author: Judge Arnold Shulman. Beasley, Judge,

text:
    A91A0957.
    A91A0990.
    COLLINS v. THE STATE. SHAW v. THE STATE.
    (414 SE2d 297)
   Judge Arnold Shulman.

The appellants, Janice Faye Collins and Gary Dewayne Shaw, were jointly tried and convicted of arson in the first degree. They appeal from the denial of their respective motions for new trial, contending that the evidence was insufficient to support the jury’s verdict.

The appellants were charged with setting fire to a mobile home owned by appellant Collins, which she had occupied with her young son and appellant Shaw. A neighbor who occupied the mobile home next door testified that at approximately 11:00 p.m. on the night of the fire, he heard a vehicle approach, looked outside his door, and saw the appellants’ car parked with the motor running. He stated that the vehicle remained there for approximately five minutes and then left. Some five or ten minutes later, the neighbor heard “popping and cracking” noises, and his son heard “a loud bang,” like glass breaking. The two of them looked outside at this time and saw flames coming from the bedroom window of the appellants’ home, and the son then went to the home of the maintenance man for the mobile home park to telephone the fire department. The son testified that as he was walking back to the site of the fire, he saw the two appellants drive by in their car, while the maintenance man testified that he saw a car which “resembled” the appellants’ vehicle stop, turn off its lights, and depart a few minutes later. The maintenance man further testified that appellants were seven or eight days late in paying the $90 rent on their lot and that he had told Shaw earlier that evening that if the rent were not paid within five days, he and Collins would be evicted from the mobile home park.

The fire was reported at 11:05 p.m., and at 11:20 p.m. firemen arrived on the scene to find the mobile home “pretty much fully consumed” in flames. At least one other fire occurred in the vicinity at the same time, and the firemen went back and forth between them. The appellants arrived on the scene at approximately 1:15 a.m. Shaw appeared to the fire fighters to be “fairly upset,” while Collins appeared “extremely upset” and was crying.

Mr. Allen Key, an investigator employed by the Fort Oglethorpe Fire Department who had previously investigated about 45 fires, arrived at the scene at about the same time as the appellants. Upon examining the interior of the home, he observed that the springs on the bed in the master bedroom had collapsed towards the center of the bed, and based solely on that observation he formed the opinion that “the fire was [of] an incendiary [nature] set on the bed using a flammable liquid.” He stated that he did not detect any flammable liquid pour patterns but could find no other possible cause for the fire and suspected arson because he saw no personal photographs in the home, and very few articles of clothing. He acknowledged, however, that he had not looked inside any of the cabinets or closets in the home. Key testified that there was only one electrical appliance, a radio, plugged into the wall sockets in the appellants’ bedroom and that this was not the cause of the fire. He further testified that although some of the breakers in the electrical breaker box were tripped, indicating that electrical shortages had occurred, the box was not sufficiently damaged to suggest to him that the fire had started there.

Key took a single sample of material from underneath the bed and sent it to the State Crime Laboratory for analysis. The forensic chemist who analyzed this sample testified that his tests revealed the presence of “a heavy petroleum distillate product,” such as kerosene, diesel fuel, lamp oil or charcoal starter. However, he acknowledged that such petroleum distillates could be found in common household products such as furniture preparations, insecticides,- and cosmetics. In addition, he conceded that it was “very important” in such cases to test the container which had housed the sample in order to eliminate the possibility of contamination by the container, but that no such testing had been performed in this case.

Lieutenant Larry Black of the Catoosa County Sheriff’s Department was summoned to the scene by Key at approximately 1:15 a.m. to assist in the investigation. Upon his arrival, he interviewed the appellants and, with their permission, searched their car. Inside the trunk, he found a photograph album, several loose photographs, and a laundry basket containing various articles of clothing belonging primarily to Collins’ son. Collins also consented to a search of her handbag, which contained military discharge papers belonging to her recently deceased husband, a letter from the Veterans Administration concerning the procedure for making benefit claims, an insurance policy on the mobile home, title and registration papers for the car, a bill from the lienholder on the mobile home, and one or more birth certificates.

When questioned by Blaick about her whereabouts earlier that night, Collins asserted that her clothes dryer had not been working and that she had left with her son and Shaw at approximately 9:00 p.m. to go to her sister’s home in East Ridge, Tennessee, to dry some clothing for her son to wear to school the next day. She stated that they had run out of gas on the interstate on the way back and that after about 45 minutes, an East Ridge police officer had stopped and agreed to take Shaw to a gas station to get some gas. However, no gas can was available at the station, and the officer had accordingly driven Shaw to a friend’s home to borrow one. He had then driven Shaw back to the gas station to purchase some gas, and thence back to the car, where Collins and her son were still waiting. Collins told Black that after getting their car started, she and Shaw returned to the mobile home to get some money for cigarettes and then drove to a convenience store. Black called the East Ridge Police Department to verify this information and was informed that their police log showed that an officer had stopped to assist the appellants at 10:35 p.m. that evening. Asked about the status of her payments on the mobile home, Collins told Black that she was current except for the last month’s payment, which was late, and this information was also verified.

Collins repeatedly denied any involvement in the fire, insisting that she had nothing to gain from it. Although she had a fire insurance policy on the mobile home, it was shown that all of the policy proceeds had been paid to the lienholder to cover the outstanding balance on the note, which slightly exceeded the cash value of the mobile home. Conceding that this was “not an arson for profit,” Black testified that he made the decision to charge the appellants based on Key’s opinion that the fire had been deliberately set and his own suspicions arising from the items found in their vehicle and in Collins’ handbag, combined with his feeling that Collins “was being untruthful .. . on the time period and the sequence of events and how they occurred.”

The defense called as a witness Mr. Charles Robert Love, an expert in the field of arson investigation who had investigated more than 4,000 fires over the past 18 years and who had been hired by the county to investigate the cause of the fire in the present case. Based on observations made during the course of three separate visits to the scene, he characterized the fire as a slow ignition or “cool fire,” and he expressed surprise that it had not been mpre destructive, stating that fires in mobile homes and automobiles tended to burn some 2,000 degrees hotter than house fires. He testified that the particle board floor inside the mobile home was still intact but that the ceiling and the wood trusses supporting it were destroyed. He asserted that there was no evidence “whatsoever” that an accelerant had been poured on the mattress, stating that the heat from such a source normally remained low, whereas in the present case the greatest damage was to the ceiling, and the window sills were burned at the top but not at the bottom. He testified that the appellants told him they had been experiencing certain electrical problems such as lights dimming and blowing, which he considered to be warning signs of an electrical overload. He further stated that there was a hole melted in the steel cover of the breaker box and that the electrical wires in the ceiling over the bed were very brittle, a condition which, he said, “does not happen in an accelerant fire, [but] only . . . from a long duration overload,” which causes the wires to “bake.” In his opinion, the fire was “of accidental origin of electrical ignition,” resulting from “a massive overloading” of these electrical wires.

Love discounted the results of the crime lab tests which had been performed on the sample of material taken from underneath the bed by investigator Key, stating that “incidental accelerants” could be present naturally in carpet, carpet backing, and particle board, and that pyrolysis, or burning, of the carpet and backing could itself create such hydrocarbons. He asserted that Key’s failure to obtain comparative samples from other areas of the dwelling had consequently deprived these test results of any significance. Love testified that in his experience, it was not unusual for the metal springs of a box-spring mattress to collapse when the cotton covering burned, but that where a large amount of accelerant was used the springs would curl “like a pretzel.” He recalled having seen furniture, kitchen equipment, and other personal items inside the mobile home, including “an ocean of clothing and bedding”; and the next door neighbor similarly recalled having seen furniture and “a lot of clothes all over the yard” the day after the fire. It was shown, however, that the appellants had received no insurance benefits for the loss of their personal property.

Asked about his activities prior to the fire, appellant Shaw testified that he had been cleaning a bedroom that day and had placed some photographs in the trunk of the car to be taken for enlargement. With respect to the documents found in her handbag, appellant Collins testified that she was in the process of submitting a claim for survivor’s benefits to the Veteran’s Administration on behalf of her son, whose father had recently died, and that she had recently received the car title and the insurance policy in the mail. It was shown that a metal box containing what appeared to be other personal papers had been found inside the home after the fire. The appellants described the electrical problems they had assertedly been experiencing prior to the fire and also told of having run out of gas on the interstate and of having been assisted by the police on the night of the fire.

In rebuttal, the state called the East Ridge police officer who had stopped to assist the appellants on the night of the fire. His testimony was for the most part consistent with that of the appellants, except that he asserted that the station log indicating that he had stopped to assist them at 10:35 p.m. could not be correct because his duty shift had not started until 11:00 p.m. The state also called as a rebuttal witness an investigator from the office of the State Fire Marshal who testified that the non-uniform manner in which the bed springs had collapsed was indicative of arson. However, this witness later conceded on cross-examination that the fire could also have been caused by an electrical overload, stating: “[I]t’s very difficult to tell which came first, the fire or the shorting, and particularly in a mobile home where your . . . overhead wiring is against the metal roof, where all the heat is being collected and not being able to dissipate. ...” Furthermore, he acknowledged that he had given the breaker box only a cursory examination and testified that if he had known of the electrical problems which the appellants had reportedly been experiencing, he would have examined the wiring more closely for indications of electrical malfunction.

On the last day of the trial, the burned bed springs were retrieved from the mobile home and brought to the courtroom by the defense, which sought unsuccessfully to introduce them into evidence. During the course of their deliberations, the jury requested permission to examine the springs, but the request was denied by the trial court. At 9:07 p.m., after approximately six hours of deliberation, the jury was given an Allen charge; and at 10:12 p.m., they returned guilty verdicts against the appellants. During the sentencing hearing it was revealed by defense counsel that the state had offered to recommend probation if the appellants pled guilty, but that they had refused the offer. Both were sentenced to serve five years in prison and five on probation.

1. “In an arson case, the corpus delicti consist in the proof of three fundamental facts: First, a burning; second, that a criminal agency was the cause of the burning; and, third, that the defendant was the criminal agency. [Cit.]” Cook v. State, 146 Ga. App. 353, 354 (1) (246 SE2d 347) (1978). See also Parker v. State, 181 Ga. App. 590 (1) (353 SE2d 83) (1987). The evidence that the fire in the present case was of incendiary origin and that the appellants were responsible for it is, of course, entirely circumstantial. “ ‘ “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis of guilt, save that of the guilt of the accused. (OCGA § 24-4-6.) As the state correctly asserts in its brief, the question of whether every other reasonable hypothesis has been excluded is generally a question for the jury. On the other hand, the trial court is authorized, as usual, to take the case from the jury and direct a verdict of acquittal if the state clearly fails to meet its burden. Should a trial court decline to direct the verdict and the jury finds the defendant guilty, we are obliged to review the evidence in a light most favorable to the jury verdict. However, we will not be blinded by the jury verdict when a reasonable hypothesis of innocence appears from the evidence or the lack thereof.” . . . [Cit.]’ Dawson v. State, 183 Ga. App. 94, 96-97 (2) (357 SE2d 891) (1987).” Solomon v. State, 195 Ga. App. 684, 687-688 (1) (394 SE2d 570) (1990).

While the appellants in this case obviously had the opportunity to start the fire, they had no apparent motive for doing so, and “[w]ithout more, the fact that [they] had exclusive access to the property, as many if not most property owners do, raises no inference of incendiarism on [their] part.” Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (1) (314 SE2d 241) (1984). It is apparent that the decision of the investigating officers to charge the appellants with arson was based, in large part, on the perceived absence of clothing and family photographs in the mobile home, combined with the presence of photographs and “important” papers in their car and in Collins’ purse. However, the explanation offered by Collins for the presence of these papers in her purse was entirely reasonable, and there was evidence that the investigators would have found additional clothing and photographs inside the mobile home had they but opened the cabinets and closets. According to the appellants’ expert, whose experience in arson investigations was significantly greater than that of the state’s expert, the burn patterns found inside the mobile home were inconsistent with the state’s theory of how the fire had started. On the other hand, it is evident that the state’s investigators had made only the most cursory investigation of the electrical system, which the appellants’ expert believed to be the source of the fire.

Under these circumstances, we are constrained to conclude that the evidence as a whole, even when construed in favor of the jury’s verdict, fails to exclude every other reasonable hypothesis save that of the appellants’ guilt. “ ‘At best, the evidence in this case raises a suspicion against [the appellants], but we do not think it connects [them] with the crime beyond a reasonable doubt. [Cits.]’ [Cit.]” Solomon, supra at 688. Accord Campbell v. State, 169 Ga. App. 112 (312 SE2d 136) (1983). Compare Davis v. State, 178 Ga. App. 760 (2) (344 SE2d 730) (1986); Lester v. State, 145 Ga. App. 847 (1) (244 SE2d 880) (1978). Accordingly, we hold that the trial court erred in denying their motions for directed verdict.

2. The appellants’ remaining enumerations of error are rendered moot by the foregoing.

Judgments reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., and Cooper, J., concur. McMurray, P. J., Pope, Beasley and Andrews, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because the evidence was sufficient to authorize a rational trier of fact to find defendants guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We must consider the evidence in a light most favorable to the verdict, not as we might see it. Chastain v. State, 260 Ga. 789 (1) (400 SE2d 329) (1991).

In these cases, motions for new trial on the general grounds were heard by the trial judge and unequivocally denied. Thus we have also the opinion of the “thirteenth juror,” who of course was present to evaluate weight of evidence and credibility of witnesses when it came to a consideration of the motion for new trial. “Before the verdict of the jury becomes final it should, where the defendant requires it by a motion for a new trial, receive the approval of the mind and conscience of one more man — the trial judge. Until all 13, the 12 jurors and the judge, agree upon the prisoner’s guilt, his conviction is not legally final. The finding of the jury is not binding on the judge. It may be and for the most part should be highly persuasive upon him; but he is authorized to set it aside, and indeed is under the duty of doing so if he does not approve it as a finding of fact.” Walters v. State, 6 Ga. App. 565, 567 (65 SE 357) (1909). See also 1983 Ga. Const., Art. VI, Sec. I, Par. IV; Seaboard Air-Line R. Co. v. Benton, 43 Ga. App. 495, 505 (19) (159 SE 717) (1931), reversed on other grounds 175 Ga. 491 (165 SE 593) (1932); Housing Auth. of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984).

This authority and duty is not shared with the appellate court. Thus we cannot discount the evidence given by the fire department investigator in favor of the opinion evidence of defendants’ expert witness. Likewise we are powerless to accept rather than reject the explanations given by the defendants, which were in large part uncorroborated. Merritt v. State, 190 Ga. 81, 87 (8 SE2d 386) (1940). See also Thornton v. State, 161 Ga. App. 296 (1) (287 SE2d 749) (1982).

“ ‘ “Three things are necessary to sustain a conviction for arson: that the real property alleged in the indictment was in fact burned, that its cause was a criminal agency, and that the defendant was that criminal agency.” ’ ” Bragg v. State, 175 Ga. App. 640, 641 (1) (334 SE2d 184) (1985). Accord Campbell v. State, 169 Ga. App. 112, 114 (312 SE2d 136) (1983). The controlling statute is OCGA § 16-7-60 (a) (3).

It is not contested that the property burned. The evidence is in conflict as to whether such burning was of incendiary origin, caused by a criminal agency. There was sufficient circumstantial evidence that defendants were the criminal agency. They were at the house trailer a few minutes before the fire was detected by neighbors. They had driven up, stayed a short time with the motor running, and left again just before the neighbor who discovered the fire looked out the window. Then they were seen driving nearby when a neighbor went to the maintenance man’s home to summon the fire department. As the maintenance man was walking towards the burning trailer, the defendants passed him in their car, “driving real slow.” They “pulled in of (sic) the street headed in, and shut the lights down, there was nobody got out of the car that I could see, and a few minutes when the fire department got there, the car left.” The street on which he saw it stopped was a dead end street. He told the investigating officer that when he saw the car as it drove past him, he wondered why they were leaving, going in the opposite direction, when he was going to the fire at their trailer.

Defendants did not reappear at the scene until about 1:15 a.m. the next morning. They had with them their young son, clothing, valuable personal documents, and a number of family photographs as well as a photo album. The relative whom the defendants allegedly visited did not testify. Moreover, the evidence as to timing was in conflict, and there was evidence to refute defendants’ evidence that they were in East Ridge, Tennessee, at the time they contended. The officer who assisted them on the highway testified that defendant Shaw told him they were going to the Golden Gallon to get bread and cigarettes, whereas Collins told the investigating officer that the officer assisted them when they were returning from her relative’s home.

The maintenance man, who also collected rent, testified that defendants were late in the rent payment. He had told defendant Shaw, several hours before the fire, that they were being given notice that they would be evicted if they did not pay. They apparently did not have the money, inasmuch as the witness testified that Shaw told him that he would “go to his mother’s and see what I can do, . . .”

As to motive, not only were they about to be evicted from the trailer park because of financial difficulties, but also it was shown that insurance, the papers for which defendant Collins had in her purse at the time of the fire, paid off the note which they owed on the trailer. See Kennedy v. State, 172 Ga. App. 336, 340 (4) (323 SE2d 169) (1984).

Decided December 4, 1991

Reconsideration dismissed December 19, 1991.

Ronald C. Goulart, for appellant (case no. A91A0957).

Bruce & Hentz, W. Davis Hentz, for appellant (case no. A91A0990).

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

As repeated in Burns v. State, 166 Ga. App. 766, 768 (3) (305 SE2d 398) (1983), also an arson case based on circumstantial evidence, we must “construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. . . the jury is the final arbiter [of evidentiary conflict] . . . [A]fter the verdict is approved by the trial court, the evidence must be construed so as to uphold the verdict even where there are discrepancies. ... An appellate court has no yardstick to determine what in a given case is a reasonable hypothesis except to rely on the informed and weigh[t]ed conclusions of twelve intelligent jurors . . . [who] heard the witness, and are better qualified to judge the reasonableness of a hypothesis raised by evidence (or its lack) than is this court which is restricted to a cold record and to issues of law.”

I am authorized to state that Judge Pope and Judge Andrews join in this dissent.


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Pope, Judge,

license: Public Domain

text:
    A91A0959.
    DEPARTMENT OF TRANSPORTATION v. CALFEE COMPANY OF DALTON, INC.
    (414 SE2d 268)
   Birdsong, Presiding Judge.

In May 1989, appellant/condemnor Georgia Department of Transportation (DOT) condemned .037 acres of land located in Catoosa County near Interstate 75 on Cloud Springs Road for the purpose of restructuring a problem interchange. At the time of condemnation, a convenience store was located on the property. The real estate was owned by A. Bernice Calfee (wife) (a/k/a Bernice Calfee) and Priscilla Calfee Mowles (daughter of George E. Calfee from a previous marriage), as Trustees under a trust established by George E. Calfee (husband) for the benefit of Tracie Lynn Calfee (George’s and Bernice’s minor child), and was leased by appellee/condemnee Calfee Company of Dalton d/b/a Favorite Markets in October 1981. The property lease lists the lessor as B & T Properties, and the lease was signed in behalf of B & T by Bernice Calfee and in behalf of Calfee Company by George E. Calfee. B & T Properties, apparently was intended to be established as some type of trust estate for Bernice Calfee and Tracie Calfee. It was testified that B & T was formed as a partnership composed of A. Bernice Calfee and Tracie Lynn Calfee, with Priscilla Calfee Mowles acting as Trustee of Tracie; appellee conducted business with B & T properties only through Bernice Calfee and with no one else.

Favorite Markets built and operated a convenience store on the leased land; and billed Bernice and Tracie for the building shell. In December of 1981, Favorite Markets was sold by “sellers,” George Calfee, Bernice Calfee, and Priscilla Calfee Mowles, as Trustee of the trust established for Tracie Calfee, to Seaboard Operating, which was an investment company. The purchase and sale agreement expressly states, without contradiction of record, that the sellers “are the holders of all the issued and outstanding common capital stock of Calfee Company of Dalton, Inc.” Before this sale was consummated, it was insisted that a fixed amount of rental for the ten-year lease renewal be established and this was done by a lease agreement schedule incorporated into the purchase and sale agreement.

Prior to trial, the property owners accepted the amount offered to them by DOT as the value of an unencumbered fee for the subject property, leaving the leasehold interest in dispute. Compare Simmerman v. Department of Transp., 167 Ga. App. 383, 384 (307 SE2d 4). Immediately preceding trial, DOT filed a motion in limine, which inter alia sought to prohibit the tenant from presenting any evidence of the value of its leasehold interest. At the close of the evidence, DOT moved for a directed verdict on the issues of the leasehold interest and business losses. The trial court denied that motion. The jury returned a verdict in favor of the tenant, awarding it $100,000 for its leasehold interest and $6,275 for moving expenses. The jury also found that the business was not unique resulting in no entitlement for award based on business losses. DOT moved for a new trial or alternatively for judgment notwithstanding the verdict. The trial court also denied that motion. DOT appeals from the denial of this motion and from the verdict of the jury. DOT does not except to the award of moving expenses. Held:

1. DOT contends that the effect of paragraph 18 of the applicable lease was to assign to the landlord all claims which the tenant had for the value of the leasehold. We disagree.

The lease provision merely provides: “Condemnation. In the event any part or all of the premises shall be taken for any public or quasi-public use under any statute or by right of eminent domain or private purchase in lieu thereof by a public body vested with power of eminent domain then, when possession shall have been taken thereunder of the premises or any part thereof, this lease shall terminate and all rights of the tenant hereunder shall immediately cease and terminate, and the accrued rent shall be paid up to the time of such termination and the tenant shall have no claim against the landlord for the value of the unexpired term hereof and the tenant shall not be entitled to any part of the condemnation award or purchase price.” (Emphasis supplied.)

The language used in the lease provision is not ambiguous. The trial court has the responsibility to interpret lease provisions, such as this, as “ ‘(t)he construction of the provisions of (a) lease ... is generally (a question) for the court to determine as a matter of law.’ [Cits.] As a general rule the provisions of a contract will be construed against the draftsman, and those of a lease will be construed against the lessor. [Cits.] Where the language of a contract is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible.” Stern’s Gallery v. Corporate Property &c., 176 Ga. App. 586, 593 (4) (337 SE2d 29). The interpretation of this lease provision should be governed by the intent of the parties as expressed in the entire lease contract. See Peachtree &c. Investors v. Reed Drug Co., 251 Ga. 692 (1) (308 SE2d 825). And, where as here, the terms of the written lease are clear and unambiguous, the court will look to the lease alone to find the intention of the parties. Health Svc. Centers v. Boddy, 257 Ga. 378, 380 (359 SE2d 659). Not to be neglected, however, is the rule that provisions in leases which result in a forfeiture of a tenant’s possessory rights will be strictly construed against the lessor. Peachtree &c. Investors, supra.

Applying these well-established principles of law to the lease provision in its entirety, it appears that the provision in question provides, inter alia, for the termination of the lessee’s possessory rights in the event of a condemnation of the premises, and therefore should be strictly construed. Additionally, the provision provides that the appellee lessee shall have no claim against the landlord for the unexpired lease term and shall not be entitled to any part of the condemnation award or purchase price. Strictly construing this provision, we find that on its face it neither waives any and all claims arising from the lease termination nor does it assign any and all condemnation awards or claims, whatsoever, to the landlord. Rather, only certain express and limited claims against the landlord are waived, and the only assignment if any, which, and then only by means of liberal rather than strict interpretation, can be said to have been created is an assignment by the lessee to the landlord of any claim or entitlement to the condemnation award or purchase price which the landlord received for the taking of their property. The intent of the parties remains clear that the lessee at most was renouncing the right to assert any right of entitlement to any condemnation award received by the landlord for the latter’s separate condemnation claim for the taking of their property.

The dissent’s reliance on Henson v. Dept. of Transp., 160 Ga. App. 521 (287 SE2d 299), is misplaced. In Simmerman v. Dept. of Transp., supra at 385 (1), we distinguished Henson by concluding that “in Henson, the lessee unequivocally assigned any condemnation award or claim ‘whatsoever’ except for moving expenses. . . .’’In the case at bar, however, the limiting language of the lease provision establishes on its face that the lessee did not unequivocally assign any condemnation award or claim “whatsoever” to the landlords. Therefore, Henson is neither controlling nor persuasive.

Moreover, assuming arguendo this leasing provision had been ambiguous, we would then be required to construe the provision against the lessor (Stern’s Gallery, supra); and, where a leasing provision is capable of being construed in two ways, it will be construed against a lessor preparer and in favor of a lessee non-preparer (Hertz &c. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 SE2d 692)). Construing the lease provision against the lessor, the same interpretation as reached above would apply.

2. The option to renew contained in the lease pertinently provided that: “Tenant shall . . . have the option to renew this lease for an additional ten (10) year period by giving landlord notice of its intent to renew in writing not later than three (3) months prior to the expiration of the original term of this lease. Tenant shall pay to landlord as rental during the renewal period upon terms that are mutually agreeable.”

DOT asserts that the attempted extension of the lease was invalid due to lack of certainty of its terms. Pause v. City of Atlanta, 98 Ga. 92 (6) (26 SE 489), overruled in part on other grounds, Bowers v. Fulton County, 221 Ga. 731, 738 (146 SE2d 884); Cann v. MARTA, 196 Ga. App. 495 (1) (396 SE2d 515); but compare Thornton v. Ellis, 184 Ga. App. 884, 885 (1) (363 SE2d 584).

The option to renew on its face appears to be uncertain within the meaning of Pause and Cann. Accordingly, unless the option to renew was modified effectively so as to remove the uncertainty or a new enforceable lease entered before the expiration of the original term of the lease in question, the purported lease extension would be unenforceable; and, insofar as the purported extension of the lease is concerned, condemnees would have no legally compensable interest therein upon the condemnation of the property — condemnor would not be obliged to compensate condemnees for property in which they had no interest (Cann, supra at 496).

Appellees contend that certain subsequent agreements were entered establishing a ten percent increase in the rental rate either modifying the lease and making it enforceable or constituting a new leasing agreement. DOT contends these agreements were unenforceable as they failed to comply with the statute of frauds. As the original lease was for a term in excess of one year and therefore was required to be in writing (OCGA § 13-5-30), any modification thereto likewise had to be in writing. Littman v. Suburban Opticians, 244 Ga. 702, 705 (261 SE2d 607).

The purchase and sale agreement, pertaining to the sale of Calfee Company of Dalton, was executed in December of 1981 between the Calfee family and Seaboard, and in addition to being signed on behalf of Seaboard by its president, was signed by George, Bernice, and Priscilla Calfee Mowles, as trustee. (The record does not reflect that any member of the Calfee family has ever sought to challenge or repudiate the terms of this agreement.) Incorporated by reference into this agreement was a written lease agreement schedule of Calfee Company of Dalton. This schedule lists lease maturity date as July 1, 1991, the annual base rental of said property at $24,000, and provides, inter alia, that the lease of the property is renewed under the terms of “1-10 yr. @10% rental increase.” The record also contains a written letter, dated March 22, 1989, addressed to B & T Properties, Attention: Bernice Calfee, and signed by the attorney representing Favorite Markets. This letter of memorandum refers to the subject lease agreement for the store in question, and identifies on its face the parties of Favorite Markets and B & T. The letter further purports to confirm the agreement entered by Favorite Markets and Bernice Calfee — the latter apparently acting on behalf of B & T as was consistent with her signing of the original lease. The letter of memorandum then expressly memorializes the renewal period of the lease as ten years and the rate of rental increase as a ten percent increase over the present lease arrangement commencing in July 1991 — the renewal rental fee being expressly stated as “$2,200 per month for the next ten (10) years.” The letter of memorandum was on law firm letterhead and signed by the attorney for Favorite Markets. The vice president of finance of Favorite Markets testified that this letter was prepared by the attorney at her request on behalf of Favorite Markets. We note that appellant has not enumerated as error the ruling of the trial court overruling appellant’s objection to the admission of this letter. Accordingly, this issue will not be addressed on appeal. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272).

OCGA § 13-5-30 pertinently provides: “To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him: ... (5) Any agreement that is not to be performed within one year from the making thereof.” (Emphasis supplied.) Thus, any modification of the original written lease or new lease contract for a new ten-year term would have to be in writing.

In Georgia, compliance with the statute of frauds may be established by either one or a series of related documents. See generally Lipsey Motors v. Karp Motors, 194 Ga. App. 15 (1) (389 SE2d 537); Houston v. Jefferson Standard &c. Ins. Co., 119 Ga. App. 729, 732 (a) (168 SE2d 843). Where the memorandum of the bargain is found, as here, on separate pieces of paper, and where these pieces of paper contain the whole bargain, they form together such memorandum as will satisfy the statute of frauds, provided the contents of the signed paper make such reference to the other paper or papers so as to enable the court to construe the whole of them together as containing all the terms of the bargain. Houston, supra at 732 (a). In this case, the documents in question sufficiently made reference to the basic lease agreement so as to enable the court to ascertain the intent of the parties thereto and to construe them together as one complete whole. The writings when construed together adequately disclosed the contract subject matter, the parties thereto (both promisee and promisor), and all terms and undertaking thereof. See generally Cashin v. Markwalter, 208 Ga. 444, 446 (3) (67 SE2d 226); F & W Grand &c. Stores v. Eiseman, 160 Ga. 321, 325 (1) (127 SE 872). When the documents are construed together, it is apparent that the parties intended and effected a written modification of the original lease, based on new consideration (lease renewal for ten years at a specific and increased rental rate), so as to render the renewal provision of the lease certain and enforceable between the parties to the lease. Compare Lipsey, supra at 16 (1).

Appellant asserts that “Priscilla Calfee Mowles’ signature did not appear on the Buy-Sell Agreement”; but cites us to no page in the record to support that contention. Our examination of the record reveals that, in addition to sellers George E. Calfee and A. Bernice Calfee, Priscilla Calfee Mowles also in fact signed, as Trustee, the master purchase and sales agreement with Seaboard; and this signed document intentionally and effectively incorporated by reference the lease agreement schedule of Calfee Company of Dalton. Appellant having failed to cite us to a specific portion of the record containing contrary facts or facts establishing that Priscilla Calfee Mowles ever owned all or part of the subject property in her individual capacity, we find its implied assertion as to this matter without merit. It is not the function of an appellate court to cull the record on behalf of a party in search of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251), citing Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709).

The record reflects that at the instant when this document was executed all of the outstanding common stock in Calfee Company was held by the sellers. Further, at this same point in time, legal title to the property in question was vested in A. Bernice Calfee and Priscilla Calfee Mowles, as Trustee; and, the record reflects this ownership of the property also was the subject of a stipulation in the pretrial order. DOT has not contested on appeal the issue of legal ownership of the property, and in fact conceded in its brief that “at the time of condemnation, the property was owned by A. Bernice Calfee and Priscilla Calfee Mowles, as Trustees under a Trust established by George E. Calfee for the benefit of Tracie Lynn Calfee, a minor child.”

Also, appellant has not affirmatively argued in its brief or cited authority to establish that Priscilla Calfee Mowles, as Trustee, lacked authority to execute any of the documents to which her name is affixed or that she, in any manner, acted without the scope of her authority as Trustee of the trust created in behalf of Tracie Lynn Calfee. (We note that the trust document, contained in the record was executed in July of 1980, and vested, inter alia, the Trustee with all the powers incorporated by reference from Ga. Code Ann. § 108-1204 (1)-(31) (OCGA § 53-15-3, repealed effective July 1, 1991). Ga. Code Ann. § 108-1204 (8) (e) & (k) vested in the Trustee, among the powers to manage property, the broad power “[t]o lease the property or part thereof . . .” and “[t]o modify, renew, or extend leases,” respectively.) Accordingly, assuming arguendo any genuine issues had existed as to these matters, such issues are deemed to be abandoned. Likewise abandoned is any issue whether Bernice Calfee lacked authority to enter lease agreements, and lease modifications on behalf of B & T Properties; whether Bernice Calfee otherwise acted beyond the scope of her authority therewith in entering the lease in behalf of B & T Properties or in negotiating the subsequent lease renewal with the representative of Favorite Markets; and, whether the authority of an agent to make a memorandum required by the statute of frauds must be in writing or can be conferred by parol. Court of Appeals Rule 15 (c) (2). Regarding the validity of the letter signed by counsel as a memorandum executed pursuant to the statute of frauds, the issue as raised and affirmatively argued in appellant’s brief is that “a letter written by counsel for Favorite Markets also was not signed by Bernice Calfee or Priscilla Calfee Mowles.” (Emphasis supplied.) This argument likewise is inadequate to preserve on appeal the distinct and separate issues as to the type of authority required by an attorney to sign, as a “person lawfully authorized” to do so under OCGA § 13-5-30, a memorandum in behalf of his client that would comply with the statute of frauds, and whether Mr. Tuggle in fact had obtained such authority.

In view of this posture of the appeal, we find appellant’s second and third enumeration of error, as crafted and argued, to be without merit. The burden is on the party appealing to craft his enumerations of error, appellate argument and citations of authority in such a manner as to preserve for appeal all pertinent appellate issues. When this is not done, an appellate court should -not intercede in favor of a particular party litigant.

Additionally, assuming arguendo, the record had affirmatively established that any of the parties signing as agents, trustees, or partners lacked the authority to enter these particular memorandums for purposes of the statute of frauds, we are satisfied that based on the familial and business relationships existing between the Calfees, the inextricable linkage existing between these parties and the various legal entities which they owned, controlled, or sold, the actions of attorney Tuggle taken under at least the oral direction of the vice president of finance for Favorite Markets, and the reliance that the various parties placed on the apparent authority of those with whom they were dealing to execute the documents in question, that both B & T and Favorite Markets, the parties to this lease and its subsequent renewal, have by their own conduct waived as a matter of law their right to contest the enforceability of the lease renewal for the ten-year period at a rental increase of ten percent effective July 1, 1991. See generally Mauldin v. Weinstock, 201 Ga. App. 514 (4) (411 SE2d 370) (1991). As neither party to the lease can assert the lack of enforceability of the lease renewal against the other, as to them it would be an enforceable lease renewal. Accordingly, DOT cannot assert that the lease provision is unenforceable within the meaning of Pause and Cann, supra, when the parties thereto were legally obliged to comply with the terms of the renewal through operation of the doctrine of waiver.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Beasley, J., and Judge Arnold Shulman concur. Carley, P. J., Pope, Cooper and Andrews, JJ., dissent.

Pope, Judge,

dissenting.

I cannot agree with the majority’s conclusion that in paragraph 18 of the applicable lease the lessee did not assign its right to condemnation proceeds for the value of its leasehold interest to the property owners. That paragraph provides: “18. Condemnation. In the event any part or all of the Premises shall be taken for any public or quasi-public use under any statute or by right of eminent domain or private purchase in lieu thereof by a public body vested with power of eminent domain then, when possession shall have been taken thereunder of the premises or any part thereof, this Lease shall terminate and all rights of the Tenant hereunder shall immediately cease and terminate, and the accrued rent shall be paid up to the time of such termination and the Tenant shall have no claim against the Landlord for the value of the unexpired term thereof and the Tenant shall not be entitled to any part of the condemnation award or purchase price.” (Emphasis supplied.)

Decided November 27, 1991

Reconsideration denied December 19, 1991

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Roland F. Matson, Senior Assistant Attorneys General, Kinney, Kemp, Pickell, Sponcler & Joiner, Henry C. Tharpe, Jr., for appellant.

The plain language of that paragraph assigns to the landlord any claim the tenant might have in a condemnation action, including a claim against the condemnor for the value of its leasehold interest. Under the terms of paragraph 18, the property owners were entitled to the value of an unencumbered fee in the property condemned, including the value of the tenant’s leasehold interest. See Henson v. Dept. of Transp., 160 Ga. App. 521 (1) (287 SE2d 299) (1981); cf. Simmerman v. Dept. of Transp., 167 Ga. App. 383 (1) (307 SE2d 4) (1983) (tenant reserved the right to recover from the lessor any compensation from the condemnation proceedings which the tenant was entitled to by law).

Relying on this agreement, which was freely entered into by Calfee Company with the property owners and that assigns to the property owners any compensation received for property interests in the subject property in a condemnation action, DOT offered to the property owners the value of an unencumbered fee. The property owners, who apparently believe that they are entitled to the value of an unencumbered fee under the terms of the lease, have withdrawn those funds. Now the tenant, who clearly relinquished its right to seek condemnation proceeds, seeks additional funds from DOT.

In light of the majority decision, condemnors will no longer be able to rely on the clear contract provisions concerning assignment of rights of condemnation proceeds, but will be forced to have the property appraised as both an unencumbered fee and an encumbered fee with a leasehold interest and seek court direction concerning which party is entitled to compensation.

I am authorized to state that Presiding Judge Carley, Judge Cooper and Judge Andrews join in this dissent.

McCamy, Phillips, Tuggle & Fordham, Joseph T. Tuggle, Jr., Gearhiser, Peters & Horton, Robert L. Lockaby, Jr., for appellee.

       The majority’s conclusion the pertinent contract language must be construed against the lessor is erroneous under the facts of this case. The lessor is not a party to this dispute. Furthermore, the pertinent contract language does not provide for termination of the lessee’s possessory interest, it only discusses who should receive any condemnation proceeds.

       This case presents the same factual situation that caused DOT to seek to intervene in the dispute between the lessor and lessee concerning which party was entitled to the value of the leasehold interest in Simmerman v. Dept. of Transp., 167 Ga. App. 383, 384, supra.


author: Cooper, Judge.

text:
    A91A0996.
    BENNETT v. D. L. CLABORN BUICK, INC. et al.
    (414 SE2d 12)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of summary judgment to one of the appellees, General Motors Acceptance Corporation (“GMAC”).

In 1987, appellant bought a 1987 Buick from D. L. Claborn Buick, Inc. (“Claborn”) which was financed by GMAC pursuant to a Retail Installment Sale Contract (the “Contract”). Appellant testified that he originally went to Claborn for repair work on his 1983 Buick. While there, a salesman asked appellant if he would like a new car, since he was having trouble with his car. Appellant replied that “everybody would like a new car.” The salesman then pointed to the 1987 Buick, and after appellant drove the car, he expressed an interest in purchasing it. The salesman called appellant the next day and told him that the sale of the car to appellant could be arranged. Appellant signed all the transfer and financing documents for the car, and although he was given an opportunity to review all the documents, he could not do so because he cannot read except in a very limited capacity. Upon execution, the contract was assigned, for value to GMAC. The documentation signed by appellant denominated the vehicle he was purchasing as a “new” car, yet the same documentation, including an Odometer Mileage Statement, also disclosed that the car had accumulated mileage of 5,268 miles. Appellant testified that he did not look at the odometer prior to the purchase. In accordance with the car’s classification as “new” and the salesmen’s representations to appellant that the car was new, appellant was given a new car warranty on the car. In fact, however, the car purchased by appellant had been used as a “demonstrator” by an employee of Claborn who had driven the car for personal reasons and to commute to work. The car had never been titled to another consumer nor had it been the subject of a retail sale to another consumer. Soon after the purchase, appellant had problems with the car which were repaired by Claborn; however appellant contended that even after the repairs, the car did not run as it should. Appellant contacted Claborn about the car on one other instance, but since appellant was not satisfied with the service or the treatment he received at Claborn, he consulted his attorney and revoked acceptance of the car by letter to Claborn. Appellant sued Claborn and GMAC for fraud and for engaging in deceptive and unfair trade practices. Specifically, appellant contended that appellees misrepresented the condition of the car as new with the intention of deceiving appellant who relied on those misrepresentations. GMAC moved for summary judgment, contending that no misrepresentations were made to appellant, and even if they were made by Claborn, GMAC would have no liability thereon because GMAC did not participate in the sales negotiations for the car. The trial court granted summary judgment to GMAC.

1. In his first enumeration of error, appellant contends that GMAC is subject to all of appellant’s claims against Claborn even though appellant had no direct contact with GMAC or any representative thereof. We agree with appellant because the Contract contains the following prominent and unambiguous language: “ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.” This language follows the mandates of state and federal law. See OCGA § 10-1-394; Rules & Regulations of the State of Georgia § 122-5-.01; 16 CFR § 433.2 (1991). Therefore, we conclude that any claim appellant may have against Claborn can properly be asserted against GMAC.

2. The gravamen of appellant’s complaint and the basis for his appeal is that Claborn and GMAC fraudulently and deceptively misrepresented the condition of the car to him as new when in fact it was not new but had been driven for 5,268 miles. Appellant contends that this misrepresentation of a material fact caused damage to appellant in that he intended to buy, and thought he was buying, a new car based on the verbal representations made to him, yet in fact he received a used car. This court has held that “[i]t may be considered an intrinsic quality of a car sold as new that it has been neither damaged nor used to any significant extent. [Cits.]” (Emphasis supplied.) Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497) (1982). See also Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754 (1) (347 SE2d 639) (1986). Although Claborn and its agents knew that the car had been used as a demonstrator and had significant mileage on it, they represented the car to appellant as “new.” “The question of whether the car delivered was new is generally one of fact for the jury. [Cits.]” Thompson v. Huckabee Auto Co., 190 Ga. App. 540, 542 (1) (379 SE2d 411) (1989). Appellee has urged that appellant failed to exercise diligence to observe the odometer reading in the car. “ ‘ “While a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations. Ordinarily the question whether the complaining party could ascertain the falsity of the representations by proper diligence is for determination by the jury. (Cits.)” [Cits.]’ ” Horne, supra at 330. See Paces Ferry Dodge v. Thomas, 174 Ga. App. 642 (2) (331 SE2d 4) (1985). We cannot conclude as a matter of law that, in the circumstances presented by this case, appellant’s failure to observe the odometer reading amounted to a failure of due diligence. See Horne, supra at 330. This is a question for the jury. Further, appellee’s argument that appellant has suffered no damages is without merit because, in a case of fraud, “the measure of damages ... is the difference between the actual value of the property at the time of purchase and what the value would have been if the property had been as represented. [Cits.]” Horne, supra at 330. We therefore conclude that the trial court erred in granting summary judgment to appellee.

Appellant argues in two enumerations that Georgia is bound by the federal definition of a “used” car contained in the federal regulations passed pursuant to 15 USCA § 2309, found at 16 CFR § 455.1 (1991). Appellant contends that since “used car” under this definition would include the demonstrator that appellant purchased, Claborn misrepresented a “used” car as a “new” car and appellees are liable to appellant for fraud, misrepresentation and deceptive trade practices under state and federal law. The analysis of the regulations states the following in a footnote: “Our decision to include demonstrators in the definition of ‘used vehicle’ does not in any way preempt state titling laws which identify demonstrator models as ‘new’ cars. The Rule adopted here does not interfere with the classification of demonstrators for purposes of title; the Rule only requires that, if driven more than the limited number of miles needed to move or road test a vehicle, a car, when offered for sale, must display the Buyers Guide so as to provide consumers with warranty disclosures. . . .” 49 Fed. Reg. 45707, n. 234 (1984). Georgia law has historically required a car to be titled as a used car only if it had previously been the subject of a retail sale to a consumer. Toirkens v. Willett Toyota, 192 Ga. App. 109 (1) (384 SE2d 218) (1989); Henderson v. Martin Burks Chevrolet, 183 Ga. App. 868 (1) (360 SE2d 430) (1987). Under state law, the car sold to appellant was allowed to be titled as a new car because it had never been previously sold to a consumer. See Toirkens, supra at 109-110; Henderson, supra at 869-870. The trial court relied on Toirkens, supra, in granting summary judgment to GMAC. However, the issue considered in Toirkens was whether the car was misrepresented as new when it had been previously titled to a relative of the owner of the car dealership for the convenience of the dealership but had never been the subject of a retail sale. The court held that since the car had not been the subject of a retail sale, it fell within the definitions of a new car under the statutes regulating used car dealers and identification of motor vehicles and parts. The court considered the evidence that the titleholder never operated the car and determined that nondisclosure of the status of title did not create an issue of fraud. In the instant case, there is no contention that appellees misrepresented the status of title of appellant’s car; however appellant contends that appellees misrepresented the actual condition of the car. Statutorily, the car was allowed to be titled as a “new” car. See Henderson, supra at 869-870. However, whether appellees misrepresented the “intrinsic quality” of the car to appellant is a question for the jury. See Horne, supra at 329.

Decided November 5, 1991

Reconsideration denied December 19, 1991.

Phillip J. Walsh, for appellant.

Levine & D’Alessio, Morton P. Levine, McCullough & Payne, John G. McCullough, Gregson T. Haan, for appellees.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


author: Andrews, Judge. Sognier, Chief Judge,

text:
    A91A1022.
    HURSTON v. THE STATE.
    (414 SE2d 303)
   Andrews, Judge.

Iliya Hurston was tried jointly with Demetrious Reese and convicted of theft by receiving stolen property. Hurston appeals from the denial of his motion for new trial.

1. Hurston first contends the evidence was insufficient to support the verdict. The evidence presented at trial established without dispute that a silver 1986 Pontiac Fiero belonging to Stella Burns was stolen from a parking lot at Underground Atlanta on June 11, 1989, between 10:35 and 11:05 p.m. Two Rockdale County sheriff’s deputies observed a silver Fiero at a convenience store later that night at approximately 1:20 a.m. Hurston’s co-defendant, Reese, was driving the car and appellant was slumped in the passenger seat. The deputies became suspicious because of the late hour, the cautious manner in which Reese was walking after exiting the car, and the fact that Hurston appeared to be hiding, and decided to follow the Fiero. When Reese drove away from the store with the deputies following in their marked car, he crossed the centerline of the highway. The deputies, who by this time had ascertained from computer records that the car was stolen, turned on the blue lights and siren of their automobile. Reese refused to stop, drove away from the deputies at a speed in excess of 100 miles per hour and attempted at one point to run the police vehicle into a wall. The deputies pursued the Fiero until Reese lost control and wrecked in a field. Reese ran from the scene and was pursued and apprehended by one deputy. Another officer apprehended Hurston, who had gotten out of the car immediately after the accident and appeared to be ready to run.

At trial, Hurston testified that he spent the day at his former girl friend’s home watching television with her and a friend of hers. Later in the day, the friend called her boyfriend, Reese, whom Hurston testified he had never met, to join them. Hurston testified Reese came to the house and stayed for awhile, left for several hours, and then returned and invited Hurston to ride in the Fiero with him to a relative’s home. Hurston recalled that he was suspicious about the ownership of the vehicle because Reese, a teenager, seemed too young to own such a nice car, but that in response to his inquiry Reese stated that the car belonged to his cousin. Hurston testified that after they left the convenience store and Reese saw the deputies in pursuit, he began to speed, and admitted to Hurston for the first time that the car was stolen. Hurston’s trial testimony differed somewhat from an earlier statement he gave regarding the evening’s events.

Burns, the vehicle’s owner, testified that the vehicle was driven without keys and that the steering wheel had been damaged, which was consistent with it having been stolen. She testified that various papers, including the car registration and business cards bearing the owner’s name and address, had been removed from the glove compartment and were on the floor of the car; that grass, mud, food, drink and cigarettes were scattered in the car; and that a picture of her daughter was displayed on a visor. Hurston denied noticing the personal items or the damaged steering wheel.

OCGA § 16-8-7 (a) provides: “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control. . . .”

“Unexplained possession of recently stolen property, alone, is not sufficient to support a conviction for receiving stolen property but guilt may be inferred from possession in conjunction with other evidence of knowledge. Guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man.” (Punctuation and citations omitted.) Abner v. State, 196 Ga. App. 752, 753 (397 SE2d 36) (1990). “Possession, as we know it, is the right to exercise power over a corporeal thing. . . .” Preston v. State, 183 Ga. App. 20, 21 (357 SE2d 825) (1987). Furthermore, “ ‘[i]f there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.’ Castillo v. State, 166 Ga. App. 817, 819 (305 SE2d 629) (1983).” Abner, supra at 753.

Construed most favorably for the State, there was sufficient evidence for a jury to find Hurston guilty of receiving stolen property. First, there was sufficient evidence for a jury to find that Hurston knew, or should have known, that the vehicle was stolen. At trial, Hurston admitted that he doubted that the vehicle belonged to Reese. There was evidence from which the jury could reasonably have concluded that Hurston was aware during the two hours that he spent in the small vehicle that it was stolen, in that the vehicle was being driven without keys, the steering wheel was damaged and the interior was disorderly, which was inconsistent both with Reese’s ownership of the vehicle and with his explanation that he borrowed it from a relative. Hurston’s suspicious behavior at the convenience store and his attempt to flee also indicated that he knew the vehicle was stolen.

There was also evidence from which the jury could conclude that Hurston possessed, controlled or retained the vehicle. Although Hurston was only a passenger in the vehicle, the inquiry does not end here, for in some circumstances, a passenger may possess, control or retain a vehicle for purposes of OCGA § 16-8-7. See, e.g., Fair v. State, 198 Ga. App. 437 (4) (401 SE2d 626) (1991); Tolbert v. State, 194 Ga. App. 319 (390 SE2d 301) (1990). Here, there was sufficient evidence that Hurston exerted the requisite control over the vehicle in that Reese left Hurston alone in the car with the vehicle running when he went into the convenience store.

“ ‘Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law,’ Harris [v. State, 236 Ga. 242, 245 (223 SE2d 643) (1976)].” Torgersen v. State, 200 Ga. App. 837, 839 (410 SE2d 40) (1991).

2. In his second enumeration of error, Hurston claims that the trial court erred in its instruction to the jury on explained and unexplained possession of stolen property. Hurston claims that the paragraphs of the charge were inconsistent with each other and that the charge was confusing in that it referred to a single “defendant” when two men were being tried. We find no merit to this enumeration. The jury was charged separately regarding each defendant and the crime of theft by receiving stolen property clearly and correctly outlined the elements of the crime. Further, the portion of the charge to which Hurston objects is a correct statement of the law. See generally Brown v. State, 177 Ga. App. 778 (341 SE2d 226) (1986).

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. The charge given here, taken as a whole, clearly instructed the jury of the factors it was to consider in its deliberations, including the issue raised by appellant, and consequently we find no error.” (Citations and punctuation omitted.) Tate v. State, 198 Ga. App. 276, 279 (401 SE2d 549) (1991).

3. In his third enumeration of error, Hurston claims that the trial court erred in instructing the jury on impeachment immediately after giving the charge concerning the defendant’s testimony in that the order of the charges signaled the jury that the defendant’s testimony was the testimony most likely to be impeached. First, Hurston failed to raise this argument at trial. Nevertheless, after reviewing the record, we find no merit in this enumeration.

Judgment affirmed.

Birdsong, P. J., Carley, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. Beasley, J., concurs in judgment only. Sognier, C. J., and McMurray, P. J., dissent.

Sognier, Chief Judge,

dissenting.

I respectfully dissent, for I find the evidence was insufficient to establish the essential element of “receiving” beyond a reasonable doubt.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen. . . . ‘Receiving’ means acquiring possession or control... of the property.” OCGA § 16-8-7 (a). Here, the record is devoid of evidence that appellant exercised or intended to exercise any dominion or control over the car or that he ever acquired possession of it. See Patterson v. State, 159 Ga. App. 290, 294 (283 SE2d 294) (1981); accord Owens v. State, 192 Ga. App. 335, 340 (1) (b) (384 SE2d 920) (1989). The “mere presence” of a defendant in the vicinity of stolen goods “furnishes only a bare suspicion” of guilt, and thus is insufficient to establish possession of stolen property. Williamson v. State, 134 Ga. App. 329, 331-332 (214 SE2d 415) (1975). Evidence that a defendant was present as a passenger in a stolen automobile, without more, is insufficient to establish possession or control. Williamson, supra; see Davis v. State, 154 Ga. App. 599 (269 SE2d 494) (1980); accord Abner v. State, 196 Ga. App. 752-753 (397 SE2d 36) (1990) (conviction for theft by receiving automobile upheld where defendant was in actual possession of car). I disagree with the majority that the circumstantial evidence that appellant, the automobile passenger, was observed to be “slumped” in the seat while Reese parked the car and entered a store was sufficient to constitute the type of “other incriminating circumstances” that would authorize a rejection of the general principle that “the driver of the [stolen] automobile [is] held prima facie in exclusive possession thereof.” Cheatham v. State, 57 Ga. App. 858, 860 (197 SE 70) (1938). The cases cited by the majority on this point, Fair v. State, 198 Ga. App. 437 (4) (401 SE2d 626) (1991) and Tolbert v. State, 194 Ga. App. 319 (390 SE2d 301) (1990), are distinguishable because in each of those cases there was incriminating evidence in addition to the fact that the defendants were passengers in recently stolen vehicles.

Decided December 4, 1991

Reconsideration denied December 19, 1991.

Ronald C. Conner, for appellant.

Robert F. Mumford, District Attorney, S. Dabney Yarbrough, Assistant District Attorney, for appellee.

Moreover, the evidence also did not meet the standard required for a conviction based on circumstantial evidence — i.e., that the evidence exclude every reasonable hypothesis except the guilt of the accused. See Patterson, supra at 294. The only evidence offered by the State to connect appellant to the stolen car was that he was a passenger in the car several hours after it was stolen. In response, appellant offered his explanation of his activities. “While neither the jury nor this court is required to accept these explanations, in the absence of any other valid explanation, we cannot ignore the only explanation offered. [Cit.] [I] conclude that there is no circumstantial evidence of guilt on which to base a conviction beyond a reasonable doubt.” Id. at 295. Accordingly, I would reverse.

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


author: Judge Arnold Shulman.

text:
    A91A1052.
    GAILLARD et al. v. COLDWELL BANKER RESIDENTIAL REAL ESTATE SERVICES OF GEORGIA, INC.
    (414 SE2d 19)
   Judge Arnold Shulman.

This is an appeal from a summary judgment entered in favor of the appellee, Coldwell Banker Residential Real Estate Services of Georgia, Inc., in an action by it to collect a real estate commission allegedly owed by the appellants, Cynthia and William Gaillard. Cynthia Gaillard had entered into an “exclusive leasing agreement” with the appellee on September 29, 1988, under which the latter was to locate tenants for certain property owned by herself and Mr. Gail-lard. (Mrs. Gaillard also signed her husband’s name to this agreement, but he asserts that she did so without his permission.) The agreement specified that the appellee was to receive one-twelfth of the income from the rental of the property. Its summary judgment motion was based upon the following additional provision contained in the agreement: “If I sell the property to a tenant (or spouse of such tenant) obtained by you, either during the term of the lease or within 18 months thereafter, I will pay you as a commission 7 percent of the price for which the property is sold.”

The appellee subsequently secured Mr. and Mrs. Alvarez as tenants for the property; and on December 15, 1988, Mrs. Gaillard signed her husband’s name to a “residential rental agreement” with them. This rental agreement contained the following provision: “[The appellee] has acted as agent for the landlord in this transaction and is to be paid a commission by the landlord.”

It is undisputed that the appellants paid the appellee one month’s rent as required by the terms of the lease agreement and that they subsequently sold the property to the Alvarezes for $73,695 during the term of the lease or within 18 months thereafter. The appellee brought the present action against the appellants seeking to recover a seven percent commission on the sale in the amount of $5,158.65. The appellants denied liability, contending the appellee had made fraudulent misrepresentations to Mrs. Gaillard to induce her to sign the leasing agreement and that Mr. Gaillard was not bound by the agreement because he had not signed it and had not given his wife permission to sign on his behalf. The appellee moved for summary judgment based on the appellants’ responses to certain requests for admissions, and the appellants opposed the motion based on their affidavits. The appellee subsequently moved the trial court not to consider the appellants’ response to the motion for summary judgment on the ground that it was not timely filed. However, in its order granting the motion, the trial court indicated that it would have ruled in favor of the appellee “regardless of whether it did or did not consider defendants’ brief filed in opposition to the motion for summary judgment.” At the request of the appellants, the trial court also entered findings of facts and conclusions of law supporting its decision. This appeal followed.

1. The appellants contend that the trial court erred in disregarding as untimely both their brief and affidavits submitted in response to the motion for summary judgment and their request for oral argument on the motion. Rule 6.2 of the Uniform State Court Rules provides: “[E]ach party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.” Rule 6.3 provides: “[0]ral argument on any motion for summary judgment shall be permitted upon written request if such request is made not later then five (5) days after the time for response.” The record before us reflects that the appellee’s motion for summary judgment was served by mail on July 12, 1990, and that the appellants’ response was not filed until August 20, 1990. The written request for oral argument was filed four days later, on August 24, 1990. It follows that their contention is without merit. Accord Thompson v. Tom Harvey Ford Mercury, 193 Ga. App. 64 (387 SE2d 28) (1989); Medders v. Commodore Fin. Svc. Corp., 190 Ga. App. 618 (1) (379 SE2d 561) (1989).

Decided November 22, 1991

Reconsideration denied December 19, 1991

David R. Wininger, for appellants.

Ford & Harrison, Chad A. Shultz, F. Carlton King, Jr., for appellee.

2. “ ‘When the movant for summary judgment presents evidence which shows that there is no genuine issue of material fact, the movant has met his burden, and the burden then shifts to the other party to present any alternative theories, if such exist, . . . within which genuine issues of fact remain.’ [Cit.]” Savannah Bank &c. Co. v. Weiner, 193 Ga. App. 616, 617 (2) (388 SE2d 725) (1989). As to Mrs. Gaillard, her admission that she signed the contract, in the absence of any admissible evidence of fraud, was sufficient to negate any material issue of fact. With regard to Mr. Gaillard, his admission to having paid monies pursuant to the contract was sufficient to establish without dispute that he subsequently ratified it by performance and was therefore bound by its terms. Accord Cooper v. G. E. Constr. Co., 116 Ga. App. 690 (3) (158 SE2d 305) (1967). Accordingly, the trial court did not err in concluding that no material issue of fact existed as to the enforceability of the contract.

3. The appellee has moved for imposition of damages against the appellants pursuant to OCGA § 5-6-6 for filing a frivolous appeal. Although we find no merit in. the appeal, we do not find it so devoid of arguable merit as to warrant the conclusion that it was filed for delay only. Accordingly, the motion is denied.

Judgment affirmed:

Carley, P. J., and Beasley, J., concur as to Division 2 and in the judgment.


author: Andrews, Judge.

text:
    A91A1133, A91A1134.
    GEORGIA PORTS AUTHORITY v. SOUTHEAST ATLANTIC CARGO OPERATORS; and vice versa.
    (414 SE2d 232)
   Andrews, Judge.

Georgia Ports Authority (GPA) was sued by Meyer, an employee of Southeast Atlantic Cargo Operators (SEACO), and his wife for severe injuries suffered by Mr. Meyer when a four-tier high stack of wood pulp rolls fell and hit him while he was working as a stevedore in the GPA warehouse. The space where he was working was leased from GPA by SEACO.

GPA filed its third-party complaint against SEACO, claiming indemnification under the terms of the lease and that Meyer’s injuries were the result of his own negligence and that of his employer.

GPA then settled with Meyer for $1.3 million and trial was conducted to determine the relative fault of GPA and SEACO. The jury found GPA 60 percent negligent, SEACO 35 percent negligent, and Meyer 5 percent negligent. The court entered judgment against SEACO for 40 percent of the settlement amount plus interest and costs.

GPA appeals contending that, pursuant to the indemnification clause, SEACO was obligated to pay 100 percent of the settlement although only partially responsible for the injury. SEACO appeals the court’s denial of its motion for judgment notwithstanding the verdict. The appeals are considered together.

Viewed in favor of the verdict, the evidence was that Meyer was the stevedore foreman in charge of a crew loading or “stuffing” containers with wood pulp rolls for loading onto a waiting ship. The rolls were unloaded from ground transportation by GPA workers and placed in a position of rest in the space rented by SEACO or other stevedores. In order to prevent damage to the rolls from moisture, pieces of lumber (dunnage) were placed under the bottom roll in each stack by a GPA stickman. The rolls were stacked in columns by GPA, not subject to control by SEACO.

All labor for the job was requested daily by the stevedoring companies from the hiring hall of the International Longshoremen’s Association. SEACO’s assistant vice president of operations, Mr. Streeton, determined the number of containers needed for a shipment, prepared the stowage plan for the shipment, and ordered the required number of crews for each day’s work. For loading the wood pulp, Meyer had been assigned one crew, consisting of a clerk, a forklift operator, and a stickman whose job was to remove the dunnage as the rolls were taken from the point of rest to the containers. Prior to beginning the stuffing operation, Streeton and Meyer inspected the cargo at its point of rest, primarily to check the condition of the cargo. Meyer, 24 years old at the time, had never seen rolls fall and did not pay any particular attention to the stacking of the rolls.

In order to keep track of the rolls and their location in the containers, it was necessary to take certain information from the rolls. Because of his size, the clerk who was assigned to Meyer that day was unable to get to the rolls to obtain the information, and Meyer was helping by going into the aisles with him and calling out the information. The pulp rolls were stacked contiguously. Some of the rolls on the upper levels were offset from the roll directly beneath them by a number of inches. They were being removed one row at a time, creating aisles in the stacks. The stack which fell was the last in a row. After the forklift operator had removed the stack adjacent to it and backed out of the row, one of the workers yelled that the stack was falling. There was only one egress, and Meyer was struck by one of the 1,000 pound rolls as he ran from the aisle.

After the accident, the bottom roll of wood pulp was examined and it was discovered that the dunnage had been placed by GPA so that the support ceased about 15 inches from the outside of the roll. It was the contention of Meyer and SEACO that this improper placement created an imbalance so that when the adjoining stack was removed, the rolls fell of their own weight. GPA contended that the SEACO forklift operator may have bumped the stack in some way, although there was no evidentiary support for this position, and that SEACO had failed to properly train Meyer and to maintain a safe working environment.

On August 7, 1989, GPA filed its Motion for Partial Summary Judgment on the indemnification issue. The indemnification clause provides that “[l]essee (SEACO) shall indemnify Lessor [GPA] against any expense, loss or liability paid, suffered or incurred ... as the result of Lessee’s use of or occupancy of the demised premises, or Lessee’s cargo operations on the demised premises, or the carelessness, negligence or improper conduct of Lessee, Lessee’s visitors, agents, employees, patrons or licensees. Lessee’s liability under this lease extends to the acts and omissions of any subtenant.”

SEACO opposed indemnification, contending that any indemnification of GPA for its own negligence was against public policy. GPA, in its brief on summary judgment, stated that “GPA seeks only to enforce the terms of the indemnity provision requiring SEACO to be responsible for its own actions. . . . The indemnity provision is not void as against public policy, because it does not purport to absolve GPA from its own or sole negligence.”

On August 31, 1989, the pretrial order was entered pursuant to OCGA § 9-11-16 and USCR 7.2. In it, the position of GPA on the issue of indemnification was stated as seeking only to protect the GPA “against the consequences of SEACO’s actions. The provision [of the lease] specifically requires indemnity from SEACO for ‘expense, loss or liability paid, suffered or incurred’ by GPA ‘as the result of any breach by Lessee ... as a result of Lessee’s use or occupancy . . . Lessee’s cargo operations ... or the carelessness, negligence or improper conduct of Lessee.’ The indemnity provision does not require indemnity for damages resulting from GPA’s actions, nor is such indemnification sought.”

GPA further alleged that SEACO failed to provide safe working conditions, failed to properly train employees, failed to suspend cargo operations until unsafe working conditions had been corrected, failed to coordinate cargo operations and failed to conduct operations under the terms of the lease with reasonable care and professional skill.

Case No. A91A1133

1. It was not until the first day of the trial in April 1990 that GPA first voiced its argument that, based on Arthur Pew Constr. Co. v. Bryan Constr. Co., 156 Ga. App. 780 (275 SE2d 384) (1980), if the jury found SEACO liable at all, under the indemnity clause, SEACO would be 100 percent liable for the settlement.

OCGA § 9-11-16 (b) provides that upon entry of the pretrial order, which was done here first in 1987 and then superseded in August 1989, that order “controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.”

Once entered, a party may not amend the order without leave of court or consent of the opposite party. OCGA § 9-11-15 (a); Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196) (1980). The burden is on the party seeking to amend the order to show lack of laches or lack of unexcusable delay in presenting the issue to the court. Ostroff v. Coyner, 187 Ga. App. 109, 113 (2) (369 SE2d 298) (1988).

Here, the change of position by GPA from proportional to 100 percent indemnification was not consented to by SEACO. In fact, that theory was vigorously argued against by SEACO.

The case was tried pursuant to a pretrial order agreed to by GPA stating that indemnification was only proportional. That order was never modified by the trial court and the change in position was not consented to by SEACO. There was no reason given for the failure of GPA to correct its position from the initiation of litigation in 1985 until the trial in 1990.

There was no error in the trial court’s entry of judgment consistent with the pretrial order. See Gilbert v. Meason, 145 Ga. App. 662, 663 (1) (244 SE2d 601) (1978).

Case No. A91A1134

SEACO, in nine enumerations of error, complains of the denial of its motion for directed verdict and j.n.o.v. and the giving of certain jury charges. The first two enumerations deal specifically with jury charges and the remaining seven with the denial of the motions. They will be dealt with in that fashion.

2. After the charge was given, the court asked for objections. Three objections were voiced by SEACO. First was to the charge regarding SEACO’s obligation to provide a safe workplace because the premises did not belong to SEACO which was only an invitee. Second was the giving of a charge based on 33 USCA § 931, the Longshoreman’s Act, on the basis that the statute was not relevant to land based activity where tort principles are governed by state law. Finally, SEACO objected to the charge which indicated that SEACO could be negligent by allowing employees to go into a dangerous area. SEACO contended that it could not be negligent unless there was an “extraordinary hazard.”

(a) The charge argued in the second enumeration was not objected to below and will not be considered here for the first time. OCGA § 5-5-24 (a); Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 860 (4) (360 SE2d 418) (1987).

(b) The first enumeration contends the trial court erred in “charging the jury, under principles of federal shipboard maritime law, that SEACO had the primary responsibility for the safety of Mr. Meyer, where the accident occurred on land, where GPA actively created the negligent condition which injured Mr. Meyer, and where Mr. Meyer was an experienced employee who owed a duty of care to himself.” The underlined portion of the enumeration was the subject of an objection below and will be addressed.

The objected-to portion of the charge was only part of the overall charge on the stevedore’s obligation. The rest of the charge on the subject was that: “[a]s a stevedore employer, Seaco had the duty to provide all its employees, including Mr. Myers [sic], with a reasonably safe place to work and to protect them from unreasonable risk of harm in the workplace. If you find that Seaco did not provide Mr. Myers [sic] with a reasonably safe place to work or that they exposed him to an unreasonable risk of harm, then you may find that it is negligent. I charge you that a stevedore employer had the primary responsibility for the safety of its employees and it is generally in a good position to prevent accidents as might arise during its work operations.”

The objection was that “although the statute [33 USCA § 941 (a)] is relevant to incidents occurring on an ocean vessel, that it’s not relevant to incidents occurring in a land based warehouse where the tort principles are governed by State law rather than maritime law.”

There is no question that general principles of Georgia tort law were the principles by which the case was governed. This is affirmatively stated in the pretrial order and the court charged on the duty of ordinary care as well as other applicable tort principles. That, however, does not mean that 33 USCA § 941 has no bearing on the case or the evaluation of negligence under general tort principles.

The fact that admiralty jurisdiction is not established, as discussed in Holland v. Sea-Land Svc., 655 F2d 556, 557 (4th Cir. 1981), does not do away with the standard of care toward employees required of those engaged in the longshoreman industry, as SEACO admittedly was. 33 USCA § 902 (4); Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (97 SC 2348, 53 LE2d 320) (1977). The duty to provide a safe workplace is also included in Georgia’s Workers’ Compensation system. OCGA § 34-7-20; Terry Shipbuilding v. Griffian, 153 Ga. 390, 393 (1) (112 SE 374) (1922); see Cheeney v. Ocean Steamship Co., 92 Ga. 726 (19 SE 33) (1893).

Also, the evidence supported the fact that SEACO recognized this obligation toward its employees. Streeton, the assistant vice president of operations for SEACO, acknowledged that Occupational Health & Safety Administration rules regarding longshoremen applied to the warehouse, and stated that the stevedore has the responsibility for providing employees with a safe place to work.

Therefore, the principle embodied in 33 USCA § 941 was relevant to the action and was properly given.

The other grounds argued in support of this enumeration were not raised below and will not be addressed here.

3. The remaining enumerations, addressed to the denial of the motion for j.n.o.v. or new trial, will be addressed seriatim.

GPA contended that SEACO was negligent in not having properly trained Meyer and in allowing him to engage in unsafe practices, including creating and going into aisles where there was only one way in or out.

At the close of GPA’s case, SEACO made its motion for directed verdict, addressed to GPA’s claim that SEACO was negligent in letting Meyer create the aisles and go into the stacks to remove the numbers. SEACO contended that the evidence was that Meyer “alone decided to create this aisle” and if that were negligent, it was negligence only of Meyer which would go only to his comparative negligence vis-a-vis GPA. This motion was renewed at the close of all evidence.

(a) After trial, SEACO made its motion for j.n.o.v. or, in the alternative, for new trial.

Paragraph c of the motion for j.n.o.v. contained as a ground that Meyer was the senior SEACO employee on site and admitted at trial-that he made the “unilateral decision in selecting the manner with which to discharge rolls.” The third enumeration alleges error in denial of the motion because Meyer had “equal or better knowledge than SEACO of any dangerous condition at the site.” These, however, were not the grounds presented in the directed verdict motion and will not now be considered. OCGA § 9-11-50 (b); Glenridge Unit Owners Assn., supra at 858 (2).

(b) Enumerations 4, 8 and 9 were not the basis of the motion below and likewise present no ground for review. Id.

(c) Enumerations 5, 6, and 7 allege error in denial of the motion because 1) with regard to the duty to provide a safe workplace, Meyer had direct control of the conditions and methods of the work and was the senior SEACO supervisor on site, 2) with regard to allowing Meyer to conduct work in a particular manner or failing to instruct him in a different manner, the evidence “plainly showed” that Meyer was an experienced supervising stevedore allowed to choose his own method and who had chosen the method that day, and 3) with regard to SEACO’s negligently having forced or allowed Meyer to conduct work in a particular way, Meyer, experienced and senior on the job, “knew or had equal means of knowing the alleged negligent nature of the method he used.”

The basis of the motion for directed verdict was that the evidence showed that Meyer “alone decided to create this aisle” and if that were negligent, it was negligence only of Meyer which would go only to his comparative negligence as to GPA.

To the extent that the appeal argues the concept of assumption of the risk by Meyer, that issue was not raised below by SEACO in defense of the third-party claim, no instruction was given to the jury on it, nor was any such instruction requested by SEACO. Had it been raised, it was still a matter for the jury’s resolution as to the assumption of risk by an employee. Thigpen v. Executive Comm., 114 Ga. App. 839, 843 (2) (152 SE2d 920) (1966).

As to the claim that it was entitled to directed verdict or j.n.o.v. because the evidence was that Meyer “alone” chose the method which would absolve SEACO of responsibility, the claim also fails. While Meyer did choose the method, that choice was based on the stevedoring training which he received from Streeton. It was admitted by Streeton that the creation of aisles was SEACO’s standard practice. While Meyer testified that he felt it was safer to read information from rolls in the stacks, there was conflicting testimony that this was a more dangerous method than the alternate “double handling” method which was more labor intensive and time-consuming.

“A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. [Cits.]” Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989).

Here, there was evidence supporting the jury’s conclusion that SEACO did not maintain an adequate safety program, had not properly advised Meyer concerning the dangers of falling rolls, and had trained him to use the more dangerous procedure for reading information from the rolls. This alone supports the denial of directed verdict and j.n.o.v. and removes it from the realm of cases where the only negligence shown is that of the injured employee. Proctor & Gamble &c. Co. v. Yeargin Constr. Co., 196 Ga. App. 216, 218 (2) (396 SE2d 38) (1990).

4. With regard to the additional contention that it was entitled to a new trial on these same grounds, SEACO is defeated by the principle that “[t]he grant or denial of a motion for new trial... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is ‘any evidence’ to authorize it.” Associated Software &c. v. Wysocki, 177 Ga. App. 135, 137 (338 SE2d 679) (1985).

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided November 21, 1991

Reconsideration denied December 19, 1991

Hunter, Maclean, Exley & Dunn, Robert S. Glenn, Jr., Christopher W. Phillips, for appellant.

Bouhan, Williams & Levy, Edwin D. Robb, Jr., for appellee.

       Meyer collected benefits under the Longshore & Harbor Workers’ Compensation Act. 33 USCA § 901 et seq.

       It is also unclear that the lease indemnity agreement is sufficient to amount to a waiver by SEACO of GPA’s own negligence. Borg-Warner Ins. Finance Corp. v. Executive Park Ventures, 198 Ga. App. 70 (400 SE2d 340) (1990); see Central of Ga. R. Co. v. Ga. Ports Auth., 190 Ga. App. 518 (379 SE2d 540) (1989); compare Arthur Pew Constr. Co., supra.

       Counsel have failed to follow the rules of this court. While nine enumerations are specified, the argument section of the brief is separated into only three sections and the enumerations supposedly argued in each are not identified. See Rule 15; Wilson v. Cotton States &c. Ins. Co., 183 Ga. App. 353, 355 (2) (358 SE2d 874) (1987).

       The correct section is 33 USCA § 941.

       “The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining . . . terminal, ... or other adjoining area customarily used by an employer in loading, unloading, ... a vessel).”

       To the degree that enumerations 3, 4, and 5 also encompass the giving of various jury charges on the legal premises for the motions, these charges were not objected to on these bases and there is nothing for us to review.