text:
    A95A0990.
    MONROE et al. v. SAVANNAH ELECTRIC & POWER COMPANY.
    (465 SE2d 508)
   McMurray, Presiding Judge.

Tamarah Marie Monroe, individually, as surviving spouse of Scott Clayton Ussery, deceased, and as permanent administratrix of the estate of Scott Clayton Ussery (plaintiff) brought an action against Savannah Electric & Power Company (“Savannah Electric”), alleging that defects in Savannah Electric’s power transmission system resulted in fatal wounds to Scott Clayton Ussery when a boat he was towing contacted an overhead power line. Plaintiff seeks recovery based on theories of negligence and strict liability, asserting that the substandard electrical transmission facilities delivered “a defective electrical product and service generated and manufactured ... for sale by [Savannah Electric].” The parties later filed opposing motions for partial summary judgment, seeking a determination of Savannah Electric’s liability under Georgia’s strict liability statute, OCGA § 51-1-11 (b) (1). This Code subsection provides that a manufacturer shall be liable in tort for injuries caused by defective personal property “sold” as new in Georgia.

Savannah Electric does not dispute that the fatal incident occurred while Scott Clayton Ussery was towing a boat along an access road to a commercial boat-docking facility known as Walsh’s Dock; that one of the boat’s stanchions contacted the power line servicing Walsh’s Dock and that electricity from this power line grounded through Scott Clayton Ussery’s body when he stepped from his truck (apparently) to investigate. The utility, however, relies on undisputed proof that Scott Clayton Ussery was killed by electricity that had not yet passed through the electric power meter at Walsh’s Dock, arguing that OCGA § 51-11-1 (b) (1) does not apply since this energy had not been “sold” at the time of the fatal incident. See Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340). Plaintiff countered by filing the affidavit of an expert who deposed that before the fatal current struck Scott Clayton Ussery, it flowed through the power transformer that was (apparently) just above the electric meter at Walsh’s Dock. This expert also deposed that Scott Clayton Ussery’s injuries were the result of substandard grounding, clearance and fusing of the overhead power line leading to Walsh’s Dock.

The trial court agreed with Savannah Electric, concluding that, even if “the electricity that killed [Scott Clayton Ussery] was ... a product, it was not ‘sold’ within the meaning of [OCGA § 51-1-11 (b) (1)] because it had not passed through the meter [at Walsh’s Dock].” The trial court also found that “[a]ny [strict liability] claims regarding the construction, design, etc., of the poles, transformers, and other pieces of equipment are barred by the statute of repose [imposed by OCGA § 51-1-11 (b) (2)].” This appeal followed from the trial court’s orders denying plaintiff’s motion for partial summary judgment and granting Savannah Electric’s motion for partial summary judgment. Held:

The Courts of Georgia have not addressed the possible application of strict liability, under OCGA § 51-1-11 (b) (1), to a supplier of electricity. This Code subsection provides for strict liability with respect to the manufacturer of personal property sold as new. The first question we must answer, then, is whether electrical power is a product (rather than a service) within the meaning of this Code subsection. Other jurisdictions have held that electricity may constitute a “product” for purposes of imposing strict tort liability under Restatement of the Law, Second, Torts § 402A, pp. 347-348. See American Law of Products Liability 3d, § 117:2. The reasoning is that, while distribution of electricity may be a service, the electricity itself (like other products) can be manufactured, confined, controlled, transmitted and distributed in the stream of commerce. Ransome v. Wisconsin Elec. Power Co., 275 NW2d 641, 643 (1979). We agree with such logic, but clarify that electricity may only be considered a product within the meaning of Georgia’s strict liability statute when it has been “sold” or placed in the stream of commerce, i.e., the utility has placed the electricity in the hands of and under the control of a consumer. See Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745, supra. Consequently, the controlling issue in the present appeal is whether Walsh’s Dock had possession of and control over the current that killed Scott Clayton Ussery. See Pierce v. Pacific Gas &c. Co., 212 Cal. Rptr. 283, 290 (1985); Schriner v. Pennsylvania Power &c. Co., 501 A2d 1128, 1133 (1985).

Plaintiff contends the fatal electricity was “sold” to Walsh’s Dock before it entered Scott Clayton Ussery’s body because it “had been delivered to the consumer’s property for use.” She also argues that the passage of electricity through the meter at Walsh’s Dock has no bearing on whether the electricity was “sold” within the meaning of OCGA § 51-1-11 (b) (1), reasoning that “electricity is present on both sides of a Meter at all times, and that when electricity is used by the consumer on the consumer’s side of the Meter the amount of electricity used, which is already on the consumer’s side of the Meter, is only measured by the Meter.”

The fact that Scott Clayton Ussery was electrocuted at Walsh’s Dock via contact with an overhead power line dedicated solely to the transmission of electricity to that business does not establish that the current which grounded through Scott Clayton Ussery’s body was in the hands of and under the control of Walsh’s Dock. Further, plaintiff’s proof that the fatal current looped or flowed through the transformer at Walsh’s Dock before it hit Scott Clayton Ussery sheds no light on whether the customer had access to or control over the voltage. Indeed, neither Savannah Electric nor plaintiff has offered conclusive proof regarding the point at which the fatal current was actually “sold” to or placed in the possession and control of Walsh’s Dock. This is not surprising, however, since other jurisdictions have struggled over technical proof regarding the point at which electricity is actually “sold” to a consumer, for purposes of measuring strict tort liability. See American Law of Products Liability 3d, § 117:2. Some jurisdictions adopt the view that electricity is not placed in the stream of commerce until it passes through a customer’s electric meter, i.e., the point where charges are customarily computed. Ransome v. Wisconsin Elec. Power Co., 275 NW2d 641, 649, supra; Schriner v. Pennsylvania Power &c. Co., 501 A2d 1128, 1134, supra. Other jurisdictions refuse to embrace such an inflexible rule, recognizing that “the many variations in electrical systems prevent. . . drawing [such] a ‘bright line’ at a particular point.” Pierce v. Pacific Gas &c. Co., 212 Cal. Rptr. 283, 292, supra. See Aversa v. Public Svc. Elec. &c. Co., 451 A2d 976, 980 (1982). The circumstances of the case sub judice do not require a commitment to either view. It is sufficient for us to say that electricity is a product or “personal property sold as new property” under OCGA § 51-1-11 (b) (1) when it is in the hands of and under the control of the consumer, intended to be available to the customer at a useable voltage. See Pierce v. Pacific Gas &c. Co., 212 Cal. Rptr. 283, 292, supra. In other words, we hold that contact with high voltage transmission lines does not generally fall within the purview of strict tort liability, at least in the context of an electrical provider’s liability as set out in OCGA § 51-1-11 (b) (1). See Houston Lighting &c. Co. v. Reynolds, 765 SW2d 784, 785 (1989).

Decided December 4, 1995

Reconsideration denied December 14, 1995

Bergen & Bergen, Joseph B. Bergen, Frederick S. Bergen, for appellants.

Bouhan, Williams & Levy, Walter C. Hartridge, Carlton E. Joyce, for appellee.

Phillips & Reid, Charles T. Autry, Brendan F. Flanagan, amici curiae.

In the case sub judice, there is no proof that Scott Clayton Ussery was electrocuted at a point where electricity was intended to be available for immediate use at Walsh’s Dock. Plaintiff merely alleged that Scott Clayton Ussery was killed after the boat he was towing came in contact with a “7,620 Volt High Tension Wire leading to Walsh’s Dock. . . .” And even though plaintiff’s expert deposed that Scott Clayton Ussery was hit by electricity that had looped or flowed through the power transformer at Walsh’s Dock, he does not say that the fatal current was transformed or that it should have been transformed to a useable voltage at the time it hit Scott Clayton Ussery. Consequently, since there appears to be no question that Scott Clayton Ussery was killed by energy that was not transformed or intended to be transformed for use at Walsh’s Dock, we find no basis of support for plaintiff’s claim under OCGA § 51-1-11 (b) (1). Accordingly, the trial court did not err in denying plaintiff’s motion for partial summary judgment and granting Savannah Electric’s motion for partial summary judgment. Plaintiff must therefore proceed on the remaining negligence claims.

Judgment affirmed.

Andrews and Blackburn, JJ., concur in the judgment only.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1136.
    HARRISON v. DIGITAL EQUIPMENT CORPORATION et al.
    (465 SE2d 494)
   McMurray, Presiding Judge.

Plaintiff Harrison began working for defendant Digital Equipment Corporation in 1982. In 1989, plaintiff was assigned to work in a newly constructed building. Defendant Heery International, Inc. was the architect for the new building which was constructed by defendant Beers Construction Company.

Immediately upon transfer to the new building, plaintiff began to notice physical, mental, and emotional reactions to the environment of the new building and reported this to her employer. In January 1990, plaintiff’s physician ordered her out of the building because of the possibility that she was suffering from reactive elements of the building. Plaintiff was transferred to another facility and her symptoms abated to some degree, but not entirely. Whenever plaintiff returned to the new building, she would suffer an adverse reaction. In September 1990, plaintiff filed a workers’ compensation claim. In January 1991, plaintiff provided a medical statement concerning her physical problems and was placed on medical disability the following month. Plaintiff remained on medical disability until August 1991, when, with the consent of her physician she attempted to resume working in the new building on a monitored basis. Plaintiff immediately began to suffer her previous symptoms and returned to disabled status after three weeks. After a similar attempt by plaintiff to resume working in the new building which lasted two weeks in March 1992, plaintiff was transferred to another building.

On May 6, 1994, plaintiff filed this action against the defendants alleging that they caused physical injury to her by negligently designing or constructing the new building, or by negligently causing her to work in a dangerous and harmful environment, and by fraudulently concealing their negligence. On September 21, 1994, the superior court entered an order granting the motion to dismiss of defendant Heery International, Inc. An order entered November 4, 1994, granted the motions to dismiss of defendants Digital Equipment Corporation and Beers Construction, Inc. Plaintiff appeals the grant of the defendants’ separate motions to dismiss for failure to state a claim upon which relief may be granted, albeit these motions appear to have been converted to motions for summary judgment by the superior court’s consideration of evidence outside the pleadings. Held-.

We must affirm since plaintiff’s action against each of the defendants was barred by the statute of limitation. The statute of limitation applicable to an action for personal injury is a period of two years. OCGA § 9-3-33. The primary issue presented here is determination of when that period commenced.

Decided November 29, 1995

Reconsideration denied December 14, 1995

Brenda Harrison, pro se.

Drew, Eckl & Farnham, G. Randall Moody, Douglas T. Lay, Varner, Stephens, White & Humphries, Paul M. Talmadge, Jr., Vaughan & Murphy, C. David Vaughan, Ellen G. Schlossberg, for appellees.

Plaintiffs cause of action accrued when, in the exercise of reasonable diligence, she discovered or should have discovered that she had been injured and that her injury may have been caused by defendants’ conduct. Thomason v. Gold Kist, 200 Ga. App. 246, 247 (1) (407 SE2d 472). In the case sub judice, it is well established that plaintiff was aware that she was suffering some type of injury in 1989 or early 1990. In regard to the second prong of this test, the filing of a workers’ compensation claim in September 1990 shows that by that date plaintiff had knowledge that the new building may have been a cause of her injuries. Thus, the statutory period began to run more than two years prior to the filing of this action. A specific and accurate diagnosis of plaintiffs affliction was not necessary to begin the running of the statute of limitation. Thomason v. Gold Kist, 200 Ga. App. 246, 247 (1), supra. See also Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741); King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252).

Nonetheless, plaintiff maintains that the running of the statute of limitation was tolled by the fraud of the defendants. Two items are noted by the plaintiff as constituting fraud, first, statements made by defendant Digital Equipment Corporation’s physician that the building could not be the cause of plaintiffs symptoms and, second, the withholding from plaintiff of certain environmental studies conducted on the building. However, neither of these circumstances constitutes such a trick or artifice as would mislead or hinder plaintiff from obtaining information under the circumstances of the case sub judice. Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 679 (2) (426 SE2d 165). Indeed, the plaintiffs reliance appears to have been placed upon the opinions of her own physician rather than upon the circumstances she now cites as evidence of fraud. See Bryant v. Crider, 209 Ga. App. 623, 627 (3) (434 SE2d 161). Plaintiff’s contention of a tolling of the statute of limitation for fraud lacks merit, and we decline to accept her contention that the case sub judice may be factually distinguishable from the previous cases.

The superior court was correct in holding that plaintiffs action against each of the defendants was barred by the statute of limitation. Consequently, plaintiff’s remaining enumerations of error are moot.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A95A1253.
    DEPARTMENT OF TRANSPORTATION v. SHARPE et al.
    (465 SE2d 695)
   Blackburn, Judge.

This is the second appearance of this condemnation case before this Court. In Dept. of Transp. v. Sharpe, 213 Ga. App. 549 (445 SE2d 343) (1994), we reversed the judgment entered on the jury’s verdict based upon the trial court’s erroneous instruction to the jury. The case was returned for a second trial following which the jury awarded condemnees R. G. Sharpe and Dabney Sharpe, individually and as administrators of the estate of C. W. Sharpe, $850,000 for the value of the 19.289 acres of wooded land containing limestone deposits which was condemned by the Department of Transportation (DOT). The award was far in excess of the $23,750 loss set by the DOT’s expert appraiser. Judgment was entered on the jury’s verdict, and this appeal followed. Specifically, the DOT maintains that experts Robert Gerdhardt and Joseph Limb assigned values to the condemned property as if the eight million tons of limestone deposits had been mined when in fact, no mining had occurred. The DOT asserts that this testimony was improper.

1. The DOT made no contemporaneous objection to the testimony of the experts. Rather, it moved to strike portions of the expert’s testimony at the close of evidence. Condemnees assert this method of excluding evidence is untimely and improper. The Supreme Court has previously held that by allowing evidence to be introduced without objection, a party does not necessarily waive the right to move to have the evidence excluded any time before the case goes to the jury. Patton v. Bank of LaFayette, 124 Ga. 965, 974 (53 SE 664) (1906).

However, only certain evidence can be excluded by a motion to strike made subsequent to its admission. Patton, supra, raised a similar issue regarding hearsay testimony. “[A] distinction is to be drawn between illegal testimony and secondary evidence or other evidence which is legal in itself because it is of probative value but is inadmissible until the proper foundation for its reception has been laid. Hearsay testimony has no probative force whatsoever [cit.], and its only effect is to prejudice the party against whom it is offered. Evidence of a secondary nature, the only objection to which is that it was received without the preliminary foundation for its introduction being first laid, stands upon an altogether different footing; and if admitted without objection, it is to be treated as altogether competent.” Patton, supra at 974; see also Mable v. State, 261 Ga. 379, 381 (405 SE2d 48) (1991).

The evidence at issue in this case may be analogized to the hearsay evidence addressed in Patton. This is not an instance of proper evidence being admitted without the necessary foundation. Rather, the DOT asserts that the condemnees offered testimony evidencing the wrong measure of damages. Thus, the DOT claims, the evidence is altogether without probative force as to the condemnees’ damages and only served to prejudice the jury by giving them an improper notion of the condemned land’s value. Under the facts of this case, we determine that the DOT sought to strike illegal evidence, not secondary evidence, as those terms are defined in Patton, and, accordingly, the DOT’s motion to strike was appropriate.

2. Having determined that the DOT’s motion to strike properly preserved its objection, we must determine whether the trial court erred in not granting the DOT’s motion. Gerdhardt, a real estate appraiser, testified that the highest and best use for the land was residential-agricultural that permits mining. He opined that the surface acreage was worth $16,000. He separately calculated the present value of the mineral deposits at $600,000 to $650,000 based upon a royalty paid upon the extraction of limestone.

DOT argues that this testimony should have been struck under Dept. of Transp. v. Benton, 214 Ga. App. 221, 222 (447 SE2d 159) (1994). In Benton a condemnation award was reversed because the condemnee’s expert valued undivided, unimproved land by hypothesizing how much the land would be worth if it had been subdivided for residential homes. Even though the expert subtracted the cost necessary to subdivide in determining the land’s value, this Court reasoned that the evidence should have been excluded “because it values the property at a time after the taking.” Id. at 223.

We agree with the DOT that, in this case, the trial court permitted improper testimony of the condemned land’s value. However, our decision is not based on Benton but on other condemnation cases that directly address how to value land containing mineral or soil deposits suitable for extraction. Williams v. Mayor &c. of Carrollton, 195 Ga. App. 590 (394 SE2d 389) (1990) concerned how to value condemned land containing “chewacla” soil. “The fact that chewacla soil was present was a relevant factor to be considered in determining the overall value of the property. See generally State Hwy. Bd. of Ga. v. Shierling, 51 Ga. App. 935 (1, 2) (181 SE 885) (1935). However, the separate value of the chewacla soil would certainly not be a relevant inquiry. Land containing valuable deposits may be of greater market value than land without such deposits, but the land and the deposits constitute one subject matter and there cannot be a recovery for the land as such, and also for the deposits. Southern R. Co. v. Miller, 94 Ga. App. 701, 704 (1) (96 SE2d 297) (1956). . . . Thus, the only relevant inquiry was the overall value of the property, with the fact that the property contained chewacla soil being taken into account.” (Punctuation omitted.) Id. at 591.

Similarly, in the present case, the only relevant inquiry was the overall value of the property on the date of taking with the presence of the limestone deposits being taken into account. Thus, while the condemnees could properly recover any enhancement to the property’s value resulting from the limestone deposits, they were not entitled to recover the separate value of surface property and the mineral deposits. Accordingly, the trial court erred in allowing this testimony from Gerdhardt.

Limb, an industrial minerals real estate consultant, opined that the actual damage to condemned property was $595,606 based upon royalty income that could be generated from the mining of the limestone for an eight-year period. Based upon the same reasoning outlined in Division 1 above, the trial court erred in allowing this testimony. Similar evidence merited reversal in Southern, supra. The condemned land in Southern contained sand deposits. The improper testimony valued the sand based upon the owner’s probable compensation assuming a ten-year extraction period. “[L]and and the deposits [contained therein] constitute one subject matter and there cannot be a recovery for the land as such, and also for the [sand] deposits.” Southern, supra at 704. Once again, in this case, testimony could be offered as to the enhanced value of the land based upon the presence of the limestone deposits; however, condemnees cannot value their land and the mineral deposits separately.

Decided November 17, 1995

Reconsideration denied December 14, 1995

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, John A. Draughon, Assistant Attorney General, Sell & Melton, Michelle W. Johnson, for appellant.

Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, William R. Jerles, Jr., for appellees.

As the general award of the jury was obviously affected by the expert testimony of these witnesses, it must be reversed.

3. In light of the foregoing, it is not necessary for us to address the remaining enumerations of error.

Judgment reversed.

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

       We perceive very strong inequities and weaknesses in this rule when applied to civil as opposed to criminal cases. Cf. Mable v. State, supra (inadmissible evidence regarding Miranda violation is subject to motion to strike at any time before case is submitted to jury). We understand the rationale that inadmissible evidence should never be submitted to the jury, regardless of when an objection is lodged. However, on balance, we find the rule of permitting a motion to strike evidence previously admitted without objection harms more than helps the cause of fair dispute resolution.
      First, these types of motions risk potential for great abuse as they allow objections to be made after a party has closed its evidence and dismissed its witnesses, effectively preventing that party from curing any evidentiary defect raised by the motion. The widespread use of this form of objection would negatively affect judicial economy. Witnesses could be subject to lengthy direct and cross-examinations only to have their testimony ruled inadmissible at a later time. The case at hand exemplifies one of the problems posed to judicial economy. It is quite possible that if the objection had been made during the course of the experts’ testimony, additional evidence would have resolved the objection, thereby eliminating the need for the present appeal or the expense of a possible retrial. Finally, the rule permits great confusion among both judges and jurors. It is an unenviable task to rule on objections in testimony that was previously given. In that circumstance, the trial court must rely in large measure on its recollection of testimony whereas a contemporaneous objection permits the trial court to direct and limit testimony as appropriate rather than try to evaluate and analyze a memory of that testimony. Also, when evidence is stricken after its admission, jurors must face the difficult, sometimes near impossible, task of “disregarding” testimony that they have already heard.
      While reluctant to do so for the reasons outlined above, we permit this form of objection as it is allowed pursuant to the present law of this state.


text:
    A95A1529.
    FOODMAX OF GEORGIA v. FLEMING.
    (465 SE2d 489)
   McMurray, Presiding Judge.

This is a premises liability case in which we have granted permission for defendant Foodmax of Georgia to file an interlocutory appeal from the denial of its motion for summary judgment. Plaintiff Fleming was injured when shopping in defendant’s grocery store when she attempted to remove a can of tomatoes from a display stacked to a height of approximately six feet. Plaintiff, who was seventy or seventy-one years of age at the time of the incident, stands approximately five feet, three inches tall. She was struck when the very can she was removing from the stack fell into her face. Plaintiff testified in her deposition that she “tip-toed up” and could just barely reach the can. There is no evidence that any other component of the display was dislodged other than the can plaintiff was attempting to remove.

The complaint alleges the cans of tomatoes were negligently displayed and that the method in which the cans were displayed was inherently dangerous and unsafe. The superior court found jury issues remained as to negligence, assumption of the risk, and whether plaintiff knew and appreciated the danger that a can might fall in her face. The evidence of record shows that plaintiff’s allegations of negligence on the part of defendant and unsafe display of the cans of tomatoes is predicated entirely upon the height of the display. In this connection we repeat that the can which injured plaintiff was that which she had dislodged.

Decided November 29, 1995

Reconsideration denied December 14, 1995

Tisinger, Tisinger, Vance & Greer, J. Branson Parker, for appellant.

Jack F. Witcher, for appellee.

In order for plaintiff to recover on her negligence theory, there must have been a defective condition on defendant’s premises which was the cause of plaintiff’s injury and of which the defendant had superior knowledge. It is only when the defective condition is known to the owner or occupant of the premises and not known to the person injured that a recovery may be permitted Garnett v. Mathison, 179 Ga. App. 242 (2) (345 SE2d 919). Even if the height of the display in the case sub judice is presumed to be such a defective condition, no basis for recovery is shown since plaintiff had knowledge of the height of the display at least equal to that of defendant. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234). Furthermore, the height of the stack of tomato cans was no threat of injury to anyone visiting the store who exercised care for their own safety. Parsons, Inc. v. Youngblood, 105 Ga. App. 583, 585 (125 SE2d 518). See also the two judge case of A. B. C. Drug Co. v. Monroe, 214 Ga. App. 136 (447 SE2d 315).

Finally, we find no merit in the contention that plaintiff lacked an appreciation of the hazard she voluntarily created by dislodging a can from the top of the display. The force at issue is simply gravity, a force commonly held to be familiar even to young children. Riley v. Brasunas, 210 Ga. App. 865, 867 (1) (438 SE2d 113). The superior court erred in denying defendant’s motion for summary judgment.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1791.
    KIDIST MARIAM ETHIOPIAN ORTHODOX TAWAHEDO CHURCH, INC. v. KIDIST MARIAM ETHIOPIAN ORTHODOX TAWAHEDO CHURCH, INC.
    (465 SE2d 491)
   McMurray, Presiding Judge.

Kidist Mariam Ethiopian Orthodox Tawahedo Church, Inc. a/k/a Atlanta Group (“Atlanta Group”) and Kidist Mariam Ethiopian Orthodox Tawahedo Church, Inc. a/k/a Decatur Group (“Decatur Group”) assert opposing claims to a $45,000 certificate of deposit that is the subject of an interpleader action filed by Wachovia Bank of Georgia, N.A. (“Wachovia”). Both the Atlanta Group and the Decatur Group claim control of the corporation which owns the certificate of deposit, the Kidist Mariam Ethiopian Orthodox Tawahedo Church, Inc. (“the corporation” or “the Kidist Mariam Church”).

The Kidist Mariam Church was established under Georgia’s Nonprofit Corporation Code, OCGA § 14-3-101 et seq. and is dedicated to the religious, spiritual and liturgical precepts of a religious body known as the Ethiopian Orthodox Tawahedo Church (“EOTC”). However, the corporation’s articles of incorporation reserve control of the “internal affairs of the corporation . . .” and its bylaws provide “the Kidist Mariam Church with autonomy, [and] reflect [the corporation’s limited] acceptance of the final authority of the Archbishop and, under him, of the clergy, in matters relating to religious faith and the observance of religious practice and church liturgy.”

After a bench trial, the trial court entered an order which provides, in pertinent part, as follows: “In January, 1993, a Board of Directors was elected for the [Kidist Mariam Church] pursuant to the articles of incorporation and the by-laws thereof. ... In mid-October, 1993, the said Board of Directors, after a vote by the congregation, notified the Priest, Rev. Musie [H]aregewoyn, that his services were no longer required and that he would not be permitted to conduct services at the church in the future. . . . Within a few days after this action by the Board of Directors, the Rev. Haregewoyn notified the Archbishop, Abune Matthias, in Washington, DC, of this action and thereafter the Rev. Haregewoyn, with the approval of the said Archbishop, notified the said Board of Directors that they were no longer the Board of Directors of the Corporation. . . . Thereafter, Rev. Haregewoyn and certain of his followers who had previously been at the Kidist Mariam Church, commenced having services at a new location in the City of Atlanta, Georgia. . . . This Group is called herein the ‘Atlanta Group.’ . . . Thereafter, the ‘Atlanta Group’ purported to elect a new Board of Directors for the Kidist Mariam Church, to replace the Board of Directors which had purportedly been disbanded by Rev. Haregewoyn upon instructions by the Archbishop. . . . Thereafter, the Board of Directors which had been elected in January, 1993, refused to step down from their positions, and continued to serve as a Board of Directors, taking such actions as the filing of the corporate tax return for 1993, the filing of the annual report with the Secretary of State of the State of Georgia, and the approval of the purchase of real estate, in particular a church building located in Decatur, Georgia. This group is herein referred to as the ‘Decatur Group.’ . . .

“The issue before this Court is the question of which Board of Directors is the true and only Board of Directors of the corporation. . . .

“This Court has examined the laws of the State of Georgia pertinent hereto, the charter of the corporation, the by-laws of the corporation, and the other relevant materials and testimony offered by both sides in this case. . . . Upon due consideration thereof, and applying neutral principles of law, and avoiding thereby questions regarding the ‘establishment of religion’, this Court finds that the Kidist Mariam [Church], by its charter and its by-laws, was established as an autonomous congregation with respect to matters of administration and fiscal matters related to this case, and that the Archbishop did not have the legal authority to disband the Board of Directors which was elected in January, 1993. . . . The Court finds further that the purported election of a new Board of Directors by the Atlanta Group in December, 1993, was not in conformity with the charter and the by-laws of the corporation. . . . The Court further finds that the Board of Directors which was elected by the Decatur Group to replace the 1993 Board of Directors in May, 1994, which took office in June, 1994, is now the true and only Board of Directors of the Corporation. . . .

“WHEREFORE, IT IS ORDERED: ... (a) That the ‘Decatur Group’ is the group which should receive the certificate of deposit aforesaid; and . . . (b) That Wachovia ... is hereby ORDERED to deliver the said certificate of deposit into the possession of [the] attorney for the Decatur Group, upon presentation of a certified copy of this Order.” This appeal followed. Held-.

1. The Atlanta Group contends the trial court was prohibited by the First Amendment of the United States Constitution, applicable via the Fourteenth Amendment, from exercising judicial authority in this interpleader action. See McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174 (381 SE2d 126). We do not agree.

“ ‘(T)he First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property.’ Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 449 (89 SC 601, 21 LE2d 658) (1969).

“With regard to cases involving disputes over church property, the Georgia Supreme Court has previously distinguished between two types of church government, i.e., congregational and hierarchical. A congregational church is usually strictly independent of other ecclesiastical associations, while a hierarchical church is associated with other churches that share similar faith and doctrine and have a common ecclesiastical head. Crumbley v. Solomon, 243 Ga. 343 (254 SE2d 330) (1979). Tf the church government is congregational, then a majority of its members control its decisions and local church property. If hierarchical, then we use “neutral principles of law” to determine whether the local church or parent church has the right to control local property. Those “neutral principles” are state statutes, corporate charters, relevant deeds, and the organizational constitutions of the denomination. (Cit.)’ Id. See also Jones v. Wolf, 244 Ga. 388 (260 SE2d 84) (1979).” Crocker v. Stevens, 210 Ga. App. 231, 233 (2) (435 SE2d 690).

In the case sub judice, the Kidist Mariam Church appears to be a hybrid of the above two forms of church government. While the corporation submits to EOTC’s hierarchical dictates regarding religious, spiritual and liturgical matters, it reserves control of the “internal affairs of the corporation . . .” and provides “the Kidist Mariam Church with autonomy. . . .” Consequently, just as the corporation’s Board of Directors is prohibited from deviating from the EOTC’s religious, spiritual and liturgical directives, EOTC is prohibited from interfering with the internal affairs of the corporation, including replacement of the Board of Directors. Under these circumstances, it is apparent that the property dispute in the case sub judice was capable of resolution by reference to neutral principles of law, i.e., the applicable provisions of the corporation’s articles of incorporation and bylaws as well as the Georgia Nonprofit Corporation Code, without infringing upon any First Amendment values.

Accordingly, the trial court was not prohibited by the First Amendment from exercising judicial authority over competing claims for ownership of the $45,000 certificate of deposit. Crocker v. Stevens, 210 Ga. App. 231, 233 (2), supra.

2. The Atlanta Group contends in its second enumeration of error that “[t]he trial court erroneously concluded based on the Bylaws that the Kidist Mariam Church is independent from [EOTC] and that Archbishop Matthias had no authority to expel individuals from membership in the [Kidist Mariam Church], which necessarily would disqualify those individuals from serving on the Board of Directors.” This contention is without merit. Any error in the trial court’s conclusion that Archbishop Matthias did not have the legal authority to disband the Board of Directors elected in 1993 does not lead to the conclusion that the Atlanta Group is the duly-constituted Board for the corporation and, therefore, the lawful owner of church property.

The bylaws of the Kidist Mariam Church expressly provide for the corporation’s autonomy while specifying that the Kidist Mariam Church must yield to EOTC’s hierarchical dictates only with regard to religious, spiritual and liturgical matters. Thus, even assuming Archbishop Matthias was authorized in declaring the removal of the corporation’s Board of Directors because of their decision to remove Rev. Haregewoyn as priest of the Kidist Mariam Church, neither the Archbishop nor the Atlanta Group had authority to appoint the corporation’s Board of Directors. This is controlled by Article 8 (3) of the corporation’s bylaws, which provides that “Board members shall be elected by secret ballot.” Consequently, since the corporation duly elected a Board of Directors in 1994 to take the place of the Board of Directors Archbishop Matthias found objectional (presumably on religious, spiritual or liturgical grounds), we find no harm in the trial court’s finding that “the Archbishop did not have the legal authority to disband the Board of Directors which was elected in January, 1993.” Compare McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174, 176-177, supra.

Decided November 29, 1995

Reconsideration denied December 14, 1995

Hughes & Kaplan, Robert W. Hughes, Jr., Barry E. Kaplan, for appellant.

Arrington & Hollowell, Gary W. Diamond, Sidney L. Moore, Jr., for appellee.

The trial court did not err in finding that the Decatur Group is entitled to possession of the $45,000 certificate of deposit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       The EOTC is headquartered in Addis Ababa, Ethiopia, and is led by a Patriarch and the Holy Synod. The Patriarch and the Holy Synod exercise authority over bishops, the bishops exercise authority over local congregations and local congregations are led by priests.


author: Birdsong, Presiding Judge.

text:
    A95A1936.
    MURPHY v. THE STATE.
    (465 SE2d 497)
   Birdsong, Presiding Judge.

Michael Murphy appeals the denial of his motion to enjoin his prosecution for violation of the Georgia Controlled Substances Act. He contends that a previous civil forfeiture proceeding arising out of the same criminal activity placed him in jeopardy and prohibits any further prosecution on the criminal charge itself. Held:

A civil forfeiture proceeding in a drug case is not a criminal prosecution. It is not enumerated in OCGA §§ 16-1-7 and 16-1-8 as being among the proceedings which constitute former jeopardy. The prohibition against putting any person twice in jeopardy for the same offense “applies only to twice subjecting an individual to criminal processes for the same offense against the same sovereign; there is no bar to the sovereign’s imposing both civil and criminal penalties for the same act. [Cits.]” Alexander v. State, 129 Ga. App. 395, 397 (199 SE2d 918). A forfeiture in civil proceedings does not render those proceedings criminal and does not constitute a criminal prosecution. Id. This issue is not controlled by anything said with respect to the character of excessive fines as being debatably “punitive” in Evans v. State of Ga., 214 Ga. App. 844 (449 SE2d 302), cert. granted and case remanded in light of Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416), and reconsidered in Evans v. State of Ga., 217 Ga. App. 646 (458 SE2d 859).

Decided November 30, 1995

Reconsideration denied December 14, 1995

Bruce S. Harvey, David S. West, for appellant.

Daniel J. Porter, District Attorney, Thomas N. Davis, Jr., Assistant District Attorney, Thomas W. Hayes, Gary D. Bergman, for appellee.

Moreover, any “punishment” in a forfeiture proceeding is against the property, not the owner as a criminal defendant; civil in rem forfeitures are based on the fiction that the property is the offender, and this fiction rests on the notion that the owner who allows his property to become involved in an offense has been negligent. Thorp at 715. This in no way equates to a criminal prosecution or to punishment for a criminal offense by the defendant or owner of the property forfeited, and the fact that the defendant feels he is being punished by a civil forfeiture does not render the civil forfeiture a proceeding putting him in jeopardy.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A2707.
    TAYLOR v. THE STATE.
    (465 SE2d 473)
   Blackburn, Judge.

Bennie George Taylor appeals his conviction for aggravated assault, robbery, armed robbery and driving with ability impaired by alcohol.

Early on New Year’s Day 1994 Sammy Young, a Georgia State Trooper, stopped the vehicle driven by Taylor and arrested him for driving under the influence. Trooper Young escorted Taylor to the back seat of Young’s patrol car and began reading Taylor his rights. Taylor commenced a struggle, taking a flashlight from Young’s hands and beating him with it. After knocking Trooper Young onto the roadway, Taylor took Young’s gun and then demanded that Young provide him with an extra clip for the weapon. Young complied with the demand, and shortly thereafter was able to escape to a nearby wooded area. Taylor then entered his vehicle and left the scene. Taylor was arrested later that same day and made a statement to law enforcement authorities implicating himself in the incident.

Taylor was indicted in Emanuel County. On the day of his arraignment, he moved for a change of venue. The trial court granted the motion and ultimately ruled that the matter should be tried in Washington County, a county that neither party had suggested. While Taylor had known for several weeks in advance that the trial would take place in Washington County, on the day the matter was called for trial, Taylor submitted a second motion to change venue, this time seeking to have the case transferred out of the Middle Judicial Circuit altogether. The motion was denied, and the trial commenced.

1. In his first enumeration of error, Taylor asserts that the trial court erred in denying his second motion to transfer venue. OCGA § 17-7-150 (a) (1) provides in pertinent part: “The defendant, in any criminal case in which a trial by jury is provided, may move in writing for a change of venue, whenever, in the defendant’s or defense counsel’s judgment, an impartial jury cannot be obtained in the county where the crime is alleged to have been committed. ... If, from the evidence submitted, the judge is satisfied that an impartial jury cannot be obtained to try the case, the judge shall grant a change in venue; the judge shall transfer the case to any county that may be agreed upon by the prosecuting attorney and the defendant or the defense counsel, to be tried in the county agreed upon. . . . [1Jf a county is not thus agreed upon . . . the judge shall select such county as, in the judge’s judgment, will afford a fair and impartial jury to try the case and have it transferred accordingly.” (Emphasis supplied.)

In this matter, the parties could not agree as to where the case should be transferred and the judge exercised his discretion in determining that Washington County would afford Taylor a fair and impartial jury. Taylor has offered no evidence that the trial court’s choice was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible, standards that must be met to merit a change of venue. See Cheeks v. State, 203 Ga. App. 47, 49 (416 SE2d 336) (1992). In fact, during voir dire, the State asked twice whether any jurors had knowledge of the case, receiving no affirmative response. Taylor made no effort whatsoever to question prospective jurors about their prior knowledge of the case. “The trial court has discretion in determining whether to grant a motion for a change of venue and its determination will not be disturbed absent an abuse of that discretion.” Morrill v. State, 216 Ga. App. 468, 470 (454 SE2d 796) (1995). As we find no such abuse occurred, we cannot disturb the trial court’s denial of Taylor’s motion to change venue.

2. Taylor enumerates as error the trial court’s decision to reseat certain jurors on the grounds that Taylor had struck them from the jury panel for racially motivated reasons. Taylor, who was black, exercised nine of his eleven peremptory challenges against white panel members. In defense of his strikes, Taylor’s counsel stated that several of the white panel members he struck had friends on the jury and he thought they would be subject to undue influence or had law enforcement connections. He also indicated that certain strikes were made at the request of his client, giving no other reason for the challenge. After hearing defense counsel’s reasons for striking the potential white jurors, the trial court ordered that seven of them be reseated, determining that the reasons offered for their challenge were not race neutral.

Taylor does not challenge that a prima facie case of discrimination was established or the manner in which the jurors were reseated. Rather, he argues solely that the trial court erred in not giving credence to his race-neutral explanation for the strikes. “In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the challenger’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.” (Punctuation omitted.) McKibbons v. State, 216 Ga. App. 389, 390 (455 SE2d 293) (1995). A review of the record reflects that black veniremen, like their white counterparts, knew other members of the panel and had ties to law enforcement; however, they were not struck from the jury. In light of this evidence and the above standard, we will not disturb the trial court’s determination that Taylor’s strikes were not exercised in a race-neutral fashion.

3. During their deliberations, the jury inquired if they could view a written statement made by the defendant that had been read into the record during the course of the trial. After the court refused to send the document into the jury room, the jury requested that the statement be read again. While Taylor now argues that the trial court erred in reading the statement to the jury during its deliberations, he consented to the reading at the time of the jury’s request. Accordingly, Taylor has waived the alleged error. See Chandler v. State, 219 Ga. 105, 114 (131 SE2d 762) (1963) (alleged error waived when attorney consented to sending defendant’s confession out with jury during its deliberations).

4. Taylor complains that he cannot be convicted and sentenced for the offenses of armed robbery, aggravated assault and robbery because, in the above circumstances, the crimes merge. “While it is settled that aggravated assault is not included in robbery, armed robbery or attempted armed robbery as a matter of law, it may be included as a matter of fact.” (Citations omitted.) Hambrick v. State, 256 Ga. 148, 150 (344 SE2d 639) (1986). The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge. Id. In the present matter, Taylor beat Trooper Young with a flashlight and took his gun. After securing the gun, Taylor demanded the trooper hand over the extra clips for the pistol. The trooper complied. The crimes do not merge as the assault was complete at the time Taylor took the gun from the officer. Also, the robbery in which the gun was obtained was complete at the time the armed robbery for the clip occurred. See Millines v. State, 188 Ga. App. 655 (373 SE2d 838) (1988).

Decided November 16, 1995

Reconsideration denied December 14, 1995

Jerry M. Daniel, for appellant.

Richard A: Malone, District Attorney, for appellee.

5. In his final enumeration, Taylor asserts that the trial court erred in charging the jury that an aggravated assault may be committed by: “a deadly weapon or with a replica, article, or device having the appearance of a deadly weapon.” Taylor argues that the instruction may have confused or prejudiced the jury by informing them that an aggravated assault may occur in a variety of circumstances whereas the indictment only alleged the specific circumstances of Trooper Young’s assault. As a question existed as to whether a flashlight could serve as a deadly weapon, the trial court did not err in defining for the jury what constitutes a deadly weapon. See Rice v. State, 217 Ga. App. 456, 458 (458 SE2d 368) (1995) (instructions in a criminal trial should be tailored to the indictment and adjusted to the evidence).

Judgment affirmed.

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


text:
    A95A2790.
    GHAI v. THE STATE.
    (465 SE2d 498)
   Birdsong, Presiding Judge.

Appellant appeals from the order of the trial court denying his motion for discharge and acquittal based on his claim that the State failed to provide him a speedy trial pursuant to OCGA § 17-7-170.

On August 12, 1994, appellant received three uniform traffic citations for DUI, following too closely, and having no driver’s license on his person. On October 27, 1994, appellant attempted to file a demand for speedy trial, but the clerk of court’s office apparently declined to accept the filing on grounds it was premature. On December 6, 1994, the solicitor filed in state court, concurrently with the uniform traffic citations, an accusation against appellant for three counts of DUI, following too closely, and having no license in his immediate possession. On December 29, 1994, appellant’s counsel served a demand for speedy trial by jury under OCGA § 17-7-170 or in the alternative, if a jury trial is not held within the statutory period, a request for discharge and acquittal of all charges pending against him in state court.

A primary question is whether the uniform traffic citations issued but not filed prior to the date the accusations were filed should serve as notice of formal prosecution, or whether the accusations concurrently filed with the uniform traffic citations on December 6, 1994, in the deputy clerk’s office of state court should serve as the formal notice of prosecution from which the two term rule of OCGA § 17-7-170 would be calculated. Held:

OCGA § 17-7-170 (a) provides: “Any person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter; or, by special permission of the court, he may at any subsequent court term thereafter demand a trial. In either case, the demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant.” (Emphasis supplied.) The plain and unambiguous wording of this statute provides, except for certain instances of case transfer not here at issue, that a demand cannot be entered until after the indictment or accusation has been filed and that the demand must be both served upon the prosecutor and filed in the court to become effective. Compare Smith v. State, 218 Ga. App. 392 (461 SE2d 561). Where, as in this case, the statutory language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry. Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227). OCGA § 40-13-1 provides in pertinent part that uniform traffic citation and complaint forms “shall serve as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged.” Construing these statutes in pari materia, we conclude that a uniform traffic citation is not entered, within the meaning of OCGA § 17-7-170 (a) until it has been duly filed with the clerk of the courts. We find that mere issuance of a uniform traffic citation, without subsequently filing it with the clerk of courts, is not sufficient to authorize the entry of a filed demand for speedy trial pursuant to OCGA § 17-7-170 (a).

Noting that “the citations contained] no stamp or indication of filing,” the trial judge factually concluded that the uniform traffic citations had not been filed in the trial court on or before the presentation of the speedy trial demand on October 27, 1994, and the accusations for the offenses charged in the uniform traffic citations were not filed with the trial court until December 6, 1994. In a bench trial, the trial court sits as trier of fact, and its findings will not be set aside unless clearly erroneous. Lanier v. State, 212 Ga. App. 51, 52 (441 SE2d 87). The trial court’s findings of fact were not clearly erroneous. Stephens v. Espy, 213 Ga. App. 580 (445 SE2d 292) is distinguishable.

As the October 27, 1994, demand for speedy trial was presented before either the uniform traffic citations or the accusations were actually filed with the court, it was premature and therefore a nullity. See Grier v. State, 198 Ga. App. 840, 841 (403 SE2d 857). Neither could this premature demand be “ ‘resuscitated by a later returned accusation (or indictment) whether they are filed in the same term or not.’ ” State v. Black, 213 Ga. App. 331, 332 (444 SE2d 368).

We need not decide whether appellant’s motion for discharge or acquittal should have been granted based upon the separate demand for speedy trial of December 29, 1994, which was filed and served after the filing of the accusation and uniform traffic citations on December 6, 1994. The issue of denial of a statutory right to speedy trial was not ripe for adjudication at the time the separate demand for speedy trial of December 29,1994, was filed. Cf. Brown v. Tomlinson, 246 Ga. 513, 515 (272 SE2d 258). The trial court’s order reveals, without contradiction, that appellant waived appearance at the formal arraignment calendar of January 13, 1995, and was provided a trial date of February 20, 1995; however, before the trial date was reached, he indicated his desire to appeal the ruling instead of proceeding to trial.

We are not unmindful of appellant’s contention that, as a result of our disposition of this case, prosecutors henceforth can deny litigants the statutory right to a speedy trial by merely holding citations received, without filing them, for periods in excess of two terms of court. This issue is not before this court for adjudication, although we emphasize, ex abundanti cautela, that we are not prone to condone the intentional circumvention of the clear legislative purpose of protective statutes.

Decided December 1, 1995

Reconsideration denied December 14, 1995

William C. Head, for appellant.

Paul L. Howard, Jr., Solicitor, Cynthia Strong-McCarthy, Deborah W. Espy, Assistant Solicitors, for appellee.

“ ‘ “The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute.” ’ ” (Citations omitted.) Grier, supra at 841; accord Smith, supra at 393. “Under the circumstances in this appeal, the procedures followed did not strictly comply with the requirements of the code section. Accordingly, the trial court did not err by denying the motion.” Grier, supra.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A1915.
    BARRON v. THE STATE.
    (465 SE2d 529)
   McMurray, Presiding Judge.

Defendant Barron appeals his conviction of the offense of simple battery. Held:

This case was tried before the state court without a jury. The sole enumeration of error complains that the state court erred by refusing to apply OCGA § 16-3-24 so as to acquit defendant. Defendant’s motion for a directed verdict of acquittal, based on this statute and submitted after the close of the state’s evidence, was denied. In relevant part OCGA § 16-3-24 (a) provides that “A person is justified in . . . using force against another when and to the extent that he reasonably believes that such . . . force is necessary to . . . terminate such other’s . . . tortious or criminal interference with . . . personal property . . . [1]awfully in his possession.”

The victim is defendant’s former wife. At the time of the incident in question the couple was separated and a divorce pending. Defendant was at the victim’s home to visit their children. While defendant was with the children, the victim went to his car and gained possession of a number of items of personal property. When defendant discovered this intrusion, he went to the car. Defendant then used physical force in attempting to recover his personal property.

The trial court correctly determined that the affirmative defense contained in OCGA § 16-3-24 (a) was not available to defendant under the facts and circumstances of this case. The defense was unavailable because the victim’s conduct in taking personal property from the lawful possession of defendant was neither tortious nor criminal interference within the meaning of the statute. Thus, defendant was not justified in using force to regain possession of his personal property.

Decided December 15, 1995.

Washburn & Washburn, Lawrence L. Washburn III, for appellant.

Gerald N. Blaney, Jr., Solicitor, Scott A. Drake, William Z. Meadows, Richard E. Thomas, Assistant Solicitors, for appellee.

There was no criminal interference, that is, theft, because the personal property taken by the victim was not the “property of another” within the definition provided by OCGA § 16-8-1 (3) which excludes property of a spouse from the definition of this term. A theft conviction must be predicated on the taking of the property of another. OCGA § 16-8-2 et seq. Cases such as Mitchell v. State, 263 Ga. 129 (429 SE2d 517) and Calloway v. State, 176 Ga. App. 674 (337 SE2d 397) further demonstrate that the victim could not be convicted of any theft of defendant’s personal property.

Similarly, the victim’s conduct is not cognizable as tortious interference due to application of the doctrine of interspousal tort immunity. Stanfield v. Stanfield, 187 Ga. App. 722 (371 SE2d 265). Even though the defendant and victim lived apart and a divorce was pending, there was no extreme factual situation which might allow deviation from a strict application of the doctrine. Shoemake v. Shoemake, 200 Ga. App. 182 (407 SE2d 134).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A2393.
    SILVERS et al. v. KIMBELL.
    (465 SE2d 530)
   Blackburn, Judge.

Sharron Silvers, individually, and as administratrix of the estate of Bessie Lee Mansfield, and Bobby Dean Mansfield (collectively referred to as the Estate) appeal the jury’s verdict rendered for the defendant, Doyle Carlton Kimbell, Jr., in the underlying wrongful death action. As Bessie Lee Mansfield was crossing Main Street in Carters-ville, Georgia, she was struck by a car driven by Kimbell. On appeal, the Estate contends the trial court committed harmful error when it charged the jury the substance of OCGA § 40-6-92 (c) as follows: “Now, ladies and gentlemen, between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.” The issue presented is whether the decedent was crossing Main Street at a point between adjacent intersections at which traffic control signals were operating.

The evidence presented at trial indicated that Main Street runs east and west through Cartersville. The decedent was crossing Main Street from south to north between Erwin Street, a thoroughfare to the east, and Noble Street to the west. Erwin Street is controlled by a traffic control signal; however, Noble Street dead ends on the north side of Main Street and is controlled by only a stop sign. Bartow Street is a thoroughfare across Main Street and is located to the west of Noble Street.

Decided December 15, 1995

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Samuel T. Brannan III, Greene & Greene, William B. Greene, for appellants.

Downey & Cleveland, Russell B. Davis, Todd E. Hatcher, for appellee.

Kimbell argues that the charge was correctly given as the intersection of Bartow Street and Main Street is adjacent to the intersection of Erwin Street and Main Street, at least on the south side of Main Street because Noble Street does not continue across Main Street. However, “intersection” is defined in OCGA § 40-1-1 (22) (A) as “the area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.” (Emphasis supplied.) Therefore, the intersection of Noble Street to Main Street intervenes between the Bartow Street and Erwin Street intersections.

In Hill v. Copeland, 148 Ga. App. 232, 234 (3) (250 SE2d 822) (1978), we held that giving a jury charge based upon OCGA § 40-6-92 (c) was reversible error where no evidence was presented that the “decedent-pedestrian was crossing ‘between adjacent intersections at which traffic-control signals (were) in operation.’ ” We found that such a charge could mislead “the jury into finding that the decedent’s mere act of crossing the street at a point other than a crosswalk was negligence per se (even when there is no violation of [OCGA § 40-6-92 (c)]).” Hill, supra. As an essential issue for the jury’s determination was the respective negligence of the parties, such a charge may have prejudicially affected the jury’s determination.

In the present case, the evidence indicated that the decedent crossed Main Street between an intersection with a traffic control signal and an intersection with a stop sign, not between adjacent intersections at which traffic control signals were used. Therefore, the trial court erred in giving a charge based on OCGA § 40-6-92 (c).

Judgment reversed.

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

         She died within two weeks, from injuries she sustained in the accident.


text:
    A95A2408.
    HAWKINS v. THE STATE.
    (465 SE2d 527)
   Blackburn, Judge.

Dennis- E. Hawkins appeals his conviction for one count each of theft by taking, entering an automobile and burglary.

On November 14, 1994, Hawkins jumped a fence surrounding AAA Concrete Company (company). He took a five-gallon bucket from the back of a pickup truck that was parked within the compound, broke into the pickup and filled the bucket with tools and other items found inside. He also took a battery from the truck. A witness who lived near the company heard a noise coming from inside the compound and saw Hawkins fumbling with the car battery as he attempted to climb back over the fence. She also testified that Hawkins was carrying a bucket as he left the company’s property. The witness confronted Hawkins after he got over the fence and he requested that she remain silent and not get him into trouble. The witness contacted the police who apprehended Hawkins about five to ten minutes later. At that time he was carrying a bucket that contained tools and various other items. The witness then identified Hawkins as the man she had seen earlier inside the compound. At trial, the plant manager testified that a battery, bucket, tools and other items were missing from the pickup. The manager also testified that his office door had been forced open and that a telephone was missing from inside. A tire tool used to pry the door open was found lying on the floor inside the office. At the time of Hawkins’ arrest, no telephone was found in his possession. However, the witness who saw Hawkins in the company compound on the night of the theft noticed a telephone among items in the bucket that Hawkins was carrying. While Hawkins admitted to the charges of theft by taking and entering an automobile, he denied burglarizing the company’s office.

1. In his first enumeration, Hawkins asserts that the evidence was insufficient to support his conviction for burglary of the company office. A person commits a burglary when he enters a building belonging to another without authority and with intent to commit a felony or theft therein. OCGA § 16-7-1. Viewing the evidence in the light most favorable to the verdict, the company’s office was broken into sometime on the day that Hawkins, without permission, climbed the fence surrounding the company. According to the plant manager, the item used to pry the office door open was a tire tool that had previously been located in the pickup truck parked within the company compound. By Hawkins’ own admission, he broke into the pickup truck and took several tools shortly after entering the compound. The only item taken from the office was a telephone and the eyewitness testified that Hawkins had a telephone in his possession at the time he left the compound. We find this evidence sufficient to support Hawkins’ burglary conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hawkins asserts that the trial court erred in permitting a conviction to stand for both theft by taking and entering an automobile, reasoning that these two offenses should have merged. See OCGA § 16-8-18. Hawkins completed the offense concerning the automobile at the time he entered the pickup truck with the intent of taking the items stored inside it. See Heflin v. State, 183 Ga. App. 149 (358 SE2d 298) (1987). In addition to intent, theft by taking requires the actual appropriation of goods. Because different elements must be demonstrated to find Hawkins guilty of both these offenses, as a matter of both law and fact, they do not merge. See Harvey v. State, 233 Ga. 41, 42-43 (209 SE2d 587) (1974).

3. Hawkins asserts that due to prosecutorial misconduct aimed at buttressing the burglary count, he is entitled to a retrial or, in the alternative, that his conviction should be reversed with no possibility of retrial. “A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority.” Meredith v. State, 211 Ga. App. 213, 215 (438 SE2d 644) (1993). In support of his charge of misconduct, Hawkins first asserts that when soliciting testimony from the eyewitness, the State misrepresented a key fact regarding whether a telephone was in Hawkins’ possession at the time he left the company’s property. However, Hawkins points to no record reference supporting what information was allegedly known to and misrepresented by the State at the time it questioned the eyewitness. Hawkins also asserts that the State overreached in attempting to lead the plant manager to testify that certain items found in Hawkins’ possession may have been taken from the company office as opposed to the pickup truck; however, the record reflects that the court sustained Hawkins’ objection to the leading question and that the plant manager eventually testified that the telephone was the only thing he could determine was taken from his office.

Hawkins last points to a particular exchange that occurred when the State cross-examined Hawkins as evidence of prosecutorial misconduct. Specifically, the State questioned Hawkins as to whether he was aware that burglary was considered a more serious offense than the other two crimes for which he was indicted. Upon objection, the State argued that it was attempting to demonstrate Hawkins’ motive in admitting to unlawfully entering the pickup truck and stealing the tools while denying involvement in the burglary. When the trial court sustained the defense counsel’s objection, the State attempted to rephrase in a way that would comply with the trial court’s pronouncement, but the defense counsel’s objection to that question was also sustained. The State then ceased this line of questioning altogether. We agree with the trial court that this exchange did not rise to the level of prosecutorial misconduct. As Hawkins has failed to fulfill his burden outlined in Meredith, supra, we deem all his enumerations based on prosecutorial misconduct to be without merit.

Judgment affirmed.

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

Decided December 15, 1995.

David E. Slemons, for appellant.

Britt R. Priddy, District Attorney, Sadhana Pandey, Assistant District Attorney, for appellee.


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A0968.
    BASS v. PEARSON.
    (466 SE2d 17)
   Ruffin, Judge.

John and Teresa Brenton sued Arthur Pearson, Gilmer County and others for injunctive relief from trespass on their land. The complaint, filed by the Brentons’ attorney, James Bass, alleged that Rogers Creek Road, a private road traversing the Brentons’ property, was unlawfully declared to be a public road by the county. The complaint further alleged that Pearson and others were using the private road and asked that they be enjoined from doing so. The trial court granted Pearson’s motion for summary judgment, finding that the Brentons had not shown they were entitled to an order restraining the trespass as required by OCGA § 9-5-4. The trial court also granted Pearson’s subsequent motion for attorney fees under OCGA § 9-15-14, finding that “[t]he foundation of the [Brentons’] suit (i.e., whether or not the road in question was a public or a private road) had been settled by the County Board of Commissioners prior to the date of filing of the suit, rendering the suit meritless.” The court ordered Bass to pay $6,000 in attorney fees to Pearson, and Bass appeals from that order. Because we agree with Bass that the trial court erred in awarding attorney fees to Pearson, we reverse.

It is undisputed that Rogers Creek Road cuts across the Brentons’ property. The record shows that numerous people have used the road for several years and that some individuals asked the Gilmer County Board of Commissioners (“Board”) to declare it a county road. In order to prevent motorists from driving dangerously on the road, the Brentons sought permission from the Board to erect gates to keep people off the road. On December 3, 1992, prior to erecting the gates, the Brentons received a letter from the county attorney stating his opinion that Rogers Creek Road was not a county road. Likewise, at the Board meeting on November 30, 1992, the Board told Mr. Brenton “that if he put the gates up that they would not have them removed since this had never been designated a county road.” However, at a Board meeting on December 22, 1992, several residents opposed the Brentons closing the road and after a great deal of discussion the Board’s decision was that Rogers Creek Road was a public road to be county-maintained on a 30-foot right-of-way. It is upon that decision by the Board that the trial court based its determination that the Brentons’ suit against Pearson was without any justiciable issue of law or fact and that it lacked substantial justification.

The trial court’s order awarding attorney fees incorporated language from both subsections (a) and (b) of OCGA § 9-15-14. “ ‘The standard of review for motions under OCGA § 9-15-14 (a) is the “any evidence” rule, and the standard for review for motions under OCGA § 9-15-14 (b) is the “abuse of discretion” rule.’ [Cit.]” Sacha v. Coffee Butler Svc., 215 Ga. App. 280, 282 (2) (450 SE2d 704) (1994). “ ‘(N)otwithstanding the “any evidence” standard of review . . . , when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.’ [Cit.]” Moore v. Harris, 201 Ga. App. 248, 249 (1) (410 SE2d 804) (1991). Under subsection (b) we must determine whether the court abused its discretion in finding that the Brentons’ complaint against Pearson was “substantially frivolous, substantially groundless, or substantially vexatious.” (Citations and punctuation omitted.) Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 703 (4) (452 SE2d 140) (1994).

The evidence does not support the trial court’s findings under the standards set forth above. We note initially that we have found nothing in the record, and Pearson has pointed to nothing, contradicting the county attorney’s original opinion that he found “no documentation indicating a dedication of the road right of way to Gilmer County or for that matter any documentation indicating that there has been a taking or negotiation of such roadway.” Nor do the minutes from the December 22, 1992, Board meeting indicate the basis for the Board’s unanimous vote that Rogers Creek Road is a public road.

It appears that the only possible basis of support for the Board’s declaration is that the county acquired Rogers Creek Road by prescription. Under OCGA § 32-3-3 (c) the county would have been authorized to incorporate the road into its system of public roads if it had “come to be a public road by the exercise of unlimited public use for the preceding seven years or more.” However, in order for the county to have acquired the road by prescription, it must have been shown not only that the public used the road for the required period of time, but also “that the proper county authorities during that time . . . recognized it as a public road by having the same [repaired]. . . .” Dunaway v. Windsor, 197 Ga. 705, 711 (11) (30 SE2d 627) (1944). “The purpose of requiring a showing of repairs is to give notice to the landowner that the prescriber’s use is adverse, rather than permissive. [Cit.]” Jackson v. Stone, 210 Ga. App. 465, 468 (2) (436 SE2d 673) (1993). We need not decide here, however, whether such prescriptive rights were established, but only whether at the time the Brentons filed suit, there was any justiciable issue of law or fact concerning such rights. While there is evidence that numerous individuals used that road and that the county had at some point graded and graveled the road, there is nothing indicating when or for how long the county performed that work. Because we find no evidence of record that the county maintained the road for the required period of time, a justiciable issue of fact existed as to whether the county acquired the road by prescription. It follows that the Brentons’ complaint against Pearson was not substantially frivolous, substantially groundless, or substantially vexatious.

While Pearson also contends there was other evidence in the record to support the trial court’s award, we find this contention without merit. It appears that in a separate magistrate court action, Bass sued the Brentons for attorney fees incurred during his representation of them. In their answer to Bass’s complaint, the Brentons denied owing the fees, alleging numerous problems with his representation. Pearson contends those allegations provide additional evidence of Bass’s bad faith in litigating this case. The Brentons’ answer, however, did not contend that Bass pursued a frivolous or groundless claim on their behalf. Moreover, the copy of the answer in the record is not certified and there is nothing showing that Pearson laid a proper foundation for having it admitted.

“Copies of records of judicial proceedings . . . shall be admitted as primary evidence, when properly authenticated. In all other cases a copy shall be secondary evidence.” OCGA § 24-5-31. See also OCGA §§ 24-5-2; 24-5-20. Because there is nothing showing the answer was properly authenticated, it must be considered as secondary evidence. See OCGA § 24-7-20. “In order to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party. This showing shall be made to the court, who shall hear the party himself on the question of diligence and the inaccessibility of the primary evidence.” OCGA § 24-5-2. Because the record here contains no such showing, or that the court made an exception to the general rule requiring primary evidence under OCGA § 24-5-3, the trial court could not have properly considered the answer in awarding attorney fees to Pearson. For the foregoing reasons, we conclude that the court erred in awarding attorney fees to Pearson.

Judgment reversed.

Birdsong, P. J., McMurray, P. J., Pope, P. J., Andrews and Johnson, JJ., concur. Beasley, C. J., Blackburn and Smith, JJ., dissent.

Beasley, Chief Judge,

dissenting.

I respectfully dissent. The record supports the judgment of the trial court awarding approximately one-fourth of defendant Pearson’s attorney fees, as a reasonable amount, against the attorney who brought and pursued plaintiffs’ lawsuit to the point at which he was relieved of representation. It was he who advised plaintiffs that it was justiciable against Pearson and signed and filed the verified complaint. See OCGA § 9-11-11 (a).

Insofar as defendant Pearson is concerned, the complaint filed in May 1993 merely alleged that he made it known to plaintiffs that he intended to continue to use the road, threatened to drive through any obstructions, and intimidated plaintiffs into future acquiescence. They sought an injunction against his traversing the road.

Pearson hired counsel, who conducted discovery and filed resultant depositions together with a motion for summary judgment and supporting brief. He also filed the statement required by Uniform Superior Court Rule 6.5, outlining his position that the road had been used as a public road since the turn of the century. He pointed out that the county commissioners had declared it a county road in December 1992, as plaintiffs themselves alleged, and that at a recorded hearing in this suit in August 1993, plaintiffs had acknowledged this. Pearson also found it necessary to file a motion to compel plaintiffs to comply with an earlier order directed to their counsel, appellant herein.

Although plaintiffs were seeking to overcome the county’s decision by injunction, there was no need to include in the lawsuit this neighbor for whom the road was the means of egress and ingress to his property. Even assuming this was a proper way to attack the county’s action, if the county’s action was not ultimately upheld, there was no basis upon which to allege that Pearson as a citizen would not abide by the court’s final judgment; if it was upheld, his continued traverse of the road would be lawful.

The court granted summary judgment to Pearson upon finding that plaintiffs failed to show that Pearson “in any way caused irreparable damage to [their] property,” as is required by OCGA § 9-5-4, and that the allegations against him are insufficient as a matter of law to obtain injunctive relief. “It is well settled,” as stated over 30 years ago, “that a bare threat of injury to property, which, if followed up by an overt act would work irreparable injury, offers no basis for equitable relief by injunction or otherwise. [Cits.]” Insurance Center v. Hamilton, 218 Ga. 597, 600 (1) (a) (129 SE2d 801) (1963). See Parker v. Davidson, 223 Ga. 672 (157 SE2d 489) (1967).

Some months after this, counsel notified the court that his representation of plaintiffs was terminated. The court eventually found that not only was its earlier order not complied with, but also that the litigation had been abandoned. The court refused to disturb the county commission’s December 1992 declaration of the road as a pub-lie road.

Decided October 30, 1995

Reconsideration denied December 18, 1995

William L. Reilly, for appellant.

Schulten & Ward, Kevin L. Ward, Clay M. Westbrook, for appellee.

The trial court was familiar with the whole proceeding in this case, having conducted several hearings throughout its course and studied the record. The record supports the finding that the complaint against neighbor Pearson lacked substantial justification, so that it was not an abuse of discretion to award the attorney fees under OCGA § 9-15-14 (b). Although the court found in addition that plaintiffs’ claim met the criterion of subsection (a), it is unnecessary to decide whether Pearson was also entitled to attorney fees as a matter of law.

With respect to the Brentons’ answer in magistrate court, I note that Pearson attached it as an exhibit to his brief in support of his motion for attorney fees and stated in the motion that the letter was admitted into evidence by the superior court and marked for identification as Exhibit “1.” We do not have a transcript of any hearing in which this was assertedly done, and there is nothing in the record to confirm the fact otherwise. By the same token, there is nothing to show that the court depended on this letter in arriving at the determination concerning the attorney fee award.

I am authorized to state that Judge Blackburn and Judge Smith join in this dissent.


author: Beasley, Chief Judge.

text:
    A95A1360.
    CSX TRANSPORTATION, INC. v. SNEAD et al.
    (465 SE2d 690)
   Beasley, Chief Judge.

Snead sued Snap-On Tools Corporation in products liability and CSX Transportation, Inc. under the Federal Employer’s Liability Act (“FELA”), 45 USC § 51 et seq. Judgment after a jury trial was for $1,000,000 in damages exclusive of medical expenses, as to which defendants were jointly liable, and $250,000 for medical expenses, for which Snap-On alone was liable. This is CSX’s appeal; the appeals of Snap-On (Court of Appeals Case No. A95A1359) and of Snead as to Snap-On only (Court of Appeals Case No. A95A1361) have been withdrawn.

Snead repaired train locomotives for CSX and was injured when a ratchet tool used to tighten locomotive bolts failed. The tool, a large variety known as a “three-quarter inch” ratchet, was manufactured by Snap-On. CSX acquired the tool new and had it engraved for identification before it was supplied to Snead. The ratchet mechanism gave way under Snead’s weight, after the first four or five pulls on the handle on its first use on a locomotive. Snead’s back was injured as a result. The tool was taken by CSX claims personnel and, after Snead sued, was inspected by Hills, an engineer selected by Snead. The internal mechanism was contaminated by grease or heavy oil which held some small metal slivers in a position that caused the ratchet’s ball- and-spring assembly to jam. This prevented the tool’s teeth from fully engaging, causing a tooth to break suddenly when pressure was applied. The only appropriate lubricant that should have been present was a light lubricating oil, and the introduction of the heavier lubricant, in conjunction with the metal particles, made the tool unsafe.

Snead contended CSX was negligent in supplying him with the ratchet tool in either of two ways: opening the new tool and inserting an improper lubricant that facilitated its failure, or failing to first test the tool to determine if it was safe.

1. CSX contends the court erred in denying its motion for j.n.o.v. because there was no evidence it placed the contaminants in the tool. It is uncontested that the tool failed and that the improper lubricant and metal particles caused it to do so. Although there was no direct proof CSX placed any contaminant in the tool, there was evidence to support the conclusion.

“ ‘ “(A) motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” ’ [Cits.]” Kapsch v. Stowers, 209 Ga. App. 767, 769 (1) (434 SE2d 539) (1993).

In support of CSX’s contention that there is no evidence CSX placed the improper, contaminated lubricant in the new wrench, it cites Hills’ testimony that the tool’s mechanism did not appear to have been previously opened when he made his post-incident inspection. The jury was not obliged to accept this observation as conclusive of the fact. Although Hills gave his opinion on the matter, he also testified there were some scratch marks on the ratchet’s cover plate, but he did not think the marks showed it had been opened. He also testified he started his inspection with the premise that the tool had not been disassembled before his inspection. After Hills had opened and reclosed the cover plate of a different, comparison Snap-On wrench, the same wrench was opened by Burck, another engineer. He testified that, at least as to two of the three screws needed to remove the cover plate, it did not appear the tool had previously been disassembled. Thus, there was evidence allowing the jury to conclude Hills was incorrect in his opinion that the tool had not been opened before his inspection.

CSX did have opportunity to insert the lubricant. Although it was not shown exactly when the tool arrived at CSX’s repair facility, it was undisputed it had been in its storeroom or in a locker at the toolroom for a few weeks. Snead’s foreman testified he was advised by Snead, or Snead’s co-worker, that the 3/4-inch ratchet would be needed and that he had then gotten one from the toolroom manager. His testimony in court was that he took it to the toolroom machinist to be engraved with identifying information before taking it to Snead; he described the engraving process, which took just a few minutes, and said nothing else was done to the ratchet by the machinist. However, he had testified during his earlier deposition that he did not remember getting the tool engraved or whether it was already engraved when he picked it up; this was also in evidence.

Although the toolroom machinist did not appear at trial, other CSX workers testified the machinist would occasionally relubricate tools as needed. Relubricating the tool would not be completely unreasonable; the tool’s instructions included a direction to periodically open and relubricate the mechanism with a light oil. CSX did use a heavier lubricant to relubricate at least some of its ratchets. When the ratchet was brought to Snead, it was not in a sealed, labeled Snap-On box, but loose in a larger box.

Snap-On’s chief engineer testified that the contaminated lubricant could not have been placed in the ratchet during the manufacturing process, that its location was indicative of someone trying to reassemble the ball-and-spring mechanism without the proper tools or experience, and that everyone in Snap-On’s assembly process had the proper tools and experience. CSX’s electrician, who ordered tools and supplies, testified that when CSX’s machinists performed the operation, they would use “a little old thin piece of metal, something like spring steel that was real thin, ... to hold it in place and then put the pawl in it.”

A new Snap-On ratchet wrench, examined for comparison, showed it also had some metal fragments in its mechanism, but it had no heavy oil or light grease. It was Hills’ opinion that the filings caused the mechanism to jam, but the presence of the heavier oil or grease supplied the material needed to hold the filings in that position. He believed the metal filings were produced in the manufacturing process and came from the cover plate. Consultant engineer Burck also examined the heavier lubricant and described it as “used grease,” probably added after the tool was manufactured, and contaminated by metal pieces and other material.

Clearly, the contaminated lubricant was introduced into the tool somehow. Even if the jury found Snap-On had manufactured the ratchet with metal particles inside, it could also have found CSX’s addition of a heavier lubricant contributed to the cause of the tool’s failure. There being evidence to support such findings, the court did not err in denying the motion for j.n.o.v.

2. CSX contends the court should have granted a directed verdict because FELA does not impose a duty to inspect or test a new tool. Under FELA, “ ‘the employer has a duty to provide the employee a reasonably safe workplace which includes safe conditions, tools, facilities, and supervision. (Cit.)’ [Cit.]” Bowles v. CSX Transp., 206 Ga. App. 6 (1) (424 SE2d 313) (1992).

CSX contends that FELA imposes no liability unless the employer is negligent and that neither FELA nor Georgia law requires an employer to test a new tool that does not appear defective. CSX contends there can be no such duty because the employer can be deemed negligent only as to foreseeable injuries, and it is not foreseeable that a new tool will fail. It also contends it can rely on the manufacturer to properly construct the article. The cases it advances to support this position concern a retailer’s liability to a purchaser, not an employer’s duty under FELA. Snowden v. Waterman & Co., 105 Ga. 384 (31 SE 110) (1898); Washburn Storage Co. v. Gen. Motors Corp., 90 Ga. App. 380 (83 SE2d 26) (1954); Rupee v. Mobile Home Brokers, 124 Ga. App. 86 (183 SE2d 34) (1971). CSX’s duty to its employee is, of course, non-delegable. CSX Transp. v. Franklin Indus., 213 Ga. App. 778 (445 SE2d 861) (1994).

“ ‘ “ ‘In order for a party to be liable ... for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. (Cits.)’ ” [Cit.]’ [Cit.] ‘ “ ‘The mere fact that a particular kind of an accident has not happened before does not . . . show that such accident is one which might not reasonably have been anticipated.’ ” ’ [Cit.]” Gilbert v. CSX Transp., 197 Ga. App. 29, 31 (397 SE2d 447) (1990). “ ‘Under (the FELA) the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.’ ” Id. It was uncontested that a failing 3/4-inch ratchet would be dangerous to its user.

CSX does not cite any case to support the assertion that the FELA duty to provide safe tools cannot include a duty to inspect or test a new tool under some circumstances nor that such an injury is not foreseeable as a matter of law. Questions of negligence, including foreseeability, are ordinarily for the jury. Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810) (1992). Neither Peyton v. St. Louis SW R. Co., 962 F2d 832 (8th Cir. 1992), nor Brown v. CSX Transp., 18 F3d 245 (4th Cir. 1994), alter the employee’s duty or the jury’s role. The court did not err in denying the motion for directed verdict.

3. The next enumeration of error is that even given a duty to inspect or test the tool, there is no evidence that any test of the new tool would have revealed the defect, so that the court erred in denying CSX’s motion for directed verdict.

Although the plaintiff in Peyton, supra, cited by CSX, presented no evidence about the test the employee contended should have been applied, here there is evidence from which the jury could infer a test of the tool could have prevented the accident. Snead’s supervisor testified that torque testing could be performed on a new wrench to determine if it would be adequate to tighten the bolts on a locomotive. A directed verdict was not warranted on this issue.

4. Lastly, CSX contends the court erred in denying its motion for new trial on the ground the $1,000,000 jury award was excessive because there was evidence Snead would have been unable to continue work, regardless of the injury sustained, due to a degenerative back condition.

“ ‘Questions concerning the proper measure of damages in FELA cases, like questions of liability, are to be settled according to general principles of law as administered in the federal courts. [Cits.] . . . [T]he damages recoverable under the FELA on account of a railroad employee suffering injury or death on the job are compensatory only and . . . punitive damages are not recoverable. [Cit.] . . . [T]he jury’s determination of the amount of damages to be awarded is otherwise inviolate, “absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. . . . (Cits.)” [Cit.] This standard of review is consistent with that [of] Georgia law, [viz]: “Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear ‘exorbitant,’ ‘flagrantly outrageous,’ and ‘extravagant.’ ‘It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.’ It must carry its death warrant upon its face.” [Cits.]’ [Cit.]” Southern R. Co. v. Montgomery, 192 Ga. App. 308, 311-312 (3) (384 SE2d 907) (1989).

Decided November 16, 1995

Reconsideration denied December 18, 1995

Casey, Gilson & Williams, Matthew D. Williams, Sandra Gray, for appellant.

Burge & Wettermark, Michael J. Warshauer, for appellees.

At the time of trial, Snead was 43 years old. An economist testified that a present lump sum of $665,870 would be needed to replace the income and benefits Snead would have received up to a retirement age of 61. Snead testified he was in constant pain, could no longer perform the only work he had ever done because of the pain, and had been forced to severely alter his lifestyle due to the pain. Physicians testified his pain is permanent, as are his limitations; he is not to lift over thirty-five pounds or bend more than four or five times an hour. One physician did testify he would have placed Snead on these work limitations regardless of the injuries suffered in the accident because of a degenerative disk condition. However, he also attributed all Snead’s pain to the accident and placed the limitations on Snead’s movements because of both the pain and the degenerative condition. Given the evidence presented, the jury’s verdict was not so excessive as to shock the judicial conscience.

Judgment affirmed.

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

       The court granted Snap-On’s motion for j.n.o.v. on the medical expenses.

       CSX also argues the court erred in giving a jury charge on this issue, but appellate review is waived by CSX’s failure to object or take exception to the charge. OCGA § 5-5-24 (a); Crawford v. Presbyterian Home, 216 Ga. App. 54, 55 (2) (453 SE2d 480) (1995).

       CSX also enumerates error as to the jury charge on this issue, but its failure to object or take exception waived review. OCGA § 5-5-24 (a); Crawford, supra, fn. 2.


author: Johnson, Judge.

text:
    A95A2226.
    MILLER v. THE STATE.
    (466 SE2d 67)
   Johnson, Judge.

A car struck Robert Miller while he was on his motorcycle. Miller was not at fault in the accident. An ambulance took Miller to a nearby hospital where he was treated for a dislocated shoulder. At the hospital, a state trooper asked Miller to give blood and urine samples. The trooper testified that he had no reason to and did not suspect Miller of being under the influence of alcohol or drugs. He nevertheless requested the samples solely because he believed Miller suffered “serious injuries” in the accident. See OCGA § 40-5-55 (a). Miller objected, but provided the requested samples after the trooper told him that because of his serious injuries, his driver’s license would be suspended if he did not consent to blood and urine tests. The state crime laboratory’s tests revealed the presence of marijuana in Miller’s blood and urine samples. Based on these test results, the State charged Miller with driving under the influence of marijuana and possession of marijuana. Miller moved to suppress the test results, arguing that his dislocated shoulder is not a “serious injury” as defined by OCGA § 40-5-55 (c), and thus his consent to the tests was not valid. The trial court submitted the issue of whether the test results should be suppressed to the jurors, instructing them that they could consider the test results only if they determined that Miller suffered serious injuries as defined by the statute. The court gave the jury a special verdict form on which they found that Miller had suffered serious injuries and that he was guilty of the charged offenses. The court entered judgments of conviction on the verdict and denied Miller’s motion for a new trial. He appeals.

Decided December 18, 1995.

Mayer & Beal, Andrew M. Beal, Matthew D. Gansereit, for appellant.

Albert F. Taylor, Jr., District Attorney, C. David Turk III, Mary E. Moore, Assistant District Attorneys, for appellee.

The trial court’s procedure of submitting the suppression issue to the jury was clearly erroneous. The grant or denial of a suppression motion is a matter of law for the court. Chastain v. State, 158 Ga. App. 654, 655 (281 SE2d 627) (1981). Even if the court’s procedure were proper, the jury’s factual finding that Miller was seriously injured as defined by OCGA § 40-5-55 (c) is not supported by any evidence. “[T]he term ‘traffic accident resulting in serious injuries or fatalities’ means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.” OCGA § 40-5-55 (c). Here, the evidence shows only that Miller suffered a dislocated shoulder. Contrary to the State’s argument, a dislocated shoulder is not disfigurement. Compare Lewis v. State, 215 Ga. App. 796 (452 SE2d 228) (1994). Because there is insufficient evidence that Miller suffered a serious injury so as to invoke implied consent to the tests under OCGA § 40-5-55 (a), the trial court erred in failing to suppress the test results. Accordingly, the blood and urine test results constituting the only evidence at trial which would support a verdict of guilty of the offense charged, Miller’s conviction must be reversed.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.