text:
    72987.
    SANDERS et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY et al.
    (355 SE2d 705)
   Pope, Judge.

Larry Glenn Carter was driving a 1983 pickup truck at the time he was involved in an accident in which his passenger, Wayne Sanders, sustained personal injuries. At the time of the accident, Carter was 17 Vi -years-old. A few months previously, he had moved from his mother’s residence to that of his father in order to be closer to work. Although Carter intended to move back into his mother’s residence after he had worked for a certain period of time, he became engaged to be married. At the time of his engagement, he did not intend to return to his mother’s house to live. Carter’s mother and father had obtained a divorce several years earlier, and his mother had been awarded legal custody of him.

The pickup truck which Carter drove at the time of the accident was titled in the name, of his fiancee’s father, although Carter had made the down payment as well as one other payment which had become due. Carter testified that the agreement with his prospective father-in-law was that the title would be turned over to Carter at the time that he became eighteen years of age. The pickup truck was insured by Grange Mutual Insurance Company, which honored the accident loss and paid the claim. However, both Carter and Sanders, appellants herein, claim that the insurance policy carried by Carter’s mother, issued by Georgia Farm Bureau Mutual Insurance Company, as well as the insurance policy carried by Carter’s father, issued by Southern Guaranty Insurance Company, cover the accident. At the trial level, both Georgia Farm and Southern Guaranty, appellees herein, filed a complaint for declaratory relief. Subsequently, both appellants and appellees filed motions for summary judgment. Carter and Sanders appeal the entry of summary judgment in favor of Georgia Farm and Southern Guaranty.

1. The trial court did not err in granting summary judgment to Georgia Farm on the basis that Carter was not a “resident” within the meaning of that policy. The Georgia Farm policy extended coverage to a “relative” of the named insured. “Relative” is defined as “a relative of the named insured who is a resident of the same household. . . .” The trial court held: “It is beyond doubt that after his engagement . . . Carter intended to live exclusively with his father. This intent to live in his father’s house, even if only for the time being, was sufficient to establish his residence there. Smiley v. Davenport, 139 Ga. App. 753, 756 [(229 SE2d 489)] (1976). Given that Carter no longer intended to move back to his mother’s house, and the diminished frequency of his weekend visits following his engagement, he could no longer be considered a resident of her household. The term ‘resident’ is generally understood to mean more than mere physical presence and the transient visit of a person for a time does not make that person a resident. Id.”

2. As to the trial court’s granting summary judgment to Southern Guaranty, the court held: “The pertinent policy provisions contained in the automobile liability policy issued by Southern Guaranty to [Carter’s father] are summarized below: ‘Part I — Liability. . . . Persons Insured: The following are insureds under Part 1: . . .(b) with respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or trailer. . . .’ (Emphasis supplied.) Therefore, the only non-owned automobiles covered while being operated by a relative are those which meet the policy’s definition of ‘private passenger automobile’ or ‘trailer.’ Those definitions, as they appear in the policy, are . . . : ‘private passenger automobile’ means a four wheel private passenger, station wagon or jeep type automobile; . . . ‘trailer’ means a trailer designed for use with a private passenger automobile . . . The 1983 Ford Ranger pick-up truck obviously does not meet the definition of a ‘trailer.’ Does it qualify as a ‘private passenger automobile’? This Court is compelled by the decision in Cotton States Mutual Insurance Co. v. Hutto, 115 Ga. App. 164 [(154 SE2d 375)] (1967) to rule that a pick-up truck does not come within the meaning of the term ‘private passenger vehicle’ as defined in the policy. Although this Court recognizes that in modern usage the pick-up truck is frequently used as a family transportation vehicle and was in fact being used for that purpose at the time of the accident, the appellate courts have not overturned the above-cited decision and consequently, this Court is bound thereby. See generally 11 ALR 4th 475.”

Other jurisdictions share the trial court’s recognition of the modern trend toward usage of the pickup truck for family transportation purposes. Those jurisdictions have declined to hold that the phrase “four wheel private passenger, station wagon or jeep type automobile” excludes a pickup truck as a matter of law. “In general, the older cases tend to find a pickup truck not to be a private passenger automobile, while more recent cases find that it may be. Modern-day usage of vehicles has changed some of our former concepts. Pickup-body-type automobiles are used as family vehicles affording family passenger transportation by some families. Obviously, a pickup-body-type automobile also can be used as a truck for transportation of property. However, most private passenger automobiles contain a trunk which can be used for the same purpose, although its capacity may be less. Likewise, a station wagon which is clearly within the definition of private passenger automobile may often be used solely for transporting property, rather than persons.” National Mut. Ins. Co. v. Reiser, 472 NE2d 375, 379 (Ohio App. 1984). “Certainly, pickup trucks are used as private passenger automobiles by a growing number of people. Most citizens would be surprised to learn that their insurance policies intend a distinction between their use of a neighbor’s car and his pickup. For this reason, we feel that if pickup trucks are to be excluded from the description of private passenger automobiles, this exclusion should be specific and easily understood by the general public. The words ‘private passenger automobile’ are used in [the insurance] policy as essentially self-defining and do not exclude [the] pickup. Examining the words as generally used and understood, there can be little dispute about the first two: the pickup was private in that it was owned by an individual and not used as a common carrier; a pickup can be used to carry passengers and this one was so used at the time of [the] accident. The word ‘automobile’ is the only word in [the insurance] policy that can possibly be construed to exclude a pickup. Yet, Webster’s Third New International Dictionary . . . defines ‘automobile’ as follows: ‘a usu. 4-wheeled automotive vehicle designed for passenger transportation on streets and roadways and commonly propelled by an internal combustion engine using a volatile fuel (as gasoline)-’. It does not require the benefit of strict construction in favor of the insured and against the insurer to hold that the above definition includes a pickup.” (Indention omitted.) Riker v. Aetna Cas. &c. Co., 286 S2d 493, 495 (La. App. 1973).

Like the policy in Cotton States Mut. Ins. Co. v. Hutto, supra, Southern Guaranty’s insurance policy defines “private passenger automobile” as “a four wheel private passenger, station wagon or jeep type automobile”; “farm automobile” as “an automobile of the truck type with a load capacity of fifteen hundred pounds or less not used for business or commercial purposes other than farming”; and “utility automobile” as “an automobile, other than a farm automobile, with a load capacity of fifteen hundred pounds or less of the pickup-body, sedan, delivery or panel truck type not used for business or commercial purposes.” In considering identical contractual definitions the Court of Civil Appeals of Texas specifically declined to follow the holding in Cotton States that these definitions exclude a non-owned pickup truck from coverage as a “private passenger automobile” as a matter of law. However, in reasoning that the contractual language should be interpreted to include a pickup truck, the Texas court utilized language from Cotton States to hold that usage should be a factor in the court’s determination. “In applying the above definition to a pickup truck we find that the latter has four (4) wheels, is designed to carry passengers, is a private conveyance rather than a public conveyance and is a dual or multi-purpose automobile in that it will carry passengers and may at the same time be used as a ‘utility automobile’ or a ‘farm automobile.’ The pickup is an automobile under the definition above set forth and since it is used to carry passengers it is therefore a passenger automobile. In Cotton States Mutual Insurance Company v. Hutto,. . . supra, . . . the opinion states that ‘the actual use made of the particular truck’ is a factor to consider ‘because of the express wording of the definitions.’ ” State Farm Mut. Auto. Ins. Co. v. Durrett, 472 SW2d 214, 217 (Tex. Civ. App. 1971). The Texas court concluded “that under the definitions contained in the policy . . . the . . . pickup truck was a dual purpose motor vehicle designed both for carrying passengers and for transporting goods and was being used as a private passenger automobile and therefore falls within the policy definition of a private passenger automobile.” Id. at 219; accord Hartford Acc. &c. Corp. v. Lowery, 490 SW2d 935 (Tex. Civ. App. 1973).

In construing an insurance policy “the language used must be afforded its literal meaning and plain ordinary words must be given their usual significance.” Georgia Farm Bureau Mut. Ins. Co. v. Ray, 148 Ga. App. 85, 86 (251 SE2d 34) (1978). Further, “[t]he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.” Nationwide Mut. Fire Ins. Co. v. Collins, 136 Ga. App. 671, 675 (222 SE2d 828) (1975). We find.that the “usual significance” of the words “private passenger automobile” has changed in accordance with the growing utilization of the pickup truck as a dual or multi-purpose vehicle. The term no longer necessarily excludes from its usual meaning a pickup truck utilized as a private passenger automobile. We agree with the Court of Appeals of Louisiana that the modern layman would be surprised to learn that his insurance policy did not extend coverage to a pickup truck utilized as a passenger automobile. Riker v. Aetna Cas. &c. Co., supra. Therefore, the definitions sub judice are ambiguous and no longer susceptible simply to one meaning in their application. See generally Village Enterprises v. Ga. R. Bank & Trust Co., 117 Ga. App. 773 (1) (161 SE2d 901) (1968). In view of this, we overrule Cotton States to the extent that we held, “When the contract is considered as a whole the conclusion is demanded that a pickup truck is not a ‘private passenger automobile’ within its meaning.” Cotton States Mut. Ins. Co. v. Hutto, supra at 166.

In recognition of modern-day usage of the pickup truck as a dual or multi-purpose vehicle, we agree with other jurisdictions which have held that under contractual definitions of a “private passenger automobile” as “a four wheel private passenger, station wagon or jeep type automobile” the issue of whether or not a pickup truck falls within the definition is one of fact to be determined by the jury. “One cannot say that a pickup, per se, either is or is not a passenger automobile. Common knowledge, and evidence introduced in this case, both recognize that today many a pickup is purchased and used exclusively for the transportation of passengers — the only cargo it ever sees is the owner’s vacation camper. The ‘reasonable insured’ who borrows such a pickup would certainly be entitled to consider it a passenger automobile. On the other hand, where an identical truck is purchased and used by a commercial enterprise exclusively for the hauling of cargo, it could not reasonably be considered a ‘private passenger automobile.’ The employee driving such a truck, on his employer’s business, could not reasonably believe he was covered by his personal automobile policy. In between these extremes lies a vast area where the classification of the truck must necessarily depend on the proof. . . .” Kramer v. State Farm Mut. Ins. Co., 505 P2d 646, 648-49 (Kan. 1973); accord Johnson v. Home Indem. Co., 401 SW2d 871 (Tex. Civ. App. 1966); Schilling v. Stockel, 133 NW2d 335 (Wis. 1965). It follows that “evidence as to the construction of the vehicle, how such vehicle was commonly used, and how it was being used is competent and material.” Detmer v. United Security Ins. Co., 309 SW2d 713, 717 (Mo. App. 1958).

Decided March 12, 1987

Rehearing denied March 20, 1987

William L. Skinner, John V. Costley, Jr., for appellants.

I. J. Parkerson, Andrew J. Hill III, for appellees.

Our decision to overrule Cotton States requires that we reverse the portion of the trial court’s order granting summary judgment to Southern Guaranty and remand this case to that court for proceedings consistent with this opinion.

3. Southern Guaranty also contends that Carter “owned” the pickup truck and thus it fails to fall within the policy’s definition of “non-owned” automobile. However, the trial court found that Cotton States controlled the issue of whether or not a pickup truck was a “private passenger automobile” and, therefore, did not reach the issue of whether Carter “owned” the pickup truck within the meaning of the policy. It is first incumbent upon the trial court to rule upon the issue of whether or not Carter’s interest in the vehicle amounted to “ownership” which precludes policy coverage before that issue will be considered by this court. See Ga. Const. 1983, Art. VI, Sec. V, Par. III.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Ben-ham and Beasley, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    73906.
    BYRD v. THE STATE.
    (355 SE2d 773)
   McMurray, Presiding Judge.

Via a three-count indictment, defendant was charged with selling marijuana to Mary Jackson (Count 1), selling marijuana to Phillip Ellington (Count 2) and selling cocaine to Phillip Ellington (Count 3). Following a trial by jury, defendant was acquitted upon Count 1 and convicted upon Counts 2 and 3. He was sentenced to serve 5 years on Count 2 and 10 years on Count 3 and now appeals. Held:

1. In his first enumeration of error, defendant contends the trial court erred by failing to dismiss the indictment because he was not furnished with a complete copy of the indictment pursuant to OCGA § 17-7-110. In this regard, defendant points out that (1) Count 1 of the indictment was not attached to the copy which defendant was furnished and that (2) the names of the grand jurors who found the indictment did not appear on defendant’s copy of the indictment.

We can perceive no resultant harm to defendant. He has not demonstrated that he was surprised by Count 1 of the indictment and he has not shown how he was prejudiced by the absence of the names of the grand jurors from his copy of the indictment. “Code § 27-1403 [OCGA § 17-7-110] traditionally has not been interpreted narrowly, but has been construed to accomplish its purpose of giving accurate, timely notice. Newman v. State, 237 Ga. 376, 381 (228 SE2d 790). Moreover, the doctrine of harmless error is applicable to flaws in the prosecution’s compliance with the statute. Clark v. State, 138 Ga. App. 266 (226 SE2d 89). Assuming arguendo that there may have been a technical violation of the spirit of the statute, appellant has shown no resultant and inevitable prejudice ... It is an old and sound rule that error to be reversible must be harmful. Dill v. State, 222 Ga. 793 (1) (152 SE2d 741).” Rutledge v. State, 152 Ga. App. 755, 756 (264 SE2d 244). See also Moore v. State, 170 Ga. App. 709 (318 SE2d 181). Defendant’s first enumeration .of error is without merit.

2. Defendant contends the trial court improperly interfered with his cross-examination of prosecution witness Mary Jackson. The witness testified that defendant sold her a quantity of marijuana on February 5, 1986. Count 1 of the indictment (selling marijuana to Mary Jackson) was predicated upon the witness’ testimony. Defendant asserts that in cross-examining Mary Jackson he should have been permitted to probe deeper into her motivation to testify against him.

In view of defendant’s acquittal upon Count 1 of the indictment, it is clear that an infringement, if any, of defendant’s right to cross-examine Mary Jackson was not prejudicial. Edwards v. State, 176 Ga. App. 369, 371 (337 SE2d 27). Defendant’s second enumeration of error is not meritorious.

3. During the cross-examination of Mary Jackson, defendant’s counsel inquired about the number of drug purchases the witness made for the Georgia Bureau of Investigation (GBI). In so doing, counsel asked the witness how many transactions she told the Georgia Bureau of Investigation about. She described two transactions in which she witnessed the sale of drugs. One such transaction involved the sale by defendant to the witness and the other involved the sale by a person named Don. Counsel continued this line of questioning: “Q. Okay. Are those the only two times that you say you told the GBI?” The witness responded: “A. That was Don and this fella [defendant] sold the GBI agent some marijuana and some cocaine another time.” Thereupon, defendant moved for a mistrial on the ground that the witness’ answer was not responsive to the question and that it placed defendant’s character in issue. The trial court overruled the motion and admonished the witness to listen more carefully to the questions propounded by defense counsel.

Defendant contends the trial court erred by overruling the motion for mistrial and failing to give curative instructions to the jury. We disagree. In the first place, we think it is clear that the witness’ answer was made with reference to Counts 2 and 3 of the indictment not, as defendant contends, unrelated and uncharged incidents. Thus, defendant’s character was not improperly placed in issue by the witness. Secondly, the answer was a legitimate response to defense counsel’s inquiry. “Although one may legitimately complain about illegal testimony which is not responsive to the question, one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given. Henderson v. State, 208 Ga. 73, 75 (65 SE2d 175) (1951).” Felker v. State, 252 Ga. 351, 377 (314 SE2d 621). Defendant’s third enumeration of error is without merit.

4. Defendant contends the trial court erred in admitting three photographs into evidence. One photograph, a picture of defendant taken at the time of his arrest, was admitted into evidence in spite of defendant’s objection that it was not “relevant.” The other photographs, pictures of defendant’s light blue pickup truck, were admitted into evidence over defendant’s objection that the prosecution failed to demonstrate that the photographs accurately depicted the truck at the time in question.

“The question of the sufficiency of the preliminary proofs to identify photographs, or to show that it is a fair or accurate representation of the objects which it purports to portray, is a question committed to the discretion of the trial judge. [Cits.]” Johnson v. State, 158 Ga. 192, 198 (123 SE 120). In the case sub judice, a prosecution witness testified that the picture of defendant accurately portrayed him at the time of his arrest and that the pictures of defendant’s truck were accurate representations of the truck. Given such authentication, we cannot say the trial court abused its discretion by admitting the photographs into evidence. Mills v. State, 140 Ga. App. 192 (2) (230 SE2d 317); Powell v. State, 105 Ga. App. 614, 615 (2) (125 SE2d 531); Green, Ga. Law of Evid., 202-203, § 86. See also Heard v. State, 170 Ga. App. 130, 135-136 (316 SE2d 504). Although the relevance of the evidence may have been doubtful, its weight quite properly was left to the jurors. Lewis v. State, 158 Ga. App. 586, 587 (281 SE2d 331).

Decided February 12, 1987

Rehearing denied March 20, 1987

Thomas E. Pujadas, for appellant.

David E. Perry, District Attorney, for appellee.

5. In his fifth enumeration of error, defendant contends the trial court erred in admitting State’s Exhibit 2 (plastic bag containing two manila envelopes with drugs and a matchbox) into evidence because the prosecution failed to establish the chain of custody. We disagree. The prosecution carried its burden of establishing a reasonable assurance of the identity of the exhibit. It was not necessary for the prosecution to eliminate every possibility of tampering in order for the exhibit to be admissible. Painter v. State, 237 Ga. 30, 33 (226 SE2d 578). Defendant’s fifth enumeration of error is without merit.

6. “A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” OCGA § 24-9-69. In view of the prosecution witness’ averment that he was testifying from his memory refreshed, the trial court did not err in permitting the witness to testify to the tag number on defendant’s truck even though the witness refreshed his memory by viewing a computer printout bearing the tag number. Atlantic Coast Line R. Co. v. Hill, 12 Ga. App. 392 (6), 397 (77 SE 316). The witness was entitled to have his memory refreshed by a document which he himself did not prepare. Shrouder v. State, 121 Ga. 615 (2), 616 (49 SE 702). Defendant’s sixth enumeration of error is without merit.

7. The evidence presented at trial was sufficient to enable any rational trier of fact to find the defendant guilty beyond a reasonable doubt of selling marijuana (Count 2) and cocaine (Count 3) to Phillip Ellington. Smith v. State, 178 Ga. App. 19 (1) (341 SE2d 901). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Any discrepancies in the testimony of the State’s witnesses were for the jury to resolve. Smith v. State, 178 Ga. App. 19 (1), supra.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.


author: Beasley, Judge. Benham, Judge,

text:
    73295.
    GOLDKIST, INC. v. BROWNLEE et al.
    (355 SE2d 773)
   Beasley, Judge.

The question is whether the two defendant farmers, who as a partnership both grew and sold their crops, were established by the undisputed facts as not being “merchants” as a matter of law, according to the definition in OCGA § 11-2-104 (1). We are not called upon here to consider the other side of the coin, whether farmers or these farmers in particular are “merchants” as a matter of law.

In November 1983, Goldkist sued under OCGA § 11-2-712 for losses arising out of the necessity to cover a contract for soybeans. It produced a written confirmation dated July 22 for 5,000 bushels of soybeans to be delivered to it by defendants between August 22 and September 22 at $6.88 per bushel. A defense was that there was no writing signed by either of the Brownlees, as required by OCGA § 11-2-201 (1).

Affidavits were submitted on both sides, and Barney Brownlee’s deposition was taken. Based on the facts which were not in dispute, and favoring the plaintiff’s side of the contested facts, the court agreed with the Brownlees that the circumstances did not fit any of the exceptions provided for in Section 201 and granted summary judgment. On appeal, Goldkist asserts that defendants came within subsection (2), relating to dealings “between merchants.”

Appellees admit that their crops are “goods” as defined in OCGA § 11-2-105. The record establishes the following facts. The partnership had been operating the row crop farming business for 14 years, producing peanuts, soybeans, corn, milo, and wheat on 1,350 acres, and selling the crops.

It is also established without dispute that Barney Brownlee, whose deposition was taken, was familiar with the marketing procedure of “booking” crops, which sometimes occurred over the phone between the farmer and the buyer, rather than in person, and a written contract would be signed later. He periodically called plaintiff’s agent to check the price, which fluctuated. If the price met his approval, he sold soybeans. At this time the partnership still had some of its 1982 crop in storage, and the price was rising slowly. Mr. Brownlee received a written confirmation in the mail concerning a sale of soybeans and did not contact plaintiff to contest it but simply did nothing. In addition to the agricultural business, Brownlee operated a gasoline service station.

In dispute are the facts with respect to whether or not an oral contract was made between Barney Brownlee for the partnership and agent Harrell for the buyer in a July 22 telephone conversation. The plaintiff’s evidence was that it occurred and that it was discussed soon thereafter with Brownlee at the service station on two different occasions, when he acknowledged it, albeit reluctantly, because the market price of soybeans had risen. Mr. Brownlee denies booking the soybeans and denies the nature of the conversations at his service station with Harrell and the buyer’s manager.

In this posture, of course, the question of whether an oral contract was made would not yield to summary adjudication, as apparently recognized by the trial court, which based its decision on the preliminary question of whether the Brownlee partnership was a “merchant.”

Whether or not the farmers in this case are “merchants” as a matter of law, which is not before us, the evidence does not demand a conclusion that they are outside of that category which is excepted from the requirement of a signed writing to bind a buyer and seller of goods. Although it is not binding precedent, see Thunderbird Farms v. Abney, 178 Ga. App. 335 (343 SE2d 127) (1986), which is instructive on the same question. In so holding, we view all evidence, including reasonable inferences and deductions, in favor of respondent Goldkist. OCGA § 9-11-56 (c); Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985).

To allow a farmer who deals in crops of the kind at issue, or who otherwise comes within the definition of “merchant” in OCGA § 11-2-104 (1), to renege on a confirmed oral booking for the sale of crops would result in a fraud on the buyer. The farmer could abide by the booking if the price thereafter declined but reject it if the price rose; the buyer, on the other hand, would be forced to sell the crop following the booking at its peril, or wait until the farmer decides whether to honor the booking or not.

Defendants’ narrow construction of “merchant” would, given the booking procedure used for the sale of farm products, thus guarantee to the farmers the best of both possible worlds (fulfill booking if price goes down after booking and reject it if price improves) and to the buyers the worst of both possible worlds. On the other hand, construing “merchants” in OCGA § 11-2-104 (1) as not excluding as a matter of law farmers such as the ones in this case, protects them equally as well as the buyer. If the market price declines after the booking, they are assured of the higher booking price; the buyer cannot renege, as OCGA § 11-2-201 (2) would apply.

In giving this construction to the statute, we are persuaded by Thunderbird Farms, supra, and the analyses provided in the following cases from other states: Currituck Grain, Inc. v. Powell, 38 N. C. App. 7 (246 SE2d 853) (1978); Rush Johnson Farms v. Mo. Farmers Assn., 555 SW2d 61 (Mo. 1977); Nelson v. Union Equity Co-op. Exchange, 548 SW2d 352 (Tex. 1977); Campbell v. Yokel, 20 Ill. App. 3d 702 (313 NE2d 628) (1974); Barron v. Edwards, 45 Mich. App. 210 (206 NW2d 508) (1973). By the same token, we reject the narrow construction given in other states’ cases: Terminal Grain Corp. v. Freeman, 270 NW2d 806 (S. D. 1978); Sand Seed Svc. v. Poeckes, 249 NW2d 663) (Iowa 1977); Gerner v. Vasby, 75 Wis.2d 660 (250 NW2d 319) (1977); Decatur Co-op. Assn. v. Urban, 219 Kan. 171 (547 P2d 323) (1976); Lish v. Compton, 547 P2d 223 (Utah 1976); Loeb & Co. v. Schreiner, 294 Ala. 722 (321 S2d 199) (1975); Cook Grains v. Fallis, 239 Ark. 962 (395 SW2d 555) (1965).

We believe this is the proper construction to give the two statutes, OCGA §§ 11-2-104 (1) and 11-2-201 (2), as taken together they are thus further branches stemming from the centuries-old simple legal idea pacta servanda sunt — agreements are to be kept. So construed, they evince the legislative intent to enforce the accepted practices of the marketplace among those who frequent it.

Judgment reversed.

Birdsong, C. J., Sognier and Pope, JJ. concur. Carley, J., concurs in the judgment only. Deen, P. J., McMurray, P. J., Banke, P. J., and Benham, J., dissent.

Benham, Judge,

dissenting.

Because I cannot agree with the majority’s conclusion that appellees are merchants, I must respectfully dissent.

Appellant alleges that appellees, doing business as Brownlee Brothers, entered into an oral contract with appellant on July 22, 1983, for the purchase of 5,000 bushels of soybeans at $6.88 per bushel, to be delivered to appellant between August 22 and September 22, 1983. Appellee Barney Brownlee admitted he frequently telephoned appellant’s agents and inquired about the current price for soybeans, but both he and his brother, appellee Mark Brownlee, executed affidavits in which they denied they entered into the contract alleged by appellant. Appellees maintain that the contract sent to them violates the Statute of Frauds and is unenforceable because the contract was for the sale of goods for a price greater than $500 and they, as the parties against whom enforcement is sought, did not sign it. See OCGA § 11-2-201 (1). Appellant takes the position that Barney’s acknowledged receipt of a confirmation of the contract and his failure to give written notice of any objection he had to its contents within 10 days of receipt deprives appellees of their statute of frauds defense. See OCGA § 11-2-201 (2). The validity of appellant’s argument, that sending a confirmation within a reasonable time makes enforceable a contract even though the statute of frauds has not been satisfied, rests upon a showing that the contract was “[bjetween merchants.” Id. “Between merchants” is statutorily defined in the Uniform Commercial Code as meaning “any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.” OCGA § 11-2-104 (3). “ ‘Merchant’ means a person [1] who deals in goods of the kind or [2] otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or [3] to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.” OCGA § 11-2-104 (1). Whether appellant is a merchant is not questioned here; the question is whether, under the facts in the record, appellees/farmers are merchants. While the Georgia appellate courts have not expressly addressed the question of whether the farmers of Georgia are, as a matter of law, merchants under OCGA § 11-2-104 (1), in a decision without precedential value under Court of Appeals Rule 35 (b), a panel of this court ruled in a case similar to the one at bar that the question whether a corporate farmer was a merchant was one of fact, not law. Thunderbird Farms v. Abney, 178 Ga. App. 335 (343 SE2d 127) (1986). Contrary to the holding of the majority, I do not believe the record in this case establishes that appellees are merchants as that term is used in OCGA § 11-2-201 (2) and defined in OCGA § 11-2-104 (1).

The Official Comment to § 2-104 of the U.C.C. (codified in Georgia as OCGA § 11-2-104 (1)) states: “This Article assumes that transactions between professionals in a given field require special and clear rules which may not apply to a casual or inexperienced seller or buyer . . . This section lays the foundation of this policy by defining those who are to be regarded as professionals or ‘merchants’ and by stating when a transaction is deemed to be ‘between merchants.’ The term ‘merchant’ as defined here roots in the ‘law merchant’ concept of a professional in business.” As noted by the Supreme Court of Kansas in Decatur Co-op. Assn. v. Urban, 219 Kan. 171 (547 P2d 323, 328) (1976): “The concept of professionalism is heavy in determining who is a merchant under the statute. The, writers of the official UCC comment virtually equate professionals with merchants — the casual or inexperienced buyer or seller is not to be held to the standard set for the professional in business. The defined term ‘between merchants,’ used in the exception proviso to the statute of frauds, contemplates the knowledge and skill of professionals on each side of the transaction.” The Supreme Court of Iowa is also of the opinion that the Official Comment “apparently excludes the casual buyer or seller.” Sand Seed Svc. v. Poeckes, 249 NW2d 663, 665 (Iowa 1977). Where, as here, the undisputed evidence is that the farmer’s sole experience in the marketplace consists of selling the crops he has grown, the courts of several of our sister states have concluded that the farmer is not a merchant. Terminal Grain Corp. v. Freeman, 270 NW2d 806 (S. D. 1978); Sand Seed Svc. v. Poeckes, supra; Decatur Co-op. Assn. v. Urban, supra; Lish v. Compton, 547 P2d 223 (Utah 1976); Gerner v. Vasby, 75 Wis2d 660 (250 NW2d 319) (1977); Cook Grains v. Fallis, 239 Ark. 962 (395 SW2d 555) (1965); Loeb & Co. v. Schreiner, 294 Ala. 722 (321 S2d 199) (1975); Pierson v. Arnst, 534 FSupp. 360 (Mont. 1982) applying Montana law. Just because appellee Barney Brownlee kept “conversant with the current price of [soybeans] and planned to market it to his advantage does not necessarily make him a ‘merchant.’ It is but natural for anyone who desires to sell anything he owns to negotiate and get the best price obtainable. If this would make one a ‘merchant,’ then practically anyone who sold anything would be deemed a merchant, hence would be an exception under the statute [,] and the need for a contract in writing could be eliminated in most any kind of a sale.” Lish v. Compton, supra, 547 P2d at 225.

It is also my opinion that the record does not reflect that appellees “dealt” in soybeans, or that through their occupation, they held themselves out as having knowledge or skill peculiar to the practices or goods involved in the transaction. See OCGA § 11-2-104 (1). “[Although a farmer may well possess special knowledge or skill with respect to the production of a crop, the term ‘merchant,’ as used in the Uniform Commercial Code, contemplates special knowledge and skill associated with the marketplace. As to the area of farm crops, this special skill or knowledge means, for instance, special skill or knowledge associated with the operation of the commodities market. It is inconceivable that the drafters of the Uniform Commercial Code intended to place the average farmer, who merely grows his yearly crop and sells it to the local elevator, etc., on equal footing with the professional commodities dealer whose sole business is the buying and selling of farm commodities.” Pierson v. Arnst, supra, 534 FSupp. at 362. While appellees might be production experts, there is no evidence reflecting that they were skilled in the marketplace. See Sand Seed Svc. v. Poeckes, supra; Cook Grains v. Fallis, supra; Terminal Grain v. Freeman, supra; Decatur Co-op Assn. v. Urban, supra. While there is evidence that appellees produced and sold soybeans, there is no evidence that they trafficked in or bought and sold soybeans. Nelson & Union Equity Co-op Exchange, 548 SW2d 352 (Tex. 1977) (dissent). If one who buys or sells something on an annual basis is a merchant, then the annual purchaser of a new automobile is a merchant who need not sign a contract for the purchase in order for the contract to be enforceable. The majority posits that my construction of the word “merchant” would “guarantee to the farmers the best of both possible worlds (fulfill book if price goes down after booking and reject it if price improves) and to the buyers the worst of both possible worlds.” Majority opinion, p. 289. The majority’s fears are unfounded. If these farmers are not merchants, a contract signed by both parties is necessary for enforcement. If the farmer signs a contract, he is liable for breach of contract if he fails to live up to its terms. If he does not sign the contract, he cannot seek enforcement of the terms of the purchaser’s offer to buy. Furthermore, “[i]f indeed the statute of frauds has, as claimed, permitted an injustice, it is a matter which addresses itself to the legislature.” Loeb & Co. v. Schreiner, supra, 321 S2d at 202. See also Cook Grains v. Fallis, supra, 395 SW2d 555.

Decided March 20, 1987.

Peter Zack Geer, for appellant.

Jesse G. Bowles III, for appellees.

Because I find no evidence in the record that appellees meet the statutory qualifications as merchants, I would affirm the decision of the trial court.

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

       At least two Georgia cases recognize that the undisputed evidence may show that a party is a “merchant” as a matter of law: Greater Southern Distrib. Co. v. Usry, 124 Ga. App. 525 (2) (184 SE2d 486) (1971); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897 (2) (328 SE2d 564) (1985).

       From the Commencement Address of Dean Rusk, University of Georgia School of Law, 1986.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    73582.
    73719.
    EADY v. THE STATE. JONES v. THE STATE.
    (355 SE2d 778)
   Deen, Presiding Judge.

Eady and Jones appeal their jury convictions and sentences on four counts of rape (OCGA § 16-6-1), four counts of armed robbery (OCGA § 16-8-41), five counts of burglary (OCGA § 16-7-1), and three counts of theft by taking a motor vehicle (OCGA § 16-8-2). Five incidents from June to September 1985 are involved.

1. Each appellant maintains he was entitled to directed verdicts on all counts but especially on the armed robbery counts, for lack of any evidence. Neither points out any element for which the evidence is deficient except with respect to armed robbery. Therefore, we need not relate the evidence as to the convictions for rape, burglary, and auto theft. It is sufficient to state that after a review of that evidence we find it ample to enable any rational trier of fact to find that each committed these offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Maddox v. State, 170 Ga. App. 498, 499 (1) (317 SE2d 617) (1984).

a) Though defendants do not point to a defect in the evidence as to the armed robbery of victim McDowell, we have reviewed the evidence and find that it could have enabled a rational trier of fact to find that Jones and Eady had committed the armed robbery of MeDowell beyond a reasonable doubt. Jackson v. Virginia, supra.

b) Defendants urge that while victims. Bakhsh and Ballieu did have guns stolen, there was no allegation that either woman was threatened with a weapon. They cite Rivers v. State, 250 Ga. 288 (298 SE2d 10) (1982) for the proposition that a defendant “cannot be convicted of armed robbery where the offensive weapon used to perpetrate the armed robbery is also the only fruit of the armed robbery.” Id. at 294.

Bakhsh testified that she was asleep on her couch when she was awakened by a feeling of being suffocated. A sheet from her son’s bed had been placed over her face, her legs were being held, and someone was whispering in her ear to be quiet or they would kill her children. Two men led her into the bedroom and took turns raping her and then asked for money and any guns in the house. She told them where her purse was and that there were no guns. One man threatened that if she was lying, they would kill her, so she told them about a gun which they found. They informed her they were going to take her truck. One man put his hand under the cover, and Bakhsh could see a clear-gloved hand with a knife in it. He asked if she saw the knife and told her it would be at the foot of the bed and if she could find it, she could cut herself loose. The men took a shotgun, a television, change, and a gallon of orange juice. “[A]n armed robbery is committed if [a] weapon has been used as an instrument of constructive, as well as actual, force. [Cits.]” Maddox v. State, 174 Ga. App. 728, 729 (1) (330 SE2d 911) (1985). See also Doby v. State, 173 Ga. App. 348, 349 (1) (326 SE2d 506) (1985). The evidence was sufficient for the convictions for the armed robbery of Bakhsh.

Ballieu, a deputy sheriff, was awakened in the early morning hours by her dog barking. She walked into the kitchen and saw a man standing in the back door. When she spoke, he ran towards her, grabbed her by the top of the head and forced her to lie face down on the kitchen floor. She was struck on the head with her assailant’s fist and placed in fear of her life; was tied up with scarves and panty hose; was raped; and then was robbed. After the rapes, one of the men ordered her not to tell what happened because he said he knew where her children went to school and had pictures of them. The men left, taking Ballieu’s handbag, gun, and car. The jury’s guilty verdict is supported by evidence here.

c) Defendants also argue that there was no testimony of any weapon used in connection with victim Tarrer. Defendants were charged with taking money from her by use of a sharp-bladed file. They further argue that the defective conviction for the armed robbery of Tarrer should have been the basis for a directed verdict on all counts because it showed that the jury could not properly do its job due to “overwhelming counts, cumulative testimony, and inadmissible evidence which was permitted into the record.”

The evidence reveals that Tarrer woke up when she heard a movement in the hallway like the shuffling of feet. She saw the shadows of two men in the hallway and screamed. They rushed into the room, clamped their hands over her mouth and told her not to scream. Tarrer’s young daughter called out to her, and Tarrer told her she was having a bad dream and to go back to sleep. Tarrer told the men to shut and lock her bedroom door because she feared her daughter would come into the room and that the men would attack the daughter or make the daughter watch as they attacked her. She never had a chance to get off the bed and had no weapons to try to protect herself. The men then each raped Tarrer while keeping a pillow over her face, causing her difficulty in breathing. After the assault, and while still keeping the pillow on her face, the men bound her by rolling her up in a sheet and rummaged through the house. They took her purse and its contents and approximately $300 which Tarrer told them about in hopes they would leave.

“The term ‘offensive weapon’ includes not only weapons which are offensive per se, such as firearms loaded with live ammunition, [but] also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use . . . [Cit.]” Hambrick v. State, 174 Ga. App. 444, 445 (1) (330 SE2d 383) (1985). There was evidence that the pillow was used in such a manner as might have produced death or great bodily injury, i.e., by suffocation. While such things as a fist, a stick, a beer bottle, or a shoe are not per se deadly weapons, it is generally a jury question, under all the circumstances surrounding the way they are used. Hambrick v. State, 174 Ga. App. 444, supra; Meminger v. State, 160 Ga. App. 509 (287 SE2d 296) (1981) (overruled on a different point); Quarles v. State, 130 Ga. App. 756 (204 SE2d 467) (1974); Williams v. State, 127 Ga. App. 386 (193 SE2d 633) (1972). Here we cannot say as a matter of law that the way the pillow and sheets were used could not make them into deadly weapons. We affirm this conviction and sentence, also.

2. Eady contends that the committal judge erroneously bound him over without probable cause because three of the subpoenaed victims could not identify him.

Any questions as to the propriety of the finding of probable cause at the committal hearing are rendered moot by subsequent convictions for the offenses charged, for “[t]he purpose of a commitment hearing is simply to determine whether there is probable cause (sufficient reason to suspect) to believe the accused guilty of the offense charged, and if so, to bind the accused over for indictment by the grand jury. [Cits.]” Neal v. State, 160 Ga. App. 498, 499 (1) (287 SE2d 399) (1981), and even when there is a complete failure to hold a commitment hearing, there is no judicial oversight or review of the decision to prosecute, once an indictment is obtained. State v. Middlebrooks, 236 Ga. 52, 55 (2) (222 SE2d 343) (1976); First Nat. Bank & Trust Co. v. State, 137 Ga. App. 760 (224 SE2d 866) (1976), aff’d 237 Ga. 112 (227 SE2d 20) (1976).

3. Eady also claims that the trial court erroneously refused to quash the indictment upon his motion that he had been denied his rights to present evidence at the committal hearing. He does not state in what manner he was denied the presentation of evidence. During the proceeding he was represented by counsel.

Even if we assume that Eady was improperly prevented from presenting evidence, “an imperfect commitment hearing . . . did not authorize the trial judge to quash the indictment. . . .” Day v. State, 237 Ga. 538, 539 (1) (228 SE2d 913) (1976).

4. Eady and Jones argue that the trial court erred in refusing to sever for trial the case as to offenses and as to defendants.

a) Joinder of separate offenses in a single indictment is permitted where they “ ‘ “(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” ’ [Cit.] . . . ‘ “[WJhenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.” ’ [Cit.] In other circumstances, the trial court has the discretion to grant a severance where it is deemed necessary or appropriate to achieve a ‘ “fair determination of the defendant’s guilt or innocence of each offense,” ’ taking into consideration ‘ “whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.’” [Cit.]” Thompson v. State, 181 Ga. App. 163, 165 (351 SE2d 483) (1986).

The offenses in this case were not joined for trial solely on the basis that they were of similar character. They were properly joined because they constituted a series of criminal acts closely connected by geography, time, and manner so as to constitute a scheme or plan of criminal conduct. See Johnson v. State, 158 Ga. App. 398, 400 (4) (280 SE2d 419) (1981). Moreover, the offenses charged were not so numerous or the evidence so complex that, prior to trial, the court could find that the trier of fact would be unable to distinguish the evidence and apply the law intelligently as to each offense. Id. There was no abuse of discretion by the trial court in refusing to sever the offenses.

b) Nor do we find that the trial court abused its discretion in refusing to sever the case as to the defendants. OCGA § 17-8-4; Stevens v. State, 165 Ga. App. 814, 816 (3) (302 SE2d 724) (1983). Severance was not necessary to achieve a fair determination of the guilt or innocence of the defendants. Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). Significant factors to consider are whether or not the number of defendants will create confusion of the evidence and law applicable as to each defendant, whether there is a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court, and whether the defendants’ defenses are antagonistic to each other or to each other’s rights. Id. at 129. See also Owens v. State, 251 Ga. 313, 320 (8) (305 SE2d 102) (1983); Jackson v. State, 249 Ga. 751, 757 (6) (295 SE2d 53) (1982); Kelley v. State, 248 Ga. 133, 135 (3) (281 SE2d 589) (1981); Myrick v. State, 155 Ga. App. 496 (1) (271 SE2d 637) (1980); Jones v. State, 243 Ga. 584, 586 (4) (255 SE2d 702) (1979).

Defendants argue that severance was mandated because the case was complex, because of the limited admissibility of certain testimony, and because of incompatible defenses. The defendants’ acts were inextricably bound as a matter of fact. In addition the issue of identity was the basis of the defense of both defendants. Defendants’ argument for necessity of severance of their trials is without merit.

5. Eady maintains that the court erred in denying his motions for funds for an independent psychiatric evaluation.

“[W]here a showing is made that the defendant’s sanity is likely to be a significant factor at trial, the state is required to provide an indigent defendant with access to the assistance of a competent psychiatrist in preparing the defense.” Lindsey v. State, 254 Ga. 444, 448 (330 SE2d 563) (1985) discussing Ake v. Oklahoma, 470 U. S. 68 (106 SC 1087, 84 LE2d 53) (1985). However the mere filing of a motion does not constitute a preliminary showing that sanity at the time of the offense is likely to be a significant factor at trial. Id. at 448.

Following Eady’s motion, the court ordered a psychiatric evaluation of the defendant. The evaluation stated that Eady was competent to assist in his defense and fully aware of the pending charges, though he was somewhat mildly retarded, and further that Eady did not suffer from any mental illness which would hinder him from knowing right and wrong or any delusions or compulsions which would hinder him from acting in a right manner. The report went on to opine that Eady’s behavior was due to personality disorders not treatable in a hospital setting.

After receiving the evaluation, the court denied Eady’s motion for funds for an independent evaluation. Under the circumstances we see no abuse. Lindsey v. State, supra.

6. Both defendants maintain that the trial court erred in refusing to quash their in-custody statements following a Jackson-Denno hearing.

The gist of defendants’ argument is that they were prompted to confess because the intervening officers led them to believe that conviction of the offenses for which they were being charged carried the death penalty, and that they confessed to assure that they would not receive it. Eady contends that an additional factor in his confession was that he was told his sister’s criminal activity would be dealt with more harshly.

At the Jackson-Denno hearing, Eady testified that he would not have made his statements but for threats of the death penalty and prison for his sister. He further testified that he believed the officers would go to the district attorney to ask for probation for him. Jones also testified that he confessed because of fear of the death penalty.

The interviewing officer who mentioned the death penalty testified that while he indicated that the offenses charged were capital ones, he stressed that under the circumstances of the four cases there was no possibility that the death penalty would be imposed. Furthermore, there was testimony that Eady was told that his sister would be arrested for hindering his apprehension, but there was no evidence of suggestion that the sister’s fate would be affected by his confession.

At the close of the hearing the court denied the motions to suppress the confessions. Implicit in the ruling is the court’s finding that the statements were freely and voluntarily made, without hope of benefit or reward. OCGA § 24-3-50; Head v. State, 180 Ga. App. 901, 902 (1) (350 SE2d 854) (1986). In reaching this determination, the court sits as the trier of fact and it must decide the credibility of the witnesses. Herkert v. State, 177 Ga. App. 610 (1) (340 SE2d 251) (1986). Our role is to determine whether' or not the trial court’s ruling was clearly erroneous, Lovell v. State, 179 Ga. App. 98, 99 (1) (345 SE2d 645) (1986), and we find that it was not.

7. Eady and Jones maintain that the trial court “erred in refusing to dismiss the indictment because of the District Attorney’s misconduct in speaking with the press on the eve of the trial after the District Attorney, through his assistant, had been warned against such conduct.

The controversy ensued after a March 14, 1986 newscast by a local network, prominent in Dougherty County, which in essence stated that the district attorney’s office had worked out a plea bargain agreement with Eady and Jones, whereby they would plead guilty to the pending charges of rape, burglary and theft, each receive two twenty-year sentences to be served consecutively, and that they then would not be tried for a pending aggravated assault charge in connection with the January 1984 shooting of a boy who was left paralyzed by the incident. The reporter’s sources were the District Attorney and the assault victim’s father.

The court heard the motions for dismissal and for change in venue. While it denied dismissal of the indictment, it did grant a change of venue to the extent that the jury was selected in Bibb County, apparently outside the viewing area of the channel which broadcast the story, and then transported to Dougherty County for the actual trial of the case. This resolution of the motions, after consultation with defendants’ attorneys, constitutes no error in that defendants have shown no harm by the objected-to newscast. Durham v. State, 179 Ga. App. 636, 637 (4) (347 SE2d 293) (1986).

8. Defendants contend that the trial court erroneously allowed Adams to testify about certain incriminating statements which he overheard while transporting the defendants from the jail to a hospital for tests. Jones and Eady argue that the substance of their conversation was not timely disclosed under the mandate of OCGA § 17-7-210, that the statement included references to sentencing, that no Miranda warning was given and therefore that the alleged conversation infringed Jones’ right to remain silent, and that Eady’s rights were likewise violated because Jones’ comments were imputed to Eady.

The conversation occurred in October 1985, at which time Adams reported it to some detectives and a crime scene technician. However, Adams did not write down a summary of the conversation until April 1986. In December 1985 defendants made a motion for discovery and disclosure under OCGA §§ 17-7-210, and 17-7-211. The state argues that it did not violate the mandate of OCGA § 17-7-210 because subsection (e) declares that the 10-day rule of proffer of evidentiary statements does not apply to evidence discovered after a request has been filed and that upon the state’s discovery of the new evidence, notice was timely given to defense counsel.

Though it is clear that Adams reported the conversation prior to the disclosure request, it is apparent that there was no attempt to document the incident until well after the request. Therefore there was nothing for the state to produce under OCGA § 17-7-210.

Furthermore, the conversation was spontaneous and not in response to any interrogation or prodding by Adams. Therefore, there is no Miranda violation. DeLoach v. State, 175 Ga. App. 708, 710 (334 SE2d 35) (1985).

9. Defendants contend that the trial court erred in failing to grant a mistrial after certain “inflammatory comments” by the district attorney and in particular, his use of the term “brutalized.”

During cross-examination regarding a recovered cable converter box which had been leased to victim McDowell, the district attorney stated: “Well, for Your Honor’s judgment, as far as the State is concerned, the only issue here and it has already been handled by this witness and that is whether or not this is a cable converter leased to the lady who was brutalized in her apartment.” Defense counsel requested removal of the jury and asked for a mistrial on the basis of improper comment by the state. The court found that it was “right on the borderline,” overruled the motion, and admonished the district attorney to use the proper language or it would be compelled to declare a mistrial.

No further request for curative action nor renewed request for mistrial was made, and the objection was waived. Kirksey v. State, 177 Ga. App. 428, 430 (3) (339 SE2d 401) (1986).

10. Defendants argue that the trial court erred in charging over objection the lesser included offense of robbery by intimidation. OCGA § 16-80-41 (a).

The evidence justified a charge on robbery by intimidation. Jackson v. State, 175 Ga. App. 843 (334 SE2d 731) (1985). Moreover, the charge was favorable to defendants since they were charged with the greater offense of armed robbery. Therefore, they can demonstrate no resulting harm. Wyatt v. State, 179 Ga. App. 327, 328 (1) (346 SE2d 387) (1986).

11. Lastly, Eady and Jones contend they are entitled to a new trial because under the “totality of the circumstances” the trial was fundamentally unfair and therefore they were denied due process. Defendants then go through a recital of their prior enumerations of error, arguing that the aggregate of asserted error amounts to a fundamentally unfair trial.

We are unable to agree with defendants that the trial was fundamentally unfair. The contention is without merit and defendants’ remaining convictions stand. Campbell v. State, 181 Ga. App. 1, 3 (2) (351 SE2d 209) (1986).

Judgments affirmed.

Birdsong, C. J., Banke, P. J., Carley, Sognier, Pope and Benham, JJ., concur. Beasley, J., concurs in part and dissents in part. McMurray, P. J., concurs in the judgment of the dissent only.

Beasley, Judge,

concurring in part and dissenting in part.

I agree with everything that is contained in the opinion except that I do not find evidence sufficient to support the armed robbery convictions of these two men with respect to victims Ballieu and Tarrer. While there is ample evidence of robbery, OCGA § 16-8-40, there was no evidence that they took the property “by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41.

As to Ballieu, the majority states that she was struck on the head with her assailant’s fist. I find in the record only the following two relevant portions of evidence, which was her testimony. First, when one man entered her back door, “he grabbed me and he grabbed me by the top of my head and forced me down on the floor of the kitchen where I had to lay face down.”

Decided March 20, 1987.

William H. Hedrick, for appellant (case no. 73582).

Carl A. Bryant, for appellant (case no. 73719).

Hobart M. Hind, District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.

Second, when she was taken from the kitchen to the bedroom: “he pulled me off the floor and led me, after they had tied my head with several scarves and some pantyhose into my room and laid me down across my bed. At this time, he tried to take my clothes off, and I resisted, and he struck me at least two times on the side of the head here (indicating) and told me to shut up. . . .”

As to Tarrer, she testified, beginning with the rape episode: “all the while, they had stuffed a pillow over my face and I couldn’t breathe very well and I sort of pushed up at the pillow to get it a little bit where I could breathe, and I had a view like this (indicating). . . . [W]hen they were through sexually assaulting me, they rolled me up in a sheet as if they were tying me up and they kept the pillow in my face all the time and then they went back toward my kitchen and I could hear them banging around in there and it sounded like they were looking in drawers to see what they could rob or whatever. . . .”

I am of the opinion that this evidence does not support the finding in each case of the use of “an offensive weapon,” which element is essential to raise robbery to the more severe crime of armed robbery. Robbery by force, or robbery by intimidation, by the use of threat or coercion, or by placing the victim in fear of immediate serious bodily injury does not become armed robbery unless an offensive weapon is used.

To find armed robbery of Ballieu and Tarrer on the evidence here is to blur any meaningful distinction between the two crimes.


author: Benham, Judge.

text:
    72968.
    INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, EMPLOYERS PENSION FUND TRUST v. SAUNDERS.
    (355 SE2d 461)
   Benham, Judge.

Appellant brings this interlocutory appeal from the denial of its motion to dismiss for failure to prosecute pursuant to OCGA § 9-2-60 (b). Appellee filed his complaint on January 7,1976. On December 10, 1980, an order was signed by the trial judge who originally had this case before him. That judge did not indicate a filing date on the order. Between December 10, 1980 and January 22, 1981, the order slumbered in either the judge’s office or in the clerk’s office without a filing date reflected thereon. January 22, 1981, was the filing date put on the order by the clerk’s office. The present trial court judge denied appellant’s motion to dismiss on two grounds: that the five-year period established by § 9-2-60 (b) did not begin to run until the defendant’s amended answer was filed in April 1976, making the single order in the case timely whether it was filed on December 10, 1980 or on January 22, 1981; and that the order was filed with the original trial judge on December 10, 1980.

1. The first issue to be decided is the date on which the five-year period began to run. The trial court held that since no meaningful order could be filed until issue was joined, the time period did not commence until the filing of the defendant’s answer. We disagree.

OCGA § 9-2-60 (b) provides that “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed ...” Although we have found no case in which this precise issue has been addressed, we note that this court, in several cases, has calculated the five-year period from the date the complaint was filed. See Southern Bell Telephone &c. Co. v. Perry, 168 Ga. App. 387 (308 SE2d 848) (1983); Maroska v. Williams, 146 Ga. App. 130 (245 SE2d 470) (1978); Johnson v. McCauley, 123 Ga. App. 393 (181 SE2d 111) (1971); Dupriest v. Reese, 104 Ga. App. 805 (123 SE2d 161) (1961). That interpretation of the statute is bolstered by the language of OCGA § 9-11-3: “A civil action is commenced by filing a complaint with the court.” We hold, therefore, that the trial court erred in holding that the five-year period of § 9-2-60 (b) did not begin to run until the defendant’s answer was filed; it began to run on the date the complaint was filed. Therefore, the trial court’s denial of appellant’s motion to dismiss cannot be sustained on the first ground asserted by the trial court.

2. Appellant’s second enumeration of error asserts that the trial court erred in amending the court records to reflect that an order signed on December 10, 1980, was also filed on that date. We agree.

In considering appellant’s motion to dismiss, the trial court reviewed affidavits signed by the original trial judge, by his secretary, by the deputy clerk whose signature appeared on the filing stamp on the order in question, and by the clerk of the court. The original judge and his secretary averred that the order was signed by the judge on December 10, 1980, and that it was the custom and the practice in that office for such orders to be turned over to the secretary to be taken for filing with the office of the clerk. The clerk and deputy clerk swore that it was the practice in the clerk’s office to immediately stamp any document with the date on which it was filed. Based on those affidavits, the trial court concluded that the order was filed on December 10, 1980 by the trial judge permitting it to be filed with him.

Decided March 10, 1987

Rehearing denied March 23, 1987

D. Keith Calhoun, James R. Gardner, for appellant.

James E. McAleer, Jr., for appellee.

OCGA § 9-11-5 (e) defines “filing with the court” as “filing [papers] with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.” The record in this case does not support a finding that the trial court permitted the order “to be filed with him” within the meaning of § 9-11-5: There was no date marked on the order by the judge as is required by the statute, and neither the judge nor his secretary averred that the particular order in question was filed with the judge; they both stated only that the judge signed the order on December 10, 1980, and that it was the practice of that office for the secretary to take such documents to the clerk for filing. “The entry of filing by the clerk is the best evidence of the date of filing and is presumed to be correct until the contrary is shown. [Cit.] This presumption may be rebutted, however, by proof of delivery for filing to the clerk on a different day. ‘The actual date of filing is the date upon which the paper is handed to the clerk to be filed.’ [Cit.]” H. R. Lee Investment Corp. v. Groover, 138 Ga. App. 231 (2) (225 SE2d 742) (1976). The evidence in the record in this case does not show that the order was delivered to the clerk on a date other than January 22, 1981, the date marked on it by the clerk’s office. We hold, therefore, that the trial court’s finding that the order was filed on December 10, 1980, was erroneous, and that the order was filed on January 22,1981. It follows that since no order was filed in this case during the five-year period after the complaint was filed on January 7, 1976, that the action was automatically dismissed by operation of OCGA § 9-2-60 (b). Accordingly, the trial court’s denial of appellant’s motion to dismiss was error.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    73671.
    BEAVER v. STEINICHEN et al.
    (355 SE2d 698)
   Birdsong, Chief Judge.

Summary judgment was granted to defendants Steinichen, Boehner and Oliver in this medical malpractice case and the plaintiff appeals. Held:

Summary judgment was correctly given to these defendants on the grounds the statute of limitations on these actions (OCGA § 9-3-71) had expired. The evidence is not disputed that the plaintiff was last treated by defendant Boehner October 12, 1982, by defendant Oliver October 25, 1982 and by defendant Steinichen October 26, 1982. Plaintiff discovered something was wrong in January 1983, when she discovered that her stitches had not healed properly from the episiotomy done during the birth of her baby in October 1982. She filed a complaint on August 1, 1984 against the hospital but did not attempt to add the appellee defendants Boehner and Steinichen and Oliver to her complaint until after the hospital had answered and placed all blame for negligence upon the appellees. Steinichen and Boehner she added on November 2, 1984 and Oliver on December 5, 1984. Thus, none of these defendants was sued until more than two years after any of them last had contact with her. Even if she had raised below any question of fraud tolling the statute of limitations (and she did not) and even if there were any evidence of fraud to create an issue of fact (and there was not), by her own admission she discovered her alleged injury in January 1983, and there is no intimation the appellees prevented her from filing suit at that or any other time thereafter; thus the running of the statute was not tolled under any construction.

Her case is not saved by her belated attempt to escape the running of the statute by adding the appellees by amendment without leave of court (see Robinson v. Bomar, 122 Ga. App. 564 (2) (177 SE2d 815)), and then having the trial court, on December 17, 1984 issue an order “relating back” these amendments (as to Steinichen and Boehner) to the date of the complaint. The amendments to add these parties do not relate back to the original suit under OCGA § 9-11-15 (c) because they are not a change of parties but amount to the commencement of the action as to new defendants (A. H. Robins Co. v. Sullivan, 136 Ga. App. 533, 534-536 (221 SE2d 697)), which, being done outside the statute of limitations, comes too late. Moreover, even a “change” of defendant can relate back under OCGA § 9-11-15 (c) only “if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” This language negatives any idea that the provisions can be used to add parties who are altogether strangers to the action (id. p. 535) or that by “relating back” that addition, the plaintiff can escape an expired limitation. The trial court correctly rendered summary judgment in the case; it is not necessary to consider the sufficiency of the plaintiff’s expert affidavit.

Decided March 10, 1987

Rehearing denied March 24, 1987.

William J. Sussman, for appellant.

Patricia W. Booker, Gould B. Hagler, W. Allen Evans, for appellees.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    73993, 73994.
    MOBLEY v. COAST HOUSE, LTD. et al.; and vice versa.
    (355 SE2d 686)
   Birdsong, Chief Judge.

Tort — Injuries Resulting From Undue Influence and Duress — Summary Judgment. This convoluted case requires a somewhat extensive factual and procedural explanation. In July 1984, Mrs. Mobley executed a sales contract for real estate on St. Simons Island, including a motel (Craft’s Court), to the appellee Davis. Davis offered to share this inchoate interest with Coast House, Ltd. and Sandease, Ltd., the financial backers who comprised the other-corporate and private individual appellees and who apparently were interested in land development. The remainder of the purchase price of $1,500,000 was to be paid at time of closing on May 31, 1985. The closing was to take place in the law offices of the appellee Miles (apparently representing Coast House). Mobley was not present but was represented by her attorney, Rolleston. The purchaser Davis also was present and represented by appellee Allen, a member of the appellee Nightingale law firm. After extended discussions in Miles’ office, the closing aborted. Rolleston, Mrs. Mobley’s attorney, left the Brunswick area around 5:30 p.m. to return to Atlanta. After Rolleston left, Davis and appellee Curry (one of the developers), both of whom were interested in closing on the purchase to protect their substantial interest in the land development, individually approached Mrs. Mobley at her home to persuade her to sell the property in accordance with the terms of the sales contract.

Prior to these preliminary but unsuccessful negotiations, Miles had gone to appellee Phelps (an officer of the appellee First Federal Savings Bank) and drew a check in the amount of $1,500,000 from a real estate escrow fund. At this time, approximately 7:00 p.m. May 31, 1985, Davis and Curry were joined by appellees Mrs. Jones and Mrs. Curry. The attorneys Miles and Allen also drove to the location but remained outside the house in a car. The $1,500,000 check was tendered to Mrs. Mobley by one or more of the developers with insistent and repetitive demands that the sale be consummated. Mrs. Mobley was repeatedly warned that failing a sale she would be sued and lose not only the property but would incur additional losses as well based upon damages arising out of breach of contract. Ultimately, Mrs. Mobley accepted the check and signed over the deed to the real estate. Because there had been no notary present at the closing, the next day Mrs. Mobley affirmed her signature and the validity of the transaction. A short while later Mrs. Mobley sold the personalty and fixtures of the motel to the appellees for the sum of $10,000.

On June 5, 1985, Mrs. Mobley filed a complaint seeking in Count 1 to cancel her warranty deed to Coast House on the ground she signed it under duress and undue influence. In Counts 2 and 3, Mobley sought general and punitive damages arising out of the physical and mental stress caused by the duress and undue influence caused by Mr. and Mrs. Curry, Mrs. Jones and Davis on and after 7:00 p.m. May 31, 1985. She asserted these four acted in conspiratorial concert with attorneys Allen (and his law firm), Miles and the bank with its officer Phelps (in furnishing the $1,500,000 check), the totality of such acts pressuring her to transfer her property in order to protect their significant financial investment in the development scheme which depended wholly on a successful purchase of Mrs. Mobley’s property.

Subsequently, the trial court offered Mrs. Mobley the opportunity to pay into the registry of the court the purchase amount of $1,500,000 before proceeding with her equitable complaint to set aside the deed. Mrs. Mobley had already dispersed a large portion of this money and declined to pay any money into the registry of the court. The trial court then dismissed Count 1 of the complaint seeking cancellation of the deed. Mrs. Mobley unsuccessfully appealed this dismissal of Count 1 to the Supreme Court. Craft’s Ocean Court v. Coast House, Ltd., 255 Ga. 336 (338 SE2d 277). The case was remanded to the trial court for trial on the two remaining counts, involving the tortious injury arising out of the duress and undue influence.

Prior to the trial, extensive discovery (approximately 2,000 pages) was developed by Mrs. Mobley and the defendants. Mrs. Mobley’s counsel Rolleston unsuccessfully moved for the disqualification of one of the defendant’s counsel because of an alleged conflict of interest. A counter-move to disqualify Rolleston (Mrs. Mobley’s attorney) was made by the defendants, contending Rolleston had a pecuniary interest in the real estate under litigation and was a necessary witness in the pending litigation. Subsequently, each of the defendants moved for summary judgment on the grounds that there had been no legal duress or undue influence and that Mrs. Mobley had ratified the contract of sale even if duress had occurred. On April 1, 1986, the trial court granted the motions of each of the defendants for summary judgment but denied the defendants’ motion to disqualify Mobley’s attorney Rolleston.

Mrs. Mobley filed her notice of appeal to the grants of summary judgment in the Supreme Court on April 11, 1986. The records of this court reflect that the defendants filed on May 13, 1986, a motion for an interlocutory appeal to the trial court’s refusal to disqualify Rolleston. This motion for interlocutory appeal was denied by this court on May 29, 1986. Thereafter, a notice of cross-appeal on these same grounds was filed in the Supreme Court on August 25, 1986. Mrs. Mobley has moved to dismiss the cross-appeal as having been untimely filed. The appeal by Mobley and the cross-appeal by the defendants has been transferred from the Supreme Court to this court for final disposition. Held:

Case No. 73993

In her main appeal Mrs. Mobley urges error in the grant of summary judgment to each of the defendants and advances several predicates for her enumeration. As the first basis for her contention Mrs. Mobley contends there are clear issues of fact as to whether undue influence and duress were involved. However, it is clear that the alleged “threats” dealt only with a threatened action at law for breach of contract. Our review of the record shows that each person present on May 31 only made threats to institute a legal action for specific performance and if necessary to recover damages for the breach of the real estate contract. Under Georgia law, threats to take legal action provide no basis for duress and are not actionable in tort. Fields v. Thompson, 164 Ga. App. 331 (297 SE2d 100). This court has concluded that an act must be wrongful to constitute duress and it is not duress to threaten to do what one has a legal right to do. The threat to bring a civil proceeding against the person is not duress in a legal sense. Cannon v. Kitchens, 240 Ga. 239 (240 SE2d 78); Stroup v. Robbie Jon Dev. Corp., 159 Ga. App. 652 (284 SE2d 667). Thus we must conclude that the “threats” associated with institution of a civil suit cannot and do not constitute duress and are not actionable in tort. On the basis of this ground it follows the trial court properly entered summary judgment on behalf of each defendant.

Even assuming there remain factual issues concerning duress and undue influence based upon abusive, loud or angry declarations, Mrs. Mobley has ratified by her actions the sale of the real estate in question. Mrs. Mobley could have affirmed the contract and sued for damages for fraud or could have returned the proceeds and sued for revocation of the contract because it was procured through duress and undue influence, but neither of these courses of action is available to her where she affirms the contract but does not return the proceeds. Mrs. Mobley’s failure to restore the moneys received as a result of the alleged fraud, evidenced by her refusal to pay the purchase price into the registry of the court (OCGA § 13-4-60), when considered with her actions following the transfer of the land, established conclusively that she has affirmed the contract. On the day following the transaction, Mrs. Mobley ratified the documents which had been executed in the presence of a notary public. She executed a covenant not to sue. She acknowledged in the presence of others that she had sold the motel. She took proceeds from the sale and deposited those proceeds into a certificate of deposit. She distributed a portion of the proceeds she had received. She vacated the premises and ceased taking responsibility for the upkeep and maintenance of the premises. Less than a month later, she sold to the defendants all personalty and fixtures associated with the operation of the motel. Any one of these acts would have been sufficient under Georgia law to constitute ratification. Tidwell v. Critz, 248 Ga. 201 (282 SE2d 104); Tuttle v. Stovall, 134 Ga. 325 (67 SE 806); Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876 (298 SE2d 600). For this reason also we must conclude the trial court did not err in granting summary judgment to the several defendants.

Mrs. Mobley also asserts that there was a conspiracy to coerce her into transferring the property. We likewise must reject this basis for duress. The averment of a conspiracy does not change the nature of the tort or add to its legal force or effect. The gist of the action is not the conspiracy alleged but the tort committed against the plaintiff and the damage thereby done wrongfully. Where damage results from an act which, if done by one alone, would not afford ground of action, the same act would not be rendered actionable because done by several in pursuance of a conspiracy. McElroy v. Wilson, 143 Ga. App. 893, 895 (2) (240 SE2d 155). There being a legal right to threaten a lawsuit for breach of contract, even assuming a conspiracy to make such threats, affords Mrs. Mobley no cause of action.

Mrs. Mobley also contends that by ruling on several of the motions for summary judgment on April 1, 1986, only six days after those motions for summary judgment had been filed, Mrs. Mobley was denied the 30 days mandated by OCGA § 9-11-56 (c) between the service of the motion and the time affixed for hearing.

The record reflects that when the trial court inquired of counsel the best time available to hear the several pending motions, Mrs. Mobley’s attorney expressly asked the court to rule upon all motions for summary judgment at one time, namely on April 1, 1986. No mention or objection was made by the attorney that only six days had expired between the time of filing and the time of ruling on certain of the motions. It is clear that this 30-day requirement can be waived. Unless the record unequivocally demonstrates that the respondent fails to raise the procedural defect at the hearing, the trial court’s entry of an order on the motion prior to the expiration of 30 days is waived. See Connell v. Connell, 119 Ga. App. 485, 488 (4) (167 SE2d 686). See also Dixon v. Midland Ins. Co., 168 Ga. App. 319 (309 SE2d 147). We must conclude therefore that any defect as to the timeliness of the granting of the disputed motions for summary judgment has been waived. Moreover, we foresee no prejudice resulting to Mrs. Mobley by the timing of these disputed rulings for summary judgment since the remaining motions for summary judgment filed by the other defendants dealing with the same issues had been pending for more than 30 days thus giving appellant Mobley the opportunity fully to contest the issues raised in all of the motions for summary judgment.

Case No. 73994

The appellants in the cross-appeal (defendants below) contend the trial court erred in refusing to disqualify Mrs. Mobley’s attorney Rolleston. While our review of the record raises much doubt as to whether Rolleston would have been a necessary witness upon the now dismissed trial of the issue of duress and undue influence (he not being present at the time these acts occurred) and his asserted pecuniary interest may be inchoate at best and unrelated at worst, we need not consider the merits of these arguments. The facts show, contrary to the assertion of the defendants, that in civil action 28648 and 28597 in the Superior Court of Glynn County an order was issued in which all motions to disqualify counsel were denied. This order was signed by the trial judge and dated April 1, 1986. The order further reflects that it was filed in the office of the Glynn County Clerk at 4:40 p.m. on April 1, 1986. This date becomes significant in that the cross-appellants contend the order was oral, unsigned and not filed in the clerk’s office until early May 1986. We are required to accept the certified record as evidence of transactions rather than statements in briefs of counsel. The record further reflects that Mrs. Mobley filed her notice of appeal to the grants of summary judgment (also occurring on April 1, 1986) in the Supreme Court of this state on April 11, 1986. For reasons which are not clear, the cross-appellants filed a motion for an interlocutory appeal in this court on May 13, 1986 even though the main appeal in this case had already been filed in the Supreme Court. As indicated hereinbefore, this motion for interlocutory appeal was denied by this court on May 29, 1986. Ultimately a notice of cross-appeal was filed in the Supreme Court on August 25, 1986.

Decided March 9, 1987

Rehearing denied March 24, 1987

Moreton Rolleston, Jr., for appellant.

Notwithstanding, the order contained in the record shows that the trial judge signed the order denying the motion to disqualify Rolleston was dated April 1, cross-appellants now contend that the order was not signed and filed in the Glynn County Court until early May. They continue their contention that the notice of appeal filed in this court on May 13, 1986 was within the 15 days allowed for the filing of a cross-appeal. Cross-appellants further contend that because Mrs. Mobley in August 1986, successfully moved the trial court to allow her to amend her notice of appeal merely to change the designated parts of the record necessary to her appeal and thus to delete certain portions of the record, this constituted a novation or extension of her original notice of appeal of April 11, 1986. From this it is argued that because they filed their notice of cross-appeal within 15 days of the trial court’s grant of Mrs. Mobley’s change in the designated portion of the record in her notice of appeal, their appeal in the Supreme Court likewise was filed in a timely fashion.

We must reject each of these tenuous and even ingenious arguments. The filing of the motion for interlocutory appeal in this court was not the filing of a cross-appeal to the main appeal which was in the Supreme Court. Even if we were to stretch our imagination, the interlocutory appeal was not filed until May 13, which was over a month after Mrs. Mobley had filed her notice of appeal in the Supreme Court. Thus even if we could give credence to cross-appellants’ contention, nevertheless we would find the filing of the notice of appeal in this court as being belated.

The filing of the cross-appeal in the Supreme Court on August 25 must be related to the original notice of appeal filed by Mrs. Mobley on April 11. It cannot draw life from a mere modification of the notice of appeal reducing the amount of record as originally noticed in the original appeal. It follows that the filing of the notice of cross-appeal on August 25, 1986 is far beyond the 15 days allowed for the filing of such a cross-appeal. Accordingly, we will grant the motion by Mrs. Mobley to dismiss the cross-appeal as having been improvidently filed. See Shipman v. Horizon Corp., 151 Ga. App. 242, 247 (259 SE2d 221) reaffirmed in eo nomine 155 Ga. App. 126, 128 (270 SE2d 473); Dalton American Truck Stop v. ADBE Distrib. Co., 146 Ga. App. 8, 10 (245 SE2d 346). The unclear statement by Mrs. Mobley that penalty for the improper filing (construed to be a motion) should be assessed against the cross-appellants is denied.

Judgments affirmed.

Deen, P. J., and Pope, J., concur.

Austin E. Catts, for appellees.


author: Pope, Judge. Carley, Judge,

text:
    73385.
    HARDY et al. v. NATIONWIDE INSURANCE COMPANY.
    (356 SE2d 38)
   Pope, Judge.

On April 2, 1984 appellant Cynthia Hardy executed an application with appellee insurer for the issuance of a new automobile insurance policy covering an automobile driven by herself and her husband, appellant Mark Hardy. A policy was issued which provided, inter alia, basic personal injury protection (PIP) coverage through October 2, 1984. On July 25, 1984 Mark Hardy was involved in a collision resulting in medical expenses and loss of earnings in excess of basic PIP coverage. In April of 1985 appellants made a demand upon appellee for optional PIP coverage and tendered the additional premium therefor. Appellee eventually rejected appellants’ demand, and appellants brought this action seeking optional PIP coverage. The parties moved for summary judgment, and this appeal arises from the grant of appellee’s motion and the denial of appellants’ motion.

1. Appellants begin their arguments on appeal with the assertion that this case is another of the long line of cases governed by the holdings in Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), and Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983). In this assertion, appellants are clearly mistaken. The holdings in Jones and Flewellen are founded upon OCGA § 33-34-5 as it existed prior to its amendment in 1982. See Ga. L. 1974, p. 113, § 4; Ga. L. 1975, p. 3, § 1; Ga. L. 1975, p. 1202, § 4. As the record in this case shows that the subject policy was newly issued in 1984, the issues raised in this appeal are governed by OCGA § 33-34-5 as amended effective November 1,1982. See Ga. L. 1982, p. 1234, § 1; Ga. L. 1983, p. 3, § 24 (20). To the extent they are based upon the statute prior to its 1982 amendment, the holdings in Jones and Flewellen and their progeny are inapposite to the case at bar.

2. As is pertinent here, the second page of the application for insurance in this case provided the applicant (here, appellant Cynthia Hardy) with a seriatim selection of a number of available coverages, including “BASIC PERS INJURY PROT” and, immediately below, “ADD PERS INJURY PROT.” To the right of the basic PIP selection was a box labeled “FULL COVERAGE”; this box was marked with an “X.” To the right of the additional (or optional) PIP selection was a series of boxes labeled “$5,000,” “$20,000” and “$45,000,” respectively; none of these boxes was marked. At the bottom of the page in boldface type, just above the admitted signature of appellant Cynthia Hardy, was the following language: “THE OPTIONAL COVERAGES HAVE BEEN EXPLAINED. THE COVERAGES INDICATED ON THIS APPLICATION ARE THOSE I HAVE SELECTED.” Appellants contend that the application was “patently confusing” in that the term “FULL COVERAGE” when used in the application in conjunction with the selection of basic PIP coverage led Cynthia Hardy to believe that she was choosing the maximum PIP coverage, not the minimum. We disagree that the application was confusing.

The application here plainly separates the selection of basic PIP coverage from the selection of additional PIP coverage. OCGA § 33-34-4 mandates $5,000 minimum PIP coverage on motor vehicles registered in this state. The term “FULL COVERAGE” when used in conjunction with the selection of basic PIP coverage on the application obviously means full PIP coverage in the amount of $5,000. By law, neither the rejection of basic PIP coverage nor the selection of less than the $5,000 minimum coverage is an available option.

As to optional PIP coverages, OCGA § 33-34-5 (b), effective November 1, 1982, provides: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.” Although the format required by this statute differs markedly from that required under the statute in effect prior to November 1, 1982, the intent and purpose of the statute remain the same. “The intent of OCGA § 33-34-5 is to ensure that insurers offer optional coverages to applicants for no-fault insurance and that an applicant’s waiver of his privilege to obtain optional coverages be made knowingly and in writing. The purpose of the statute is to resolve conflicts which arise when an insured contends that he was not informed of his statutory right to optional benefits. When this claim is made, the resolution of the issue will be to look to the policy [application] to determine if there was reduction or rejection of those benefits in conformance with the statutory scheme.” (Citations and punctuation omitted.) Douglas v. Jefferson-Pilot Fire &c. Co., 175 Ga. App. 457 (333 SE2d 634) (1985). Oral declarations of the parties provide no basis for resolving conflicts as to whether an applicant was made aware of his statutory right to optional coverages and whether he knowingly elected not to exercise that right. Bob Lairsey Ins. Agency v. Allen, 180 Ga. App. 11 (2) (348 SE2d 658) (1986); Grange Mut. Cas. Co. v. Hall, 173 Ga. App. 382 (1) (326 SE2d 497) (1985).

We find the face of the application form in this case to be prima facie evidence of notice, and the form itself complies fully with the current statutory mandate of OCGA § 33-34-5 (b). Therefore, the trial court properly entered summary judgment in favor of appellee insurer and correctly denied appellants’ motion for summary judgment. See Moore v. Ga. Cas. &c. Co., 179 Ga. App. 247 (345 SE2d 894) (1986); Occidental Fire &c. Co. v. Williams, 179 Ga. App. 120 (345 SE2d 619) (1986); see also Blalock v. Southern Ins. Co., 180 Ga. App. 319 (349 SE2d 32) (1986).

Decided March 9, 1987

Rehearing denied March 25, 1987

William R. Hurst, for appellants.

Philip M. Casto, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I am constrained to concur in the result reached by the majority that the application form complies with the current statutory language set forth in OCGA § 33-34-5 (b). However, I must disagree with the majority that the intent and purposes of the statute after the 1982 amendment “remained the same” as that in effect prior to the amendment. While that may have been the hope of some, the present statute really requires no particular format insuring that the form will be self-explanatory to any person of reasonable intelligence so long as that form contains the new magic words in bold-faced type “indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.” It is to be noted that there is no requirement that the bold-faced type statement indicate that the form itself has been explained.

With that preface, I cannot help but opine that this form, while admittedly barely complying with the new statute, is unbelievably deceptive in that the block wherein one may indicate his selection of only basic personal injury protection is captioned by the words: “FULL COVERAGE.” Especially is this a less than adequate description in view of the fact that there is absolutely no coverage which may be purchased that is less than that which is designated as “FULL COVERAGE.”