author: McMurray, Presiding Judge. Beasley, Judge,

text:
    73775.
    RICHARDSON v. THE STATE.
    (356 SE2d 725)
   McMurray, Presiding Judge.

Defendant was indicted for the offense of “attempted burglary” (criminal attempt to commit burglary). At trial, an eyewitness testified that on March 26, 1984, between midnight and 12:15 a.m. he saw defendant on the roof of Clary’s Drug Store “digging” at the roof with “a pole or a stick.” The witness further testified that before the police arrived, he observed defendant hide from a passing vehicle by “[ducking] down behind the duct work, the air conditioning work” on the roof of the drug store and, after the automobile had passed, defendant “looked and stood back up and resumed the digging motion.” The State introduced evidence that defendant had recently been released from prison after serving a sentence for burglarizing the same drug store. The State showed that defendant had burglarized the drug store in 1982 by gaining entry through the roof. From this evidence, defendant was found guilty of “attempted burglary.” The trial court denied defendant’s motion for new trial and this appeal followed. Held:

1. In his first enumeration of error defendant contends the trial court erred in allowing the State to introduce evidence of his prior conviction of burglary. “In order to introduce evidence of an independent offense as a relevant similar transaction the state must prove two factors. It must be shown that the defendant was in fact the perpetrator of the separate offense and that there is a sufficient similarity of offenses so that proof of the former tends to prove the latter. French v. State, 237 Ga. 620 (299 SE2d 410) (1976).” Moore v. State, 254 Ga. 674, 676 (333 SE2d 605). In the case sub judice, there is no question that defendant burglarized the same drug store and was convicted for this act in 1982. Further, in both incidents defendant went to the roof to gain entry to the store. Under these circumstances, we find sufficient similarity between the previous act and the crime charged to authorize introduction of the similar transaction evidence to show defendant’s motive in “digging” at the roof of Clary’s Drug Store in the early morning hours of March 26, 1984. See Millwood v. State, 164 Ga. App. 699 (1) (296 SE2d 239).

2. Next, defendant contends the evidence of his prior conviction should have been excluded at trial because the State failed to follow the pre-trial procedure prescribed by Uniform Superior Court Rules 31.1, 31.2 and 31.3 (253 Ga. 799, 853-854) for introducing such evidence at trial.

“The burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse. Anderson v. State, 165 Ga. App. 885, 887 (3) (303 SE2d 57) (1983).” Stewart v. State, 180 Ga. App. 266, 267 (349 SE2d 18). In the case sub judice, a hearing was conducted prior to trial to determine the admissibility of the similar transaction evidence. During this hearing, defendant’s attorney stated that he “was put on notice some time ago by the District Attorney that she [intended] to . . . introduce evidence of [defendant’s] prior convictions.” Further, as we held in Division 1 of this opinion, the trial court properly found the evidence of defendant’s prior conviction relevant and admissible at trial. Under these circumstances, while the record shows that the State erroneously failed to follow the procedure prescribed by the Uniform Rules for the Superior Court for introducing similar transaction evidence at trial, the defendant has shown no harm resulting from this omission. Consequently, this error does not require reversal of defendant’s conviction.

3. In his third and final enumeration of error defendant asserts the general grounds. This enumeration of error is without merit. The evidence presented at trial, construed most strongly to support the verdict, was more than sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense charged. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Loumakis v. State, 179 Ga. App. 294, 299 (8) (346 SE2d 373).

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 3. However, I reach the conclusion of the Court in Division 2 by a different route.

Defendant did not raise non-compliance with Uniform Superior Court Rule 31.3 below and thus cannot raise for the first time here his second enumeration of error, that the trial court did not hold an adequate hearing to determine the admissibility of the prior burglary conviction. Riddle v. Camp, 179 Ga. App. 129, 131 (2) (345 SE2d 667) (1986).

That should end the inquiry, but since the Court has examined the merits, it should be noted that there was no error and the harmless error rule does not apply. The hearing on the question of admissibility, just before trial when defendant filed a motion in limine, was prompted by the very fact that defendant had been notified of the state’s intent. Counsel stated that he was served a copy of defendant’s prior record, and that it reflected the guilty plea in question. The state also acknowledged having given notice. The record not only contains the notice itself, served two months before trial, but it also shows that the defendant twice subpoenaed the police report regarding the earlier burglary.

The court considered the certified copy of the first offense, fully heard argument from both sides, and finding that it involved defendant and was similar, ruled that it would be admissible by denying the motion in limine. Thus I see no error. See generally Carter v. State, 177 Ga. App. 647, 648 (1) (340 SE2d 622) (1986). Even if there was some deviation from the procedure provided by Rule 31, it was waived by defendant’s failure to object on this ground. Hagger v. State, 179 Ga. App. 16 (2) (345 SE2d 118) (1986).

Decided April 17, 1987.

Charles C. Grile, for appellant.

Spencer Lawton, Jr., District Attorney, Virginia A. Erskine, Assistant District Attorney, for appellee.

Assuming for the moment that there was some procedural noncompliance with the Rules, and that it was properly raised, there is a problem with application of the principle that appellant must show a substantial and harmful violation in order to gain reversal. If this be the norm, it will be difficult to compel compliance with the Rules. The burden should be on the violator to justify the violation or show its non-effect, not on the one whom it seeks to protect to show how he has been adversely affected. Simply his showing of a violation should cast the burden on the violator.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    74010.
    BEALL v. INCLINATOR COMPANY OF AMERICA, INC.
    (356 SE2d 899)
   Banke, Presiding Judge.

The appellee, Inclinator Company of America, Inc., is the manufacturer of a home elevator called the “Elevette.” In 1959, an “Elevette” was installed in the appellant’s home by General Elevator Company, and it was used thereafter without incident for almost 24 years. In a complaint filed in October of 1985, the appellant alleged that on October 11, 1983, she stepped out of the elevator while it was stopped 22 inches above floor level, fell to the floor, and was injured. She seeks to hold the appellee liable for these injuries based on the alleged negligent design of a safety latch on the elevator door, contending that the appellee had prior knowledge of the defect yet failed to notify her of it. She appeals the trial court’s grant of the appellee’s motion for summary judgment based on the application of OCGA § 9-3-51, which provides as follows: “(a) No action to recover damages: (1) For any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; (2) for injury to property, real or personal, arising out of any such deficiency; or (3) for injury to the person or for wrongful death arising out of any such deficiency shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision, or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.” Held:

Decided April 17, 1987.

S. Phillip Brown, for appellant.

Glenn Frick, Sue K. A. Nichols, for appellee.

The appellant contends that OCGA § 9-3-51 does not bar the suit because the appellee is a manufacturer rather than a designer. See Northbrook Excess &c. Ins. Co. v. J. G. Wilson Corp., 250 Ga. 691 (3) (300 SE2d 507) (1983). However, the record shows without dispute that the elevator was specially designed and manufactured by the appellee to be installed in the appellant’s home and that it was installed there as an integral part of the home pursuant to the appellee’s specifications. Although the statute does not immunize manufacturers as such, the Supreme Court has held that “if a component is an essential or integral part of the improvement to which it belongs, then it is itself an improvement to real property.” Mullis v. Southern Co. Svcs., 250 Ga. 90 (4) (296 SE2d 579) (1982). It follows that the elevator constituted an improvement to real property within the contemplation of the statute. Accord Northbrook Excess &c. Ins. Co. v. J. G. Wilson Corp., supra.

The eight-year limitation “applies regardless of when the injury occurs or, indeed, whether a cause of action has accrued at all prior to the expiration of the period.” Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 398 (287 SE2d 229) (1981). Because the appellant filed her suit more than eight years after the installation of the elevator, the trial court correctly concluded that the present action was absolutely barred.

Judgment affirmed.

Benham, J., concurs. Carley, J., concurs in judgment only.


text:
    74146.
    BROWN v. SOUTHWEST GEORGIA PRODUCTION CREDIT ASSOCIATION.
    (356 SE2d 727)
   Banke, Presiding Judge.

The Southwest Georgia Production Credit Association (hereinafter “the credit association”) sued Otto Brown to recover a balance of $35,055 allegedly owed on a promissory note. On appeal from the grant of the credit association’s motion for summary judgment, Brown contends that a material issue of fact exists with respect to whether the credit association released him from further liability on the note when it purchased a parcel of land he had previously owned.

The property in question was located adjacent to Brown’s former home and contained a portion of a swimming pool connected to the home. As security for the indebtedness represented by the note, Brown had previously given the credit association a security deed on the home; and the credit association had foreclosed on that property, applying the proceeds from the foreclosure sale against the balance then owing on the note. Brown had conveyed the adjacent lot to his wife, who had subsequently conveyed it to Brown’s aunt, Gloria Murrah, either to secure or to satisfy a debt Brown owed her in the amount of $4,000. Mrs. Murrah averred in an affidavit submitted by Brown in opposition to the summary judgment motion that Lunus Daniel, a board member of the credit association, had approached her about selling this property to the credit association and that she had told him she would sell the land for the amount of the debt Brown had owed her, provided she was assured that Brown would be released from any further liability on the note. According to Mrs. Murrah, Daniel gave her such an assurance, and on that basis she deeded the lot to the credit association for $4,000. Held:

Decided April 17, 1987.

Fife M. Whiteside, for appellant.

William E. Smith, for appellee.

It is evident from Ms. Murrah’s affidavit that any alleged understanding she may have had with Mr. Daniel regarding the release of Brown’s remaining liability on the note was not reduced to writing. Accordingly, it could not have survived her transfer of the property to the credit association. “[P]arol evidence is admissible to show that the true consideration of the deed is in fact different from the one stated merely by way of recital. However, one of the parties to a deed cannot, under the guise of inquiring into its consideration, engraft upon the instrument a new condition or covenant which imposes an additional affirmative obligation upon the other party.” Awtrey v. Awtrey, 225 Ga. 666, 669 (171 SE2d 126) (1969), citing Stonecypher v. Ga. Power Co., 183 Ga. 498 (3) (189 SE 13) (1936). Moreover, “[a] president or other officer of a bank is precluded . . . from making promises which will relieve the maker of a note payable to the bank from responsibility therefor. [Cit.]” Cooper v. Mercantile Nat. Bank, 137 Ga. App. 605, 608 (224 SE2d 442) (1976).

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74228.
    FEW v. THE STATE.
    (356 SE2d 729)
   Banke, Presiding Judge.

The appellant, Ricky Lamar Refae Few, appeals his convictions of burglary and aggravated battery. With respect to the latter offense, the indictment charged that the appellant had blinded the right eye and severely disfigured the face of the named victim, a person over 65 years of age, by throwing a metal pipe at his head. See generally OCGA § 16-5-24 (a) and (d).

The 70-year-old victim testified that while sleeping at home with his wife on the night in question he awoke to see the appellant, a neighbor whom he had known for 15 or 20 years, “standing in the door there where the light was shining.” The victim stated that he turned to his wife and exclaimed, “Annie Ruth, Ricky’s in this house,” whereupon the appellant threw a “stick” at him, hitting him in the eye. He testified that he had not been able to see out of the eye since then and that there was no doubt in his mind that the appellant was the person whom he had witnessed do this to him.

The ophthalmologist who treated the victim for the eye injury testified that the globe of the right eye had been completely ruptured, that an attempt to repair the damage surgically had been unsuccessful, and that it was highly unlikely the victim would ever regain any vision in the eye.

A piece of metal pipe was recovered from the floor of the bedroom where the attack had occurred and was introduced into evidence by the state. Both the victim and his wife denied ever having seen this object prior to the attack, and the ophthalmologist testified that the victim’s injury was consistent with his having been struck in the eye with such an object. The victim’s wife further testified that she discovered after the attack that approximately $35 had been taken from an envelope which was among some papers in the house which had been ransacked.

The appellant presented an alibi defense, supported by the testimony of his stepson, his mother, and his brother. Based primarily on this defense, and on evidence to the effect that the victim’s vision had been impaired by cataracts even prior to the attack, he contends that the evidence was insufficient to support the jury’s verdict. He further contends that the trial court erred in admitting into evidence, over the objection that they were prejudicially inflammatory, two photographs depicting the condition of the victim’s injured eye immediately following the attack. Finally, he contends that the trial court erred in failing to charge the jury sua sponte that the state was required to prove beyond a reasonable doubt that the metal pipe introduced into evidence was in fact the object used to inflict the eye injury. Held:

Decided April 17, 1987.

Robert L. Chandler, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

1. From the evidence presented, any rational trier of fact could reasonably have rejected the appellant’s alibi defense and concluded beyond a reasonable doubt that he was guilty as charged. Accord Bragg v. State, 175 Ga. App. 640, 642 (1) (334 SE2d 184) (1985); Bell v. State, 159 Ga. App. 621 (1) (284 SE2d 639) (1981). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Assuming arguendo that the state was required to prove, as alleged in the indictment, that the metal pipe was the instrumentality used to inflict the eye injury, we hold that the evidence was sufficient on this point as well.

2. The two photographs depicting the condition of the victim’s face and eye immediately following the attack were clearly relevant and material to establish the nature and extent of his eye injury and to prove that he had lost his vision in the eye as a direct result of the attack. Thus, they were admissible over the appellant’s objection that they were designed to inflame and prejudice the jury. See Meeker v. State, 249 Ga. 780 (1) (294 SE2d 479) (1982); McCorquodale v. State, 233 Ga. 369, 375 (5) (211 SE2d 577) (1974). Moreover, while the photographs would have been relevant and admissible to prove the elements of the offense as charged in the indictment even in the absence of any dispute over the nature and extent of the eye injury (see Meeker v. State, supra), we note that defense counsel raised such a dispute and thereby imparted to the photographs even greater relevance by attempting to establish on cross-examination that the victim might have lost the use of his right eye not as a direct result of the attack but because of his failure to follow his doctor’s instructions regarding post-operative care and treatment.

3. Assuming, without deciding, that the trial court would have been required to honor a request for a charge to the effect that the state was required to prove beyond a reasonable doubt that the metal pipe was the object used to put out the victim’s eye, such a charge was clearly not required in the absence of such a request. See generally Sosebee v. State, 169 Ga. App. 370, 372 (6) (312 SE2d 853) (1983).

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74327.
    GRANT v. THE STATE.
    (356 SE2d 730)
   Banke, Presiding Judge.

The appellant, Clarence Grant a/k/a Webb, was indicted for the theft of a 1968 Chevrolet Camaro automobile alleged to be property of J & H Motors, and also for concealing the identity of the vehicle. He was found guilty on both counts, but the trial court subsequently granted his motion for new trial with respect to the offense of concealing the identity of a motor vehicle. He appeals the denial of his motion for new trial with respect to the theft conviction.

Mr. Stan Eddy testified that in December of 1984, while employed as a mechanic for J & H Motors, he accompanied the appellant on a test drive of a black, 1968 Camaro which was for sale on the J & H lot. Mr. Eddy stated that after returning from the test drive, he went inside the dealership’s office at the appellant’s request to make an inquiry concerning the price of the vehicle and that, as he was doing so, the appellant got back inside the vehicle and drove away in it without authority. Mr. Eddy testified that there was no doubt in his mind that the appellant was the person who had taken the car.

A few weeks later, on January 23, 1985, the appellant drove a black Camaro automobile onto the lot of another used car dealership and began talking with the operator of that dealership, Mr. Wayne Tomlinson, about purchasing an automobile for his daughter. Mr. Tomlinson testified that he immediately recognized the Camaro as a vehicle he had previously attempted to purchase from J & H Motors. Evidently aware that the vehicle had been reported stolen by J & H Motors, he immediately contacted J & H by telephone to determine if it was still missing. The police were then summoned to the scene, and soon thereafter Mr. Eddy arrived and identified the appellant to the police as the person who had stolen the vehicle.

In his defense, the appellant produced a notarized bill of sale ostensibly obtained from a Mr. Tom Young, specifying as follows: “I Tom Young sold Clarence Webb a 1968 Camaro for $800.00 December 20, 1984.” The appellant also produced a current tag receipt for the Camaro, dated January 11, 1985. However, it was established that the vehicle identification number shown on both the tag receipt and the bill of sale was not that of the Camaro but that of a 1973 Nova owned by the appellant.

The appellant testified that he had purchased the Camaro from Mr. Young for $800 after meeting him at a package store one weekend and being informed by him that “he was in the process of selling [the car] because he had to go back to Florida because the car had a Florida tag on it.” The appellant explained that upon taking the bill of sale given to him by Mr. Young to the tag office to purchase a tag for the car, he had been informed that he needed the car’s serial number, whereupon he had telephoned his wife at home and asked her to go outside and record the serial number from the dashboard of the car. Apparently misunderstanding which vehicle he was talking about, she had recorded the serial number of the Nova and had reported that number to the tag official over the telephone. Consequently, the tag official had written that number on the bill of sale and issued a tag receipt for the Camaro bearing that number.

Decided April 17, 1987.

The appellant’s wife corroborated the appellant’s testimony regarding the purchase and registration of the vehicle in all material respects. She further testified that she had withdrawn the $800 used to purchase the vehicle from her savings account at C & S Bank; however, no bank records were produced to document such a withdrawal. Held:

1. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the theft of the Camaro. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The appellant’s contention that the ownership of the vehicle was not sufficiently established is without merit. “ ‘So far as the thief is concerned, he cannot question the title of the apparent owner.’ (Cits.)” Hall v. State, 132 Ga. App. 612 (208 SE2d 621) (1974). See also Earley v. State, 155 Ga. App. 576 (1) (271 SE2d 709) (1980).

2. The appellant contends that the trial court erred in failing to charge the jury, without request, that a person is not guilty of theft if he has acted under an honest claim of right with respect to the property in question. See generally OCGA § 16-8-10 (2). While this argument has some surface appeal, it does not survive closer examination. The state’s evidence was to the effect that the appellant had personally taken the car from the lot of J & H Motors after test driving it in the company of Mr. Eddy. The appellant’s defense to that charge was simply that Mr. Eddy’s identification of him was mistaken and that he liad in fact acquired possession of the vehicle in an altogether different manner. Had the appellant been on trial either for stealing the vehicle from Mr. Young or for receiving stolen property, then a charge to the effect that he could not be found guilty if he had acted under an honest claim of right would certainly have been appropriate and necessary. However, inasmuch as he was indicted and tried for stealing the vehicle directly from J & H Motors, such a charge was not required.

Judgment affirmed.

Carley and Benham, JJ., concur.

John W. Johnson, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


author: Birdsong, Chief Judge.

text:
    73606.
    BOARD OF REGENTS OF UNIVERSITY SYSTEM OF GEORGIA v. A. B. & E., INC.
    (357 SE2d 100)
   Birdsong, Chief Judge.

Contract Interpretation — Summary Judgment. In November 1962, the predecessor owner of the Title Building in downtown Atlanta leased floor space to the United States (the Army Corps of Engineers) through the agency of the General Services Administration (GSA). Through some 29 amendments to the basic lease, the period of the lease (together with space and design modifications) was extended to March 31, 1983. In April 1975, the then-owners of the Title Building employed the appellee A. B. & E., Inc. (ABE) to manage the building. Under the terms of the employment, ABE was entitled to receive commissions of 5 percent of the rentals from all tenant leases procured by ABE and any renewal of those leases. In 1980, it was stipulated in the agreement that ABE had procured the lease with GSA. On June 8, 1982, the Board of Regents of the University System of Georgia (Regents) closed their purchase of the Title Building, becoming the new owners and subjecting themselves to the provisions of the existing leases for space within the Title Building. ABE served as broker in the 1982 transaction. It seems to be uncontested that the provisions of 40 USC § 491 (h) (1) prohibit GSA from entering into any lease that obligates GSA for a period in excess of 20 years. Thus, a lease in 1983 could not constitute a renewal of the same 1962 lease. Prior to the expiration of the 1962 lease, GSA informed the Regents that the 1962 lease could not be renewed or extended as such and that a new lease for the existing leased space would be required. Certain modifications were mandated to accommodate disabled persons’ use of the leased facilities plus a slight reduction in square feet and an increase in cost per square foot of leased space. On March 24, 1983, a new lease incorporating the changes was entered into between GSA and the Regents.

The purchase agreement provided in substance that the purchaser (Regents) would assume all obligations of the landlord or lessor under all tenant leases. In order to clarify the commission provisions pertaining to the basic leases, the purchase contract provided that in lieu of the sellers’ obligation to pay commissions for leasing as set forth in the management agreement, the Regents agreed to pay commissions for leasing as set forth in purchase paragraph numbered 7. In pertinent part, the language of purchase paragraph numbered 7 provided for the payment of commissions by the Regents for all rents received for periods allocable after the closing date (March 24, 1983) including all renewals or extensions of the lease of November 1962. A reading of the documents makes it reasonably clear that “allocable rents” refer to rental payments made to the seller before the sale and to payments made to purchaser after the sale. Such a provision was necessitated because GSA rental payments were not made until the last day of the month as well as continuing to be paid pursuant to the provisions of the 1962 lease. The Regents agreed to assume and to perform the obligations of the seller under the tenant leases and in regard to the GSA lease to pay commissions to ABE of 5 percent of all rentals received for periods allocable after the date of the purchase closing, including all renewals and extensions of the tenant lease. Likewise, there seems to be agreement between ABE and the Regents as of March 24, 1983 that ABE would continue to receive commissions from the Regents in an amount of 5 percent of GSA rental receipts so long as the tenant remained in the Title Building under an existing lease agreement or a successive lease agreement.

On May 31, 1983, the Regents dispatched a letter to ABE stating in effect that the first rental payment from GSA under the March 4, 1983 purchase agreement was expected shortly and the 5 percent commission due ABE under the purchase agreement would be forwarded upon receipt of GSA’s rental payment. Because of a dispute as to the exact amount of rental and thus commission due ABE, when ABE received the commission based upon the GSA rental payment, the commission payment was returned to the Regents for recalculation. The Regents referred the matter to the office of the Attorney General. Upon consideration of the purchase agreement, the Attorney General rendered an opinion that the Regents were not required to make any further commission payments to ABE and as a result the Regents sought a setoff against other sums previously paid as commissions under the 1962 lease.

ABE ultimately brought suit to recover commissions’ payments denied by the Regents to be due. After discovery, ABE moved for summary judgment and the Regents moved for partial summary judgment. The trial court granted ABE summary judgment, awarding ABE $65,614.23 together with $6,123.61 interest and costs and denied summary judgment to the Regents. The Regents bring this appeal to the grant of summary judgment to ABE. Held:

The basic dispute between the parties lies in an interpretation of the purchase agreement wherein the Regents agreed to pay commissions on tenant leases including “renewals and extensions” of the said (1962) lease agreement. Inasmuch as the 1962 lease expired prior to March 24, 1983, and was not subject to renewal or extension, the Regents argue in accordance with the ruling of the Attorney General that no commissions are due under the March 24, 1983 lease agreement with GSA. ABE on the contrary convinced the trial court that while the 1962 lease could not be extended, the substance of the 1962 lease was renewed because the same space under the same general terms was leased to and used by the Corps of Engineers in the lease executed by GSA on March 24, 1983. While there can be no dispute that the March 24, 1983 lease was a “new” lease, the dispute is whether the new lease is in effect nothing more than a “renewal” of the same basic terms and space that existed in the 1962 lease. In its order granting summary judgment to ABE, the court concluded that the language was not ambiguous but was not clear as to meaning, thus was “ripe for interpretation by the court.” The trial court found that the language of the March 24, 1983 purchase agreement was intended by the parties to be a renewal in purpose and intent of the terms of the 1962 lease and that the parties intended the purchase agreement to treat the new lease with GSA to be tantamount to a continuation of the GSA lease whether it be denominated “new,” or a renewal or extension of the 1962 lease. Thus the court concluded that the intent of the parties (the Regents and ABE) was that the 1983 lease was contemplated as carrying forward of the initial lease requiring the payment of continuing 5 percent payments of commissions to ABE from rents received from GSA. The court reached this conclusion because it found that the new lease was in practical terms no different from a renewal or an extension of an existing lease for under the facts, the same tenant was substantially occupying substantially the same space and on substantially the same terms as the initial lease, as amended.

It is axiomatic that a contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1. It is the responsibility of the court to determine whether an ambiguity exists. Salvatori Corp. v. Rubin, 159 Ga. App. 369 (283 SE2d 326). If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties. Southern Fed. Savings &c. Assn. v. Lyle, 249 Ga. 284 (290 SE2d 455); Crooks v. Crim, 159 Ga. App. 745 (285 SE2d 84). It is apparent from the order of the court that the trial court considered the language used in the contract to be words of common usage and not requiring jury interpretation. The court did not consider parol evidence but sought to give the words “renewal” and “extension” as used in paragraph 7 (D) of the purchase contract their usual and common significance. See Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299 (99 SE2d 95); Georgia Farm Bureau Mut. Ins. Co. v. Ray, 148 Ga. App. 85 (251 SE2d 34).

The substance of the Regents’ argument is that the “general principle” (or underlying meaning) behind the word “including” preceding the words “renewal or extension” of said tenant lease limits the words “renewal or extension” to the 1962 lease only. Because the 1962 lease could not be renewed or extended and GSA had so informed the Regents, the lease was a new lease and thus did not require the continued payment of commissions for a renewal or extension of the 1962 lease.

The trial court found, however, that the understanding of the parties was that the Regents would pay to ABE 5 percent of all rentals received from GSA for periods allocable after the closing date. The court thus concluded that the “general principle” was intended to apply to rentals paid by GSA to the Regents after the closing date whether the rentals were paid pursuant to a renewal, an extension or a new lease just so long as the space and amount of rental was not significantly changed, a fact affirmatively found by the trial court.

The finding by the trial court that a “renewal” includes a continuation of the old by way of a new lease (under substantially the same terms) as well as the actual renewal of an old or existing lease is not without precedent. It is well established that a lease renewal may well be effectuated by way of a new lease. See Walker v. Brooks Simmons Co., 44 Ga. App. 470, 472 (161 SE 659). Indeed, a number of cases have held that under appropriate circumstances the execution of a new lease is indispensable to a renewal. See Hamby & Toomer v. Ga. Iron &c. Co., 127 Ga. 792 (56 SE 1033); Krueger v. Paul, 141 Ga. App. 73 (232 SE2d 611). In deciding whether a succeeding lease is substantially a renewal of a preceding lease or altogether a new lease, the determination can be based on whether the succeeding lease employs drastically different terms, not simply somewhat different considerations, i.e., is the lessee occupying substantially the same space under substantially the same terms? If the succeeding lease employs substantially the same terms as the preceeding lease, it may be considered a renewal even though technically a “new” lease. See Hunter v. Benamy Realty Co., 115 Ga. App. 829 (156 SE2d 160).

Such was the conclusion of the trial court in this case. This holding finds support in view of the undisputed fact that both the Regents and ABE considered the March 24, 1983 lease to cover essentially the same space and to call for substantially the same rental payments and commissions (GSA having sought the best rental costs from several bidders) as called for under the 1962 lease (and notwithstanding the subsequently reached contrary conclusion of the Attorney General). Likewise this conclusion by the trial court finds support though not in any reported decisions of this state, there apparently being no such interpretations in the case law of this state. See Zinn & Co. v. Shaw nee, 148 FSupp. 322 (S.D. Ohio); Rosenblum v. Lurie, 128 Pa. Supr. 480 (194 A 204); Zaniewski v. Mancinone, 37 Conn. Supp. 698 (435 A2d 50). The Regents cite for our consideration Plumbing Indus. Program v. Good, 120 S2d 639 and Ernest A. Carrere’s Sons v. Levy, 191 S 747. However, we note these two cases involved leases wherein the leases under consideration required a renewal of the existing lease by an affirmative exercise of that option. In each case the lessee did not affirmatively renew the option but entered into a new lease.

Decided April 6, 1987

Rehearing denied April 20, 1987

Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, J. Robert Coleman, Daniel M. Formby, Senior Assistant Attorneys General, for appellant.

George B. Haley, Jr., Michael W. Tyler, for appellee.

Quinton S. King, Edward C. Stone, amici curiae.

It is not disputed in this case that there was no renewable option under the 1962 lease for that right had expired as early as 1972. Thus when the purchase agreement and new lease were executed containing language that if any renewal of the existing lease with GSA occurred, and the Regents agreed to continue the 5 percent commission payments for rentals allocable after the purchase closing date the only logical meaning of that language was that if GSA continued as a lessee with the Regents in substantially the same terms as before, the Regents agreed to continue to pay the commissions. It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. Burch v. Ragan, 92 Ga. App. 605 (89 SE2d 541); OCGA § 13-2-2 (4).

We are satisfied that the trial court properly effectuated the intent of the parties by construing the word “renewal” to encompass the new contract entered into between the Regents and GSA and thus requiring the Regents to continue the 5 percent commission payments to ABE. The statutory limitation upon GSA denying it the right to. renew the 1962 contract beyond the 20-year period is not a restriction upon GSA to enter into a continuation of the 1962 terms by way of a new contract embodying the same general conditions, so long as the new contract did not exceed a term of twenty years, a factor not present in this litigation.

In view of the above, we find no error in the grant of summary judgment to ABE nor in the denial of partial summary judgment to the Regents.

Judgment affirmed.

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


author: Benham, Judge.

text:
    73676.
    GANTZ v. JUSTICE MORTGAGE COMPANY.
    (356 SE2d 732)
   Benham, Judge.

Appellant, a home buyer, filed suit against appellee Justice Mortgage Company, a mortgage lending company, claiming that appellee breached its commitment to make him a loan at an interest rate of 10 Vi percent. After discovery, appellee filed a motion for summary judgment, which the trial court granted. Appellant appeals the adverse judgment, and we affirm.

According to the record, the events leading up to the lawsuit are as follows: In 1979 appellant planned to purchase and restore an old house in Roswell, Georgia, and sought a mortgage from appellee to finance the project. On April 10, 1979, appellant completed an application for a $75,000 loan at an interest rate of 10 V2 percent for 30 years, and paid $125 for an appraisal and credit report, both of which were required for processing the loan. Robert Smith, the loan originator for appellee, took appellant’s application information and fee for processing. Both parties contemplated that the loan would be purchased by the Federal National Mortgage Association (“FNMA”) and was therefore subject to approval by that agency as well as by appellee. At the time appellant made his application, the parties also contemplated that the loan could be processed under FNMA’s new Urban Rehabilitation program, which would allow appellant to obtain a below-market rate of interest. However, before Smith received appellant’s loan approval, he discovered that the FNMA regulations prohibited appellee from making the Urban Rehabilitation loan because appellee was not an approved lender for that program. Smith notified appellant of that development in May 1979. On May 25, FNMA approved appellant’s loan application as a conventional loan, subject to certain conditions being met, including appellant’s making certain major repairs on the property before the loan could be closed. Smith notified appellant of the loan approval and conditions, and in June, Smith assisted appellant in securing a one-year construction loan with Roswell Bank for $75,000 at a IOV2 percent rate so that the necessary repair work could be done. In the fall of 1979, interest rates began to rise and appellant sought to close the loan with appellee, but Smith’s position was that no closing could occur until the required repairs were completed, and they had not been. In early 1980, appellant discovered that appellee was no longer doing business in Georgia, and that Smith was no longer in its employ. Appellant contacted appellee’s Texas offices in February 1980 and was told that unless he had a written commitment to close the loan at the IOV2 percent rate for which he applied, appellee would not close the loan at that rate. The current market rate was approximately 14 percent. Appellant secured a permanent loan through Fulton National Mortgage Company in September 1980 at 14% percent with .625 discount points. On April 18, 1981, appellant filed suit to recover the difference between the interest on and expenses for the Fulton National Mortgage Company loan and the loan he claimed appellee had committed to make at 10% percent interest.

1. In three related enumerations of error, appellant claims that the trial court erred in granting appellee’s summary judgment motion because there were material issues of fact remaining to be resolved. He argues that the FNMA approval of his loan application in May 1979, coupled with the assistance Smith provided him in obtaining the construction loan, was sufficient to show that appellee had made a firm commitment to make appellant a loan at 10% percent interest any time within the one-year period. We agree with the trial court that no such issue remained. Our review of the record shows that at the time he signed his loan application with appellee, appellant signed two notices, the gist of each being that the making of the application did not bind the lender to close a loan or in any way commit the lender to him, absent a written commitment. In his deposition, Smith stated that at the time of application he offered appellant the opportunity to lock in a set interest rate for a one-year period at a cost of four points for a written commitment, and appellant declined to do so, saying he would take his chances. Smith’s deposition also revealed that later in 1979 when interest rates began to rise, appellant sought to close the loan, but he had not completed the repairs as required by the conditional loan approval.

Appellant, who was also deposed, admitted that he did not obtain from appellee a written commitment locking him into the rate for which he initially applied; he did not read the notices regarding commitment, although he did sign them; the only items he paid for were the appraisal and the credit report, both of which were completed; and he did not pay any money to get a firm commitment from appellee to take him out of the construction loan at a fixed rate in the future. Neither could appellant refute the fact that the FNMA approval upon which he relies was made subject to repairs which had not been completed in late 1979 when he first sought to close the loan.

“Where motion for summary judgment is made by a defendant, that defendant shoulders the burden of disproving plaintiff’s case, that is, the defendant must affirmatively disprove same by uncontroverted evidence that demands a finding that no genuine issue as to any material fact remains, and the defendant is entitled to a judgment as a matter of law. [Cits.]” Lang v. Federated Dept. Stores, 161 Ga. App. 760 (1) (287 SE2d 729) (1982). Appellee having met its burden of proof, the trial court did not err in granting summary judgment to it.

Decided April 20, 1987.

David G. Crockett, D. Ruth Primm, for appellant.

William R. King, Jeffrey H. Kess, for appellee.

2. In the remaining enumerations of error not disposed of in Division 1, appellant contends that the trial court erred in making certain specific findings. It is sufficient to state that the trial court did not make such findings and, since this was an order granting summary judgment, was not required to do so. OCGA § 9-11-52 (a); Edwards v. McTyre, 246 Ga. 302 (5) (271 SE2d 205) (1980).

Judgment affirmed.

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


author: Carley, Judge.

text:
    73919.
    GILLIARD v. FULTON FEDERAL SAVINGS & LOAN ASSOCIATION et al.
    (356 SE2d 734)
   Carley, Judge.

Alleging a negligent failure to procure credit life insurance on the life of her husband, appellant brought suit against appellees. She appeals from the trial court’s grant of appellees’ motion for summary judgment.

When construed most favorably for appellant, the evidence shows that she and her husband applied for a loan from appellee Fulton Federal through its loan officer, appellee Vickers. At the time that this application for a loan was submitted, appellant and her husband requested credit life insurance on the life of Mr. Gilliard. According to appellant, appellee Vickers stated at that time that he would “procure” the insurance. The loan application was accepted and, shortly after the loan closed, Mr. Gilliard died. When the loan was not paid off by proceeds from a credit life insurance policy because no such insurance had ever been secured, appellant brought this action.

In support of her claim, appellant relies upon the alleged representations of appellee Vickers made at the time of the loan application and upon a disclosure form which was submitted to the Gilliards at the loan closing and which was signed by them. That portion of the loan closing form dealing with insurance reads, in material part, as follows: “Credit life insurance . . . [is] not required to obtain this loan and [is] not available from Fulton Federal unless the appropriate box below is checked and the applicable information completed. If available, credit life . . . insurance will not be provided unless you sign and agree to pay the additional cost.” The form provided to the Gilliards shows that credit life insurance was made “available” to them by appellee Fulton Federal in that the appropriate box had been checked and a premium amount had been entered in the space provided. The Gilliards did not, however, sign the form on the line which had clearly and conspicuously been provided for them to indicate that it was their desire to purchase the available insurance. Instead, they merely signed the bottom of the form, thereby acknowledging receipt of the disclosures otherwise made therein.

“ ‘A party who can read must read, or show a legal excuse for not doing so. . . .’ [Cit.]” Hart v. Trust Co. of Columbus, 154 Ga. App. 329, 330 (268 SE2d 384) (1980). The law does not create a confidential or fiduciary relationship between a financial institution and those with whom it deals. Big Bend Agri-Svcs. v. Bank of Meigs, 174 Ga. App. 493, 495 (1) (330 SE2d 422) (1985). There is no evidence of any special circumstances establishing a confidential or fiduciary relationship between the Gilliards, as loan applicants, and appellee Vickers, as a loan officer. The Gilliards were not authorized to rely on appellee Vickers’ alleged representation concerning procurement of credit life insurance, which was made at the time of their mere application for a loan, to the utter exclusion of undertaking to read the loan documents that were subsequently provided to them at the time the loan actually closed. See generally Curtis v. First Nat. Bank of Commerce, 158 Ga. App. 379, 380 (1) (280 SE2d 404) (1981); Stewart v. Boykin, 165 Ga. App. 868 (303 SE2d 50) (1983). Compare Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974). Obviously, there would be no need to “procure” credit life insurance until such time as a loan application has first been approved by the lender and the loan is then closed by the borrower. Until that time, no credit has been extended. There is also no evidence of fraud or other legal excuse which would have relieved the Gilliards of their duty to read the disclosure statement. See Riker v. McKneely, 153 Ga. App. 773 (266 SE2d 553) (1980); Richards v. Unimortgage Corp., 180 Ga. App. 131 (348 SE2d 680) (1986). Compare Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986).

Under the evidence of record, the Gilliards had the duty to read the loan disclosure form. Contrary to appellant’s assertions, that form does not show their desire to purchase credit life insurance and appellees’ awareness thereof. Rather, it indicates that the Gilliards either decided not to purchase the insurance or failed to familiarize themselves with the contents of the disclosure form and to take the steps necessary to procure the insurance that was being provided. Accordingly, the trial court correctly granted appellees’ motion for summary judgment.

Judgment affirmed.

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

Decided April 20, 1987.

Fred R. Kopp, M. Theodore Solomon II, for appellant.

James D. Hudson, for appellees.


author: McMurray, Presiding Judge.

text:
    74326.
    STEELE v. COLBERT.
    (356 SE2d 736)
    Decided April 20, 1987.

      Jack O. Morse, for appellant.

      Christopher D. Parker, for appellee.
   McMurray, Presiding Judge.

Plaintiff appeals from the dismissal of her action against defendant. The trial court had previously ordered “that Plaintiff shall have Fifteen (15) days from the date of this Order to fully and unequivocally answer Defendant’s interrogatories which were served on Plaintiff on the 3rd day of April, 1986, otherwise Plaintiff’s Complaint shall be dismissed without any further action.” Held:

This case is controlled by Maxey v. Covington, 126 Ga. App. 197 (190 SE2d 448), wherein we made it clear that a prospective, -self-executing order cannot be used by a trial court, to invoke the drastic sanction of dismissal under former Code Ann. § 81A-137, now OCGA § 9-11-37. Accord Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747 (331 SE2d 95). As we said, “[a] court cannot assume that a future failure [to comply with discovery orders] will be unjustifiable. It must examine the circumstances retrospectively. This means affording an opportunity to explain the circumstances following the failure; which means, in turn, an express motion and notice to the party concerned.” Maxey v. Covington, 126 Ga. App. 197, supra at 199.

The trial court erred by dismissing plaintiff’s complaint on account of plaintiff’s failure to comply with the trial court’s order compelling answers to interrogatories without affording plaintiff a hearing and an opportunity to explain the circumstances, following the failure.

Judgment reversed.

Sognier and Beasley, JJ., concur.


author: Pope, Judge.

text:
    73618.
    GILLEY v. THE STATE.
    (356 SE2d 655)
   Pope, Judge.

Jerry Gilley brings this appeal from his conviction of two counts of criminal issuance of bad checks (OCGA § 16-9-20). His two enumerations of error challenge the sufficiency of the evidence to support the judgment. Held:

1. OCGA § 16-9-20 (a) provides: “A person commits the offense of criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” Appellant first argues that the State failed to prove there was a “present consideration” for the issuance of the subject bad checks.

“[P] resent consideration is an essential element of the crime here involved, and ‘ “it must be proved that the party alleged to have been defrauded suffered loss resulting from its reliance on the defendant’s wrongful act as charged in the indictment.” [Cit.]’ [Cit.] We realize that in the fast pace of commerce, [goods or] services and payment for [same] cannot always be exchanged at exactly the same time. However, the requisite of ‘present consideration’ may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction. [Cit.]” Bowers v. State, 248 Ga. 714, 715 (285 SE2d 702) (1982). “Where there is a single, contemporaneous transaction in which the parties expect goods or services and payment to be exchanged as nearly as possible at the same time, a short interval of time preceding the delivery of a check would not preclude a jury from finding, as a matter of fact, that the check was given in exchange for present consideration. For example, where one delivers goods or services to the purchaser’s home or business at the purchaser’s request, returns a short time later and is given a check in payment, a jury could find that the check was given in exchange for a present consideration.” Id. at 715-16 n. 1.

Construed most strongly in favor of the State, the record shows that appellant, a general contractor, executed a contract with one Hammond for installation of a furnace. The contract provided for two-thirds payment to be made upon completion of the rough-in phase of the work, and the final third upon completion of the work. By subsequent agreement between the parties, full payment for the work was to become due upon completion of the work. Hammond completed the work in the late afternoon of Friday, February 15, 1985. Appellant was not present at that time, and after unsuccessfully attempting to contact him over the weekend, Hammond met with appellant on the following Monday and was paid in full by check.

Decided April 6, 1987

Rehearing denied April 22, 1987

J. Dunham McAllister, for appellant.

Robert E. Keller, District Attorney, David C. Marshall, Todd E. Naugle, Assistant District Attorneys, for appellee.

On the same project appellant also contracted with one Cole for installation of a garage door and electric opener. The work was completed on a Wednesday, and, although Cole requested payment at that time, the parties agreed that appellant would make payment in full on that Friday by placing a check in the mail. Cole did not receive payment as promised and, after expending considerable effort to locate appellant, finally obtained a check from appellant approximately a week and a half later on February 20, 1985.

The checks were subsequently returned to Hammond and Cole unpaid because appellant’s checking account had been closed by the bank on February 20. For each day from January 31, 1985 until the account was closed, appellant had maintained a negative daily balance in the checking account.

In our view, any rational trier of fact could have found the requisite “present consideration” beyond a reasonable doubt. See Pittman v. State, 154 Ga. App. 691 (269 SE2d 522) (1980). Compare Griffith v. State, 249 Ga. 19 (287 SE2d 187) (1982); Brooks v. State, 146 Ga. App. 626 (2) (247 SE2d 209) (1978).

2. The State adequately proved the mens rea of the appellant. See Russell v. State, 155 Ga. App. 555 (1) (271 SE2d 689) (1980); Wiggins v. State, 139 Ga. App. 98 (1) (227 SE2d 895) (1976). See generally Berry v. State, 153 Ga. 169 (3) (111 SE 669) (1922).

Judgment affirmed.

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


text:
    73636.
    BROWN v. THE STATE.
    (356 SE2d 663)
   Pope, Judge.

William A. E. Brown brings this appeal from his conviction and sentence of homicide by vehicle in the second degree, OCGA § 40-6-393 (b). Held:

1. Defendant’s first enumeration assigns error to the trial court’s repeating the instruction to the jury on vehicular homicide “because this repetitious instruction gave undue prominence to the State’s accusation.” We find no merit in this assertion.

“A mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights. [Cit.]” Brown v. State, 142 Ga. App. 247, 248 (235 SE2d 671) (1977). “Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.” Brown v. Brown, 89 Ga. App. 428, 429 (80 SE2d 2) (1953); see Patterson v. State, 207 Ga. 357 (2) (61 SE2d 462) (1950). The repetition complained of resulted from a jury request for a recharge on the issue of intent and was accompanied by several references to the State’s burden of proving each element of the crime charged beyond a reasonable doubt. “When the charge is read as a whole, we cannot say that it confused or misled the jury or in any manner resulted in an unfair statement of the law as it relates to defendant.” Brown v. State, supra at 248.

2. Defendant’s second enumeration of error asserts that the trial court’s instructions on intent were “confusing, conflicting, erroneous and impermissibly lessened the burden of the State to prove the element of intent beyond a reasonable doubt.” We find no merit in any of the arguments raised here.

(a) First, we find no error in the trial court’s charge to the effect that the “intention” the State was required to prove beyond a reasonable doubt did not mean an intention to violate a penal statute but an intention to commit the act prohibited thereby. See Price v. State, 253 Ga. 250 (2) (319 SE2d 849) (1984); Balark v. State, 81 Ga. App. 649 (1a) (59 SE2d 524) (1950). The asserted internal inconsistency in this charge “was not misleading except by construction, and in view of the clarity of the charge as a whole, it is unlikely that [this alleged inconsistency] would mislead a jury of ordinary intelligence. [Cit.]” Harper v. State, 155 Ga. App. 764, 766 (272 SE2d 736) (1980). See Griffis v. State, 242 Ga. 26 (2b) (247 SE2d 833) (1978). See generally Avery v. State, 141 Ga. App. 92 (4) (232 SE2d 618) (1977).

(b) Also, we find no error in the trial court’s further instructions on intent in the form of an illustration, where “[t]he illustration here used did not tend to mislead, inflame, or prejudice the jury against the accused.” Benton v. State, 185 Ga. 254, 255 (194 SE 166) (1937); accord Brown v. State, 177 Ga. App. 778 (2) (341 SE2d 226) (1986). See generally Collier v. State, 154 Ga. 68 (3, 4) (113 SE 213) (1922). The holding in Brinson v. State, 163 Ga. App. 567 (2) (295 SE2d 536) (1982), does not compel a different conclusion. In Brinson the challenged charge on intent was inflammatory, which is clearly not the situation in the case at bar.

Decided April 7, 1987

Rehearing denied April 22, 1987

John R. Calhoun, Malcolm MacKenzie III, for appellant.

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

(c) Finally, the trial court took proper curative action to correct its misstatement that the State must prove intent by a preponderance of the evidence. See Young v. State, 131 Ga. App. 553 (3) (206 SE2d 536) (1974). See generally Cameron v. State, 123 Ga. App. 282 (1) (180 SE2d 554) (1971).

3. The trial court did not err in excluding from evidence the owner’s manual for the automobile appellant was driving at the time of the fatal accident. See Goldsmith v. State, 148 Ga. App. 786 (7) (252 SE2d 657) (1979), and cits. Nor did the trial court err in excluding from evidence the allegedly defective rear axle as there was no showing that this item caused the accident or was otherwise relevant to the issues in this case. See generally McNabb v. State, 70 Ga. App. 798 (1) (29 SE2d 643) (1944).

4. Defendant’s hearsay challenge to the admissibility of the State Crime Lab autopsy report is controlled adversely to him by the holding in Millwood v. State, 166 Ga. App. 292 (5) (304 SE2d 103) (1983). Defendant’s further challenge to the completeness of the report goes to its weight, not its admissibility.

Judgment affirmed.

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

       “[T]he intent that the State is required to prove beyond a reasonable doubt is not an intention to speed, it’s not an intention to violate the law. ... In other words,. . . the State must prove that the Defendant intended to operate a vehicle at greater than the speed limit.” (Emphasis supplied.)


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

text:
    73738.
    WILLIAMS v. AETNA CASUALTY & SURETY COMPANY.
    (356 SE2d 690)
   Deen, Presiding Judge.

Johnny Williams was granted a discretionary appeal so this court could review the judgment of the court below, in which he was awarded $500 in punitive damages for appellee’s failure to pay timely his claim for no-fault insurance benefits.

1. Williams first assigns as error the trial court’s grant of appellee’s motion in limine which denied him the right to introduce evidence of the insurance company’s mishandling of his related workers’ compensation claim so that it could provide a gauge for awarding punitive damages.

Williams showed that he was struck by a motor vehicle operated by a fellow employee on June 19, 1985. His employer’s workers’ compensation and no-fault insurance carrier was Aetna Casualty & Surety Company. The same adjuster handled both claims and, because she failed to pay timely the workers’ compensation claim, the State Board of Workers’ Compensation entered an order assessing attorney fees against Aetna. As the claim for no-fault benefits was also not timely paid, Williams instituted this action pursuant to the provisions of OCGA § 33-34-6 to recover the benefits, punitive damages, and other penalties. The case was tried solely on the issue of punitive damages. The court granted appellee’s motion in limine, which barred appellant from introducing any evidence relating to the appellee’s mishandling of his workers’ compensation claim.

OCGA § 33-34-6 (c) provides in part that “in the event that an insurer fails or refuses to pay a person the benefits which the person is entitled to under this chapter within 60 days after proper proof of loss has been filed, the person may bring an action to recover the benefits; and, if the insurer fails to prove that its failure or refusal to pay the benefits was in good faith, the insurer shall be subject to punitive damages.” Aetna admitted it failed to pay the claim within sixty days, and thus bore the burden of proving that it acted in good faith. OCGA § 24-2-2 provides: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” The details of the other claim have no bearing on this determination. In Canal Ins. Co. v. Winge Bros., 97 Ga. App. 782 (104 SE2d 525) (1958), this court relied upon Queen Ins. Co. v. Van Giesen, 136 Ga. 741, 742 (3) (72 SE 41) (1911), which held that the lower court “did not err in excluding evidence tending to show, that, some five months prior to the burning of the goods covered by the policy sued on, the plaintiff had suffered another loss by fire, in no way connected with the loss which was the subject-matter of the action on trial, and had compromised with the insurance company which had issued a policy on the other goods.” “While the loss was purportedly paid in the present case by the same company just prior to the loss sued on, the principle is the same, and it was not error to exclude the evidence dealing with a prior loss.” Canal Ins. Co. v. Winge Bros., supra at 784. The evidence in the instant case showed that the workers’ compensation case had been resolved prior to the filing of this lawsuit.

Appellant’s reliance upon Moore v. Thompson, 174 Ga. App. 331 (329 SE2d 914), 255 Ga. 236 (336 SE2d 749) (1985), and Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199) (1979), is misplaced. The former case involved evidence that a defendant drove under the influence of alcohol both before and after the incident giving rise to the cause of action and was admissible to show wilful and wanton conduct under OCGA § 51-12-5. The latter case involved a claim for punitive damages against a dentist under the same statute. The present case differs from them in that it involves a statutory claim for bad faith in failure to pay a no-fault insurance claim within the statutorily required time. Wilful and wanton conduct is not at issue. The only other case which might be applicable is Waco Fire &c. Ins. Co. v. Goudeau, 178 Ga. App. 426 (343 SE2d 131) (1986). In that case, however, there was evidence of a course of dealing with claimants in order to deny them benefits. That situation does not exist in the instant case, as it involves only the slow handling of claims by one of the company’s employees. We find no error in the trial court’s ruling.

2. Appellant further contends that the trial court erred in denying him the right to opening and concluding argument. As the statute in question, OCGA § 33-34-6 (c), places the burden of proof upon Aetna to prove good faith, the insurance company was entitled to opening and concluding arguments. The court accordingly charged that in this case the burden of proof shifted to the defendant to show that he acted in good faith. No burden of any sort was placed upon the plaintiff.

Although Williams’ counsel objected to being denied the right to open and conclude prior to trial, and this objection is noted in the pre-trial order, he failed to make any such objection at trial. “Generally, when a party permits proceedings to be had, in the progress of his case, without making any objection, the court will hold him to have waived the objection, and will not relieve him against the consequences of the proceeding, to which he did not object at the proper time.” Moody v. Nides Fin. Co., 115 Ga. App. 859, 861 (156 SE2d 310, 311) (1967). There is no merit in this enumeration.

3. Appellant’s contention that the court below erred in failing to give two of his requests to charge is not properly before this court. OCGA § 5-6-35 (b) requires that “[a]ll appeals taken in cases specified in subsection (a) of this Code section shall be by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction. The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.” (Emphasis supplied.) Therefore, these two additional enumerations will not be considered.

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I fully concur in the opinion because I believe the trial court’s exercise of discretion in disallowing the evidence in this instance should be honored. “Generally speaking, questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. [Cit.]” Georgia American Ins. Co. v. Varnum, 179 Ga. App. 195, 197 (2) (345 SE2d 863) (1986).

Here the general prohibition contained in OCGA § 24-2-2 constituted a weight against admission. The question was whether it should be allowed as embraced within one of the statute’s exceptions. In the trial for punitive damages against the insurer, the nature of the action involved its conduct in the tardy paying of the no-fault insurance benefits. Did this issue, in the words of the statute, “render necessary or proper [the] investigation of . . . conduct” relating to the payment of the workers’ compensation benefits accruing under a different policy?

The trial court concluded that it did not, and I could not say its judgment was, as a matter of law, wrong. What it refused to allow was “evidence relating to the delay of payment of the workers’ compensation claim.” However, the pretrial order also states that “the Court will allow the plaintiff to go into the contents of the workers’ compensation file for the purposes of showing that it contains sufficient evidence for the defendant to process the no-fault claim. . . .”

The evidence of the other delay was sought to show aggravation, for the purpose of increasing the amount of the punitive damages. While it might have been relevant, in order to show the employee’s general attitude and course of conduct with respect to the handling of Mr. Williams’ claims, giving added weight to the enormity of the wrong, it would have created an insoluble dilemma.

If the jury was permitted to learn of the delay in the workers’ compensation benefits, it might very well increase the damages in this case to cover that delay, too. Of course, it would be error to penalize the defendant in this action for the other delay, because it was not in issue and because it would amount to double recovery of punitive damages since the ALJ had already awarded them.

If, on the other hand, the jury was permitted to learn the whole circumstance, that the other delay resulted in an agreed award of monetary sanctions from the ALJ, there would be a danger that the administrative agency’s quasi-judicial pronouncement would influence this jury even if it was not told the amount of that award. Such an outside influence on its deliberations and verdict would be irrelevant and prejudicial. In my opinion the trial court’s solution was not error, much less reversible error.

Pope, Judge,

dissenting.

I respectfully dissent to Division 1 of the majority opinion.

It has long been recognized in this state that “ ‘intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. (Cits.)’ Tapley v. Youmans, 95 Ga. App. 161, 175 (7) (97 SE2d 365) (1957).” American Game &c. Svc. v. Knighton, 178 Ga. App. 745, 746-47 (344 SE2d 717) (1986). See also Seaboard Coastline R. Co. v. Delahunt, 179 Ga. App. 647 (8) (347 SE2d 627) (1986). Thus, I believe that the evidence of Aetna’s failure to timely pay Williams’ workers’ compensation claim should have been admitted as relevant to the issue of Aetna’s good faith under OCGA § 33-34-6 (c). In so holding, I wish to stress that it is not my intention to eviscerate the provisions of OCGA § 24-2-2; however, because both claims arose out of the same accident and were handled in a similar manner by the same claims adjuster at Aetna, I believe the more sagacious course in the case sub judice is to allow admission of the evidence. It is also my opinion that such a course better serves the “clear legislative intent underlying [OCGA § 33-34-6] to provide holders of no-fault insurance policies with a means to encourage prompt disposition of their claims.” Jones v. State Farm Mut. &c. Ins. Co., 156 Ga. App. 230, 235 (274 SE2d 623) (1980).

Moreover, I am not persuaded that the authority cited in the majority opinion mandates a different conclusion. In my opinion Canal Ins. Co. v. Winge Bros., 97 Ga. App. 782 (2) (104 SE2d 525) (1958), in which the insurer sought to admit evidence dealing with payments made to the insured on an apparently unconnected prior loss, is both factually and legally inapposite to the present case in which the insured’s employee sought to present evidence concerning the insurer’s slow payment on a claim arising out of identical facts. And, unlike the majority, I do not believe that the holding in Canal Ins. Co. requires us to consider the time at which the workers’ compensation claim was resolved as relevant to the issue here under review.

For the foregoing reasons, I would reverse the trial court’s ruling on the admissibility of the evidence concerning slow payment on Williams’ workers’ compensation claim.

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

Decided April 9, 1987

Rehearing denied April 22, 1987

Alfred N. Corriere, for appellant.

Kenneth B. Hodges, Jr., for appellee.


text:
    73759.
    WITTIG v. SPA LADY, INC. OF MARIETTA.
    (356 SE2d 665)
   Birdsong, Chief Judge.

Appellant Christine Wittig appeals from a directed verdict for appellee, Spa Lady, Inc. of Marietta, Georgia, on an action by Wittig alleging an agent of Spa Lady forged her name to a contract and subsequent collection efforts by a collection agency and a law firm invaded her privacy and intentionally inflicted emotional distress. At the close of appellant’s evidence, the trial court granted appellee’s motion for directed verdict and Wittig brings this appeal. Held:

It was not contested that an employee of Spa Lady had forged Wittig’s name to a Spa Lady contract after unsuccessfully soliciting her business. After the first monthly payment became due, Wittig received a letter from Paramount Acceptance, the collecting branch of the corporation that owns both Spa Lady and Paramount, requesting remittance of the monthly dues. Wittig informed Paramount that she had not signed the contract and Paramount requested her to send in a copy of her driver’s license so that they could compare her signature to the one on the contract. Wittig at first agreed, but after discussing the matter with her sister, declined to do so, for she reasoned that Spa Lady had already forged her name to a contract and if they received a legitimate copy of her signature, they could perfect the forged signature. Eventually Paramount sent a copy of the forged contract to Wittig and then turned the account over to a law firm for collection. After some correspondence from the law firm, Wittig consulted with a lawyer and filed this action.

The trial court found no evidence that Spa Lady had any knowledge of the forgery before attempting collection, nor did they ratify such act after it was discovered. The court also found that there was no evidence that at the time of the forgery that the employee was acting for the purpose of promoting the master’s interest nor had the employee been engaged in doing this for the master or had been directed to do so by the master. We agree and affirm.

Our Code states that “[e]very person shall be liable for torts committed by . . . his servant by his command or in the prosecution and within the scope of his business. . . .” OCGA § 51-2-2. But, our appellate courts have followed a long line of authorities citing the general rule that “‘[i]n determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.’ ” Sexton Bros. Tire Co. v. Southern Burglar Alarm Co., 153 Ga. App. 413, 414 (265 SE2d 335); accord Jones v. Reserve Ins. Co., 149 Ga. App. 176, 177 (253 SE2d 849); Colonial Stores v. Sasser, 79 Ga. App. 604, 606 (54 SE2d 719); McGhee v. Kingman & Everett, 49 Ga. App. 767 (2) (176 SE 55).

Decided April 7, 1987

Rehearing denied April 22, 1987.

Martin L. Cowen III, for appellant.

Robert P. Wildau, William F. Clark, for appellee.

If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable. Jones v. Dixie Ohio Express, 116 Ga. App. 155 (156 SE2d 388). Thus, a tort committed by a servant while engaged in the master’s business is not necessarily a tort committed in the course of his employment and in the prosecution of the master’s business. Id. Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable. Community Theatres Co. v. Bentley, 88 Ga. App. 303, 305 (76 SE2d 632). Professor Prosser agrees that if the servant “acts from purely personal motives . . .” he is deemed to have departed from his employment and the master is not liable. Prosser & Keeton, Torts (5th ed.) 506, § 70. See also generally 53 AmJur2d 463, Master & Servant, § 445; 57 CJS 323, Master & Servant, § 574 (a).

In the instant case, the act of an employee forging a signature of a purported customer to a company contract was not within the scope of the servant’s employment. The master was not liable and the trial court did not err in granting a directed verdict to appellees.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    73805.
    GENTILE v. MILLER, STEVENSON & STEINICHEN, INC.
    (356 SE2d 666)
   Sognier, Judge.

Shirley Gentile, administratrix of the estate of her deceased husband, Thomas Gentile, brought suit against her late husband’s employer to recover damages for the employer’s alleged failure to offer her decedent an opportunity to participate in employee group life and health insurance. The employer, Miller, Stevenson & Steinichen, Inc. was granted summary judgment and Gentile appeals.

Appellee provided an optional insurance plan in which employees, during the first 30 days of their employment, could enroll without proof of insurability. After the initial 30-day period had expired, however, employees could enroll only upon providing satisfactory proof of insurability. The record reveals that appellant’s decedent was employed by appellee at the end of August 1983 and was hospitalized during the week of November 21, 1983. On November 30,1983, appellee sent a letter to its insurance carrier stating “[d]ue to oversight on our [appellee’s] part we did not send in enrollment card for Mr. Thomas S. Gentile. Would you please add him to our current plan, effective date October 1, 1983.” The decedent was then enrolled, and both he and appellee paid premiums for several months. However, when claim was made for payment of medical bills, coverage for appellant’s decedent was rescinded and all premiums returned, based on the carrier’s determination that the decedent’s medical condition had been preexisting at the time of his enrollment. It is uncontroverted that appellant’s decedent was not enrolled in the plan when he was hospitalized on November 21, 1983 and that he was uninsurable after that date.

1. Appellant contends the trial court erred by granting summary judgment to appellee because a genuine issue of material fact existed whether her decedent was ever informed by appellee of his right to participate in the insurance plan while he was eligible for coverage without proof of insurability. Appellee supported its motion for summary judgment with the affidavit of Earl Stevenson, Jr., appellee’s president, who stated that he had explained the insurance program to appellant’s decedent on three separate occasions, and the decedent had declined to participate.

Appellant argues that a genuine issue rebutting appellee’s affidavit .as to this material fact was created in three ways. First, appellant argues a fact issue was created by the November 21, 1983 letter from appellee to its insurance carrier. We do not agree. It is true there is a discrepancy between appellee’s position as stated in Stevenson’s affidavit and the statement in the letter that failure to enroll the decedent was an “oversight” on appellee’s part. However, even assuming, arguendo, these statements are contradictory, a reasonable explanation for the apparent contradiction was presented in the affidavit of Maitland Wells, appellee’s insurance agent. Wells swore he had dictated the letter to the carrier at the request of Stevenson, despite the decedent’s previous refusal of participation, in a benevolent effort to help the decedent obtain coverage for his illness. “In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. ... We point out that even where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. [Cits.]” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). The trial court was authorized in this case to decide that a reasonable explanation had been offered, and there was thus no genuine issue as to the fact that Stevenson had explained the insurance plan to the decedent.

Contrary to appellant’s second argument, no genuine issue of fact was created by appellant’s affidavit stating her husband had told her he had not been informed of his right to enroll in the plan. Decedent’s statements are hearsay and therefore may not be considered. “[‘]The two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence . . .’ [Cit.]” Chrysler Motors v. Davis, 226 Ga. 221, 224 (1) (173 SE2d 691) (1970). Appellant’s decedent’s statements that he did not know what, if any, benefits were available through his company and that he had received no information regarding such benefits “were entirely self-serving and were offered by [appellant] who stood to gain the most from their admission. We cannot say that these statements meet the test of trustworthiness.” Irby v. Brooks, 246 Ga. 794, 796 (273 SE2d 183) (1980). See Belote v. Belote, 167 Ga. App. 8, 10 (5) (306 SE2d 24) (1983).

Finally, appellant argues that appellee’s group insurance certificate requires that each new employee fill out either an enrollment card or a waiver card, and thus appellee’s failure to produce a waiver card signed by the decedent raises a fact issue as to whether the decedent actually declined coverage. However, the record discloses no demand that appellee produce such a waiver card and, therefore, no inference may be drawn from its absence. See generally Smith v. Davis, 76 Ga. App. 154, 159 (2) (45 SE2d 237) (1947). In addition, as this argument is raised for the first time on appeal, it need not be considered. In re R. K. J., 179 Ga. App. 112, 113 (3) (345 SE2d 658) (1986). Accordingly, in the absence of any remaining genuine issue of material fact, appellee was entitled to judgment as a matter of law and the trial court did not err by granting summary judgment to appellee. See generally Bright v. Food Giant, 177 Ga. App. 641, 642 (340 SE2d 272) (1986).

2. Appellant also enumerates as error the trial court’s order requiring supplementation of the record on appeal at appellant’s expense. Appellant argues that the record as designated by appellant was sufficient, and that supplementation was unnecessary and burdened appellant with great expense. “[OCGA § 5-6-41 (f), former] Code Ann. § 6-805 (f) makes clear that the trial court controls the determination of the final record on appeal [cit.], and may even supplement the record designated by the parties on its own motion [cit.]. It follows then that if the trial court finds that the additional portions designated by the appellee are necessary to complete the record on appeal, the costs must be paid by the appellant; only if considered unnecessary on appeal, should the costs be taxed against the appellee. The trial court’s decision will not be reversed absent a manifest abuse of discretion.” Jones v. Spindel, 239 Ga. 68, 70-71 (2) (235 SE2d 486) (1977). We have examined the entire record carefully and find no manifest abuse of the trial court’s discretion.

Decided April 7, 1987

Rehearing denied April 22, 1987

James B. Gordon, for appellant.

Donald E. Loveless, John W. Winborne III, for appellee.

Judgment affirmed.

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


text:
    73818.
    KARP v. WESTERN LIFE INSURANCE COMPANY.
    (356 SE2d 893)
   Sognier, Judge.

Cindy Beth Karp, beneficiary of her deceased husband’s life insurance policy, sued Western Life Insurance Company to recover $150,000 in additional proceeds applied for by the decedent approximately three months before his death. The trial court granted summary judgment to the insurer and Karp appeals.

The record reveals that in April 1983, the decedent purchased life insurance in the face amount of $100,000 from appellee through Russell Simmons, an insurance broker. The policy was issued without requiring the decedent to undergo a medical examination. Six months later, again dealing with Simmons, the decedent applied and paid the premium for an increase in the face amount of the policy from $100,000 to $250,000. It is uncontroverted that Simmons told appellant and the decedent the additional coverage could be issued without a medical examination. In addition, appellant alleges Simmons informed them the increased coverage would be effective immediately, although this allegation is denied by Simmons. The record further shows that approximately two weeks after filling out the application for increased coverage, the decedent was diagnosed as suffering from inoperable esophageal cancer, which resulted in his death on January 26, 1984. Upon receipt of appellant’s claim, appellee paid the proceeds of the $100,000 policy, but refused to honor the claim for the increased amount.

Appellant contends the trial court erred by granting summary judgment to appellee because genuine issues of fact remained regarding whether Simmons was appellee’s agent and thus, whether appellee, by means of Simmons’ representations to appellant and the decedent, was bound to provide the increased amount of insurance “effective immediately.” While we agree with appellant that there is a fact issue concerning Simmons’ status as appellee’s agent, the issue is not material to the resolution of this case. Even if Simmons’ acts were sufficient to bring him within the statutory definition of “agent” in OCGA § 33-23-40 (a) (3), this does not automatically clothe him with power to issue a valid oral binder. See Southeastern &c. Ins. Co. v. State Farm &c. Ins. Co., 118 Ga. App. 861, 864 (165 SE2d 887) (1968). Subsection (d) of OCGA § 33-24-33, cited by appellant, specifically excepts life insurance. Thomas v. Union Fidelity Life Ins. Co., 168 Ga. App. 267, 268 (1) (308 SE2d 609) (1983); aff’d 252 Ga. 259 (312 SE2d 333) (1984). Thus, assuming appellant could have shown Simmons was appellee’s agent, the representations made by Simmons would not automatically have bound appellee.

Further, assuming arguendo that Simmons was appellee’s agent, “[n]o verbal assurance of the agent to the applicant or to the proposed beneficiary that the applicant was insured from the date of the application could bind the company or constitute a contract of insurance. [Cit.]” Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17, 21 (2(a)) (147 SE2d 5) (1966). “ ‘[T]he expression of an opinion as to coverage [does not] work an estoppel — even against the agent who voiced it, or against his principal. [Cits.]’ [Cits.]” Thomas, supra at 269 (3).

Finally, “[t]he general rule is that an application for insurance, even with the concurrent prepayment of premiums, creates no binding contract of insurance until the insurer manifests its acceptance. [Cits.]” Atkinson v. American &c. Ins. Co., 165 Ga. App. 102, 103 (1) (299 SE2d 600) (1983). In the case sub judice, in support of its motion for summary judgment, appellee submitted the affidavit of Philip Tschumperlin, an individual underwriting officer of the company, who stated on personal knowledge that appellee, by two different actions, had indicated it did not accept the increased coverage. First, on December 7, 1983, appellee notified Simmons by explicit memorandum that according to company policy no increase in the face amount of the policy could be made effective until the anniversary date of the policy, April 14, 1984. Second, on December 13, 1983, it refunded the premium for the additional coverage to Simmons. Appellant’s response to the motion for summary judgment contains nothing which rebuts appellee’s showing that it had not accepted the increased coverage at the time appellant’s decedent died. Thus, there remained no genuine issue of material fact, and the trial court did not err by granting summary judgment to appellee. See generally Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986).

Decided April 7, 1987

Rehearing dismissed April 22, 1987.

James W. Smith, for appellant.

Eugene A. Epting, for appellee.

In view of our determination that no increase in the face amount of the policy was in effect when the insured died, any issue whether misrepresentations were made by the decedent about his smoking, is not material to the decision of this case.

Judgment affirmed.

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


text:
    73885.
    GREEN v. THE STATE.
    (356 SE2d 673)
   Birdsong, Chief Judge.

Amanda Green brings this appeal from her conviction of three counts of theft by taking. Ms. Green was a teller at the Norcross branch of California Federal Bank. On May 22, 1985, Ms. Ellen Biles said she made a deposit of checks to Amanda Green at the Norcross office of California Federal totaling $1,229.64 and received back $100 in cash. She identified a deposit slip from Teller 31 of California Federal for this transaction. The Norcross branch manager identified Amanda Green as Teller 31. On that same day, bank records indicate that Teller 31 entered an error correction for Ms. Biles’ account changing the $100 cash withdrawal to $500 cash withdrawal. When Ms. Biles received her monthly statement, she notified the bank of its error and the record was changed to credit her account with the total $1,229.64.

The bank’s records also show that on May 23, 1985, Teller 31 issued a deposit slip to Donald and Reba Halleck in the amount of $431.03. The machine tape also shows an error correction by Teller 31, changing that deposit from $431.03 to $231.03 on the same date and debiting the Halleck account.

On the morning of May 24, 1985, Ms. Green called the bank to tell them she would be late. She had had too much to drink the preceding evening. During the morning, two of the bank’s three teller machines went out and the only operating machine was Ms. Green’s. Since she had not shown up, the head cashier removed her money tray from the vault and delivered it to the teller who would operate the machine. It is bank policy that when a teller’s cash drawer is opened in her absence, two cashiers must verify the cash in the drawer. Two cashiers verified that Ms. Green’s cash drawer was $300 short in $20 bills.

Ms. Green testified that different tellers used other tellers’ machines in their absence and she was absent on each day to go to a nearby restaurant for breakfast and lunch. She also said that her tape for May 23 was verified by the head cashier as to money in the drawer when she left for that day. Two other bank employees testified that the verification by the head cashier at the end of the day was not verification of the amount of cash in the drawer, but that the cash total put down by the cashier as to the amount in the drawer matched the total of cash shown on the bank’s master machine tape. Ms. Green appeals from a jury verdict of guilty as to the three counts of theft by taking. Held:

1. Appellant contends the State failed to prove venue. We do not agree. This trial occurred in Gwinnett County. All bank employees testified that the bank in which they worked was the Norcross branch of California Federal. Evidence as to venue, though slight, is sufficient in the absence of any conflict. Aldridge v. State, 236 Ga. 773, 774 (225 SE2d 421). There was no conflict in the evidence. This court will judicially note that Norcross is in Gwinnett County. OCGA § 24-1-4; Williams v. State, 162 Ga. App. 680 (1) (292 SE2d 560).

2. The trial court refused to give a charge requested by appellant that “a check is not payment until it is in fact paid, and a check is not money, but a negotiable instrument.” Argument was not recorded, but from the tenor of the requested charge, it is clear that counsel was attempting to controvert the allegation in the indictment that title to the money taken was in the depositors by arguing that after the checks were deposited title to the property was in the bank. In the appellate brief, counsel argues that checks are not cashed until they are paid and the depositors had merely transferred the checks to the bank for collection and since the money was taken from the bank “there could have been no theft by taking . . . from Ellen Biles and Donald Holleck [sic].”

There is a distinction in transfer of title to a deposit of cash in a bank, and deposit of checks for collection. See Foster v. Peoples Bank, 42 Ga. App. 102 (1), (2) (155 SE 62). A check is a draft drawn on a bank, payable on demand. OCGA § 11-3-104 (2) (b). It is a negotiable instrument and is transferred by indorsement of the payee to the bank for the purpose of collection and the transferee bank obtains such rights as the transferor had. OCGA § 11-3-201 (1). The bank then becomes the agent of the depositor for the purpose of collection. OCGA § 11-4-201. The relationship between the depositor and the depositary bank on deposited checks is presumed to be that of principal and agent and not that of debtor-creditor. Pike v. First Nat. Bank of Rome, 99 Ga. App. 598 (1) (109 SE2d 620). Credit given by the bank for deposit of the check is provisional (OCGA § 11-4-201) and the bank may charge back the paper to the depositor’s account if it is not honored upon presentation. Foster, supra at (2). The bank obtains a security interest in the deposit and becomes a holder in due course to the extent of its security interest. OCGA § 11-4-208. Hence, during the depositing and collecting stage of a check, there is a dual proprietary interest in the item — one by the depositor, and another by the depositary bank. Each would be entitled to assert his interest in the property to the exclusion of all others except the true owner.

Decided April 8, 1987

Rehearing denied April 22, 1987.

Glyndon C. Pruitt, for appellant.

Samuel H. Harrison, Solicitor, Cheryl F. Custer, Assistant Solicitor, for appellee.

When there may be confusion as to title, the Supreme Court has stated the rule succinctly, that “ ‘one charged with larceny will not be heard “to raise nice and delicate questions as to the title of the article stolen.” ’ ” Gomez v. State, 234 Ga. 614 (1) (216 SE2d 844), accord Bradshaw v. State, 162 Ga. App. 750 (7) (293 SE2d 360); Kent v. State, 157 Ga. App. 209, 210 (276 SE2d 881). Further, the requested charge was couched in terms of “payment,” and in the instant case “payment” of the check was not involved, only the issues of “credit” for purposes of “collection.” Hence, the charge was not adjusted to the evidence, and it was not error to refuse to give the charge under the facts of this case.

3. The remaining enumerations address the sufficiency of the evidence under the general grounds. When the evidence is viewed in the light favorable to the verdict, it is sufficient to enable any rational trier of facts to find the existence of the offenses charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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