text:
    A89A1598.
    REDDELL et al. v. ALLEN et al.
    (386 SE2d 735)
   McMurray, Presiding Judge.

Plaintiffs Charles and Nona Reddell filed this action for damages against defendants Harold and Carolyn Allen. The original complaint alleges that plaintiff Nona Reddell was injured in a motor vehicle collision with a 1980 Volkswagen negligently operated by defendants’ son Yancy Allen and that the proximate cause of the injuries to plaintiff Nona Reddell was the negligence of defendants in entrusting the 1980 Volkswagen to Yancy Allen. By amendment to their complaint, plaintiffs added general negligence as an alternative basis for their claim. This appeal is taken from the grant of defendants’ motion for summary judgment. Held:

1. A person who may be held liable for negligent entrusting of a vehicle to another is ordinarily the owner of the vehicle. However, such liability can also be imposed upon any other person who has control over the use of the vehicle and is negligent in entrusting it to another. Jones v. Cloud, 119 Ga. App. 697, 701 (1b) (168 SE2d 598). Entrusting of a vehicle may be accomplished by sale as well as by loan. Pugmire Lincoln-Mercury v. Sorrells, 142 Ga. App. 444, 448 (236 SE2d 113).

In the case sub judice, defendants’ uncontroverted evidence shows that they never had any control over the vehicle driven by their son in the collision at issue. While plaintiffs contend that defendants sold the vehicle to their son and also cosigned and guaranteed the note financing their son’s purchase of the vehicle, plaintiffs fail to present any evidence in support of these contentions. The uncontradicted affidavits of defendants and of their son, Yancy Allen, show that defendants had never owned the vehicle driven by their son and that Yancy Allen alone had signed the installment note financing his purchase of the vehicle. Insofar as plaintiffs’ claim was predicated on a theory of negligent entrustment, defendants’ uncontroverted evidence negated an essential element of plaintiffs’ case. Compare Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637).

Nor may plaintiffs prevail on a general negligence theory. Generally, there is no duty to control the conduct of third persons to prevent them from causing physical harm to others. While an exception to the general rule has been acknowledged in Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693), that decision was not the creation of a “new tort” but the application of traditional tort principles of negligence which are not applicable to the case sub judice. Contrary to plaintiffs’ assertions, the defendants have not, by any affirmative act, removed themselves from the general rule. Nor are defendants liable for the torts of their son solely because of the parent-child relationship. Mayer v. Self, 178 Ga. App. 94 (1) (341 SE2d 924). The superior court did not err in granting defendants’ motion for summary judgment.

2. By their remaining enumeration of error, plaintiffs complain that they were denied the opportunity to make out their case due to scheduling difficulties which prevented the taking of certain depositions. Plaintiffs contend that the superior court erred in denying their motion for continuance of the summary judgment motion hearing and in prematurely ruling upon defendants’ motion for summary judgment. However, the record designated by plaintiffs does not contain their motion for continuance, nor does the record support the factual assertions stated in plaintiffs’ brief. Under these circumstances, we must presume that the superior court did not err in denying plaintiffs’ motion for continuance and in ruling upon defendants’ motion for summary judgment. Garrison v. Dept. of Human Resources, 184 Ga. App. 449 (1) (361 SE2d 860).

3. Defendants’ motion for the imposition of a penalty for frivolous appeal pursuant to Rule 26 (b) of the Rules of the Court of Appeals of the State of Georgia is denied.

Judgment affirmed.

Corley, C. J., and Beasley, J., concur.

Decided October 3, 1989.

Richard D. Phillips, Robert D. Pope, for appellants.

Young, Young & Clyatt, James B. Thagard, for appellees.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A0908.
    DUBOSE v. RICHARDSON.
    (387 SE2d 156)
   Carley, Chief Judge.

Insofar as they are relevant to this appeal, the facts in this adoption case are as follows: Appellant is the step-father of a minor child. Appellee is the natural father of the child. Appellant filed a petition to adopt the child, alleging that the surrender or termination of appellee’s parental rights was not required because appellee had failed significantly during the preceding year to provide support for the child as required by judicial decree. See OCGA § 19-8-6 (b) (2). Appellee opposed the adoption. At the hearing, appellant produced evidence that, in the preceeding year, appellee had not paid any court-ordered child support. After appellant had presented his evidence, the trial court involuntarily dismissed the adoption proceeding pursuant to OCGA § 9-11-41 (b). It is from this involuntary dismissal order that appellant brings this appeal.

In its order, the trial court found that “there has been a significant failure of support as required by the case law. [Cit.]” The evidence adduced by appellant would certainly authorize, if not demand, such a finding. Appellee had paid no court-ordered child support whatsoever during the relevant one-year period. “In determining whether ‘significant’ steps have been taken with regard to support . . ., ‘sporadic and de minimis’ efforts do not require the court to find that there have been significant steps. [Cits.]” In re J. S. J., 180 Ga. App. 873, 875 (3) (350 SE2d 843) (1986).

However, the trial court also concluded that, “[s]ince [appellee] has not consented to the instant adoption, it is incumbent upon the trial court to find that he has abandoned his child in order to terminate his parental rights and grant the adoption petition. Where there is no consent and no abandonment, the court is required to deny the adoption. [Cit.]” This conclusion is erroneous in a case, such as this, where it is the step-parent who seeks to adopt the child pursuant to subsection (b) of OCGA § 19-8-6. “A finding of abandonment pursuant to OCGA § 19-8-6 (a) is not a prerequisite to a consideration of the elements of Section 19-8-6 (b). Abandonment is a separate issue from the failure to pay support .... [Cits.] . . . . [T]o the extent that the trial court. . . require [d] proof of [appellee’s] abandonment in addition to proof of [his] significant failure to support as set out in OCGA § 19-8-6 (b)[,]” it erred. In re J. S. J., supra at 873, 874. Compare Tapley v. Veal, 182 Ga. App. 880 (357 SE2d 268) (1987) (adoption pursuant to OCGA § 9-8-6 (a)).

Decided October 4, 1989.

Custer, Hill & Clark, Douglas A. Hill, for appellant.

Mary M. Oliver, for appellee.

If appellee had failed significantly to support the child, the trial court erred in granting the involuntary dismissal on the basis that he had nevertheless not abandoned her. “It thus appears that the trial court’s order was based upon misinterpretation of the law and the case must be remanded for further consideration.” In re J. S. J., supra at 875.

Judgment reversed and case remanded for proceedings consistent with this opinion.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0987.
    PALMER v. BARNES et al.
    (387 SE2d 44)
   Carley, Chief Judge.

Appellant-plaintiff brought suit, seeking to recover damages for the injuries that he allegedly incurred as the result of an automobile collision. The case was tried before a jury and the following verdict was returned: “We, the jury, find for [appellant] and award $0 in general damages.” Appellant appeals from the judgment that was entered on this verdict.

Appellant’s sole contention is that the verdict is void and that the trial court erred in entering judgment thereon. “[A] verdict which is not responsive to the issues tried is void. ‘(T)he verdict must comprehend the whole issue or issues submitted to the Jury in the particular cause; otherwise, the judgment founded on it should be reversed. (Cits.)’ [Cits.]” Rucker v. Camden Tel. &c. Co., 181 Ga. App. 504, 506 (353 SE2d 50) (1987).

However, here, unlike in Rucker, supra, the verdict is complete and susceptible to a reasonable ascertainment. The jury, as it was authorized under the evidence to do, apparently concluded that appellant had not sustained any compensable damages as the proximate result of the collision. The jury’s handwritten entry of “$0” is a definite sum and, therefore, the verdict is not void for incompleteness or uncertainty. “[S]ince no damages were assessed against [appellee], he was absolved from any liability in the case, [Cits.]” McKay v. Hall, 147 Ga. App. 146 (248 SE2d 210) (1978). The poll conducted of the individual jurors shows that the verdict follows “ ‘the true meaning and intent of the finding of the jury. (Cit.)’ [Cit.]” Rucker v. Camden Tel. &c. Co., supra at 506. The trial court did not err in entering judgment on the verdict.

Decided October 4, 1989.

Alfred F. Zachry, for appellant.

Edward L. Long, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1090.
    CANTRELL v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    (387 SE2d 42)
   McMurray, Presiding Judge.

In July of 1981, plaintiff Cantrell purchased a mobile homeowners insurance policy from defendant Nationwide Mutual Fire Insurance Company. At that time, the mobile home was situated inside a mobile home park in Gwinnett County within 50 feet of a fire hydrant. In September of 1986, plaintiff had the mobile home moved to a two-acre tract of land located on a dirt road in Hall County about one mile away from the nearest fire hydrant. Plaintiff did not notify defendant of the move prior to the destruction of the mobile home and its contents by fire on December 27, 1986.

Plaintiff filed a claim with defendant for damage to the mobile home and its contents. The claim was denied because plaintiff had not notified defendant that the mobile home had been moved from its original location as listed in the insurance policy.

Plaintiff filed this action alleging that the insurance policy covering the mobile home does not provide any specification or condition requiring that a change of location must or shall be reported to defendant as a condition of coverage, that the denial of coverage is not legally or factually proper, and that defendant’s refusal of plaintiff’s formal demand for payment was in bad faith. Plaintiff sought a judgment under various portions of the insurance policy for damage to the mobile home, destruction of personal property and incidental expenses, plus an additional award for bad faith and attorney fees.

Following discovery, defendant moved for summary judgment. Plaintiff appeals from the grant of defendant’s motion for summary judgment. Held:

The insurance policy states that “We cover: (1) the mobile home on the residence premises listed in this policy used mainly as a private residence.” “Residence premises” is defined as “the mobile home, other structures and grounds listed in this policy.” When these two policy provisions are considered together by substituting the contractual definition of “residence premises” for that term in the coverage provision an ambiguity in the policy is exposed. “Ambiguity in an insurance policy may be defined ‘ “as duplicity, indistinctness, an uncertainty of meaning or expression.” ’ Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298) (1931).” Alley v. Great American Ins. Co., 160 Ga. App. 597, 599 (287 SE2d 613). “In construing an insurance contract the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean. Where such a provision is susceptible of two or more interpretations, the courts will construe it most favorably to the insured. U. S. Fire Ins. Co. v. Hilde, 172 Ga. App. 161 (322 SE2d 285).” Gulf Ins. Co. v. Mathis, 183 Ga. App. 323, 324, 325 (358 SE2d 850).

Decided October 4, 1989.

Davis, Sissel & Williams, Kenneth M. Sissel, for appellant.

Gregg P. Counts, for appellee.

By stating that the residence premises means, “the mobile home . . .” (which is emphasized by the use of bold type) and failing to limit coverage to one location in plain language, the policy could easily suggest to the reasonable layman policyholder that coverage is provided for the mobile home without reference to location. Since mobile homes are indeed mobile, such a reading of the policy language is not unreasonable.

Defendant also relies upon the statement on the declarations page that: “The residence premises covered by this policy is located at the above mailing address unless otherwise shown.” This language, however, fails to make coverage conditional on location and may be viewed as relating only to identification of the mobile home.

Construing the language of the policy most favorably to plaintiff, we find that coverage of plaintiff’s mobile home is not conditioned on location. Therefore, the state court erred in granting summary judgment to defendant.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1105.
    KEYS v. ANKERICH et al.
    (386 SE2d 736)
   Carley, Chief Judge.

Appellant is the natural mother of a minor child. Appellees are the paternal grandparents of the child. In 1985, permanent custody of the child was awarded to appellees. Appellant was awarded visitation rights and was required to pay $15 per week in child support. Two years later, appellees initiated the instant adoption proceedings. In their petition, appellees alleged that appellant’s consent was unnecessary because of her significant failure in the preceding year to pay the court-ordered child support. At the hearing on appellees’ petition, appellant conceded that she had not made any court-ordered support payments during the relevant time period. However, she did offer evidence purporting to justify her failure to have done so. After conducting the hearing, the trial court entered a decree of adoption. Appellant appeals from that order.

1. “Under the proper construction of [OCGA § 19-8-6 (b)], an order granting an adoption need only contain specific and articulated findings that the parent ‘has failed significantly’ for a one year period to communicate with or provide support for his child and that the adoption would be in the child’s ‘best interest.’ These findings were made in the instant case.” Kirkland v. Lee, 160 Ga. App. 446, 450 (1) (287 SE2d 365) (1981). Accordingly, there is no procedural error because of the absence in the trial court’s order of a specific finding on the issue of appellant’s justification for her failure to have paid the court-ordered support. Under OCGA § 19-8-6 (b), there is no “need for a specific finding on the issue of the parent’s ‘justifiable cause’ for the failure when a finding that the adoption would be in the ‘best interest of the child’ has otherwise been made.” (Emphasis in original.) Kirkland v. Lee, supra at 449-450 (1).

2. “[N]o trial court should grant and no appellate court should affirm an order of adoption where the uncontroverted evidence demands a finding that the natural parent was entirely blameless in failing to communicate with or to provide support for his child. . . . Citing evidence to support the assertion that he was ‘justified,’ the natural parent is entitled to enumerate as error on appeal the trial court’s evidentiary finding that it was in the ‘best interest of the child’ to have the parental relationship terminated.” Kirkland v. Lee, supra at 450 (1).

The evidence cited by appellant does not demand a finding that she was entirely blameless in failing to pay the court-ordered child support. Such evidence as appellant cites is either not uncontroverted or fails to show any legally recognizable justification for her failure. Accordingly, the trial court was authorized to disbelieve appellant’s excuses in some respects and to find that her excuses evidenced the consequences of her own voluntary actions in other respects. See generally Boyd v. Harvey, 173 Ga. App. 581 (327 SE2d 551) (1985). “The trial judge, who has the opportunity to observe the adults and children involved in a proceeding for adoption, and to listen to their testimony, has a wide discretion in determining whether the petition should be granted, and if the judgment is supported by any substantial evidence it should be affirmed by this court.” Weaver v. Deen, 151 Ga. App. 152 (259 SE2d 156) (1979). “ ‘It is well settled that no person can object to the natural consequences of his own act voluntarily performed.’ [Cit.]” Kirkland v. Lee, supra at 451 (1). Here, as in In the Interest of C. D. B., 182 Ga. App. 263, 264 (3) (355 SE2d 759) (1987), there was clear and convincing evidence authorizing “the trial court to find that appellant had failed significantly for the year prior to the filing of the adoption petition to provide court-ordered support, and that the adoption is for the best interests of the child. [Cit.]”

Decided October 4, 1989.

Charles D. Strickland, for appellant.

Eugene W. Harper, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A89A1454
    HOPKINS v. FIRST UNION BANK OF SAVANNAH.
    (387 SE2d 144)
   Birdsong, Judge.

This is an appeal from the judgment of the trial court against appellant/plaintiff Elsie Jones Hopkins and in favor of appellee/defendant First Union Bank of Savannah.

The pretrial order directed “that by stipulation [p]laintiff is restricted at trial to pursuing causes of action for wrongful attempted repossession and intentional infliction of emotional distress.”

Appellant purchased an automobile and fell behind in making payments. Appellant was given two payment extensions by the appellee bank. She moved frequently and the bank had certain difficulty in contacting her. The bank turned the account over to its outside adjuster (assistant cashier), Robert Evans, who made several unsuccessful attempts to contact appellant either to obtain account payment or automobile repossession. On Christmas Day of 1986, Evans located the car at the home of appellant’s parents. He attempted to repossess the car and his efforts were resisted by five or six people, including members of appellant’s family. Ultimately Evans freed himself from an entanglement of people and went to his car. He displayed a gun which he kept in the car and was able to drive away without further incident. Evans subsequently called the police and returned to the scene.

The circumstances surrounding the repossession attempt and the alleged physical confrontation were contested at trial. Appellant testified she was scared, embarrassed and humiliated by the incident. However, she made several admissions while testifying at trial, including that she returned to the house after moving the car, did not participate in the fighting in the yard, did not see how the fighting started, never personally observed the appellant with a gun in his hand, was never hit by Evans, was never subjected to racial slurs or called nasty names by Evans, although he used bad words, was never placed in danger by Evans, and has never had to consult with a psychiatrist or psychologist or suffered a nervous breakdown due to the incident. Held:

1. Appellant asserts the trial court’s judgment should be reversed because the verdict clearly was against the weight of the evidence on the issue of “breach of peace.” We disagree. The term “breach of the peace” involves a legal concept with shifting boundaries not unlike the relatively elastic legal concept of “probable cause.” Thus, “[a]ny attempt to define [precisely] what constitutes a breach of the peace will necessarily be under-inclusive,” Dobbs, Ga. Enforcement of Security Interests in Personal Property § 4-3, and may require tailoring before it may be appropriately used as a charge in a given case. See generally Stull v. State, 230 Ga. 99, 104 (196 SE2d 7).

As a general rule a breach of the peace, as at common law, may be defined “as a violation or disturbance of the public tranquility and order.” Sanders v. City of Columbus, 140 Ga. App. 441, 443 (231 SE2d 473); cf. Deavers v. Standridge, 144 Ga. App. 673, 675 (242 SE2d 331) (affirming the judgment in a case where the judge charged that the “ ‘term breach of the peace is a general term and includes all violations of the public peace or order or decorum’ ”).

“The use of force is a breach of the peace.” James, 1 Ga. Creditors’ Rights § 4.03 (A) (1). “[A] breach of the peace may consist of either actual physical force or constructive force, such as threats of violence or intimidation to compel the submission of a debtor against his will to the appropriation of what he construes to be his property. . . . Thus, for example ... a threat of violence or an act likely to produce violence may . . . constitute such a breach.” Dobbs, supra at § 4-3. Moreover, “[u]nder our criminal law, abusive and insulting language [‘fighting words’] constitutes a breach of the peace if there is an accompanying incitement to immediate violence.” Deavers, supra at 674; OCGA § 16-11-39 (1).

We further agree with “most courts [which] find a breach of peace by any creditor who repossesses over the unequivocal oral protest of the defaulting debtor.” Deavers, supra at 675 (recognizing but declining to adopt this precedent at the time); James, supra at § 4.03 (A) (2) (b). “[I]f collateral, such as a car, is on the streets or in a parking lot, no breach of peace will occur if the secured party takes it without protest or out of the presence of the debtor.” Callaghan, Uniform Commercial Code Series, § 9-503:03, p. 559. Likewise, if a third party such as a spouse, child or parent who reasonably could be expected by the repossessor to staunchly protect the property on behalf of the debtor protests the taking, then a breach of the peace may under the attendant circumstances be imminent. In such cases, self-help repossession should no longer be a lawful alternative for the secured party. See Callaghan, supra, § 9-503:03 at p. 559. (Of course, whether a protest was made and if so made whether it is unequivocal, generally are questions for jury resolution.) These results are compatible with public policy, as “public policy is clearly in favor of a rule that an oral protest is sufficient to foreclose non-judicial possession because it does not beckon the repossessing creditor to the brink of violence.” James, supra at § 4.03 (A) (2) (b). Moreover, the “breach of the peace” provisions in OCGA § 11-9-503 must be liberally construed. OCGA § 11-1-102 (1).

As a general rule, whether the attendant facts give rise to a breach of the peace creates a question for jury resolution. See Fish v. State, 124 Ga. 416 (52 SE 737); see also Williams v. State, 105 Ga. 608 (31 SE 738); cf. Deavers, supra at 675 (declining to hold that the jury was unauthorized to find a breach of the peace notwithstanding the evidence “was not strong”). Having examined the testimony contained in the trial transcript, we find no reason to depart from this general rule in this case.

2. Appellant enumerates as error that the trial court “erred by instructing the jury on principles of comparative negligence and negligence per se which as a matter of law do not constitute defenses [on behalf of appellee bank] to either a wrongful repossession or intentional infliction of emotional distress cause of action, and for failing to grant [her] Motion for a New Trial on this issue.”

(a) It is well-settled that the defenses of comparative negligence, negligence per se, assumption of the risk and contributory negligence are not valid defenses to intentional, wilful, or wanton and reckless torts, and it is inappropriate in such cases to instruct the jury thereon. See generally Central R. &c. Co. v. Newman, 94 Ga. 560 (2) (21 SE 219); Terrell v. Hester, 182 Ga. App. 160 (2) (355 SE2d 97); International &c. Local 387 v. Moore, 149 Ga. App. 431 (11) (254 SE2d 438); McKinsey v. Wade, 136 Ga. App. 109 (7) (220 SE2d 30); Barrow v. Ga. &c. Aggregate Co., 103 Ga. App. 704 (11) (120 SE2d 636); see also Branton v. Draper Corp., 185 Ga. App. 820 (3) (366 SE2d 206); compare Lewis v. Duggan, 184 Ga. App. 563 (1) (362 SE2d 73).

In regard to appellant’s allegation of instructional error, the trial record reflects that the jury in essence was charged that if they should find plaintiff (appellant) removed or concealed her car with intent to hinder enforcement of the security interest thereon that such a violation of state law would be negligence per se or negligence as a matter of law, that is, “negligence without the necessity of proving more.” The jury also was charged “that whenever a plaintiff causes all of . . . her damage by . . . her own conduct, be it because of violation of the law, negligence or intention, that plaintiff cannot recover against the defendant. . . .”

After examining the charges in toto, we are satisfied that the instructions given created a fair risk of misleading the jury to conclude that if they found plaintiff was negligent per se such a finding could constitute a defense to the torts of intentional infliction of emotional distress. Accordingly, such an instruction was error. Terrell, supra. “ ‘ “(W)hen an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.” ’ ” Foskey v. Foskey, 257 Ga. 736, 737 (363 SE2d 547). As a fair risk exists that the charge directly misled the jury as to the defenses applicable to the tort of intentional infliction of emotional distress and as the jury found in favor of the defendant, “it cannot be said that the error was rendered harmless by the jury’s verdict. . . .” Foskey, supra at 737. “Harmful error results when an inapplicable instruction might reasonably draw the jury away from the true issues in dispute or if the erroneous instruction is inapplicable to a vital issue in the case.” General GMC Trucks v. Crockett, 145 Ga. App. 503 (3) (244 SE2d 78).

Examination of the notice of appeal, the trial transcript, appellant’s motion for new trial, the enumeration of errors, and appellant’s brief reflects that contrary to appellee’s assertion, appellant has not waived this assignment of error. See generally OCGA § 5-6-48 (f).

In the past we have expressed extreme caution and constantly required judicious insight in the development of the controversial body of tort law pertaining to the intentional infliction of emotional distress. See generally Kornegay v. Mundy, 190 Ga. App. 433 (379 SE2d 14); Carruth v. Roberts, 189 Ga. App. 247 (4) (375 SE2d 499); Moses v. Prudential Ins. Co., 187 Ga. App. 222 (369 SE2d 541); Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (335 SE2d 445); Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 773 (324 SE2d 593). Our conclusion, based on the particular appellate issues in this case, is not to be construed as a retrenchment from the above authority.

(b) Appellant asserts that error occurred by applying the above instructions to the tort of attempted wrongful repossession, as that tort too is an intentional tort which precludes as a matter of law the assertion by defendant of plaintiff’s own negligence and negligence per se in her dealings with the bank as defenses thereto.

The tort of wrongful attempted repossession can be committed by negligent acts or by wilful or intentional acts. Compare Deavers, supra, with Ford Motor &c. Co. v. Milline, 137 Ga. App. 585 (224 SE2d 437). The essential elements of the offense include that a repossession is attempted and that the attempted repossession is wrongful.

Decided September 19, 1989

Rehearing denied October 5, 1989

Adams, Gardner, Ellis & Inglesby, Ronald C. Berry, for appellant.

The element of “wrongful” repossession refers, in our view, to repossession that is accomplished by “wrongful act.” A wrongful act is “[a]ny act which in the ordinary course will infringe upon the rights of another to his damage, unless it is done in the exercise of an equal or superior right.” Black’s Law Dictionary (5th ed.), p. 1446. The term wrongful act “occasionally is equated to [the] term ‘negligence,’ but generally has been considered more comprehensive, including criminal, wilful, wanton, reckless and all other acts which in ordinary course will infringe upon rights of another to his damage.” Black’s Law Dictionary, supra. An analysis of Georgia case law reveals that the term “wrongful,” when used as an element of this tort, is used in its more comprehensive sense to include that conduct which is in contravention of some legal duty owed to the party from whose possession the vehicle is being taken. Compare Deavers, supra, with Ford Motor &c., supra, and Horn v. Fulton Nat. Bank, 140 Ga. App. 568 (231 SE2d 405), rev’d on other grounds, 239 Ga. 648 (238 SE2d 358) (reversing a line of cases which interpreted a certain contract provision as requiring that notice of acceleration be given before the property could be repossessed); see also Fidelity Nat. Bank v. Wood, 178 Ga. App. 171, 174 (342 SE2d 350). Moreover, this interpretation is consistent with OCGA § 51-1-6, which provides “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”

In this case, examination of the record reveals that the theory of plaintiff’s cause of action for attempted wrongful repossession primarily was predicated upon an intentional tort theory. The instructions given were not tailored so as to reflect that the defense of negligence per se would not be applicable to preclude recovery on such an intentional tort theory. For the same reasons as discussed in Division 2 (a) above, we find harmful error resulted from this misleading instruction.

3. In view of our disposition of the enumerations of error in Division 2, appellant’s other enumerations of error need not be addressed.

Judgment reversed.

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

Woodall & McGahee, John T. Woodall, Timothy K. Haeussler, Hunter, Maclean, Exley & Dunn, Roland B. Williams, for appellee.


text:
    A89A1499.
    PLYLER v. SMITH.
    (386 SE2d 881)
   Birdsong, Judge.

The defendant Plyler appeals from a $50,000 verdict rendered in favor of plaintiff Hammond Smith in this rear-end collision case. The evidence generally showed that on the evening of November 3, 1985, the plaintiff was driving his 1952 Ford farm tractor on Hwy. 221 near Uvalda, when he was struck from behind by defendant’s vehicle. It was “good dark” and the plaintiff was driving his tractor at a speed of about ten miles per hour; he contends his rear lights on the tractor were operating. The defendant was driving about 50 miles per hour and contends he saw no rear lights of a vehicle ahead, that there were no operating lights on the tractor, and that he did not see the tractor until he was almost upon it. He also contends there was no visible “slow-moving vehicle” emblem on the tractor. He managed to swerve to avoid a full frontal impact, but did strike the tractor with his right front fender.

On appeal, defendant enumerates five errors below. Held:

1. The trial court did not commit reversible error in charging the issue of punitive damages to the jury, despite defendant’s objection that there was no evidence of wilfulness and wantonness in the case. There was some, although very little, evidence to support a charge on aggravating circumstances, for the complaint generally was that defendant was driving too fast with complete indifference to consequences. However, in any case, whether the jury found any such evidence of aggravating circumstances and attempted to award punitive damages is impossible to say, for the award of $50,000 was a general verdict award and “punitive damages” were not awarded.

The amount awarded was well within the range of the amount claimed by the plaintiff for general damages, including pain and suffering. It therefore appears that even if a punitive damages charge had been unauthorized, it cannot be demonstrated to have caused any harm, or prejudice. The defendant, in fact, has not suggested the charge caused any harm, but only that it was wrong to give it. It is axiomatic that to authorize reversal of a judgment there must be shown not only error (Bellamy v. Edwards, 181 Ga. App. 887 (354 SE2d 434)), but harmful error, and the burden is upon the one claiming error to prove it. Id. Defendant has not done so here, so the punitive damages charge, even if it had been error, cannot be cause for reversal. See generally Summerfield v. Decinque, 143 Ga. App. 351, 352 (238 SE2d 712).

2. The defendant’s remaining enumerations refer to the trial court’s refusal to give certain jury charges requested by defendant.

(a) The defendant failed to object when the trial court declined to give the charge upon the law specific to taillight requirements upon a farm tractor, requiring at least one red taillight (OCGA § 40-8-33), because it instead intended to charge the general law upon taillight requirements at OCGA § 40-8-20. Arguably, the omitted charge was more precise as to tractors, but the general statute (§ 40-8-20) requires that a vehicle, at relevant times, “shall display [head]lights, including . . . illuminating devices as required in this part for different classes of vehicles.”

The defendant contended that no light at all was displayed by plaintiff’s tractor; if this contention had been found untrue, the charge as given would have sufficed to support a finding of negligence by the plaintiff. The evidence in this case was strongly disputed as to whether the tractor had a light at all. Evidently the jury found the tractor did have a taillight operating, and that the defendant could have seen it; therefore, any lack of judicial specificity as to what kind of light it should have been would be superfluous. Particularly in the absence of an objection by the defendant, no question for review is raised. Anthony v. Garrett, 236 Ga. 485 (224 SE2d 347).

(b) We do not find error in the refusal to charge that one rightfully using the highway “is not required to anticipate that some other user will unexpectedly violate the law [or rule of the road] and create a situation of danger.” This is not exactly the language approved in Russell v. Corley, 212 Ga. 121 (91 SE2d 24), which included the proviso that “in the absence of knowledge” one rightfully using the highway was not required to anticipate that another will violate the law. That case involved the sudden and unexpected emergence onto the highway of a 3-1/2 year old child; it is not unreasonable to posit that “in the absence of knowledge,” a driver is not required to anticipate such a thing.

A second case approving such a charge (Steiner v. Melvin, 143 Ga. App. 97 (237 SE2d 635)) likewise included the proviso that such anticipation of an unlawful or dangerous act is not required “in the absence of knowledge.” In Steiner, the unanticipatable situation was the sudden running of a red light at accelerating speed. As a general rule, the duty to exercise ordinary care includes the duty to drive “defensively.” We find it a difficult thing, as a proposition of law, to suggest that anyone is excused of the duty to keep a safe look-out, which necessarily may include the anticipation that someone else may disobey the law or create a situation of danger. The statement approved in Russell v. Corley was more relevant to the principle of unforeseeability than to a notion that the law excuses a failure to keep a diligent look-out. As a proposed jury charge, the statement was inappropriate in this case, for generally this question is one of ordinary care to be left to the jury on the issue of foreseeability. The trial court did not err in refusing to give this charge, but instead correctly stated that “the law does not impose any duty on a motorist to guard against sudden unforeseen acts of another.”

Decided September 12, 1989

Rehearing denied October 5, 1989

Simpson & Gray, Ralph F. Simpson, Hodges, Erwin, Hedrick & Kraselsky, William, A. Erwin, for appellant.

(c) The defendant was not entitled to the suggested charge that “there is no absolute duty on a driver to be able to stop his vehicle within the range of his vision.” The statement is misleading and incorrect, for it suggests that even if the defendant saw or could have seen the tractor ahead, and could have stopped, the defendant had no duty to stop.

(d) More significant is the trial court’s refusal to charge that “the leading vehicle has no superior legal position to that of the following vehicle.” This charge, generally, has been approved as law, in Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25). We reject the contention that the defendant did not sufficiently object to its omission because he did not state a reason for objecting to the omission; the reason is obvious, for as the defendant suggests, it is the heart of his case that the lead vehicle here, the tractor, was not, at threshold, in a superior legal position. The trial court was misinformed when it was advised this was not the law, for it was, and certainly there is nothing inappropriate in charging it.

However, the trial court did charge: “The mere fact that a vehicle was struck in its rear ... is not in and of itself sufficient to show negligence on the part of the driver of either vehicle.” Although this is not slanted favorably to the vehicle following, and is an extremely passive statement of law, it too is correct, and covers in principle the charges requested by defendant. In the absence of anything in the whole charge or case which tended to mislead the jury to believe that the law favors the position of the lead vehicle, it was not essential or harmful that the trial court charge the requested language of the defendant. See Glenn McClendon &c. Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351); Anderson v. Copeland, 162 Ga. App. 611 (292 SE2d 472).

We find no reversible errors in the enumerations in this case.

Judgment affirmed.

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

Kunes & Kunes, G. Gerald Kunes, for appellee.


author: Birdsong, Judge. Benham, Judge,

text:
    A89A1093.
    WEST v. THE STATE.
    (387 SE2d 44)
   Birdsong, Judge.

Robert West seeks acquittal and discharge of his indictments for sale of cocaine on grounds he demanded, but was denied, a speedy trial under OCGA § .17-7-170.

The trial court was correct in denying the motion for acquittal and discharge. OCGA § 17-7-170 provides that following a proper demand for speedy trial, discharge and acquittal shall be granted “[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him. . . .” OCGA § 17-7-170 (b).

Appellant was indicted in August 1988. He made his demand during that term, but not until October 25, near the end of the term, when there were no juries impaneled to try him and none scheduled, and the criminal court session had been adjourned.

The State clouds the issue by arguing that there must be jurors impaneled “on the day” the demand is made, but § 17-7-170 does not say this. The appellant contends in effect that the statute applies as long as demand was made during a term at which there had been juries impaneled to try him, but this is an unreasonable construction and would serve no purpose, for if there is no jury impaneled after the demand is made, the State has not been given the opportunity to comply with the demand during that term. If the defendant postpones his demand until after the impaneled juries have dispersed and the court session has adjourned, then he himself deprives the State of the opportunity to fulfill its intended obligation.

Appellant in this case criticizes, as “housekeeping problems,” the State’s failure to gather up a jury for him after all had gone home, but the statute does not impose such an obligation upon the State at the defendant’s whim. It only gives him the right to acquittal if “at both court terms there were juries impaneled and qualified to try him,” and this can only mean that there must have been juries impaneled after the demand is made, so as to be able to try him. Otherwise, the statute serves no good purpose.

The provisions of § 17-7-170 (b) were not “triggered” in the first place in this case, where the appellant made his demand when there were no juries impaneled or scheduled to be impaneled in the remainder of the term. See State v. McDonald, 242 Ga. 487, 488 (249 SE2d 212). The statute applies to outright dereliction by the State in failing to provide a speedy trial where one could have been had; it does not operate to force the State to impanel a jury for one defendant who makes a late demand. This sort of “housekeeping” would turn the courts upon their heads.

Decided October 5, 1989.

H. Samuel Atkins, Jr., for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Al Martinez, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., concurs and concurs specially. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

I agree with the majority that the trial court was correct in denying appellant’s motion for discharge and acquittal, and write separately to set forth the means by which I reached that conclusion.

During the hearing on appellant’s motion, the Clerk of the Superior Court of Greene County testified that the court had four terms of court, beginning on the fourth Monday of the months of January, April, August, and November. See also OCGA § 15-6-3 (28) (B). In a supplemental statement, the clerk certified that juries were impaneled on the following dates: October 3, 1988; November 28, 1988; and January 23, 1989. Appellant filed his demand for speedy trial under OCGA § 17-7-170 (b) on October 25, 1988, in the August term of court. According to the clerk’s certificate, no jury was impaneled in the August term subsequent to appellant’s demand. “[I]n computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted.” Kaysen v. State, 191 Ga. App. 734, 735 (382 SE2d 737) (1989). See also Lusher v. State, 192 Ga. App. 606 (_ SE2d _) (1989). Thus, the provisions of OCGA § 17-7-170 were not triggered until the November term because no jury was impaneled to try appellant during that portion of the August term that followed his demand. Id. Therefore, the State had to try appellant in the November 1988 term or the January 1989 term. Appellant’s motion for discharge and acquittal, made on the first day of the January 1989 term, was premature and the trial court correctly denied the motion.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.


author: Banke, Presiding Judge.

text:
    A89A1724.
    MORTON v. THE STATE.
    (387 SE2d 9)
   Banke, Presiding Judge.

A jury found the appellant guilty on an accusation charging that he had violated certain provisions of the Fulton County Zoning Ordinance by maintaining a “junkyard” on property which was zoned for residential use. He was sentenced to pay a fine of $500 or to spend 60 days in jail. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial judge violated his constitutional rights by “devising, encouraging, and accepting an amended accusation, which is vague, arbitrary, and indefinite when measured by the standards of ‘uniform construction’ and further, is a significant departure from the initial accusation.” To the extent that this enumeration of error accuses the trial judge of having provided improper assistance to the state with respect to the wording of the accusation, it is not supported by the record or transcript. To the extent that this enumeration of error is based on a contention that the accusation was unconstitutionally vague and indefinite, it is without merit. The accusation was sufficiently definite both to inform the appellant of the charges against him and to protect him against another prosecution for the same offense. See generally DePalma v. State, 225 Ga. 465, 469-70 (169 SE2d 801) (1969). The accusation was also in compliance with OCGA § 17-7-71 (c) in that it stated the offense “so plainly that the nature of the offense charged [could be] easily understood by the jury. . . .” See Endsley v. State, 184 Ga. App. 797, 798 (1) (363 SE2d 1) (1987).

2. The evidence authorized the jury to find that the appellant' had created a “junkyard” on his property by storing over 12 unmovable old cars in his backyard, in violation of the single family zoning classification for the property. Accordingly, the trial court did not err in denying the appellant’s motion for directed verdict.

3. The appellant contends that the trial court erred in denying his demurrer to the original accusation. However, inasmuch as the appellant was not tried on the original accusation, this enumeration of error must be considered moot.

4. The appellant contends that the trial court erred in refusing to suppress certain photographs of his backyard taken by a county code enforcement officer on the ground that the officer had trespassed upon his property to obtain the photographs. The trial court denied the motion to suppress based on “unrebutted testimony that there was a consent to come on the property given by the person in the house. . . .” As that finding is supported by the transcript, this enumeration of error is also without merit.

5. We have reviewed the appellant’s remaining enumerations of error and have determined that they are similarly without merit.

Decided September 25, 1989

Rehearing denied October 6, 1989

Albert W. Morton, pro se.

James L. Webb, Solicitor, Lee O’Brien, Helen A. Roan, Assistant Solicitors, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Pope, Judge.

text:
    A89A1144.
    In the Interest of C. C. et al., children.
    (387 SE2d 46)
   Pope, Judge.

Appellant/mother brings this appeal from the denial of her motion to dismiss the petition for permanent custody filed by the grandparents based upon lack of jurisdiction and improper venue. The record shows that a petition was filed in June of 1985 alleging that appellant’s four minor children were deprived because of unsanitary conditions found to exist in the home shared by appellant, the children and the children’s father. Emergency temporary custody was awarded to the Rockdale County Department of Family and Children Services (DFCS) at that time; on July 2, 1985, the Rockdale County Juvenile Court entered another order continuing temporary custody with Rockdale DFCS. Appellant was found guilty of the offenses of deprivation of a minor and cruelty to children and was placed on probation. The children’s father, whom appellant has since divorced, was found guilty of the same offenses and was incarcerated.

On May 9, 1986, the Rockdale County Juvenile Court entered an order awarding custody to Larry and June Cabe, the children’s paternal grandparents, who reside in Franklin County, Georgia. Approximately one year later, on May 6, 1987, the juvenile court entered an order in which it consolidated its previous orders, continued temporary custody in the paternal grandparents and transferred the case to the Franklin County Juvenile Court. Both the 1986 and 1987 order provided that the Franklin County DFCS was to provide protective services for the children.

On April 13, 1988, the grandparents filed a Petition for Permanent Custody in the Juvenile Court of Franklin County. On May 11, 1988, the Juvenile Court of Franklin County issued an order providing that temporary custody of the children was to continue with the Franklin County DFCS. On May 19, 1988, appellant filed a special appearance and responsive pleading to the grandparents’ petition for permanent custody in which she asserted that the Franklin County Juvenile Court lacked jurisdiction to hear the petition and that venue was improper in that county. On December 15, 1988, the juvenile court denied appellant’s motion to dismiss. We granted appellant’s application for discretionary appeal. Held:

1. Appellant first contends that the juvenile court did not have subject matter jurisdiction to hear the grandparents’ petition for permanent custody. We agree and reverse.

“Under OCGA § 15-11-5 (c), ‘(w)here custody is the subject of controversy, except in those cases where the law gives the superior courts exclusive jurisdiction, in consideration of these cases the juvenile court shall have concurrent jurisdiction to hear and determine the issue of custody and support when the issue is transferred by proper order of the superior court.’ [Emphasis supplied.] There was no order of the superior court transferring the petition to the juvenile court here, and the jurisdiction obtained during the [original deprivation proceeding] could not serve to retain such jurisdiction. ‘(A)fter a court has determined who is to be the legal custodian of a child, [a complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action] in compliance with Article VI, Section XIV, Paragraph VI of the Constitution of this state.’ [Emphasis supplied.] (Indention omitted.) OCGA § 19-9-23 (a) and (b).” Owen v. Owen, 183 Ga. App. 472, 473 (359 SE2d 229) (1987). Consequently, we find no merit to the grandparents’ argument that the juvenile court retained jurisdiction to hear their petition for permanent custody because the children had previously been adjudicated deprived. Although it is true that the juvenile court has exclusive jurisdiction to entertain petitions concerning children alleged to be deprived (see OCGA § 15-11-5 (a) (1) (C)), the record here shows that the grandparents’ complaint for permanent custody was not in the nature of a deprivation petition and did not allege that they should be granted permanent custody of the children on the basis that the children were deprived. See In re R. R. M. R., 169 Ga. App. 373 (312 SE2d 832) (1983) in which the proceedings were initiated by the filing of a deprivation petition.

Based on the foregoing, we agree with appellant that the proceedings were initiated in the wrong court, and that the juvenile court lacked original jurisdiction over the petition for permanent custody; consequently the juvenile court erred in refusing to dismiss the petition on that basis. See Lockhart v. Stancil, 258 Ga. 634 (373 SE2d 355) (1988); Conroy v. Jones, 238 Ga. 321, 322 (232 SE2d 917) (1977).

2. Because of our holding in Division 1, supra, it is unnecessary for us to consider appellant’s remaining enumerations of error.

Judgment reversed.

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

Decided October 6, 1989.

Lyndon & Gilley, Jeffrey G. Gilley, for appellant.

Andrew J. Hill, Jr., for appellees.


text:
    A89A1314.
    POOLE v. THE STATE.
    (387 SE2d 48)
   Pope, Judge.

Defendant was convicted of armed robbery and appeals. Held:

1. We have examined defendant’s first enumeration of error concerning the admission of testimony that he was seen in the possession of a knife approximately two hours after the commission of the crime for which he was charged and find it to be without merit.

2. Defendant also argues that the trial court erred in allowing the investigating officer to testify to certain statements made by two juveniles the officer interviewed in investigating the crime. Specifically, defendant argues that under the holdings in Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984) and Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), and contrary to the ruling of the trial court, the evidence objected to was not admissible under OCGA § 24-3-2 to explain the conduct of the officer. The State argues that the evidence was admissible in this case because the defendant had raised the issue of why the investigating officer had interviewed certain witnesses who testified on behalf of the State, and the statements of the two juveniles were part of the sequence of events that lead to the identification and questioning of these witnesses.

“ ‘When, in a legal investigation, the conduct and motives of the actor are matter concerning which the truth must be found . . ., then information . . . known to the actor (is) admissible to explain the actor’s conduct. (Cits.) But where the conduct and motives of the actor are not matters concerning which the truth must be found . . ., then the information, etc., on which he or she acted shall not be admissible under (OCGA § 24-3-2.)’ Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). ‘(O)nly in rare instances will the “conduct” of an investigating officer need to be “explained”; as in practically every case, the motive, intent, or state of mind of such an officer will not be “matters concerning which the truth must be found.” At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something.’ Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984).” Black v. State, 190 Ga. App. 137 (378 SE2d 342) (1989).

Pretermitting the question of whether the defendant did in fact attempt to show that the officer acted in an arbitrary manner in questioning certain witnesses and pretermitting whether the State then had the right to introduce testimony to show why the officer questioned these witnesses, we find no reversible error here. Our review of the testimony of the officer concerning the statements made to him by the juvenile shows that the statements were not inculpatory as to the defendant. Moreover, the witnesses who did implicate defendant as the perpetrator of the offense with which he was charged were available to and did testify at trial and the officer did not testify as to the substance of these inculpatory statements. Consequently any error in the admission of the complained of evidence was harmless. See, e.g., Harrison v. State, 187 Ga. App. 268 (2) (370 SE2d 7) (1988).

Decided October 6, 1989.

Carl J. Wilson, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A89A1687.
    TOMLINSON v. STATE OF GEORGIA.
    (387 SE2d 49)
   Banke, Presiding Judge.

The appellee filed a Uniform Reciprocal Enforcement of Support action against the appellant seeking to hold him liable for the support of Emily Dawn Hughes, a minor child. A jury entered verdict in the appellee’s favor, requiring the appellant to pay $160 per month as child support, to provide an accident and sickness insurance policy covering the child, and to maintain a life insurance policy on his own life in the amount of $25,000 with the child as beneficiary. We granted a discretionary appeal from the judgment entered on this verdict in order to consider the appellant’s contention that the court exceeded its authority in ordering him to maintain the life insurance policy. Held:

1. In Clavin v. Clavin, 238 Ga. 421, 423-4 (233 SE2d 151) (1977), the Georgia Supreme Court held that, notwithstanding the strong public policy favoring support of minor children by the father’s estate after his death, “a father is not required by law to create an estate for his minor children,” and that a provision in a divorce decree requiring him to provide a life insurance policy for the benefit of a minor child is consequently invalid unless he has agreed to it. However, in Ritchea v. Ritchea, 244 Ga. 476 (2) (260 SE2d 871) (1979), the Court subsequently upheld a verdict in a divorce case requiring the husband to maintain, as an element of alimony, a life insurance policy for the benefit of his wife. In Coker v. Coker, 251 Ga. 542, 543 (307 SE2d 921) (1983), the court recognized the apparent conflict in these two decisions but declined to resolve it, holding instead that, under the circumstances of that case, “even if the trial judge made, in effect, a mistake of law by including the life-insurance provision into the divorce decree, this does not constitute a ground for setting aside the decree.” In support of that holding, the Court cited Todd v. Dekle, 240 Ga. 842 (242 SE2d 613) (1978), wherein it had held that “[a] complaint seeking to set aside a judgment on the ground that it resulted from a contested decisional error of a court fails to state a claim upon which . . . relief can be granted.” Id. at 844.

Decided October 6, 1989.

Griner & Alderman, Elsie H. Griner, Galen P. Alderman, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.

It appears from an examination of the transcript in the present case that the appellant failed to object at trial either to the jury’s inclusion of the life insurance provision in its verdict or to the court’s charge authorizing the imposition of such a requirement. It is reasonable to assume that the jurors took the cost of this requirement into consideration in fixing the amount of the appellant’s monthly support payments and that, had they not been permitted to include such a provision in their verdict, his monthly support payments would have been higher. In reliance on the Supreme Court’s decision in Coker v. Coker, supra, we hold that under the circumstances the appellant has waived the right to object to the validity of the life insurance requirement on appeal. Accord Ray v. Stinson, 254 Ga. 375 (329 SE2d 502) (1985).

2. During voir dire, the trial court sustained the appellant’s objection to the following remarks by the appellee’s attorney: “This case today will decide once and for all whether or not Dawn Hughes will have a father for the rest of her life. There will never be another case like this. There will be no one else that we will pursue or nobody else. ...” The appellant contends on appeal that these remarks were so prejudicial that the court should have either declared a mistrial or given curative instructions to the jury in addition to sustaining his objection. However, no motion for mistrial or request for curative instructions was made by the appellant. Consequently, this enumeration of error presents nothing for review. See Prince v. State, 257 Ga. 84, 88 (6) (355 SE2d 424) (1987); Harris v. Hardman, 133 Ga. App. 941, 945 (12) (212 SE2d 883) (1975).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1736.
    WILLIAMS v. JOHNSON.
    (387 SE2d 51)
    Decided October 6, 1989.

      Thomas L. Bingley, for appellant.

      Mark Weber, Karen F. Horner, for appellee.
   Banke, Presiding Judge.

This is a dispossessory action, brought against the appellant by the appellee to recover possession of certain property which the latter had allegedly purchased at a foreclosure sale. The appellant failed to appear at the hearing, and the trial court consequently issued a writ of possession. The appellant asserts on appeal that the foreclosure sale on which the appellee’s claim of ownership was based was unauthorized because she was under the protection of a bankruptcy stay at the time it occurred. Held:

1. The appellant has, to this date, failed to substantiate her contention regarding the bankruptcy stay. It is in fact apparent from a copy of a United States Bankruptcy Court order provided to us by the appellee that although the appellant filed a bankruptcy petition prior to the foreclosure sale, that petition was dismissed with prejudice before the sale occurred. Under these circumstances, there is no basis for a conclusion that the trial court lacked the legal authority to enter a writ of possession.

2. The appellee’s motion for imposition of a penalty against the appellant pursuant to Rule 26 (b) of this court for filing a frivolous appeal is granted, and the lower court is hereby directed to enter judgment against the appellant in the amount of $200 upon return of the remittitur in the case. See Butler v. First Family Mtg. Corp., 191 Ga. App. 360 (2) (381 SE2d 551) (1989). (Cert. denied.)

Judgment affirmed with direction.

Sognier and Pope, JJ., concur.


text:
    A89A1794.
    TYNER v. THE STATE.
    (387 SE2d 50)
    Decided October 6, 1989

      Mark G. Pitts, for appellant.
    Henry Tyner, pro se.

   Banke, Presiding Judge.

The appellant was convicted of aggravated assault and possession of a firearm by a convicted felon. He appeals from the denial of his motion for new trial. Held:

1. The victim of the assault did not testify at the trial, and the appellant contends that the following testimony by the investigating officer regarding what the alleged victim had told him should have been excluded as hearsay: Q: “As a result of [the shooting at Frank’s Supper Club] did you take any action? . . .” A: “Yes sir. . . . [W]e arrived at Frank’s place . . . and we was questioning some witnesses in reference to the shooting and they advised they just heard shots and somebody yelled ‘over there’, and we went around the corner . . . and there we saw the victim lying on the ground and it appeared that he had two gunshot wounds on him.” Q: “After finding the victim what did y’all do with the victim?” A: “I talked to the victim . . . and I asked him who shot him and he advised me that a Mr. Henry — He didn’t know the subject’s last name. . . .”

The state contends that this testimony was properly admitted pursuant to OCGA § 24-3-2 as evidence tending to explain the officer’s conduct. It is not immediately apparent how the officer’s subsequent conduct was relevant to the issue of the appellant’s guilt or innocence. See generally Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). However, even assuming arguendo that the trial court erred in admitting the testimony, we conclude that the error was harmless in the context of the other testimony in the case, which established beyond dispute that the appellant had committed the shooting. Accord Harrison v. State, 187 Ga. App. 268, 269 (370 SE2d 7) (1988).

2. The appellant contends for the first time on appeal that the trial court erred by allowing testimony concerning another statement the victim had made to the police, asserting that this evidence violated his Sixth Amendment right to confront the witnesses against him. It is axiomatic that objections to evidence not raised at trial will not be considered on appeal. Alonso v. State, 190 Ga. App. 26 (4) (a) (378 SE2d 354) (1989). Consequently, this enumeration presents nothing for review.

Judgment affirmed.

Sognier and Pope, JJ., concur.

John R. Parks, District Attorney, R. Rucker Smith, Assistant District Attorney, for appellee.


text:
    A89A2127.
    HARDWICK v. BARNES.
    (386 SE2d 927)
    Decided October 6, 1989
    Bobby Hardwick, pro se.

      Stephen H. Steinberg, for appellee.
   Banke, Presiding Judge.

The appellant filed an appeal to superior court from an adverse judgment entered against him in magistrate court. The superior court dismissed the appeal as untimely, and the appellant filed a direct appeal to this court. Because appeals from decisions of superior courts reviewing decisions of lower courts are subject to the discretionary appeal process, see OCGA § 5-6-35 (a) (1), the appeal must be dismissed for lack of jurisdiction. Accord Brewer v. Bd. of Zoning &c. of Atlanta, 170 Ga. App. 351 (317 SE2d 327) (1984).

Appeal dismissed.

Sognier and Pope, JJ., concur.


author: Beasley, Judge.

text:
    A89A0801.
    SPIVEY v. THE STATE.
    (386 SE2d 868)
   Beasley, Judge.

Spivey was convicted of rape of B. D. (OCGA § 16-6-1) and armed robbery of B. D. and her boyfriend Andre W. (OCGA § 16-8-41 (a)) on March 21, and armed robbery of Terry S. on March 22. He thereafter pleaded guilty to two severed charges of possession of a firearm by a convicted felon (OCGA § 16-11-31 (b)) on both dates.

1. Defendant contends the evidence was insufficient, citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The linchpin of the argument is that since defendant was bald at the time of the incidents and all four eyewitnesses claimed the attacker had hair, the evidence was legally insufficient. All victims and the attacker were black. Supplementary argument is that there was no physical evidence and that the alibi was not impeached.

Viewing the evidence in favor of the verdict, Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985), it showed that B. D. and Andre, both 15 years old, were parked in Exchange Park in his V. W. around 11:00 p.m. on Saturday, March 21, when a man wearing a ski mask came up to her window, pointed a silver gun at her face and demanded that she open the door. The man was also carrying a black flashlight with red trim. He got in the car and broke the overhead light with the flashlight and raised the mask off his face. He asked them where they lived and demanded money. When told they had none, he ordered them to disrobe, tied Andre’s hands, and made him lie face down in the driver’s seat with his face toward the door. He raped B. D. in the car. A helicopter flew over and he told them he had just killed somebody and left. He returned, made B. D. get out of the car and raped her on the hood of the car. He took a ring and a chain from B. D. and two chains from Andre.

Both victims described the assailant to police as approximately 5’ 10,” of medium build, 160 pounds, with a mustache and beard. B. D. said he had more stubble than beard and a medium dark complexion. He was wearing a navy peacoat. Andre said he had a real “low” haircut and B. D. said he had very little hair.

Swabs and blood samples taken from B. D. showed the presence of a large amount of type A semen and a small amount of type B. Defendant had type A blood and was a secreter. Andre was type B. B. D. acknowledged having had intercourse with Andre the day before the rape. The serologist opined that this would account for the lesser amount of type B and the large quantity of A.

The next night, Terry S. and R. H., both 17 years old, were parked behind a club on Memorial Drive and were sitting in the back seat of the car. He got out of the car to get in the front seat while R. H. climbed over. When Terry stepped out of the car, a silver gun was pointed at his face by a man wearing a skull cap.

He and his girl friend were robbed. Terry was then tied up with his own belt and made to lie in the back seat. The man got in the front seat with R. H., checked Terry’s pockets again, and asked if they had anything else. He got out of the car, apparently to look for something with which to wipe the car off. He returned, asked both where they lived, and went away. He returned again and asked if they had any weapons in the car. He looked under both seats, left again, and R. H. attempted to shut the front door. He returned and struggled with her over the door, which she did get locked. He threatened to kill them if she did not open the door. She and Terry, who managed to free himself, got the car started and escaped as the assailant was attempting to break the car window with a brick. They both described the assailant as about 5’ 9” with a medium build and a mustache. Terry said he had “holes” in his face as if he had just shaved. R. H. said the attacker had hazel or gray eyes.

On March 26, B. D. and Andre separately identified defendant in a lineup. Terry and R. H. independently of each other picked defendant’s photo from a spread. All four positively identified defendant at trial.

Four days after the second incident defendant was arrested as he was rummaging through a pile of discarded clothes behind a Goodwill store at 1:00 a.m. The officer stopped to investigate the activity and asked defendant for identification. Defendant went to a truck, where the officer saw a peacoat on the seat. He noticed defendant’s resemblance to a “bolo” (a lookout advisory for officers) and arrested him. In the truck he also found a .32 nickel plated revolver under the driver’s seat a red and black flashlight, a black skull cap, and a ski mask (of a different color than that described by Andre and B. D.), as well as a map of the area around the park in which the first incident occurred.

Despite the assertion made in defendant’s brief (unsupported by references to the record as required by Rule 15 (c) (3) (ii)) that “all four eyewitnesses claimed their attacker had hair on his head,” the only witnesses who made reference to head hair were Andre and B. D., as set out above; both Terry and R. H. testified that the attacker wore a skullcap. At trial, defendant’s counsel extensively cross-examined B. D. about the variance in her preliminary hearing description of hair and her trial description.

The fáct that one of four eyewitnesses, none of whom waivered in their identification of defendant by photo or in person, may have varied in verbal description of the assailant’s hair does not render the evidence, taken as a whole, legally insufficient. Our responsibility is only to judge sufficiency and not weight. Thomas, supra. Even setting aside the physical evidence, which was substantial, “[a] jury verdict in a criminal case can rest solely on the testimony of a single eyewitness, and whether her identification should be accepted is a question for the jury.” Fredericks v. State, 172 Ga. App. 379, 380 (1) (323 SE2d 265) (1984). The evidence was sufficient.

2. Defendant contends that the court’s exclusion of a portion of the testimony of his niece deprived him of his federal Sixth and Fourteenth Amendment right to prove his defense. Part of defendant’s trial strategy was to show that the police accused him of this rape only because he had previously been convicted of rape.

The niece testified that when she answered the door to the home in which defendant resided and was told by the police that defendant was accused of raping a sixteen-year-old girl, she fainted. The excluded evidence, as proffered, was that after she fainted, she was not aided by the police and they stepped over her to go search defendant’s room. The trial court excluded her testimony on the basis that she could only testify to what she saw and heard, not to what happened while she was unconscious.

Defendant’s trial counsel acquiesced in the court’s ruling so defendant cannot complain of it as such. Hooper v. State, 181 Ga. App. 645, 648 (2) (353 SE2d 843) (1987); Hammond v. State, 169 Ga. App. 97, 98 (4) (311 SE2d 523) (1983). Counsel then stated that “if the police stepped over her,” this would weaken the veracity of the police. No proffer of any witness who could so testify was made. Thus no ruling on this evidence was required and there is nothing for review. Owens v. State, 178 Ga. App. 750, 751 (2) (344 SE2d 722) (1986); Miller v. State, 162 Ga. App. 759, 760 (1) (292 SE2d 481) (1982).

3. Enumerated is the court’s denial of the motion for new trial on the ground that trial counsel was ineffective, depriving defendant of his federal Sixth Amendment right. At the hearing, both trial counsel and defendant testified. See generally Smith v. State, 186 Ga. App. 303, 305 (1) (367 SE2d 573) (1988).

Those bases for the claim not contained in the motion for new trial have been waived. (Subsections 3 (f) and (g).) Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987).

“To prove he has received ineffective assistance of counsel, ‘(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.’ Brogdon v. State, 255 Ga. 64, 67 (335 SE2d 383) (1985); Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). ‘Thus counsel’s performance will not be found to be deficient if it falls within the range of “reasonably effective assistance.” ’ Brogdon, supra at 68.” Williams v. State, 257 Ga. 311, 312 (2) (357 SE2d 578) (1987).

Although the trial court incorrectly ruled that defendant had not waived his attorney/client privilege by calling into question his attorney’s competence, see Roberts v. Greenway, 233 Ga. 473, 477 (3) (211 SE2d 764) (1975); Peppers v. Balkcom, 218 Ga. 749, 751 (2) (d)) (130 SE2d 709) (1963), this error did not prevent adequate inquiry of trial counsel for our purposes in evaluating the trial court’s denial of the motion for new trial on this ground.

Defendant complains that his character was improperly placed into evidence, including the specific facts of his prior rape conviction as well as four prior burglary convictions; that the jury was told he had spent 19 years in jail; that counsel failed to object to the jury charge on alibi; that he advised defendant after conviction of the other charges to plead guilty to possession of a firearm by a convicted felon; and that illegal evidence was allowed to be introduced at sentencing.

As to the prior rape and burglary charges, both defendant and his trial counsel testified that they had discussed on numerous occasions his defenses of alibi and good character. Counsel, who had been retained by defendant’s family, visited him in jail a dozen times; spent hours interviewing police officers and witnesses; was given, upon motion and request, full access to the prosecution’s file; and went to the crime scenes himself. While counsel did not go into his specific discussion with defendant pursuant to the trial court’s ruling on privilege, the record shows that the decision for defendant to testify and to bring up the now objected-to matters was a mutual one and part of the overall trial strategy in which defendant acquiesced and participated. Defendant had become an active member of Jehovah’s Witnesses and claimed to have turned his life around. He had helped build a new meeting hall and participated as a missionary witness, which was the explanation given for the marked map in his vehicle. He collected old clothes from dumpsters and recycled them to the needy, explaining his hunt through the dumpster and the clothing in his truck. The theory was that defendant was benefited by his own testimony regarding these matters, as well as his minister’s, and that it was better for the defense to bring out his record rather than allow the prosecution to do so on cross-examination. See Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988).

“Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. Solomon v. State, 247 Ga. 27, 28 (1) (277 SE2d 1) (1981); Kervin v. State, 178 Ga. App. 601, 605 (3) (344 SE2d 441) (1986); Harrell v. State, 139 Ga. App. 556, 557 (2) (228 SE2d 723) (1976).” Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).

Strategy also explains counsel’s discussing with defendant a plea of guilty to the firearms charges. He explained his correct legal conclusion that if defendant were found to be in possession of the weapon at all, regardless of the verdicts on the remaining charges, he would be guilty of at least one count of the offense. OCGA § 16-11-131 (b).

The court had already indicated that it would sentence defendant concurrently if the plea were entered. Defendant’s plea transcript shows that he was fully advised of all of his rights, including the right to plead not guilty and have a trial. No evidence of lack of effective assistance is presented as to the choice made.

Complaint is made that representation was ineffective in allowing the court to give a charge on alibi held unlawful by some federal courts. Trial counsel submitted requests to charge, including one on alibi. He testified that he did not object to the charge given by the court, which came from the Superior Court Suggested Pattern Jury Instructions, Vol. 2, p. 30 (1984), because it was comparable to his request to charge on the subject. Any objections to the charge as given were waived. Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986); Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980). The charge was a correct statement of the law, specifically approved by the Supreme Court, Patterson v. State, 233 Ga. 724, 730, fn. 2 (213 SE2d 612) (1975). Failure to object was harmless. See also OCGA § 5-5-24 (c).

Decided September 6, 1989

Rehearing denied October 10, 1989

J. M. Raffauf, for appellant.

Eurace Spivey, pro se.

Robert E. Wilson, District Attorney, Robert M. Coker, Fran Shoenthal, Assistant District Attorneys, for appellee.

The two federal cases cited by defendant in support of his argument are not binding in the state courts. Head v. State, 253 Ga. 429, 430 (1) (322 SE2d 228) (1984); Felker v. State, 252 Ga. 351, 361 (1 b) (314 SE2d 621) (1984). In addition, Dixon v. Hopper, 407 FSupp. 58, 65 (4) & (5) (M.D. Ga. 1976) deals with a charge substantially different from that in the present case, and Poole v. Georgia, 551 F2d 683 (5th Cir. 1977) finds no error in a charge similar to the one at issue.

Enumeration 3 (c) regarding illegal evidence at the sentencing hearing is not supported by argument or citation of authority and is deemed abandoned. Rule 15 (c) (2).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: Deen, Presiding Judge.

text:
    A89A0875.
    MORRIS et al. v. FUTCH.
    (386 SE2d 905)
   Deen, Presiding Judge.

Appellant Morris is the owner of several lots in a Tifton, Georgia, subdivision; appellant Ford and appellee Futch own adjacent lots in the subdivision. In February 1987 appellee set fire to a pile of brush and debris he had gathered on the line between his own lot and appellant Ford’s vacant lot. Futch walked about 100 feet to a nearby lake shore, and while he was fishing the fire spread across Ford’s lot. Although some men working nearby called Futch’s attention to the run-away fire, he allegedly permitted it to burn across Ford’s lot and eventually across three vacant lots belonging to appellant Morris. The trees and other vegetation on these lots were damaged, and Ford and Morris filed a complaint in the Tift County Superior Court, seeking general and punitive damages.

The trial court granted the defendant/appellee’s motion in limine prohibiting the introduction of evidence of any fires or other activity on the plaintiffs’ property subsequent to the date of the fire that gave rise to the action below. Plaintiffs moved for a directed verdict at the close of all the evidence, and after the jury had rendered a verdict for defendant, plaintiffs then moved for judgment notwithstanding the verdict. The motion was denied, and plaintiffs appeal, enumerating as error the following: (1) The trial court erred in denying the motions for directed verdict and judgment n.o.v. because the evidence demanded a verdict for plaintiffs; (2) the court erred in granting the motion in limine; (3) the trial court erred in giving appellee’s requested and allegedly argumentative jury charge concerning innocent and willful trespassers; and (4) the court gave an allegedly erroneous version of appellants’ requested jury charge regarding the necessity vel non for the award of nominal damages following any trespass. Held:

1. We find no merit in appellants’ first enumeration of error. A verdict shall be directed only when the evidence demands — as distinguished from merely seeming to preponderate towards — a certain verdict. OCGA § 9-11-50 (a) requires “no conflict in the evidence as to any material issue” in order for a directed verdict to be authorized. See, e.g., Findley v. McDaniel, 158 Ga. App. 445 (280 SE2d 858) (1981). The standard for judgment notwithstanding the verdict, OCGA § 9-11-509 (b), is the same as that for the award of a directed verdict. Hiers-Wright Assoc. v. Manufacturers Hanover &c. Corp., 182 Ga. App. 732 (356 SE2d 903) (1987); Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981). The record in the instant case reveals the existence of factual questions which should properly have gone to the jury. We find no error here.

2. The transcript reveals that appellants sought to present the evidence covered by appellee’s motion in limine only as bearing upon the issue of punitive damages, which the court elected to try separately in a bifurcated trial. Because the jury found for defendant/appellee on the issue of actual damages, the issue of punitive damages became moot, as does the enumeration of error.

3. Appellant’s third enumeration consists of an objection to the court’s giving appellees’ requested jury instruction concerning the distinction between innocent and wilful trespassers. He contends, in essence, that this instruction was argumentative, biased, and misleading. In his fourth enumeration he finds error in the actual wording of the jury instruction on nominal damages, alleging that the use of the phrase “nominal damages may be allowed” misstates the law.

Scrutiny of the transcript shows that the instruction challenged in the third enumeration is correct in content and neutral in tone. The transcript further shows that, immediately before using the language complained of, the court had stated: “I charge you that the law infers some damage from the invasion of a property right . . . and if no evidence is given of any particular amount of loss, [the law] declares the [property right] by awarding . . . nominal damages . . . [N]ominal damages are that sum awarded when an infraction of a plaintiff’s right is shown but the amount of loss is not clear by a preponderance of the evidence.” Immediately after the challenged language this sentence follows: “A recovery may be classified as . . . nominal damages where the violation of a right is shown, substantial damage is claimed, and some loss actually proven yet the damages are not susceptible of reasonable certainty of proof as to their extent.”

Decided September 26, 1989

Rehearing denied October 10, 1989

Morris & Webster, F. Leonard Morris, Jr., for appellants.

Simpson & Gray, Joseph B. Gray, Jr., for appellee.

In reviewing the challenged jury instructions as a whole and in the context both of the entire jury charge and of the evidence adduced at trial, we find them to be neither erroneous, argumentative, nor misleading. Appellants’ third and fourth enumerations are therefore devoid of merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1389.
    BROWN v. TAYLOR.
    (387 SE2d 25)
   Banke, Presiding Judge.

The appellant sued the appellee to recover for injuries she had allegedly sustained in an automobile accident. Pursuant to OCGA § 9-11-35, the appellee moved for an order requiring the appellant to submit to an independent physical examination. The appellant’s attorney insisted on being present during the examination, and the physician chosen to conduct the examination refused to proceed with it under those circumstances. The trial court ordered the appellant to submit to the examination without the presence or interference of her counsel, and we granted an application by the appellant for an interlocutory appeal from that order. However, it appears from the briefs of the parties that on the same date this court granted the application, the appellant complied with the trial court’s order by submitting to the examination without the presence of her attorney. Held:

An appellate court will dismiss an appeal where it is apparent that the issues presented by it have become moot, i.e., where the “‘decision would be of no benefit to the complaining party. [Cit.]’ [Cit.]” Chastain v. Baker, 255 Ga. 432, 433 (2) (339 SE2d 241) (1986). Since in the present case the appellant has now complied with the order requiring her to submit to a physical examination without the presence of her counsel, it follows that no present controversy exists as to the issue presented by the appeal, and the appeal is accordingly dismissed as moot.

Decided September 26, 1989

Rehearing denied October 10, 1989

Robert A. Sneed, Jr., for appellant.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellee.

Appeal dismissed.

Sognier and Pope, JJ., concur.


text:
    A89A1514.
    WILLIS v. THE STATE.
    (387 SE2d 7)
   McMurray, Presiding Judge.

In this out-of-time appeal, defendant Willis appeals his convictions for aggravated assault upon victims King and Atwater. Held:

1. Defendant’s first enumeration of error raises the sufficiency of the evidence. The evidence viewed in the light most favorable to the jury’s verdicts shows that: victim King arrived at the Dew Drop Inn, a nightclub, around 8:30 or 9:00 p.m. King, who was afraid of defendant and usually avoided him due to previous incidents in which defendant had slapped or picked at her, was unaware that defendant had arrived earlier. King sat at the bar talking to an acquaintance. Defendant, who had been seated in a dark corner got up and went to the bathroom. When defendant came back out of the bathroom he mumbled some curse words to King, walked over and picked up King’s cup of beer (a golden Chámpale) off the bar and threw it in her face. King responded by throwing a bottle at defendant which missed. Defendant turned as though to leave, but then turned towards King and shot her with a small handgun. As defendant was leaving, he encountered Atwater and Bentley, a brother of victim King just outside the nightclub. The pair had heard the shot inside and had just been told about the incident inside. As he passed the pair defendant stated “that go for you too.” While Atwater assumed that defendant was speaking to Bentley, when defendant fired a shot it was Atwater who was hit in the leg.

While defendant presented evidence in support of the defenses of self-defense and accident, the resolution of the conflict in the evidence was for the jury. Sneed v. State, 190 Ga. App. 673, 674 (379 SE2d 813). The handgun, in the context of the manner in which it was used, was a deadly weapon per se. See Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305); Zachery v. State, 158 Ga. App. 448, 449 (3), 450 (280 SE2d 860); Watts v. State, 142 Ga. App. 857, 858 (4), 859 (237 SE2d 231); Bentley v. State, 131 Ga. App. 425, 427 (3) (205 SE2d 904). The evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of each of the two offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Moses v. State, 190 Ga. App. 699 (1) (379 SE2d 819).

Decided September 19, 1989

Rehearing denied October 10, 1989

Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

2. Defendant’s third and fourth enumerations of error complain of the trial court’s charge to the jury. However, appellate review of the issues raised by these enumerations of error is barred by defendant’s failure to either object or to reserve the right to later object in response to the trial court’s request for objections. Grant v. State, 185 Ga. App. 497, 499 (5) (364 SE2d 628).

3. In his second enumeration of error, defendant raises for the first time the issue of ineffective assistance of trial counsel.

“ ‘It is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment.’ Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). [Defendant] did not raise the ineffectiveness issue when he originally sought an out-of-time appeal nor was the issue later raised in the trial court before the present appeal was brought by [defendant’s] new counsel. This is understandable since, in seeking an out-of-time appeal, a defendant ostensibly is seeking only permission to file a direct appeal to an appellate court and not any form of post-conviction relief from the lower court itself. Nevertheless, our Supreme Court has declined to address the merits of an ineffectiveness claim where the issue was raised neither in the defendant’s original request for an out-of-time appeal nor in the trial court after the request had been granted. Bell v. State, 259 Ga. 272 (381 SE2d 514).” Smith v. State, 192 Ga. App. 246, 247 (_ SE2d _). Accordingly, pursuant to the authority of Bell v. State, supra, we hold that defendant has waived the right to raise the ineffectiveness issue in the context of the present appeal.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.