text:
    77464.
    HOLLOWAY v. THE STATE.
    (379 SE2d 542)
   Benham, Judge.

In this appeal from his conviction for armed robbery, appellant raises as issues the sufficiency of the evidence and the admission of certain evidence.

1. The clerk of a shoe store testified that he was robbed by two men. One of them wore a red jogging suit and pointed a pistol at the clerk, ordering him to lie facedown in the back room of the store. The clerk testified that a pistol shown him at trial (the evidence showed it was taken from appellant’s car when he was arrested) was not inconsistent with the weapon pointed at him during the robbery, but that his inexperience with firearms prevented him from determining with certainty whether it was the same gun. Although the clerk could not watch the robbery because he was lying facedown, his hands taped together behind him, and his head covered by a cloth, he testified that he listened to the robbers and, when asked, told one of them how to open the cash register. After he could not hear them anymore, the clerk managed to get his hands loose and go for help. The robbers were gone and so was a large quantity of merchandise and money and two large boxes. Another witness testified that he lived in a nearby apartment complex and that he had gone to the shopping center containing the shoe store to buy a newspaper on the day the robbery occurred. As he approached the shopping center, he testified, he saw a car parked in the apartment complex parking lot and spoke to the driver, whom he identified as appellant. On his way back with his newspaper, the witness saw a man wearing a red jogging suit walk out of the shoe store carrying a large box. That man walked ahead of the witness, and another man carrying a large box came out of the shoe store after the witness passed. As the first man approached the car the witness had noticed, the driver got out and opened the trunk of the car. The witness observed that appellant walked as though one leg were shorter than the other; evidence at trial established that appellant has a prosthetic leg as a result of a wound suffered in Vietnam. The witness testified that he stopped to converse with a friend and watched both of the men who carried boxes out of the shoe store load the contents of them into the trunk of the car. Although he did not get the license plate number of the car at that time, the witness testified that he saw the car in the same shopping center’s parking lot several times thereafter and noted the license plate number on another occasion. In addition to identifying appellant at trial as the man he saw waiting in a car on the day of the robbery, the witness made the same identification in a photo lineup.

We find that evidence sufficient to authorize any rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Thompson v. State, 186 Ga. App. 421 (1) (367 SE2d 586) (1988). It follows, therefore, that there was no error in denying appellant’s motion for a directed verdict of acquittal. Garrett v. State, 184 Ga. App. 715 (3) (362 SE2d 423) (1987).

2. Citing Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88) (1987), appellant contends that the trial court committed reversible error by admitting into evidence a mug shot of him which showed on its back that it was from the files of the sheriff’s department. However, in Roundtree and in Justice Weltner’s special concurrence in Clark v. State, 249 Ga. 18 (287 SE2d 523) (1982), cited in Roundtree, an important element was that the caption on the photograph revealed that it was taken on a date prior to the offense in question, thereby indicating a previous arrest of the accused and putting his character in issue. In the present case, however, the date on the back of the photograph was more than a month after the date the crime here was committed and was one day after appellant was arrested for this robbery. A photograph made at the time of an accused’s arrest does not suggest that there were prior arrests so as to put his character in issue. Anderson v. State, 152 Ga. App. 268 (2) (262 SE2d 560) (1979). Since there was nothing on this photograph to indicate that it was made on a prior occasion, and the only date on it was shortly after his arrest, we find no undue prejudice to appellant in its admission and, consequently, no error.

3. In his final enumeration of error, appellant complains of the admission into evidence of red athletic clothing and a pistol found in his car. The basis of his complaint is that the testimony at trial did not establish that the clothes were those worn by one of the robbers or that the pistol was the same one used in the robbery.

We find no error in the admission of the evidence. First, the items were admissible as a circumstance of appellant’s arrest. Shaw v. State, 179 Ga. App. 807 (3) (348 SE2d 132) (1986). In addition, as to the pistol, “it appears without dispute'that the crime was committed with a pistol, and it would make no material difference whether or not the pistol found [when appellant was arrested] was the particular gun with which the crime was committed. The identification was sufficient to authorize the jury to decide, under the evidence relative to identification, whether or not it was the identical weapon used by the [robber].” Jung v. State, 237 Ga. 73 (1) (226 SE2d 599) (1976). The same holding could be used to justify the admission of the red athletic garb seized from appellant’s car, but even if its admission were error, we find it harmless beyond a reasonable doubt; testimony elicited by the State established that the clothes seized from appellant’s car were not those worn by one of the robbers.

Decided February 14, 1989

Rehearing denied March 1, 1989.

Joseph M. Todd, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    77467.
    77468.
    VILLA v. THE STATE. SANTOVENIA v. THE STATE.
    (379 SE2d 417)
   McMurray, Presiding Judge.

Defendants were indicted jointly for trafficking in cocaine, theft by taking and escape. A review of the evidence adduced at a joint jury trial revealed the following.

In the early morning hours of February 12, 1987, defendants were traveling north on Interstate 95 through McIntosh County, Georgia when the vehicle in which they were traveling overturned. Officers from the McIntosh County Sheriff’s Department and from the Georgia State Patrol arrived at the scene and searched the overturned vehicle. They found no contraband. Bobby Porch of L & B Wrecker Service was summoned and he removed the overturned vehicle to his place of business, L & B Service Center. Defendants went with Porch to the service center and, after the wrecked vehicle was unloaded, Porch observed defendant Santovenia remove the out-of-state license plate from the wrecked vehicle. (Upon inquiry, defendants informed Porch that they intended to use the license plate on another vehicle.) Porch also observed defendant Villa take a pair of boots from the vehicle, remove “a black-looking” plastic bag from the boots and “put it into his pants. . . .” Defendant Villa transferred the black plastic bag from his pants to a suit bag. Defendants then requested Porch to take them to a nearby Chevron service station. Porch agreed to do so but, prior to leaving he contacted the McIntosh County Sheriff’s Office because he suspected that the wrecked vehicle was stolen.

Officer Zorn of the Darien City Police Department arrived at the Chevron station and detained defendants for Deputy Proudfoot of the McIntosh County Sheriff’s Office. When Deputy Proudfoot arrived, he inquired about the removal of the license plate from the wrecked vehicle. Defendant Villa informed the deputy that he intended to “put [the license plate] on another vehicle.” Deputy Proudfoot then asked defendant Villa if he could search a suit bag that was lying on the ground near defendants. Defendant Villa consented.

When the suit bag was opened, Deputy Proudfoot discovered a black plastic bag which contained a substance appearing to be cocaine. Officer Zorn asked the defendants what the substance was and defendant Villa told him that “it was medicine.” After Officer Zorn made further inquiry, defendants were placed under arrest. However, they resisted and fled in Officer Zorn’s patrol car. A high speed chase ensued and concluded with defendants’ apprehensions. It was later discovered that the substance found in the suit bag contained over 193 grams of pure cocaine. From this and other evidence adduced at trial, defendants were found guilty of the crimes charged. Defendant Villa appeals in Case No. 77467 and defendant Santovenia appeals in Case No. 77468. Held:

Case No. 77467

1. In his first enumeration of error, defendant Villa contends the trial court erred in denying his motion to suppress evidence, arguing that Deputy Proudfoot had no probable cause to search the suit bag.

“Pretermitting any questions concerning probable cause, we find the search was lawful because it was conducted pursuant to the consent of defendant [Villa]. ‘ “Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent.” McKendree v. State, 133 Ga. App. 295, 296 (211 SE2d 154); State v. Rivers, 142 Ga. App. 96 (235 SE2d 393). A consent to search must be the product of an essentially free and unrestrained choice by its maker. Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854). [In the case sub judice, there] is no indication there were any coercive acts by the [officers] or involuntary acts by the [defendants]. “(T)he trial court’s decisions on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Lego v. Twomey, 404 U. S. 477 (1972); United States v. Watson, 469 F2d 362, 365 (5th Cir. 1972); Johnson v. State, 233 Ga. 58 (209 SE2d 629),” Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689). The trial judge did not err in denying the motion to suppress.’ Williams v. State, 151 Ga. App. 833, 834 (261 SE2d 720). Accord Fuller v. State, 165 Ga. App. 55, 57 (299 SE2d 397).” Wilson v. State, 179 Ga. App. 780 (1), 782 (347 SE2d 709).

2. Next, defendant Villa contends the trial court erred in failing to conduct a hearing on his motion for change of venue.

Defendant Villa filed a motion for change of venue before arraignment, on the morning of trial and alleged that he could not obtain a fair and impartial jury because “[t]he present social and political climate in [the county of his trial] is such that pretrial publicity is prejudicial and inflamatory to a degree that a fair trial cannot be had. . . .” During voir dire, defendant Villa requested that a hearing be conducted on his motion. The trial court denied the motion and stated that the motion for change of venue was “not timely filed.” Although defendant Villa filed his motion for change of venue on the morning of trial, the motion was timely filed before arraignment.

“ ‘ “Where an application is made by one accused of crime, for change of venue on the ground that an impartial jury can not be obtained, the law devolves on the trial judge the duty and responsibility of making an examination and informing himself of the truth of the averments in the application. . . .” Coleman v. State, 141 Ga. 737 (82 SE 227); Best v. State, 26 Ga. App. 671 (1) (107 SE 266).’ Wilson v. State, 28 Ga. App. 574 (112 SE 295).” Grenoble v. State, 41 Ga. App. 663, 664 (154 SE 304). In Case No. 77467, the trial court should have conducted a hearing in order to allow defendant Villa an opportunity to present evidence in support of his motion for change of venue. Consequently, we remand Case No. 77467 to the trial court for a hearing and appropriate findings concerning the issue raised by defendant Villa’s motion for chánge of venue and determination of whether a new trial is necessary. As this concludes the present appeal, in order for there to be an appellate review of some future order entered by the trial court, the appropriate appellate procedure must be followed.

3. In his final enumeration of error, defendant Villa contends the trial court erred in “charging parties to a crime where an indictment charges trafficking which requires actual possession.” This contention is without merit. See Barrett v. State, 183 Ga. App. 729, 733 (2), 735, 736 (360 SE2d 400). However, assuming the contrary, there was no harm to defendant Villa as there was more than sufficient evidence to enable a rational trier of fact to find, beyond a reasonable doubt, that defendant Villa was in actual physical possession of the cocaine and guilty of the offense of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Case No. 77468

4. In his first and second enumerations of error, defendant Santovenia contends the trial court erred in denying his motion to suppress and his motion for new trial, arguing that the law enforcement officers were without probable cause to search the suit bag in which the cocaine was discovered. This argument is without merit for the reasons stated in Division 1 herein.

5. In his final enumeration of error, defendant Santovenia challenges the sufficiency of the evidence, arguing that his presence at the scene of the crime is insufficient to sustain his conviction for trafficking in cocaine.

“OCGA § 16-2-20 (b) (Code Ann. § 26-801) provides, in pertinent part, that ‘(a) person is concerned in the commission of a crime only if he: (1) directly commits the crime;. . . (or) (3) intentionally aids or abets in the commission of the crime . . .’ Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but ‘ “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” ’ Jones v. State, 242 Ga. 893 (252 SE2d 394). . . . Criminal intent may also be demonstrated by defendant’s ‘words, . . . demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6 (Code Ann. § 26-605); Brooks v. State, 151 Ga. App. 384 (259 SE2d 743) (1979).” Parham v. State, 166 Ga. App. 855, 856 (1) (305 SE2d 599).

In the case sub judice, defendant Santovenia was not only at the scene of the crime, he and his companion, defendant Villa, were traveling in a vehicle in which over 193 grams of pure cocaine were transported. Most persuasively, however, was defendant Santovenia’s reaction when confronted by the law enforcement officers with the suspected cocaine. He and defendant Villa stole a patrol car and fled the scene, attempting to elude several law enforcement officers who were in hot pursuit. This evidence and other evidence adduced at trial was sufficient to enable a rational trier of fact to find defendant Santovenia guilty, beyond a reasonable doubt, of the offense of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307, supra. See Barrett v. State, 183 Ga. App. 729, 733 (2), supra. Compare Crenshaw v. State, 183 Ga. App. 527 (1), 528 (359 SE2d 419).

Judgment affirmed in Case No. 77467 and case remanded for a hearing pursuant to Division 2. Judgment affirmed in Case No. 77468.

Pope and Benham, JJ., concur.

Decided February 15, 1989

Rehearings denied March 1, 1989.

William 0. Cox, for appellant (case no. 77467).

0. Dale Jenkins, Samuel G. Oliver, for appellant (case no. 77468).

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    77484, 77485.
    HATFIELD v. GREAT AMERICAN MANAGEMENT & INVESTMENT, INC. et al.; and vice versa.
    (379 SE2d 544)
   McMurray, Presiding Judge.

Plaintiff Hatfield filed this action against eight defendants. The six counts of plaintiff’s complaint set forth claims for affirmative injunctive relief, wrongful termination of an employment relationship, breach of contract, tortious interference with an employment relationship, and rescission and restitution.

The superior court entered a succession of orders granting various defendants’ motions to dismiss or for summary judgment relating to one or more but fewer than all of the claims or parties to the action. Finally, on June 25, 1986, the superior court entered a final order granting a summary judgment in favor of defendants as to all remaining issues. On July 3,1986, plaintiff filed his notice of appeal. On April 17, 1987, defendants filed their motion pursuant to OCGA § 5-6-48 (c) to dismiss plaintiff’s appeal, arguing that there had been an unreasonable and inexcusable delay in the transmission of the record to this court due to plaintiff’s failure to timely pay the cost of preparing the appellate record. On July 20, 1987, the superior court granted defendants’ motion to dismiss plaintiff’s appeal initiated by the July 3, 1986, notice of appeal. The appeal in Case No. 77484 is taken by plaintiff from the superior court’s order of July 20, 1987, dismissing his earlier appeal, filed July 3, 1986.

On April 26, 1988, defendants filed, in the superior court, their motion to dismiss plaintiff’s appeal now identified as Case No. 77484. Defendants’ motion to dismiss plaintiff’s appeal in Case No. 77484 was denied on June 3, 1988. Case No. 77485 is defendants’ appeal from the denial of their motion to dismiss Case No. 77484. Held:

1. While plaintiff’s complaint seeks affirmative injunctive relief in addition to other remedies, jurisdiction is properly in this court since the issues on appeal do not involve injunctions or equity. The Supreme Court of Georgia has recently held “[i]t is not what is in the complaint before the trial court that determines [the Supreme] Court’s jurisdiction, but the issues on appeal.” Hatfield v. Great American Management &c., 258 Ga. 640 (373 SE2d 367).

2. “ ‘The provision (of OCGA § 5-6-48 (c)) authorizing the trial court to dismiss an appeal specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts.’ [Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 55 (226 SE2d 737)].” Smith v. Ga. Power Co., 183 Ga. App. 295, 296 (358 SE2d 879). In the order which is the subject of the appeal in Case No. 77484, the superior court found that plaintiff’s failure to pay timely the cost for preparing the record has caused an unreasonable delay in the transmission of the record to this court and that this delay is inexcusable.

In Case No. 77484, plaintiff contends his late payment of costs on appeal was not so “unreasonable” as to justify dismissal of his appeal by the superior court. Plaintiff does not challenge the superior court’s finding that the delay was inexcusable.

Following the filing of plaintiff’s notice of appeal on July 3, 1986, the record for appeal was completed in early December 1986. A notice for payment of costs was received by plaintiff’s counsel on December 3, 1986. Costs were not paid pursuant to the first notice and a second notice was received by plaintiff’s counsel on February 9, 1987. The plaintiff failed to pay the costs of preparing the record for appeal pursuant to the second notice. Plaintiff finally paid the cost of preparing the appellate record on July 8, 1987, the eve of the hearing of defendant’s motion to dismiss the appeal. In his brief before this court, plaintiff concedes that the late payment delayed the docketing in this court.

A delay of over 30 days is prima facie unreasonable and inexcusable. Bouldin v. Parker, 173 Ga. App. 526, 527 (1) (327 SE2d 760). The only reason proffered by plaintiff for his late payment of the costs was his inability to raise the funds. We find no abuse of the superior court’s discretion in its grant of defendants’ motion to dismiss plaintiff’s appeal filed in the superior court on July 3, 1986. See Bowen v. Clayton County Hosp. Auth., 172 Ga. App. 204, 205 (322 SE2d 528); McDonald v. Garden Svcs., 163 Ga. App. 851, 853 (295 SE2d 551); Pickett v. Paine, 139 Ga. App. 508 (229 SE2d 90); In re G. W. H., 168 Ga. App. 845, 846 (310 SE2d 573). Plaintiff’s reliance upon our decision in Galletta v. Hillcrest Abbey West, 185 Ga. App. 20 (363 SE2d 265), is misplaced as that case involved a delay of only 11 days in filing a transcript which did not discernibly delay the docketing of the record in this court.

Inasmuch as the dismissal of plaintiff’s appeal, filed July 3, 1986, was not error, it is unnecessary to consider the remaining enumerations of error in Case No. 77484. See McDonald v. Garden Svcs., 163 Ga. App. 851, 853, supra.

3. In Case No. 77485, defendants contend that the superior court erred in denying their motion to dismiss the appeal in Case No. 77484. However, in view of our decision affirming the superior court’s ruling in Case No. 77484, the issues raised by the appeal in Case No. 77485 are moot.

Judgment affirmed in Case No. 77484. Appeal dismissed in Case No. 77485.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Benham and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

Although I concur in Division 1, I respectfully dissent with respect to Division 3, which necessitates a ruling in Division 3. As to the latter, I would affirm, as not being an abuse of discretion, the trial court’s denial of defendants’ motion to dismiss the appeal from the order dismissing the first appeal.

However, the bounds of discretion were transgressed when the trial court dismissed plaintiff’s appeal from the grant of summary judgment to all defendants on all issues. The court’s actions thus precluded an airing of plaintiff’s multi-count complaint before a jury and also precluded appellate review of the legality of an adverse summary judgment, thereby ending the case which at that point already was constituted of over 4,100 pages of record.

By the time the dismissal occurred, the huge record had already been prepared by the clerk, and plaintiff had incurred and paid over $6,100 in copying and related (OCGA § 15-6-77.3 (b)) appeal expenses (OCGA 15-6-77 (e) (6)), even if the preparation was rendered useless by dismissal.

It is the clerk’s duty to prepare “a transcript of the record” for appeal, OCGA § 15-6-61 (10), but the clerk is not to transmit the record to the appellate court until the costs are paid, unless the appellant swears he is indigent or gives security for the costs. OCGA § 15-6-80. Appellant had not asked the public to bear the expense of his appeal even though he was financially strapped. Instead, he waited until he was able to marshal the funds for the record. He did not provide the alternate method of securing release of the record for transmittal, i.e., posting security, but no one moved for such an additional expense so as to move the appeal along, nor for dismissal unless costs were paid within a specified time.

The law does not require the costs to be paid within any certain time. OCGA § 5-6-38. Instead, it guarantees that dismissal for failure to pay costs is prohibited if they are paid within 20 days of notice of the amount. OCGA § 5-6-48 (c). When that period is exceeded, the court may dismiss the appeal for staleness “where there has been an unreasonable delay in the transmission . . . , and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.” Ibid.

Here the court dismissed the appeal upon defendants’ motion, even though the costs had been paid before dismissal, and without first giving plaintiff an opportunity by way of an order setting a limit for payment. Defendants fault plaintiff for not seeking an extension of time, but the law does not particularly provide for such, as costs are not “filed.” OCGA § 5-6-39. Nor could appellant move this Court to review the case on the original record pursuant to its authority provided by OCGA § 5-6-41 (f) to “order . . . original papers or exhibits,” so as to avoid the delay brought about by the need to pay for copying costs, because this Court would, not have jurisdiction until the clerk transmitted the record, and the clerk would not send it until the costs were paid.

The Constitution of Georgia raises to constitutional dimensions the public policy of this State to reach finality in cases in an expeditious manner. Ga. Const. 1983, Art. VI, Sec. IX. This is an obligation of both the trial and appellate levels, as commanded in Paragraphs I and II. See also ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710, 711 (1) (320 SE2d 784) (1984); where the court’s stated policy in such matters affirms the principle.

In implementing the sense of these general provisions, the law is practical rather than rigid and counsels, expressly, that appellate procedure is to “be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case. . . .” Subsection (d) of OCGA § 5-6-48, the very section containing the subsection being applied here, allows all kinds of fix-up (correction and completion) with regard to the record so that “the appellate court can and will pass upon the appeal and not dismiss it.”

While subsection (d) is directed at the appellate court, subsection (c) instructs both the appellate and trial courts, and since the particular rule at issue here is contained in Article 2 of Title 5, Chapter 6, the trial court is bound by OCGA § 5-6-30 and the spirit embodied therein just as is the appellate court.

It took the clerk’s office five months to prepare the voluminous record and send the bill, so the one-year delay between the filing of the notice of appeal and the payment of costs is not entirely attributable to plaintiff. An additional delay of many months after payment of costs was occasioned by the trial court’s own clerk’s office, which certified that delay in transmission “was in no way due to the fault of Appellant, nor any party at interest, but was due to stress of work in [that] office.”

No one involved in this suit, except appellant himself, was harmed by the delay in payment. This is not a case where the winner’s relief has been delayed, such as where a plaintiff’s judgment is held in abeyance. While it is true that defendants have been deprived of finality of their judgment of non-liability, they do not claim harm arising from the appellant-caused delay. As in Gay v. City of Rome, 157 Ga. App. 368, 369 (1) (277 SE2d 741) (1981), they do not controvert Hatfield’s explanation for the delay.

What is more, they stand to gain because the passage of time notoriously dims memories and scatters papers, all of which benefits them and handicaps the plaintiff who must prove his case should it go to trial.

The clerk certainly was not prejudiced, because the costs were paid before the court ruled. That court was not prejudiced, because the case was being taken out of its jurisdiction. Consideration of the appeal was not handicapped either, because it proceeds on the very same record, whether it is one month or one year after the notice of appeal is filed.

The nature of the case itself is also a relevant factor here. It is brought by an employee against his former employer and others for wrongful termination of his employment, etc. That is directly related to plaintiff’s reason for not paying the huge costs earlier; he did not have the income.

The law looks after paupers. OCGA § 15-6-80. It ought also to look after those who work to accumulate the funds to pay, even if it takes longer for them to do so than orderly administration would prefer. Of course, where there is no plausible reason for delay, or it appears that delay is occasioned by an ulterior motive, the court should not hesitate to call a halt to the use of the court system.

To affirm dismissal here would be incongruous with the ruling in Gay, supra, where an eighteen-month delay occasioned by appellants, who explained their failure to timely file the transcript, was not deemed fatal. Nor is it in harmony with ITT 'Terryphone Corp., supra, where as here the costs were paid after the motion was made and before the ruling. This case does not fall within the category reviewed in Bouldin v. Parker, 173 Ga. App. 526 (1) (327 SE2d 760) (1985), where costs were not paid even when a hearing was held on a motion to dismiss and apparently no explanation was given.

Before a case is inflicted with some sort of terminal illness, other than where dismissal is mandatory because of jurisdictional infirmity, the appellant should be ordered or notified by motion to take the procedural action and be faced with dismissal if he fails to comply. The harsh action taken by the trial court, viewed in the totality of the circumstances, amounts to an abuse of the legal discretion recognized in Young v. Climatrol &c. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976), when measured against the softer approach imposed by the law as articulated by OCGA § 5-6-30.

Decided February 15, 1989

Rehearing denied March 1, 1989

Sumner & Hewes, William E. Sumner, David A. Webster, for appellant.

Powell, Goldstein, Frazer & Murphy, Jesse H. Austin III, Jeffrey D. Paquin, for appellees.

I am authorized to state that Judge Benham joins in this dissent.

       Note that there is no mention of the alternative of giving security.


author: Pope, Judge.

text:
    77496.
    SAMUEL v. THE STATE.
    (379 SE2d 571)
   Pope, Judge.

This interlocutory appeal comes from the trial court’s denial of appellant’s motion to dismiss the indictment. Appellant argues that the indictment violates double jeopardy as well as OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1). In February 1986, appellant was convicted of trafficking in cocaine after a bench trial at which he stipulated the evidence against him. That conviction was affirmed in Samuel v. State, 181 Ga. App. XXIX (Case No. 73315, unpublished opinion) (1986). This conviction was vacated later on a petition for habeas corpus upon the authority of Robinson v. State, 256 Ga. 564 (350 SE2d 464) (1986). Appellant was then indicted in the present case for trafficking in cocaine by being in possession of more than 400 grams of cocaine.

1. The parties stipulated below that the cocaine involved in the present prosecution is the same 518 grams involved in the earlier indictment and conviction. The original indictment tracked the old language of OCGA § 16-13-31(a) charging appellant with trafficking in cocaine by being in actual possession of more than 400 grams of a mixture containing cocaine. In Robinson, supra, the Supreme Court held that when the legislature, after indictment but before trial and conviction changed the law and deleted the mixture language without including a saving clause in the repeal of the old law, a subsequent conviction based on the mixture language was invalid. Appellant’s conviction fell into this category and thus was vacated. The indictment in the present case is again for trafficking, but charges that appellant actually possessed more than 400 grams of cocaine (not a mixture containing cocaine).

Decided February 21, 1989

Rehearing denied March 1, 1989

Herbert Shafer, for appellant.

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

Appellant’s argument that the second indictment constitutes double jeopardy must fail. “The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency.” Williams v. State, 258 Ga. 305, 311 (369 SE2d 232) (1988). Reversal based upon a faulty or flawed indictment is a reversal based upon “trial error.” Burks v. United States, 437 U. S. 1, 13-14 (98 SC 2141, 57 LE2d 1) (1978). The court in Burks recognized that retrial of a defendant whose conviction has been set aside for error in the proceedings is not only proper and not violative of double jeopardy principles, but also that this has long been part of our law. Burks at 14.

2. Nor is appellant’s retrial prohibited by the statutory prohibitions against multiple prosecutions found in OCGA §§ 16-1-7 and 16-1-8. OCGA § 16-1-8 (d) (2) specifically permits retrial where a conviction is set aside on appeal for reasons other than the sufficiency of the evidence. See generally Price v. State, 187 Ga. App. 239 (370 SE2d 6) (1988).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    77635.
    THOMPSON et al. v. HUCKABEE AUTO COMPANY et al.
    (379 SE2d 411)
   Beasley, Judge.

Thompson and his wife appeal the grant of summary judgment to Huckabee Auto Company, General Motors Acceptance Corp., and McGibony Buick-Pontiac-GMC Truck, Inc.

The Thompsons went to Huckabee in search of a 1986 Buick Riviera. Although Huckabee did not have the desired car in stock, it checked with McGibony, another dealer, and located the 1986 Buick which the Thompsons wanted. Huckabee purchased the car from McGibony and sold it to plaintiffs. The retail sales contract was then assigned by Huckabee to GMAC, which as holder was expressly subject to claims and defenses the debtor could assert against the seller. The contract described the car as a “new 1986 Buick Riviera.”

While washing the car about a week after the purchase, Thompson noticed that the hood had been repainted. He inquired of Huckabee, which had no knowledge of the repair. Huckabee then asked McGibony which, upon delivery of the car from the manufacturer, had discovered that in transit some caustic fluid had dripped onto the hood and damaged the paint. McGibony did repaint the hood.

The Thompsons sued Huckabee and GMAC, contending only that the car was not in conformance with the retail sales contract in that it had been damaged and repaired and consequently was not “new,” relying on Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (290 SE2d 497) (1982). McGibony was later added to the suit. Plaintiffs complained that McGibony committed a fraud upon the plaintiffs by selling to Huckabee a used and reconditioned car with the false representation that the car was “new.”

1. All defendants moved for summary judgment which was granted by the court based on General Motors Corp. v. Green, 173 Ga. App. 188 (325 SE2d 794) (1984). Green involved a suit against the manufacturer of an automobile for breach of warranty and fraud because the car had received some non-mechanical damage during the manufacturing process, had been repaired, and was sold as new. The written manufacturer’s warranty in that case involved the same language used here with regard to the fact that the car could have paint, sheet metal and other damage and still be “new” under the warranty, thereby defeating the breach of warranty claim. There was no dispute that the buyer had received the written information when he purchased the car. “The possible existence of factory-damage and factory-repairs was expressly disclosed, not concealed, in the sales agreement signed by [buyer], . . . .” Green at 191.

The burden of establishing the non-existence of any genuine issue of fact is upon the movant for summary judgment, and all doubts are resolved against him. Jones v. Quigley, 169 Ga. App. 862, 865 (2) (315 SE2d 59) (1984); Lansky v. Goldstein, 136 Ga. App. 607 (1) (225 SE2d 62) (1975). In order to prevail, the defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981).

So considering the record, the Thompsons did not receive a copy of the General Motors written warranty book until several days after signing the retail sales contract and receiving the automobile. Thus, the language contained therein which specifically notifies the purchasers that their car may have suffered factory or transit damage which would be corrected by either the factory or dealer is not dispositive of the claim, as it was in Green.

Although there is included on the retail sales contract a paragraph which specifically disclaims any express or implied warranties by the seller Huckabee, plaintiffs are relying on OCGA § 11-2-313 (b). It provides that an express warranty is created by the seller upon “[a]ny description of the goods which is made part of the basis of the bargain . . . .” The warranty is that “the goods shall conform to the description.” The retail sales contract described the car as “new.” The specific disclaimer will not negate that affirmative statement. Century Dodge v. Mobley, 155 Ga. App. 712, 713 (2) (272 SE2d 502) (1980). The question of whether the car delivered was new is generally one of fact for the jury. Id.; see Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754, 755 (1) (347 SE2d 639) (1986); Horne v. Claude Ray Ford Sales, 162 Ga. App. 329, supra.

Decided February 9, 1989

Rehearings denied March 1, 1989

Horace L. McSwain III, for appellants.

Jeffrey E. Tompkins, J. A. Powell, Jr., for appellees.

Thus, as to Huckabee and its assignee, GMAC, the grant of summary judgment was error.

2. As to McGibony, plaintiffs alleged fraud. To prove it, all of the following elements must be shown: (1) that the defendant made the representations; (2) that at the time he made them he knew they were false; (3) that he made them with the purpose of deceiving plaintiff; (4) that plaintiff relied on those representations; and (5) that the loss and damage are the proximate result of their having been made. Chrysler Corp. v. Marinari, 182 Ga. App. 399, 400 (2) (355 SE2d 719) (1987).

First, there was no statement made by McGibony to plaintiffs at all. All of its dealings were with Huckabee. As far as the record reflects, there was no representation made by McGibony to Huckabee, other than it had a car like plaintiffs were seeking. Both being dealers, they were aware of the language of the written warranty and were knowledgeable of the fact that they could treat a car with body damage as “new” pursuant to that warranty. Thus, there were no statements made by McGibony to plaintiff and no false statements made by McGibony to Huckabee, entitling it to summary judgment. Although this was not the reason stated for the court’s ruling in McGibony’s favor, a ruling right for any reason will be affirmed. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2 b) (307 SE2d 914) (1983).

Judgment affirmed in part and reversed in part.

Banke, P. J., and Birdsong, J., concur.


author: Sognier, Judge.

text:
    77923.
    BRADY et al. v. DANDRIDGE et al.
    (379 SE2d 429)
   Sognier, Judge.

Susanne and Ralph Dandridge brought suit against Re/Max Northeast, Inc., Gwinnett, a real estate brokerage firm, and Harold Brady, a Re/Max sales associate, for breach of fiduciary duty and fraud arising out of a listing contract for the sale of their residence. The trial court denied the defendants’ motion for summary judgment, and we granted their application for interlocutory appeal.

The record reveals that on May 31, 1985 appellees entered into a contract to purchase a residence owned by Bo Mohr, which was listed by appellants, contingent upon the sale of appellees’ house. On June 3, 1985 appellees signed an “exclusive listing” agreement with appellants for their home, and they accepted the contract appellant Brady brought them on July 18th for the sale of their house to the Parkers, which was contingent, in turn, upon the Parkers obtaining financing and selling their own house. The contract between appellees and the Parkers had no specified closing date, although appellees’ contract with Mohr was required to be closed by September 30, 1985. The Parkers then authorized appellant Brady to find a buyer for their house but refused to sign an exclusive listing agreement, and on July 24th the Parkers entered into a sales contract with Robert Duffy, which was presented by Brady and which specified a closing date of September 23rd. Brady explained to the Parkers that a mortgage company had informed Duffy, who was an attorney licensed in Florida but not Georgia, that he could not obtain financing until he was employed as a lawyer at a specified salary. When Duffy was unable to meet this condition, he allowed his contract with the Parkers to expire. Although the parties dispute the exact timing and the terms offered, they agree that Brady offered to obtain a swing loan for the Parkers or to buy their home so that they could close on the purchase of appellees’ house, but neither offer was acceptable to the Parkers. After a joint meeting among the Mohrs, Parkers, appellees, and Brady on September 25th, the homeowners agreed to rescind all the remaining sales contracts. Thereafter, appellees, who had begun renovating the Mohr home on or about September 5th even though they had not closed on their contract to purchase it, rented the Mohr residence beginning in October 1985. In late November appellees entered into two contracts with the Parkers for the sale of their respective homes to one another.

1. Appellants first enumerate as error the denial of their motion for summary judgment on the fraud claim made on the grounds that appellant Brady’s alleged misrepresentations either were true or were mere opinions or puffery, and that appellees did not act to their detriment in reliance upon any statements of Brady.

Appellees contend that material questions of fact remain regarding whether appellant Brady fraudulently misrepresented the date appellees’ contract with the Parkers would close and the reasons why the Parkers were unable to close the sale, and whether the Parkers’ contract to sell their house to Duify would close, and thus misrepresented to appellees that their contract with the Parkers was “solid.” We agree with appellants that these allegations do not present a material question of fact as to appellees’ claim of fraud because the record clearly reveals that each of the purportedly fraudulent statements either was true or was merely a statement of opinion or a conjecture as to future events. Actionable fraud cannot be based upon statements of opinion or promises as to future events unless the allegation is asserted that the promisor made the statement with a present intent not to perform. Sams v. Duncan & Copeland, 153 Ga. App. 765, 766 (2) (266 SE2d 546) (1980), overruled in part on other grounds, Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 840-841 (2) (315 SE2d 51) (1984); Randall v. Smith, 136 Ga. App. 823, 825 (222 SE2d 664) (1975). The record discloses that Brady’s statements regarding closing dates for appellees’ contract with the Parkers were statements or opinions as to future events, and there is no evidence that Brady did not intend to perform at the time he made these statements. Further, there is no dispute that Brady’s statements regarding the Parkers’ failure to close on either their purchase of appellees’ home or the sale of their residence to Duify were truthful.

We also agree that the evidence of record negates any claim of justifiable detrimental reliance by appellees. Appellees admit there was no fraud in the inducement of either their listing contract with appellants or the sales contract with the Parkers because all alleged misrepresentations occurred after both contracts were executed, and contend instead that they made improvements to the Mohr house in reliance upon appellant Brady’s assurances that the various contracts would close, and that as a result they incurred economic losses and mental pain and anguish. However, appellee Ralph Dandridge admitted in his deposition that he knew appellees’ contract with the Parkers was contingent upon the sale of the Parkers’ house and approval of their loan application, that Duffy’s contract to purchase the Parkers’ residence also had a financing contingency, and that he recognized from the beginning that the contracts might not close because of the numerous contingencies involved. He also admitted that he knew he was taking a risk by beginning work on the Mohr home before he closed on his purchase contract, that he did so in disregard of appellant Brady’s admonition not to undertake the improvement project before the closing, and that by the time this work began he was concerned that the closings would not occur. Further, Mr. Dandridge testified that he and his wife then moved to the Mohr home because of the financial outlays they had made, not as a result of any statements by appellants. Consequently, as appellants have pierced appellees’ pleadings with regard to essential elements of the fraud claim, and appellees’ response did not set forth facts sufficient to support a claim of fraud against appellants, we find the trial court erred by denying summary judgment to appellants on this issue. See generally Papp Clinic v. Cash, 186 Ga. App. 444 (367 SE2d 271) (1988).

2. Appellants next enumerate as error the trial court’s conclusion that appellees had presented a factual question as to negligent misrepresentation, based upon appellees’ contention that the alleged fraudulent misrepresentations previously discussed in Division 1, supra, also may be construed as negligent misrepresentations within the meaning of Section 552 of the Restatement (2d) of Torts. However, even assuming that this Restatement provision applies to purchasers of residences for their own use and that any of appellant Brady’s statements were false, we found in Division 1, supra, that appellants affirmatively rebutted all allegations of justifiable reliance by appellees, and that appellees have presented no evidence of detrimental reliance, which is an essential element of the claim of negligent misrepresentation. See id. Further, appellees have admitted that they were not induced to enter into the contracts at issue as a result of any misrepresentations by appellants. See generally Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 682 (300 SE2d 503) (1983). Accordingly, we find the trial court erred by concluding that a jury question was presented on the issue of negligent misrepresentation. See generally Papp Clinic, supra.

3. Liberally construed, appellees’ complaint also asserts a claim for breach of fiduciary duty arising out of the listing contract. The trial court found material questions of fact existed with regard to whether appellants owed a fiduciary duty to appellees, and if so, whether that duty had been breached.

The relationship between the real estate agent and the seller is a fiduciary one, and “impose[s] on the agent the duty of exercising the utmost good faith and loyalty toward the principal.” Dolvin Realty Co. v. Holley, 203 Ga. 618, 622 (48 SE2d 109) (1948). However, appellees acknowledge that their complaints about appellants’ actions do not arise out of the listing contract, and instead contend they were harmed because appellants failed to carry out their obligations to the Parkers. Assuming, without deciding, that the Parkers’ agreement to allow appellant Brady to show their house constitutes'an enforceable contract and gives rise to a fiduciary obligation running from appellants to the Parkers, appellees aré not in privity of contract and thus cannot maintain an action for breach of any obligation owed by appellants to the Parkers. See Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391 (367 SE2d 278) (1988). Although the fiduciary duty imposed upon appellants by Dolvin, supra, extends beyond the express terms of the listing contract between appellees and appellants, see id., we find no authority for the proposition that a real estate agent’s obligations to his principal encompass dealings related to a contract between the purchaser of the principal’s house and a third party who has contracted to buy the purchaser’s residence. As appellants had no obligation to guarantee the financial worthiness of the Parkers or to ensure that their contract to purchase appellees’ house closed, see Lyle v. Etheridge, 40 Ga. App. 808 (1) (151 SE 531) (1930), appellants cannot be presumed to owe a duty to appellees to make such guarantees with regard to Duffy’s contract for the purchase of the Parkers’ home. Further, appellees do not allege, nor does the record suggest,, that they were third-party beneficiaries of either the Parker-Duffy contract or the Brady-Parker listing agreement. See Walls, Inc., supra at 391-392. Accordingly, we hold appellants were entitled to summary judgment. See generally id.

Decided March 1, 1989.

R. Chris Irwin & Associates, R. Chris Irwin, for appellants.

Lambert, Bonapfel, Cifelli & Wilson, Jerrell P. Rosenbluth, for appellees.

4. In the notice of appeal filed in this case, appellant Re/Max stated that it was appealing from the trial court’s denial of its motion to amend its answer to add a counterclaim. However, that ruling was not enumerated as error in the enumeration of errors filed with this court, nor was it discussed in appellants’ brief. Accordingly, this issue is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Pennsylvania &c. Ins. Co. v. Davis, 186 Ga. App. 301, 302 (3) (367 SE2d 91) (1988).

Judgment reversed.

Deen, P. J., concurs. Carley, C. J., concurs in Divisions 1, 3, 4, and in the judgment.


author: Banke, Presiding Judge. Deen, Presiding Judge, Beasley, Judge, Carley, Chief Judge,

text:
    77184.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. HURLEY et al.
    (379 SE2d 420)
   Banke, Presiding Judge.

Hurley filed suit against Lassiter and Theta Xi, a college fraternity to which he and Lassiter both belonged, seeking to recover damages for injuries he allegedly sustained when Lassiter kicked him in the groin during an altercation which took place on the grounds of the fraternity. At the time of the incident, Lassiter was insured under the liability provisions of a homeowner’s insurance policy issued by Georgia Farm Bureau Mutual Insurance Company. Georgia Farm filed the present action against Hurley, Lassiter, and Theta Xi, seeking a judicial declaration that it has no obligation in the matter, due to a policy provision excluding coverage for “bodily injury or property damage . . . which is expected or intended by the insured.” (Emphasis from original.) The trial court denied Georgia Farm’s motion for summary judgment, and the case is currently before us pursuant to our grant of its application for an interlocutory appeal.

During his deposition, Lassiter testified that Hurley had pushed him three or four times and that he was trying to defend himself against Hurley when the injury occurred. He repeatedly and consistently denied any intention to kick Hurley in the groin, testifying as follows: “A. It was just a—just trying to push him away. I wasn’t trying to hurt him. Q. With your foot? A. Yes, sir. Q. But, you did intend to make contact with him with your foot, not in the groin— A. Not in the groin. Q.—But in the—you were pointing it toward the upper chest area—A. Yes, sir. Q.—or rib area? A. Yes, sir, in the ribs just to push him away in self-defense. Q. And if Mr. Hurley wouldn’t have turned as he did, your foot would not have landed—your foot would have landed in that area you pointed out to me before. A. Yes, sir. Q. Causing him some bodily discomfort but it would not have injured him in the groin, is that a fair statement? A. Yes, sir.” Held:

“The general rule which appears to have developed through judicial interpretation and application of exclusionary provisions such as the one in the instant case is that they are inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected. See generally, Annot. 2 ALR3d 1238, 1243 § 4 (1965). Thus, there is a recognized distinction between intentional and unintentional results of intentional acts.” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982).

In Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987), this distinction between intentional and unintentional results of intentional acts was applied in a suit to recover for injuries allegedly inflicted upon a minor child by a school principal during the administration of corporal punishment. We held that the school board’s liability insurer was not entitled to summary judgment on the basis óf an exclusionary provision similar to the one at issue in the present action, inasmuch as corporal punishment was statutorily authorized in Georgia schools and inasmuch as the principal had testified that he did not intend to injure the child.

In the present case, the insured maintains that he was acting in self-defense. A claim of self-defense will not always suffice to take an insured’s conduct outside the intentional injury exclusion of a liability insurance policy. See, e.g., Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811 (324 SE2d 510) (1984) (where the asserted act of self-defense involved the use of deadly force by the insured). However, a claim of self-defense should normally suffice to preclude a finding on motion for summary judgment that the conduct in question was unlawful as a matter of law. Thus, because the type and degree of force employed by the insured in the present case could reasonably be viewed as consistent with the absence of any intention on his part to cause injury (compare Stein, supra), and because the insured has testified unequivocally not only that he was acting in self-defense but that he did not in fact intend to injure Hurley, we conclude that a material fact issue remains as to whether his conduct falls within the ambit of the intentional injury exclusion. We accordingly hold that the trial court did not err in denying Georgia Farm’s motion for summary judgment.

This court’s decision in Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988) (cert. granted), is not authority for a contrary conclusion, inasmuch as the alleged injuries there were the natural and unavoidable product of criminal misconduct—specifically, child molestation. The holding in Antill v. State Farm Fire & Cas. Co., 178 Ga. App. 659 (344 SE2d 480) (1986), is completely inapposite, inasmuch as that case concerned the alleged tort of malicious prosecution and did not raise in any way the issue of unintended results of intentional physical acts.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur. Deen, P. J., and Beasley, J., concur specially. Carley, C. J., Birdsong, Sognier and Pope, JJ., dissent.

Deen, Presiding Judge,

concurring specially.

Although I concur fully with the majority opinion, the following thoughts should also be set forth.

In Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987) (a 5-4 decision), in which a school principal and the county Board of Education had been sued by the father of a student allegedly injured when the principal spanked him, this court affirmed the trial court’s award of summary judgment to the defendants in an action for declaratory judgment filed by their insurer, and held that the policy exclusion (closely similar to that in the instant case) did not apply. The court noted the existence of a statute specifically authorizing corporal punishment. In Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988), the trial court held, and this court affirmed, that a similar policy exclusion did apply to the actions of the insured, a confessed child molester.

On its facts, the instant case falls somewhere between Roe and Crews, supra, but is closer to Crews than to Roe, inasmuch as appellee Hurley was not engaged in a course of conduct inherently illegal or immoral. While not necessarily dissenting from the judgment in Roe, supra, I would concur with the position taken in Judge Beasley’s concurring opinion regarding the construction of provisions of an insurance policy: “Insurance policy exclusions are to be strictly construed, ‘against the insurer and in favor of providing the indemnity sought.’ [Cit.]”

Beasley, Judge,

concurring specially.

I concur for the reasons stated in the dissenting opinion in Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368, 370 (373 SE2d 23) (1988). Subjectively intending physical contact is not necessarily intending bodily injury.

Carley, Chief Judge,

dissenting.

Contrary to the majority’s conclusion, I believe that this case is controlled by the rationale of Antill v. State Farm Fire & Cas. Co., 178 Ga. App. 659 (344 SE2d 480) (1986). Based upon the record in this case, Hurley “either committed an intentional tort or [he] did not, and in either case [appellant] would not be liable under the policy.” Antill v. State Farm Fire & Cas. Co., supra. The only possible distinction in this case would be that the complaint contained vague allegations of negligence as well as averments as to an intentional tort. However, in Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987), a plurality of this Court based its determination as to the non-applicability of the policy exclusion upon the underlying evidence in the case, and not just the allegations of the complaint. A majority of the judges concurred in the result of the case wbich could have been reached only on the basis of this reasoning. It is true that in Crews, the majority found the policy exclusion to be inapplicable because the evidence would “warrant the conclusion that the injury was an unintended consequence of the spanking.” Pennsylvania Millers Mut. Ins. Co. v. Crews, supra, 493. However, the distinction between Crews and this case is that in Crews, the court relied upon a statute specifically authorizing corporal punishment in Georgia schools. Thus, while the act of “spanking” in Crews was statutorily sanctioned, there is no statute which would authorize Hurley’s act of “kicking” in this case.

Although Hurley contends that his intentional act of kicking Lassiter was not intended to result in the injury to Lassiter’s groin, the policy exclusion “is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected.” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982). See also Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811 (324 SE2d 510) (1984); Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988). Because I believe that the trial court erred in failing to grant summary judgment in favor of the insurer based upon the policy exclusion, I respectfully dissent.

Decided February 15, 1989

Rehearing denied March 2, 1989

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

William E. Moore, Jr., John W. Case, for appellees.

I am authorized to state that Judge Birdsong, Judge Sognier and Judge Pope join in this dissent.


author:
Deen, Presiding Judge.
      Carley, Chief Judge,

text:
    77610.
    CUTHBERT v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (379 SE2d 413)
   Deen, Presiding Judge.

Jerome Cuthbert, as executor of the estate of his grandmother, Christine Cuthbert, brought a wrongful death action against MARTA. The plaintiff’s deceased was a passenger who rang the bell in a MARTA bus to signal the driver that she wanted to exit the bus when the bus was at her stop. The driver stopped the bus approximately four feet from the curb and about twenty-five feet from the stop. Mrs. Cuthbert was walking along the side of the bus when she somehow fell under its rear wheel and was instantly killed.

1. Appellant first contends that under OCGA § 46-9-132, MARTA, as a common • carrier, owed the duty of extraordinary diligence to his deceased. Extraordinary diligence is “ ‘that extreme care and caution which very prudent and thoughtful persons use’ in and about similar matters.” East Tenn. &c. R. Co. v. Green, 95 Ga. 736, 737) (22 SE 658) (1895).

The MARTA bus driver testified that the Operator Candidate Manual, which is issued by the company to its drivers, defines a perfect stop as one made one foot from the curb, and it requires the driver to check to the left, to the right, and to the front to see that all pedestrians are clear of .the bus before starting forward. The driver admitted that nothing prevented him from pulling up one foot from the curb except that he knew that his passenger would have to walk further back to the bus stop. The driver further testified that he looked in the left side mirror, and when he looked in the right side mirror he saw her walking towards the rear of the bus about half-way down the side of the bus. He rechecked the left mirror, and as he eased his foot off the brake and began to roll the bus off from the stop, he began to turn his head to check the right mirror when he felt a thump. Upon investigation, he discovered he had run over her. A passenger on the bus testified that the deceased stepped down onto the street when she exited the bus, the doors closed, and the bus began to roll off “real slow.” The driver looked in the mirror, noticed that he did not see her, and asked where she went so fast. From this evidence a jury could find that the driver failed to look for her in his right mirror before he took his foot off the brake.

Whether the passenger was owed a duty of extraordinary care or ordinary care is also a jury question. “[T]he relationship of carrier and passenger terminates when the passenger has been safely discharged and when the carrier is no longer bound to exercise extraordinary care for his safety, but is bound to use only the same degree of care for his safety as it would for the safety of any other member of the public upon its premises by invitation, express or implied.” Delta Air Lines v. Millirons, 87 Ga. App. 334, 342 (73 SE2d 598) (1952). The court in that case also cited another test for determining when the relationship ends: When the carrier is discharging a passenger from its trains, it is under a duty to exercise extraordinary care. “This duty continues until the passenger has been conducted to a place where he has some freedom of locomotion and can in a measure look out for his own safety.” Id. We therefore find that the trial court erred in granting appellee’s motion for a directed verdict, as it was for the jury to determine the duty owed to the plaintiff’s decedent and whether the defendant exercised that duty.

2. Appellee claims that the decedent committed negligence per se and assumed the risk of injury when she violated OCGA § 40-6-97 (a), which makes it unlawful for a pedestrian to walk along an adjacent roadway where a sidewalk is provided. We find that the decedent’s act did not serve as a bar to recovery, but merely raised a jury question as to her own negligence. She was let off the bus approximately four feet from the curb, and the back of the bus was about twelve to thirteen feet past the bus stop. This code section does not provide that where a person is on the road and injured because of the negligence of another, he is barred from recovery. Questions of negligence, diligence, comparative negligence, etc., are matters for the jury, and a court should not take the place of the jury in deciding them except in plain and indisputable cases. Groover v. Dickey, 173 Ga. App. 73 (325 SE2d 617) (1984).

Judgment reversed.

McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur. Carley, C. J., dissents.

Carley, Chief Judge,

dissenting.

The majority states the correct rule for determining whether appellant-plaintiff’s deceased was, at the time of her death, a passenger to whom appellee-defendant owed a duty of extraordinary care. It is my opinion, however, that the application of that correct rule to the facts of this case mandates the contrary result from that reached by the majority. Under the undisputed evidence of record, appellant’s deceased was not a passenger of appellee at the time of the incident resulting in her death. She was a pedestrian to whom appellee owed a duty of ordinary rather than extraordinary care and, since the evidence of record would not authorize a finding that the death of appellant’s deceased was the proximate result of appellee’s breach of this duty, I believe that the trial court correctly granted appellee’s motion for a directed verdict. I, therefore, respectfully dissent from the majority’s reversal of the trial court’s ruling.

“ ‘A carrier of passengers, when discharging a passenger from its trains, is under a duty to exercise extraordinary care for his safety. This duty continues until the passenger has been conducted to a place where he has some freedom of locomotion and can in a measure look out for his own safety. Where a train stops some distance from the station, and the passengers are informed by the servants of the carrier that the train will go no further, and that all passengers should disembark at that point, and where a passenger disembarks and, on account of the physical surroundings, is, in making his egress from the train, confined to a narrow and limited space of ground, with no choice or freedom of movement, he will not be deemed to have been discharged as a passenger until he has traversed such limited and restricted space; and so long as he is confined and restricted in his movements to such space as has been designated to him by the carrier as the only method of egress from the train, the carrier is under a duty to exercise extraordinary care for his protection and safety.’ ” (Emphasis in original.) Delta Air Lines v. Millirons, 87 Ga. App. 334, 342 (5) (73 SE2d 598) (1952). When the foregoing principles are applied to the facts of the present case, it is clear that the status of appellant’s deceased at the time of her death was that of pedestrian, and not that of passenger. She was not killed while attempting to alight from appellee’s bus, but only after she had safely disembarked and had freely chosen her route of departure. There were no restrictions whatsoever placed on her movements after she stepped from the bus and she had an unfettered choice of stepping up onto the adjacent sidewalk or, as she chose to do, of remaining in the roadway. “Being no longer restricted to a designated route from the [bus] on which [she] had been traveling, [appellant’s deceased] was not a passenger. . . .” Delta Air Lines v. Millirons, supra at 343 (5). “If [she] had, before [she] was injured, succeeded in getting a footing upon the street which [she] could have maintained', [her] relation as passenger would then have ceased.” Augusta R. Co. v. Glover, 92 Ga. 132, 148 (14) (18 SE 406) (1893). It is undisputed that appellant’s deceased “had safely alighted from the [bus] which transported [her] . . . [She] then ceased to be a passenger. [Cit.]” Columbus R. Co. v. Asbell, 133 Ga. 573, 575 (66 SE 902) (1909). Accordingly, it is my opinion that the majority incorrectly holds that a jury question remained as to whether appellant’s deceased was a passenger to whom appellee owed a duty of extraordinary care.

The decisive issue that I perceive to be presented for resolution is whether the evidence would authorize a finding of an actionable breach of the duty of ordinary care that appellee owed to appellant’s deceased in her capacity as a pedestrian. It is undisputed that, after he stopped and allowed appellant’s deceased to alight, the driver of appellee’s bus did not act in total disregard of the safety of others. First, he used the left-hand mirror to determine if there was any vehicular traffic approaching from the rear. He then used the right-hand mirror to determine the position of appellant’s deceased. He saw that she was walking at an arm’s length distance along the side of the bus. He then once again used the left-hand mirror to check for approaching vehicular traffic. It is true that he did not then check the exact position of appellant’s deceased a second time prior to removing his foot from the brake and beginning a slow roll away. However, the law does not require that a driver, having first determined that his vehicle can pass by an oncoming pedestrian with apparent safety, must thereafter keep a constant lookout so as to guard against the pedestrian’s subsequent act of stepping or stumbling into the side of his vehicle. Cf. Gray v. Jackson, 53 Ga. App. 658 (187 SE 229) (1936). Compare Hodges v. Haverty, 115 Ga. App. 199 (154 SE2d 276) (1967); Curry v. Durden, 103 Ga. App. 371 (118 SE2d 871) (1961). Here, ás in Gray, there is absolutely no evidence that it was the movement of the bus that caused appellant’s deceased to deviate from her former path at an arm’s length from the side of the bus and fall to her death under the wheels. Instead, the evidence would only authorize a finding that appellant’s deceased “stumbled or lurched into the side of the [bus] and received the injuries which caused [her] death.” Gray v. Jackson, supra at 660 (1). In the exercise of ordinary care, the law requires that a driver operate his vehicle so as to guard against striking a pedestrian. The law does not impose upon a driver the duty to exercise extraordinary care to prevent a pedestrian from making contact with the vehicle. If it were otherwise, a driver could never lawfully proceed past an oncoming pedestrian at an otherwise apparently safe distance, but would be required to keep his vehicle immobile until such time as the pedestrian had walked past. Drivers as well as pedestrians have the right to pursue their travel plans and pedestrians as well as drivers must use ordinary care in the exercise of that right. The undisputed evidence of record shows that the driver of appellee’s bus was in the exercise of ordinary care when he elected to remove his foot from the brake, notwithstanding his knowledge that he would be slowly rolling past a pedestrian whom he had previously seen to be walking at an arm’s length from the side of the bus. The undisputed evidence of record also shows that the proximate cause of the death of appellant’s deceased was apparently her own act of stepping or stumbling into the side of the bus. Accordingly, a directed verdict in favor of appellee was demanded and I respectfully dissent from the majority’s reversal of the trial court’s order.

Decided February 9, 1989

Rehearing denied March 2, 1989

Henry B. Staley, for appellant.

Michael Fisher, Daniel P. Johnson, for appellee.


author: Birdsong, Judge.

text:
    77774.
    HUNT v. SCHMITT.
    (379 SE2d 409)
   Birdsong, Judge.

The appellant/plaintiff won an $18,000 verdict in this personal injury suit. The basic facts are that the plaintiff was struck by defendant’s vehicle as plaintiff drove his motorcycle out of the parking lot of a lounge and entered a major thoroughfare in Columbus; the defendant was drunk, having a blood alcohol content of .21 percent. Plaintiff’s motion for new trial was denied, and he asserts five errors of law. Held:

1. The plaintiff/appellant contends the trial court erred in charging to the jury OCGA § 40-6-73 (failure to yield right-of-way), because “the defendant was not in [plaintiff’s] sight or was at least 300 to 400 yards away and consequently there was no duty on Hunt’s part to yield to this vehicle.”

This statement of alleged error is on its face without merit. The asserted fact that defendant’s vehicle was 300 or 400 feet away does not mean, as a matter of law, that there was no duty on the plaintiff’s part to yield right-of-way to defendant’s vehicle. OCGA § 40-6-73 requires the yield of right-of-way “to all vehicles approaching on the roadway to be entered or crossed.” (Emphasis supplied.) Whether the duty existed in this case, and whether the plaintiff violated it, are questions of fact.

Moreover, the evidence was in dispute. There was evidence from a third-party witness that the witness was watching the plaintiff on his motorcycle, and that the plaintiff did not look towards defendant’s truck; that when the witness’ car “went by” the plaintiff, who had “started rolling” to enter the highway, the witness saw headlights of a truck 100 yards away, give or take, and “at that time I knew [plaintiff] was going to get hit.” The witness guessed the speed of the truck to be 45-55 mph. Under the evidence in this case, the criticized charge was required.

2. Appellant contends further that the trial court erred in charging the jury on comparative negligence. The evidence just described in Division 1, infra, authorizes such a jury charge. The plaintiff continues to insist, on appeal, that defendant’s truck was a quarter mile away, that defendant was “blind drunk,” and that the fact that plaintiff had been drinking, or failed to yield the right-of-way had no causal connection to the collision. But all of these are questions of fact which the jury could believe or not, and has already passed on and evidently considered well in awarding the complaining plaintiff a verdict of $18,000. See Wakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178).

The plaintiff’s assertions that he had no duty of care, and hence no negligence, in the circumstances because “[t]he oncoming traffic is supposed to keep a proper look out for the automobiles and persons on the road,” is merely argumentative of the facts already decided and is, in any case, not a correct statement of law here, where it is used to excuse a party of any duty whatsoever.

3. Appellant complains of the trial court’s failure to admit in evidence statements made to his attorney by him and by the third-party witness. In fact, the plaintiff did use these statements verbally to impeach those persons. The trial court would not admit them into physical evidence because their transcription and circumstances were not proved. For whatever reason, the refusal to admit the physical documents was not error, for they had served their purpose in plaintiff’s attempt to verbally impeach; to then physically admit them into evidence would serve only to unduly emphasize them to the jury and give an unfair advantage over the verbal testimony.

4. In view of what we have held here, appellant’s remaining enumerations, that the verdict was contrary to the weight of evidence and the law, so that the verdict amount was inadequate according to the evidence, and that the denial of new trial was error, are without merit.

Notwithstanding the appellant’s desire to reargue the facts, and his contentions that he had no duty and committed no negligence in the occurrence of this collision, the evidence was very plainly disputed. Even so, the jury rendered a verdict finding defendant liable for an $18,000 portion of plaintiff’s claimed damages; if there- were further damages the jury obviously found the defendant to be not liable for them. Without legal error committed which might have affected the amount of damages ascribed to either or both parties, the appellant cannot complain of the amount awarded. See Beal v. Braunecker, 185 Ga. App. 429-432 (364 SE2d 308); Bennett v. Kuhlke & Assoc., 156 Ga. App. 110, 113 (274 SE2d 14).

Decided February 7, 1989

Rehearing denied March 2, 1989

L. B. Kent, for appellant.

Ronald W. Self, for appellee.

It may be that the jury found the plaintiff in fact had no duty in the circumstances and committed no negligence, and that defendant was liable for all his damages; but that the damages amounted to $18,000. The appellant complains generally that this is not enough, while the jury decided it was. This is so plainly within the jury’s province that, without clear bias or legal error, it cannot be questioned on appeal. Accordingly, it cannot be held that the verdict was contrary to the evidence or the law. It is also clear, under the evidence, the plaintiff was not entitled to a directed verdict or new trial.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    77802, 77803.
    BORG-WARNER ACCEPTANCE CORPORATION v. LOVETT & THARPE, INC.; and vice versa.
    (379 SE2d 530)
   Banke, Presiding Judge.

Borg-Warner Acceptance Corporation (hereafter referred to as Borg-Warner) sued Lovett & Tharpe, Inc. (hereafter referred to as L&T) to enforce a commercial instrument which it currently characterizes as a “promissory note,” but which was characterized both in its complaint and on the face of the instrument itself as a “trade acceptance.” L&T denied liability and counterclaimed to recover actual and punitive damages based on allegations that Borg-Warner had been “wilfully and stubbornly litigious” in its previous efforts to collect the alleged indebtedness, which efforts had involved obtaining a default judgment against L&T in Missouri and thereafter attempting to enforce that judgment in this state through the initiation of domestication and garnishment proceedings. Those proceedings had ultimately terminated in favor of L&T, based on a ruling that it had not been subject to the jurisdiction of the Missouri court.

L&T is in the business of manufacturing and distributing farm implements. The trade acceptance in question was executed by the parties in connection with an agreement by Borg-Warner to finance L&T’s purchase of a shipment of drive belts from a corporation known as Coon Manufacturing Company. The instrument was dated October 1, 1980, and reads as follows: “ON February 1, 1981 PAY TO THE ORDER OF OURSELVES [the sum of $69,247.46]. The transaction which gives rise to this instrument is the purchase of goods by the acceptor from the drawer. The drawee may accept this bill payable at any bank . . . which such drawee may designate.” The instrument was signed by Borg-Warner as drawer and names L&T as the drawee. It bears the written acceptance of L&T dated October 1, 1980, and naming the Farmers and Merchants Bank of Dublin, Georgia, as the bank to which the instrument is to be presented for payment.

On the day following the execution and acceptance of the instrument, Borg-Warner issued a check to Coon Manufacturing Company for $65,785.09, which was the full purchase price of the drive belts. (The remaining $3,462.37 which Borg-Warner expected to receive upon presentment of the trade acceptance constituted a service charge). Coon Manufacturing thereupon shipped the belts to L&T; but L&T ultimately found them to be defective, shipped them back to Coon Manufacturing, and instructed the Farmers and Merchants Bank to return the trade acceptance to Borg-Warner unpaid. Following the return of the goods, Coon Manufacturing duly credited L&T’s account for the purchase price; however, it thereafter initiated bankruptcy proceedings.

Borg-Warner initially sought to recover the money it had paid Coon Manufacturing by asserting a claim in the bankruptcy proceedings. When that avenue proved unsatisfactory, it filed suit against L&T in Missouri to recover on the trade acceptance. L&T did not answer the Missouri suit, and Borg-Warner consequently was awarded a default judgment in the action. It thereupon filed suit in the United States District Court for the Southern District of Georgia seeking to domesticate the Missouri judgment. L&T defended the domestication action on the ground that the Missouri court had lacked in personam jurisdiction over it. The district court initially awarded Borg-Warner summary judgment on this issue, but that ruling was reversed by the United States Court of Appeals for the Eleventh Circuit. See Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 734 F2d 639 (11th Cir. 1984). The district court thereafter ruled that the Missouri judgment was void and unenforceable, and this time its ruling was affirmed on appeal. See Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F2d 1055 (11th Cir. 1986). In the meantime, Borg-Warner had initiated garnishment proceedings to collect the judgment, but those proceedings had been stayed by the federal court pending the final outcome of the domestication action and thus never resulted in the collection of any money. Held:

1. Borg;Warner asserts that the instrument in question is in essence a promissory note, payable unconditionally and without regard to any claims or defenses which L&T might have had against the vendor based on the asserted defects in the goods. We find this characterization of the instrument to be wholly unsupported by the language of the instrument itself, which clearly and unequivocally identifies it as a draft drawn by Borg-Warner upon L&T. See generally OCGA § 11-3-104 (2) (a & d). Even accepting Borg-Warner’s argument that it qualifies as a holder in due course of the instrument within the contemplation of OCGA § 11-3-302, its claim against L&T on the instrument nevertheless remains subject to all defenses which would be available to L&T in an action based on simple contract, since a holder in due course takes an instrument free only of “defenses of any party to the instrument with whom the holder has not dealt. . . .” OCGA § 11-3-305 (2). (Emphasis supplied.) See also OCGA § 11-3-306 (b & c). Accord Morris v. Durbin, 123 Ga. App. 383, 384-5 (180 SE2d 925) (1971). Compare Equitable Discount Corp. v. Guest, 103 Ga. App. 258 (118 SE2d 864) (1961). Inasmuch as the instrument itself identifies the transaction giving rise to it as “the purchase of goods by the acceptor [i.e., L&T] from the drawer [i.e., Borg-Warner],” we hold that L&T was entitled to defend against Borg-Warner’s claim on the ground that the goods were defective or non-conforming, with the result that the trial court did not err in allowing parol evidence to be introduced on this issue, nor in denying Borg-Warner’s motion for a directed verdict.

2. Borg-Warner further contends that the trial court erred in allowing L&T to present evidence on its counterclaim and in refusing to direct a verdict against L&T on the counterclaim. However, because Borg-Warner prevailed on the counterclaim, we find this enumeration of error to be moot.

3. Borg-Warner’s remaining enumerations of error are directed to various asserted defects in the court’s charge to the jury. We find these enumerations of error to be either moot or without merit for the reasons heretofore stated.

4. In its cross-appeal, L&T asserts that the trial court erred in not allowing it to seek damages for malicious use/abuse of process or for abusive litigation based on Borg-Warner’s actions in obtaining a default judgment against it in a state which did not have jurisdiction to issue such a judgment and in attempting thereafter to enforce that judgment in this state. Assuming arguendo that the pursuit of an otherwise non-frivolous claim could ever be considered tortious merely because the claim was pursued initially in a forum which lacked in personam jurisdiction over the defendant, it is readily apparent from an examination of the lengthy United States Court of Appeals opinion affirming the judgment against Borg-Warner in the domestication action that Borg-Warner’s assertion of in personam jurisdiction over L&T in the Missouri court was not frivolous but had substantial arguable merit. See Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., supra, 786 F2d 1055. We consequently hold that L&T’s counterclaim against Borg-Warner for securing and attempting to domesticate the Missouri judgment was without merit as a matter of law, with the result that the ruling complained of in this enumeration of error was not in error.

Decided February 10, 1989

Rehearing denied March 2, 1989

Gurley & Fowler, James B. Gurley, for appellant.

Stanley Smith, H. Dale Thompson, Samuel A. Hilbun, Francis M. Lewis, for appellee.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.