text:
    A95A2531.
    DEPARTMENT OF HUMAN RESOURCES v. JOHNSTON.
    (469 SE2d 525)
   Ruffin, Judge.

The Georgia Department of Human Resources (“Department”) appeals the trial court’s order requiring the parties to undergo blood testing to establish paternity. We granted the Department’s application for interlocutory appeal to determine whether the issue of paternity has been previously litigated and is res judicata as well as to determine whether the court impermissibly conditioned its support order on the results of the blood test in a contempt proceeding. For reasons which follow, we affirm.

In January 1993, the Department received from the state of West Virginia a Uniform Reciprocal Enforcement of Support Act (“URESA”) petition to recover past due child support from Robert Johnston. The petition alleged that Johnston, who resided in Georgia, was the father of the petitioner’s two minor children. A hearing on the matter was set for September 9, 1993, in the Gordon County Superior Court. Johnston contends, and the Department does not dispute, that he attended the hearing pro se, and the Department’s attorney agreed to continue the hearing in order to arrange for paternity testing. The order continuing the matter until October 14, 1993, has a handwritten notation initialed by the Department’s attorney stating that it was served by hand delivery to Johnston. Johnston contends he never received the order, and he failed to attend the hearing in October. The court then issued an order requiring Johnston to make weekly child support payments and payments toward a $10,337 arrearage (“the October order”). Johnston made no payments, and in March 1995, the Department filed a petition for contempt.

Johnston then filed a motion to vacate the October order, claiming he was not the father of the children and that he was not notified of the October hearing. Attached to and referenced in Johnston’s motion was his response to the contempt petition in which he denied that he was indebted in any manner to the mother/petitioner. In June 1995, the court held a hearing and found that Johnston was properly notified of the October hearing but failed to appear. The court ordered Johnston to pay the overdue child support into the court’s registry and also ordered the parties to undergo blood testing to determine the children’s paternity. The order specified that if paternity was not established, the money Johnston paid would be refunded.

1. Relying on a pre-printed statement in the form October order that “[respondent has a duty to support his minor children,” the Department contends the issue of paternity has been previously litigated and is res judicata; therefore, the trial court erred in ordering blood testing. The authority upon which the Department relies clearly holds that in the absence of fraud or mistake, where the issue of paternity has previously been decided, it cannot be relitigated. Dept. of Human Resources v. Hambrick, 216 Ga. App. 606 (455 SE2d 120) (1995). However, unlike Hambrick, in which the parties’ final divorce decree “reflects a finding by the court that appellee is the minor child’s natural father,” in this case we do not find the bare assertion upon which the Department relies to be evidence that the issue of paternity has been previously litigated and.is thus res judicata. Cf. Dept. of Human Resources v. Hurst, 208 Ga. App. 792 (432 SE2d 236) (1993) (parties agree paternity was established in final judgment and divorce decree). Accordingly, the trial court did not err in ordering blood testing on this ground.

Decided March 6, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, David A. Hooker, Assistant Attorneys General, for appellant.

Perrotta, Levinson & Paul, Brian R. Cahn, William T. Elsey, for appellee.

2. The Department contends that even if the issue of paternity is not res judicata, the court still erred in ordering blood testing at this juncture because “[a] court may not modify a previous [support] decree in a contempt order. [Cit.]” Kaufmann v. Kaufmann, 246 Ga. 266, 268 (271 SE2d 175) (1980).

We disagree because we do not find that the order for blood testing, which was prepared by the Department’s own lawyer, was a contempt order or arose in the context of a contempt proceeding. The order specifically references the hearing held on Johnston’s motion to set aside and vacate the October 14 support order. Although the Department argues that Johnston’s motion to vacate was part and parcel of the contempt proceeding, the court has not heard any evidence on the issue of contempt, nor issued an order determining that there is an arrearage and finding Johnston in contempt. Cf. Kaufmann, supra; Dept. of Human Resources v. Brown, 196 Ga. App. 875 (397 SE2d 73) (1990). Accordingly, we find that although the court’s order for blood testing may have appeared to modify the previous support order, it did not do so in the context of a contempt proceeding. Given our finding in Division 1 that paternity has never been established, despite Johnston’s apparent attempt to do so initially, the court did not err in ordering the test.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A2539.
    RC COLA BOTTLING COMPANY, INC. et al. v. VANN et al.
    (469 SE2d 523)
   Pope, Presiding Judge.

Wanda Vann, individually and as an administratrix, filed suit against Jonathan Hogan and RC Cola Bottling Company, Inc. (RC) seeking to recover for the alleged wrongful death of her husband, Edwin Vann. In her complaint, Wanda alleged that Edwin was killed when his car was struck by a delivery truck which negligently was driven by Hogan and which was owned by RC. She also alleged that at the time of the collision, Hogan was RC’s employee and was acting within the scope of his employment, and thus, that RC was liable for Hogan’s negligence under the doctrine of respondeat superior. Hogan and RC answered Wanda’s complaint denying liability. Subsequently, RC filed a motion for summary judgment on the grounds that it was not Hogan’s employer or the owner of the truck. At the same time, Hogan filed a motion to transfer venue. On May 11, 1995, the trial court denied both motions. Concluding that the trial court erred in denying the above motions, we reverse.

1. “On summary judgment, the moving party bears the burden of showing that no material issues of fact exist.” Nowell v. Fain, 174 Ga. App. 592, 594 (330 SE2d 741) (1985). “The burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time, or suffer judgment against him. Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977).” (Punctuation omitted; emphasis in original.) Lawal v. Stanley Bostitch Co., 209 Ga. App. 439, 440 (433 SE2d 706) (1993).

In the instant case, RC submitted the affidavits of James Acanfora and Todd Wood in support of its motion for summary judgment. Acanfora testified that he was the Treasurer and Chief Financial Officer for a company named Royal Crown Bottling Company of Chicago (Royal Crown), and that Royal Crown and RC were separate and distinct corporations. Acanfora further testified that on the date in question, the truck Hogan was driving was owned by Royal Crown. Wood testified that he was the Vice President and General Manager of Royal Crown, and that Hogan was employed by Royal Crown on the day of the collision. Consequently, RC made a prima facie showing of its entitlement to judgment as a matter of law.

Wanda, on the other hand, failed to even respond to RC’s motion for summary judgment, and we find no competent evidence in the appellate record which rebuts Acanfora’s and Wood’s affidavits. Although Wanda has attempted to supplement the appellate record, the information contained in such supplementation was not provided to the trial court before it ruled on RC’s summary judgment motion. Therefore, it will not be considered on appeal. Id. Accordingly, we conclude that the trial court should have granted summary judgment to RC and dismissed it from the case because it demonstrated as a matter of law that it was not the owner of the truck or Hogan’s employer. See Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981).

Decided March 6, 1996.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Adam L. Appel, for appellants.

N. William Pettys, Jr., David C. Keever, for appellees.

Additionally, we reject any contention that RC and Royal Crown should be treated as one and the same for purposes of this suit. Even if Royal Crown and RC are closely related, absent evidence that Royal Crown is undercapitalized or maintained for the purpose of promoting injustice or protecting fraud, it should be recognized as the proper party defendant in the case. See Boafo v. Hosp. Corp. of America, 177 Ga. App. 75, 77 (338 SE2d 477) (1985).

2. Based on our holding in Division 1 of this opinion, we conclude that venue is improper in Fulton County, where RC had its registered agent, because RC is no longer a defendant in the case. Instead, as joint tortfeasors, Hogan and Royal Crown may be sued in either Polk County, where Hogan resides, or in Cobb County, where Royal Crown has its registered agent. See Ga. Const., Art. VI, Sec. II, Pars. IV & VI; OCGA § 14-2-510 (b) (1). We therefore reverse the trial court’s denial of Hogan’s motion to transfer venue, and we remand the case with the instruction that it be transferred to one of those counties.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.

       We note that on March 31,1995, pursuant to Wanda’s motion to substitute parties, the trial court added Royal Crown as a party defendant in the case.


author: Ruffin, Judge.

text:
    A95A2621.
    MEGA v. THE STATE.
    (469 SE2d 771)
   Ruffin, Judge.

Following a bench trial, Josiah Mega appeals his conviction of furnishing alcoholic beverages to an underage person in violation of OCGA § 3-3-23 (a) (1). He enumerates as error the State’s failure to prove venue beyond a reasonable doubt and the general grounds. For reasons which follow, we reverse.

The evidence showed that as a part of an underage sting operation at a package store, Officer Judith Fannon provided two underage females with false identification and cash to purchase beer at the store’s drive-through window. The young women drove to the drive-through window and purchased six beers from Mega. The record shows that Mega did not ask the 19-year-old who purchased the beer for identification.

1. Mega contends the State failed to prove proper venue in Cobb County beyond a reasonable doubt. The State’s sole evidence regarding the location of the package store was provided by Officer Fannon who testified that the illegal sale occurred at the “Sweetwater Package Store, 2084 South Cobb Drive . . . right off Pat Mell Road.”

Although Mega did not challenge venue at trial, the only other evidence which arguably linked the alleged crime to Cobb County was Officer Fannon’s testimony that she was “an investigator for the Cobb County Police Department.” The State argues that the trier of fact could also infer that South Cobb Drive is located entirely within Cobb County. “ ‘Generally, criminal actions must be tried in the county where the crime was committed. And, venue must be established beyond a reasonable doubt. However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue.’. . . [Cit.]” Nelson v. State, 210 Ga. App. 249 (1) (435 SE2d 750) (1993).

However, in Perry v. State, 154 Ga. App. 559 (1) (269 SE2d 63) (1980), involving a prosecution for possession of marijuana which Sumter County deputies and Americus police officers allegedly discovered in the defendant’s home, this Court held that the State did not establish venue in Sumter County beyond a reasonable doubt based solely on the defendant’s street address, the affiliation of the officers involved in the investigation, and the fact that the defendant was taken to the Sumter County Sheriff’s Department. We concluded that without reference to a city or county or any other information regarding the location of the defendant’s home, it could not be reasonably inferred that the home was located in Sumter County.

Furthermore, although we have taken judicial notice that a particular city is located entirely in the county where the defendant was tried, the State has produced no authority, nor has our research revealed any case, in which our appellate courts have taken judicial notice that a particular street is located within a particular county. Compare Nelson, supra; Widner v. State, 203 Ga. App. 823, 824 (3) (418 SE2d 105) (1992). Moreover, it certainly cannot be said in this state that the name of a street unequivocally defines its location. Indeed, there are countless streets which bear the names of cities and counties which are not located within those cities and counties. Thus, we must find in this case that the evidence presented was insufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the alleged offense occurred in Cobb County. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Perry, supra.

2. In light of our decision in the first division, we need not consider Mega’s remaining enumerations of error.

Decided March 6, 1996.

Arthur H. Marateck, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Clifford L. Granger, Jr., Assistant Solicitors, for appellee.

Judgment reversed.

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


text:
    A95A2686.
    SHIVER v. NORFOLK-SOUTHERN RAILWAY COMPANY.
    (469 SE2d 769)
   Pope, Presiding Judge.

Plaintiff Donny Shiver appeals the trial court’s denial of his motion for leave to amend his complaint by adding a party. Concluding that the trial court abused its discretion in denying plaintiff’s motion, we reverse.

On August 7, 1990, plaintiff was injured while working as a railroad employee. On May 13, 1991, he filed a Federal Employers’ Liability Act (FELA) action against defendant Norfolk-Southern Railway Company (Norfolk), whom he believed to be his employer. Plaintiff’s complaint was served on Norfolk’s registered agent, F. Kennedy Hall, and Norfolk’s attorney, Converse Bright, subsequently filed Norfolk’s answer to the complaint. In its answer, Norfolk denied liability and asserted that plaintiff’s actual employer was Georgia, Southern & Florida Railway Company (GS & F). Based on Norfolk’s answer and conversations with Bright, on July 3, 1991, plaintiff filed his first amended complaint, wherein he named GS & F as a defendant. The first amended complaint was served on Hall, who also was GS & F’s registered agent, and was answered by Bright on GS & F’s behalf. In its answer, GS & F denied liability and stated that Live Oak, Perry & South Georgia Railway Company (Live Oak) was plaintiff’s actual employer. On July 25, 1991, after again conferring with Bright, plaintiff filed his second amended complaint to add Live Oak as a defendant. As were the other complaints, plaintiff’s second amended complaint was served on Hall, as Live Oak’s registered agent, and was answered by Bright.

It is undisputed that plaintiff did not seek leave of the trial court to add new parties before serving the amended complaints. Instead, he waited until October 13, 1994, to file his motion to amend and add Live Oak as a defendant. By order dated January 16, 1995, the trial court denied plaintiff’s motion to amend the original complaint to add Live Oak. We granted plaintiff’s application for interlocutory review following the trial court’s subsequent denial of plaintiff’s motion for reconsideration of that order.

In his sole enumeration, plaintiff argues that the trial court erred in denying his motion to amend and add Live Oak. We agree. “[W]here a party seeks to add a new party by amendment, OCGA § 9-11-21 requires the exercise of discretion by the trial court. . . . Clover Realty Co. v. Todd, 237 Ga. 821, 822 (229 SE2d 649) (1976).” (Punctuation omitted.) Robinson v. Piggly Wiggly &c., 193 Ga. App. 675 (388 SE2d 754) (1989). A trial court abuses that discretion, however, if it denies the addition of a party based on delay alone. Id.; see Maitlen v. Derst, 178 Ga. App. 305, 306 (342 SE2d 777) (1986); Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 735 (307 SE2d 530) (1983).

In the instant case, the trial court denied plaintiff’s motion to amend on the sole ground that more than three years had passed between the time plaintiff originally filed his complaint and the time he filed his motion to amend. Accordingly, we hold that the trial court abused its discretion in this case, and thus, that it “erred in denying plaintiff’s motion to amend to add [Live Oak].” Robinson, 193 Ga. App. at 677. In so holding, we recognize that laches and inexcusable delay may bar a proposed amendment. Id. at 675. But “[1] aches [and inexcusable delay do] not consist of mere lapse of time. . . . There also must be prejudice or injury to the party sought to be added resulting from that passage of time.” (Citation omitted.) Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 806-807 (2) (a) (371 SE2d 421) (1988). As plaintiff notes in his appellate brief, no such prejudice or injury was shown in the court below.

In fact, a review of the record demonstrates that the addition of Live Oak as a defendant in this case would not result in injury or prejudice to it because (1) plaintiff’s lawsuit was commenced well within FELA’s three-year statute of limitation; (2) the claim that plaintiff seeks to maintain against Live Oak arises out of the same occurrence which is the basis of his original lawsuit; (3) Live Oak received notice of the original service of the lawsuit within the statute of limitation, and was served with an amended complaint and summons within the limitation period which set forth plaintiff’s allegations against it; (4) Live Oak has been represented throughout the litigation by the same attorney who answered for Norfolk and GS & F, and thus will not be prejudiced in maintaining a defense on the merits; and (5) Live Oak knew or should have known that but for a mistake concerning the identity of the proper party defendant the lawsuit would have been brought against it. See OCGA § 9-11-15 (c); Ford v. Olympia Skate Ctr., 213 Ga. App. 600, 601-602 (1) (445 SE2d 362) (1994); Robinson, 193 Ga. App. at 676-677; Rich’s, Inc. v. Snyder, 134 Ga. App. 889 (216 SE2d 648) (1975). The fact that Norfolk and Live Oak are so closely intertwined also negates the existence of any prejudice to Live Oak in this case.

Decided March 6, 1996.

Burge & Wettermark, F. Tucker Burge, Tom W. Thomas, for appellant.

J. Converse Bright, for appellee.

In light of the above, we reverse the denial of plaintiffs motion to amend his original complaint, and we direct the trial court to enter an order allowing plaintiff to add Live Oak as a party defendant, with the date of service relating back to the original service date on Norfolk. See OCGA § 9-11-15 (c); Robinson, 193 Ga. App. at 677.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A2817.
    EMERSON v. THE STATE.
    (469 SE2d 520)
   Ruffin, Judge.

Thomas Emerson was convicted of possessing cocaine and marijuana in violation of the Georgia Controlled Substances Act. He appeals the judgment of conviction and sentence following the denial of his motion for new trial. For reasons which follow, we affirm.

Viewed in a light to support the verdict, the evidence showed that while patrolling a mobile home park, Cobb County police officers observed a suspicious man loitering outside one of the mobile homes. They watched as the man approached a van parked nearby and subsequently learned that the man attempted to sell crack cocaine to the driver. The officers then approached the man, obtained his consent to a pat-down search, and discovered that he was carrying a pipe that contained suspected crack cocaine residue. One of the officers testified that as a result of this encounter, he suspected that there was crack cocaine and drug paraphernalia inside the nearby trailer and therefore decided to investigate further by walking around the outside of the trailer. The officers discovered nearly 50 small plastic bags containing suspected crack cocaine residue and a crack pipe under the trailer. The officers then knocked on the trailer’s front door. Emerson answered the door, appeared agitated by the officers’ presence at his residence, and refused their request to enter the trailer. One of the officers testified that as they talked with Emerson in the doorway, he detected the odor of crack cocaine burning inside the trailer. The officers then obtained a search warrant which they executed a short time later.

Upon entering the trailer, which Emerson rented, the police found four adults, including Emerson who was in a back bedroom. In that bedroom, the officers discovered numerous small plastic bags containing suspected crack cocaine residue strewn about the dresser and floor, two burned spoons with cocaine residue, and razor blades. The officers discovered crack cocaine rocks, marijuana, and powdered cocaine in another bedroom. Small plastic bags were also found in the kitchen behind the stove.

Omar Lofton was lying on a couch in the living room when the police entered. The police found a metal crack pipe and two marijuana cigarette butts in an ashtray near him. Lofton testified at trial that all the drugs and paraphernalia found in the trailer belonged to him; that he hid the drugs in the trailer between the two police visits; that Emerson had returned to the trailer only 30 minutes before the police arrived; and that Emerson had no knowledge of the drugs in the trailer. Emerson did not testify.

1. Emerson contends the evidence did not support the guilty verdict on the marijuana possession charge because the crime lab analysis indicated that the suspected marijuana seized from his trailer was not tested. He also contends the trial court erred in ruling that the crime lab report was cumulative and in refusing to allow it to be published to the jury in light of the fact that the forensic chemist who prepared the report contradicted its findings at trial.

Forensic chemist Steven Ellis testified that he performed three specific tests on the leafy green material seized from the trailer and that the substance tested positive for marijuana. Ellis’s written report listed the suspected drugs and drug paraphernalia which had been submitted for identification, including the suspected marijuana and hand-rolled cigarette butts, but the report indicated that only the suspected cocaine tested positive and that “other items were not analyzed.” The State tendered the report into evidence. The prosecutor indicated his desire that the report be published to the jury; however, the trial court found that the report would be cumulative and admitted it for the record only. The record shows that the State disclosed the report to Emerson’s attorney one month before the trial.

Emerson raised no objection to the report’s admission for the record; therefore, he has waived any objection to the admission of the report. “A litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. Acquiescence deprives him of the right to complain further. . . . [Cit.]” (Punctuation omitted.) Young v. State, 217 Ga. App. 575, 576 (2) (458 SE2d 391) (1995). Furthermore, because Emerson did not attempt to impeach Ellis’s testimony with the report on cross-examination, he failed to expose the conflict in the evidence to the jury. Finally, Emerson did not contend at trial, and does not contend now, that the substance was anything but marijuana. See Ray v. State, 205 Ga. App. 866 (424 SE2d 13) (1992). Thus, the State presented uncontested testimony that the suspected marijuana tested positive which supported the guilty verdict.

Decided March 6, 1996.

Joe C. Morris, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, W. Thomas Weathers III, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. Emerson also contends that the evidence failed to support the verdict on either charge because the State failed to prove that he had any knowledge of the drugs found in the trailer or that they belonged to him. He argues this is particularly true given Lofton’s admission that the drugs belonged to him.

“A rebuttable presumption arises when one leases [premises], and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises. . . . Whether this presumption is rebutted is solely a jury question. [Cit.] The jury was charged the above-stated rule and the evidence authorized it to find that [Emerson] possessed the contraband, although others had access to the [trailer]. [Cit.]” Taylor v. State, 195 Ga. App. 651, 652 (394 SE2d 604) (1990). Lofton’s credibility was a matter for the jury. OCGA § 24-9-80. However, viewing all of the evidence in the light to support the verdict, we find that it was sufficient to enable a rational trier of fact to find Emerson guilty beyond a reasonable doubt of possession of cocaine and marijuana. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A95A2848.
    WILSON v. THE STATE.
    (469 SE2d 516)
   Ruffin, Judge.

A jury convicted Danny Wilson of rape, aggravated sodomy, aggravated assault, and burglary. Wilson appeals from the judgment of conviction and the denial of his motion for new trial. For reasons which follow, we affirm.

The evidence at trial showed that early on the morning of November 12, 1991, Wilson, wearing a ski mask and gloves, entered the victim’s apartment as she was exiting the shower. Wilson put his hand over the victim’s mouth and led her into the living room where he put tape over her eyes. Wilson then put a knife-like object to the victim’s neck and proceeded to rape her. After the rape, Wilson led the victim into the bathroom where he forced her to clean her vagina using a wash cloth and douche. Wilson asked the victim if she had any money or credit cards and she responded that she did not. Wilson then put the douche, wash cloth, and tape from the victim’s eyes into a bag, ordered the victim to stay in the bathroom, and left the apartment.

1. Wilson asserts that the trial court erred in failing to excuse three prospective jurors for cause.

During voir dire, Wilson’s trial counsel asked the first prospective juror whether she could be impartial in light of the fact that Wilson had a prior conviction. The juror responded: “I just feel like I would lean more that he could possibly be guilty of the second.” The trial judge then interposed that he would instruct the jurors on how they could consider the prior offense and asked whether the juror could follow the court’s instructions. The juror responded affirmatively and further affirmed that she could be fair and impartial. Wilson argued the prospective juror should have been excused for cause because her answers indicated she could not be impartial.

The second prospective juror stated that she thought DNA evidence was “a good tool,” and when asked whether she would focus on the DNA evidence to the exclusion of all other evidence, she responded, “I hope not. ... I would have to hear it all.” Wilson argued this prospective juror should have been excused for cause because her answer indicated she “has some kind of mindset ... for DNA or against DNA” that was so strong that she may not be able to consider the other evidence.

The third prospective juror to whom Wilson objected stated that her husband had recently undergone surgery and that she was concerned with his health and would need to arrange for someone to care for him. When asked whether she would have difficulty giving her full attention to the trial, the prospective juror reiterated that she was concerned but hoped that she could be a good juror. Wilson argued the juror should have been excused due to her hardship and apparent inability to focus on the trial.

“In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause.” (Citations and punctuation omitted.) Toledo v. State, 216 Ga. App. 480, 483 (6) (455 SE2d 595) (1995). “The Supreme Court of the United States has held that ‘(v)oir dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” [Cits.] This is so because the “determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.” ’ [Cit.]” Arnold v. State, 236 Ga. 534, 538-539 (6) (224 SE2d 386) (1976). Accordingly, absent a manifest abuse of this discretion, we cannot require a new trial. Diaz v. State, 262 Ga. 750, 752 (2) (425 SE2d 869) (1993).

We do not find such an abuse of discretion here. Although the first prospective juror initially indicated she might be influenced by the fact that Wilson had a prior conviction, after further questioning by the court she confirmed that she could follow the court’s instructions on the proper use of that evidence. Likewise, although the second prospective juror’s response may have indicated that she would be persuaded by DNA evidence, she stated that she hoped she would not do so and that she would have to hear all the evidence. The foregoing responses “reflected that [their] purported bias or prejudice was not so fixed that it would not yield to the evidence and that [they] would vote in accordance with the evidence as required by law.” Davis v. State, 134 Ga. App. 750, 751 (1) (216 SE2d 348) (1975). See also Watkins v. State, 160 Ga. App. 9, 11 (4) (285 SE2d 758) (1981) (although potential juror exhibited strong belief in integrity and credibility of police officers, response indicated she would weigh such testimony in light of all the evidence). Finally, we find nothing in the third prospective juror’s responses indicating she would not be a fair and impartial juror. Although she stated she was concerned with her husband’s health, there was nothing showing that she could not follow the evidence and be fair and impartial. Furthermore, the decision of whether to excuse a juror because of a potential hardship is within the discretion of the trial court. See McMichen v. State, 265 Ga. 598, 612 (33) (a) (458 SE2d 833) (1995). Under the facts presented, we find no abuse of that discretion.

2. Wilson also asserts that the trial court erred in allowing the State to introduce evidence of his previous rape conviction and another rape committed one month prior to the rape at issue here.

(a) Wilson argues that one of the similar crimes, his 1979 conviction for rape, was too remote in time and not sufficiently similar to the rape at issue in this case.

“ ‘Evidence of other criminal acts of the defendant may be admitted if it is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. ... To render evidence of extrinsic offenses admissible for any of [the permitted] purposes, the (S)tate must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter.’ . . . [Cits.]” Anderson v. State, 183 Ga. App. 669 (1), 670 (359 SE2d 688) (1987).

“ ‘Although lapse of time is one of the more important factors to weigh in considering the admissibility of the evidence in question it is not wholly determinative.’ [Cit.] Thus, ‘lapse of time between the two (offenses does not) automatically require the exclusion of such evidence.’ [Cit.] In this case we find that the 12-year lapse between the prior and present offenses does not render evidence of the prior offense inadmissible. [Cit.] In so holding, we are persuaded by the fact that [Wilson] was incarcerated for approximately [nine] of the intervening years, thus circumscribing his ability to commit similar offenses during much of the 12-year period. [Cit.]” Id. at 670-671. See also Moore v. State, 207 Ga. App. 412, 415 (1) (b) (427 SE2d 779) (1993).

Furthermore, the use of similar crimes has been liberally extended in cases involving sex crimes. Id. at 414-415. “Where forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other.” (Citations and punctuation omitted.) Id. at 415 (1) (a).

Moreover, there were numerous similarities between the 1979 rape and the one in this case. In both cases, Wilson lived near the victims, who were both young females, that were raped in their homes in the morning hours. In both cases Wilson blindfolded the victims and put a sharp object to their neck as he raped them. Accordingly, the trial court did not err in admitting evidence of the 1979 rape. This is not to hold, however, that a 12-year previous offense is always admissible but each case must be examined in light of its particular circumstances.

(b) Wilson also contends that the trial court erred in admitting evidence of the second rape because the perpetrator’s identity in that rape had not been established and because the probative value of the evidence was substantially outweighed by its prejudicial effect.

The evidence showed that the second rape occurred during the morning approximately one month prior to the rape in this case. The victim was a young female who was raped in her home which was located in the same apartment complex as the victim’s home in this case. As in this case, the victim was blindfolded and led to the living room where the perpetrator raped her as he held a knife or a knife-like object to her neck. The perpetrator then forced the victim to clean her vagina using a wash cloth and douche as he did in this case. The perpetrator asked the victim for money, locked her in the bathroom, and left the apartment.

The victim of the second rape described the perpetrator as an African-American male of medium build. The victim also described warts or moles around the perpetrator’s genital area. At trial, the victim of the second rape testified that warts and moles on Wilson’s genitals, as depicted in photographs, were in the same location and appeared substantially the same as those on the genitals of the man who raped her. Sperm removed from the victim of the second rape underwent DNA analysis. Blood and hair samples were also taken from Wilson for DNA analysis. A comparison revealed a match between the DNA that occurs with a frequency of approximately one in 10 billion within the African-American population.

Accordingly, “[c]ontrary to [Wilson’s] contention, there was evidence upon which the jury could base a finding that he was the perpetrator of the independent crime.” Evans v. State, 201 Ga. App. 20, 27-28 (7) (410 SE2d 146) (1991). The victim of the second rape was attacked in the same manner as the victim in this case, and the remaining circumstantial evidence pointed to Wilson as the perpetrator of that rape even though the victim was unable to positively identify him. See id.

Finally, we do not agree with Wilson’s contention that the prejudicial effect of the evidence outweighed its probative value. The trial court found, and we agree, that the evidence showed that the two rapes were so remarkably similar and close in time and location, that any prejudice from the evidence was outweighed by its probative value. Accordingly, the evidence was properly admitted, and in light of the detailed limiting instructions given by the trial court at the time of its admission, and at the close of the case, the evidence was not overly prejudicial. See Farley v. State, 265 Ga. 622 (2), 625 (458 SE2d 643) (1995).

3. Wilson next asserts that the trial court erred in admitting into evidence a copy of a book found at his home during the execution of a search warrant. The book at issue is titled “The Blooding,” and was described by a State’s witness as a book “based on a true story out of England involving several rape and murder cases where they found the defendant through use of DNA technology.” Although the State had photographs of the seized book, the copy police recovered from Wilson’s home was inadvertently destroyed after being placed in evidence storage. At trial, the court allowed the State to introduce another copy of the book.

Wilson argues that the court erred in admitting the book because it was a copy and not the actual book seized. However, as the State correctly noted, “Georgia’s case law is replete with holdings that articles which are similar to ones used in a crime but are not identical are nevertheless admissible. [Cits.]” Paxton v. State, 160 Ga. App. 19, 22-23 (6) (285 SE2d 741) (1981). In this case, the evidence showed that the book the court admitted was identical to the one seized from Wilson’s home. Furthermore, “inasmuch as testimony elicited by the State clearly established that the [book] admitted into evidence was not the one [actually removed from Wilson’s home], ‘there could be no prejudice such as would infect an otherwise valid verdict and judgment. (Cit.)’ [Cits.]” Boyd v. State, 264 Ga. 490, 491-492 (2) (448 SE2d 210) (1994). Finally, because Wilson has not shown how he was harmed by the trial court’s ruling admitting the copy, this enumeration provides no basis for reversal. Mobley v. State, 211 Ga. App. 709, 710 (3) (441 SE2d 73) (1994).

Decided March 6, 1996.

Devon A. Orland, for appellant.

J. Tom Morgan, District Attorney, Desiree L. S. Peagler, Jeffrey H. Brickman, Niria Dominguez, Assistant District Attorneys, for appellee.

4. While Wilson also argues that the trial court erred by allowing the book to go back with the jury during deliberations, “[t]he trial transcript demonstrates that [he] raised no such specific objection in the trial court. An enumeration of error complaining of admission of evidence or of documents going out with the jury presents nothing for decision by this court where no objection was made at trial. Accordingly, we find this enumeration of error to be without merit.” (Citations and punctuation omitted.) Johnson v. State, 204 Ga. App. 277, 278 (2) (419 SE2d 118) (1992).

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A95A1864.
    COLLINS v. PRINCE STREET TECHNOLOGIES LTD.
    (469 SE2d 700)
   Blackburn, Judge.

The issue in this case is, are a manufacturer’s carpet samples subject to sales and use tax or are they exempt from such tax pursuant to OCGA § 48-8-39 (b). The trial court entered summary judgment for the manufacturer, determining that the use of the samples was not taxable, and Collins appeals therefrom. While the trial court erred in determining that the use of the samples was not taxable, we affirm summary judgment for appellee for the reasons herein outlined.

Prince Street Technologies Ltd. (“Prince”) is a Georgia corporation in the business of manufacturing commercial grade carpet. Prince markets its carpet exclusively by providing, free of charge, various types of small carpet samples to interior decorators and to architectural and interior design firms throughout the country. The samples are either custom-made at the request of a customer or they are made using Prince’s inventory or excess production. Only a de minimis portion of the raw materials used by Prince to make carpet is used to make samples.

The Georgia Retail Sales and Use Tax Act, OCGA § 48-8-1 et seq., sets forth those transactions that are subject to state sales and use taxes. Under the Act, a sales or use tax is levied and imposed only “on the retail purchase, retail sale, rental, storage, use, or consumption of tangible personal property” in this state. OCGA § 48-8-30 (a).

Purchases made for resale are not taxable. Thus, a manufacturer purchasing raw materials for use in making items intended for sale is permitted to purchase those raw materials tax free. OCGA § 48-8-3 (35) (A) (i). The finished items are generally taxed when they reach the point of “retail sale” which is generally defined as a sale to the ultimate consumer or user of the property. OCGA § 48-8-2 (6).

OCGA § 48-8-39 (b) provides in pertinent part: “[i]f a person who engages in the business of processing, manufacturing, or converting industrial materials into articles of tangible personal property for sale . . . makes any use of the article of tangible personal property other than retaining, demonstrating, or displaying it for sale, the use shall be deemed a retail sale as of the time the article is first used by him and its fair market value at the time shall be deemed the sales price of the article.”

The intent of this statute “is to capture tax revenues by creating a fictional ‘sale’ where the manufacturer of an item elects to use it himself rather than sell it in the normal course of his retail business.” Strickland v. W. E. Ross & Sons, 251 Ga. 324, 327 (304 SE2d 719) (1983).

It is undisputed that Prince does not seek to market or sell the subject samples. Prince therefore, makes a use of the carpet samples, which “shall be deemed a retail sale.” OCGA § 48-8-39 (b). The trial court erred in concluding that the use of the carpet samples by Prince did not trigger a “fictional sale” under OCGA § 48-8-39 (b). Only if the samples themselves were being retained, demonstrated or displayed for sale, would they be exempt from tax during the period of such use. It is clear from a reading of the statute, that “it” and “the article” (“the article is first used by him”) refers to the carpet samples, and not to the non-sample carpet available for sale. OCGA § 48-8-39 (b). Only the carpet samples are being “used” by the manufacturer in the context of OCGA § 48-8-39 (b). Its “fair market value” refers to the carpet samples, as their value is the only value that would be relevant to the “fictional sale.”

Statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat their legislative purpose. Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97) (1991). The use of the carpet samples by Prince creates a “fictional sale” that is taxable.

The value of the carpet samples in the subject “fictional sale” shall be their fair market value at the time they are first used by Prince. See OCGA § 48-8-39 (b). “Fair market value” is the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale. See OCGA § 48-5-2 (3).

Collins contends the trial court erred by invalidating Revenue Regulation 560-12-2.96 (1), a regulation it adopted in 1976. The regulation provides: “[s] ampies of tangible personal property distributed by manufacturers and other dealers are first used in sales promotion or advertising purposes and the tax must be paid on the cost price of samples.” The General Assembly has empowered the Department’s Commissioner to make reasonable laws and regulations not inconsistent with taxing statutes.

In enacting OCGA § 48-8-39, the General Assembly clearly intended to authorize a tax based on the cost of property purchased for resale but used by a retailer under OCGA § 48-8-39 (a), and to authorize a tax based on the fair market value of property purchased for resale but used by a manufacturer under OCGA § 48-8-39 (b).

Revenue Regulation 560-12-2.96 (1) is in conflict with OCGA § 48-8-39 (b) and the trial court did not err to the extent it so held. “An administrative rule promulgated without statutory authority is invalid. [Cits.]” Rielli v. State, 174 Ga. App. 220, 222 (330 SE2d 104) (1985).

The only evidence in the record of the fair market value of the carpet samples at the time of their use by Prince being zero, it follows that the application of the “fictional sale” requirements of OCGA § 48-8-39 (b) would result in no taxes being owed for such sales.

A grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993). In light of the above, we affirm the trial court’s grant of summary judgment awarding Prince a refund and accrued interest.

Judgment affirmed.

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

On Motion for Reconsideration.

Collins contends that “fair market value” is a disputed issue of fact in this case and cannot be resolved on summary judgment. Collins states that the raw materials which Prince Street used in making up the samples had the same cost as such material which went into the manufacture of the carpet which the company sold. Collins also contends that the carpet which Prince Street withdrew to make sampies was identical to the carpet which it regularly sold.

Collins’ attempt to demonstrate the error in the court’s analysis by the example of a shoe manufacturer who elects to cut a shoe in half for demonstration purposes and avoiding taxes because the shoe parts then have no value, is flawed. In such an example, the “fair market value” would be determined when the shoe is pulled from inventory, not when it is cut in half. We have applied the same criteria in the subject case. The difference is that in this case, the pulling and the cutting are but a single act, while in Collins’ example there are fungible items involved.

Here we are involved with “use” by a manufacturer under OCGA § 48-8-39 (b), which specifically establishes “fair market value,” not “cost” as the relevant value in a fictional sale, unlike OCGA § 48-8-39 (a) , which establishes a “cost” basis for a “use” by a manufacturer. The only basis for the “fictional sale” is the use by Prince Street of the samples other than retaining, demonstrating or displaying them for sale. Were Prince Street demonstrating the samples themselves for sale, then this would constitute an exempted activity, no use would be involved and hence no fictional sale.

Collins’ argument that the value of the samples is the same as the value of the uncut carpet fails for two reasons. First, OCGA § 48-8-39 (b) provides that in a fictional sale, the fair market value at the time the property is first used by the manufacturer is the basis for the tax. Samples are not samples until they are cut. Before they are cut, the material is simply part of the inventory.

Second, the value of samples which are cut into pieces as small as 9" x 12" cannot be assumed to be proportionately equal to such carpet when it is sold in large quantities for the purpose of covering entire rooms.

This case was decided by the trial court on the basis of cross-motions for summary judgment by the parties. In support of its motion, Prince Street introduced evidence through the affidavit of Robert D. Williams, that the market value of the subject samples was zero.

Where, as here, the moving party meets its burden, the nonmoving party must then point to specific evidence giving rise to a triable issue. OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The only evidence in the record establishes that the fair market value of the samples at the time of their use by Prince Street was zero, and could not result in any taxes being due.

If other evidence of the fair market value of the samples had been present in the record, there would then have existed a question of fact on this issue and a different result would have been required.

Decided February 13, 1996

Reconsideration denied March 7, 1996

Michael J. Bowers, Attorney General, Daniel M. Formby, Warren R. Calvert, Senior Assistant Attorneys General, Richard C. Lit-win, Assistant Attorney General, for appellant.

Smith, Gambrell & Russell, E. Kendrick Smith, William B. Wood, for appellee.

Constangy, Brooks & Smith, Townsell G. Marshall, Jr., amicus curiae.


text:
    A95A1835.
    GENERAL ACCIDENT INSURANCE COMPANY v. STRAWS.
    (472 SE2d 312)
   Ruffin, Judge.

Michael Waters, an Alabama resident, collided with the automobile driven by Eileen Straws, and Straws suffered personal injuries. Waters informed Straws that he was not going to wait for the police to arrive, showed her his license, informed her he did not have an insurance card, and left the scene. Straws sued Waters and served General Accident Insurance Company (“General”), her uninsured motorist carrier. However, she was unable to serve Waters by mail because he did not reside at the address listed on his license. The complaint, which was sent by certified mail, was returned to Straws’ attorney’s office marked unclaimed. After several additional attempts to serve Waters, the trial court ordered that he be served by publication pursuant to OCGA § 9-11-4 (e). Waters did not appear at trial, and the jury returned a verdict for Straws. For reasons which follow, we affirm.

1. General contends the trial court erred in denying its motion for directed verdict. We disagree and address General’s arguments seriatim.

(a) General argues that Straws failed to prove that Waters was an uninsured motorist because she did not show that he had not deposited sufficient security under OCGA § 33-7-11 (d) (2) to render him insured. OCGA § 33-7-11 (e) establishes the procedure for proceeding against one’s own uninsured motorist carrier after being injured by a tortfeasor who cannot be found. It provides for service by publication when the owner or operator of a car which is alleged to have caused injury resides out of state, has left the state, or cannot after due diligence be found within the state. If those facts are presented by affidavit to the satisfaction of the judge and the affidavit or complaint shows that a claim exists against the driver and he is a necessary party, the judge may order service of the summons by publication. Id. The issuance of such an order is, in effect, a finding of due diligence. Douglas v. Woon, 205 Ga. App. 355 (1) (422 SE2d 61) (1992). When the order has issued and the tortfeasor cannot be found with due diligence, the statute should be “broadly construed” to allow the carrier to be sued by finding the tortfeasor is an uninsured motorist. Smith v. Commercial Union &c., 246 Ga. 50, 51 (268 SE2d 632) (1980). The law presumes that a vehicle is uninsured if its owner is unknown, and where the owner cannot be located, the uninsured motorist carrier can be sued. Id. at 52. Thus, the law does not require Straws to prove that Waters did not make the security deposits contemplated by OCGA § 33-7-11 (d) (2), and the trial court did not err in denying General’s motion on this ground.

(b) General also contends the trial court erred in denying its motion because Straws failed to prove she had uninsured motorist coverage. General argues Straws introduced only hearsay testimony of that fact and failed to tender her policy into evidence. We disagree because Straws testified that at the time of the accident, she had uninsured motorist coverage with General and paid an extra premium for it. Because the value of this statement derived from Straws’ credibility and did not rest on the veracity of another, it was not hearsay. OCGA § 24-3-1.

(c) Finally, General contends the court erred in denying its motion because the affidavit Straws’ attorney submitted to support service by publication was insufficient under OCGA § 33-7-11. General fails to explain how the affidavit was insufficient and sets forth no argument for this contention. Accordingly, it is without merit. The affidavit stated that Waters was operating a vehicle which caused Straws’ injuries, that Waters resided oút-of-state and could not be located, and that Straws had a pending case for personal injuries in which Waters was a necessary party. This is all the statute requires. Id.

2. General contends the trial court erred in failing to give three of its requests to charge. General argues that because its requested charges on the plaintiff’s credibility, the impropriety of awarding damages to compensate for pre-existing conditions, and proximate cause were correct statements of the law and adjusted to the facts of the case, the failure to give them constituted reversible error.

At the outset we note that under OCGA § 5-5-24, “no party may complain of the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” (Punctuation omitted.) Kittles v. Kittles, 187 Ga. App. 537, 539 (5) (370 SE2d 803) (1988). The transcript does not show that General stated the grounds of its objection to the court’s failure to give the charges. Moreover, the court gave charges which addressed the credibility of witnesses, compensating the plaintiff only for injuries caused by the defendant, and proximate cause. These charges covered the same principles of law as the charges General requested. A party is not entitled to have all of his requested charges given so long as the principle encompassed in the requested charge is covered elsewhere in the court’s charge. Lenny’s Number Two v. Echols, 192 Ga. App. 371 (3) (384 SE2d 898) (1989). As General does not argue that the charges given were incorrect statements of law, the court did not err in failing to give the requested charges.

Decided March 7, 1996.

George H. Connell, Jr., for appellant.

McKenney, Jordan & Carey, Jane M. Jordan, for appellee.

3. Finally, we deny Straws’ request that we award frivolous appeal damages under OCGA § 5-6-6 because there is no evidence that this appeal was asserted only for purposes of delay.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A95A2046.
    TRIMBLE v. CIRCUIT CITY STORES, INC.
    (469 SE2d 776)
   Beasley, Chief Judge.

This is an interlocutory appeal by plaintiff Trimble, a former employee of defendant Circuit City Stores, Inc., from an order pursuant to OCGA § 9-11-12 (b) (6) granting Circuit City’s motion to dismiss portions of the complaint alleging intentional infliction of emotional distress and entitlement to punitive damages.

Trimble alleges the following facts relevant to the dismissed counts: On April 15, 1992, Circuit City hired Trimble as Sales Counselor working on commissions. Trimble specifically requested, and was assured, that she would not lift more than 25 pounds in performing her job. In September, Circuit City transferred Dan Pea to Trimble’s store and made him Trimble’s immediate supervisor. Pea repeatedly sexually harassed Trimble, including unwanted touching, lewd comments and gestures, and other similar acts. Pea allegedly would hug Trimble, rub up against her body, and gesture in a manner that made Trimble extremely uncomfortable. Pea also ridiculed Trimble in front of other employees, telling them that Trimble did not wear underwear. Under the pretext of inspecting Trimble’s clothes to meet store requirements, Pea allegedly placed his hands down inside her shirt. Trimble reported these matters to the store manager but, apart from a warning, Circuit City took no action.

Pea continued harassing Trimble, scheduling long hours for her and denying requests for days off while granting other employees’ requests. Pea asked another employee if he was “doing Sharon.” Trimble again unfruitfully reported the incidents to the store manager.

On February 16,1993, Trimble filed charges of sexual harassment with the EEOC. On the same day, Pea resigned for reasons which Circuit City refused to disclose. Trimble alleges that afterwards the store continued its pattern of intentional harassment, including deliberately altering and removing her sales figures upon which commissions were figured, requiring Trimble to work extremely long hours with no days off, ordering her to lift television consoles in excess of 25 pounds, refusing to compensate her for overtime, and forcing her to perform price comparisons at competitors more often than other sales personnel, reducing her volume of commission sales.

Trimble received honors for outstanding results in video sales and sales excellence, yet Circuit City consistently charged her with various infractions over which she had no control. She reported the problems to the store manager, who did nothing to remedy them. Circuit City’s treatment affected her health and eventually forced her to resign on November 15. She fainted the next day and had to be taken to a medical facility, where the doctors determined she suffered from dehydration, stress, and exhaustion.

A motion to dismiss should not be granted unless, construing the pleadings in a light most favorable to plaintiff, it appears to a certainty that plaintiff would be entitled to no relief under any state of facts which could be proved in support of her claim. Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383) (1987); Bourn v. Herring, 225 Ga. 67, 70 (166 SE2d 89) (1969). Applying this standard and the rationale of Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (409 SE2d 835) (1991), we cannot agree with the trial court’s conclusion that Circuit City’s alleged conduct was insufficient to establish the requisite “outrageousness” of the alleged facts.

A plaintiff must prove the following elements in order to recover for intentional infliction of emotional distress: (1) intentional or reckless conduct (2) which is extreme and outrageous and (3) caused the emotional distress (4) which is severe. Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (335 SE2d 445) (1985). The existence of a special relationship between the actor and victim, such as that of employer to employee, may make otherwise non-egregious conduct outrageous. Id.

Whether the conduct alleged is sufficiently extreme or outrageous to support recovery is a question of law for the trial court. Yarbray, supra at 706 (2). Factors include the existence of a relationship in which one person has control over another, Anderson v. Chatham, 190 Ga. App. 559, 567 (8) (379 SE2d 793) (1989); the actor’s awareness of the victim’s particular susceptibility, Williams v. Voljavec, 202 Ga. App. 580, 582 (415 SE2d 31) (1992); and the severity of the resultant harm. Anderson, supra. Some claims have been found not to meet the threshold of outrageousness and egregiousness as a matter of law. Gordon v. Frost, 193 Ga. App. 517, 521 (388 SE2d 362) (1989). Other cases in which reasonable persons could differ must be decided by a jury. Id.

In Yarbray, supra, the Supreme Court held an employer’s retaliation against an employee for testifying against the employer could provide the basis for an employee’s intentional infliction of emotional distress claim. The employee filed an employment discrimination suit against her employer and served as a witness for a similar suit by a co-worker. The employer’s attorney told the employee “ ‘he hoped that [her testifying against the company] would not affect (her) job.’ ” Id. at 704. After the employee testified “against” the company, she was transferred to a position considered to be a demotion. This alleged retaliation met the threshold which reasonable persons would consider outrageous. Id. at 706 (2).

Circuit City’s alleged conduct likewise satisfies the threshold. The conduct occurred “in a workplace setting, in which the element of control is present. ‘(B)y its very nature, (the employee-employer relationship) provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships (that) cannot easily be avoided.’ [Cit.]” Richardson v. Hennly, 209 Ga. App. 868, 872 (434 SE2d 772) (1993). See also Lightning v. Roadway Exp., 60 F3d 1551, 1558 (11th Cir. 1995), where a supervisor subjected an employee to obscene and abusive language, and management undertook a strategy of writing up the employee for infractions in order to justify termination. The court upheld judgment against the employer. Similar is Coleman v. Housing Auth. of Americus, 191 Ga. App. 166 (381 SE2d 303) (1989), where a supervisor engaged in sexual harassment through conversation, innuendo, and body language. The court affirmed denial of the supervisor’s motion for summary judgment.

Circuit City relies on Sossenko v. Michelin Tire Corp., 172 Ga. App. 771 (324 SE2d 593) (1984), but it is distinguishable. The court held that after an employee reported alleged manufacturing defects, his employer’s statements to the employee concerning his job performance were not sufficiently outrageous so as to satisfy a claim for emotional distress. The court noted that the incidents the employee cited involved advice and warnings to him when appellant complained of various job transfers, which the employee insisted were demotions; however, his salary steadily increased. In addition, the employee admitted he was not personally frightened or intimidated by any of the individuals who made various statements to him.

The allegations in this case contrast sharply. Circuit City’s conduct toward Trimble, if proven, could be construed as a threat to Trimble’s physical health (requiring Trimble to work extremely long hours with no days off and to lift in excess of 25 pounds) and her livelihood (altering her sales figures and forcing her to perform price comparisons so that she could not make commission sales).

Circuit City further argues that reversal of the lower court will “remove the distinction between the common law tort . . . and Title VII, and undermine the requirements of the federal statute.” Just because Trimble may have a claim under Title VII of the Civil Rights Act of 1964 (42 USCA § 2000e), she is not foreclosed from bringing what Circuit City characterizes as “a claim for retaliation under Title VII dressed up in the guise of a common law claim for intentional infliction of emotional distress.” Circuit City cites several policy reasons to support its position, essentially contending that Title VII preempts the common law in this narrow area.

No authority is cited. On the other hand, Title VII provides, “Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State.” 42 USCA § 2000e-7. Title VII itself expressly does not preempt Trimble’s common law claim.

Circuit City also relies on the general rule that an employer is not liable for an employee’s intentional torts, including sexual harassment. Smith v. Holeman, 212 Ga. App. 158, 161 (441 SE2d 487) (1994); Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482 (2) (367 SE2d 328) (1988). It asserts that Trimble is therefore “precluded from relying on any of the alleged actions of Mr. Pea, the alleged harasser.” While it is true that Circuit City cannot be held vicariously liable for Pea’s intentional sexual harassment unless Circuit City ratified his actions, Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 673 (3) (347 SE2d 619) (1986), Circuit City’s knowledge of Pea’s actions against Trimble may give rise to liability nonetheless. Id. The first element of a claim such as Trimble’s requires that the conduct be intentional or reckless. Bridges, supra at 230. Accord Johnson v. Savannah College of Art & Design, 218 Ga. App. 66, 67 (460 SE2d 308) (1995). A plaintiff may prove circumstances “in which there [was] no certainty, but merely a high degree of probability that the mental distress [would] follow, and the defendant [went] ahead in conscious disregard of it.” Prosser and Keeton on Torts, p. 64, § 12 (5th ed. 1984). The actions of Pea, to the extent Circuit City was aware of them and did little or nothing, are relevant as to whether there was a “high probability” that mental distress would result from Circuit City’s response.

Decided March 7, 1996.

Nelson & Hill, Joseph C. Nelson III, John F. Beasley, Jr., for appellant.

Wimberly & Lawson, J. Larry Stine, for appellee.

Furthermore, as in Yarbray, where the employer was found to have retaliated against the employee for testifying against the company, a jury could find that Circuit City retaliated against Trimble for filing an EEOC claim and that such retaliation in this instance was outrageous. A jury could also find that Circuit City simply decided to make Trimble miserable enough to resign by engaging in a practice of writing her up on unwarranted claims of infractions, as did the employer in Lightning, supra.

Trimble’s alleged facts satisfy the pleading requirement. The trial court therefore erred in dismissing Trimble’s claim because a jury could grant relief should Trimble prove the facts alleged in her complaint.

Judgment reversed and remanded.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A2170.
    EMORY UNIVERSITY HOSPITAL v. SWEENEY et al.
    (469 SE2d 772)
   Blackburn, Judge.

William Sweeney and his wife filed the underlying medical malpractice action against Emory University Hospital (“Emory”) and an unnamed resident who operated on Sweeney. In the malpractice affidavit required to accompany the Sweeneys’ lawsuit, the physician asserted that he reviewed various medical records and a report of the Department of Health & Human Services (DHHR) memorandum in analyzing the matter. He concluded that Emory breached the requisite standard of care by not maintaining appropriate sterile technique during Sweeney’s surgery. Sweeney obtained a copy of the DHHR memorandum through an open records request. The DHHR memorandum contained information which was disclosed during Emory’s peer review process, but was otherwise available from original sources. Emory moved to strike certain paragraphs of the Sweeneys’ complaint and malpractice affidavit contending that they were derived from privileged peer review information. The trial court denied the motion, and we granted Emory’s application for interlocutory appeal to address the issue of whether the privilege provided to the proceedings and records of the medical review committee by OCGA § 31-7-143 follows the material and findings after they are obtained with proper authority by another government agency and included in a report issued by such other government agency.

In August 1992 Sweeney underwent brain surgery at Emory. Approximately three weeks later Sweeney was readmitted to Emory with a serious postoperative infection that required removal of the bone flap covering his surgical wound, leaving Sweeney’s head disfigured. Sweeney and his wife learned through a variety of sources including an Emory medical student and an Emory nurse that a large number of the hospital’s neurosurgery patients were experiencing similar postoperative wound infections. Sweeney attempted to investigate the problem on his own by questioning various doctors and nurses. Sweeney then lodged a complaint with the DHHR, naming four other neurosurgery patients that he knew had experienced similar postoperative infections.

In response to Sweeney’s complaint, the DHHR investigated the matter and prepared its report (DHHR memorandum) drawing from a number of different documentary sources including, patient records, policy and procedure manuals, staffing schedules, log books, medical staff rules and regulations and in-service training records, incident reports, employee personnel files, closed medical records, medical staff by-laws, infection control minutes, contracted services, QA/QC committee minutes and medical staff committee documentation (surgery, tissue, credentials, peer review, executive, medicine, and surgery, neurosurgery and treatment room). In addition, the DHHR interviewed the director, director of nursing, department heads (surgery and treatment room), QA/QC coordinator(s), infection control officer and a social worker. The DHHR memorandum reflects that the four patients named by Sweeney had undergone neurosurgery at Emory in 1992 and had suffered “nosocomial surgical wound infections.” The DHHR memorandum also noted that two of these patients had their surgeries the same week as Sweeney.

After outlining these initial findings, the DHHR memorandum addressed at length an investigation performed internally by Emory’s infection control and quality assurance committees prior to the DHHR investigation. The DHHR memorandum confirmed an unusually high rate of nosocomial infections in the neurosurgery department during the period in question and attributed the high infection rate to “intraoperative” sources. The DHHR memorandum reflects several factors that may have contributed to the infection rate, in-eluding concerns about a particular neurosurgery resident whose identity was not disclosed.

We first address the general issue of whether the privilege of OCGA § 31-7-143 extends to medical review committee findings subsequently incorporated into the report of a governmental investigatory agency. OCGA § 31-7-143 protects the confidentiality of certain medical review proceedings and findings. It provides in pertinent part: “The proceedings and records of medical review committees shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee. . . . However, information, documents, or records otherwise available from original sources shall not be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee.”

Emory argues that the privilege extends to medical review committee findings subsequently incorporated into a DHHR report. We agree. “It is, of course, fundamental that the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” (Punctuation omitted.) Wall v. Bd. of Elections of Chatham County, 242 Ga. 566, 573-574 (250 SE2d 408) (1978). In Eubanks v. Ferrier, 245 Ga. 763 (267 SE2d 230) (1980), the Georgia Supreme Court upheld the constitutionality of OCGA § 31-7-143 and outlined its purpose, stating that medical review committees play an important role in guaranteeing “the delivery of quality health care services by providing a method for the in-house review of clinical work performed in the hospital.” Id. at 765. In recognition of their importance, the statute accords privileged status to medical review committee communications and findings because of concern that the candor necessary for these committees would be destroyed if their proceedings and conclusions were subject to use in malpractice litigation. Id.

To permit a plaintiff to use privileged material simply because it is subsequently included in a government agency report would frustrate the statute’s policy of encouraging candor among medical review committees. Fearing that incriminating information discovered in the peer review process could be incorporated into a DHHR report that could later form the basis of a malpractice lawsuit, hospitals and medical professionals might be tempted not to conduct such reviews as often or as thoroughly as may be warranted.

It is apparent that those proceedings and records of medical review committees which are not subject to discovery or introduction into evidence under the provisions of OCGA § 31-7-143, do not lose their protected status as a result of being disclosed to an authorized government agency or by virtue of the inclusion of such material into its report by such government agency. OCGA § 50-18-70 (b) provides: “All public records of an agency as defined in subsection (a), except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.” (Emphasis supplied.) Any material provided for in OCGA § 31-7-143, in the control of any government agency, is not subject to inspection or release under the provisions of OCGA § 50-18-70 and any such material should be redacted from any reports which the agency is otherwise required to make available for inspection or release to the general public.

OCGA § 31-7-143 does not prohibit disclosure of information, documents, or records otherwise available from original sources because they were presented during medical review committee proceedings, nor does it preclude any person who testified before such committee from testifying as to matters within his knowledge although such person may not be questioned regarding his testimony before such a committee or opinions formed by such witness as a result of such committee hearing. These same standards of disclosure of medical review committee proceedings and records govern the review and release of such material under the provisions of OCGA § 50-18-70 (b). See also Hollowell v. Jove, 247 Ga. 678 (279 SE2d 430) (1981) (the evidentiary privilege provided to medical review committee findings is to be construed in the least expansive manner that will fulfill legislative intent and purpose).

Emory makes the assertion that the portions of the Sweeneys’ pleadings it seeks to strike could only have come from the peer review materials. It offers no evidence that the allegations contained within the complaint or the assertions contained within the malpractice affidavit could not have been reached without the peer review materials. In fact, the DHHR memorandum incorporated information from a number of sources in addition to peer review materials. Further, in arriving at his opinion, the doctor who executed the malpractice affidavit reviewed various medical records in addition to the DHHR memorandum. Even if there is information in the DHHR memorandum which might have come from the proscribed medical review committee material, Emory has failed to show that such material did come from medical review committee records, rather than from independent original sources or witnesses interviewed separately by DHHR investigators. Where as here, the information was available from original or other sources, we cannot assume that the peer review process was plaintiffs’ source or that such material or information is thus privileged. To do so would be contrary to the terms of OCGA § 31-7-143 and would invite the abuse of the peer review process by medical professionals by the simple expedient of insuring that all possible sources of inculpatory evidence were presented to the peer review committee. The purpose of the medical review process privileges is to protect the process for the public good, not to protect physicians from being held accountable for their tortious conduct. It was never intended that the peer review process be used in such a way as to effectively bar a plaintiff’s tort action. See Cobb County Kennestone Hosp. Auth. v. Martin, 208 Ga. App. 326 (430 SE2d 604) (1993); Dept. of Transp. v. Taunton, 217 Ga. App. 232, 233 (457 SE2d 570) (1995) (“ ‘motions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation’ ”).

Decided March 7, 1996.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Stephen H. Sparwath, J. Calhoun Harris, Jr., for appellant.

Bird, Ballard & Still, William Q. Bird, John G. Mabrey, Karin L. Allen, for appellees.

Emory contends that the fact that the language is essentially the same in some of the medical review committee records as in plaintiffs’ complaint, the physician’s affidavit and in the DHHR memorandum, establishes that such records were the source of the information. This similarity does not prove that plaintiffs obtained such information from the peer review records rather than from independent original sources or from independent interviews of witnesses, either by plaintiffs or DHHR investigators. Similarity in language would be expected from those reaching the same conclusion, especially if each obtained their information and material from the same original sources. How else would one expect the conclusions to be stated?

The trial court did not err in denying defendant’s motions to strike.

Judgment affirmed.

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

       Nosocomial is defined as: “Denoting a new disorder (unrelated to the patient’s primary condition) associated with being treated in a hospital.” Stedman’s Medical Dictionary (23rd ed. 1979).


text:
    A95A2311.
    PRATER v. THE STATE.
    (469 SE2d 780)
   Pope, Presiding Judge.

Lionel Prater was tried by a jury and convicted of three counts of burglary and one count of attempted burglary, and appeals. In his sole enumeration of error, Prater contends that the trial court erred in failing to properly investigate and determine whether he knowingly and intelligently waived his right to counsel.

Prater was charged with the crimes on March 12, 1994. On November 14, 1994, the case came on for trial in the superior court. Prater informed the court that attorney Colin McDonald had been appointed to represent him on April 11, 1994. Prater stated that McDonald subsequently withdrew from the case, claiming that Prater would not cooperate with him. Prater informed the court that a second attorney, James Bradley, was appointed to represent him on October 21, 1994. Prater told the court that Bradley did not take any steps to represent him before asking to be removed from the case. The record contains Bradley’s request to withdraw as Prater’s attorney, dated November 11, 1994. The court granted this request and entered an order removing Bradley as Prater’s attorney of record on November 14, 1994. In its order doing so, the court stated that it had held a hearing on the matter at which the defendant was present. There is no transcript of that hearing.

After explaining Bradley’s involvement in the case, Prater stated: “[F]or the record as stated at no time have I waived any present or future rights nor have I authorized anyone to do so. I, Lionel Prater, 107284, have [sat] here seven months, four days and want to be tried. I want to deal with this case now. Not one more month do I want to sit here at the jail without being tried.”

The court then recapped the history of Prater’s prior two attorneys and informed Prater that he still had the right to have an attorney appointed. Prater stated: “I think over the seven months I pretty much prepared myself for what is to come and I’m willing to deal with my case today.” Prater told the judge that he had been denied his request to go to the law library. Prater then stated that he wanted to file a “motion to dismiss the pawn slip,” arguing that a document which the State intended to submit in its case against him was fraudulent. After hearing Prater’s argument, the court denied the motion.

The court again reiterated Prater’s history with court-appointed attorneys. The court stated that the first attorney, McDonald, had filed a demurrer to the previous indictment, which had been granted. The court then recited that Prater’s second attorney had withdrawn from the case the previous week. The court again informed Prater of his right to an appointed attorney and asked whether Prater wanted the court to appoint another attorney.

This exchange ensued: “PRATER: Your Honor, I prefer to get this case over with today, sir. THE COURT: Does that mean you want to represent yourself at trial? PRATER: Yes, I do, sir. Yes, I do. THE COURT: And you’re waiving your right to an attorney? PRATER: Yes, I am.”

The court then recited that Prater was pleading not guilty, and the court stated the charges against him. This exchange followed: “THE COURT: Do you understand those charges? PRATER: Yes, sir. THE COURT: And you wish to plead not guilty? PRATER: Yes, sir. THE COURT: You wish to waive your right to an attorney? PRATER: Yes sir.” THE COURT: And go to trial? PRATER: Yes, sir.”

Prater then entered his not guilty plea. The court then concluded that Prater was capable of representing himself and that he knowingly had waived his right to an attorney.

The case then proceeded to trial with Prater representing himself. The record reflects that during trial Prater examined and called witnesses and introduced documents. Prater then took the stand and presented his own version of the events. He denied involvement in the crimes and argued, in essence, that he had been framed.

The jury found Prater guilty of the charges. After judgment, another attorney was appointed to represent Prater; he filed a motion for new trial, amended motion for new trial and notice of appeal.

In his sole enumeration of error, Prater argues that the trial court failed to determine on the record that Prater knew the nature of the charges against him, the statutory offenses included within them, the range of potential punishments, the possible defenses to the charges and mitigation thereof, and all other facts essential to a broad understanding of the matter. We agree and reverse.

“A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. This right attaches at the pleading stage of the criminal process, and may be waived only by voluntary and knowing action. Waiver will not be lightly presumed, and a trial judge must indulge every reasonable presumption against waiver. It is clear, however, that should a defendant choose to represent himself, he must have an opportunity to voluntarily, knowingly, and intelligently waive his right to counsel. The standard for waiver requires an intentional relinquishment or abandonment of a known right or privilege, and the constitutional right of the accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.” (Citations and punctuation omitted.) Hasty v. State, 215 Ga. App. 155, 158 (2) (450 SE2d 278) (1994). See generally Keith v. State, 218 Ga. App. 729 (1) (463 SE2d 51) (1995).

“Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment. ... In order to establish a valid waiver, a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.” (Punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357-358 (1) (414 SE2d 502) (1991).

Decided March 7, 1996.

Richard D. Hobbs, for appellant.

Robert E. Keller, District Attorney, M. Tom Woodward, Assistant District Attorney, for appellee.

The requirements essential to a voluntary, knowing, and intelligent waiver of counsel are absent here. The record was bereft of any evidence that Prater understood the consequences, dangers or permanency of waiving this right. The transcript shows only that Prater wanted to expedite the trial process. There is no indication that Prater understood the nature of the charges; the statutory offenses included within them; the range of allowable punishments thereunder (especially in light of the State’s intent to introduce five prior similar crimes under the recidivist provisions of OCGA § 17-10-7); possible defenses to the charges and circumstances in mitigation thereof; or other facts essential to establishing a knowing waiver. See Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981).

Moreover, we cannot conclude that the error was harmless. Compare McCook v. State, 178 Ga. App. 276 (342 SE2d 757) (1986). Although the evidence against Prater was ample, we cannot discount the difficulties he encountered, because of his inexperience in legal matters, in defending himself. For instance, in cross-examining a witness for the State who testified that she had seen a red Ford Tempo at the scene of one of the burglaries, Prater asked twice: “Do I look like a red Ford Tempo?” The record shows that Prater was confused, disorganized, and ill-equipped for handling the case, and that he was inadequately warned beforehand of these dangers. Compare May v. State, 217 Ga. App. 427 (457 SE2d 694) (1995). Because we cannot conclude that Prater’s conviction was independent of his decision to represent himself, we conclude that the judgment below must be reversed and the case remanded for further proceedings consistent with this opinion.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.


author: Birdsong, Presiding Judge.

text:
    A95A2682.
    BURKE COUNTY SCHOOL DISTRICT v. ROBERTS et al.
    (469 SE2d 529)
   Birdsong, Presiding Judge.

The Burke County School District appeals from a judgment, following the verdict in a bench trial, for $1,572,985.03 in favor of Ricky and Diane Roberts, individually and as parents and natural guardians of their deceased son, Rodriguez Roberts. After the trial court reduced the verdict to the amount of insurance coverage available, judgment was entered in favor of the Roberts for $1,000,000.

At the time of his death in 1986, Rodriguez Roberts was a five-year-old kindergarten student in the Burke County schools, and he rode one of the school district’s buses to and from school. In the morning the school bus picked him up across from his home, but after school the bus dropped him off some half mile from his home. He then walked to his home with some older neighborhood children.

Although the pick-up spot was on the approved scheduled bus route, the drop-off spot was not. Instead, based upon the request of some parents, the school district allowed the children to be dropped off there because the children would arrive home an hour earlier than if they stayed on the bus until it would drop them off at the official stop nearest their homes. Nevertheless, using this stop meant that the children walked along a heavily traveled road with a 55 mph speed limit and with no crosswalks, sidewalks, or other safety measures for the children. Although the evidence is conflicting on whether the Roberts authorized the bus driver to drop Rodriguez off at the alternate stop, the bus driver informed the principal that Rodriguez would be dropped off there. On the day of the accident, Rodriguez had been dropped off at the unauthorized stop and was walking home with the older children when he suddenly ran across the road toward his house, was struck by a van, and was killed.

Thereafter, his parents sued the driver of the school bus, the county superintendent of schools, in his individual and official capacities, and current or former members of the Burke County Board of Education, in their individual and official capacities, for damages arising from Rodriguez Roberts’ death. Subsequently, the trial court granted the Roberts’ motion to amend the complaint to add the school district as a defendant and dismiss the superintendent and the school board members as defendants. Later, the Roberts also dismissed the complaint against the school bus driver.

At the time of Rodriguez Roberts’ death, the school district apparently was insured by two policies of insurance: One, a comprehensive liability policy issued by Illinois Insurance Exchange, but which excluded coverage for injury or damages arising from the ownership, maintenance, operation, use, or loading or unloading of a vehicle, and perhaps another policy issued by Unisun Insurance Company that seemingly provided coverage for losses arising out of the use and operation of the district’s school buses. Although the trial court discussed this policy in its verdict, apparently the policy was not introduced in evidence, or otherwise made a matter of record because no copy of the policy or stipulation of its terms is included in the record. The record does contain, however, pleadings stating that Unisun agreed to pay the Roberts no less than $30,000 but no more than $45,000 to satisfy its obligations under the policy.

After a bench trial, the trial court found the school district liable because the bus route used was unsafe in that the five-year-old child was discharged from the school bus at a hazardous location and was expected to walk along a dangerous road with no safety protection. Further, the trial court found that even though the school district was aware of these unsafe, hazardous conditions, it did nothing to prevent or prohibit the discharge of the children from the school bus at that location.

The trial court then concluded, as a matter of law, that the maintenance, operation, or use of the school bus was not the proximate cause of Rodriguez Roberts’ death. In reaching this conclusion the trial court found that because the school bus was some distance from Rodriguez Roberts when he was struck by the car, his injuries could not be said to have arisen from the use of the school bus within the contemplation of the two insurance policies. Thus, the trial court found that the Unisun policy, which apparently provided coverage for damages arising from the use of the school bus did not provide coverage, and that the Illinois Insurance Exchange policy which excluded coverage for damages arising from the use of the school bus, provided coverage. Consequently, the trial court found a waiver of sovereign immunity up to the limits of the liability coverage and issued a judgment for $1,000,000.

On appeal the school district contends the trial court erred by finding the school district had waived its sovereign immunity to the extent of available insurance under a comprehensive general liability policy; the trial court erred by holding the school district liable based upon the evidence; the trial court erred by allowing the Roberts to amend their complaint; and the trial court erred by denying the school district’s motion for a directed verdict (involuntary dismissal under OCGA § 9-11-41 (b)) based on the statute of limitation. Held:

1. Because the school district is immune from suit under the doctrine of sovereign immunity (Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59 (335 SE2d 112); Sisson v. Douglas County School Dist., 181 Ga. App. 77, 78 (351 SE2d 272)), our initial consideration is whether the trial court correctly ruled that sovereign immunity was waived through the purchase of liability insurance. As this cause of action accrued before January 1, 1991, the effective date of the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, it is governed by the law existing prior to that amendment. Parker v. Wynn, 211 Ga. App. 78 (438 SE2d 147). Under that law, the purchase of liability insurance waived sovereign immunity to the extent of the liability insurance provided. Thigpen v. McDuffie County Bd. of Ed., supra; Parker v. Wynn, supra; Ga. Farm &c. Co. v. Greene, 174 Ga. App. 120 (329 SE2d 204).

Here, the Roberts assert that the insurance policy issued by Illinois Insurance Exchange provides the necessary waiver. Although there is no question that this policy was in effect, the policy contains the following exclusion: “This insurance does not apply to ‘bodily injury’ or ‘property damage’ that arises out of the ownership, maintenance, operation, use, ‘loading or unloading’ or entrustment to others of any aircraft, ‘auto’ or watercraft which is owned, operated or hired by any insured. For the purpose of this exclusion the word ‘hired’ includes any contract to furnish transportation of pupils to and from schools.” “Auto” is defined broadly in the policy as “a land motor vehicle . . . designed for travel on public roads.”

We find that this provision is clear and unambiguous and its only reasonable construction is to exclude any coverage under the policy for any injury or damage that arose from the use of the school district’s school buses.

Although the trial court and the plaintiffs have fashioned a theory under which the school district can be liable under the facts of this case, and yet avoid this exclusion, the evidence presented does not allow that result. The trial court’s findings of fact which support the imposition of liability against the school district are based upon dropping off Rodriguez Roberts in a hazardous location and requiring him to walk to his home along a dangerous road. These findings are inescapably bound to the use of the school bus. If the bus driver had not dropped off Rodriguez Roberts at the unapproved bus stop, there is no valid claim against the school district under their theory because it was the use of the school bus, i.e., the dropping off of the child and placing him in danger that led to his death, on which liability was based. Therefore, the evidence shows the death arose from the use of the school bus.

In this sense, for the injury or damage to arise from the use of the school bus does not mean that the injury or damage was directly or proximately caused by the use of the school bus or that the school bus exerted any physical force on the immediate cause of the injury. This Court has adopted a liberal definition of “use” and any causal connection or relationship will suffice. See Abercrombie v. Ga. Farm &c. Co., 216 Ga. App. 602, 604 (454 SE2d 813); Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 563 (236 SE2d 550).

In Cawthon v. Waco Fire &c. Co., 183 Ga. App. 238 (358 SE2d 615), and Ga. Farm &c. Co. v. Greene, supra, we earlier considered the scope of policy provisions concerning the “use” of school buses. In these cases we were concerned whether the loading or unloading of a school bus placed the children in danger and at what point the “use” of the school bus began or ended. In this case the plaintiffs and the trial court have focused too much on the physical distance of the school bus from the place where Rodriguez Roberts was struck by the vehicle and not on the conduct of the school district which placed Rodriguez Roberts in a position of danger. In Ga. Farm Bureau &c. Co. v. Greene, supra at 124, we held that the use of a school bus “includes transportation of children to and from such school and the unloading of the school bus and that such unloading encompasses not only depositing them outside the bus but assuring that they reach a place of safety.” In Cawthon v. Waco Fire &c. Co., supra at 241-242, we held that the use of a school bus could include conduct which occurred even before the school bus arrived at the bus stop if a child was acting pursuant to instructions from the bus driver. Both of these opinions are grounded on the school’s actions in placing the children in positions of danger, and not the proximity of the school bus to the accident. Although Ga. Farm &c. Co. v. Greene, supra at 124, speaks of the bus “standing guard” and that “ ‘use’ of the vehicle [does not continue] until the children reach home,” it also holds that “use” continues until the child is in a place of safety in a direction toward home. In this case, given the trial court’s factual findings about the dangerous and hazardous location in which Rodriguez Roberts was placed, his use of the school bus had not ended at the time of his injury even if the school bus was miles away at the time.

Consequently, as the dropping off of the child was unquestionably an act which arose “out of the ownership, maintenance, operation, use,” of the school bus, the exclusion applied and there is no coverage under the Illinois Insurance Exchange policy for this incident. Because there is no insurance coverage under this policy, the Roberts did not establish that there was a waiver of sovereign immunity, and the trial court erred by denying the school district’s motion for a directed verdict (involuntary dismissal) on this issue. See City of Lawrenceville v. Macko, 211 Ga. App. 312 (439 SE2d 95).

Accordingly, the trial court erred by finding a waiver of sovereign immunity in this case. Therefore, the judgment of the trial court must be reversed and the case remanded to the trial court with direction to enter an involuntary dismissal under OCGA § 9-11-41 (b) in favor of the school district.

2. Although our holding that the death of Rodriguez Roberts arose from the use of the school bus necessarily calls into question the correctness of the trial court’s ruling concerning the applicability of the other insurance policy, that issue is not before us. Because the Roberts did not file a cross-appeal contesting the trial court’s ruling in regard to that policy, we have no jurisdiction to consider the issue. Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783 (302 SE2d 594).

Decided March 7, 1996

Barnhart, O’Quinn & Williams, Steven D. Barnhart, Drew, Eckl & Farnham, Theodore Freeman, Nancy F. Rigby, Paine, McElreath & Ryder, James D. Hyder, Jr., for appellant.

Jones & Smith, Bobby T. Jones, Julian B. Smith, Jr., Smith, Howard & Ajax, Bruce H. Beerman, Robert S. Lanier, Jr., Grady K. Reddick, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellees.

3. Because of our resolution of this case in Division 1, the other issues raised on appeal are moot.

Judgment reversed with direction.

Johnson and Smith, JJ., concur.