order which gives full force and effect to the Ohio change of custody decree entered on August 28, 1986, and affirmed by the Ohio Court of Appeals on October 19, 1987.

In so ruling, however, we observe that it does not necessarily follow from the fact that the Ohio change of custody decree is entitled to full faith and credit that the courts of this state are without authority to modify it. Pursuant to the Georgia UCCJA, a court of this state may entertain an action to modify a custody decree issued by a court of another state where jurisdiction to make such a custody determination would otherwise exist and where “[i]t appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this article.” OCGA § 19-9-54 (a). In the event the jurisdictional threshold is crossed, modification may be ordered on the basis of the same type of showing which would authorize the modification of a prior custody decree issued in this state, i.e., that there has been a material change in conditions affecting the welfare of the child since the entry of the prior decree. See generally Bowen v. Bowen, 223 Ga. 800 (1) (158 SE2d 233) (1967).

Decided November 25, 1987.

Robert L. Wadkins, for appellant.

Douglas L. Breault, for appellee.

We make these observations because of the existence of certain disturbing factors in this case which suggest the possibility that the mother may have been the victim of some “home cooking” by the Ohio courts. Although Georgia had clearly become the “home state” of the mother and child within the contemplation of the UCCJA by the time the father filed his second motion for a change in custody, the Ohio court nevertheless agreed to entertain the motion, and thereby to host the father’s third attempt in Ohio in four years to obtain custody of the child, based in large part on a determination (made pursuant to Ohio Revised Code Ann. § 3109.22, which is identical to OCGA § 19-9-43) that “substantial evidence concerning the child’s . . . future care, protection, training, and personal relationships” was available in Ohio because that state would become the state of the child’s residence in the event the father prevailed. Such “bootstrapping” would not appear to be consistent with the overall spirit and purpose of the UCCJA, which seeks to “assure that custody proceedings take place in the state with which the child and his family have the closest connections.” Graham v. Hajosy, 159 Ga. App. 466, 467 (283 SE2d 683) (1981). See OCGA § 19-9-41 (a) (3). If Georgia was not that state in 1985, when the child had lived and attended school here for the previous two years, surely it is that state now.

Judgment vacated and case remanded with direction.

Carley and Benham, JJ., concur.


text:
    75372.
    COKER v. THE STATE.
    (363 SE2d 356)
   Banke, Presiding Judge.

The appellant was found guilty of two counts of violating the Georgia Controlled Substances Act. He appeals the denial of his motion for new trial. Held:

1. In his first two enumerations of error, the appellant contends that the trial court erred in refusing to quash the indictment on the ground that the charges were not set forth with sufficient specificity to enable him to prepare a defense. The first count of the indictment charged that the accused “on the 6th day of January, 1986, did unlawfully deliver, distribute and sell marijuana, in violation of the Georgia Controlled Substances Act.” The second count of the indictment charged that the accused on the “23rd day of January, 1986, did unlawfully deliver, distribute and sell cocaine, a controlled substance, in violation of the Georgia Controlled Substances Act.”

Decided November 25, 1987.

John M. Strain, for appellant.

William A. Foster III, District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellee.

The true test of the sufficiency of the indictment is not whether it could have been made more definite and certain but whether it sets forth the elements of the offense intended to be charged and reasonably apprises the defendant of what he must be prepared to meet, and whether, in case any other proceedings are taken against him for a similar offense, the record shows with accuracy to what extent he may plead a former acquittal or conviction. Bostic v. State, 173 Ga. App. 494, 495 (326 SE2d 849) (1985). We hold that the indictment at issue in the present case was amply specific to meet these standards. “Moreover, in view of defendant’s alibi defenses, it does not appear that the failure to allege the time of sale,' to whom the sale was made, or the amount sold, materially affected defendant’s ability to prepare his defense.” Id.

2. The appellant alleges in his third and fourth enumerations of error that he was denied due process of law because of a seven-month delay which occurred between the alleged criminal transactions and his arrest. There is no right to a speedy arrest, as such, under either the Georgia or United States Constitutions. Blackwell v. State, 139 Ga. App. 477 (228 SE2d 612) (1976); Hoffa v. United States, 385 U. S. 293 (87 SC 408, 17 LE2d 374) (1966). Under Georgia law, an indictment will not be dismissed on the basis of pre-arrest delay absent proof that the sole purpose of the delay was to gain tactical advantage or that the delay resulted in actual prejudice to the accused, as opposed merely to the “prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost.” State v. Madden, 242 Ga. 637, 638 (250 SE2d 484) (1978). The appellant having failed to show either actual prejudice or an attempt by the state to gain some specific tactical advantage from the delay in this case, the trial court did not err in denying the appellant’s motion to dismiss the indictment.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    74438.
    WALSH CONSTRUCTION COMPANY et al. v. HAMILTON.
    (363 SE2d 301)
   Beasley, Judge.

We granted employer, Walsh Construction Company, and insurer, Georgia Insurance Company, discretionary review of an order of the superior court upholding an award of the State Board of Workers’ Compensation in favor of claimant Hamilton. The sole issue on appeal, which was the prominent issue below, is whether or not Hamilton’s injury arose out of and in the course of his employment and is thereby compensable.

Hamilton’s injury occurred in the “change shack,” a building where the employer’s workers gathered before they started work. The dimly lit structure was approximately three blocks from the “turnstile,” and when the employees came to work early, they assembled in the shack after clocking in. The morning of Hamilton’s injury it was cold and the group was in the shack. Hamilton asked one of the workers for some of his breakfast and another worker, Mitchell, admonished Hamilton for “coming in here begging every morning.” Hamilton told Mitchell it was not any of his affair; when Hamilton turned his back, Mitchell grabbed him, “ran” him into the wall, fell on top of him and broke his leg. Hamilton and some co-workers initially gave a false account of how the injury happened. One worker told the truth and because of it Mitchell got into a fight with the man. Subsequently, Hamilton and Mitchell were fired.

The ALJ found that Hamilton’s injury occurred when he “turned his back on Mitchell and Mitchell playfully grabbed him and threw him to the ground and fell on his leg . . . ,” that “[w]hile ‘horseplay’ is certainly not compensable, if a person is minding his own business and is attacked from behind by someone else engaging in ‘horseplay’ then it is compensable,” and that “there was a lot of kidding that went on in the ‘shack.’ ” The ALJ concluded that the injury did arise out of and in the course of employment and that claimant was entitled to compensation.

Appellants contend that this situation is controlled by City of Atlanta v. Shaw, 179 Ga. App. 148 (345 SE2d 642) (1986), in which case the employee sought benefits for injuries she sustained during a fight with a co-employee. Shaw’s injuries were held to be the result of a personal dispute with a co-employee and therefore not compensable under OCGA § 34-9-1 (4), which specifically excludes “injury caused by the willful act of a third person directed against an employee for reasons personal to such employee.” The focus is whether or not a claimant’s injuries occurred for “ ‘reasons personal to’ ” him or her, thereby not arising out of and in the course of the employment. Id. at 149. In other words, where injury results from attack by a co-employee on a claimant, the attack must be work-related rather than for personal reasons, in order for the injury to be compensable. See State of Ga. v. Purmort, 143 Ga. App. 269 (1) (238 SE2d 268) (1977).

There was no evidence that the incident between Hamilton and Mitchell grew out of anything other than a personal situation, i.e., Mitchell’s taking issue with what he perceived as Hamilton’s continual begging for others’ food. Hamilton argues that the reasoning in Shaw is inapplicable in his case because the evidence shows that there was no fight or argument between Mitchell and himself, as there was between the co-workers in Shaw, but rather that he was an innocent employee injured in the course of his employment by horseplay instigated by a fellow employee.

Even if claimant’s contention that Mitchell was merely engaging in horseplay was supported by the record, this would not help him because by his own testimony Hamilton participated at least by way of a verbal exchange with Mitchell. See Kight v. Liberty Mut. Ins. Co., 141 Ga. App. 409, 410 (233 SE2d 453) (1977); Baird v. Travelers Ins. Co., 98 Ga. App. 882 (107 SE2d 579) (1959).

The proper analysis is gleaned from the Shaw case. Hamilton “was not performing ‘tasks required by or incidental to [his] employment’ at the time [he] sustained [his] injuries, so that [his] injuries therefore did not arise out of the course of [his] employment. [Cit.]” Id. at 149. The men were waiting to begin work, and breakfast itself was a purely personal undertaking. The activity being engaged in when the injury occurred was unrelated to the employment and did not have its origin in the employment. Furthermore, even apart from his employment, Hamilton would have been equally exposed to the hazard of incurring such injuries. Id.; Kight v. Liberty Mut. Ins. Co., supra at 410. Likewise, there is no evidence that Hamilton’s presence was required in the change shack. See National Fire Ins. Co. v. Edwards, 152 Ga. App. 566 (1) (263 SE2d 455) (1979).

The lack of evidence that claimant’s injuries arose out of and in the course of his employment renders erroneous the lower court’s affirmance of the Board’s award to claimant. The judgment is reversed with direction that the case be remanded to the Board for action conforming to this opinion.

Judgment reversed with direction.

Birdsong, C. J., Deen, P. J., Banke, P. J., Carley, Sognier, and Pope, JJ., concur. McMurray, P. J., and Benham, J., dissent.

McMurray, Presiding Judge,

dissenting.

The seminal issue in this case is whether claimant’s injury arose out of the course of employment. (That the injury arose in the course of employment is not contested. See in this connection General Accident Fire &c. Corp. v. Worley, 86 Ga. App. 794 (72 SE2d 560).) The majority takes the position that claimant’s injury did not arise out of the course of employment because the willful acts of Mitchell were directed against claimant for purely personal reasons. OCGA § 34-9-1 (4). I cannot agree. It is well settled that “the injury of an innocent employee in the course of his employment by the horseplay of a fellow employee, in which the injured employee did not participate, arises out of the employment and nothing more appearing, is compensable.” American Mut. &c. Ins. Co. v. Benford, 77 Ga. App. 93, 98 (47 SE2d 673). See also Commercial Constr. Co. v. Caldwell, 111 Ga. App. 1, 3 (140 SE2d 298), wherein this court held that Code Ann. § 114-102 (now OCGA § 34-9-1 (4)) “was not intended to exclude compensation where the animosity of an assailant, which results in injury to an employee, begins while the employee is on the job for his employer under circumstances where the employee does nothing to justify the animosity at the time and does nothing subsequently to provoke its continuance or aggravate it.” The full board found that claimant was injured by the horseplay of Mitchell and that claimant did not participate in the horseplay. In view of these facts, claimant was entitled to compensation. American Mut. &c. Ins. Co. v. Benford, supra.

Decided November 6, 1987

Rehearing denied November 30, 1987

David H. Hanks, for appellants.

Jack E. Boone, Jr., Joseph R. Neal, for appellee.

City of Atlanta v. Shaw, 179 Ga. App. 148 (345 SE2d 642), is not apposite. In that case, claimant was injured when she fought with a co-employee. In the case sub judice, on the other hand, it was determined that claimant was “minding his own business” when he was “attacked from behind.”

As I would affirm the judgment of the superior court which affirmed the award of the full board I respectfully dissent.

I am authorized to state that Judge Benham joins in this dissent.


text:
    75564.
    McGRIFF v. THE STATE.
    (363 SE2d 865)
   Benham, Judge.

Appellant was convicted of two counts of burglary, driving with no insurance, and operating a motor vehicle after having been declared a habitual violator. His attorney filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). In accordance with Anders, counsel has filed a brief raising points of law which he considered could arguably support an appeal. We are in agreement with counsel that none of the points raised, though persuasively presented, has any merit. We have therefore granted the motion to withdraw. In addition, we have fully examined the record and transcript to determine independently if there are any meritorious errors of law. We have found none. We are satisfied that the evidence produced at trial was sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

Decided November 6, 1987

Rehearing dismissed November 30, 1987.

Wayne McGriff, pro se.

David E. Perry, District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Parley, J., concur.


text:
    74837.
    WARREN v. THE STATE.
    (363 SE2d 357)
   Beasley, Judge.

A jury convicted Warren of the rape, OCGA § 16-6-1, and aggravated sodomy, OCGA § 16-6-2, of his wife. See Warren v. State, 255 Ga. 151 (336 SE2d 221) (1985) which held that there is no marital exemption under either the rape statute or the aggravated sodomy statute. This appeal follows denial of his amended motion for new trial.

1. In his first enumeration of error, Warren claims that he was denied a fair trial and due process in violation of the federal and state constitutions as well as USCR 10.2 and 22 “by reason of the constant interruptions of the actual trial proceedings by the media during the presentation of evidence at trial.” However, his argument in brief on appeal is solely in regard to one incident following the state’s opening and the court’s refusal to grant a mistrial because of it.

At the conclusion of the prosecution’s opening statement, an attorney representing the Atlanta Journal and Constitution newspapers rose and asked to address the court regarding a subpoena. The court told the attorney to come around and stated that, “[t]his doesn’t have anything to do with the opening statement directly in this case, so I’ll ask the jury to just step to the jury room for a moment and do not discuss anything about the case, . . .” The jury retired from the courtroom.

The attorney moved to quash the subpoena on several grounds, including that defendant had just served it on the papers’ reporter who was covering the trial and had previously covered the case. Argument was presented by the state and by defense counsel, the court ruled, the newspapers’ attorney made two additional motions, which the court denied, and the state made a motion, which was also denied. The jury was brought back and the court told defense counsel that he might open for the accused, which he did.

Defendant did not lodge an objection or make any motion to the court regarding the interruption and the consequent delay of his opening statement but rather thanked the court and proceeded.

It was not until the next day of the trial and after eight witnesses had testified that defendant moved for a mistrial based, inter alia, on the interruption between the two opening statements. “[A] motion for mistrial not made contemporaneously with the alleged misconduct makes the motion not timely. [Cits.]” Flynn v. State, 255 Ga. 415, 419 (6) (a) (339 SE2d 259) (1986). Therefore, we have nothing further to consider in this regard, and we simply note that the interruption was occasioned by defendant’s action in serving the subpoena during the opening proceedings.

2. Appellant next urges that the court erred in refusing to admit into evidence as a defense exhibit a police report indicating that the initial call to the authorities was a request to respond to a fight and not a rape, and in refusing to allow testimony about the police report. The rationale advanced is that the testimony would have demonstrated to the jury that “the initial outcry to the police responding to the victim’s original call was not an allegation that she had been raped . . that it was admissible as part of the res gestae, admissible and relevant “in that this original report would tend to disprove a material fact at issue in the [i]ndictment,” and admissible for impeachment of the victim.

Assuming that the document and testimony were admissible as legally relevant and material, there was no harm to the defendant here by the exclusion because the same defense point, i.e., that a fight and not a rape was initially reported, was presented to the jury by other means. Fields v. State, 179 Ga. App. 116, 117 (3) (345 SE2d 662) (1986). The victim testified that when she went to the police station and then a judge’s office for a warrant she told the judge that her husband beat her up, ripped her clothes off, and forced sex on her, and that she never said the word “rape” because she did not know she had a right to. The police report was cumulative of other evidence, and any error in excluding it was harmless as a matter of law. Id.; Wells v. State, 177 Ga. App. 419, 421 (2) (339 SE2d 392) (1986).

3. Appellant further contends that the trial court erred in allowing the state, over objection, to place his character into evidence by soliciting such testimony through direct examination of its witnesses.

a) . Warren complains that the victim was improperly allowed to testify about prior marital conflicts. No objection was made. Later in the prosecutrix’ testimony, defendant lodged a hearsay objection to the woman’s relating what a lawyer had advised her about obtaining a divorce. As to the former, however, by failing to object contemporaneously with the testimony, defendant waived any claim of error in its admission. Cape v. State, 246 Ga. 520, 524 (5) (272 SE2d 487) (1980).

b) . Substantially later in the victim’s testimony, she stated that she was scared of Warren because he had been threatening her life and that of her son. Defendant objected and moved for a mistrial on the basis that the testimony regarding threats to kill was inflammatory and prejudicial and impermissibly placed his character into issue. The court overruled the motion.

We find no abuse of the trial court’s discretion. Sims v. State, 243 Ga. 83, 86 (4) (252 SE2d 501) (1979). The testimony was admissible to show “ ‘evidence of recent prior difficulties between the defendant and the [victim]. [It was] admissible as shedding light on the state of feelings between the accused and the victim. . . .’ [Cits.]” Pilcher v. State, 170 Ga. App. 869, 870 (2) (318 SE2d 640) (1984). The state of feelings between the then husband and wife was clearly relevant because the issue was whether the subject sex acts were forced or consensual. “[E]vidence otherwise admissible is not rendered inadmissible because it incidentally places the defendant’s character in issue.” Id.

c) . Warren further urges that testimony elicited from a state’s witness to the effect that he was extremely jealous of his wife and did not like any of her friends or family improperly placed his character in issue. Prior to this, defendant had unsuccessfully objected to the state’s asking the witness to describe the Warrens’ marriage on the basis that it called for a conclusion. Shortly after the testimony enumerated as error, a hearsay objection was raised but there was no objection on the basis now urged; therefore appellant has waived our consideration of it. Cape v. State, supra.

d) . Warren also now takes issue with the prosecutrix’ testimony that during the marriage he worked only irregularly. Since no objection was registered and no ruling was invoked, there is no action by the trial court for us to review.

e) . Lastly in this regard, appellant cites as objectionable testimony of the police officer who initially spoke to the victim. He testified that the victim advised him there were some guns at the marital residence that she wanted to have picked up for safekeeping. At trial, defendant objected to this testimony solely on the bases that it was irrelevant to the events on trial and prejudicial. “ ‘[W]here the objection argued below is not argued here it is abandoned and where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court.’ [Cit.]” Hagger v. State, 179 Ga. App. 16 (2) (345 SE2d 118) (1986). Moreover, it stretches its nature beyond its elasticity to infer that it brought into issue defendant’s character.

Decided November 30, 1987.

L. David Wolfe, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Assistant District Attorney, for appellee.

4. Appellant enumerates that the court erred in allowing the state to make improper comments during the trial with regard to his character, especially in closing argument, in violation of OCGA § 17-8-75. Several portions of the state’s closing are cited, but defendant made no objection to these portions of the argument at trial. They cannot now be raised for the first time. See Spivey v. State, 253 Ga. 187, 191 (4) (319 SE2d 420) (1984). The only objection to the state’s closing lodged at trial concerned a segment of argument which defendant has not pursued on appeal.

Judgment affirmed.

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


author: Birdsong, Chief Judge. Deen, Presiding Judge,

text:
    75308.
    WYATT v. FORD et al.
    (363 SE2d 866)
   Birdsong, Chief Judge.

Appeal dismissed as improvidently granted.

Appeal dismissed.

McMurray, P. J., Banke, P. J., Carley, Sognier, Pope, Benham, and Beasley, JJ., concur. Deen, P. J., dissents.

Deen, Presiding Judge,

dissenting.

Having reviewed the four-page memorandum written by Chief Judge Birdsong dated January 28, 1987 and the nine-page follow-up memorandum dated September 2, 1987,1 must respectfully dissent to the recommendation that the appeal be dismissed as improvidently granted. “[T]his writer, who has little love for motions for summary judgment, and a passion for the jury’s right to determine all issues of fact, including negligence, reluctantly . . .” would reverse the trial court’s denial of Dr. Wyatt’s motion for summary judgment. Simmons v. Classic City Beverages, 136 Ga. App. 150, 152 (220 SE2d 734) (1975).

The real question before us is whether or not the doctor abandoned his patient or withdrew from the case without giving real notice or providing a competent physician in his place. It is uncontradicted that he did have a good reason for leaving because his father had a heart attack and he had to leave town immediately. It is further, in my opinion, undisputed that he provided a competent physician in his place which was verified by the patient’s mother. His testimony was that he was going to leave Dr. Miller in total charge and that Dr. Miller was competent and the patient would be in excellent care. Dr. Wyatt recalled that Dr. Miller was present and shook his head “Yes.” Dr. Wyatt said: “A. I explained to Mrs. Ford that I was leaving town and that I was turning over primary care of Walter to the pediatric neurologist. Q. Dr. Miller? A. Yes.” Thus, Dr. Wyatt had a good reason to leave and the arrangements appear, as a matter of law, to demand the finding that there was no abandonment. “Before a physician can abandon or withdraw from a case without liability therefor, he must either give reasonable notice or provide a competent physician in his place. 70 C.J.S. 966, § 48 f (3); 41 Am. Jur. 194, § 72.” Norton v. Hamilton, 92 Ga. App. 727, 731 (89 SE2d 809) (1955).

The facts necessary to constitute abandonment involving duties of a professional appear to require almost as strong a finding as required in the abandonment of a child. “In order to constitute abandonment, there must be an actual desertion, accompanied with an intention to entirely sever, so far as possible to do so, the parental relation, and throw off all obligations growing out of the same.” Glendinning v. McComas, 188 Ga. 345, 347 (3 SE2d 562) (1939). (Emphasis supplied.)

In summary, Dr. Wyatt said: “As best I recall I told Fran that I was leaving town to see about my father who had had a coronary and that I was turning over primary care of Walter to Dr. Miller.” It is uncontradicted that between Dr. Wyatt and Mrs. Ford there was an important reason for his leaving, but that he was not abandoning his patient because he was providing a competent substitute physician. There is no abandonment when a double board-certified physician is backed up by other on-call physicians of two separate professional groups who were all available.

In addition, there does not appear to be any testimony that the actual care and treatment of the patient would or should have been different. While there was some testimony it would have been better to have transferred the patient to a children’s hospital, these opinions appear to be afterthoughts or speculations from a Monday morning quarterback’s perspective. To require greater specificity of more complicated contractual agreements for professional people to provide substitutes in emergency situations would seemingly throw a cold chill upon professional persons making such arrangements that is not required under the abandonment cases or statutes. “[O]ur ‘court physicians’ now treat chronic disorders as well as acute ones.” Burrus & Williams v. Moore, 63 Ga. 405, 409 (1879). Whether chronic or acute, summary judgment should have been granted.

Decided November 30, 1987.

Daryll Love, Hezekiah Sistrunk, Jr., for appellant.

Harold D. Corlew, for appellees.