text:
    73788.
    GLENN McCLENDON TRUCKING COMPANY, INC. et al. v. WILLIAMS.
    (359 SE2d 351)
   Carley, Judge.

A set of tandem wheels loosened and then separated from a tractor trailer truck that was being operated by an employee of appellant-defendant Glenn McClendon Trucking Co., Inc. (Glenn McClendon). After their separation, the wheels rolled into appellee-plaintiffs lane of traffic. When the car that appellee was driving struck the wheels, he was injured. Alleging his reliance upon the provisions of OCGA § 46-7-12 (e), appellee brought this suit against Glenn McClendon and against Glenn McClendon’s insurer, appellant-defendant Atlanta International Insurance Company (Atlanta International). The case was tried before a jury. The jury’s verdict awarded appellee actual and punitive damages. The trial court entered judgment against appellants on the jury’s verdict. Appellants filed timely alternative motions for new trial or judgment n.o.v. From the denial of their motions, appellants now bring this appeal.

1. At the close of appellee’s evidence, Atlanta International moved for a directed verdict. That motion was denied and, as previously indicated, the trial court also denied Atlanta International’s subsequent motion for judgment n.o.v. On appeal, Atlanta International enumerates as error the submission of the case, as against it, to the jury.

“[T]he general rule [is] that an insurer may not be joined as a party defendant with its insured where there has been no judgment previously obtained against the insured. . . . [Cits.]” Brunson v. Valley Coaches, 173 Ga. App. 667, 669 (2) (327 SE2d 758) (1985). Notwithstanding this general rule, OCGA § 46-7-12 (e) does provide that “it shall be permissible to join the motor carrier and the insurance carrier in the same action. . . .” It would be erroneous, however, to construe OCGA § 46-7-12 (e) as merely a statutory exception to the general procedural prohibition against the pre-judgment joinder of an insured and his liability insurer. OCGA § 46-7-12 contains numerous provisions of which subsection (e) is but one. Pursuant to those provisions, OCGA § 46-7-12 “establishes an independent cause of action against the carrier’s insurer on behalf of a member of the public injured by the carrier’s negligence. [Cit.] ‘[T]he structure of the Motor Carrier Act is to offer the insurer as a substitute surety bond, action against which is based on its contract with the carrier for the protection of the public as a third party beneficiary.’ [Cit.] ‘ “This being true, the policy of insurance is not one of indemnity against loss as that term is generally understood, but is a direct and primary obligation to any person who shall sustain actionable injury or loss by reason of the negligence of the insured in the operation of his motor vehicles insured under the policy. The sustaining of actionable injury is, under the statute, the only condition precedent to a suit on the policy.” [Cit.] . . . “The cause of action is not on the tort; but on the contract by alleging the occurrence of the condition precedent required by the statute, which statute is an integral part of the contract of insurance . . .” ’ [Cit.]” (Emphasis omitted.) Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 711 (1) (302 SE2d 585) (1983).

Since OCGA § 46-7-12 creates a direct pre-judgment cause of action in contract against an insurer and does not merely provide a statutory exception to the procedural prohibition against joinder of a liability insurer as a party defendant in a tort action against its insured, it follows that mere proof that the allegedly negligent tortfeasor had liability coverage is not necessarily sufficient proof of the direct cause of action against the insurer itself. The “statute, being in derogation of the common law, must be strictly construed. ...” Russell v. Burroughs, 183 Ga. 361, 364 (188 SE 451) (1936). It follows from a consideration of the entirety of OCGA § 46-7-12 that “[c]overage must be proved in these actions; if not, no verdict and judgment could be sustained against the insurer. Such an insurance policy, issued with the approval of the Public Service Commission ‘is a policy of insurance against liability, any provisions in the policy, or in any rider attached thereto, to the contrary notwithstanding.’ [Cit.]” (Emphasis supplied.) St. Paul Fire &c. Ins. Co. v. Fleet Transp. Co., 116 Ga. App. 606, 609 (2) (158 SE2d 476) (1967). See also Carolina Cas. Ins. Co. v. Davalos, 154 Ga. App. 776, 778 (2) (269 SE2d 897) (Í980), rev’d on other grounds 246 Ga. 746 (272 SE2d 702) (1980). Evidence merely that the alleged tortfeasor had secured a policy which provided liability coverage would show only the existence of a policy which indemnified the alleged tortfeasor himself against loss for his own liability. Such proof would fail to show that the injured party was a third-party beneficiary who had a direct pre-judgment cause of action in contract against the insurer itself. Unless the applicability of OCGA § 46-7-12 is shown by evidence of the existence of a policy issued with the approval of the Public Service Commission, “the general rule, that an insurer may not be joined as a party defendant with its insured where there has been no judgment previously obtained against the insured, is applicable. [Cits.]” Brunson v. Valley Coaches, supra at 669 (2).

According to the allegations of appellee’s complaint, Atlanta International had issued to Glenn McClendon an “insurance policy [which] was written and filed in accordance with OCGA § 46-7-12. . . .” This allegation was denied in Atlanta International’s answer. The burden was thus on appellee to prove his allegation. However, the evidence that was adduced by appellee at the trial of this case showed only that Atlanta International had issued to Glenn Mc-Clendon a policy containing liability coverage. There was no additional evidence that, pursuant to OCGA § 46-7-12 (c), the policy that was issued by Atlanta International had been filed with and approved by the Public Service Commission in lieu of the bond that Glenn Mc-Clendon would otherwise have been required to file. This was a failure of proof as to an essential element of appellee’s alleged pre-judgment direct cause of action in contract against Atlanta International. It follows that appellee failed to prove an essential element of his claim under OCGA § 46-7-12 and that the trial court erred in denying Atlanta International’s motion for directed verdict and in denying its subsequent motion for judgment n.o.v.

2. By virtue of our holding in Division 1, remaining enumerations of error are, insofar as they relate to Atlanta International, moot.

3. Glenn McClendon asserts that there was no evidence of its wanton or wilful conduct and that, therefore, appellee’s recovery of punitive damages was unauthorized. The jury was authorized to find that, on the day of appellee’s injury, an agent of Glenn McClendon ordered mechanics employed by the company to make certain repairs on the truck, notwithstanding his knowledge that the mechanics did not have, and had repeatedly been denied permission to acquire, a tool which was needed for the safe performance of the job. One of the known risks of failing to use that tool was that the ball bearings would cease to function and this would eventually cause the wheels to loosen and separate from the truck. After the repairs had been accomplished, the truck was returned to service. While the Glenn Mc-Clendon truck was in route, the wheels began to smoke. Another truck driver observed the smoking wheels and radioed this fact to the Glenn McClendon driver. Despite this warning, the Glenn McClendon driver continued to operate the truck and ignored the advice of the other truck driver to stop. Only when he had been informed by the other truck driver that the brake drum on his truck was breaking apart and falling on the brake line did the Glenn McClendon driver attempt to stop. Before the truck could be brought to a complete stop, the wheels separated from the truck and rolled into appellee’s oncoming lane of traffic. From this evidence, the jury could have found such a wanton disregard of the rights of others as to authorize an award of punitive damages. See generally Getz Svcs. v. Perloe, 173 Ga. App. 532, 533 (1) (327 SE2d 761) (1985); Bowen v. Waters, 170 Ga. App. 65, 66 (2) (316 SE2d 497) (1984).

4. Error is enumerated as to the trial court’s refusal to give requested charges on contributory and comparative negligence. The evidence in this case did authorize a charge on the avoidance doctrine of OCGA § 51-11-7 and such a charge was given. However, there was no evidence to authorize the requested charges on contributory and comparative negligence and, accordingly, there was no error in the trial court’s refusal to give them. See generally Beadles v. Bowen, 106 Ga. App. 34, 35 (4) (126 SE2d 254) (1962).

5. The failure of the trial court to give a requested charge on legal accident is enumerated as error. There was some expert testimony that metal fatigue rather than negligence was a possible but an unlikely cause of the separation of the wheels from the truck. There is considerable question whether this somewhat speculative testimony would be sufficient to authorize a charge on legal accident. “It has been said that ‘the better course would appear to be to omit the instruction except in those instances in which quite plainly it is peculiarly appropriate.’ [Cit.]” Garrett v. Brannen, 164 Ga. App. 10, 11 (1) (296 SE2d 205) (1982), overruled on other grounds Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983). However, assuming without deciding that the evidentiary support for a charge on legal accident was present and that it would not have been error had such a charge been given, it does not necessarily follow that the failure to give a requested charge on that principle constitutes reversible error. “It is not necessary to give the exact language of the request when the same principles are fairly given to the jury in the general charge. [Cit.]” Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 843 (1) (351 SE2d 82) (1986). “[F]or purposes of jury instructions, some jurisdictions have totally discarded the principle of accident. This result is reached on the ground that ‘a statement of the rule in instructions to a jury merely restates a phase of the law of negligence, is unnecessary, serves no useful purpose, overemphasizes the defendant’s case, is misleading and confusing, does not necessarily preclude fault or negligence, and is susceptible to different meanings and constructions.’ [Cits.] Although Georgia has not discarded accident as a proper subject for jury instructions, it has long been recognized that it is not a separate defense but is merely ‘elaborative’ of general principles of negligence law. [Cit.] .... [T]hat juries are misled and confused by the defense of accident has likewise been recognized.” (Emphasis supplied.) Chadwick v. Miller, supra at 342. The record in this case shows that the trial court gave a full and fair charge on the general principles of negligence law, instructing the jury that Glenn McClendon could not be found liable in the absence of its negligence. In view of the charge as given by the trial court, the failure to give the additional requested charge on the merely “elaborative” defense of legal accident was, at most, harmless error.

6. The failure of the trial court to give a requested charge on ap-pellee’s duty to mitigate his damages is also enumerated as error. “ ‘The burden is upon the party asserting that the opposite party could have lessened his damages, and such proof must include sufficient data to allow the jury to reasonably estimate how much the damages could have been mitigated.’ [Cit.]” National Health Svcs. v. Townsend, 130 Ga. App. 700, 703 (3) (204 SE2d 299) (1974). There was evidence that appellee continued to wear a neck brace for some period of time after he had been told by his doctor to cease doing so. However, there was no evidence that, by continuing to wear the brace, appellee failed to avoid any part of his damages. Accordingly, the trial court was correct in refusing the request. Jernigan v. Carmichael, 145 Ga. App. 560, 561 (3) (244 SE2d 92) (1978).

7. The denial of a motion for mistrial, made on the ground that appellee had intentionally injected into the trial prejudicial information concerning policy limits, is enumerated as error.

The motion for mistrial was prompted by appellee’s question, propounded to an agent of Atlanta International, as to whether one of Glenn McClendon’s policies was an “umbrella” policy. The response of Atlanta International’s agent to this question was that “no” umbrella policy existed. There was no disclosure of any policy limits. The jury was specifically instructed that there was no issue as to policy limits and that policy limits should not be considered. “ ‘ “The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. [Cits.] Únless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.” [Cit.]’ [Cit.]” Georgia Power Co. v. Hinson, 179 Ga. App. 263, 270 (7) (346 SE2d 73) (1986). Considering the negative response to the question which had prompted the motion and the trial court’s instruction to the jury, we find no abuse of discretion in the refusal to grant a mistrial.

8. The trial court’s denial of Glenn McClendon’s motion for judgment n.o.v. is enumerated as error. Only such grounds as were originally raised in Glenn McClendon’s motion for directed verdict are to be given consideration. Revco Discount Drug Centers v. Famble, 173 Ga. App. 330, 331 (3) (326 SE2d 532) (1985). All such grounds have been previously discussed and have been found to be without merit.

9. The trial court’s denial of Glenn McClendon’s motion for new trial on the general grounds is enumerated as error. With regard to Glenn McClendon’s liability for actual damages, the evidence was sufficient to support the verdict and this court has no authority to determine the weight of the evidence. Northern Assur. Co. v. Roll, 176 Ga. App. 893 (1a) (338 SE2d 870) (1985). With regard to Glenn McClen-don’s liability for punitive damages, we have previously held in Division 3 that the evidence was sufficient.

10. The denial of Glenn McClendon’s motion for new trial on the ground of asserted excessiveness of the verdict is enumerated as error. “ ‘ “When a case comes before this court, after the refusal of a new trial by the presiding judge, it comes not only with the presumption in favor of the verdict, but also stamped with the approval of the judge who tried the case, and where no prejudice or bias or corrupt means in reaching the verdict appear, we are not authorized to set it aside as being excessive. (Cits.)” (Cit.) “This court does not have the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses, including the plaintiff on the stand, (and) has approved the verdict, this court is without power to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means. (Cit.)” In view of the allegations [of Glenn McClendon’s conscious disregard for the safety of others], which allegations were supported by the evidence, and in the absence of any showing of prejudice or bias or corrupt means of reaching the verdict or any abuse of the trial court’s discretion in refusing to overturn the verdict, we cannot say the verdict was excessive as a matter of law.’ [Cit.]” American Family Life Assur. Co. v. Queen, 171 Ga. App. 870, 873-874 (5) (321 SE2d 750) (1984). See also Smith v. Milikin, 247 Ga. 369, 371 (3) (276 SE2d 35) (1981); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340 (7) (319 SE2d 470) (1984).

11. It is urged that the trial court erred in finding that the parties had reached no settlement prior to trial. Conflicting affidavits were filed by attorneys for both sides. The trial court then conducted a hearing and found that no settlement had been reached. No transcript having been made of the hearing, we are bound to assume that the evidence supported the trial court’s findings. Siegel v. Gen. Parts Corp., 165 Ga. App. 339, 340 (2) (301 SE2d 292) (1983).

12. The trial court did not err either in entering judgment on the verdict against Glenn McClendon or in denying Glenn McClendon’s alternative motion for new trial or judgment n.o.v. The trial court did err in denying Atlanta International’s motions for directed verdict and for judgment n.o.v. However, since the judgment against Glenn McClendon is being affirmed, appellee is otherwise free to pursue such rights as he may have in his capacity as a judgment creditor to consider Atlanta International as a potential source of satisfaction of his judgment against Glenn McClendon.

Decided June 15, 1987

Rehearing denied July 2, 1987

Eve A. Appelbaum, Michael J. Gorby, for appellants.

W. Carl Reynolds, Charles M. Cork, for appellee.

Judgment affirmed in part and reversed in part.

Benham, J., concurs. Banke, P. J., concurs in Divisions 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, and 12 and in the judgment.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    73830.
    SMOKY MOUNTAIN ENTERPRISES, INC. v. BENNETT.
    (359 SE2d 366)
   Benham, Judge.

Appellee’s house burned in a fire started in a fireplace in which he was using a wood-burning stove manufactured by appellant and installed by an employee of the hardware store which sold the stove to appellee. Appellee sued both the manufacturer and the seller, alleging as to appellant that the stove was defective and that appellant failed to give adequate warnings concerning the dangers inherent in using the stove. We granted appellant’s application for interlocutory appeal in order to review the denial of appellant’s motion for summary judgment.

1. After appellant filed its motion for summary judgment, appel-lee submitted the affidavits of expert witnesses concerning design and manufacturing defects in the stove. Appellant argues that the testimony of those same experts on deposition refuted their earlier statements and pierced the allegations of the complaint regarding the existence of a defect in the stove. We disagree.

Although appellant’s counsel elicited testimony from one expert in which he stated that he found no defect in the stove itself, the testimony of another of appellee’s experts is not so helpful to appellant. That witness had submitted an affidavit in which he stated that the stove was defectively designed. On deposition, appellant’s counsel elicited testimony from that witness to the effect that the particular cause of the fire in this case, most likely a creosote buildup due to placement of the vent of the stove under the lintel of the chimney, resulted from the placement of the stove into a fireplace too small for it. However, it was also inferable from that witness’ testimony that the design of the stove was defective in that the location of the vent in a more forward position than that employed by other stove manufacturers rendered it more dangerous in a too-small fireplace than it should have been.

“Under OCGA § 9-11-56 (c), on a motion for summary judgment the movant has the burden of showing affirmatively that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. Moreover, when the movant is the defendant, he has the additional burden of piercing the plaintiff’s allegations and affirmatively negating at least one essential element of the plaintiff’s case. [Cit.]” Capital Ford &c. Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 420 (349 SE2d 201) (1986). “In ruling on a motion for summary judgment, a trial court must give the opposing party the benefit of all reasonable doubts and favorable inferences that may be drawn from the evidence. [Cit.]” Myers v. Barnard, 180 Ga. App. 192, 193 (348 SE2d 733) (1986).

Decided June 18, 1987

Rehearing denied July 2, 1987

Richard A. Brown, Jr., for appellant.

J. Kenneth Royal, William A. Zorn, for appellee.

Under the principles stated, the inference drawn from the expert’s testimony creates a question of fact concerning whether the stove was defectively designed, and prevents the grant of summary judgment to appellant on that issue.

2. As to the issue of the adequacy of the warnings concerning the dangers of installing and using the stove, although uncontradicted testimony established that each stove contained an instruction manual when it left appellant’s factory, we find that questions of fact exist with regard to the adequacy of the warnings contained in the manual and with regard to the adequacy of warnings of danger in general. As to the first question, we note that the evidence shows that the instructions concerning placement of the stove’s vent referred only to the need to get a good draft, and did not specifically warn of the danger which apparently produced the fire in this case. The second issue is raised by the deposition testimony of one of appellee’s experts who opined that the warnings in the manual were sufficient, but that there should have been some externally-posted caution concerning the need to read and adhere to the instructions in the manual supplied.

Given that evidence, and applying the principles stated in Division 1 of this opinion, we find no error in the trial court’s denial of summary judgment on the issue of adequacy of warnings.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    73944.
    73945.
    BIL-JAX, INC. v. SCOTT. BIL-JAX, INC. v. PATTERSON.
    (359 SE2d 362)
   Benham, Judge.

On February 2, 1984, appellees Scott and Patterson were burned and disfigured when the 50-foot metal scaffolding they were using came in contact with a live high-voltage electric power line. On January 30, 1986, shortly before the statute of limitation ran on the negligence actions, appellees filed their complaints for damages against several parties. The next day, appellees amended their complaints to add as a party defendant appellant Bil-Jax, Inc., the company that allegedly manufactured and marketed the scaffolding. Appellees did not seek leave of court at that time to amend their complaints by adding a new party, as required by OCGA §§ 9-11-15 and 9-11-21. On February 11, 1986, after the statute of limitation had run, appellees filed their second amended complaint, setting out in more detail their claims against appellant. They still had not filed a motion to add appellant as a party. Appellant was served with the original first and second amended complaints on February 19. On May 19, appellant filed a motion to strike or to dismiss appellees’ complaints, contending that appellees had not properly amended their pleadings to add it as a party defendant, and that any attempt to so amend the complaints after the statute of limitation had run would be barred. Ap-pellees responded on June 20 by filing motions seeking the trial court’s approval of their first amended complaints adding Bil-Jax, Inc., as a party defendant or then to add it. The trial court, in detailed orders, expressly approved appellees’ amended complaints. Appellant sought and we granted interlocutory review of these two cases to address whether the trial court erred in adopting appellees’ amended complaints and in denying appellant’s motions to strike or dismiss the complaints. We affirm the trial court’s actions.

Appellant contends, and we agree, that appellees’ motions were subject to the provisions of OCGA §§ 9-11-15 (c) and 9-11-21, and the factors related thereto. See Horne v. Carswell, 167 Ga. App. 229, 230 (306 SE2d 94) (1983). However, we must disagree with appellant’s contention that there was no basis for the trial court’s ruling in appel-lees’ favor. It appears from the orders that the trial court took the relevant factors into consideration in rendering its decisions in the two cases. Since an oral hearing, upon which the trial court relied in part in reaching its decision, was held, and since appellant declined to include a transcript of evidence and proceedings, we must assume that the evidence and arguments set forth, in addition to the record before us, were sufficient for the trial court to rule as it did. Burns v. Barnes, 154 Ga. App. 802 (1) (270 SE2d 57) (1980). The record before us indicates, and the trial court’s order points out, that since the statute of limitation had not run at the time appellees filed their first amendments, they could have avoided the present situation by dismissing the cases without prejudice and refiling the suits with appellant as a party defendant. However, since that was not done, it was within the trial court’s discretion to grant the motions to amend, although filed after the statute of limitation had run, and have them relate back to the date the original complaints were filed if the occurrence, conduct, or transaction in the original pleadings was the same as that set forth in the amendments; if appellant would not be prejudiced in maintaining its defense on the merits; and if the added party knew or should have known that the actions would have been brought against it. Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732 (307 SE2d 530) (1983). Although the trial court did not condone the way appellees handled this matter, it granted appel-lees’ motions after finding that the above criteria had been met; that appellant was a necessary party needed for a just and fair determination of the case; that appellant was served with all of the pleadings without inexcusable delay; and that the time of service should relate back to the filing of the original suits. Based on the record, we find that the trial court exercised but did not abuse its discretion in ruling as it did (OCGA §§ 9-11-15; 9-11-21), and did not err in granting ap-pellees’ motions and denying appellant’s. Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976), upon which appellant relies, is distinguishable from this case in that the plaintiff in Clover Realty waited three years after the statute of limitation had run before attempting to add an additional party and claim, and then tried to do so as a matter of right. The Supreme Court held that since no motion had been made and no leave of court had been granted for the amendment, the trial court properly granted defendant’s motion to dismiss. That fact situation differs from the one before us, wherein the complaint against appellant was filed prior to the expiration of the statute of limitation, and so that case does not control.

Decided June 17, 1987

Rehearings denied July 2, 1987

Stephen C. Andrews, K. G. Loomis, for appellant.

E. Graydon Shuford, Charles F. Perkins, for appellee.

Judgments affirmed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    73862.
    GASKINS et al. v. A. B. C. DRUG COMPANY, INC.
    (359 SE2d 364)
   Pope, Judge.

On October 26, 1984 plaintiffs Christine and Denny Gaskins brought suit against Pic N’ Save East Florida Corporation, Inc., seeking damages for injuries allegedly incurred by Ms. Gaskins while she was on the premises of a business operating at 408 North Patterson Street, Valdosta, Georgia, under the name of Pic N’ Save. The named defendant’s agent for service acknowledged service of plaintiffs’ complaint on October 29, 1984, and Pic N’ Save East Florida subsequently filed its answer, in which it denied it operated a business at 408 North Patterson Street in Valdosta, Georgia.

On January 10, 1985 Pic N’ Save East Florida filed a motion for summary judgment based on its claim that it neither owned nor operated the business named in plaintiffs’ complaint and further stating that said business was owned by A. B. C. Drug Company, Inc., defendant/appellee herein. The trial court granted Pic N’ Save East Florida’s motion on February 25, 1985 and in that same order approved plaintiffs’ amendment to their complaint adding A. B. C. as the named defendant. However, the record contains no return of service or other evidence that plaintiffs served A. B. C. with the complaint or summons following the trial court’s order.

On July 9, 1985 A. B. C. filed a motion to dismiss based on the running of the applicable statute of limitation. The trial court never ruled on that motion, and A. B. C. filed a motion for summary judgment on October 17, 1985 again alleging that plaintiffs’ action against it was not timely commenced. The trial court denied this motion; on May 9, 1986 A. B. C. filed another motion to dismiss based on both insufficiency of service of process (OCGA § 9-11-12 (b)) and failure to bring the action within the applicable statute of limitation. On June 20, 1986 the trial court entered an order granting summary judgment to A. B. C. and dismissing plaintiffs’ complaint with prejudice. Plaintiffs appeal. Held:

1. Although apparently conceding that service of process was never attempted on A. B. C. after it was added as the proper defendant in the case at bar, plaintiffs argue, without citation of authority, that A. B. C. and Pic N’ Save East Florida “are, in fact, the same creature” and thus service on the latter constituted legally sufficient service on the former. In support of this argument, plaintiffs rely on the fact that both corporations have the same vice-president, and according to plaintiffs’ brief in opposition to A. B. C.’s motion to dismiss (but otherwise not apparent of record) have the same agent for service and employ the same attorney. Pretermitting the issue of the admissibility of the evidence contained only in plaintiffs’ brief, from our consideration of the evidence, we find no basis to plaintiffs’ contention that A. B. C. and Pic N’ Save East Florida are actually the “same creature”; rather, we believe the record clearly supports the conclusion that those corporations are separate corporate entities.

The record is also undisputed that A. B. C. was never served with process as provided by law. “While OCGA § 9-11-15 (a), in conjunction with OCGA § 9-11-21, is authority for a trial court to grant a motion to add a party to a pending action, the grant of such a motion does not dispense with the requirement that a new defendant be served. If a motion to add a party is granted, . . . service of process must be made in the usual way. . . . Even if defendant has knowledge of a pending suit, the sine qua non is service of summons in the manner provided by law.” (Citations, punctuation, indention and italics omitted.) Stone Mtn. Aviation v. Rollins Leasing Corp., 174 Ga. App. 35, 36 (329 SE2d 247) (1985); see also CMT Investment Co. v. Automated Graphics &c., 175 Ga. App. 353 (333 SE2d 196) (1985). Hence dismissal of plaintiffs’ action based on insufficiency of service of process was proper.

2. We also find that plaintiff Christine Gaskins’ action against A. B. C. for personal injuries is barred by the two-year limitation period applicable to actions of this type. OCGA § 9-3-33. The record shows that the accident which formed the basis of plaintiffs’ complaint occurred on October 25, 1982; the record is undisputed that as of the date of the trial court’s ruling on A. B. C.’s motion to dismiss (June 20, 1986), service of process had never been attempted on A. B. C. and thus no valid cause of action had been instituted against it as of that date. See Freeman v. Nodvin, 181 Ga. App. 663 (1) (353 SE2d 546) (1987). Thus the trial court was authorized to find that plaintiff Christine Gaskins failed to commence her action against A. B. C. within the applicable limitation period.

“However, insofar as [plaintiff Denny Gaskins] sought damages for loss of consortium the statute of limitation was four years [OCGA § 9-3-33], and the time had not run.” Elwell v. Haney 169 Ga. App. 481, 482 (313 SE2d 499) (1984). Thus, the trial court was not authorized to dismiss plaintiffs’ entire complaint as barred by the applicable statute of limitation. Elwell, supra at 482.

3. In light of the above we must also consider plaintiffs’ contention that the trial court erred in dismissing their complaint with prejudice “because the ruling did not constitute a judgment on the merits.” The trial court’s order specifically granted summary judgment to defendant A. B. C.; the grant of summary judgment clearly constitutes a ruling on the merits which ends the case. Usher v. John son, 157 Ga. App. 420 (278 SE2d 70) (1981); Ellington v. Tolar Constr. Co., 142 Ga. App. 218 (235 SE2d 729) (1977). And, although summary judgment is clearly inappropriate on the issue of insufficiency of process, a matter in abatement, Concert Promotions v. Haas & Dodd, Inc., 167 Ga. App. 883 (1) (307 SE2d 763) (1983); Kirkpatrick v. Mackey, 162 Ga. App. 876 (293 SE2d 461) (1982), it is clearly an appropriate remedy when the issue concerns the running of the statute of limitation. Houston v. Doe, 136 Ga. App. 583 (2) (222 SE2d 131) (1975). Accordingly, the trial court did not err in granting summary judgment to A. B. C. as to plaintiff Christine Gaskins’ claim. However, as stated in Division 2, supra, plaintiff Denny Gaskins’ claim for loss of consortium was not yet barred by the applicable limitation period; hence summary judgment and dismissal with prejudice of that portion of plaintiffs’ complaint was error. Elwell, supra at 482.

Decided June 29, 1987.

Elsie H. Griner, for appellants.

F. Thomas Young, Daniel C. Hoffman, for appellee.

Judgment affirmed in part and reversed in part.

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

       Because service of process has never been perfected on A. B. C., we also find inappo-site plaintiffs’ argument concerning relation back of their amendment to the date of filing of their original complaint. Cf. Bil-Jax v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987).

       Plaintiffs also contend that because the trial court originally denied defendant A. B. C.’s motion for summary judgment based on the running of the statute of limitation, it is barred from now entering an order granting such a motion, based on the doctrine of res judicata. We disagree. The denial of a motion for summary judgment decides nothing, Ellington, supra at 221, and thus plaintiffs’ argument based on the doctrine of res judicata is inap-posite.


author: Carley, Judge.

text:
    74077.
    MOORE v. FLORIDA ROCK & TANK LINES, INC.
    (359 SE2d 356)
   Carley, Judge.

Alleging fraud, appellee-plaintiff brought suit against appellant-defendant, seeking general and punitive damages, attorney’s fees, and costs. The case was tried before a jury and a verdict in favor of appel-lee was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. The denial of appellant’s motion for a directed verdict is enumerated as error. The evidence, taken in the light most favorable to the jury’s verdict, would authorize the following findings: By virtue of agreement with Exxon U.S.A., Inc. (Exxon), appellant leased and operated a service station and purchased his gasoline from Exxon. Payment for the gasoline was to be made upon its delivery to appellant. Appellant’s usual payment practice was to present a check, payable to Exxon, to the driver who had delivered the gasoline.

Appellee is a common carrier engaged by Exxon to deliver gasoline to certain of its dealers. In April of 1983, appellant placed an order with Exxon for delivery of some 10,000 gallons of gasoline. Pursuant to that order, a driver employed by appellee delivered the gasoline to appellant’s service station. Appellee’s driver did not secure payment before he pumped the gasoline from his truck into appellant’s storage tanks. When appellee’s driver sought payment for the gasoline after completion of the pumping, appellant could not be located.

Because appellee’s contract with Exxon required collection on delivery of gasoline to appellant and because appellant could not be located to make payment for the gasoline that had just been delivered, appellee’s driver prepared to pump the gasoline back into his truck. At that point, appellant telephoned his service station and told appel-lee’s driver “that he was tied up, that he’d bring a check in.” Appel-lee’s driver replied that he would “have to have the C.O.D.” Appellant’s response was that he would “call Exxon.” Appellant did call Exxon and secured an Exxon employee’s acquiescence in appellant’s offer to make a future payment for the gasoline. After agreeing to appellant’s offer, the Exxon employee telephoned the service station and instructed appellee’s driver to allow the gasoline to remain in appellant’s storage tanks and to return to the Exxon terminal without collecting for the delivery.

Appellant sold the gasoline, but he never paid Exxon for it. When appellant did not pay, appellee indemnified Exxon for the gasoline. But see Southern R. Co. v. Kinchen & Co., 103 Ga. 186, 187 (4) (29 SE 816) (1897). After indemnifying Exxon, appellee filed this suit, alleging that it had been defrauded by appellant’s false representation that he would pay for the gasoline.

In determining whether appellant’s motion for directed verdict was erroneously denied, the following is applicable: “To recover in tort for fraud the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made. [Cit.]” Martin Burks Chevrolet v. McMichen, 136 Ga. App. 845, 847 (222 SE2d 633) (1975). The evidence in this case clearly authorized findings that appellant had made representations regarding his future payment for the gasoline, that he had no present intent to make the future payment and knew that his representations were false, and that he had made the false representations with a deceitful intent and purpose. There is, however, no evidence that appellant made his false representations to appellee. The uncontradicted evidence is that appellant’s false representations were directed to Exxon, not to appellee. As the result of appellant’s false representations, Exxon was fraudulently induced into foregoing immediate payment for its gasoline.

It is true that, as the result of Exxon’s reliance upon and inducement by appellant’s false representations, appellee did not demand immediate payment from appellant and did ultimately bear the loss occasioned by appellant’s failure to pay. There is, however, no evidence that, in so doing, appellee was acting in reliance upon appellant’s false representations. The evidence is uncontroverted that Exxon did not act as a mere conduit in relaying appellant’s misrepresentations for appellee’s own independent assessment of whether it should put its reliance thereon. Compare Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983); Young v. Hall, 4 Ga. 95 (1848). Appellee’s driver testified that he would not have left appellant’s service station without either having retrieved the gasoline or having received payment therefor had it not been for the express direction of Exxon’s employee to the contrary. Thus, in allowing appellant to retain the gasoline without paying for it, appellee was not acting in reliance upon any false representation made by appellant. Appellee was relying entirely upon the direction of Exxon’s employee. Although that direction to appellee was itself induced by the reliance of Exxon’s employee upon appellant’s misrepresentation, we know of no authority which would permit a direct recovery in fraud by one who ultimately relies upon a third party’s reliance upon a misrepresentation rather than upon the misrepresentation itself. “We do not dispute that a plaintiff may recover in fraud from a party with whom he has not dealt directly, but whose false and knowing representations have induced reliance and caused damage. [Cits.] However, the requirements of proof of fraud in such cases are the same as those in cases where the plaintiff dealt directly with the defendant, including proof of the element of reliance. [Cit.]” Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (1) (298 SE2d 533) (1982). “[I]n order to sustain [a] cause of action for fraud the record must show that [the plaintiff] acted upon the misrepresentation of [the defendant]. [Cit.]” Davis v. Northside Realty Assoc., 165 Ga. App. 96, 97 (2) (299 SE2d 186) (1983). “[Representations which are not used as a basis for action will furnish no ground for complaint. [Cit.]” North Peachtree &c. Properties v. Hicks, 136 Ga. App. 426, 430 (3) (221 SE2d 607) (1975). “Representations which do not appear to have been heard, or to have been acted on by a party, can constitute no ground ... of action for that party.” Janes v. Trustees of Mercer Univ., 17 Ga. 515 (3) (1855).

The evidence of record in this case shows that it was only Exxon that actually heard appellant’s false representation. Only Exxon acted upon that misrepresentation by agreeing to accept payment for its gasoline at a later date. Appellee only heard and acted upon Exxon’s direction. Under this evidence, appellee may in fact have a subrogation claim against appellant based upon its indemnification of Exxon. It appears that this subrogation theory was submitted to the jury as an alternative basis for appellee’s recovery. Appellee does not, however, have a viable fraud claim against appellant under the evidence. Insofar as it included an award of punitive damages, the jury’s verdict was erroneously based upon this theory of recovery. Accordingly, the denial of appellant’s motion for a directed verdict was error and was not harmless. The trial court committed reversible error in allowing the issue of appellee’s recovery under a fraud theory to be submitted to the jury.

Decided June 15, 1987

Rehearing denied July 2, 1987

Thomas E. Moran, for appellant.

James M. Poe, Debra L. Mixon, for appellee.

2. The remaining enumerations of error are moot by virtue of our holding in Division 1.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Benham, Judge. Carley, Judge,

text:
    73764, 73765.
    MIDURA v. THE STATE (two cases).
    (359 SE2d 416)
   Benham, Judge.

Appellants Julie and Henry Midura (Ed) were convicted of possession of marijuana with intent to distribute. In the second portion of a bifurcated trial, Ed Midura was convicted of the possession of firearms by a convicted felon. On appeal, appellants take issue with the sufficiency of the evidence, the denial of their motion to suppress, and the effectiveness of trial counsel.

1. The State presented evidence that approximately 2~1/2 pounds of marijuana were seized during a search of appellants’ home. An assortment of drug paraphernalia and a triple beam scale were also found. The officers seized several weapons, including a Kurz .380 semi-automatic pistol and several Smith and Wesson semi-automatic pistols. The presence of the marijuana in appellants’ home, coupled with the quantity of marijuana and the presence of scales used to weigh drugs, was sufficient evidence of possession of marijuana with an intent to distribute. See McDade v. State, 175 Ga. App. 204 (1) (332 SE2d 672) (1985).

2. Appellant Ed Midura’s contention that the evidence was not sufficient to convict him of possessing firearms while a convicted felon because the weapons were not tendered into evidence is without merit. Clayton v. State, 149 Ga. App. 374 (1) (254 SE2d 495) (1979). He also contends that the evidence submitted in assessing punishment as a recidivist (see OCGA § 17-10-7 (a)) is insufficient in light of the State’s use of “uncounselled” convictions from Clayton County. Inasmuch as it was incumbent upon appellant to provide a transcript of the proceeding (Chancey v. State, 256 Ga. 415 (11) (349 SE2d 717) (1986)) and none has been filed, we must assume that the evidence presented at the sentencing hearing supported the sentence imposed by the trial court. See Wallace v. State, 166 Ga. App. 900 (305 SE2d 674) (1983).

3. Both appellants maintain they were denied effective assistance of counsel at trial. Because appellants are represented on appeal by counsel other than trial counsel, and no motion for new trial was filed, “we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986).” Hambrick v. State, 256 Ga. 148 (5) (344 SE2d 639) (1986).

4. Appellate counsel, by expressly adopting the arguments of the allegedly ineffective trial counsel, asserts as error the denial of appellants’ motion to suppress evidence seized during a search of their residence and vehicles executed pursuant to a search warrant. Appellants maintain that the scope of the search warrant was overbroad and that the warrant was issued without probable cause in that the reliability of the informant was not demonstrated, and the information given by the informant was stale.

The affiant officer based his February 19, 1985, affidavit upon information received from a “noninformant hearsay declarant” (Devier v. State, 247 Ga. 635 (5) (277 SE2d 729) (1981)), who was identified in the affidavit and who had admitted her participation in ongoing criminal activity concerning the acquisition and distribution of large quantities of marijuana and cocaine. The officer related that the de-clarant had told him she had witnessed the purchase of two bales of marijuana from appellant Ed Midura (procured from the basement of his residence) in December 1984, and three additional purchases of “pounds of marijuana and a large volume of cocaine” during December 1984 and January 1985. The declarant stated that appellant Ed Midura was the supplier for a number of other drug dealers, which information coincided with “known intelligence” on the dealers. The affiant found the Midura residence as described by the declarant, and also found Ed Midura to have been twice convicted of drug violations and arrested on drug charges five other times. A GBI agent supplied the affiant with information indicating appellant Ed Midura had been “in the business of buying and selling drugs over the past 3 years

“ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding” that probable cause existed.’ ” State v. Luck, 252 Ga. 347, 348 (312 SE2d 791) (1984). Inasmuch as the declarant was named, was a declarant against penal interest, and her statements were based upon personal observation, the magistrate had a substantial basis for crediting her hearsay. Lewis v. State, 255 Ga. 101 (2) (335 SE2d 560) (1985); Devier v. State, supra; Peacock v. State, 170 Ga. App. 309 (1) (316 SE2d 864) (1984).

Appellants also argue that the declarant’s information was stale, noting the warrant was issued approximately one month after the de-clarant’s observation of appellants’ purported criminal activity. “Time is assuredly an element of the concept of probable cause. [Cit.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.] When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. [Cit.]” State v. Luck, supra at 347. The trial court did not err in failing to find the declarant’s information stale.

Appellants base their contention that the search warrant was overbroad on their assertion that their residence is a duplex and the police had probable cause to search the basement apartment only. However, appellant Linda Midura admitted that the outward appearance of the home was that of a single-occupancy structure, and that she and her husband had access to the basement apartment, a portion of which was used by her as a jewelry workshop. See Bing v. State, 178 Ga. App. 288 (1) (342 SE2d 762) (1986). Appellants also complain of the search of two vehicles, one of which was identified with particularity in the search warrant application, that were on the premises when the officers executed the search warrant. “A warrant which authorizes the search of a particular dwelling extends by implication to areas within the curtilage of the dwelling.” Landers v. State, 250 Ga. 808, 809 (301 SE2d 633) (1983). Vehicles parked within the curtilage of a dwelling to be searched pursuant to a warrant may also be searched pursuant to that warrant. Id.; Bellamy v. State, 134 Ga. App. 340 (214 SE2d 383) (1975).

5. In appellant Ed Midura’s final enumeration of error, he contends that testimony concerning post-arrest conversations he had with police officers should not have been admitted. Appellant has not cited authority for his position and has failed to support his enumerated error with “specific reference to the record or transcript. . . .” Court of Appeals Rule 15 (c) (3) (i). Therefore, we will not consider appellant’s argument. Watson v. State, 153 Ga. App. 545 (4) (265 SE2d 871) (1980).

Judgments affirmed and cases remanded.

Banke, P. J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I completely concur in the majority opinion. I write only to discuss more fully the remand of the case “for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel” as set forth in Division 3 of the majority opinion. I agree, of course, that Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986) and Hambrick v. State, 256 Ga. 148 (5) (344 SE2d 639) (1986) mandate the remand of a case in the procedural posture we find here. However, Smith and Hambrick are silent with regard to the actual effect of affirming the judgment and still remanding for further hearing. Nevertheless, I think we can ascertain the intent of the Supreme Court by the fact that, subsequent to the first decision in Smith, the case came back to the Supreme Court on another direct appeal. In the second appearance of the case, the Court stated: “We remanded to the trial court for a determination of [the issue of denial of ineffective assistance of counsel]. The trial court held a hearing, made findings of fact, and entered an order holding that Smith had not been denied effective assistance of counsel. We have reviewed the record, and because the findings of the trial court are not shown to be clearly erroneous, we affirm.” Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986). Thus, I believe that it is clear that the effect of an appellate court’s affirming the judgment and remanding in accordance with the mandates of Smith and Hambrick is to end the case as far as the appellate court is concerned until and unless a notice of appeal is filed by the defendant after an adverse ruling subsequent to the holding of the required hearing and the entry of the required findings concerning the issue of effective assistance of counsel. Of course, should the trial court find ineffective assistance of counsel requiring the grant of new trial, the new trial would proceed. Therefore for all purposes, this particular case has been completed from the appellate review standpoint and will not reappear here except by virtue of a new notice of appeal from some future order entered by the trial court.

Decided July 2, 1987.

Billy L. Spruell, for appellant.

Rafe Banks III, District Attorney, T. Russell McClelland II, Assistant District Attorney, for appellee.


text:
    73779.
    CRENSHAW v. THE STATE.
    (359 SE2d 419)
   Carley, Judge.

Appellant appeals from the judgment of conviction and sentence entered on a jury verdict finding him guilty of trafficking in cocaine.

1. Agent Paul Markonni of the Federal Drug Enforcement Agency (DEA) was observing passengers deplane at Hartsfield International Airport after a flight from Miami. Markonni noticed that a certain deplaning passenger, appellant’s co-defendant Samuel, exhibited characteristics common to drug couriers. As Agent Markonni was watching Samuel, he also noticed that appellant had deplaned. After making eye-contact with Samuel, appellant began following Samuel at a distance of 30 to 40 feet and, as they walked away from the gate, they maintained this distance. Samuel periodically looked back at appellant. When appellant stopped, Samuel waited. They proceeded in this fashion to another gate, where they spoke briefly. Samuel then followed appellant to and from the rest room. After returning to the gate area, Samuel took a seat while appellant stood against a wall several feet away. It was the opinion of Agent Markonni that, at all times, Samuel and appellant were endeavoring to give the impression that they were not traveling together.

Markonni approached and spoke to Samuel and subsequently arrested him. Appellant does not question the existence of probable cause for Samuel’s arrest. In the search pursuant to Samuel’s arrest, Markonni found two bags containing what appeared and did prove to be 620 grams of cocaine. After discovering the cocaine on Samuel, Markonni approached and asked to speak with appellant. Appellant voluntarily produced his ticket, which showed the same itinerary as Samuel’s. The ticket had no baggage claim checks attached to it and had been paid for in cash. Appellant consented to be searched and voluntarily accompanied Agent Markonni to the room where Samuel was being held. As appellant entered the room, Samuel stated “I don’t know him.” Although the search of appellant revealed no drugs, he was detained while the agent obtained his and Samuel’s airline reservation records. The records revealed that they had identical reservations. They had booked neighboring seats on all legs of their trip. As home telephone numbers, each had given virtually the identical number. When Markonni called the two numbers, he discovered that neither was located at a residence. Although appellant and Samuel had initially made reservations to fly out of Fort Lauderdale, within two minutes of each other, they had changed their departure site to Miami. Based on all of the above information, appellant was also arrested for trafficking in cocaine.

Appellant enumerates as error the insufficiency of this evidence to support his conviction. The indictment charged that appellant and Samuel had violated OCGA § 16-13-31 (a) (3) in that they “did knowingly bring into this State and were knowingly in actual possession of more than 400 grams of a mixture containing cocaine. . . .” Appellant was not in actual possession of the contraband because all of the cocaine was strapped to Samuel’s legs. Thus, appellant could be a party to the crime of trafficking in the cocaine which was in Samuel’s actual possession only if appellant intentionally aided or abetted Samuel so as to be in constructive possession of the contraband. See Lang v. State, 171 Ga. App. 368, 369 (1) (320 SE2d 185) (1984). The evidence of appellant’s guilt was entirely circumstantial. He was in the presence of Samuel when the latter had actual possession of the cocaine. However, “‘[presence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. [Cits.] Even approval of the act, not amounting to encouragement, will not suffice. [Cit.] This is so because under OCGA § 24-4-6 “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” ’ [Cit.]” Moore v. State, 255 Ga. 519, 520 (1) (340 SE2d 888) (1986). Accordingly, the mere fact that appellant may have known that Samuel was carrying cocaine would not authorize a finding that he aided and abetted him in the offense of trafficking, although it might explain why appellant would deny knowing Samuel. See generally DePalma v. State, 225 Ga. 465, 466 (1) (169 SE2d 801) (1969). Likewise, appellant’s prior “presence [on the flight with Samuel] was not sufficient to show that he was a party to the crime, [cit.], even though the circumstances may have raised suspicions of his guilt. [Cit.]” Rautenberg v. State, 178 Ga. App. 165, 168 (1) (342 SE2d 355) (1986). Although the evidence “may indicate [appellant’s] predisposition to violate the Georgia Controlled Substances Act, it does not go to his complicity in the actual [crime] of [trafficking in cocaine] involved in the instant case.” Parker v. State, 155 Ga. App. 617, 618 (2) (271 SE2d 871) (1980). The evidence that appellant and Samuel denied knowing each other when it was obvious that they were traveling together would perhaps cast the gravest suspicion that appellant had committed some offense. Nevertheless, “[t]he evidence created no more than a suspicion that [appellant] committed the crime and mere suspicion is not sufficient to support a conviction. [Cits.]” Muckle v. State, 165 Ga. App. 873, 875 (1) (303 SE2d 54) (1983).

Decided July 2, 1987.

Herbert Shafer, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Other than the circumstantial evidence showing that appellant may have been aware that Samuel was involved in an illegal scheme or that he may have known Samuel was carrying drugs, there was no proof of any criminal participation by appellant in Samuel’s plan. “[T]he evidence is therefore insufficient as a matter of law to sustain [appellant’s] conviction for [trafficking in cocaine]. [Cit.]” Moore v. State, supra at 521 (1). Accordingly, the judgment of conviction must be reversed.

2. Remaining enumerations of error are moot.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Pope, Judge. Beasley, Judge, Deen, Presiding Judge,

text:
    73844.
    NESMITH v. THE STATE.
    (359 SE2d 421)
   Pope, Judge.

Appellant was convicted after a jury trial of misdemeanor theft by shoplifting, and was sentenced to one year on probation and fined $252. At trial, the State adduced evidence that appellant was observed by a security guard at Wal-Mart interchanging price tags from lower-priced items to higher-priced items. On appeal two errors are enumerated. Held:

1. Appellant alleges that the trial court erred in failing to grant a motion for directed verdict on the ground that the evidence was insufficient to prove the offense described in the accusation. The accusation by the State charged, in pertinent part, that appellant committed the act of shoplifting by “alter [ing] the price marking on goods, to wit: Changing the price from $2.45 to $1.08 (Pentel Pencil), also changing the price from $34.96 to $16.00 (Westbend Iron). . . .” OCGA § 16-8-14 (a) provides that “[a] person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (a) Conceals or takes possession of the goods or merchandise of any store or retail establishment; (2) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment; (3) Transfers the goods or merchandise of any store or retail establishment from one container to another; (4) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or (5) Wrongfully causes the amount paid to be less than the merchant’s stated price for the merchandise.”

Appellant argues that because the State charged that appellant altered the price, pursuant to OCGA § 16-8-14 (a) (2), but that the evidence showed instead that appellant interchanged prices pursuant to OCGA § 16-8-14 (a) (4), the conviction must be set aside for fatal variance between the allegation and the proof. The State argues that the code section sets out a number of ways shoplifting may be committed and that those ways overlap. Essentially, the State contends that interchanging prices is included within the meaning of altering prices. We cannot agree. Webster’s Third New Intl. Dictionary (Unabridged 1981) defines “alter” as follows: “to cause to become different in some particular characteristic . . . without changing into something else.” Webster’s at 63. “Interchange” is defined by the same dictionary as “[putting] each of (two things) in the place of the other.” Webster’s at 1177. Therefore, “interchange” by definition cannot be subsumed into “alter,” as can be done with “force” and “sudden snatching” in the context of armed robbery. Thus, the State’s reliance on Dotson v. State, 160 Ga. App. 898 (1) (288 SE2d 608) (1982), is misplaced.

We find that the present case is controlled by Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206) (1978). Walker was charged with theft by taking for “unlawfully tak[ing]” tools left in a car he was repossessing for a bank. The indictment charged him with motor vehicle theft as well as theft by taking. The court in Walker found that theft by taking could occur in one of two ways: (1) by unlawfully taking, or (2) by being in lawful possession, and then unlawfully appropriating the property of another. The court further found that the State had laid its charge in terms of unlawful taking. When the trial court directed a verdict on the charge of motor vehicle theft because Walker was in lawful possession of the car as the repossessing agent of the bank, the manner of the theft of the tools was shifted from unlawful taking to lawful possession with unlawful appropriation. The court in Walker reversed the conviction of theft by taking. It rejected the argument by the State, also made in the present case, that no fatal variance occurred because there was no surprise to the defendant, following the criteria set out in DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801) (1969). In discussing the requirements set out in DePalma, the court in Walker noted that an “old but sound rule” of Georgia law was unchanged by the decision in DePalma. “The Supreme Court in Fulford v. State, 50 Ga. 591, 593 (1874), held: ‘We recognize the rule that it is not necessary to prove allegations in an indictment which are immaterial or purely surplusage. But the question is, what are immaterial averments? . . . Bishop says: “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.” ’ ” Walker at 241-42. The accusation and the proof are at fatal variance in the present case. We acknowledge the State’s argument here, as did the court in Walker, that the crime charged may be committed in more than one manner. However, “whenever exigencies of proof exist as to whether an offense was committed in one of two methods proscribed by a statute, the prosecution may charge the accused in separate counts of a single indictment and let the jury select which method the evidence supports. [Cits.]” Walker at 243. The conviction must be reversed.

2. In her second enumeration, appellant argues that the trial court erred in charging the jury that one means of altering a price was to interchange the price tags. For the reason set out in Division 1, we agree that it was error to so charge.

Judgment reversed.

Birdsong, C. J., Sognier, Benham, and Beasley, JJ., concur. Beasley, J., also concurs specially. Been, P. J., McMurray, P. J., Banke, P. J., and Carley, J., dissent.

Beasley, Judge,

concurring specially.

I concur.

What we have here is basically a question of statutory use of words describing conduct. It is a matter of communication, not only the legislature communicating to the court which must construe the statute but more importantly to the members of the public who must govern themselves within its confines and to criminal defendants who must prepare defenses to charges that they engaged in prohibited conduct, and to public prosecutors who must fashion the particular charge which the defendant must answer. See DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969); Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978).

In this case we have a problem of focus. The state chose to focus on the verb “to alter” and not the verb “to interchange.” The legislature made both activities criminal and made them both categories of theft by shoplifting, which itself is a type of theft. Each describes a method, or manner, or way, of behaving so as to constitute shoplifting. The focus is different in the use of each verb. It is a matter of emphasis; which part of the person’s behavior is complained of as being criminal by this indictment? This selected emphasis can materially affect the defense, its theory, its preparation, its rationale.

By creating this list of expressly defined methods, the legislature has made each mutually exclusive of the others, insofar as the legal description of the behavior is concerned. That is not to say that the total behavior of a person does not overlap from one description into another. He might in fact use both prohibited methods. But that is overlap of fact and not overlap of legal description. The components of the person’s total activity may be comprised of one or more of the statutory focuses. If that occurs, the prosecutor can charge all of them, leaving to the jury which one to convict of. While the legal descriptions are mutually exclusive, the total act may not with mutual exclusivity be forced into only one of the legal descriptions.

As shown in Hickey v. State, 125 Ga. 145, 147 (53 SE 1026) (1906), if the act in fact constitutes both descriptions or definitions of a multi-method crime, the state need charge only one. The presence of the other as well does not require a charge of both. The implication is that the statutory descriptions themselves are mutually exclusive.

The question in this case is whether the components of defendant’s total act in fact constituted “alter” as well as the statutorily mutually exclusive “interchange.” They did not, because there was not a factual basis fitting the statutorily-described act of “altering” in addition to a factual basis fitting the statutorily-described act of “interchanging,” a different method.

Deen, Presiding Judge,

dissenting.

Under DePalma v. State, 225 Ga. 465 (169 SE2d 801) (1969), an accusation must definitely inform the accused of the charges against him so that he may prepare a defense and not be surprised at trial, and protect an accused against another prosecution for the same offense. That criteria was met in the instant case, and the majority opinion reaches the opposite conclusion only by observing strict, highly technical dictionary definitions of two words, at the expense of seeking substance and the justice of a common sense approach.

In this case, the appellant was accused of shoplifting by altering the price tags on some merchandise, specifically by changing the prices on those items. The proof adduced at trial showed that the appellant actually substituted the price tags with those of less expensive goods. The majority is unable to present a convincing explanation of how the accusation in this case failed to inform the appellant of the charges against her so that she could prepare a defense, avoid surprise at trial, and be protected against another prosecution for the same offense.

The appellant’s conduct fell within the prohibitions of two subsections of OCGA § 16-8-14 (a). Perhaps it would have been preferable to accuse the appellant under OCGA § 16-8-14 (a) (4), which specifically concerns interchanging prices, but no strained construction is necessary to conclude that OCGA § 16-8-14 (a) (2), dealing with altering price tags, was suitable. Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978), is not controlling here, since in Walker the two Code subsections did not prohibit the same conduct.

Decided July 2, 1987.

Alex L. Zipperer III, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

In summary, no sound reason exists for finding a fatal variance between the accusation and the proof in this case. Accordingly, I must respectfully dissent.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this dissent.


text:
    74050, 74051.
    MEACHAM v. BARBER et al. (two cases).
    (359 SE2d 424)
   Carley, Judge.

Mark Meacham is the appellant-plaintiff in Case Number 74050. He lost control of his vehicle while negotiating a curve in a two-lane highway. At the time of this occurrence, appellee-defendants were engaged in cutting pulpwood on property which was adjacent to one side of the highway and, according to the allegations of the complaint that Mr. Meacham filed against appellees, those pulpwooding activities had resulted in an accumulation of mud on the surface of the highway. Mr. Meacham’s complaint further alleged that the loss of control over his vehicle and his resulting injuries were proximately caused by appellees’ negligence in allowing this slippery condition to develop and to remain on the highway. See generally Hardy v. Brooks, 103 Ga. App. 124, 126 (2) (118 SE2d 492) (1961). Mr. Meacham’s wife is the appellant-plaintiff in Case Number 74051. She filed her separate action against appellees, seeking damages for loss of consortium. The two actions were consolidated for a single trial before a jury. The jury returned verdicts in favor of appellees. Appellants Mr. and Mrs. Meacham filed separate notices of appeal, but identical enumerations of error. Accordingly, the two appeals are hereby consolidated for appellate disposition in this single opinion.

1. Over objection, appellees were allowed to cross-examine Mr. Meacham with regard to his involvement in three prior traffic mishaps. The trial court’s failure to sustain the objection to this line of inquiry is enumerated as error.

“As a general rule in all negligence actions, evidence of similar acts or omissions is not admissible. [Cits.] However, ‘[i]f proof of a similar accident or similar method of acting tends to prove some fact of the case on trial, the [evidence then] falls within an exception’ ” to the general rule and will be admissible as proof of that presently relevant fact. Gunthorpe v. Daniels, 150 Ga. App. 113 (1) (257 SE2d 199) (1979). In urging the applicability of this limited evidentiary exception to the general rule of inadmissibility of prior events, it is necessary to show more than the mere previous occurrence of a similar incident. “‘[I]t is necessary that the conditions of the things [to be] compared be substantially similar.’ [Cit.]” Carlton Co. v. Poss, 124 Ga. App. 154, 155 (3) (183 SE2d 231) (1971), aff’d 228 Ga. 402 (185 SE2d 803) (1971). Appellees initially urge that Mr. Meacham’s prior involvement in all three of the traffic mishaps was relevant for the limited purpose of showing that his injuries may have been attributable to those prior unrelated occurrences rather than to their alleged negligence. See generally Goforth v. Wigley, 178 Ga. App. 558, 560 (2) (343 SE2d 788) (1986). However, insofar as appellees would urge the relevancy of a comparison of injuries, it would be necessary to show the existence of a substantial similarity between Mr. Meacham’s purported present injuries and any prior injuries with which the comparison is to be made. See Carlton Co. v. Poss, supra. Appellees did not adduce any evidence that Mr. Meacham had been physically injured in any of his three prior traffic mishaps. Compare Barnes v. Cornett, 134 Ga. App. 120 (213 SE2d 703) (1975); Goforth v. Wigley, supra. If there was no showing that Mr. Meacham had suffered any injuries whatsoever in his three prior traffic mishaps, there is no merit in ap-pellees’ contention that the evidence as to the occurrence of those prior mishaps would be relevant and admissible under the exception that they urge. There would be nothing from which the jury could find that Mr. Meacham’s alleged present injuries were, either in whole or in part, the result of his involvement in those prior traffic mishaps.

Apparently, one of the three prior incidents had occurred when Mr. Meacham lost control of his vehicle while negotiating exactly the same curve in the highway where he had lost control of his vehicle on this occasion. Appellees further urge that evidence as to this single prior mishap would be relevant to the limited issue of whether the curve in the highway had been a causal factor in the events under present consideration. See generally Reed v. Heffernan, 171 Ga. App. 83, 84 (la) (318 SE2d 700) (1984). In specific, appellees contend that this prior incident would support their contentions that the curve itself was dangerous and that Mr. Meacham had personal knowledge of that danger. See generally Wright v. Dilbeck, 122 Ga. App. 214, 216 (4) (176 SE2d 715) (1970).

Had appellees adduced any evidence that the curve in the highway had been a causal factor in the earlier event, there might be merit in the asserted relevancy of the occurrence of that event as proof of the existence of a dangerous condition and Mr. Meacham’s knowledge thereof. See generally City of Augusta v. Hafers, 61 Ga. 48 (3) (1878); Gilmer v. City of Atlanta, 77 Ga. 688 (1) (1886); City of Dublin v. Howell, 68 Ga. App. 463 (23 SE2d 177) (1942). However, the record is totally silent as to the cause of the earlier incident. That a driver lost control of his vehicle while traversing the curve in a highway is not, standing alone, evidence that the curve itself is dangerous and was a causal factor in the occurrence. On the record before us, that the cause of Mr. Meacham’s prior traffic mishap was a potentially dangerous curve is merely speculative conjecture. It just as easily may have been the result of a mechanical failure, a tire blowout, or any number of causes in which the configuration of the highway itself played no part. Compare Reed v. Heffernan, supra (evidence that a prior incident occurring at the curve in question had been caused by hydroplaning was admissible to elucidate the present defensive contention that hydroplaning was the cause of the incident that was then under consideration). If there was no evidence to show that the curve had been a causal factor in the prior occurrence rather than merely the geographic location where the prior mishap occurred, there is no merit in appellees’ contention that the evidence as to the occurrence of that mishap would be relevant and admissible under the exception that they urge. Likewise, the evidence of the prior mishap at the curve would not be relevant to impeach Mr. Meacham’s testimony that the curve was as “safe as the rest of the road.” Had the curve merely been the location of Mr. Meacham’s prior mishap rather than an actual causal factor in its occurrence, proof merely that there had been a prior occurrence at the curve would not be impeaching of Mr. Meacham’s current opinion as to the relative safety with which one could traverse the curve.

“While the relevancy of other occurrences is ordinarily within the sound discretion of the court, ‘it is necessary that the conditions of the things compared be substantially similar.’ [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. [Cits.]” Carlton Co. v. Poss, 124 Ga. App. supra at 155 (3). Here, there was no showing of any substantial similarity between the physical injuries, if any, sustained by Mr. Meacham in the three prior traffic mishaps and those injuries which he had allegedly incurred as the result of this incident. There was no showing of any substantial similarity between the causal factors in the occurrence of this present mishap and the occurrence of Mr. Meacham’s prior loss of control of his vehicle while negotiating the curve. Thus, the only possible inference arising from the introduction of the evidence of the three prior occurrences is that Mr. Meacham had been negligent on those three occasions and that he had, therefore, probably been negligent on this occasion as well. The trial court erred in admitting the evidence and that error requires the grant of a new trial.

2. “[I]t is proper in a negligence action, where the plaintiff has made out a prima facie case, for the court to charge the jury that the burden is on the defendant to establish by a preponderance of the evidence that the plaintiff’s injuries were caused by his own negligence or contributory negligence if the defendant relies on such defense. . . Garner v. Sharp, 111 Ga. App. 47, 48 (3) (140 SE2d 511) (1965). Appellants made a written request for such instruction. Compare Garner v. Sharp, supra; Whitman v. Burden, 155 Ga. App. 67 (2) (270 SE2d 235) (1980). The trial court’s refusal to give this requested instruction is enumerated as error.

Appellees make no contention that appellants’ written request, as phrased, was not a sufficiently non-argumentative statement of an otherwise applicable legal principle in the cases. Nowhere in the charge as it was actually given by the trial court was the legal principle contained in appellants’ refused request otherwise addressed. Indeed, the charge as it was actually given by the trial court could easily be misconstrued by the jury as imposing the burden upon appellants of proving not only appellees’ negligence but also the burden of proving the absence of any contributory negligence on the part of Mr. Meacham. Cf. Whitehead v. Seymour, 120 Ga. App. 25, 26 (1) (169 SE2d 369) (1969). “An instruction erroneously casting the burden of proof on the losing party as to a substantial issue in the case is usually reversible error. [Cit.]” Whitehead v. Seymour, supra at 27 (1). Under the circumstances of this case, the refusal to give appellants’ written request was error. Assuming that the evidence adduced at the retrial of these cases is the same as that which was adduced here, such a charge should be given if it is again requested in writing.

3. The trial court’s giving of a charge on the principle of assumption of the risk is enumerated as error. Assumption of the risk “assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” Whitehead v. Seymour, supra at 28 (4). The alleged dangerous condition in this case was an accumulation of mud on the surface of a highway. Appel-lees contend that, insofar as the evidence authorized a finding that Mr. Meacham had actually seen the mud before his vehicle reached it, he assumed the risk of voluntarily encountering it, which risk included the loss of control of his car.

Construing the evidence most favorably for appellees, one of two findings would be authorized: Either Mr. Meacham was driving too fast for conditions and, upon observing the mud, had been unable to slow his vehicle to a safe speed before encountering it, or he had observed the mud within a sufficient amount of time to slow his vehicle to a speed which would otherwise enable him to pass through it safely but he had simply neglected to do so. This evidence raises the issue of whether Mr. Meacham had been contributorily negligent in the manner in which he encountered the mud, not his voluntary assumption of the risk of losing control over his vehicle. “ ‘In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.’ ” Roberts v. King, 102 Ga. App. 518, 521 (1) (116 SE2d 885) (1960). There was no evidence that the accumulation of mud was such that, regardless of the precautions taken by any driver who voluntarily chose to encounter it, no vehicle could pass through it without the risk of sliding. Compare Deere & Co. v. Brooks, 250 Ga. 517 (299 SE2d 704) (1983). Under the evidence, a driver, who in the exercise of ordinary care had observed the mud within a sufficient amount of time to make a voluntary choice as to how to proceed, could presumably have undertaken precautions enabling him to drive through it in such a manner as to avoid the risk of sliding. Compare Deere & Co. v. Brooks, supra. The only issue was whether Mr. Meacham had neglected to take those precautions. “To have applied the doctrine here would require that whenever one drives a motor vehicle on any street or highway he would be subject to the doctrine of assumption of the risk. This is simply beyond the meaning of the [doctrine].” Myers v. Boleman, 151 Ga. App. 506, 510 (3) (260 SE2d 359) (1979). It follows that the trial court erred in giving a charge on assumption of the risk. Assuming that the evidence presented at the retrial of these cases is the same as that which was adduced here, no charge on assumption of the risk should be given.

4. The trial court’s giving of a charge on legal accident is enumerated as error.

“ ‘An “accident,” in law, refers to an event not proximately caused by negligence but which instead arises from an unforeseen or unexplained cause.’ [Cit.]” Chadwick v. Miller, 169 Ga. App. 338, 339-340 (1) (312 SE2d 835) (1983). Here, the undisputed evidence showed only that Mr. Meacham’s loss of control over his vehicle was either the result of his encountering the mud on the roadway or it was the result of his own actions or inactions taken prior to encountering the mud or it was the combined result of both. Compare Sellers v. Lawrence, 178 Ga. App. 734 (344 SE2d 710) (1986). Thus, there was no evidence to authorize a finding that Mr. Meacham’s mishap had been caused by anything other than appellees’ alleged negligence or Mr. Meacham’s own alleged contributory negligence or a combination thereof. Compare Reed v. Heffernan, supra at 84 (la). Since the evidence “would only authorize findings that the [mishap] was the result of the negligence of either [appellees] or [Mr. Meacham] or of both combined . . . , the instant case clearly does not come within the ‘strict’ definition of legal accident. ...” (Emphasis in original.) Dur- den v. Collins, 169 Ga. App. 347, 349 (4) (312 SE2d 842) (1983). “The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.] The charge on accident was totally unauthorized in the instant case. . . .” (Emphasis in original.) Chadwick v. Miller, supra at 344 (1). If at retrial of these cases, the evidence is the same as that which was adduced here, no charge on legal accident should be given.

5. The trial court gave the following charge: “[T]he failure of [appellants] to call as a witness in this case doctors who treated [Mr. Meacham] for the claimed injuries arising out of this occurrence, without showing why they could not be produced, raises a presumption that their testimony would have been unfavorable to [appellants], but this presumption may be rebutted.” The giving of this charge is enumerated as error.

Appellees cite OCGA § 24-4-22 as authority for this charge: “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” However, this is not a case wherein appellants failed to introduce the testimony of any of the physicians who had treated Mr. Meacham for the injuries that he had allegedly suffered in this incident. The depositions of numerous physicians who had treated Mr. Meacham subsequent to this occurrence were introduced into evidence by appellants. Although these physicians may not have appeared to testify in person, their deposition testimony was certainly not of a “weaker and inferior nature.” See OCGA § 9-11-32. Cf. McKnight v. Wilson, 158 Ga. 153 (2) (122 SE 702) (1924). As it was phrased, the contested charge undoubtedly could have the erroneous effect of confusing and misleading the jury as to the evidentiary consideration to be given to the deposition testimony of Mr. Meacham’s physicians.

Appellees further urge that, insofar as appellants failed to produce testimony from all of Mr. Meacham’s physicians, whether by deposition or in person, Taylor v. Associated Cab Co., 110 Ga. App. 616 (139 SE2d 519) (1964) constitutes authority for the giving of the contested charge. Taylor does not even constitute authority for the proposition that, under such evidentiary circumstances, a charge on OCGA § 24-4-22 would be authorized and it is certainly not authority for the charge that was given here. Taylor in no way purports to address the issue of jury charges. The holding in Taylor was merely that medical testimony would be required to secure the admission of certain medical bills and, indeed, Taylor no longer constitutes viable authority for even that principle. See Eberhart v. Morris Brown College, 181 Ga. App. 516 (352 SE2d 832) (1987).

Decided July 2, 1987.

Thomas W. Thrash, Jr., Richard W. Hendrix, for appellant.

John M. Taylor, B. Holland Pritchard, for appellees.

We need not decide whether the mere failure to call all physicians, regardless of their ostensible knowledge of the contested issues in a case, would be sufficient to authorize a charge on the principles of OCGA § 24-4-22. But see Trammell v. Williams, 97 Ga. App. 31, 33-34 (1) (101 SE2d 887) (1958), holding that “[w]hile a party need not account for every witness who has knowledge of facts pertinent to his cause or defense ([cit.]), where the testimony of available witnesses is material to his cause or defense, the witnesses must be produced or the inference will arise that their testimony would be unfavorable to the party who fails to produce them. [Cits.]” (Emphasis supplied.) The charge that was actually given in this case was misleading under the existing evidentiary circumstances and, if the depositions of some of Mr. Meacham’s physicians are introduced at the retrial of this case, the trial court should refrain from reemploying it.

Judgments reversed.

Banke, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    74167, 74168.
    BULLARD et al. v. CARRERAS; and vice versa.
    (359 SE2d 429)
   Sognier, Judge.

Manuel Carreras brought an action against Mary Bullard to collect $175,000 pursuant to a promissory note and guaranty agreement Bullard had co-signed. The jury found in favor of Carreras and judgment was entered on the verdict on May 16, 1985. Bullard filed a notice of appeal on June 17, 1985. On July 12, 1985, the trial court granted Bullard’s motion for judgment notwithstanding the verdict and Carreras filed his notice of appeal. The cases are consolidated in this opinion.

1. We note that it appears of record that costs in the trial court were not paid until October 24, 1986, and thus the notice of appeal filed by Bullard on June 17, 1985 did not act as a supersedeas under OCGA § 5-6-46 (a) as to the order on Bullard’s motion for judgment n.o.v. Chappelaer v. Gen. GMC Trucks, 130 Ga. App. 664, 665 (1) (204 SE2d 326) (1974).

2. Bullard was ordered by this court pursuant to Rules 27 (a) and 14 of the Court of Appeals, to file an enumeration of error and brief in Case No. 74167 no later than January 19, 1987. Bullard having failed to file an enumeration of error and brief as ordered, her appeal is accordingly dismissed.

3. Carreras (hereinafter appellant) contends the trial court erred by granting the motion for judgment n.o.v. made by Bullard (hereinafter appellee). “ ‘(W)e will labor to retain intact the verdict returned by the jury to whom our system has entrusted the dispensing of justice.’ [Cit.] ... [A judgment n.o.v.] ‘ “may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded.” ’ [Cit.] It may not be granted ‘even where the evidence strongly supports but does not demand a particular finding.’ [Cit.]” Coates v. Mulji Motor Inn, 178 Ga. App. 208, 209 (2) (342 SE2d 488) (1986).

The evidence adduced at trial shows that appellee’s husband (now deceased) and Ray Minter, who were allegedly partners, persuaded appellant to finance a disco-dining venture in Roswell, Georgia. Appellee, her husband, Ray Minter and his wife were all present in the office of appellant’s attorney, John Calhoun, Jr., and signed, in turn, a voluminous number of documents, including the promissory note and guaranty agreement in question here. Each party received a duplicate original of the promissory note; however, because the signature of the fifth co-signer, W. H. Burks, was subsequently obtained, appellant’s duplicate original was the only promissory note with all five signatures on it. Appellant testified that the guaranty agreement admitted into evidence was an incomplete copy of the original, which had been lost. Appellant’s copy of the guaranty agreement reflected both appellee and her husband had signed; the spaces for the Minters’ signatures were blank. However, there was evidence as to the regularity of the signing of documents by the parties from which the jury could have inferred the guaranty agreement was properly executed. Further, a financing agreement, also executed during this meeting and signed by all the parties, recited that “[simultaneous with the execution of this agreement, [appellee and her husband and the Minters] are executing a ‘Guaranty Agreement’ in favor of [appellant], promising the repayment of the funds provided hereunder, in the event the [disco-dining venture] does not repay said amounts in the time provided in said promissory notes, executed concurrently with this agreement.”

The trial court granted appellee’s motion for judgment n.o.v. on the bases that (a) the jury did not have the original promissory note before them and (b) the “document” evidencing the contract showed a shift or material increase in the risk assumed by appellee, thus discharging her liability under the contract. See generally Holcombe v. Eng, 163 Ga. App. 343, 344 (294 SE2d 568) (1982).

(a) We agree with appellant that the trial court erred by finding the jury did not have an original of the promissory note before it. The evidence adduced at trial reveals that the parties executed several duplicate originals of the promissory note. See Raulerson v. Jones, 122 Ga. App. 440, 441 (1) (177 SE2d 181) (1970). Appellant testified that his exhibit, P-1, was such an original of the promissory note and that it was signed in his presence on October 23, 1978 (the date recorded on the note) by all the parties except W. H. Burks, who signed subsequently. Edward Merrell, president of the corporation formed to run the disco-dining venture, testified that P-1 evidenced his signature on behalf of the corporation and that the other parties to the note, with the exception of Burks, signed the note the same time he did.

The reasoning behind the trial court’s grant of judgment n.o.v. to appellee appears to involve discrepancies between exhibit P-1 and exhibit D-16 introduced by appellee and admitted over objection. Exhibit D-16 was introduced during appellee’s examination of a handwriting analysis witness, as part of appellee’s defense alleging her signatures on all the documents were forged. Exhibit D-16 consists of a photocopy of the text of the promissory note with the signatures only of appellee, her husband and the Minters; absent are the signatures either of Merrell or Burks or the date of the signing. In the discussion concerning the admission of D-16, appellee’s attorney told the trial court he had obtained D-16 from appellant during the discovery process as a photocopy of appellant’s original promissory note. Appellant’s attorney stated he had not been involved with the discovery process, but that he had never seen a document without the signatures shown on P-1 until viewing D-16 that very day.

The trial court stated in its order that based on argument made during the hearing on the motion, it found that neither exhibit P-1 nor exhibit D-16 appeared to be an original and neither appeared to be completed fully in that all the signatures were not filled out on either exhibit. Since the trial transcript before this court reveals exhibit P-1 to be a complete and fully signed promissory note, it would appear the trial court’s statement that P-1 was not complete and fully signed is based on a determination that D-16 is a photocopy of P-1 and because D-16 is missing two signatures and a date, then the two signatures and date now present on P-1 were added subsequent to the photocopying of D-16.

However, even assuming this explanation correctly reflects the reasoning behind the trial court’s order, it is a well-established rule that the record as it exists at the close of the trial controls as to whether a motion for judgment notwithstanding the verdict should be granted. Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 670 (92 SE2d 567) (1956); DeLoach v. Myers, 215 Ga. 255, 256 (1) (109 SE2d 777) (1959); Consolidated &c. Corp. v. Syncroflo, 164 Ga. App. 275, 277 (2) (294 SE2d 643) (1982). Under this rule the trial court may not on motion for judgment n.o.v. eliminate evidence and then dispose of the case on the basis of the diminished record. See Wooten, supra. As recited above, the record at the close of the trial contained evidence which, to say the least, would have authorized the jury to find that appellant’s exhibit P-1 was a fully completed original of the promissory note and thus the trial court erred by granting appellee’s motion for judgment n.o.v. on this issue. See generally Horton v. City of Macon, 144 Ga. App. 380, 383 (2) (241 SE2d 311) (1977).

(b) The other basis for the trial court’s grant of judgment n.o.v. involves appellant’s apparent failure to obtain real property as collateral for the loan from all five co-signatories, subjecting appellee to an increased risk and exposing her to greater liability, which thereby discharged or released appellee. Above the signatures of appellee and her four co-obligors on the promissory note was the heading “CO-SIGNERS PROVIDING REAL PROPERTY AS COLLATERAL FOR THIS NOTE.” However, the promissory note did not specify what interest the parties were required to have in the real property pledged as collateral. The note merely denominated three counties wherein was situated the property to be so pledged. Although it is uncontro-verted that none of the deeds to secure debt executed as to the three pieces of property pledged as collateral reflected the Minters as owners thereof, there was evidence indicating Ray Minter held the first mortgage on one of the properties pledged by appellee’s husband; and that because W. H. Burks was indebted to Minter, Minter got Burks to pledge property for his [Minter’s] contribution to the collateral.

We need not determine whether the jury would have been authorized to find from this evidence adduced at trial that the Minters did, inferentially, “provide” collateral to secure the promissory note. Rather, we need only look to the guaranty, shown to have been signed by appellee, which provided that the guarantors consented and agreed that “[appellant] may, without prejudice to any claim against Guarantor [s] hereunder, at any time, or from time to time, at [appellant’s] sole discretion, and without notice to Guarantor[s]: ... 2. Exchange, release, or surrender any or all collateral security which [appellant] may at any time hold in connection with any obligation hereby guaranteed . . . .” OCGA § 11-3-606, cited by the trial court, is therefore inapplicable in view of this provision expressly reserving appellant’s rights.

We further reject the argument made by appellee before the trial court (there being no appellee brief before this court) that appellant had to “hold” the collateral the Minters provided or intended to provide pursuant to the promissory note before appellant could exercise his right to release utterly that collateral. The long-standing rule that an increase in risk discharges a guarantor is based on the rationale that an increase in risk causes injury or impairment to the obligation of the co-maker or co-guarantor. The injury generally arises because the co-guarantor is both jointly and severally liable on the entire note. See Holcombe, supra at 344. Appellee, by signing the guaranty agreement, authorized appellant to increase, decrease, or release — unilaterally and without notice to her — the risk and responsibility she assumed as a co-guarantor. Thus, there was and could be no injury or impairment to appellee’s obligation which was not authorized by ap-pellee under the terms of the documents she signed absent a showing of fraud, accident or mistake. Further, there is no indication that fraud, accident or mistake were involved insofar as appellee was concerned in that the evidence shows the parties signing the documents knew what they were signing, fully understood the risks and responsibilities involved in the disco-dining venture, and knew that the three properties pledged would serve as the sole collateral for the loan. See generally Bentley v. Nat. Bank of Walton County, 175 Ga. App. 732, 733 (334 SE2d 331) (1985).

Decided July 2, 1987.

Mary W. Bullard, pro se.

Douglas R. Daum, for appellee.

Accordingly, we find the trial court erred by granting appellee’s motion for judgment n.o.v.

Judgment reversed in Case No. 74168. Appeal dismissed in Case No. 74167.

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