*1 146 conveyer point roadway made unit where
over a traveled contact was at that it indicates of record The evidence with them. appellant parked roadway point the truck traveled some off conveyer mainte- If the installation unit. extended the and then above a inches some feet and wires of uninsulated electric nance negligence, roadway law, it is cer- as a matter traveled tainly people anticipate will, normal in their not reasonable to living passing such wires them, into contact with ever come under an area where some 36-% feet above as are installed and maintained neither expected. pedestrian is otherwise to vehicular traffic nor assuming power over an lines were located Moreover, even expected pedestrian was otherwise or vehicular traffic area undisputed passing installed underneath, that the lines were it is be and maintained at a
height antici- it was not reasonable to such that living passing pate people under would, in normal their them, merely lines. was not with those ever come into contact passing “con- “But for” lines. under activity wires, contact with them would under the struction work” never notwithstanding holding that, made. The effect activity, may be held of that still the lack of notice to provisions negate of OCGA 46-3- would be to liable to 33. The trial court did not summary judgment granting err in favor appellee. Carden v. Ga. Power Judgment Banke, Benham, J., affirmed. May 20, Decided
Rehearing denied June Lowry, A. Ronald Taylor, Pennington,
Thomas C. Robert L.
73884. HONESTER TINSLEY. Presiding Judge. Banke, appeal by This is an from a entered on a tenant jury dispossessory proceeding. for the in a In addi- verdict to landlord possession, also re- tion a writ of the landlord unpaid repairing damage allegedly cover caused rent and the cost of certain actual the tenant. The tenant counterclaimed recover punitive allegations $14,500, excess of based on unlawfully the landlord had caused her to be removed premises subsequent dispossessory to the initiation of the proceedings, prior filing date the summons for but set forth longer an answer. premises Because the tenant was no only at the time of claims were tried before jury. landlord, returned a verdict for the and the $100 appeal, enumerating tenant filed a direct as error the denial of motion for a directed verdict on the Held: counterclaim. *2 application OCGA 5-6-35 mandates an for that “in must be taken all in actions for which the provision interpreted by Supreme $2,500 or less.” This has been the Court to where a is rendered for some amount be City $2,500. Todd, tween one cent and Brunswick v. See 255 Ga. 255 Ga. (339 589) (1986); Corp., 448 457 SE2d v. Assoc. Fin. &c. 590) (1986). appellee However, SE2d the has obtained prevailed but, addition, such a in has aon counterclaim by appellant, inap filed plicable the this court has the code to be section appellant and has allowed the file a direct See (2) (348 App. (1986); Boatner v. 180 Ga. SE2d Wil 635) (1986). liams v. Charter Credit 179 Ga. To the extent Rich v. that McDonald Car &c. 180 Ga. authority contrary holding, for a accordingly present appeal. overruled. We the reach merits of the appellant 2. The testified at trial her that had been apartment by acting appellee’s removed from the two men di- appellee merely rection, the whereas testified she that had observed appellant moving personal property apartment her out of the night question appellant upon being in her, and that the had told questioned pay intentions, about her that she did not intend to past-due voluntarily moving appellee rent she was out. de- having anyone appellant’s prop- nied contracted with to remove the erty; testimony regard by however, this was contradicted two appel- witnesses who claimed to have been her move hired lant’s furniture onto the street. appellant appellee Prior to served the with a document
styled,
Request for
“Defendant’s
Admissions
Facts
Genuine-
Interrogatories Propounded
ness of Documents and
to Plaintiff.” The
requests
first section of this document contained
for admission while
following
“Interrogatories”
explana-
section contained
full
any
response
appel-
tions for
denials made in
to the first section. The
requests
lee denied two
for
admission which she was called
supervised
admit that she had
for or
contracted
the removal of the
appellant’s
apartment
property
6, 1985;
on December
how-
explain
ever, she went on to
contract for the removal of fur-
any supervision by
place
niture or
her of such removal
not taken
had
hearing
magistrate
until after a
was held before
December
explanation
12th. The
submits that
offered in re-
was
it must be
admission,
the result
requests
sponse
judicio,
which the
“admission”
binding
considered
trial
with the
agree
we
at trial.
to contradict
not entitled
in re
offered
was, technically speaking,
explanation
court
ap-
result that
with the
interrogatories,
appellant’s
sponse to the
Al
generally
trial. See
contradicting it at
from
was not barred
pellee
Bank,
App. 406
&c.
v. Farmers
bitus
(1) (337 SE2d
App. 696
Enterprises,
v. Lenox
176 Ga.
Stone
(1981);
McBride,
App. 698
Benn
451) (1985);
a motion
denial of
trial court’s
of review of the
The standard
United
“any evidence” standard.
in a civil case
directed verdict
(1) (304
Connell,
Waycross
Fed. Sav. &c. Assn. of
(a).
Since the
131) (1983).
also OCGA
no
least some evidence
provided at
testimony
present
in the
case
denying
occurred,
not err
the trial court did
unlawful eviction
verdict.
for a directed
motion
Deen,
J., McMurray,
J.,
P.
Birdsong, C.
Judgment affirmed.
J.,
Benham, JJ.,
Sognier,
Carley,
Pope,
dissents.
*3
dissenting.
Judge,
Corp.,
Brown v. with a main ac- (1986), dealing Court case principal Supreme a situation it does not concern tion and a counterclaim. ap- It held that “an money recovery under either. where there was a prevails, seeking money judgment a plication required party when a The court reasoned: sum is obtained.” is a for some right of direct “In intended to remove legislature our view the finder has determined prevails but a fact appeal when a claimant petition that a found suffered is not substantial.” judg- was not an action possession granted for writ of which was (a) (6) apply. did not damages, ment for and thus OCGA 5-6-35 § recovery a set-off or there was a counterclaim Although dismissed, opin- Supreme Court statutory penalties which was of (a the counterclaim so-called ion did not include the dismissal of Instead, independent basis for direct judgment) “zero” as an permitted because it the counterclaim was review of the dismissal of (OCGA on the writ of brought up with in- (c)), did not appealable which was because recovery damages. volve of 753) (1986)
Boatner v. Charter Credit Williams
(1986), predicated decision is should not followed because each be Brown, may appeal be that a direct upon concept not found though based recovery a zero on a verdict counterclaim even there was a damages $2,500 of the amount less then on the main than complaint. correct, If these cases were Brown would subject ap- that the dismissal of Brown’s counterclaim was to direct peal holding posses- need not have bottomed writ of sion. simply Instead in Brown the focus there was whether an action inapplicable;
for if or not. If then OCGA 5-6-34 so, hand, $2,500 the other the $.01 to test. my view, In Rich McDonald Car &c. involves a different situation and not should supra, supra, Instead, Boatner, Williams, be overruled. should conflicting Brown, overruled as This should have by application been and thus should be dismissed because wrong chose the vehicle for review.
Decided June
Margaret Argent, L. Adams, B.
John THE
73890. HEFLIN v. STATE. Judge. Benham, appellant guilty charges A found which he accused a 15-count indictment. Fourteen fifteen counts were appeal, related to attacks on various women their automobiles. On appellant questions sufficiency presented against of the evidence evidentiary rulings, counts, him on two motion for a continuance. several denial of his appellant’s petition, appellant psy- 1. Pursuant to underwent a competent chiatric examination and was found to stand trial. On morning and was denied a *4 appellant might undergo continuance and funds order that sec- of a psychiatric argues ond “meaningful” psychiatric examination. now lack examination rendered presentation ineffective insofar was concerned. as of a illness defense mental “A motion for continuance is addressed to the sound discretion of clearly court, the trial court will not unless it is interfere State, [Cits.]” shown the court abused Lucas v. its discretion. Appellant’s mo-