author: Ruffin, Judge.

text:
    A94A1459.
    SUNSTATES REFRIGERATED SERVICES, INC. v. GRIFFIN et al.
    (449 SE2d 858)
   Ruffin, Judge.

The appellant filed a complaint for damages and a permanent injunction against Griffin, its former chief executive officer, and Griffin’s business associates (appellees herein) alleging, inter alia, breach of an employment agreement between the appellant and Griffin. The appellees filed a counterclaim seeking a declaratory judgment concerning the validity of the noncompetition provisions of the employment contract.

Griffin’s employment contract included a series of four specific non-competition covenants providing that for two (2) years after the contract’s termination, he would neither directly nor indirectly: (1) disclose, use or exploit confidential information learned by reason of his employment by the appellant for the benefit of anyone other than the appellant; (2) solicit or divert certain of the appellant’s customers; (3) employ, attempt to employ or assist anyone else in employing as a manager, executive or salesperson in any competing business any of the appellant’s managerial, executive or sales personnel; or (4) engage in any competing business in the capacity of officer, managerial or executive employee, director, consultant or shareholder. Griffin also covenanted to return to the appellant all documents containing confidential business information upon the contract’s termination.

The trial court found that an overbroad, “springing territorial restriction” in the contract’s covenant against solicitation of customers and the lack of any territorial restriction in the non-competition clause rendered these covenants void. The court refused to “blue-pencil” the agreement and declared all five restrictive covenants unenforceable. This appeal followed.

1. First, we address the appellees’ motion to dismiss the appeal for lack of jurisdiction pursuant to OCGA § 5-6-34 (a) because the trial court’s order is neither a final judgment disposing of all claims nor an express refusal of the appellant’s request for injunctive relief.

The motion to dismiss the appeal is denied. Declaratory judgments “have the force and effect of [final judgments] and [are] reviewable as such.” OCGA § 9-4-2 (a); Spivey v. Safeway Ins. Co., 210 Ga. App. 775 (1) (437 SE2d 641) (1993).

2. The appellant maintains the trial court erred when it refused to “blue-pencil” the non-competition provisions of the employment agreement and declared all of the covenants unenforceable for lack of sufficient geographical restrictions in two provisions.

The “Restrictive Covenants” section of Griffin’s employment contract includes four distinct “Noncompetition” covenants and a “Return of Documents” provision. A “Definitions” paragraph explains key terms within the section. The parties agreed upon the severability of the document’s covenants and provisions.

The trial court incorrectly concluded that all five covenants, including the agreement to return confidential documents, must be declared unenforceable if one of the restrictive covenants is void. Instead, the specific “noncompetition” prohibitions concerning employment and customer solicitation must be analyzed separately from those concerning disclosure of confidential business information and employee piracy. Wiley v. Royal Cup, 258 Ga. 357, 359-360 (2) (370 SE2d 744) (1988); Lane Co. v. Taylor, 174 Ga. App. 356 (2) (330 SE2d 112) (1985).

The appellant challenges the trial court’s finding that the covenant not to engage in a competing business is not limited as to territory and thus is unenforceable. The reasonableness of an employment contract’s covenant not to compete is determined by “analyzing it in terms of time, territorial effect, and the business interest of the employer sought to be protected. [Cit.] ” Watson v. Waffle House, 253 Ga. 671, 672 (2) (324 SE2d 175) (1985). This test of “duration, territorial coverage, and scope of activity” is not “an arbitrary rule,” but a “helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” Id. at 673.

Griffin agreed, for two years after leaving the appellant’s employ, not to “engage in or render any services to or be employed by any Competing Business in the capacity of officer, managerial or executive employee, director, consultant or shareholder.” The contract defines “Competing Business” to mean merely “the business ... of providing, as a principal line of business, cold storage warehouse services to the peanut industry and frozen storage warehouse services to local food processors.” We must reject the appellant’s argument that the definition of competing business sufficiently restricts Griffin’s post-employment activities as to territory. The trial court correctly found that the lack of a territorial restriction invalidates this covenant. Since Georgia does not “blue-pencil” covenants restricting competition contained in employment contracts, the non-competition provision concerning solicitation of the appellant’s customers must also fail. Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640 (1) (261 SE2d 572) (1979); Adcock v. Speir Ins. Agency, 158 Ga. App. 317 (279 SE2d 759) (1981).

However, Georgia’s rejection of the “blue-pencil theory of sever-ability” does not require invalidation of the provisions concerning return of documents, disclosure of confidential business information and interference with employees’ contractual relations. Wiley v. Royal Cup, 258 Ga. at 360; Lane Co. v. Taylor, supra.

“Unlike general noncompetition provisions, . . . specific nondisclosure clauses bear no relation to territorial limitations and their reasonableness turns on factors of time and the nature of the business interests sought to be protected. [Git.]” Durham v. Stand-By Labor of Ga., 230 Ga. 558, 563 (1) (198 SE2d 145) (1973). Two important factors are “(1) whether the employer is attempting to protect confidential information relating to the business, such as trade secrets, methods of operation, names of customers, personnel data, and so on — even though the information does not rise to the stature of a trade secret; and (2) whether the restraint is reasonably related to the protection of the information. [Cits.]” Id. at 564.

Griffin agreed not to use, disclose or exploit, for two years after leaving the appellant’s employ, confidential business information. The contract defines such information as “data and information relating to the business of the Company (whether constituting a trade secret or not) which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his relationship to the Company and which has value to the Company and is not generally known to its competitors. Confidential information shall not include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without authorization) or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means.”

Since it is reasonable as to both subject matter and duration, the restriction is enforceable. Similarly, the contract’s provision for the return of documents containing confidential information is enforceable.

In U3S Corp. of America v. Parker, 202 Ga. App. 374, 376 (2a) (414 SE2d 513) (1991), this court upheld a covenant not to “ ‘solicit or in any manner encourage employees of [the former employer] to leave [its] employ . . .’ ” for a period of two years after termination of employment. Here, the covenant against interference with the employment relations of the appellant is reasonably limited in time and is not so vague or ambiguous as to be unenforceable. Therefore, the trial court’s grant of declaratory relief to the appellees on this issue was erroneous.

Decided August 23, 1994

Reconsideration denied October 27, 1994.

Parker, Johnson, Cook & Dunlevie, G. William Long III, Everett W. Gee III, for appellant.

Kilpatrick & Cody, H. Quigg Fletcher III, Kent E. Mast, Langley & Lee, C. Richard Langley, for appellees.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

license: Public Domain

text:
    A94A1404.
    THE STATE v. TONEY.
    (449 SE2d 892)
   Ruffin, Judge.

Appellee was indicted for burglary, aggravated assault, aggravated sodomy, and rape. Appellee moved the court to suppress certain personal items obtained from his residence and hair and blood samples, all of which were seized pursuant to search warrants. The trial court granted appellee’s motion to suppress, and the State appeals.

On May 8, 1993, based on information supplied by the victim, Detective William Dawson obtained an arrest warrant for the appellee from Magistrate Charles Chesbro. Appellee was arrested on the same day. On May 10, 1993, Detective Dawson applied for and received search warrants from Magistrate Bill Burn to seize various personal items and hair and blood samples from appellee’s residence and his person. The searches were executed, and the detective seized the majority of the items listed in the search warrants, items which appellee subsequently moved to suppress.

After the suppression hearing, in which Detective Dawson was the sole witness, the trial court made the following findings: (1) aside from the mere reference to the arrest warrant in the affidavits prepared by Detective Dawson in support of the applications for the search warrants, there was no evidence of record connecting the appellee to the crimes alleged in the applications; (2) the search warrant for appellee’s residence was especially suspect because “Olive Springs Rd., Marietta GA” was written in the space provided to identify the accused; and (3) despite the fact that Detective Dawson referred to the arrest warrant in his testimony before Judge Burn, there is no evidence that Judge Burn considered the contents of the arrest warrant when he made his determination. Thus, the court concluded that the mere fact that Judge Chesbro issued an arrest warrant did not establish a fair probability that evidence of the crime would be found in the place to be searched and that there was insufficient evidence that Judge Burn had a substantial basis for finding probable cause.

Relying on Ferrell v. State, 198 Ga. App. 270 (401 SE2d 301) (1991) and Kennard v. State, 180 Ga. App. 522 (349 SE2d 470) (1986), the State contends that probable cause for the search warrants was established by virtue of the issuance of an arrest warrant and appellee’s arrest; therefore, the court erred in concluding that there was no evidence in the record connecting appellee to the crimes alleged in the search warrants. The State also argues that Judge Burn was authorized to rely on Judge Chesbro’s previous determination of probable cause for the issuance of the arrest warrant, since such finding is presumptively correct, the contrary not having been demonstrated.

However, neither Ferrell nor Kennard stand for the proposition that the issuance of an arrest warrant and a subsequent arrest pursuant to the warrant establish probable cause for the issuance of a search warrant. “ ‘(B)efore a warrant may issue, the issuing magistrate must have sufficient reasons to believe that a crime was committed, that the items sought are connected with the crime, and that the items sought will be found in the place to be searched. (Cit.)’ [Cit.]” Id. at 523. In Kennard, the affiant stated that he had reason to believe and did believe that a weapon used in the commission of a crime was being stored in the defendant’s home. The court concluded since the defendant was arrested at his home shortly after the crime took place, it was reasonable for the investigating officers to believe that the weapon would be there; thus, there was probable cause for the issuance of a warrant. Id. In Ferrell, the court first questioned the necessity of obtaining a warrant to obtain hair samples but nonetheless concluded that the seizure of hair samples after the defendant’s arrest was proper because there was probable cause to believe that hair which the affidavit indicated had been discovered in a stocking mask abandoned at the scene of the crime by the perpetrator would match defendant’s hair. Ferrell, supra at 271-272.

In the instant case, with regard to the State’s seizure of hair and blood samples, there is nothing in Detective Dawson’s affidavit or subsequent testimony which indicated how these items are “connected with the crime,” such as evidence that the perpetrator’s blood and hair were found at the scene of the crime. As to the personal items seized from appellee’s home, which consisted of clothing which matched the victim’s description of what her attacker wore at the time of the attack, there was insufficient evidence that the “items sought [would] be found in the place to be searched.”

Decided October 27, 1994.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Bruce Hornbuckle, Assistant District Attorneys, for appellant.

Judson R. Knighton, for appellee.

Seven days passed between the date of the alleged acts and Detective Dawson’s affidavit, and while this lapse of time does not necessarily prevent a finding of probable cause based on staleness (see Reeves v. State, 197 Ga. App. 107 (1) (397 SE2d 601) (1990)), Detective Dawson did not specifically indicate a reasonable belief that the items sought would be found in appellee’s residence. See Kennard, supra. Nor was there any other evidence supporting such a finding such as the location of appellee’s arrest, whether appellee returned to his residence after the attack, the likelihood that appellee returned to his home after the attack, the distance between the scene of the crime and appellee’s residence, and what appellee’s activities were between the attack and the execution of the arrest warrant. Compare Duckworth v. State, 246 Ga. 631 (3) (272 SE2d 332) (1980); Murphy v. State, 238 Ga. 725 (1) (234 SE2d 911) (1977); Walker v. State, 157 Ga. App. 728 (2) (278 SE2d 487) (1981).

“Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal. [Cit.] . . . The finding of fact of the trial court ... is not clearly erroneous and therefore must be accepted by this court on appeal. [Cits.]” State v. Marcus, 206 Ga. App. 385, 387 (2) (425 SE2d 351) (1992). Accordingly, the trial court did not err in granting appellee’s motion to suppress.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A94A1780.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. SHOOK et al.
    (449 SE2d 658)
   Johnson, Judge.

Brandi Shook filed a complaint against Cynthia Griffith for injuries allegedly sustained in a car accident. Griffith is a minor living with her mother, Iris Janow, and her stepfather, Kenneth Janow. Georgia Farm Bureau Mutual (“GFBM”) filed a declaratory action against Shook, Griffith and the Janows for a determination of whether Griffith could aggregate or “stack” the three automobile insurance policies issued to her family so as to maximize the amount of coverage for the accident. GFBM moved for summary judgment. The trial court denied GFBM’s motion and granted final judgment to Griffith. GFBM appeals.

GFBM contends the trial court erred in denying its motion for summary judgment and in granting final judgment for Griffith because the policies at issue do not allow stacking. We agree and reverse. In general, Georgia law allows an insured to stack the limits of liability coverage provided by separate policies to the extent of the insured’s expense. Lofton v. State Farm &c. Ins. Co., 192 Ga. App. 154 (384 SE2d 245) (1989). However, the policy language itself may bar the stacking of such coverage. McCombs v. State Farm &c. Ins. Co., 200 Ga. App. 28 (406 SE2d 549) (1991). We believe the policy language in the instant case does just that. GFBM issued to the family three separate automobile insurance policies, all of which were in effect at the time of the accident. One listed a Toyota, which was the car involved in the accident, as the covered auto and Iris Janow as the named insured. A second policy listed an Audi as the covered auto and Kenneth Janow as the named insured. A third listed a Ford as the covered auto and Kenneth Janow as the named insured. Each policy provided maximum liability coverage of $25,000 for bodily injuries sustained by any one person in any one car accident. Each policy provided coverage for the insured or family members using “any auto.” Although GFBM concedes Griffith is an insured under the Toyota policy, the parties disagree as to whether the remaining two policies cover the accident and if so, whether those policies can be stacked. Because of the language contained in each of the policies on the issue of stacking, we need not reach the question of whether Griffith’s accident is covered by the other policies. Each of the policies contains the following provision: “TWO OR MORE AUTO POLICIES — If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under any one policy.” Therefore, even assuming all three policies apply to the accident, GFBM’s liability is limited to $25,000. An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others. McCombs, supra; Lofton, supra. Shook argues that GFBM’s failure to point out this particular contractual provision in moving for summary judgment resulted in a waiver of such an argument on appeal. It is true this court cannot consider evidence not presented to the trial court, Paul v. Joseph, 212 Ga. App. 122, 125 (2) (441 SE2d 762) (1994), or arguments raised for the first time on appeal. Gram Corp. v. Wilkinson, 210 Ga. App. 680, 682-683 (4) (437 SE2d 341) (1993). However, we are not being asked to do either here. Instead, we are being requested to consider a contractual provision which was part of the record below relating to an argument, the propriety of stacking, raised in the trial court. We add that GFBM’s appeal is from the trial court’s denial of its motion for summary judgment and what was effectively the trial court’s grant of summary judgment to Griffith. On appeals from the grant of summary judgment, it is this court’s function to examine the record de novo and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. See Dixie Diners Atlanta v. Gwinnett Fed. Bank, 211 Ga. App. 364, 366 (1) (439 SE2d 53) (1993). Our examination of the record necessarily includes an examination of the policies at issue in their entirety. Based on the clear language of the policies disallowing stacking of coverage, the trial court erred in denying GFBM’s motion for summary judgment and in granting judgment for Shook, Griffith and the Janows.

Decided October 27, 1994.

Watson & Dana, Dennis D. Watson, for appellant.

Little & Adams, Robert B. Adams, John 0. Wiggins, for appellees.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A94A2302.
    In the Interest of J. D. D. et al., children.
    (449 SE2d 655)
   Blackburn, Judge.

The appellant appeals an order of the Juvenile Court of DeKalb County terminating her parental rights with respect to her three children, S. J. D., F. S. D., and R. D., based upon the court’s finding that the children were deprived because of the appellant’s chronic unrehabilitated abuse of alcohol, and that such deprivation was likely to continue. The juvenile court also terminated the parental rights of her husband, the children’s father, and no appeal has been taken from the portion of the court’s order terminating the father’s parental rights.

In two separate enumerations, the appellant challenges the sufficiency of the evidence to support the termination of her parental rights. Specifically, she asserts that the clear and convincing evidence did not show that the cause of the children’s deprivation was likely to continue or that she unjustifiably failed to comply with a court-ordered plan for reunification for a period of a year prior to the filing of the termination petition.

“The appropriate standard of appellate review in a case where a parent’s rights to her child have been severed is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test, The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Citations and punctuation omitted.) In the Interest of J. H., 210 Ga. App. 255, 258 (435 SE2d 753) (1993).

“The termination of parental rights under OCGA § 15-11-81 is a two-step process. First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child.” (Citation and punctuation omitted.) In the Interest of M. R., 213 Ga. App. 460, 463 (1) (444 SE2d 866) (1994). A parent’s excessive use of alcohol and failure to comply with court-ordered reunification plans for a year or longer are among the factors which the court may consider in determining parental conduct or inability. OCGA § 15-11-81 (b) (4) (B) (ii), (C) (iii).

It is undisputed that the children are deprived based upon two unappealed orders of which the court took judicial notice during the termination proceeding. See In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987). In June 1991, one-year-old S. J. D. and one-month-old F. S. D. were adjudicated deprived children and placed in state custody due to both parents’ habitual intoxication which often led to incidents of domestic violence and the use of profanity. R. D., the youngest child, who was born on August 26, 1992, was adjudicated a deprived child in November 1993, after the appellant and her husband admitted that the child had been in their care on numerous occasions when their intoxicated state placed the child at risk. He was subsequently placed in the custody of the state.

A reunification plan was implemented in 1991 after the appellant’s older children were placed in the homes of relatives by the DeKalb County Department of Family & Children Services (DFACS). However, the evidence before the juvenile court showed that the appellant failed to significantly comply with the plan. The appellant failed to submit to prenatal examinations; missed parenting classes and family counseling meetings; fled to Alabama with her husband and the children without DFACS’ knowledge and permission while the children were temporarily in their custody; failed to maintain a clean and sanitary home environment; and failed to maintain steady employment and provide financial support for the children.

The evidence also showed that the appellant continued to regularly consume intoxicating liquors in disregard of the reunification plan. Several family members testified that she continued to abuse alcohol as recently as six months prior to the termination hearing. She also consumed alcohol during her pregnancy with R. D. and while she was nursing the infant. She appeared at the children’s daycare center noticeably intoxicated prior to the Alabama trip, and was also noticeably intoxicated when she made a late appearance at R. D.’s deprivation hearing on October 1, 1993. During her testimony, the appellant admitted that she was so inebriated on December 15, 1993, one week before the filing of the instant petition, that she could not remember leaving a bar with a man who was not her husband and bringing the man to the family home.

Several witnesses testified that the appellant was unable to properly care for the children while they were temporarily in her physical custody. When the children returned from the Alabama trip with the appellant and her husband in September 1993, where they lived outdoors for several days, all of the children had upper respiratory infections; F. S. D. had an ear infection; and S. J. D. appeared malnourished. F. S. D. would often return from weekend visits with a diaper rash as a result of infrequent diaper changes. On one occasion, F. S. D. returned from a temporary visit with the appellant with a burn the size of a cigarette burn under her nose.

This clear and convincing evidence authorized the trial court’s finding that the cause of the children’s undisputed deprivation is likely to continue, and likely to cause serious physical, emotional or moral harm. See In the Interest of M. R., 213 Ga. App. 460 (444 SE2d 866) (1994). Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. In the Interest of J. L. Y., supra. See also In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991).

We reject the appellant’s argument that the evidence does not show that she has failed to comply with plans for reunification with R. D. for the one-year period required under OCGA § 15-11-81 (b) (4) (C). The one-year period provided for in OCGA § 15-11-81 (b) (4) (C) is designed to give those parents interested in reuniting with their children sufficient time and opportunity to demonstrate an ability to comply with the terms of the court’s order. In the Interest of B. L., 196 Ga. App. 807, 808 (397 SE2d 156) (1990). The appellant has had in excess of three years to demonstrate an ability to comply with the 1991 reunification plans, and hence, the intent of the statute has been satisfied. Id. Any additional time for improvement would not overshadow the detriment that these young children have suffered during their tender years. See id. Under these circumstances, we cannot say that the juvenile court erred in terminating the appellant’s parental rights.

Decided October 27, 1994.

Nikki L. Marr, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Robert G. Nardone, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2470.
    PARMAR et al. v. KHERA.
    (449 SE2d 894)
   Blackburn, Judge.

Appellants, Gurnam S. Parmar and Gurjit S. Jalli, appeal the trial court’s sua sponte order which referred this case to an auditor pursuant to OCGA § 9-7-3. Appellee, Manjit Khera, brought the underlying action for declaratory judgment, dissolution of a partnership, an accounting, and damages. In referring this case to an auditor, the trial court provided that the auditor was to investigate the case and pass upon all questions of law and fact.

1. Appellants filed their notice of appeal based on OCGA § 5-6-34 (a) (3) which allows direct appeal of a judgment or order “directing that an accounting be had.” However, the statute does not provide for a direct appeal of all orders appointing an auditor. The relief requested in the complaint must be reviewed to determine the appropriateness of a direct appeal. Under the facts of this case, a direct appeal was appropriate.

2. The appointment of an auditor is within the discretion of the trial court. Mendenhall v. Kingloff, 215 Ga. 726 (113 SE2d 449) (1960); Henderson v. KMSystems, 188 Ga. App. 893, 900 (374 SE2d 550) (1988). Upon our review of the record, we find no abuse of the trial court’s discretion.

Decided October 27, 1994.

Pankey & Coffman, Larry A. Pankey, for appellants.

Jay M. Sawilowsky, for appellee.

3. Appellants’ remaining enumerations of error are not supported by the record.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       OCGA § 9-7-3 provides that “[i]n all cases in the superior, state or city courts involving matters of account, if the case shall require it, the judge may appoint an auditor to investigate the matters of account and report the result to the court upon the application of either party and after notice to the opposite party, or upon his own motion when in his judgment the facts and circumstances of any such case require it.”


author: McMurray, Presiding Judge.

text:
    A94A1820.
    THE STATE v. VANDERVOORT.
    (449 SE2d 617)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, for driving under the influence of alcohol and for making an improper U-turn. Defendant filed a motion to suppress the results of a State administered breath test, asserting (in pertinent part) that the arresting officer obstructed his request for an independent blood test pursuant to OCGA § 40-6-392 (a) (1), (3). The evidence adduced at a hearing on defendant’s motion to suppress reveals that defendant requested an independent blood test after submitting to a State-administered breath test; that the arresting officer transported defendant to two hospitals after defendant’s request for independent testing, but that both hospitals refused to honor defendant’s requests for independent blood testing (despite defendant’s ability to pay) because the arresting officer refused to authorize such testing in compliance with hospital policy.

This appeal followed an order granting defendant’s motion to suppress. Held:

1. The State contends the trial court erred in granting defendant’s motion to suppress, arguing that the arresting officer did not unduly obstruct defendant’s request for independent blood testing pursuant to OCGA § 40-6-392 (a) (1), (3).

“OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978). While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. Grizzle v. State, 153 Ga. App. 364 (2) (265 SE2d 324) (1980). The statute also states that ‘the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.” State v. Buffington, 189 Ga. App. 800, 801 (377 SE2d 548). In the case sub judice, evidence that the arresting officer refused to authorize defendant’s requests for blood testing at the local hospitals, despite defendant’s ability to pay for any such testing, authorized the trial court’s finding that reasonable effort was not made to accommodate defendant’s request for an independent blood test. Consequently, the trial court did not err in granting defendant’s motion to suppress. See State v. Button, 206 Ga. App. 673 (426 SE2d 194). Compare Wells v. State, 210 Ga. App. 165 (435 SE2d 523).

Decided August 9, 1994

Reconsideration denied October 28, 1994

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellant.

McArthur & McArthur, John J. McArthur, for appellee.

2. In light of our holding in Division 1 of this opinion, it is unnecessary to address the State’s remaining enumeration.

Judgment affirmed.

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


text:
    A94A2072.
    S. J. T., INC. v. RICHMOND COUNTY.
    (449 SE2d 868)
   Blackburn, Judge.

This discretionary appeal is from the trial court’s order affirming the decision of the Richmond County Board of Commissioners revoking appellant S. J. T., Inc.’s (S. J. T.) license to sell alcohol at a night club and bar which it owns and operates, known as T J Smiles. T J Smiles is located in the unincorporated part of Richmond County, Georgia, and provides nude dancing.

The decision of the Richmond County Board of Commissioners was reached on February 8, 1994 at a hearing conducted to consider probation, suspension and/or revocation of T J Smiles’ license to sell alcoholic beverages for a nude dancing violation of Section 3-34, Part II of the Richmond County Code on January 14, 1994.

The ordinance prohibited certain types of entertainment, attire and conduct on premises licensed to sell, serve or dispense alcoholic beverages. Excepted, however, from the reach of the ordinance were the premises of mainstream performance houses, museums or theaters deriving less than 20 percent of their gross annual incomes from the sale of alcoholic beverages.

Without considering any evidence as to the nature of T J Smiles’ gross annual income, the Board of Commissioners found T J Smiles was not a mainstream performance house and voted six to one to revoke its liquor license. The one “no” vote was based upon the absence of a definition of “mainstream” in the ordinance and the failure of the testimony before the Board to establish what it was. Further, before voting, the county attorney advised the Board that “[i]f in your opinion [T J Smiles] is a mainstream performance house, museum, or theater, then the criteria would go to whether or not the — that performance house derives more than 20% of its income from alcohol sales. However, if it’s your opinion that this is not a mainstream performance house, museum or theater, then your — that’s the only consideration that you have to make, and you do not get into the question of the percentage of alcohol sales.”

Appellant challenges the order and judgment of the trial court on two grounds: (1) that the complained-of ordinance is void for vagueness with respect to the word “mainstream,” and (2) that a requirement to find a business to be “mainstream” before determining it should be excepted from the ordinance on the basis of “alcohol sales as a percentage of gross annual sales,” constitutes an improper prior restraint on protected speech. We agree.

Decided October 12, 1994

Reconsideration denied October 28, 1994

John P. Batson, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, James B. Wall, Harry D. Revell, for appellee.

The Supreme Court recently recognized “nude dancing is a form of expression protected by the free speech guarantees of the constitutions of the United States and the State of Georgia. In determining whether restriction on that expression is permissible, [the Supreme Court] has [required] that laws regulating such expression must (1) further an important government interest and (2) be unrelated to the suppression of speech, and (3) that the incidental restriction of speech must be no greater than is essential to further the government interest.” (Citations omitted.) S. J. T., Inc. v. Richmond County, 263 Ga. 267, 268 (430 SE2d 726) (1993).

The Supreme Court, in upholding the constitutionality of the ordinance now before this court, held that the mainstream performance house exception bore a “rational relation to the proper legislative purpose of limiting undesirable effects of combining public nudity with alcohol consumption.” Id. at 270-271. Moreover, it did so upon the explanation that the “exception in the ordinance is obviously intended to limit the application of the ordinance to those establishments ... for which alcohol sales make up the largest portion of income.” (Emphasis supplied.) Id. at 270. It is thus evident that the exception is not conditioned upon a business establishment first being deemed to be “mainstream.” Accordingly, alcohol sales as a percentage of gross annual sales is the sole test applicable to determining whether a business is to be excepted from the ordinance.

To construe the applicability of the exception as first requiring testing for that which is “mainstream” but otherwise undefined, in our view, would be to adopt a construction which would be constitutionally impermissible for vagueness and overbreadth and would be contrary to our Supreme Court’s holding in S. J. T., Inc. v. Richmond County, supra. It would be to do that which has occurred below. Accordingly, we reverse.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

       The ordinance, in pertinent part, provides that: “Section 2. Enactment. The following types of entertainment, attire and conduct are prohibited upon any premises licensed to sell, serve, or dispense alcohol beverages for consumption on such premises within the unincorporated area of Richmond County.
      “(1) The employment or use of any person, in any capacity, in the sale or service of alcohol beverages while such person is unclothed or in such attire, costume or clothing, as to expose to view any portion of the female breast below the top of the areola or any portion of the male or female pubic hair, anus, cleft of the buttocks, vulva and genitals.
      “(2) Live entertainment where any person appears in the manner described in paragraph (1) of this section or where such persons (or person) perform(s) acts of or acts which simulate any of the following:
      “(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual act which is prohibited by law.
      “(b) The caressing or fondling of the breasts, buttocks, anus or genitals.
      “(c) The displaying of the male or female pubic hair, anus, vulva or genitals.
      “(3) The holding, promotion, sponsoring or allowance of any contest, promotion, special night, event or any other activity where patrons of the licensed establishment are encouraged or allowed to engage in any of the conduct described in paragraphs (1) and (2) above; provided, however, that nothing contained in this Section 2 shall apply to the premises of any mainstream performance house, museum, or theater which derives less than twenty (20) per cent of its gross annual income from the sale of alcohol beverages.” (Emphasis supplied.)


author: Andrews, Judge.

text:
    A94A0964.
    NAIRON v. THE STATE.
    (449 SE2d 634)
   Andrews, Judge.

Nairon was convicted by a jury of exceeding the maximum motor vehicle speed limit in violation of OCGA § 40-6-181.

1. Nairon claims the trial court erred in denying his motion to dismiss the speeding charge because he was denied the right to a speedy trial under Art. I, Sec. I, Par. XI of the Georgia Constitution and under the Sixth Amendment to the United States Constitution. Nairon was stopped and issued a citation for speeding on July 2, 1991. He was released by the arresting officer immediately after the citation was issued. Nairon was arraigned and pled not guilty on August 18, 1991. On December 2, 1991, he filed a demand for a speedy trial pursuant to the Georgia and United States Constitutions. He was tried by a jury and convicted on March 23, 1992.

The same speedy trial standards apply to claims under the Georgia and United States Constitutions. Fleming v. State, 240 Ga. 142, 144 (240 SE2d 37) (1977). “In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated: ... (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. . . . The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant. As to the prejudice factor there are three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.” (Citations and punctuation omitted.) State v. Auerswald, 198 Ga. App. 183, 184 (401 SE2d 27) (1990).

(a) Length of delay. Almost nine months passed between the date the speeding charge was made and the date of the trial. The passage of this length of time is not alone sufficient to establish a constitutional violation of the right to a speedy trial. Id. Nevertheless, we will assume for purposes of this case that the length of the delay was sufficient to trigger inquiry into the other Barker factors. Barker, supra, 407 U. S. at 530.

(b) Reason for delay. It appears a large part of the delay was attributable to the number of older cases ahead of Nairon on the trial court’s docket. There is no evidence that the State deliberately delayed the trial in an effort to gain a tactical advantage. McClanahan v. State, 196 Ga. App. 737, 738 (397 SE2d 24) (1990).

(c) Assertion of right. The greater part of the nine-month delay occurred during the five months that expired between the speeding charge and Nairon’s assertion of his right to a speedy trial. The defendant’s delay in asserting the right to a speedy trial is a factor which weighs against the claim. Haisman v. State, 242 Ga. 896, 898-899 (252 SE2d 397) (1979).

(d) Prejudice to the defendant. Nairon was not' incarcerated prior to his trial on the speeding charge. Any anxiety he. expressed was associated with the difficulty of scheduling his business appointments around his pro se pre-trial and trial appearances in court. Sometime prior to trial, Nairon lost his briefcase containing trial preparation materials and apparently claims that the delay caused or contributed to the loss of these materials and prejudiced his defense. We find no evidence that the delay caused Nairon to lose his briefcase or caused other actual, substantial prejudice to the defendant. State v. Story, 209 Ga. App. 404, 406 (433 SE2d 599) (1993).

Considering all of the above factors, the trial court did not abuse its discretion in refusing to dismiss the case. Vick v. State, 211 Ga. App. 735, 737-738 (440 SE2d 508) (1994).

2. Nairon contends the trial court erroneously admitted evidence of radar test results showing he was traveling 77 mph in a 65-mph zone without first requiring the State to lay a proper foundation.

While the State was attempting to lay a foundation for the admission of radar test results, Nairon prematurely objected to the admission of the test results. As the trial court noted, the State had not introduced radar evidence at that point and was in the process of attempting to lay a foundation to support admission of the evidence. Subsequently, the State did introduce evidence of the radar test results without any concurrent objection from Nairon. Under Carver v. State, 208 Ga. App. 405, 406 (430 SE2d 790) (1993), “a defendant must invoke an evidentiary ruling on the admissibility of radar evidence in order to preserve the adverse ruling on their objection for appeal.” Carver was decided after the March 1992 trial in the present case and overruled Johnson v. State, 189 Ga. App. 192 (375 SE2d 290) (1988), which held that no objection to radar evidence at trial was necessary in order to preserve the admissibility issue for appeal. Accordingly, we will apply the rule existing when the case was tried and address Nairon’s arguments regarding the admissibility of the radar evidence, despite his failure to object when the evidence was introduced. See Grant v. State, 251 Ga. 434 (306 SE2d 265) (1983).

Nairon argues the State failed to show that the county law enforcement agency possessed a license to operate the device in compliance with Federal Communications Commission (FCC) rules as required by OCGA § 40-14-4. See Wiggins v. State, 249 Ga. 302, 304 (290 SE2d 427) (1982). The State introduced a copy of the Department of Public Safety (DPS) permit issued to the Houston County Sheriff’s Department for the use of the radar speed detection device at issue. The DPS permit “constitute[s] presumptive evidence of compliance with that portion of OCGA § 40-14-4 which provides that ‘(n)o . . . county . . . law enforcement agency may use speed detection devices unless the agency possesses a license in compliance with [FCC] rules . . .’ and, therefore, the actual FCC license need not be produced to demonstrate that compliance.” Brooker v. State, 206 Ga. App. 563, 564 (426 SE2d 39) (1992).

Nairon also contends the State failed to prove that the device “before being placed in service and annually after being placed in service, [was] certified for compliance by a technician possessing a certification as required by the Department of Public Safety.” OCGA § 40-14-4; Hardaway v. State, 207 Ga. App. 150, 151 (427 SE2d 527) (1993); Wiggins, supra. The State produced evidence that the device was properly certified on August 23, 1990, less than one year prior to the date it was used to measure Nairon’s speed on July 2, 1991. The purpose of testing and certifying the device before it is placed in service and annually thereafter is to ensure the initial and continuing accuracy of the device. The State satisfied this foundational requirement by producing a copy of the current certificate of accuracy dated less than one year prior to the use of the device in Nairon’s case.

As to Nairon’s contentions that the trial court should have sustained his hearsay and best evidence objections to the State’s production of copies rather than original documents, the copies were admissible under OCGA §§ 24-7-20 and 24-5-26 to establish the foundational requirements. Walker v. State, 204 Ga. App. 559, 561 (420 SE2d 17) (1992); Williamson v. State, 194 Ga. App. 439, 440 (390 SE2d 658) (1990).

The trial court did not err in denying Nairon’s motion for a directed verdict of acquittal made on the basis that there was no properly admitted radar evidence to prove the speeding charge.

3. Nairon claims the trial court erred in allowing the arresting officer to give his opinion as to the speed of Nairon’s vehicle. Nairon objected at trial that no proper foundation had been laid for the officer’s opinion testimony. The officer testified that, prior to checking Narion’s speed by radar, he observed Nairon’s vehicle and that based on his training and experience (3,600 to 4,000 speeding cases) it was his opinion that Nairon was traveling at a speed in excess of 75 mph.

There was a sufficient basis for the officer’s opinion and the trial court did not err by admitting the testimony. “Opinion testimony of an eyewitness may be used to establish speed, its credibility being for the jury to determine, [cit.], and such evidence is sufficient to authorize a jury to conclude that the speeding laws have been violated. [Cit.]” Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992), overruled on other grounds, 208 Ga. App. 405 (430 SE2d 790) (1993).

Decided October 12, 1994

Reconsideration denied October 31, 1994

Joseph B. Nairon, pro se.

Robert E. Turner, Solicitor, Cynthia T. Adams, Assistant Solicitor, for appellee.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       No demand for trial was made pursuant to OCGA § 17-7-170.


text:
    A94A1127.
    JOHNSON v. GWINNETT COUNTY et al.
    (449 SE2d 856)
   Blackburn, Judge.

Appellant Patricia Johnson brought the underlying wrongful death action against Gwinnett County to recover damages resulting from the death of her son. Johnson enumerates as error the trial court’s denial of her motion to enforce a settlement agreement and its grant of Gwinnett County’s motion for summary judgment based upon OCGA § 31-11-8 (Good Samaritan Immunity).

Johnson’s cause of action is based on the alleged negligence of Gwinnett County Emergency Medical Services, who were summoned to her son’s aid when he experienced difficulty in breathing. The emergency medical technicians attempted several times to place an endotracheal tube in the trachea of Johnson’s son to assist his breathing. However, the tube was inserted into his esophagus where it resulted in a deprivation of oxygen to the decedent’s brain, ultimately resulting in his death.

1. The Good Samaritan Immunity statute provides that “[a]ny person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.” OCGA § 31-11-8 (a). Johnson argues that the purchase of insurance by Gwinnett County waived the immunity provided under this Code section. Johnson relies on an analysis usually presented in cases of sovereign immunity.

The trial court determined that Good Samaritan Immunity is not analogous with sovereign immunity, finding that sovereign immunity arose from the constitution and barred holding the government liable for the torts of its officers or agents unless such immunity was expressly waived by statute. Ga. Const. 1983, Art. I, Sec. II, Par. IX. The trial court distinguished the appropriateness of finding a waiver in the context of sovereign immunity, where it is expressly provided for by the Georgia Constitution, from the Good Samaritan Immunity statute which provides for no such waiver.

In Hosp. Auth. of Clarke County v. Martin, 210 Ga. App. 893 (438 SE2d 103) (1993), we determined that the Hospital Authority should not be liable for punitive damages up to the extent of their insurance coverage because the purchase of insurance by the Hospital Authority did not alter the public policy against the award of such damages. Additionally, as recognized by the trial court, in Ramsey v. City of Forest Park, 204 Ga. App. 98 (418 SE2d 432) (1992), we found that “a claim of immunity under OCGA § 31-11-8 cannot be waived by those persons to whom the statute applies; and among those ‘persons’ to whom the statute applies are ‘municipalities’ and ‘counties,’ as they are an ‘organization of any kind, including any governmental agency other than of the United States.’ OCGA § 31-11-2 (18).” Therefore, the trial court correctly granted Gwinnett County’s motion for summary judgment.

2. The record reveals that settlement negotiations were conducted throughout this case. Gwinnett County’s response to plaintiff’s first settlement demand of $750,000 on May 24, 1993 was to counteroffer $75,000 on July 7, 1993. On July 16, 1993, plaintiff demanded $475,000. On August 3, 1993, Gwinnett County raised its offer to $100,000. This offer was rejected by plaintiff on August 26, 1993, when plaintiff demanded $450,000. Gwinnett County then filed its motion for summary judgment based upon the Good Samaritan statute. Immediately prior to oral argument on defendant’s motion for summary judgment on November 4, 1993, counsel for the parties again discussed settlement. Counsel for Gwinnett County stated that they were unwilling to increase their $100,000 offer. While it is disputed whether counsel for plaintiff again specifically rejected this $100,000 figure, it is undisputed that plaintiff did not accept the counteroffer and that, as a result thereof, the parties proceeded to argue defendant’s motion for summary judgment. The trial court reversed, ruling on the defendant’s motion for summary judgment. Thereafter, on the same day, counsel for plaintiff faxed a letter to counsel for defendant purporting to accept the previously rejected $100,000 counteroffer. Gwinnett County took the position that the rejected counteroffer was no longer outstanding and plaintiff’s acceptance came too late.

“Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense.” (Citations and punctuation omitted.) Wilkins v. Butler, 187 Ga. App. 84, 85 (369 SE2d 267) (1988).

Decided August 5, 1994

Reconsideration denied October 31, 1994

Del Percilla, Jr., Thomas W. Malone, for appellant.

Chandler & Britt, Walt M. Britt, Gregory D. Jay, Caryl B. Sumner, for appellees.

The trial court determined that the very existence of any settlement agreement was contested. Therefore, as no oral agreement was established pursuant to Uniform Superior Court Rule 4.12, such agreement must be in writing to be enforceable. LeCroy v. Massey, 185 Ga. App. 828, 829 (366 SE2d 215) (1988). Factual findings made by the trial court will not be set aside unless clearly erroneous. Mutual Ins. Co. of New York v. Dublin Pub, 190 Ga. App. 94, 95 (378 SE2d 497) (1989). In the case sub judice, the findings of the trial court were amply supported. Therefore, the trial court correctly denied Johnson’s motion to enforce the alleged settlement agreement.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A94A1965.
    HAYES v. THE STATE.
    (449 SE2d 663)
   Birdsong, Presiding Judge.

Marion Stanley Hayes appeals his judgment of conviction of entering an automobile with intent to commit a theft and burglary.

A neighbor who lived across the street from the Hill Laundry testified that he was outside that evening working on his car when he saw two men coming around the side of the laundry. The men were carrying a backpack or bookbag. After stopping for several minutes by a side door, the men proceeded to the front of the laundry building and fumbled with the garage bay doors for about 15 minutes. An object was pulled from the bag and was used in forcing the bay doors open. After partially opening the bay doors, one of the men went inside and extended the opening wider. A truck and a van were parked inside the garage of the building. After both men were inside the building, the neighbor saw one of the men inside the truck. At that time the taillights came on in the van, causing the neighbor to conclude that the other man must have entered the van. The neighbor called the police. When the police arrived, one of the men — later identified as co-defendant William Sterling Baker — exited the garage and was apprehended.

Officer Crenshaw testified that, at approximately midnight, he received a police call that a concerned citizen had reported a burglary in progress and was keeping in telephone communication with the dispatcher. Responding to the call, he and three other officers went to the laundry. It had snowed heavily that night and fresh snow was all over the ground. As Officer Crenshaw went around the rear of the building, he heard two of the officers yelling at someone, and subsequently observed them in the process of arresting one of the suspects. Officer Crenshaw observed a torn metal hole on the west side of the building; it was like someone had tried to cut into the aluminum and rip it back. Tracks in the fresh snow led from a door behind the building to the side of the building where an attempt had been made to cut the hole. He ultimately went to the front and entered the laundry building; Crenshaw found that the van therein was still running. A white laundry truck was also in the building. As he started through the bay doors, Crenshaw observed a black male dressed in black clothing and wearing a hat run away from the van; the man had something strapped to his back. The male had been on the passenger side area of the vehicle and the passenger door was open. Officer Crenshaw then observed Officer Stapler attempting to climb the back fence; the officer was facing the subject dressed in dark clothing who had already climbed the fence. After the two officers got over the fence, they started searching for the subject who had run out of sight. Officer Stapler subsequently found the black male in a nearby shed and apprehended him; the suspect had a cloth backpack or rucksack on his back and fit the description of the man Crenshaw observed fleeing from the building. After being arrested, appellant asked Officer Crenshaw to retrieve his hat, which was lying in the snow. Crenshaw searched the backpack after appellant’s arrest and found several cassette tapes and several screwdrivers, one of which was missing its handle. Officer Crenshaw made an in-court identification of appellant Hayes as the person apprehended by Stapler at the shed. Subsequent investigation revealed that because of a special switch the owner had installed on the van, the only way it could be started was by “hotwire.” Crenshaw conceded that the police investigation never determined exactly how the appellant and co-accomplice gained entry into the laundry; but the owner testified that no one had permission to be in his laundry building the evening of the incident.

Officer Pearson testified that he assisted in the apprehension of accomplice Baker, and that the police found a pair of pliers in front of the bay doors. During the incident Pearson saw the shadowy figure of a person inside the building near the passenger side of the van.

Officer Stapler testified that, at the scene, he entered the front of the building through the open bay doors. While Stapler was checking around a laundry machine, he saw a person run out the door and gave pursuit. The fleeing suspect was a black male wearing a green army jacket and black hat. For about ten seconds, Stapler got hung up on the fence following the suspect, giving the suspect time to run through the backyard of the cleaners. However, Stapler was able to follow the suspect’s footprints in the snow; the snow was deep and those were the only footprints in that area. Stapler found the suspect in a shed-like structure that was built beneath an older house; the structure was located in the yard into which the fleeing suspect had jumped. The suspect was still wearing the green army jacket and was holding a small bag. Officer Stapler made an in-court identification of appellant as the man Stapler had apprehended in the shed; appellant was in the back of the courtroom wearing a robe at the time of identification. Stapler then identified a photograph of appellant as being a true and accurate representation of how appellant looked on the night of his apprehension. Stapler testified that the person he had been pursuing was the same person found in the shed; he formed this conclusion based on the size and height of the person, the race and sex of the person, the footprints in the snow to the shed (made by only one person), his eye contact with the suspect for a portion of the chase, and the clothing on the person when apprehended.

Appellant’s accomplice testified, as a witness for the defense, that he had entered a guilty plea and was currently serving his sentence for the burglary of Hill’s Laundry; on the night of the incident, he met appellant at an automobile shop where the witness was working; appellant had a backpack when he entered the shop; the witness knew appellant carried tools in the backpack but did not see them; before they left the shop, he told appellant that he needed to look for a place to stay; appellant followed the witness to Hill’s Laundry; appellant was carrying his backpack; the witness entered the laundry through a hole in the building and went around to open the front door for appellant, but appellant was not there; the witness entered the van and started it to keep warm because he was planning on spending the night in the building; he did not enter the truck; then the police arrived at the building and the witness was apprehended.

Appellant testified that the co-defendant told him that he needed to accompany the co-defendant to another building; appellant thought the co-defendant said they were going to get some batteries. Appellant had his backpack with him; he had some tapes, a Koran, and three screwdrivers in the pack. The co-defendant went inside the fence of the building; shortly thereafter the police arrived. Appellant heard the police order him to put his hands up and approach them; appellant complied, but the police suddenly appeared with the co-defendant whom they handcuffed. They walked away without looking in appellant’s direction. Appellant concluded he had better depart from the laundry area so he climbed over a fence; at this point, an officer saw him and apparently pursued him. Appellant walked quickly to a nearby shed and once inside started to pray. Appellant conceded he was wearing an army coat and a black “coofie” cap when apprehended. Appellant denied that he went to the building to steal; he went only because he believed the co-defendant had something he wanted appellant to do there. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant’s enumeration of error on the general grounds is without merit. See also Division 2 below.

2. Appellant also enumerates that the trial court erred in admitting, as a similar transaction, evidence of his prior conviction for burglary. Pretermitting whether the trial court erred in admitting this evidence (compare Williams v. State, 261 Ga. 640 (409 SE2d 649) with Gearin v. State, 208 Ga. App. 878 (432 SE2d 818); Spinks v. State, 204 Ga. App. 249 (419 SE2d 108); and Smith v. State, 203 Ga. App. 3 (416 SE2d 129)) is the question whether any error would have been harmless.

There exists in this case overwhelming evidence of appellant’s guilt. Moreover, before the similar transaction evidence was admitted, appellant’s counsel elicited during his cross-examination of a police officer that appellant had made a statement, at the time of his arrest, to the effect that “he had just gotten out of jail.” In view of the overwhelming evidence of appellant’s guilt, any error in admitting similar transaction evidence would not mandate a reversal as it was highly probable that the similar transaction evidence did not contribute to the guilty verdict. Bowdry v. State, 211 Ga. App. 626 (440 SE2d 59); see also Tuggle v. State, 211 Ga. App. 854, 857 (2d) (440 SE2d 740).

Decided October 31, 1994.

Ronald B. Hatcher, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Leonora Grant, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1944.
    THE STATE v. CAUSEY.
    (449 SE2d 639)
   Johnson, Judge.

The state charged Ricky Causey with driving under the influence of alcohol. Causey moved in limine to exclude evidence of his breath test results because the arresting police officer gave him an erroneous implied consent warning. Causey argued the officer’s warning improperly led him to believe the state could suspend his Texas driver’s license, not merely his privilege of driving in Georgia, if he refused to take the test, and the officer failed to inform him he could have an independent breath test administered by a qualified person of his own choosing. The trial court granted the motion only on the ground that the officer misinformed Causey his Texas driver’s license could be suspended if he refused to take the breath test. See Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993). The state appeals from the court’s ruling. See OCGA § 5-7-1 (4); compare State v. Brown, 185 Ga. App. 701 (365 SE2d 865) (1988).

The state contends the court erred in granting the motion because the officer did not give a misleading warning that Causey’s driver’s license could actually be suspended. Even if we assume, without deciding, that the state’s contention is correct, the trial court’s grant of the motion in limine must still be affirmed. “A judgment correct for any reason will be affirmed.” (Citations and punctuation omitted.) Webb v. State, 176 Ga. App. 576, 578 (336 SE2d 838) (1985). Here, the court’s ruling is correct because the implied consent warning given by the officer was insufficient for the other reason asserted by Causey in his motion in limine.

“OCGA § 40-6-392 (a) sets forth guidelines for the admissibility of evidence of the amount of alcohol... in a person’s bodily fluids, as determined by a chemical analysis of [those] fluids.” Clapsaddle v. State, 208 Ga. App. 840, 841 (1) (432 SE2d 262) (1993). OCGA § 40-6-392 (a) (3) provides: “The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.” (Emphasis supplied.) At the time of arrest, the officer must advise the arrested person of this right to have an independent test. OCGA § 40-6-392 (a) (4); Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). “Failure to give the advice renders the results of the state-administered test inadmissible in evidence. [Cits.]” State v. Peters, 211 Ga. App. 755, 756 (440 SE2d 515) (1994).

Decided October 20, 1994

Reconsideration denied November 1, 1994

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant.

In the instant case, the officer told Causey: “After submitting to the required testing, you are entitled to additional chemical tests at your own expense.” The state argues this advice is adequate under OCGA § 40-6-392 because the officer is not required to give a verbatim recitation of the statute. It is true that “[a] defendant is not entitled to a warning which tracks the exact language of the implied consent statute.” (Citations, punctuation and emphasis omitted.) Pryor v. State, 182 Ga. App. 79, 80 (2) (354 SE2d 690) (1987); Howard v. Cofer, 150 Ga. App. 579, 580 (2) (258 SE2d 195) (1979). Nevertheless, the warning given in the current case was deficient, not because it failed to track the exact language of the statute, but because it completely failed to inform Causey that he could choose his own qualified person to administer the additional test.

“To accept the State’s arguments, we must first find that the ‘of his own choosing’ language in OCGA § 40-6-392 (a) (3) is superfluous. This we refuse to do. We do not believe substantial compliance means that it is permissible to ignore completely the ‘particulars’ of the laws of this state or that it is permissible to ignore statutory requirements as long as no harm is shown. ‘The . . . requirement is that when the State seeks to prove the violation by evidence of a chemical test, the State has the burden of demonstrating compliance with the statutory requirements.’ [Cit.]” State v. Hughes, 181 Ga. App. 464, 467 (352 SE2d 643) (1987). The state has not met this burden in the instant case. Because the implied consent warning given to Causey failed to inform him he could have an additional test administered by a qualified person of his own choosing, the results of the state-administered breath test are inadmissible. See Nelson v. State, 135 Ga. App. 212 (217 SE2d 450) (1975). The trial court’s grant of the motion to exclude evidence of the test results must therefore be affirmed.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.

Robert W. Chestney, for appellee.


text:
    A94A2028.
    TYLER v. BENNETT.
    (449 SE2d 666)
   Birdsong, Presiding Judge.

Roy L. Tyler III appeals the jury verdict and judgment against him in his suit on Gregory E. Bennett’s promissory note. Bennett executed a promissory note for $150,000 for the purchase of Tyler’s title search company, Preferred Research. Bennett counterclaimed for breach of the purchase agreement, including a covenant by which Tyler agreed not to perform title abstracts within a three-mile radius of Savannah, Georgia, within two years of execution of the contract. Bennett alleged breach of the purchase agreement in that Tyler had acted to transfer several Preferred Research customers to a business operated by Tyler’s former employee, who also held the security agreement on the computer hardware and software which Tyler agreed to sell Bennett. Bennett also alleged fraud in the inducement, contending that Tyler had advised Bennett that Tyler was being investigated for fraudulently laundering money from his title abstract clients but that he was innocent of all such charges, when in fact after selling Bennett this business Tyler pled guilty to bank fraud. The jury awarded Tyler nothing and awarded Bennett $680.86 on Bennett’s counterclaim.

Tyler contends the trial court erred in denying his motion for directed verdict and motion for judgment n.o.v., and erred in a certain jury charge. Held:

1. A directed verdict is proper only where the evidence with all reasonable deductions therefrom demands a particular verdict; and once the jury has rendered a verdict, the evidence is construed in favor of that verdict when we determine whether a judgment n.o.v. should have been granted. OCGA § 9-11-50; Carver v. Kinnett, 209 Ga. App. 577 (434 SE2d 136). A judgment n.o.v. is proper only where the evidence, construed in favor of the jury’s verdict, demands the opposite judgment. See Jackson v. Williams, 209 Ga. App. 640, 641-642 (434 SE2d 98). The evidence in this case, construed in favor of the jury’s verdict, supports the jury’s verdict and the judgment. There is evidence that almost immediately after Tyler sold the business to Bennett, Tyler, in breach of the covenant not to compete, went to work for a title research business in Savannah formed by the former employee who held the security interest in the computer equipment Tyler purported to sell to Bennett; Tyler arranged for one of the largest accounts for Preferred Research to transfer to that other title abstract business; this client’s business would have been enough to enable Bennett to make a success of the business, if Tyler had not arranged for this client’s business to be transferred to his new place of employment. There was evidence that Tyler performed numerous title abstracts in violation of his agreement. There was evidence that Tyler never transferred to Bennett the promised office equipment, and Tyler had failed to inform Bennett that Tyler’s former employee had a security interest in the only computer which had title abstract-programming, so that Bennett never acquired that computer and was unable to perform the business which Tyler purported to sell him. The evidence also shows that soon after telling Bennett he was not guilty of any criminal acts, Tyler pled guilty to bank fraud, thereby destroying the good will he had purported to sell Bennett. The verdict is amply supported by the evidence, and the award of the jury to Bennett was within the range of the evidence. Accordingly, Tyler was not entitled to a directed verdict, or judgment n.o.v.

Decided November 1, 1994.

A. G. Wells, Jr., for appellant.

Michael A. Lewanski, for appellee.

2. Appellant contends a certain jury charge was error. Appellant has omitted from his brief a statement of the method by which he preserved the alleged error in the charge for appellate consideration. Court of Appeals Rule 15 (a) (1). On appeal, this court does not review issues which were not raised and ruled on below. Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 577 (442 SE2d 860). Appellant did not object to this jury charge before the jury gave its verdict (OCGA § 5-5-24); he waived any error at trial and waived the right to review such error. Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (309 SE2d 816). Moreover, the error is waived on appeal as appellant does not cite law or argument to support his claim that the charge given was error. Court of Appeals Rule 15 (c) (2). Spivey v. Safeway Ins. Co., 210 Ga. App. 775 (5) (437 SE2d 641). Appellant provides no suggestion as to how the verdict would have differed had the charge differed, or in what way the charge should differ.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A0963.
    CARSWELL et al. v. MIDDLE GEORGIA POOLS & LEISURE WORLD, INC.
    (449 SE2d 628)
   Blackburn, Judge.

The appellants, Deborah and Melvin Carswell, commenced this action against appellee, Middle Georgia Pools & Leisure World, Inc. (Middle Georgia), to recover damages for the alleged wrongful death of their four-year-old son, Dwayne. The trial court granted summary judgment for Middle Georgia, and this appeal followed.

The record shows that, on April 11, 1990, the Carswells contracted with Middle Georgia for the construction of an in-ground backyard swimming pool. Pool construction began approximately two weeks later, and was substantially completed with the installation of the pool liner late Saturday afternoon, the fourth day of construction. Before leaving the worksite, the Middle Georgia employee on the job advised plaintiff to fill the pool to a depth of six inches in order to seat the pool liner and warned him to keep people away from the pool area. The following morning Dwayne, who was then unattended, accidentally fell in the partially filled pool. Dwayne was revived in the ambulance on the way to the hospital, but eventually fell into a lengthy coma and died on November 11, 1991. Plaintiffs, who had purchased fencing materials prior to filling the pool, planned to erect the fence on the morning the accident occurred.

In their first enumeration of error the Carswells contend the grant of summary judgment was improper in that genuine issues of material fact exist on the issue of negligence.

In particular, they assert that jury questions exist with respect to the duty of care Middle Georgia owed them pursuant to the swimming pool contract and as an independent contractor having possession and control of the worksite. We disagree.

At summary judgment, a movant/defendant must demonstrate that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Summary judgment is appropriate when the court, upon viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

The Carswells executed a contract with Middle Georgia for the construction of an in-ground swimming pool at their residence. Paragraph 6 of the contract relieved Middle Georgia of any responsibility to furnish either permanent or temporary fencing. Paragraph 10 thereof provides as follows: “The Contractor’s sole liability is in the performance of this contract and its specific purpose of installing a swimming pool. It is the sole responsibility of the Owner to protect his property from intruders, trespassers, and any other persons or children during the period of construction and thereafter as may be set forth in any town ordinance applicable, and hold harmless and indemnify the Contractor from any liability that might result.”

“[S]ince he can read, he is responsible for what he signs,” absent emergency, misrepresentation, or reliance on a fiduciary relationship between the parties. Cochran v. Murrah, 235 Ga. 304, 305-306 (219 SE2d 421) (1975). Exculpatory clauses in Georgia are valid and binding and not void as against public policy where the contract limits the business’ liability to the specific purpose of the contract. The subject contract placed the responsibility to protect the property from children upon the plaintiffs. Indeed, the plaintiffs are contractually bound to hold defendant harmless and to indemnify it from any liability that might result from claims of the type filed by plaintiffs. Hall v. Garden Svcs., 174 Ga. App. 856, 857 (332 SE2d 3) (1985). Accordingly, the trial court did not err in granting defendant’s motion for summary judgment.

Decided October 5, 1994

Reconsideration denied November 2, 1994.

Arthur C. Nilsen, John W. Jonap, Stephen H. Debaun, for appellants.

Chambless, Higdon & Carson, Joseph H. Davis, Mary M. Katz, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1420.
    JOHNSON v. THE STATE.
    (449 SE2d 863)
   Birdsong, Presiding Judge.

Johnny Johnson, Sr., was indicted for kidnapping with bodily injury, aggravated child molestation, aggravated sexual battery, aggravated sodomy, child molestation, cruelty to children and burglary. He was convicted on all counts. The trial court merged some of the counts and judgment was entered finding Johnson guilty of kidnapping with bodily injury, aggravated child molestation, child molestation, and burglary. The evidence, construed in favor of the verdict, shows Johnson kidnapped the five-year-old victim from her bedroom in the night after entering through a window. Johnson took the child out through the front door of her home to an abandoned building nearby where he performed criminal acts upon her. He then took her back to her home. Her mother was awakened when the child entered the house in the early morning hours and soon discovered what had occurred. The child did not recall being taken from her house but only remembered waking up outside her house with a man. Johnson was identified by DNA testing of Johnson’s semen and semen stains on the child’s nightgown, the results of which showed a pattern matched by only one in 20,000,000 persons. He was also identified by his thumb and palm prints found outside the bedroom window and his thumb print found outside a bathroom window. The window screen was found leaning against a tree and a bench had been placed under the window. The evidence, construed in favor of the verdict, showed the screen had been in the window until it was removed by the burglar, and the bench had always been near a table some distance away from the window until it was placed under the window by the burglar.

On appeal, Johnson contends the verdict on the burglary count is against the weight of the evidence and contrary to the law, and he contends the trial court gave conflicting charges on circumstantial evidence and reconciliation of evidence. Held:

1. Appellant contends the burglary conviction is not supported by evidence because there is no evidence he entered the house, and because reasonable hypotheses are inferable from this circumstantial evidence other than that he committed burglary. However, the evidence supports a finding, at the very least, that appellant removed the screen from the bedroom window, and that in doing so he “entered” the house. See similarly Hayes v. State, 193 Ga. App. 33, 35 (387 SE2d 139). The jury was authorized to infer from all the circumstantial evidence, including evidence that he kidnapped the child, that appellant entered the house. See Gude v. State, 213 Ga. App. 573 (1) (445 SE2d 355).

Appellant contends there are other reasonable inferences than that he removed the screen, moved the bench under the window, and removed the child from the house. However, the jury is the arbiter of whether a hypothesis is reasonable (Harris v. State, 236 Ga. 242, 244 (223 SE2d 643); Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474)) and such a determination by the jury will not be overturned unless it is insupportable as a matter of law. Lewis v. State, 149 Ga. App. 181 (254 SE2d 142). On appeal, we do not weigh the evidence but construe it in favor of the jury’s verdict (Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737)) and determine only its sufficiency. We have reviewed the evidence and find it sufficient to persuade a rational trier of fact of appellant’s guilt of the crimes convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the circumstantial evidence charge conflicts with the charge that if there is evidence in such irreconcilable conflict that each witness cannot be made to speak the truth, “it is your duty and responsibility to decide and determine which, if either, of the conflicting versions of the evidence you will accept.” Appellant says this charge requires the jury to accept some evidence and reject other evidence and thus requires it to impute truth to the State’s evidence if it is unrefuted, so that no reasonable hypothesis consistent with innocence can exist. However, the charge does not instruct the jury to accept the State’s unrefuted evidence, and it does not prohibit the jury from inferring a reasonable hypothesis of innocence contrary to the State’s unrefuted evidence. We find no conflict in the charges. The charges are correct and the charge as a whole and in its entire context is correct and not misleading or confusing. See Taylor v. State, 195 Ga. App. 314 (393 SE2d 690).

Decided October 5, 1994

Reconsideration denied November 2, 1994.

Thompson, Fox, Chandler, Homans & Hicks, Graham McKinnon IV, for appellant.

Lydia J. Sartain, District Attorney, Jessica K. Moss, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, J., concurs. Ruffin, J., concurs in judgment only.


text:
    A94A1530.
    TURNER v. SUMTER SELF STORAGE COMPANY et al.
    (449 SE2d 618)
   Birdsong, Presiding Judge.

Charles Turner appeals the grant of summary judgment to Sumter Self Storage Company, formerly known as Sumter Redi-Mix, Inc. (“Sumter”). Turner sued Sumter after he was injured when he was struck by a cement chute attached to one of Sumter’s cement mixer trucks. In his complaint and amended complaint Turner alleged that Sumter was negligent because it used an inadequate locking device to secure the chute, negligently maintained and repaired the locking device, and failed to exercise due care prior to moving the cement mixer.

On the day of his injury, Turner was employed on a construction project to which Sumter was delivering cement and pouring the cement into forms for footings. The cement was poured directly from the cement mixer into these forms through a chute on the back of the truck. As each part of the form was filled, the truck would pull ahead to the next unfilled section. On the day of Turner’s injury, his boss was directing the movements of the truck driver and a co-worker was handling the chute distributing the cement. Because the driver had overfilled a part of the form, Turner was putting the excess cement back in the form and attempting to rearrange steel reinforcing rods that were knocked over when the cement was poured. While doing this, Turner was working some four feet behind and to the rear of the truck with his back to the truck. Although Turner heard the truck motor “rev,” he did not turn around. Though Turner knew that the truck motor usually “revved” before it moved, he did not know that the truck was going to move when it did. Apparently Turner was injured when the truck lurched and the chute swung and hit him. There is no evidence in the record showing what caused the chute to swing.

After Turner sued Sumter, Sumter filed a motion for summary judgment contending it was not liable because (1) the borrowed servant doctrine barred recovery, (2) Turner’s employer controlled the actions of Sumter’s cement truck driver and thus was a vice principal, (3) Turner assumed the risk of these injuries, and (4) Sumter breached no duty owed Turner. Thereafter, the trial court granted Sumter’s motion. Turner contends the trial court erred by granting summary judgment to Sumter. He alleges the record raises triable issues of fact on the elements of his claim. Held:

Under our law, “[t]o prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. . . . See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). “[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Id. at 495.

1. Because the trial court did not specify the basis for its grant of summary judgment, Turner has attacked all the grounds urged in the motion. He asserts that a defective locking device on the chute that was negligently maintained by Sumter allowed the chute to swing and strike him. Although Sumter argues that the locking device was not used when the chute was in operation since the chute was intended to swing from side to side as the forms were filled with cement, there is no evidence in the record supporting this argument. While Sumter also argues that the trial court took judicial notice of this fact, the record does not support this assertion. Sumter did not make such a request and nothing suggests that the trial court did so without a request. While the colloquy between counsel and the trial court indicates an assumption that the locking device operated in this fashion, the record does not show the trial court took judicial notice of it. Further, the operation of the locking device is not a matter of public knowledge that may be judicially recognized without introduction of proof. OCGA § 24-1-4; Cole v. Cates, 110 Ga. App. 820 (140 SE2d 36). Therefore, the record does not establish that the malfunctioning locking device was not a factor in this case. Additionally, nothing in this argument addresses Turner’s contention that Sumter’s truck driver was negligent in moving the truck. Clearly, Sumter had a duty to operate the truck so that workers were not injured. Summary judgment was not authorized on this basis.

2. Although Sumter also asserted that it was entitled to summary judgment because its truck driver was a “borrowed servant” of Turner’s employer at the time of Turner’s injury, the record does not support this assertion. The only evidence in the record is that Turner’s boss guided the truck driver and gave him instructions on the rate of cement flow as the forms were being poured. This scope of control does not satisfy the three elements necessary before an employee can be considered a borrowed servant. See Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (276 SE2d 572); Lorie v. Standard Oil Co., 175 Ga. App. 308, 310 (333 SE2d 110). In the same manner, there is no evidence that Turner’s boss was the “vice principal” of the truck driver. See Moore v. Dublin Cotton Mills, 127 Ga. 609 (56 SE 839); Miller v. Fulton, 111 Ga. App. 849 (143 SE2d 578).

3. As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence. Taft v. Taft, 209 Ga. App. 499, 500 (433 SE2d 667). Under the evidence in this appeal, Sumter’s contention that Turner assumed the risk, as a matter of law, is not supported by the record.

“Assumption of risk assumes that [Turner], without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (409 SE2d 524). “The defense of assumption of risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom; and (3) that he voluntarily exposed himself to that risk. In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” (Citation and punctuation omitted.) Stallings v. Cuttino, 205 Ga. App. 581, 582 (422 SE2d 921). Consequently, for the record to support the trial court’s conclusion that Turner assumed the risk of his injury from the chute, the evidence must conclusively show that he had actual knowledge that the chute would swing and that he was working within an area of danger from the swinging chute, that he comprehended the risk to his person from the chute, and that notwithstanding this knowledge, he voluntarily chose to accept the risk.

Under the record in this appeal, the defense of assumption of the risk was not established sufficiently to warrant the grant of summary judgment. There is no evidence Turner had actual knowledge of the danger presented, i.e., that the chute would swing and could strike him, and that he voluntarily assumed the risk of his injury with full knowledge that the chute would be allowed to swing. At best, the record merely shows that Turner was working behind and to the side of a truck with an unloading chute that someone must hold because it had a defective locking device. Further, the evidence of record does not show that Turner knew that he was working where the chute could strike him.

Sumter contends, however, that Turner was aware that the locking device was defective and that the chute would swing from side to side. Even though Turner had knowledge of the defective locking device, however, this does not conclusively establish that Turner had knowledge of and appreciation of the danger resulting from the defect so that, standing alone, this knowledge is sufficient to establish that he assumed the risk. See Rich’s, Inc. v. Townsend, 94 Ga. App. 761, 766 (96 SE2d 332). Further, knowledge of a defect does not equate to knowledge of the danger. Mathis v. Gazan, 51 Ga. App. 805, 808 (181 SE 503).

Although the evidence shows that the chute did swing freely when the truck was moving, the record shows that this occurred when the truck drove away after unloading was completed. At other times someone held the chute to guide it while unloading or to keep it from swinging. There is no evidence the chute ever swung while the truck was unloading concrete or while the truck was stationary. Further, Turner’s affidavit states he knew of no occasion when the chute device slipped and struck another person causing injury. Therefore, it cannot be said that Turner had actual knowledge the chute would be allowed to swing, that he comprehended the risk to his person from the swinging chute, and that he voluntarily chose to accept the risk of the swinging chute. See Stallings v. Cuttino, supra.

This conclusion is buttressed by the absence of evidence that Turner actually knew he was working in a position of danger from the chute swinging, that he knew that the person holding the chute would not hold the chute, or that he knew the chute would swing and strike him. More significantly, there is no evidence that Turner knew that the truck would move when it did, or that if it were to move that it would jump forward as it did. While there is evidence that the truck motor “revved” before Turner was hit by the chute and that the truck “revved” when it moved, there is no evidence from which it should be concluded that the truck motor “revving” should have been a warning to Turner. As the respondent to the motion for summary judgment, Turner was entitled to receive the benefit of all reasonable doubts, and to have the court construe the evidence and all inferences and conclusions arising therefrom most favorably in his favor. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). Therefore, in the absence of some evidence that the motor “revving” should have warned Turner that he would be in danger, Sumter was not entitled to that inference or conclusion from this evidence.

Further, even though Turner knew the chute had a defective locking device, the evidence shows that he also knew it was a coworker’s job to hold the chute to guide it during unloading and keep the chute from swinging, and the evidence shows that on the day of Turner’s injury someone had been holding the chute. No evidence shows why in this instance this measure was not sufficient to keep the chute from swinging. Moreover, the assumption of risk doctrine does not extend to assuming the risk that his co-worker would negligently allow the chute to strike him. Holbrook v. Prescott, 166 Ga. App. 588, 590 (305 SE2d 156).

Consequently, there is no plain, palpable and undisputed evidence from which it can be said that Turner exhibited “an intelligent acquiescence” in the danger of the chute swinging. See Yandle v. Alexander, 116 Ga. App. 165, 167-168 (156 SE2d 504).

4. In the same manner, Sumter has not established as a matter of law that Turner was contributorily negligent by failure to exercise ordinary care for his own safety. See OCGA § 51-11-7. Like assumption of the risk, the question of whether plaintiffs exercised ordinary care for their own safety is also a question for the jury except in plain and indisputable cases. Ridgeway v. Whisman, 210 Ga. App. 169, 170 (435 SE2d 624); Taylor v. McClendon, 205 Ga. App. 390, 391 (422 SE2d 440). Considering the evidence discussed above, it cannot be said that, as a matter of law, Turner failed to exercise care for his own safety because he continued working behind and to the side of a truck with an unloading chute that must be guided and held by another while concrete was being unloaded when there was no evidence that he knew the truck might suddenly lurch and the chute could swing and strike him. Viewing all the facts and reasonable inferences from these facts in a light most favorable to Turner, we conclude that the evidence creates triable issues on the elements of this defense. See Lau’s Corp. v. Haskins, supra at 495.

Decided September 16, 1994

Reconsideration denied November 2, 1994

Keith A. Pflepsen, for appellant.

Jones, Cork & Miller, Rufus D. Sams III, Timothy Harden III, for appellees.

Therefore, Sumter was not entitled to the grant of summary judgment in this case.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.