text:
    A89A0664.
    NUNLEY CONTRACTING COMPANY, INC. v. FOUR TAYLORS, INC.
    (384 SE2d 216)
   Benham, Judge.

Appellee is the fee owner of real property. The property is leased to Mar kan Villa, Inc. (Mar kan). Appellant was a subcontractor on a construction project undertaken by Markan. When the prime contractor did not pay the amount appellant claimed under the subcontract, appellant filed suit against the contractor and sought to impose a lien on appellee’s property. The trial court granted appellee’s motion for summary judgment. We affirm.

“A contract for improvements between a lessee and a material-man does not subject the interest of the lessor to a lien unless a contractual relationship exists between the lessor and the materialman as well. [Cit.] No express or implied consent of [Four Taylors] to the contract for improvements appears. Mere knowledge by the lessor of the improvements does not give rise to the lien. [Cit.]” Accurate Constr. Co. v. Dobbs Houses, 154 Ga. App. 605 (269 SE2d 494) (1980).

Appellant attempts to avoid the rule stated in Accurate Constr. Co. by asserting that the relationship between the lessor and the lessee is such as to charge the lessor with more than mere knowledge of the improvements. However, although the record shows that appel-lee’s shareholders are the offspring of Mark Taylor, the sole shareholder of Markan; that Taylor owned the property at the time the lease with Markan was executed; and that he subsequently conveyec the property to appellee subject to the lease and to other encumbrances associated with a plan to build government subsidized low-income housing, there was no showing that the corporations involvec are not separate entities or that appellee had any involvement in th( property other than as owner and lessor. Although appellant contendí that appellee made the property subject to its lien by participating ii arranging the financing of the project, the evidence on which appel lant relies to support that proposition is nothing more than an agree ment by which appellee (as transferee of title to the property), th developer, and the housing authority agreed to subordinate their in terests to those of the lender. The agreement on which appellant re lies shows no more than approval of the construction project; it doe not show any approval of the contract between appellant and th lessee/developer such as would make the property subject to appel lant’s lien under Accurate Constr. Co., supra.

In the cases cited by appellant, Bennett Iron Works v. Underground Atlanta, 130 Ga. App. 653 (204 SE2d 331) (1974), and Columbus Square &c. Co. v. B & H Steel Co., 150 Ga. App. 774 (258 SE2 600) (1979), the lessors did more than merely consent to improve ments being made; they contracted for them and paid the lessees b means of lease credits. There is no evidence in the record of this cas to suggest such an arrangement.

Applying the rule in Accurate Constr. Co. to the facts establishe in the record of this case, we hold that the trial court was correct i granting summary judgment to appellee. That being so, appellant second enumeration of error, attacking an alternate ground assertf by appellee in the trial court as a basis for summary judgment, is moot and need not be addressed.

Decided June 23, 1989

Rehearing denied July 12, 1989

Davis, Kirsch & Wolfe, Dock H. Davis, for appellant.

Drew, Eckl & Farnham, T. Bart Gary, Michael F. Swick, for ap-pellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A89A0012.
    RAMIREZ v. THE STATE.
    (384 SE2d 279)
   Pope, Judge.

Appellant was indicted for trafficking in cocaine. This interlocutory appeal was granted to review whether the trial court properly denied appellant’s motion to suppress.

At approximately 11:00 p.m. on January 20, 1988, Georgia State Patrolman McDermitt observed a maroon Dodge automobile traveling north on 1-95 in Glynn County, Georgia. Because the car had drifted over the right white line into the emergency lane a couple of times, the trooper pulled the car over. Before he got out of his car, the trooper activated a videocamera mounted on the dash of his car and recorded the events that followed. The trooper asked appellant, the driver and only occupant of the car, to step out of the car and asked for his driver’s license and registration. Appellant produced his license, but could not find the registration and told the trooper the car belonged to a friend. The trooper told appellant he stopped him because he was weaving and appellant indicated that he had a problem with his steering. In response to the trooper’s question of whether he had been drinking, appellant said no.

The trooper then told appellant he was going to write him a warning ticket. As he wrote, the trooper engaged appellant in conversation about where he was going. Appellant told him he was going to Savannah, Georgia, to visit a cousin. The trooper handed the warning ticket to appellant and then asked if appellant objected if the trooper looked in his car. Appellant acted as though he did not understand what the trooper said and the trooper repeated the request with gestures to add to the meaning of the words. Appellant then said, “yeah,” gesturing toward the car. He went to get the keys for the trooper, but for his own safety, the trooper stopped him and got them himself. A subsequent search revealed the cocaine. Trooper McDermitt testified at the motion to suppress hearing and the videotape was admitted into evidence and viewed by the court. Held:

Decided July 12, 1989.

Allen & Perry, Roy L. Allen II, Kevin E. Perry, David Robersoim for appellant. H

Glenn B. Thomas, Jr., District Attorney, John B. Johnson Ilm Assistant District Attorney, for appellee.

Appellant argues that the stop was merely pretextual, that he was detained unconstitutionally and that he did not give consent to search voluntarily. We find none of these arguments persuasive and affirm.

Trooper McDermitt articulated a definite reason for stopping appellant: he observed him weaving into the emergency lane and thought he might be a less safe driver for some reason or that he might be driving an unsafe vehicle. The argument that the stop was merely pretextual and that the case is controlled by United States v. Smith, 799 F2d 704 (11th Cir. 1986) was rejected by this court in a previous case in which the initial stop was made because the defendant was observed weaving. Pupo v. State, 187 Ga. App. 765 (1) (371 SE2d 219) (1988). The procedure followed by the trooper of talking to the driver and then giving a warning ticket, all within a span of five to ten minutes, was not improper. Raney v. State, 186 Ga. App. 758 (368 SE2d 528) (1988); Spencer v. State, 186 Ga. App. 54 (366 SE2d 390) (1988).

Although a viewing of the videotape shows that appellant certainly did not have a great command of the English language, it does show that he understood the trooper without much difficulty until the trooper asked if he could look in the car. At that point, appellant said his English was not so good and looked confused. After the troopei repeated the request, appellant hesitated, then stepped back and wit! an inviting gesture toward the car said “yeah” and repeated it.

“Where the state seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent, was, in fact freely and voluntarily given. A valid consent eliminates the need fo: either probable cause or a search warrant. The voluntariness of a con sent to search is determined by looking to the totality of the circum stances.” (Citations and punctuation omitted.) Borda v. State, 187 Ga. App. 49, 50 (369 SE2d 327) (1988).

We find that the evidence presented to the trial court authorize! the finding that, from the totality of the circumstances, appellan freely and voluntarily gave consent to the search. See generally Pup v. State, supra; Beguiristain v. State, 187 Ga. App. 164 (1) (369 SE2d 774) (1988).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0738.
    CLAYTON COUNTY WATER AUTHORITY v. HARBIN.
    (384 SE2d 453)
   Banke, Presiding Judge.

The Clayton County Water Authority instituted condemnation proceedings pursuant to OCGA § 22-2-1 et seq. to acquire 23.6 acres of land owned by the appellee. (Certain other property in which the appellee owned an interest was also included in the original condemnation petition but has since been deleted from the proceeding.) The appellee filed an appeal to the superior court pursuant to OCGA § 22-2-80, protesting the amount of compensation awarded by the assessors, and a subsequent jury trial on the issue resulted in a verdict in his favor. The condemnor deposited the difference between the jury’s award and the assessors’ award into the registry of the trial court and filed a notice of appeal to this court. The appellee subsequently moved the trial court to disburse that money to him, but that motion was denied on the theory that the pending appeal acted as a superse-deas to the distribution of the funds. The initial amount awarded by the assessors has, however, been distributed to the appellee. Held:

1. The appellee has moved this court to dismiss the appeal, contending that the condemnor was required to pay the difference between the jury’s award and the assessors’ award directly to him rather than into the registry of the court in order to satisfy the “first paid” requirement of Art. I, Sec. Ill, Par. I (a) of the Georgia Constitution of 1983. See generally City of Atlanta v. Wright, 159 Ga. App. 809 (285 SE2d 250) (1981). We disagree.

In City of Gainesville v. Loggins, 224 Ga. 114 (160 SE2d 374) (1968), relied on by the condemnee in support of his dismissal motion, the Georgia Supreme Court stated that “[wjhere the appeal is from a jury verdict and judgment based thereon for an amount in excess of the original award, and the judgment directs to whom the payment is to be made, then the payment or tender to the condemnee in accordance with such judgment is mandatory under the requirement of the Constitution that just and adequate compensation be first paid.” Id. at 117. However, it is apparent from the later decision in Paulk v. Ga. Power Co., 231 Ga. 721 (204 SE2d 154) (1974), that the “first paid” requirement may also be satisfied by tendering payment of the additional amount into the registry of the court. Accord City of Douglas v. Carson, 118 Ga. App. 29 (162 SE2d 745) (1968); Pickens County v. Darnell, 142 Ga. App. 281 (235 SE2d 677) (1977). The motion to dismiss is accordingly denied.

2. While the condemnor’s expert witness was being cross-examined by counsel for the appellee, the following exchange occurred: “Q. [H]ow far off the flood plain does the first flood have to be under the ordinance in Henry County? A. I don’t remember. I’ve read it, but to make that. . . . Q. Just answer my question, please sir. A. I don’t know. But let me explain a little bit, please, sir. There is a subdivision being developed next door. ...” On motion by the appellee, the court disallowed any further explanation by the witness, and the con-demnor enumerates that ruling as error on appeal.

As a general rule, a witness must be given a full and adequate opportunity to explain his answer to a question. Brown v. Wilson, 55 Ga. App. 262 (2) (189 SE 860) (1937). However, “[t]he burden is on the party seeking reversal to show not only error, but also injury arising from the alleged error.” Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328) (1982). As no offer of proof was made in the present case regarding what explanation the witness would have made, we hold that this enumeration of error establishes no ground for reversal. See generally Anderson v. Jarriel, 224 Ga. 495 (3) (162 SE2d 322) (1968); Hyles v. Cockrill, 169 Ga. App. 132 (1) (312 SE2d 124) (1983).

3. The condemnor contends that the trial court erred in allowing the appellee to offer his own opinion concerning the value of his land The appellee stated that his opinion was based on comparisons of land sales in the area and on inquiries which he had made to a rea estate broker.

“Whether a witness has established sufficient opportunity foi forming a correct opinion or has stated a proper basis for expressing an opinion is a decision to be made by the trial court, and this decii sion will not be disturbed absent an abuse of discretion.” Getz Svcs. v. Perloe, 173 Ga. App. 532, 536-7 (327 SE2d 761) (1985). One neeci not be an expert or dealer in real estate in order to give an opiniorl regarding its value if he “has had an opportunity for forming a corree! opinion.” OCGA § 24-9-66. Also, opinion testimony regarding th! market value of property is not rendered inadmissible merely becaus! it depends to some extent upon hearsay. See Getz Svcs. v. Peroe, supra. Applying these principles, we find no abuse of discretion by th! trial court in allowing the testimony at issue. Accord Dept. of Transp. v. McLaughlin, 163 Ga. App. 1 (3) (292 SE2d 435) (1982); Dept. of Transp. v. Worley, 150 Ga. App. 768 (7) (258 SE2d 595) (1979).

4. The condemnor contends that the trial court erred in denyin» its motion to strike certain testimony offered by the appellee concerní ing the terms of a settlement offer which had been made to him. Sefl OCGA § 24-3-37. However, we conclude that the condemnor waive! this objection by failing to interpose it at the time the testimony wal offered. See generally Woodruff v. Naik, 181 Ga. App. 70, 71 (350 SE2d 233) (1986).

Decided July 12, 1989.

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, Smith & Welch, A. J. Welch, Jr., for appellant.

5. In its final enumeration of error, the condemnor takes exception to a portion of the jury charge concerning quotient verdicts, contending that it was contradictory and misleading. The trial court charged the jury as follows: “[Y]ou cannot use any method of chance in arriving at a verdict in this case. The verdict must be based upon the deliberate judgment of each juror concurring therein. I further charge you that it is improper for you to arrive at an amount to be awarded to the condemnee in this case by a so called quotient verdict. That is by each of you first agreeing to be bound and then arriving at your verdict by having each individual juror set down the amount he or she considers a proper award and then adding such sums together and dividing that number by the number of jurors and making the result the amount to be awarded by the jurors in damages to the con-demnee. This method of arriving at a verdict is illegal and improper and not to be followed by the jury in arriving at the amount to be awarded the condemnee in this case. You may, however, arrive at a quotient verdict and make that quotient your verdict provided you do not agree to be bound by the result of the quotient before you arrive at the quotient. You may arrive at a quotient verdict provided all the jurors [agree] that the sum is their verdict after they first determine what the quotient verdict would be.”

Actual quotient verdicts are undisputedly improper. See City of Columbus v. Ogletree, 102 Ga. 293 (8) (29 SE 749) (1897); Cromer & Thornton v. Underwood, 64 Ga. App. 519 (3) (13 SE2d 860) (1941). However, charges such as the one given by the court in this case have been generally approved. See Decker v. Hope, 129 Ga. App. 553 (9) (200 SE2d 290) (1973). Although in Dept. of Transp. v. Katz, 169 Ga. App. 310, 314 (312 SE2d 635) (1983), we held that such a charge was improper in the context of a condemnation proceeding, our holding there turned on the fact that the jury had been instructed that they could “total up the separate figures or vote of no damages, as the case may be, of each juror” in arriving at an average. Id. at 314. (Emphasis supplied.) We concluded that “insofar as [such a charge] allows the jury to cast a vote of ‘no damages’ for the condemnee [it] is not adjusted to a condemnation case” and should not be given. Id. Because the charge at issue in the present case contained no such language, we hold that it did not constitute reversible error.

Judgment affirmed.

Sognier and Pope, JJ., concur.

John L. Watson, Jr., for appellee.


author: Benham, Judge.

text:
    A89A0741.
    GROBLE v. THE STATE.
    (384 SE2d 281)
   Benham, Judge.

Stanley Groble was found guilty of entering an automobile with intent to commit theft, in violation of OCGA § 16-8-18, and sentenced to a five-year prison term. He appeals.

1. On appeal, we must view the evidence in a light most favorable to the prosecution. Howell v. State, 188 Ga. App. 425 (1) (373 SE2d 216) (1988). The jury was authorized to find that on June 1, 1988, at 2:30 a.m., on the campus of Georgia State University, appellant entered the victim’s automobile, removed the radio from its lodging, damaged the car door latch, and rummaged through the car pocket. A campus security guard noticed appellant in the car and saw that the radio speakers were missing. The police were summoned and appellant was arrested.

OCGA § 16-8-18 provides that if a person enters an automobile or vehicle with the intent to commit a theft or felony therein, he is guilty of a felony. A rational trier of fact was authorized to find defendant guilty beyond a reasonable doubt of entering an automobile with intent to commit theft. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hall v. State, 172 Ga. App. 371 (323 SE2d 261) (1984). Hence, this enumeration is without merit.

2. Appellant contends that the trial court erred in allowing evidence of a similar transaction. The transaction in question involved a 1983 conviction and sentence of three years imprisonment for entering an automobile with intent to commit a theft. It is conceded by appellant that the transaction itself was similar and therefore admissible to show motive, intent, scheme, and bent of mind; however, appellant contends that it was error to admit evidence of the sentence because it impermissibly placed his character into evidence.

In Pope v. State, 178 Ga. App. 148, 149 (342 SE2d 330) (1986), we found certified copies of a prior guilty plea, indictment, and sentence to be admissible in evidence “if they pertain to crimes concerning which testimony has been admitted and a foundation laid thereby.” We share appellant’s concern here that the sentence in a prior offense does not show motive, intent, scheme, and bent of mind; however, appellant must show not only error but harm. Stewart v. State, 180 Ga. App. 266 (2) (349 SE2d 18) (1986). Accord Houston v. State, 187 Ga. App. 335 (2) (370 SE2d 178) (1988). While the bettei method would be not to admit the sentence in a prior offense where £ similar transaction is involved, in the case sub judice it is “highlj probable” that the admission of the sentence did not contribute to the verdict. Crews v. State, 185 Ga. App. 494, 495 (2) (364 SE2d 625) (1988). Therefore, this enumeration is without merit.

Decided July 12, 1989.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Linda Finley, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, J., concurs. Deen, P. J., concurs in judgment only.


author: Birdsong, Judge.

text:
    A89A0746.
    BRYSON v. THE STATE.
    (384 SE2d 456)
   Birdsong, Judge.

Gerald Paul Bryson was convicted of one count of child molestation and four counts incest, all relating to the same victim, his natural daughter. His appeal generally encompasses two alleged errors, the first being the “general grounds,” i.e., that the evidence was insufficient to support the verdict and illegal because there was no corroboration of the victim’s testimony, because the state did not prove the exact dates of the incidents charged, and because the victim otherwise denied her later accusation. The second error relates to appellant’s wife’s testimony that she and he left the state after he was informed the police wanted to talk to him about the allegations. Held:

1. The evidence in this case is sufficient to enable a reasonable trier of fact to rationally find proof of guilt beyond a reasonable doubt (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Rutledge v. State, 245 Ga. 768, 769 (267 SE2d 199)), and is not illegal for any reason.

The count of child molestation was for the incident of sexual intercourse alleged to have occurred between March 1 and October 1, 1984, when the victim was 12 years old. The victim testified specifically that this incident occurred on or about the day her family moved to a new residence on Fite Street in Cartersville, in June or July 1984. These dates were not disproved. The four counts charged as incest were alleged, variously, to have occurred between May 1 and November 30, 1987.

The victim’s testimony fully supported each accusation as to date, except as to the second count, which on the stand she testified occurred in November 1986, at least four months earlier than alleged. The remainder of the incestuous incidents were testified to by the victim as having occurred in or about the month of August before she ran away on August 10, 1987.

The victim testified generally that the incidents of sexual abuse (incest) increased in the summer of 1987; that she fought with her stepmother because her stepmother was jealous of the attention Bryson paid his daughter until finally the stepmother left the domicile about August 5, after which Bryson did not cease his attacks but rather, it appeared to the victim that they would continue. She stated that her father explained the sex to her by saying “he done it out of love, that he cared about me.” She testified that Bryson had frequently beat her and her stepmother and that her stepmother was afraid of him, and it was his threat to “stomp” her (the victim) that propelled her out of the house, to a neighbor’s house on August 10. The investigating police officer testified that at 9:42 p.m. on August 10, 1987, he answered a domestic call at another house and found the victim, as follows: she was very upset and hysterical, was crying and real nervous, and “told me she had run away from home, that her father had been beating her and having sex with her.” As to her demeanor, the officer testified the victim “seemed sincere about it and everything.” He called the Bartow County Department of Family & Children Services (DFCS) and a social worker took the victim to the hospital. The examining physician testified the victim appeared from physical examination to have engaged in sexual intercourse more than once, and that when he questioned her about her accusation “[s]he impressed me as being sincere.”

A DFCS worker testified that in April 1987, after the victim’s cousin reported sexual abuse against the victim by appellant, she questioned the victim about the matter and the victim denied it was occurring or had occurred; but the worker, a trained specialist in child molestation cases, testified that it is not unusual for victims of incest and sexual abuse to deny the events, particularly if they have a bonded relationship with the parent.

The victim’s stepmother, who had helped raise her from the age of five, testified that she and the victim fought frequently and that the victim resented the stepmother’s authority and became extremely rebellious in 1987 after the victim had begun a reacquaintance with her natural mother. The stepmother testified also that the victim was bashful, that she refused to go to school because she was failing and saw no point in continuing, and that the victim loved her father. She denied ever having seen or suspected any unnatural relations between Bryson and his daughter.

The victim’s natural mother testified that after her daughter came to live with her in November 1987, the daughter received a phone call from Bryson and became very upset, whereupon the mother grabbed the phone away and listened, to hear Bryson say, “I’m sorry I hurt you.” Bryson denied having said this. Other witnesses who had lived with the family from time to time testified they were not aware of any unnatural relations between Bryson and his daughter. It was shown, however, that these persons were not in the house at all times or at the times of the sexually abusive acts. One defense witness, who was a friend of the stepmother, testified she witnessed the stepmother and the victim fight and argue constantly but never saw the victim fight or argue with her father, and that the victim was very jealous of the stepmother’s giving attention to anyone else. This witness also testified that after the victim had made the accusation against her father, the victim called this witness and said, “Oh God, what have I done?” and said that she and her father had never had “sexual contact”; that the victim that day asked the witness to meet her to talk but when the witness arrived at the designated place, the victim was not there.

The DFCS worker testified that in October 1987, after the victim had attempted to commit suicide, the victim’s foster mother gave the social worker a photograph she found of Bryson, which the victim had cut with a knife.

The jury determines the weight of the evidence, and the credibility of the witness, and we only determine the sufficiency of the evidence to support the verdict according to the standard set forth in Jackson v. Virginia, supra. We do not speculate as to what the jury chose to believe or disbelieve, but only look to determine whether the evidence, fairly construed in favor of the jury’s finding, supports the verdict under the Jackson v. Virginia, standard; the jury is empowered to resolve all conflicts in the evidence and when it has done so, we do not substitute our judgment for the jury’s judgment. Glover v. State, 237 Ga. 859, 860 (230 SE2d 293).

The jury in this case obviously determined that the testimony of the victim was credible and was supported by the testimony of the investigative officer and examining physician who saw her soon after she ran away. The jury evidently resolved in the victim’s favor the apparent conflicts in defense testimony, particularly that of the stepmother who testified that the victim was on the one hand bashful, but fought with her constantly and resented her authority; and that the victim loved her father and never fought with him but wanted to be free of the stepmother, whereas the evidence clearly showed the victim fled her father’s house and custody soon after the stepmother went away. The jury undoubtedly found conflicts in the defense testimony that it resolved by the testimony of the victim and other state’s witness, the evidence fully supports that resolution beyond a reasonable doubt.

Corroboration of the victim’s testimony is not essential in a child molestation case (Grayer v. State, 181 Ga. App. 845, 847 (6) (a) (354 SE2d 191)) but there was corroboration in the res gestae evidence in this case, or in the evidence of the child’s statements to others soon after she fled her father’s house. Any other statements the child made to the interviewing DFCS worker when she was first asked about the abuse, or to the defense witness who testified the victim said there had been no “sexual contact,” are reasonably explained, and the jury so found.

Decided July 12, 1989.

Greene & Greene, Barry B. Greene, for appellant.

Darrell E. Wilson, District Attorney, Kimberly L. Schwartz, Assistant District Attorney, for appellee.

Finally, no fatal error inheres in the circumstance that the State alleged the second abuse act to have occurred between March and October 1987, while the victim testified specifically that it occurred in November 1986, for proof of the date of occurrence of such crimes is by nature generally unspecific; therefore, so long as the particular event is proved within the period of the statute of limitation, the verdict finding it to have occurred as alleged is not fatally infected on that basis alone. See Carpenter v. State, 167 Ga. App. 634 (307 SE2d 19), aff’d 252 Ga. 79 (310 SE2d 912).

2. The trial court did not err in permitting the State to question the stepmother about appellant’s having left the state with her immediately after being told the police wanted to question him about the accusations of molestation. This evidence raised a legitimate issue of flight, which is a question for the jury’s resolution. “ ‘Whether the acts of the defendant constitute flight, and were due to a consciousness of guilt, or whether such acts have an innocent explanation, is a question for the jury.’ ” Carter v. State, 180 Ga. App. 269, 270 (349 SE2d 19).

Appellant does not make clear why he contends this evidence here was inadmissible, except to suggest that the law did not require appellant to voluntarily take himself to be interviewed at the police station, but this is beside the point of the issue, for such fact does not authorize him to flee an imminent arrest. At least, if he does flee or commits some act that raises the question, that matter may be laid before the jury as possible evidence against him. Appellant has no grounds to complain of this as error, even if he had properly objected to it.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0030.
    SEGARS v. SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA.
    (384 SE2d 426)
   Banke, Presiding Judge.

Beverly Atkinson Segars and her minor daughter, Viranice, were killed when an automobile being driven by Mrs. Segars collided with a tree. Mrs. Segars had liability coverage under a motor vehicle accident insurance policy issued by the appellee herein, Southern Guaranty Insurance Company of Georgia. However, the policy contained a “Liability Coverage Exclusion Endorsement” which provided as follows: “Liability Coverage . . . We do not provide Liability Coverage for any person for bodily injury to you or any family member.” The term “family member” was defined in the policy as “a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.”

The appellant, Larry Segars, was the father of Viranice Segars and the former husband of Beverly Atkinson Segars. The couple had been divorced approximately eight months prior to the accident, with Mrs. Segars receiving custody of their two minor children, including Viranice. There is no question that Viranice was a resident of her mother’s household at the time of the accident. The appellant sought liability benefits from Southern Guaranty based on allegations that his daughter’s death had resulted from the negligence of the mother. Southern Guaranty then brought the present declaratory judgment action against both him and the administrator of Mrs. Segars’ estate, seeking a ruling that no liability coverage existed under the circumstances. The appellant, in turn, filed a counterclaim against Southern Guaranty for attorney fees, as well as a cross-claim for damages against the administrator of Mrs. Segars’ estate. The present appeal is from the trial court’s grant of summary judgment to Southern Guaranty. Held:

1. The appellee contends that since any right of action the appellant may have against the estate of his former wife to recover for the death of their daughter is derivative of whatever right the daughter would have had to sue her mother to recover for her injuries had she lived (see generally Trust Co. Bank v. Thornton, 186 Ga. App. 706 (368 SE2d 158) (1988); Williams v. Ray, 146 Ga. App. 333 (1) (246 SE2d 387) (1978)), the appellant’s claim is barred by the common-law doctrine of intrafamily tort immunity. See generally Coleman v. Coleman, 157 Ga. App. 533 (278 SE2d 114) (1981); Eschen v. Roney, 127 Ga. App. 719 (194 SE2d 589) (1972). However, intrafamily tort immunity is “no longer [ ] considered a blanket legal disability” in this state. See GEICO v. Dickey, 255 Ga. 661, 662 (340 SE2d 595) (1986). See also Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984).

“The traditional policy reasons favoring the retention of the common law immunity rule include preservation of [familial] harmony and protection against the possibility of collusive or friendly lawsuits. ...” Trust Co. Bank v. Thornton, supra, 186 Ga. App. at 707, citing Robeson v. Intl. Indem. Co., 248 Ga. 306 (3) (282 SE2d 896) (1981). See also Harris v. Harris, supra, 252 Ga. at 388. Since any relationship between the appellant and Mrs. Segars has ended by virtue of their divorce and Mrs. Segars’ death, there obviously remains no marital harmony to be preserved. Similarly, the deaths of Mrs. Se-gars and her daughter have ended any legitimate concern for the preservation of familial harmony between the two of them. With respect to the possibility of collusion, the Supreme Court has recently concluded that this is not a valid rationale for applying the inter-spousal immunity doctrine (OCGA § 19-3-8) to wrongful-death actions and has accordingly held that the application of that doctrine to wrongful-death actions is unconstitutional, reasoning as follows: “Although there may be some possibility of collusion between the defendant spouse and the wrongful death claimant if liability insurance is available, we believe that the possibility of collusion is not realistically greater than in any suit where insurance is involved. . . . Moreover, the potentiality for fraud exists in any litigation and should not be a valid basis for denying a right of action to legitimate claimants.” Jones v. Jones, 259 Ga. 49, 50 (376 SE2d 674) (1989). Because this analysis applies equally to the present factual setting, we conclude that the common-law doctrine of intrafamily tort immunity does not operate as a bar to the cross-claim by the appellant against the estate of his former wife seeking to recover for the alleged wrongful-death of their daughter.

Decided June 30, 1989

Rehearing denied July 13, 1989

2. Family exclusion clauses are not per se against public policy; rather, a case-by-case determination must be made as to whether the exclusion unfairly penalizes innocent victims or unfairly exposes the insured to liability. Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355 (359 SE2d 665) (1987). Where the exclusion “dovetails” with the absence of liability, it will be enforced. GEICO v. Dickey, supra, 255 Ga. at 661. Since we have held in the present case that the family exclusion clause appearing in Mrs. Se-gars’ policy does not “dovetail” with an immunity from liability under state law, we conclude that the clause contravenes public policy and is unenforceable. Accordingly, we hold that the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Sognier and Pope, JJ., concur.

Davis, Brofman, Zipperman & Kirschenbaum, E. Marcus Davis, Lawrence J. Pond, for appellant.

Elizabeth A. Obenshain, for appellee.


text:
    A89A0316.
    CITY OF ATLANTA v. STARKE et al.
    (384 SE2d 419)
   Pope, Judge.

Appellees, owners of residential property located near William B. Hartsfield Atlanta International Airport (hereinafter “airport”) brought suit against appellant City of Atlanta, owner and operator of the airport, alleging damage to their person and property under theories of trespass, nuisance and inverse condemnation. The jury awarded appellees $70,225 plus litigation expenses, and appellant appeals.

1. Appellant’s first four enumerations of error all complain of the trial court’s alleged failure to apply appropriate statutes of limitation to appellees’ various causes of action. Specifically, appellant complains of three separate rulings of the trial court with respect to its statute of limitation defenses. However, appellant has failed to give “a single ‘. . . citation [to] the record or transcript as are essential to a consideration of the [first four] errors complained of.’ This violation of Court of Appeals Rule 15 (a) (1) and (c) (3) requires us to hunt through the [163-page record and 790-page transcript (excluding exhibits) for both the rulings complained of and evidence cited in support of appellant’s argument]. The reviewing court should not have to search for the treasures when the parties know where they are hidden, especially since each party wants its own to be discovered. We will in this case embark upon an exploration because the law favors that we ‘bring about a decision on the merits of every case appealed . . .’ OCGA § 5-6-30. [See also Justice v. Dunbar, 244 Ga. 415 (260 SE2d 327) (1979)].” Dugger v. Danello, 175 Ga. App. 618, 619-620 (334 SE2d 3) (1985).

(a) Appellant first challenges the trial court’s use of a general versus special verdict, arguing that the trial court erroneously declined to utilize the special verdict form appellant proposed be submitted to the jury for the purpose of allowing the jury to apply the appropriate statute of limitation to each of appellees’ causes of action. Although the record shows a special verdict form was attached to the unsigned consolidated pretrial order, our search of the record and transcript reveals no ruling by the trial court on this issue. There being nothing in the record to suggest that appellant sought the trial court’s ruling on the submission of the special verdict form to the jury, or that the trial court did in fact rule that a general versus a special verdict form would be submitted to the jury, appellant has failed to present anything in the record for this court to review. See Nash v. Crowe, 222 Ga. 173 (149 SE2d 88) (1966); Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749, 750-751 (371 SE2d 231) (1988).

(b) Appellant also contends that the trial court erred by failing to direct a verdict in its favor based on its statute of limitation defenses and by failing to charge the jury on the applicable statutes of limitation. Although appellant does not give any specific dates as to when it contends appellees’ causes of action accrued, and even though appellant again fails to provide citations to the record or transcript in support of these enumerations, appellant appears to contend that the relevant dates were the date of construction of the airport, the addition of a runway in 1964 and a change of departure headings in 1973. However, it is clear from our review of the record and transcript that appellees’ contentions related not to these earlier events, but to a change in flight patterns to a “straight out” departure heading which resulted in air traffic being re-routed over appellees’ property. This pattern, according to the testimony of various witnesses, became permanent in either 1982 or 1983, and appellees’ complaint was filed June 19, 1985. Appellant failed to carry its burden of proof by showing that appellees’ claims were brought outside the four-year period of limitation for the claims involving trespass to realty (OCGA § 9-3-30) or the two-year period of limitation for the claims involving personal injury (OCGA § 9-3-33). Consequently, we find that the trial court did not err in denying appellant’s motion for directed verdict or refusing to give appellant’s requests to charge based on its statute of limitation defenses. Savannah Bank &c. Co. v. Meldrim, 195 Ga. 765 (25 SE2d 567) (1943); Holland Furnace Co. v. Willis, 120 Ga. App. 733 (4) (172 SE2d 149) (1969).

(c) For the same reason, we find no error in the denial of appellant’s pretrial motion and motion for directed verdict at trial based on the appellees’ alleged failure to give notice of their claims against appellant as provided by OCGA § 36-33-5. Again, appellant does not assert when this notice should have been filed in order for it to be timely. Moreover, the record does not contain the arguments and evidence appellant presented to the trial court in support of its pretrial motion nor does it contain the court’s ruling thereon. The record does contain appellees’ brief in opposition to appellant’s motion, which references several documents that appellees presented to the trial court to demonstrate their compliance with OCGA § 36-33-5. “Under these circumstances, we must rely on the presumption in favor of the regularity of all proceedings in a court of competent jurisdiction (Siegel v. Gen. Parts Corp., 165 Ga. App. 339 (301 SE2d 292) (1983)), assume that the evidence was sufficient to support the trial court’s [ruling], and affirm the judgment.” Acker v. Jenkins, 178 Ga. App. 393, 394 (343 SE2d 160) (1986). See also Thomas v. Bartlett, 183 Ga. App. 412 (359 SE2d 156) (1987). “When there is nothing in the record to support the contention of error, there is nothing presented to this court for review.” Brookhaven Assoc., 187 Ga. App. at 750-751.

2. We have considered appellant’s enumeration of error concerning the trial court’s denial of its motion seeking to exclude the testimony of Dr. Paul Rosch, a physician specializing in the area of stress medicine, and find it to be without merit. Specifically, we have examined the testimony of Dr. Rosch and find no merit to the contention that it should have been excluded because it was unreliable and speculative.

3. Appellant next argues that the trial court erred in refusing to allow it to introduce evidence concerning its noise mitigation efforts and to explain its “Part 150” noise mitigation plan. Appellant contends that such evidence was admissible to rebut the testimony of certain of appellees’ witnesses who testified concerning appellant’s lack of action to remedy the problem created by the airport noise. Our review of the record reveals the trial court did not err. The testimony appellant sought to introduce related to appellant’s efforts to purchase air rights in the affected area and to provide acoustical treatment of the houses located there. We agree with the trial court that such testimony was inadmissible pursuant to OCGA § 24-3-37 because it related to efforts by appellant to compromise the claims against it.

4. Appellant also argues that the trial court erred in denying its motion for directed verdict based on the fact that appellees’ property had increased, not decreased, in value over the last several years. In support of this contention, appellant relies on the case of Fields v. Sarasota-Manatee Airport Auth., 512 S2d 961 (Fla. App. 1987), in which the Florida Court of Appeals held that the “ ‘substantial loss in market value’ ” which is necessary to support an action for inverse condemnation cannot be equated with a “decreased increase” in market value. Id. at 964.

In the case at bar, testimony was presented concerning the value of appellees’ property as it existed close to the time of trial, as compared to the value of the property without overflights. The record also showed that appellees’ property had in fact increased in value since 1981, when it apparently was last appraised. We disagree that because of this increase appellees could not maintain an action for inverse condemnation. The appraiser testified that the increase was due to overall property value increases in the area and because certain improvements had been made to appellees’ house. On the other hand, the appraiser testified to a depreciation in excess of $25,000 in the market value of the premises caused by departures and landings over the property. This, in our opinion, was sufficient to support appellees’ contention that they were entitled to just and adequate compensation for the property taken or damaged. Consequently, the trial court did not err in denying appellant’s motion for directed verdict.

Decided June 28, 1989

Rehearing denied July 13, 1989

Marua Jones Brooks, Joe M. Harris, Jr., Michael L. Smith, for appellant.

Carl H. Hodges, for appellees.

5. We have examined appellant’s remaining enumeration of error challenging the charge of the court to the jury and find it to be without merit. Specifically, the trial court did not err in instructing the jury that appellees were entitled to recover damages resulting from the loss of use and enjoyment of their property. See City of Columbus v. Myszka, 246 Ga. 571 (6) (272 SE2d 302) (1980).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0323.
    PITTARD MACHINERY COMPANY v. MITSUBISHI INTERNATIONAL CORPORATION.
    (384 SE2d 423)
   Benham, Judge.

Claiming it was entitled to commissions on eight sales of appel-lee’s products, appellant filed suit against appellee. After conducting a hearing, the trial court concluded that appellant was not the procuring cause of any of the sales at issue and granted summary judgment to appellee. This appeal followed.

In 1982 or 1983, appellant, a retailer of machine tools, was the only dealer in Georgia and Alabama permitted to purchase appellee’s electrical discharge machines (EDMs) to resell to others in Georgia and Alabama. In May 1986, appellee informed appellant that its exclusive dealer status was terminated, but it could be a non-exclusive dealer of appellee’s products. In July 1986, appellee completely terminated its relationship with appellant and gave appellant until September 1, 1986, to consummate sales on quotations it had given to prospective customers. No such sales occurred. In June 1987, appellant filed this suit seeking commissions on a sale consummated by appellee in June 1986; on three sales made by another company the year following appellee’s termination of appellant; and on four sales or leases made by still another company the following year.

1. In its order granting summary judgment, the trial court concluded that appellant’s claims were without merit since appellant was not the procuring cause of the contested sales of appellees’ product. Appellant’s first two enumerations of error concern statements made by the trial court during the hearing but not specifically incorporated into the written order on the motion for summary judgment. The trial court’s oral determinations that there was no written contract between the parties and that appellant’s recovery was precluded by the non-exclusivity of the contract between the parties, even if erroneous, do not constitute reversible error since it is uncontradicted that appellant’s exclusive arrangement with appellee terminated prior to any of the sales, thereby requiring appellant to have been a procuring cause of the sales in order to recover any commissions. See Hendrix v. First Nat. Bank &c., 173 Ga. App. 513, 515 (326 SE2d 489) (1985); Gibbs v. Nixon, 154 Ga. App. 463, 466 (268 SE2d 670) (1980). We therefore turn to the question whether appellant was the procuring cause of the disputed sales.

2. In determining whether one is the procuring cause of a sale where there is no exclusive contract to sell, it must be established that the negotiations were still pending between the prospective purchaser and the one seeking the commission and that the owner was aware that there were pending negotiations when it consummated the sale. Hendrix, supra at 515. The undisputed evidence concerning the June 1986 sale was that appellant acquiesced in the purchaser’s choice of a competitor’s product and reported to appellee that it had lost a sale. Thus, appellant was no longer negotiating with the prospective purchaser, and appellee had been made aware that negotiations had ceased. As for the remaining sales, the evidence is without dispute that appellant’s negotiations with any of the ultimate purchasers had long ceased. “Finding the prospect and attempting to make the sale are not sufficient, in law, to entitle an agent to a commission; to earn the commission, he must be the procuring cause of the sale. [Cit.]” Foshee v. Harris, 170 Ga. App. 394, 396 (317 SE2d 548) (1984). Appellant has failed to rebut the undisputed proof that it was not the procuring cause of any of these sales; therefore, summary judgment for appellee was appropriate. Fields Realty &c. Co. v. Teper, 165 Ga. App. 28 (1) (299 SE2d 74) (1983).

3. Since appellant was not the procuring cause of the transactions, it was not entitled to recover under a quantum meruit theory. Allen v. T. A. Communications, 181 Ga. App. 726, 727 (353 SE2d 569) (1987); Doyal & Assoc. v. Wilma Southeast, 174 Ga. App. 851 (3) (332 SE2d 24) (1985).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

Decided June 28, 1989

Rehearing denied July 13, 1989

Novy & Jaymes, Eugene Novy, R. Craig Henderson, for appellant.

Craig K. Pendergrast, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A0336.
    A89A0337.
    LUBIANO v. THE STATE. MURRAY v. THE STATE.
    (384 SE2d 410)
   McMurray, Presiding Judge.

Defendants Lubiano and Murray were jointly indicted for aggravated assault upon a peace officer in that they “did unlawfully make an assault upon the person of Georgia State Trooper First Class Mickey Little, knowing said person was a peace officer engaged in the performance of his official duties, said assault being with boot-clad feet and a .357 magnum revolver, objects which, when used offensively against a person actually do result in serious bodily injury, by kicking and striking said person in the head . . . .” In a second count, defendants were jointly indicted for aggravated assault in that they “did unlawfully make an assault upon the person of William Jackson Tubb, with a .357 magnum revolver, a deadly weapon, by pointing said weapon at said person. . . .” Defendant Murray was charged in a separate count with being a recidivist under OCGA § 17-10-7. The evidence adduced at a joint jury trial revealed the following:

At about 11:00 in the morning on February 9, 1988, Trooper Mickey Little of the Georgia State Patrol observed a “black-over-white” Lincoln Continental traveling north on Interstate Highway 75 with what then appeared to be an improper out-of-state license plate. Trooper Little stopped the vehicle and discovered that defendant Lubiano was the driver and that defendant Murray was the passenger. Trooper Little separated defendants, made inquiry of their itinerary and received conflicting accounts of defendants’ mission. The trooper then made a further investigation of the suspect vehicle and, later “asked [defendant] Lubiano for permission to look in the trunk [of the Lincoln].” Defendant Lubiano consented and, as Trooper Little was searching, he discovered a package which appeared to be the same type of packaging usually involved in wrapping cocaine and marijuana. Trooper Little placed his hand on the suspect package and defendant Lubiano struck the officer “across the shoulder . . . .” “At that point [, Trooper Little and defendant Lubiano] fell to the ground and rolled to the bottom of a small embankment. [Trooper Little] was struck approximately two more times in the process of rolling down the hill, in the face. When [the men] reached the bottom of the hill, [Trooper Little] ended up on top of [defendant] Lubiano and was trying to subdue [defendant Lubiano] at that time. The next thing [Trooper Little remembers] was a sharp blow to the left-hand side area of [his] head . . .” and was momentarily “knocked” unconscious. When the trooper awakened, he was lying on his stomach “in a face-down position.” Defendant Murray ordered the trooper to surrender his handgun. When the officer refused, he was “struck on the rear portion of [his] head and, again, . . . knocked . . . unconscious.”

William Jackson Tubb, a “tractor/trailer” operator for “Steeves and Sons Door Company,” was traveling by the scene and “observed [defendant Murray and defendant Lubiano] over in the ditch with [Trooper Little] down on the ground, face down.” Tubb stopped, “got out of [his] truck[,] got a tire iron out of the tool box on the truck, [and ran] back to the scene, where [he] observed [defendant Lubiano] kicking the State Trooper [and defendant Murray] beating [the trooper] with his revolver, beating him in the head, and just. . . brutalizing the State Trooper . . . .” Tubb ordered the defendants to stop, but defendant Murray “turned around and pointed the State Trooper’s revolver at [Tubb] with the hammer back and . . . told [Tubb] to ‘get the [f--k] out of there.’ ” Tubb “raised [his] hands and dropped [his tire iron] and [pleaded with defendant Murray] not to kill [him] and not to kill the Officer.” Defendant Murray again ordered Tubb to leave the scene. Tubb complied, and went “to the State Patrol car to look for a shotgun or any kind of weapon.” Defendant Murray then “threw the revolver over into some honeysuckle vines” and defendants then abandoned Trooper Little and fled in the Lincoln Continental. The jury found defendants guilty of aggravated assault upon Trooper Little and aggravated assault upon William Jackson Tubb. Defendant Murray was sentenced to serve two consecutive twenty-year terms under the provisions of OCGA § 17-10-7. Defendant Lubiano was sentenced to serve two consecutive twenty-year terms. After the denial of their motions for new trial, defendant Lubi-ano appealed in Court of Appeals Case No. A89A0336 and defendant Murray appealed in Court of Appeals Case No. A89A0337. Held:

1. In his first enumeration of error, defendant Lubiano contends that the evidence was insufficient to support his convictions.

(a) Aggravated Assault Upon a Peace Officer (Count 1)

Defendant Lubiano argues that the State failed to prove, beyond a reasonable doubt, that he assaulted Trooper Little in the manner alleged in the indictment, i.e., “with boot-clad feet and a .357 magnum revolver, objects which, when used offensively against a person actually do result in serious bodily injury, by kicking and striking a person in the head . . . .” More specifically, defendant Lubiano argues that the State failed to prove that he assaulted the trooper with both his “ ‘boot-clad feet and a .357 magnum revolver.’ ”

“ ‘When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. See Jones v. State, 75 Ga. App. 610 (4), 615 (44 SE2d 174); Leverenz v. State, 140 Ga. App. 632, 634 (231 SE2d 513).’ Henry v. State, 154 Ga. App. 120 (1) (267 SE2d 653).” Rucker v. State, 177 Ga. App. 779, 781 (3) (341 SE2d 228). In view of the conjunctive form of the indictment in the case sub judice, it was not incumbent upon'the State to prove that defendant Lubiano assaulted Trooper Little with both his feet and a revolver. Evidence showing that defendant Lubiano mercilessly “kicked” Trooper Little in the head, causing the law enforcement officer serious bodily injury, was sufficient to authorize the jury’s finding that defendant Lubiano was guilty, beyond a reasonable doubt, of aggravated assault upon a peace officer as was charged in the indictment. OCGA § 16-5-21 (a) (2) (b); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Adams v. State, 255 Ga. 356 (338 SE2d 860).

(b) Aggravated Assault (Count 2)

Next, defendant Lubiano “challenges this Court and the State to point to any evidence . . .” showing that he “ ‘did unlawfully make an assault upon the person of William Jackson Tubb with a .357 Magnum revolver, a deadly weapon, by pointing said weapon at said person.’ ”

“ ‘Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he: . . . (3) (i)ntentionally aids or abets in the commission of the crime . . .’ OCGA § 16-2-20 (Code Ann. § 26-801).” Carter v. State, 168 Ga. App. 177 (3), 178 (308 SE2d 438).

Although defendant Lubiano did not point Trooper Little’s “.357 magnum revolver” at William Jackson Tubb and order him to leave the scene, he assisted defendant Murray in obtaining the trooper’s weapon and he took advantage of the aggravated assault upon William Jackson Tubb to flee the scene. This evidence, and other evidence showing defendants’ joint objective of avoiding apprehension, was sufficient to authorize the jury’s finding that defendant Lubiano was guilty, beyond a reasonable doubt, of jointly assaulting William Jackson Tubb with a deadly weapon, as alleged in the indictment. OCGA § 16-5-21 (a) (2); Jackson v. Virginia, 443 U. S. 307, supra; August v. State, 180 Ga. App. 510, 511 (1) (349 SE2d 532). This enumeration is without merit.

2. Defendant Lubiano, in his second enumeration of error, contends “[t]he trial court erred in refusing to give [his] request to charge concerning deadly weapons per se[. He also contends that the trial court’s] recharge to the jury was erroneous and only served to confuse the jury.”

(a) First, defendant Lubiano argues that “[t]he trial court erred in failing to give [his] request to charge concerning feet as not being deadly weapons per se.”

Defendant Lubiano’s eighth request to charge provides as follows: “A person’s arms, if and when used in making an assault upon another person, are not deadly weapons per se, but may or may not be deadly weapons, depending upon the manner in which they are used, and the circumstances of the case. Whether an instrument or a part of a person’s body does or does not have the characteristics of a deadly weapon, allegedly used in making an assault, may be inferred from the nature and extent of the injury, if any, inflicted upon the person allegedly attacked. Whether or not, under all the facts and circumstances of this case, the arms of the defendant, alleged in this bill of indictment to have been used in making an assault upon the alleged victim, did, in fact, constitute deadly weapons as alleged, is a matter to be determined by the jury from the evidence in this case.” (Emphasis supplied.)

“ ‘ “A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.” (Cit.) “ ‘A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.’ (Cit.)” (Cits.)’ Kessel v. State, 236 Ga. 373, 374 (2) (223 SE2d 811) (1976). See also Seawright v. State, 172 Ga. App. 517 (6) (323 SE2d 704) (1984).” Daniels v. State, 184 Ga. App. 689 (1), 690 (362 SE2d 775).

In the case sub judice, the indictment did not allege that defendant Lubiano assaulted Trooper Little with his “arms,” nor was it alleged that defendant Lubiano’s feet were “deadly weapons.” It was alleged and proved, beyond a reasonable doubt, that defendant Lubi-ano assaulted the trooper with his “feet” and that defendant Lubi-ano’s feet were “objects which, when used offensively against a person actually do result in serious bodily injury . . . .” Consequently, since defendant Lubiano’s eighth request to charge was not adjusted to the facts and circumstances of the case sub judice, there was no error in failing to give this instruction.

(b) Next, defendant Lubiano contends “[t] he trial court response and recharge after a question was propounded by the jury was erroneous and confusing.”

During deliberations, the jury “sent the Court the following question . . . : ‘In Count One of the Indictment it says he beat with boot-clad feet and a .357 magnum revolver. In order to be guilty on this Count or not guilty, does it matter whether or not the Officer was struck with both the gun and boot-clad feet or would striking the Officer with boot-clad feet alone constitute the crime of aggravated assault on a peace officer?’ ”

In response, the trial court instructed the jury “that, where the Indictment alleges an aggravated assault in two different manners, in one Count where it’s alleged that it was done in two ways, if the proof is beyond a reasonable doubt that in either of the ways it was done, then that would be sufficient to uphold a verdict of guilty. Now, I charge you, of course, that a person commits aggravated assault when he assaults another person with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. You would look to the evidence in the case and see whether or not that was established beyond a reasonable doubt or not.”

Defendant Lubiano argues that this instruction was “confusing” because the trial court “failed to advise the jury of its duties in determining if ‘boot-clad feet’ . . . were ‘offensive’ weapons as to be contemplated by the statute in issue.” He also argues that the instruction was “erroneous” because it allowed him “to be convicted upon a charge not made — and upon evidence not before the trial jury.” These arguments are without merit.

Defendant Lubiano was indicted under OCGA § 16-5-21 (1) (2), in that he did assault Trooper Little with his feet, causing the trooper “serious bodily injury.” The evidence adduced at trial supported this allegation by proof beyond a reasonable doubt. See Division 1 (a) of this opinion. Further, the trial court’s response accurately informed the jury that an object is an “ ‘offensive’ weapon” when it “is likely to or actually does result in serious bodily injury,” as contemplated by OCGA § 16-5-21 (a) (2).

(c) In his second enumeration of error, defendant Murray challenges the instructions reflected in Division 2 (b) of this opinion, arguing that this “recharge . . . gave rise to a fatal variance.”

We fail to understand how the above instruction gave rise to a “variance.” Nonetheless, we find that the evidence adduced at trial was more than sufficient to authorize the jury’s finding that defendant Murray is guilty, beyond a reasonable doubt, of aggravated assault upon a peace officer, as was charged in Count 1 of the indictment. Jackson v. Virginia, 443 U. S. 307, supra. Further, it is sufficient to say that the trial court’s instruction was responsive to the jury’s inquiry and was an accurate statement of law. Rucker v. State, 177 Ga. App. 779, 781 (3), supra; OCGA § 16-5-21 (a) (2).

3. In his third enumeration, defendant Lubiano contends that the trial court erred in charging the jury upon the issue of conspiracy, arguing that he was not indicted for conspiracy to commit aggravated assault upon Trooper Little or Mr. Tubb. Since “the evidence tended to show [that defendants] acted in concert, conspiracy may be proved though not alleged in the indictment. Greene v. State, 155 Ga. App. 222, 224 (270 SE2d 386); Anderson v. State, 153 Ga. App. 401, 403 (265 SE2d 299); Simpkins v. State, 149 Ga. App. 763, 768 (256 SE2d 63).” Alexander v. State, 186 Ga. App. 787, 789 (3) (368 SE2d 550). The trial court did not err in charging the jury on the issue of conspiracy.

4. Defendant Lubiano challenges in his fourth enumeration and defendant Murray challenges in his first enumeration the trial court’s decision to allow the jury to view a videotape recording of the crime scene. Defendants contend that the adverse prejudicial impact of the videotape outweighed its probative value and argue that the video recording should have been excluded from evidence. We do not agree.

“The videotape [showed the crime scene shortly after the incident and] clearly was relevant. There was no abuse of discretion in the court’s ruling. Hicks v. State, 256 Ga. 715 (13) (352 SE2d 762) (1987); Jones v. State, 250 Ga. 498 (3) (299 SE2d 549) (1983).” Foster v. State, 258 Ga. 736, 740 (7) (374 SE2d 188).

5. In his fifth enumeration, defendant Lubiano contends “[he] was denied a fair and impartial jury when the trial court denied his Motion for Change of Venue.”

“ ‘The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of that discretion. Allen v. State, 235 Ga. 709, 713 (221 SE2d 405) (1975); Jarrell v. State, 234 Ga. 410, 415 (216 SE2d 258) (1975).’ Patterson v. State, 239 Ga. 409, 418 (5) (238 SE2d 2) (1977).” Chancey v. State, 256 Ga. 415, 429 (5), 430 (349 SE2d 717). “In order to prevail on a motion for change of venue, (1) the defendant must show such extensive and prejudicial pretrial publicity that the county in which the crime occurred presumptively is incapable of providing a fair trial to the defendant, or (2) he must establish from the jury selection process itself — the voir dire examination and qualification of prospective jurors — that a change of venue is necessary. Devier v. State, 253 Ga. 604, 608-609 (323 SE2d 150) (1984).” Lee v. State, 258 Ga. 82, 86 (9) (365 SE2d 99).

In the case sub judice, defendant Lubiano argues that extensive pretrial publicity prevented him from receiving a fair trial. In support of his motion, defendant Lubiano filed several television, radio and newspaper reports covering the assault upon Trooper Little. He also included a resolution of the House of Representatives of the State of Georgia, expressing “their deepest and most profound appreciation to Mr. William Jackson Tubb for his outstanding heroism” in assisting Trooper Little; a printed advertisement, compelling television viewers to observe an Atlanta area television station’s report on the Georgia State Patrol’s drug eradication efforts on Georgia’s highways and a videotaped copy of that report. All of this information was disseminated to the public within six weeks of defendant Lubiano’s trial.

A review of this material shows that some of the information did not relate to the assault on Trooper Little and that some of it did not mention defendant Lubiano’s involvement in the crime. However, there is no question that the media portrayed the assault upon Trooper Little as a drug related crime and that the pretrial publicity was ongoing, adverse and widespread. “ ‘However, widespread or even adverse publicity is not in itself grounds for a change of venue. United States v. McNally, 485 F2d 398, 403 (8th Cir. 1973), cert. denied 415 U. S. 978 (1974); Mooney v. State, [243 Ga. 373, 387 (254 SE2d 337)]. On appeal, the impact of media publicity is evaluated by various factors, such as the size of the community and the extent of media coverage (number of articles and their circulation); whether it related to the discovery of the crime (e.g., facts regarding the victim) or to the apprehension or interrogation of the defendant (and whether any publicized confession was admitted at trial); the prominence and content of the reports (e.g., facts vs. speculation and emotionalism, and the accuracy and admission into evidence of those facts); and the time interval between the publicity and the trial. Stroble v. California, 343 U. S. 181, 191-195 (72 SC 599, 96 LE 872) (1952); Mooney v. State, supra, 243 Ga. at 385-387; Brooks v. State, 244 Ga. 574, 578-581 (261 SE2d 379) (1979). . . .’ Kesler v. State, 249 Ga. 462, 471-472 (7) (291 SE2d 497) (1982).” Chancey v. State, 256 Ga. 415, 429 (5), supra.

In the case sub judice, there is no admissible evidence showing the size of the community affected by the pretrial publicity; there were no publicized admissions or confessions of defendants and much of the information reported by the media was accurate, supported by a volume of evidence at trial. For example, there were drugs associated with the assault upon Trooper Little; the trooper was mercilessly beaten; there are a large number of illegal drug arrests on Interstate Highway 75 and the drug related arrests on Interstate 75 are the product of the Georgia State Patrol’s drug eradication effort. Finally, the characterization of William Jackson Tubb as a “hero” is accurate. He selflessly assisted a wounded state trooper on the side of the roadway and risked his life in the process. From this perspective, we cannot say that the pretrial publicity was so extensive and prejudicial as to require a change of venue. Consequently, the trial court did not abuse its discretion in denying defendant Lubiano’s motion for change of venue. See Chancey v. State, 256 Ga. 415, 429 (5), supra.

6. Next, defendant Lubiano contends “[t]he trial court committed prejudicial error when it refused to hold a hearing on [his] Motion to Suppress.”

The record shows that defendant Lubiano filed a motion to suppress evidence several weeks before trial. At a hearing, the trial court denied this motion. Defendant Lubiano now admits that he failed to set forth “any facts supporting [his] allegations that evidence had been illegally seized by the State.” Consequently, the trial court did not err in denying this motion to suppress. OCGA § 17-5-30; Mosier v. State, 160 Ga. App. 415 (2) (287 SE2d 357).

During the morning on the first day of trial, defendant Lubiano filed a “RENEWED MOTION TO SUPPRESS,” alleging facts which were not included in his first motion to suppress. After a jury was selected, the trial court conducted a hearing and denied this motion to suppress, finding it untimely filed.

“Although there is no time limit set out in the statute, for the filing of a motion to suppress, the statute has been interpreted as requiring that the motion be made before the issue is joined. Perryman v. State, 149 Ga. App. 54 (253 SE2d 444) (1979); State v. Shead, 160 Ga. App. 260 (286 SE2d 767) (1981). [The Supreme Court of Georgia has interpreted] this to mean before the defendant enters his written plea.” Waller v. State, 251 Ga. 124, 127 (303 SE2d 437), reversed on other grounds in Waller v. Georgia, 467 U. S. 39 (104 SC 2210, 81 LE2d 31). In the case sub judice, defendant Lubiano entered his written plea on February 18, 1988, over a month prior to trial. Consequently, the trial court did not err in denying defendant Lubiano’s “RENEWED MOTION TO SUPPRESS” on the grounds that it was untimely filed. See Holton v. State, 243 Ga. 312, 316 (3) (253 SE2d 736). Compare Collier v. State, 171 Ga. App. 214 (319 SE2d 51).

7. In his final enumeration of error, defendant Lubiano contends the trial court erred in restricting his voir dire, foreclosing his inquiry “into the [prospective] jurors’ partiality or biases caused by pretrial publicity.”

Defendant Lubiano’s attorney asked a prospective juror whether the juror’s opinion, influenced by pretrial publicity, would require defendant Lubiano to prove that he was not guilty of escaping a police “dragnet” and of doing “something” which caused him to flee authorities. The prospective juror answered affirmatively and the trial court inquired of the prospective juror as follows: “THE COURT: Well, before we go on . . . the law presumes the defendants to be innocent; places the burden on the State to prove their guilt beyond a reasonable doubt. Can you give them the presumption of innocence and require the State to do that? [PROSPECTIVE JUROR]: I think so.” The following then transpired:

“THE COURT: All right. Is there anybody on the jury who cannot, regardless if you have some opinion from the media? Can you set that aside and realize that the accused are presumed innocent by law and that the State has to come in and bring some evidence to convince you beyond a reasonable doubt? Is there anybody that can’t do that? Any problem with doing that with any juror? (No response.)
“THE COURT: All right. Let’s don’t go into those questions again of that sort ....
“[DEFENDANT LUBIANO’S ATTORNEY]: Your Honor, of course, I’m going to except to that.
“THE COURT: All right, you can except to it, but I think we’ve made that abundantly clear and they’ve responded.
“[DEFENDANT LUBIANO’S ATTORNEY]: Am I to understand that I cannot ask a potential juror whether or not that they have an opinion and whether or not they can set it aside? I think I’m entitled —
“THE COURT: You cannot ask each juror from here on out whether or not these defendants are going to have to come forward with some evidence to prove that they’re not guilty, since all of the jurors have just told me, by their failure to respond, that they can all require the State to prove that guilt beyond a reasonable doubt. Therefore, I don’t see any point in us going through that question over and over again.
“[DEFENDANT LUBIANO’S ATTORNEY]: May I ask whether or not, because of what they’ve read or heard, that they have an opinion based upon that, whether or not they can set it aside? They believe that, because Mr. Lubiano has been arrested and is on trial, that he has been involved in this and that the State may not have to overcome the burden that the Court requires it.
“THE COURT: I’ve already asked them and they’ve already said that they don’t have any opinion of their guilt or innocence. If I’m wrong about that, Ladies and Gentlemen, correct me now and raise your hand. But I understood, from your answer to my question, that you had no opinion of their guilt or innocence and you understand the State has to prove their guilt. Is there any question about that by anybody? (No response.)
“THE COURT: All right. Let’s don’t go into those things over and over and over again because I think we’ve made that clear and I think they’ve responded accordingly.”
“The conduct of voir dire is within the sound discretion of the trial court, and this discretion will not be disturbed on appeal unless manifestly abused. Messer v. State, 247 Ga. 316, 323 (5) (276 SE2d 15) (1981).” Blanco v. State, 185 Ga. App. 535 (1) (364 SE2d 903). In the case sub judice, we find no abuse in the trial court’s direction of defendant Lubiano’s attorney’s conduct during voir dire. The trial court’s inquiry and special instructions were sufficient to allow the discovery of bias, prejudice and prior opinion. See Curry v. State, 255 Ga. 215, 218 (2b) (336 SE2d 762).

Decided June 26, 1989

Rehearing denied July 13, 1989.

Bruce S. Harvey, for appellant (case no. A89A0336).

Ralph J. Hunstein, for appellant (case no. A89A0337).

Jack 0. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

Judgments affirmed.

Beasley, J., concurs. Carley, C. J., concurs in Divisions 1, 2, 3, 4, 5, 6 and in the judgments.

       During the charge conference, defendant Lubiano’s defense counsel stated that he “modified the substance of [this] charge [by deleting the words,] ‘A person’s arms’ — and [substituting] ‘fists and feet’ to conform to the evidence . . . .” Defendant Lubiano’s defense counsel also stated that he “modified” his request to charge “to say . . . ‘offensive object,’ ” instead of “deadly weapon.” These verbal “modifications” amounted to an oral request to charge which the trial court was not required to give. Defendant Lubiano should have made a timely written substituted request, incorporating the “modifications” and deleting any formerly submitted undesired phraseology, for the trial court’s consideration.


text:
    A89A0504.
    MULLENBERG et al. v. K. J. SAXON CONSTRUCTION COMPANY.
    (384 SE2d 418)
   Pope, Judge.

Appellee initiated this action against appellants seeking recovery of property damages following an accident between appellee’s dump truck and an eighteen-wheel truck owned by appellant Rowe & Long Transport Company and driven by appellant Mullenberg. The jury initially returned a verdict of $25,963.13 for appellee. The case was retried on the issue of damages only and the jury returned a verdict of $18,000. Appellants enumerate two enumerations on appeal, both of which concern the effect of payment of uninsured motorist benefits to appellee by its uninsured motorist carrier (hereinafter “UMC”).

1. Appellants first argue that the trial court erred in denying their motion for directed verdict based on the theory that part of the claim for damages must be brought by appellee’s UMC, not appellee, because appellee’s UMC had partially compensated appellee for its losses pursuant to a policy of insurance providing uninsured motorist benefits to appellee.

“The obligation of the insurance carrier providing uninsured motorist coverage as a part of its liability insurance coverage on the automobile of the insured person is a contractual obligation arising under the policy of insurance. . . . [P]ayments made by the insurance company under the policy are not payments made by or on behalf of the uninsured-motorist tortfeasor, and do not affect the uninsured motorist’s liability to pay the damages recovered in the lawsuit against him. Such payments do not discharge pro tanto the liability of the uninsured motorist and cannot be pleaded in defense of an action by the injured party against the uninsured motorist. Thompson v. Milam, 115 Ga. App. 396 (154 SE2d 721) [(1967)].” State Farm &c. Ins. Co. v. Bd. of Regents, 226 Ga. 310, 311 (174 SE2d 920) (1970).

Decided June 26, 1989

Rehearing denied July 13, 1989

Dillard & Landers, Terry A. Dillard, Bryant H. Bower, Jr., for appellants.

J. Scott Vaughan, for appellee.

Appellants also rely on OCGA § 33-7-11, which provides that the insurer paying uninsured motorist claims is subrogated to the rights of its insured to whom the claim was paid, to the extent of the payment made. However, in construing that section this court, quoting White v. Nationwide Mut. Ins. Co., 361 F2d 785, 787 (4th Cir. 1966), has held that “no paramount right of subrogation arises until the insured has received full satisfaction of his judgment against the uninsured driver.” Cherokee Ins. Co. v. Lewis, 187 Ga. App. 628, 630 (371 SE2d 103) (1988), rev’d on other grounds, 258 Ga. 839 (375 SE2d 850) (1989). “ ‘[W]here an uninsured motorist is involved, the full amount of economic and noneconomic losses must be paid to the injured insured by his insurer and/or by the tortfeasor before the insurer is sub-rogated to the rights of its insured.’ ” Cherokee at 630, quoting Travelers Ins. Co. v. Commercial Union Ins. Co, 176 Ga. App. 305, 306-307 (335 SE2d 681) (1985). Thus, in our opinion, the fact that the appellee received partial payment from its UMC for the property damages it incurred does not preclude it from maintaining an action against the tortfeasors for the full amount of losses suffered by appellee. See also Thompson v. Milam, 115 Ga. App. 396 (154 SE2d 721) (1967). Consequently this enumeration is without merit.

2. We also find no merit to appellants’ contention that the trial court erred in refusing to charge the jury concerning appellee’s receipt of benefits from its UMC. Since appellee’s cause of action arose prior to the effective date of OCGA § 51-12-1 (b), evidence of appellee’s receipt of collateral benefits, from whatever source, was inadmissible. Polito v. Holland, 258 Ga. 54 (3) (365 SE2d 273) (1988). Consequently, the trial court correctly refused to instruct the jury that ap-pellee had received such benefits from its UMC.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0711.
    GRINER v. THE STATE.
    (384 SE2d 398)
   Benham, Judge.

George B. Griner, Jr., appeals his jury conviction of driving under the influence of alcohol.

1. Appellant contends that the trial court erred in not granting his two motions for a directed verdict of acquittal. We disagree. The evidence showed that on February 14, 1987, at 4:00 a.m., a member of Gwinnett County’s DUI Task Force clocked on her radar appellant driving 72 mph in a 50-mph-zone. She followed appellant for approximately one-quarter mile on Peachtree Industrial Boulevard and noticed his vehicle veer over the line separating the lanes and continue to straddle the line until he stopped at a service station in response to the officer’s blue light. The officer noted that appellant had a strong odor of alcohol, slurred speech, bloodshot eyes, and a fatigued look. After registering positive on the alcosensor test, appellant was asked to recite the alphabet and he could not do so without making mistakes. The officer then took appellant to the police department and attempted to administer an intoximeter test, which was not completed due to appellant’s belching and subsequent refusal to be retested. At trial, the officer testified that, based on her observations, appellant was a less safe driver.

OCGA § 40-6-391 (a) provides that a person shall not drive or be in actual physical control of any moving vehicle while under the influence of any alcohol to a degree which renders him incapable of driving safely. There was evidence that appellant was guilty of violating that statute section, and therefore a verdict of acquittal was not demanded. OCGA § 17-9-1 (a). “If there is any evidence of guilt, it is for the jury to decide whether that evidence ... is sufficient to warrant a conviction. [Cits.]” Castillo v. State, 166 Ga. App. 817 (1) (305 SE2d 629) (1983). The jury was authorized to find that appellant was guilty beyond a reasonable doubt of driving under the influence, and so the motions for directed verdict of acquittal were properly denied. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McKenzie v. State, 187 Ga. App. 840 (1) (371 SE2d 869) (1988); Howell v. State, 179 Ga. App. 632 (347 SE2d 358) (1986).

2. Appellant contends the trial court erred in failing to grant a mistrial when a juror was found to be sleeping on two different occasions. The record shows that on the two occasions the trial judge discovered a juror asleep, he immediately called a recess and informed the attorneys of the situation. The record is silent as to what instructions he gave the jury as to this matter. “ ‘(T)he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.’ ” In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988). Since the record shows that the trial judge, upon noticing a juror sleeping, awakened him and called a recess and that no further instructions were requested by counsel, the trial court acted properly under Foster v. State, 255 Ga. 425 (2) (339 SE2d 256) (1986). Hence, this enumeration is without merit.

Decided June 20, 1989

Rehearing denied July 13, 1989

James C. Strayhorn, Michael J. Kean, for appellant.

Gerald N. Blaney, Solicitor, Faye S. Pous, David M. Fuller, Assistant Solicitors, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0854, A89A0855.
    ROYAL LEPAGE REAL ESTATE SERVICES OF ATLANTA, INC. v. SPALDING PARTNERS, LTD. (two cases).
    (384 SE2d 424)
   Banke, Presiding Judge.

The appellant, a real estate brokerage company, entered into a one-year exclusive listing contract with the appellee pursuant to which it undertook to obtain tenants for the appellee’s new office building. Seven months into the arrangement, the appellee cancelled the agreement. The appellant thereafter demanded to be paid commissions for any leases executed by tenants whom it had previously contacted, prompting the appellee to file the present action to obtain a judicial declaration that the appellant was not owed such commissions. The appellee subsequently obtained a default judgment in the action based on the appellant’s failure to file defensive pleadings in a timely manner. The case is before us pursuant to our grant of the appellant’s application for a discretionary appeal from the denial of its motion to set aside the default judgment. The appellant also filed a direct appeal to this court from the denial of its motion for new trial. Held:

1. The appellant contends that the default judgment should be set aside pursuant to OCGA § 9-11-60 (d) (3) on the ground that the trial court was without jurisdiction to grant the declaratory relief sought by the appellee. We agree.

“ ‘The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. [Citations omitted.]’ [Cit.]” Loyd v. City of Irwinton, 142 Ga. App. 626, 627 (236 SE2d 889) (1977).

Decided June 28, 1989

Rehearing denied July 13, 1989

McCullough & Pane, John G. McCullough, for appellant.

Michael N. Mantegna, for appellee.

At the time the appellee filed its complaint for declaratory relief, it had already acted to repudiate the contract, and the only existing controversy between the parties concerned the validity of the appellant’s claim for commissions for services previously rendered. See Mendel v. Pinkard, 217 Ga. 562 (1) (123 SE2d 770) (1962). This is clearly a dispute which can be resolved in subsequent litigation to collect such commissions. It is apparent that what the appellee is seeking in the present action is an advisory opinion as to which party would prevail on the merits in such litigation and that it is not in need of judicial guidance to enable it to avoid incurring additional liability or jeopardizing its rights. The trial court did not have jurisdiction to issue such an advisory opinion, and the motion to set aside the judgment should consequently have been granted. See Oxford Fin. Co. v. Dennis, 185 Ga. App. 177 (363 SE2d 614) (1987).

2. Inasmuch as a motion for new trial is not a proper vehicle for attacking the validity of a default judgment, see Pillow v. Seymour, 255 Ga. 683 (341 SE2d 447) (1986), the appellant’s motion for new trial did not operate to extend the time for filing a direct appeal. See Leader Nat. Ins. Co. v. Martin, 185 Ga. App. 27, 29 (1) (363 SE2d 281) (1987). Consequently, the appeal from the denial of the motion for new trial is dismissed.

Appeal dismissed in Case No. A89A0854. Judgment reversed in Case No. A89A0855.

Sognier and Pope, JJ., concur.


text:
    A89A1022.
    COLEMAN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (384 SE2d 399)
   Banke, Presiding Judge.

Appellant Franklin Delano Coleman was involved in a collision while driving his Nissan pickup truck, accompanied by his son, appellant John A. Coleman. Both were severely injured; and the driver of the other vehicle, Rex Phillips, was killed. The appellants received $25,000 apiece from Phillips’ liability insurer and executed a covenant in favor of the administrator of his estate agreeing not to enforce against the estate any judgment obtained in subsequent litigation arising from the accident. The appellants then filed the present action against Phillips’ administrator, serving, as uninsured/underinsured motorist carriers, the three appellees herein, to wit: State Farm Mutual Automobile Insurance Company, the Travelers Insurance Company, and Southern General Insurance Company.

State Farm had issued a policy of motor vehicle accident insurance to Franklin Coleman covering his Nissan pickup truck; Southern General had issued to him a policy of motor vehicle accident insurance covering another vehicle; and Travelers had issued a policy of motor vehicle accident insurance to John Coleman covering the three separate vehicles owned by him. In response to cross-motions for summary judgment filed by the parties, the trial court ruled that the uninsured/underinsured motorist coverage provided by the Travelers policy could not be “stacked” and that such coverage did not, in any event, extend to Franklin Coleman. The appellants challenge these rulings in this appeal. In addition, they contend that the trial court erred in granting summary judgment to Southern General with respect to John Coleman’s claim for uninsured/underinsured motorist benefits under its policy because Southern General failed to file a timely motion for such relief. They further contend that the court erred in considering a brief submitted by Southern General in opposition to their motion for summary judgment where the brief was not submitted in accordance with the time requirements imposed by Rule 6.2 of the Uniform State Court Rules. Held:

1. The trial court did not err in concluding that the multiple vehicle coverage available to John Coleman under the Travelers policy could not be stacked. “[W]here there is but one policy insuring multiple vehicles, as a general rule, no such stacking or pyramiding is permitted.” Georgia Farm Bureau Mut. Ins. Co. v. Owens, 178 Ga. App. 446 (343 SE2d 699) (1986). While an exception may arise where the policy contains a “separability clause,” specifying that its terms shall apply separately to each insured vehicle, Barnes v. Govt. Employees Ins. Co., 142 Ga. App. 377, 379-380 (236 SE2d 9) (1977), the existence of such a clause will not be sufficient to create an ambiguity where the policy further specifies that, regardless of the number of vehicles insured, the limits of coverage set forth in the policy declarations as being applicable to “each person” shall constitute the limit of the company’s liability for bodily injuries sustained by any one insured person as the result of any one accident. Id. at 380. Because the uninsured motorist endorsement appearing in the Travelers’ policy contains precisely such language, the trial court correctly concluded that the stacking of this coverage was not permitted. We reject the appellant’s contention that this unambiguous policy language was negated or rendered ambiguous by an amendatory endorsement dealing with the company’s liability in the case of multiple policies issued by Travelers or its member companies.

2. The trial court was also correct in its conclusion that Franklin Coleman was not covered as a “relative” of John Coleman under the uninsured motorist provisions of the Travelers policy. Consistent with the requirements of OCGA § 33-7-11 (b) (1) (B), the term “relative” was defined in the policy to mean “your [i.e., the named insured’s] relative residing in your household.” It is. apparent without dispute that Franklin and John Coleman were not residents of the same household. Thus, Franklin could not be considered an insured under the terms of the Travelers policy unless the policy definition of “relative” were disregarded. The appellants contend that we should do precisely that because the definition was “hidden” inside a folded page located at the end of the policy. We find this contention to be. entirely without merit.

The first paragraph of the policy is entitled “DEFINITIONS” and specifies: “Certain words, when printed in italics, have special meaning when used in this policy. The definitions are located on the flap at the end of the policy.” The word “relative,” as used in the uninsured motorist coverage endorsement, was italicized. It is apparent that the reason the definitions of such words were placed on a folded page at the end of the policy was to enable the reader to leave that page open and unfolded so as to be able to refer to it conveniently while reading the other pages, without having to flip back and forth to the definitions. Viewed in this context, the definition of “relative” was neither obscured nor hidden but, if anything, was highlighted. We also reject the appellants’ additional contention that the uninsured motorist endorsement was ultimately amended in such a way as to alter the definition of “relative” as it appeared on the folded definitions page.

3. The appellants’ contention that Southern General failed to file a timely motion for summary judgment is not borne out by the record, which reflects that Southern General filed a motion for summary judgment on October 4, 1988, that the appellants filed a response on October 20, 1988, and that the trial court granted the motion on November 11, 1988.

The appellants’ contention that the trial court should not have considered Southern General’s brief filed in opposition to their motion for summary judgment because it was not filed within the 30-day time limitation set forth in Rule 6.2 of the Uniform State Court Rules is also without merit. “There is no such thing as a ‘default summary judgment.’ By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. ‘A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.’ [Cits.]” McGivern v. First Capital Income Prop., 188 Ga. App. 716, 717 (373 SE2d 817) (1988).

Decided June 21, 1989

Rehearing denied July 13, 1989

Didio & Broome, Steve A. Didio, for appellants.

Downey, Cleveland, Parker & Williams, Joseph C. Parker, Y. Kevin Williams, for appellees.

The appellants’ claim against Southern General, like their claims against the other appellees, involves no factual dispute but simply a dispute over the construction of a written contract. See generally OCGA § 13-2-1; Travelers Ins. Co. v. Blakey, 255 Ga. 699 (342 SE2d 308) (1986). The correctness of the trial court’s ruling on this dispute is not affected by whether it did or did not consider Southern General’s brief in response to the appellants’ motion for summary judgment.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A1037.
    CHATMAN v. BLASSINGAME et al.
    (384 SE2d 433)
   Deen, Presiding Judge.

The appellant, Linda Chatman, was involved in an automobile collision at an intersection with another vehicle driven by the appel-lee, Nevonia Blassingame, and owned by the other appellee, Thelma Blassingame. Chatman sued the Blassingames for her injuries, and they counterclaimed. The matter proceeded to trial, and the jury returned a verdict finding both parties negligent and awarding no damages to either. On appeal, Chatman contends that the verdict is contrary to the law and the facts, and that the trial court erred in giving a particular jury charge. Held:

1. Chatman was driving south on a street intersected by another street that was controlled by stop signs. She claimed to be driving 30 miles per hour as she approached the intersection, and denied seeing Blassingame’s vehicle crossing the intersection until it was too late to stop or avoid it. James Brannon was stopped on the intersecting road opposite to Blassingame, waiting to turn left. He motioned for Blas-singame to cross the intersection, and as she proceeded forward Bran-non looked to his left and saw Chatman’s vehicle. He noticed that the brakes locked down on Chatman’s car just before it struck the Blas-singame car. Blassingame testified that after Brannon motioned for her to go ahead, she looked both ways, saw no vehicle, and entered the intersection; she did not see Chatman’s vehicle until the collision.

Decided July 6, 1989

Rehearing denied July 13, 1989

Waddell, Emerson, George & Buice, B. Carl Buice, for appellant.

Martin, Snow, Grant & Napier, Cubbedge Snow III, for appel-lees.

We find this evidence sufficient to authorize finding both parties equally negligent and thus equally unentitled to recover. Where there is any evidence to support the verdict, this court will not disturb the verdict. King v. Thompkins, 186 Ga. App. 12, 14 (366 SE2d 340) (1988).

2. The trial court instructed the jury that “a person operating motor vehicles on the streets and highways of the State is under a duty to keep a lookout ahead and see things that come within view, or that should be seen.” Chatman contends that this jury charge incorrectly placed an absolute duty upon the driver, rather than a duty of ordinary care. Considering the fact that just prior to giving this charge, the trial court had also instructed the jury about the duty to exercise ordinary care for one’s own safety and for the safety of others, we are unpersuaded that the jury was misled or confused as to the appropriate duty of care. Considering the jury charge as a whole, there was no error. See Rosenthal v. Hudson, 183 Ga. App. 712 (5) (360 SE2d 15) (1987).

Judgment affirmed.

Birdsong and Benham, JJ., concur.