*1 plan originated who had appellant, robbed the clerk while store, the scene of the car to merely to rob the drove the crime. Held: be cor- accomplice required not testimony
1. The was testify positively able to roborated because the store clerk was per- the store and one of the two men who entered identify he was able to robbery. The clerk stated that formed the panty hose over their they had worn spite two men the fact credibility merely because the ac- testimony This does not lack faces. state, testimony as provided contradictory complice, testifying for the the function of the to the nature of the involvement. “It is court, credibility witnesses jury, appellate to determine the appellate court views the weigh conflicts the evidence. verdict after it light jury’s evidence most favorable State, (1) (264 Laws v. been rendered.” State, (1) (309 Brown v. to enable a rational We are satisfied that the evidence robbery beyond a appellant guilty trier of fact to find the of armed reasonable doubt.
2. imputes counsel to the witness an intent to fabricate “[W]here motive, relationship, may some interest or be shown that the motive or witness made a consistent statement at a time when State, App. 347, interest did not exist.” Crawford properly ad- statement of co-accused mitted in accordance with this rule. charge essentially
3. The court’s
on criminal intent was
identical
charges previously
Supreme
Court
approved by this court and the
State,
in Lingerfelt v.
Judgment Birdsong, Sognier, J., P. affirmed. May 27,
Decided 1986. Starr,
Harlan M. appellant. for Partain, Harrison, Attorney, Jack O. District Steven M. Assis- tant Attorney, District
71702. LYNCH v. WATERS.
Pope, Judge. Appellee, Waters, Mrs. Suzanne filed ac- malpractice this medical obstetrician, Smith, tion on her D. against James appellant general surgeon, Lynch, Appellee alleged Lawrence J. Jr. appellant Lynch negligently diagnose that Smith and failed to right breast cancer which resulted in the removal of her breast Au- gust Following discovery appellant Lynch 1982. limited filed a motion partial summary on the that the statute of limi- ground tation had run with regard negligence claims *2 16, 1979; 13, 1979; May July to have occurred during office visits of 13,1980 7,1982. February April Appellee and then amended her com- plaint allege fraud she of the which asserted tolled interlocutory statute of limitation. granted appeal review the trial appellant’s summary judgment court’s denial of motion. 27,1979 April appellee evidence of record shows that on con- sulted with in in regarding Smith his office a swollen area her right breast. appellee Smith examined and determined that the swollen probably represented 11, area gland. Upon May a a return visit on 1979, present, with the swollen area still Smith recommended that appellee general surgeon see a follow-up for care of this condition. Appellee 16, appellant Lynch May was seen on 1979 in his office. Lynch history appellee obtained a and examined her right Lynch breast during appellee that visit. continued to follow 13,1979; 13, 1980; February April 17,1982, August physi- 1982 and cally appellee’s visit, examining noting breast on each and there change was no in the feel or appearance Following of her breast. each appellee immediately visit was if any instructed to return she noted breast, change her otherwise she was to return in six months. On August 17, appellee reported 1982 visit sensa- burning tion and stated that the nodule her right bothering breast was her and that she Lynch wanted to have it removed. agreed to remove the nodule day performed and on that same biopsy. an excision On Au- gust 1981 it was determined that appel- mass removed from right lee’s breast malignant. August Lynch On per- formed a modified mastectomy radical in order to remove cancer breast.
During years appellee the three appellant Lynch consulted specifically lump regarding biopsy her breast and until the performed tests, in August appellant performed diagnostic no biopsies, mammograms, or other tests other than visual observation physical and touching lump. appellant of the At no time did warn appellee possible consequences any delay of the in performing any other diagnostic any appellee, disclose medical alternatives to or any physician refer her to other an In her for examination. affidavit opposing motion summary judgment, averred that Lynch both Smith her all repeatedly pos- and assured sible actions were her She being good taken to insure health. stated questioned that she and both of them re- physicians diligently both worry She fur- peatedly nothing assured her that there was about. and believed expertise physicians’ her she trusted stated that ther not seek she did Consequently, they said. what She regularly. doctors to see both advice but continued medical other with both appointments kept all regularly herself examined also in their answers Lynch admit Both Smith physicians. relationship with physician/patient to a responses to parties’ solely The evidence of record consists motion opposing appellee’s affidavit interrogatories Appellant verified. are not pleadings summary judgment. pleadings, upon the summary his parently based prior his office appellee’s visits to which show that (thus ar- filing of this suit years prior to more than two occurred of OCGA 9-3- two-year of limitation by the guably § barred he asserted 71), upon his answer to of care degree he “exercised the treatment of his care and similar cir- by surgeons under generally employed and skill that cumstances.” appellant as- asserts that complaint, appellee
In amended done for “that everything sured her *3 in necessary”; were that or consultations her and that no other tests inquiries, from further representations she refrained reliance on these her condition until discovering which resulted in her not malig- that a 1982; “knew or should have known and that prevent- or other nancy proper surgery and that view [appellee].” to injury ative action was to avoid (which supported by appel- also in the are allegations these affidavit) as the to raise the issue of fraud such tolls lee’s as sufficient Hackney, App. 740 Sutlive v. 164 Ga. statute of limitation. Accord (297 515) (1982). Bates, App. Edmonds v. 178 Ga. 69 Compare SE2d (301 (342 476) Gamwell, App. v. Ga. 425 SE2d Johnson 165 (A) Montgomery Ritchey, App. v. 151 Ga. 66 SE2d (258 pleadings SE2d the did not set forth wherein Cleveland, App. v. Ga. tolling circumstances. See also Johnson 131 (2c) (206 704) (1974). 560 SE2d Palmer, very App.
We view the recent case of Gillis v. 178 Ga. dissent, (1986), by the as distin- upon in guishable only from the case at evidence of fraud bar. him testimony case was Mr. Gillis’ the defendant doctor told However, this during problem.” his treatment that “there was no early days following alleged court ten the noted that at least as as act, his condition negligent relating Mr. Gillis aware facts to of ordinary which were that he exercise care and require to sug- in to diligence. nothing The court held that there was the record gest alleged negli- of the prevented learning that Mr. Gillis was days of its occur- gence discovering alleged or from the fraud within Likewise, Dixon, (338 App. rence. case Bray the of 872) (1985), as no distinguishable there was conduct shown part precluded the of have on the defendant doctor which would plaintiffs learning timely of alleged negligence the in manner. doctor’s failure to disclose that certain medical treatment insufficient, itself, in performed had not been to toll plaintiffs limitation where learned of this brought nondisclosure time to have their within the time action In provided by the statute. at bar testified Smith, in pellant response inquiries to numerous as to other health, might repeatedly actions which be taken to insure her good assured her that no other necessary. tests or consultations were She and, initially sought lumps had medical attention for her breast plaintiffs Bray, change unlike Gillis had no in her condi- provided tion which have suspecting would a basis for her doctors’ negligence prior the change to in her condition which resulted in the diagnosis and removal of her cancerous breast. “ prevail ‘To summary motion for has judgment, movant the burden produce conclusively evidence which eliminates all ma Kohlmeyer Bowen, terial issues in case.’ & Co. [Cit.]” 630) (1973). “The has movant that burden as upon even to issues opposing party would have the trial Ham, 429) (1973). . burden. . .” Ham v. In case at produce bar no elected evidence whatso motion, in support ever his relying pleadings. instead Al though appellant has to appellee’s allega some extent contradicted fraud, tions of way pierced appellee’s he has no nor pleadings, evidence, is, countered her That regard. appellant has failed [appellee] “establish contradiction without is not entitled to re Grant, . . .” & Seligman cover. Latz v. Walker, Accord Lockhart v. deny It thus was error for court the trial summary motion for Avco judgment. Accord Fin. Svcs.
Leasing Mullins, (1979). Co. v. 120 App. SE2d Cf. Rowell, (321 341) (1984); v. 171 App. Lorentzson Ga. 821 Lea SE2d gan Levine, (1) (1981). v. App. Ga. Compare 158 293 Clinic, Orthopedic App. Wade v. Thomasville plaintiff’s allegation wherein the of fraud was un supported by the record. J., Judgment Banke, J., Birdsong, P. McMurray, C. affirmed. Benham, J., Deen, J., Carley, Sognier, and
P. P. JJ., Beasley, dissent. Judge, dissenting.
Carley, constituting I Because believe that the of this court decisions partial summary judgment finding that binding precedent mandate respectfully I dissent. appellant, must granted have been should of limi- the bar of Although there is no assertion that upon on or after applies negligence occurring tations to claims based 11, 1982, clearly regard run to claims of July had with the statute doctor con- upon appellant or inaction negligence based action 1979; 13, 1979; May 16, July visits: following with the office nection 13, 1980; majority February April 1982. upon occurring incep- that claims based conduct concede all 10, 1982, through July doctor-patient relationship tion of the fraud. are barred unless by of the statute is tolled finding allega- majority opinion The crux of the entire by appellant is contained unpierced tions of fraud which are opinion complaint, appellee as “In her as- majority follows: amended possible and neces- appellant everything assured her ‘that serts sary for her and that no other tests or consultations done representations these she re- necessary’; were in reliance on discovering in her inquiries, frained further which resulted 20, 1982; ‘knew her condition until and that or proper malignancy should have known that a in- surgery preventative other to avoid or action was (which jury [appellee].’ complaint these in the allegations view affidavit) supported by to raise the are also as sufficient Opin- (Majority issue of such as tolls the statute of limitation.” fraud ion, 224.) only is quoted Because mat- page majority what has partial summary judgment possibly prevent ter of record which could I toll the statute of totally and because believe that it is insufficient to limitations, failing I erred in am convinced the trial court grant appellant’s partial summary That which judgment. forth in the averments of her recast set mere rephrasing that which sworn to in her constitute a affidavit degree claim that the failed to exercise that of care and employed by physicians skill generally under similar circumstance. place question allegations Such are sufficient to issue the of medi- negligence cal vel non are fraud which but “insufficient to establish Dixon, Bray v. App. will toll the statute.” to, remarkably The facts in and the are similar our recent whole court decision of Gillis by, result herein is controlled Palmer, v. (1986). For the reasons Gillis, Hackney, Sutlive v. set forth Ga.
515) (1982) upon by majority inapposite is as to this case as was Gillis. All claims of plaintiff based medical neg- ligence occurring on or barred the statute before are Palmer, Bates, Gillis v. v. Edmonds supra; limitations. Dixon, Bray Daly, Shved supra; *5 536) (1985); Gamwell, Johnson v. I judgment would reverse the of the trial court.
I Deen, Presiding Judge am authorized to state that Judge Sognier Beasley Judge join in this dissent. April Decided May
Rehearing denied Withers, Thomas A. for appellant. Loberbaum, Pinson, B.
Ralph H. William Brown, Hudson, Kitchings, Manley Alton D. D. Greg- F. James Sowell, ory Fisher, C. Gary Christy, Joy H. C. amici curiae.
72473. MARTIN FARRINGTON.
Banke, Chief Judge.
Appellant Martin filed this appeal direct from the of his denial Compel “Motion Settlement” of the case accordance with the purported agreement par- terms a settlement reached between ties prior to trial. proceeded day The case on the trial same denied, resulting a verdict and favor of the an greater amount than amount of the settlement offer. The is sole enumeration error directed the de- nial compel of the motion to settlement. The moved to appeal dismiss the ground neither taken from a final judgment nor authorized prior application to this court for an interlocutory appeal. See OCGA generally 5-6-34. Held: § appeal appeal
Where the notice
specifies
that the
is taken from
an order
is
appealable
appeal
and where the
is in fact taken
order,
appeal
such an
subject
generally
is
to dismissal. See
Co.,
Parish v. Ga. R. Bank &c.