text:
    A91A0272.
    WALKER et al. v. DANIELS et al.
    (407 SE2d 70)
   Beasley, Judge.

Plaintiff-appellees, the surviving parents of Felder Gene Daniels, Jr., instituted this wrongful death action against the Board of Regents of the University System of Georgia and various of its agents and employees. The decedent, a student at Fort Valley State College, drowned while participating in a recreational swimming event at the college. Plaintiffs allege that the combined and individual negligent acts of defendants were the proximate cause of death. The jury returned a verdict for appellees in the amount of $1,500,000.

We start with the following principles. The inquiry on appeal after the denial of a motion for directed verdict or judgment n.o.v. is whether there is any evidence to support the verdict. Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989). “Whenever a consideration of evidence is involved in a determination of whether there is error as alleged it must be remembered that ‘(a)fter the verdict, the testimony is construed in its most favorable light to the prevailing party ... for every presumption and inference is in favor of the verdict.’ [Cits.]” Young Men’s Christian Assn. v. Bailey, 112 Ga. App. 684, 690-691 (1) (146 SE2d 324) (1965) (Bailey II).

The decedent drowned in the school’s indoor swimming pool, “the natatorium,” on Monday, October 6, 1986, at the beginning of fall quarter. Recreational swimming, when held as an extracurricular activity for students, was held on Monday and Wednesday evenings.

Gerald Walker, Assistant Professor of Health & Physical Education, was the school’s Water Safety Instructor. He was responsible for conducting swimming classes for students and for training and certifying lifeguards, two of whom were required to be present during extracurricular swimming events. On an annual basis, Dr. Thomas Palmer, the Vice President of Student Affairs, would contact Walker in order to confirm that there was adequate funding for recreational and instructional swimming activities. They would then enter into a written contract concerning such things as the scheduling of swimming events and the remuneration of student lifeguards. Under official school policy, Walker or his supervisor, Dr. Curtis Martin, Chairman of the Department of Health & Physical Education, was then required to fill out a written form authorizing the use of the school building, in this case the natatorium, at the specified date and time.

Walker had been absent from school during the summer quarter. When he returned to school during fall quarter, he had become interim football coach and his time was consumed by his coaching duties. As of October 6, Walker and Palmer had not entered into a contract for extracurricular swimming events. Nonetheless, notices of a recreational swimming event for students on the evening of October 6 were posted all over campus. Martin and Palmer agreed that since contract arrangements for such events had not been made for that school year, the swimming event should not be held.

However, as testified to by Oris Bryant, Jr., the Director of Campus Safety, there was a divergence between official policy and practice. The Department of Campus Safety would unlock a campus building at the request of individual students representing student organizations which had been authorized to use such building in the past. After the death, this practice was discontinued.

On the evening of October 6, a student lifeguard telephoned the campus police dispatcher requesting that the natatorium be opened. The dispatcher directed a campus police officer (Frank Jones) to open the pool. Calvin McDonald and Kim Holley, certified lifeguards who had supervised swimming activities at the campus pool in the past, provided lifeguarding services at the swimming event that night. Estimates of the number of students at the pool range from 15 to 19 at the beginning of the evening and 50 to 60 by the end.

Coach Walker had been involved all that day in coaching activities. He returned to the gymnasium/natatorium complex at approximately 8:00 or 8:30 p.m. He heard the clattering of the pool diving board and was alarmed, since he was unaware that a recreational swimming event was taking place. He went to investigate and was met by a student who engaged him in conversation for approximately two minutes. During their conversation, Coach Walker remained in an alcove from which he could see people diving and swimming in the area surrounding the diving board, but he could not see the remainder of the pool. After talking with the student, Coach Walker left the pool area to telephone either campus security or Dr. Martin to find out what was going on. As he was walking away from the pool, a student yelled to him and said there was a swimmer in distress in the pool. Approximately three minutes elapsed between Coach Walker’s entry into the natatorium and his summons for a swimmer in distress.

During the recreational swim, lifeguard McDonald was posted in a stationary position on an elevated chair. His area of responsibility was the deep end of the pool. Holley was posted at the shallow end of the pool but also should have been roving. However, Holley was inattentive; he was grabbing and touching female swimmers and generally engaging in horseplay. McDonald left his position and walked to the shallow end of the pool to ask Holley to change places with him because he was not fulfilling his responsibilities where he was. He then walked back to his chair but on the way received word that a body had been discovered at the bottom of the pool.

An off-duty lifeguard standing on the high diving board observed what he initially thought to be a chair at the bottom of the deep end of the pool. He swam down to investigate and found the decedent, who was unconscious. Attempts at cardiopulmonary resuscitation by the lifeguards and then by emergency medical technicians were unsuccessful.

The autopsy report stated that the decedent’s lungs were heavy with fluid and identified the cause of death as “Drowning secondary to blunt force trauma to neck.” The death certificate identified the cause of death as “Accidental Drowning from Trauma to Neck,” which was severe enough to cause hemorrhaging. A water safety expert witness for plaintiffs testified that the decedent had been under water for at least four to six minutes and that a drowning victim under water for that period of time generally can be resuscitated, because the heart continues to beat for several minutes after respiration stops. An underwater loss of consciousness could explain the absence of distress signals or surface struggle. Another hypothesis he gave is that a misstep at the edge of the pool caused the decedent to fall, hit his neck, and enter the water in an unconscious state.

McDonald testified that he did not observe the decedent enter the water from the deep end of the pool The incline of the slope of the pool was sufficient to cause a helpless swimmer who had become submerged at the rope divider to roll down to the bottom of the slope into deeper water. The deep end of the pool extended 20 feet from the rope dividing the shallow and deep ends. The deepest portion is 12 feet, and this is where the decedent was found.

The Board of Regents of the University System of Georgia, Gerald Walker, Curtis Martin, Thomas Palmer, Oris Bryant, Jr., Frank Jones, Kim Holley, and Calvin McDonald were named as defendants.

Service of process on McDonald was never perfected. Martin’s, Palmer’s, and Jones’ motions for summary judgment were granted. Walker’s, Bryant’s, and Holley’s motions for summary judgment were denied, as was the Board’s motion for contingent dismissal. The jury verdict was returned against Walker, Bryant, Holley, and the Board, and judgment was entered accordingly. Their motions for directed verdict, judgment notwithstanding the verdict, and new trial were denied. They all appeal.

Health and Physical Education Professor Walker and Director of Campus Safety Bryant contend that they owed no affirmative duty of care toward the swimmers in the pool; that even if they did owe the swimmers a duty, their actions were not negligent; and that even if they were negligent, their actions could not have been the proximate cause of the decedent’s death. (Enumerations of error 1 and 2.) Lifeguard Holley contends that any inattentiveness on his part could not have been the proximate cause of the victim’s death. (Enumeration of error 3.) The Board acknowledges that it would be vicariously liable if any of the individual defendants is adjudged liable, but that all were entitled to j.n.o.v. so that it has no contingent liability. (Enumeration of error 5.)

1. “To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of duty.’ Lee Street Auto Sales v. Warren, 102 Ga. App. 345 (1) (116 SE2d 243) (1960).” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); OCGA §§ 51-1-1; 51-1-8.

Appellants Walker and Bryant argue that they owed no duty of care toward the decedent, since he was a capable adult swimmer voluntarily attending a recreational swim, albeit on-campus.

“ ‘The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon, vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, a visitor under invitation, express or implied, or a person standing in some special relation recognized by law.’ Mandeville Mills v. Dale, 2 Ga. App. 607 (1) (58 SE 1060) (1907). The owner or proprietor of premises is liable to a licensee only for wilful or wanton injury. [OCGA § 51-3-2.] As to an invitee, the owner or proprietor owes the duty to exercise ordinary care. [OCGA § 51-3-1.]

“ ‘(W)hether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner ... of the premises.’ Chatham v. Larkins, 134 Ga. App. 856, 857 (216 SE2d 677) (1975). If the relationship solely benefits the injured person, he is at most a licensee. [Cits.] If the relationship is one of mutual interest to the parties, the injured party is an invitee of the owner. [Cits.] ‘(T)he enterprise must be mutual to the extent that each party is lawfully interested therein; or that there is common interest or mutual advantage involved.’ [Cit.] Monetary consideration is not essential. [Cits.]” Frankel v. Antman, 157 Ga. App. 26, 27 (276 SE2d 87) (1981).

For these reasons, it has been held that the residential owner of a pool or pond owes no duty to children who venture into the water after coming onto the property without either an express or implied invitation, a pool or pond not constituting an “attractive nuisance.” Adams v. Atlanta Faith Memorial Church, 191 Ga. App. 215 (381 SE2d 397) (1989). A homeowner who owns a residential pool owes social guests as licensees a duty to not wilfully or wantonly injure them. Sims v. Willoughby, 179 Ga. App. 2 (345 SE2d 626) (1986). Under the state recreational use statute, an owner of land who makes land and water areas available to the public for recreational purposes is only liable for wilful and malicious conduct. See also Bourn v. Herring, 225 Ga. 67 (1) (166 SE2d 89) (1969).

The relationship between a college or university and one of its students is one of common interest and mutual advantage. It follows that a student is an invitee and not a mere licensee or social guest. See Rawlings v. Angelo State Univ., 648 SW2d 430, 432 (Tex. App. 1983). Unless the college or university is immune from tort liability, see Holzer v. Oakland Univ. &c., 313 NW2d 124 (Mich. App. 1981); University of Texas v. Akers, 607 SW2d 283 (Tex. App. 1980), and no such contention has been made here, case law thus recognizes a duty on the part of the college or university to exercise ordinary and reasonable care for a student’s safety. See Peterson v. San Francisco Community College Dist., 685 P2d 1193 (Cal. 1984); Hall v. Bd. of Supervisors Southern Univ., 405 S2d 1125 (La. App. 1981); Freed v. State Univ. of N. Y., 417 NYS2d 530 (App. Div. 1979); see generally 15A AmJur2d, Colleges & Universities, § 39. Cf. Bradshaw v. Rawlings, 612 F2d 135, 138 (3rd Cir. 1979), holding that college administrators do not stand in loco parentis to adult college students.

This accords with the general rule, applicable in premises liability actions, that owners or operators of nonresidential swimming facilities owe an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool. See Dillashaw v. Coogler, 114 Ga. App. 139 (150 SE2d 161) (1966); Bailey II, supra; Young Men’s Christian Assn. v. Bailey, 107 Ga. App. 417 (130 SE2d 242) (1963) (Bailey I); Morehouse College v. Russell, 109 Ga. App. 301 (136 SE2d 179) (1964). See also Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 301 (2) (208 SE2d 258) (1974), holding that violation of a county ordinance regulating the usage of semi-public pools is negligence per se. See generally 57 AmJur2d, Municipal, County, School, & State Tort Liability, § 320; 87 ALR3d 1032, Annotation: Liability of Operator of Nonresidential Swimming Facility for Injury or Death Allegedly Resulting from Failure to Provide or Exercise Proper Supervision.

The evidence shows that it was official university policy to have two certified lifeguards on duty during recreational swimming events, and two lifeguards were on duty at the time the decedent drowned. Although plaintiffs’ expert witness testified that three lifeguards should have been present during the recreational swim so that one could check student identification while the other two supervised the swimming activities, neither of the two lifeguards on duty was checking student identification at the time of decedent’s death. Therefore, it must be concluded that neither Walker nor Bryant breached any duty of care toward the decedent that could be found to be the proximate cause of his death, so that enumerations of error 1 and 2 are resolved in their favor.

2. The remaining question is whether the jury was authorized to find that Holley was negligent and, if so, that such negligence was the proximate cause of the death. “The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. Powell v. Berry, 145 Ga. 696, 701 (89 SE 753) (1916). ‘Even where there is no dispute as to the facts, it is however, usually for the jury to say whether the conduct in question met the standard of the reasonable man.’ [Cits.]” Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976).

McDonald’s testimony, and that of an individual who was swimming in the pool when the decedent drowned, clearly authorized the jury to find that Holley was an inattentive and negligent lifeguard.

This case differs from Dillashaw v. Coogler, supra, and Lyman v. Hall, 219 NW 902 (Neb. 1928) (cited in Y.M.C.A. v. Bailey II, supra), wherein swimmers inexplicably disappeared underneath the water and drowned, but there was no evidence of negligence or inattentiveness on the part of a lifeguard.

“ ‘The determination of the proximate cause of an injury is for the jury, except in clear and unmistakable cases, and not a matter of law for the court. Where the cause of an injury depends upon a state of facts from which different minds might reasonably draw different inferences, it is for a jury to determine the proximate cause of the injury.’ Queen v. Patent Scaffolding Co., 46 Ga. App. 364 (3) (167 SE 789).” Saul Klenberg Co. v. Mrozinski, 78 Ga. App. 59 (2) (50 SE2d 247) (1948).

As was stated in Bailey I, supra at 419 (1): “While it is true as contended by the defendant, that the plaintiff in this case was unable to show the exact manner in which the deceased drowned, and while there was no evidence of any struggle or outcry by him, the evidence disclosed that his submerged body was clearly visible in the water, and it cannot be said as a matter of law that a successful rescue of the decedent could not have been effected if due diligence had been exerted by the defendant in this case.” Although there is no evidence that the decedent’s submerged body was “clearly visible in the water,” the extent of its visibility, and whether a successful rescue could have been effected if due diligence had been exerted, were jury questions.

In this case, as in Bailey I, supra, Bailey II, supra, and Morehouse College v. Russell, supra, whether or not the negligence of the lifeguard was the proximate cause of the death was for the jury. Compare Murphy v. D’Youville Condominium Assn., 175 Ga. App. 156 (333 SE2d 1) (1985), holding that the plaintiff’s failure to exercise ordinary care for his own safety by diving into the shallow end of a pool was the sole proximate cause of his injuries.

The evidence does not establish as a matter of law that Holley’s defendant’s action “stands in no causal relation to the injury,” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512 (317 SE2d 853) (1984), or that such negligence was not, as a matter of law, a “contributing causal factor” in the plaintiff’s injury. Kirby v. Spivey, 167 Ga. App. 751, 756 (3) (307 SE2d 538) (1983).

Here, as in Bailey II, supra at 706 (14), “there was direct proof that plaintiff’s son was found at the bottom of defendant’s pool and when rescued therefrom was dead, but there was, of necessity, reliance upon circumstantial proof. . . that his death resulted from some act of negligence on the part of the defendant.”

“ ‘Where a plaintiff in a civil case supports his case solely by circumstantial evidence, before he is authorized to have a verdict in his favor the testimony must be such as to reasonably establish the theory relied on. . . . It is for the court to say whether the circumstances reasonably establish the hypothesis relied on by the plaintiff. If the evidence meets this test, it is then for the jury to say, either that the plaintiff has not carried his burden of proof because the evidence equally supports his hypothesis and some other reasonable hypothesis, or that the plaintiff has carried his burden of proof in that the evidence preponderates to his hypothesis as against all other reasonable but less probable hypotheses.’ ” Henry Grady Hotel Corp. v. Watts, 119 Ga. App. 251, 253 (1) (167 SE2d 205) (1969).

Again, as in Bailey II, supra at 706 (14), “Whether the plaintiff’s case here was dependent for its resolution upon guess or speculation was a matter, under the evidence, addressing itself to the jury. . . .”

3. Appellants’ enumeration of error 4 is the jury instructions concerning pain and suffering. The trial court charged that pain and suffering is a legal item of damages; that the questions of whether, how much, and how long the plaintiff suffered are for the jury to decide; and that the measure of damages is the enlightened consciences of fair and impartial jurors.

Appellants argue that there is no evidence that the decedent was conscious at any point between the blunt trauma injury which caused him to drown and his death. Appellees’ expert witness testified that a wet drowning, i.e., water in the lungs, indicates that the person was conscious as he or she was inhaling water into the lungs, although on cross-examination the witness did state that it is possible that an unconscious person could continue to breathe underwater.

Under this evidence, questions concerning the decedent’s pain and suffering were for the jury to decide. The charge was not given in error. See Ga. Power Co. v. Bishop, 162 Ga. App. 122, 124 (6) (290 SE2d 328) (1982). The judgment is affirmed as to Holley and the Board and reversed as to Walker and Bryant.

Judgment affirmed in part, and reversed in part.

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

Decided May 31, 1991

Rehearing denied June 25, 1991.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Michael E. Hobbs, Alfred L. Evans, Jr., Senior Assistant Attorneys General, for appellants.

William J. Murray, D. Joy Handelman, for appellees.

       Appellant Bryant gives as additional reasons that he had no authority to promulgate policy regarding locking or unlocking the pool facility, and that even if he did, negligent policy by a public administrator does not give rise to a cause of action. These reasons are not reached.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A91A0283.
    DEVINS v. LEAFMORE FOREST CONDOMINIUM ASSOCIATION OF OWNERS.
    (407 SE2d 76)
   McMurray, Presiding Judge.

Plaintiff Devins is the owner of a condominium unit of Leafmore Forest Condominiums. Plaintiff’s initial complaint sought a declaratory judgment against defendant Leafmore Forest Condominium Association of Owners, an unincorporated association of all owners created for the purpose of administering Leafmore Forest Condominiums, determining the right of this defendant to terminate water and gas to any condominium unit in arrears in its assessments, to limit occupancy and use of plaintiff’s condominium unit, and to limit plaintiff’s access to cable television service. By amendment to his complaint, plaintiff added a claim against members of the Board of Directors of Leafmore Forest Condominium Association of Owners, individually, for damages arising from the termination of utilities at his condominium unit. Plaintiff appeals from the grant of summary judgment in favor of the Leafmore Forest Condominium Association of Owners. Held:

1. Plaintiff’s first enumeration of error contends the superior court erred in enforcing the provisions of the Apartment Ownership Act. Leafmore Forest Condominiums was created in 1972 pursuant to the Apartment Ownership Act, Ga. L. 1963, p. 561. While the Apartment Ownership Act was superseded by the Georgia Condominium Act (OCGA § 44-3-70 et seq.) in 1975, it was not repealed (OCGA § 1-1-10 (c) (55)) and continues to govern those condominiums which were created thereunder and have not amended their instruments so as to submit the condominium to the Georgia Condominium Act. See OCGA § 44-3-113. As Leafmore Forest Condominiums was created pursuant to the Apartment Ownership Act and has not amended its instruments in accordance with the Georgia Condominium Act, it continues to be governed by the earlier, but not by the latter statute. Therefore, plaintiff’s contentions predicated on the provisions of the Georgia Condominium Act are without merit. Nor do we find any merit in plaintiff’s contention that the Apartment Ownership Act was superseded by the Fair Housing Act, 42 USCA § 3601 et seq.

2. Next, plaintiff contends that it was error to grant summary judgment enforcing a restrictive covenant when the evidence demonstrates that the time to enforce the covenant has lapsed. Plaintiff relies upon the statute of limitation set forth in OCGA § 9-3-29 and his past violations of the restrictive covenants in the condominium declaration which prohibit the leasing of less than the entire condominium unit and which limit occupancy of the unit to persons related by blood, adoption or marriage, arguing that the absence of an action to enforce the restrictive covenant prior to the expiration of the time permitted by the statute amounts to a waiver. However, there is no waiver where there is no knowledge of the breach of the restrictive covenant by those who have a right to enforce it. Here, the defendant’s evidence shows that plaintiff was bound by the restrictive covenant but plaintiff has failed to present rebuttal evidence supporting the theory of waiver which he now argues. There is no indication that plaintiff’s fellow condominium unit owners had any knowledge of the breaches of the restrictive covenant upon which plaintiff now relies. In the absence of such knowledge, there is no waiver. Stanley v. Greenfield, 207 Ga. 390 (3), 391 (61 SE2d 818).

3. Plaintiff’s third and final enumeration of error contends that the superior court erred in granting summary judgment against him in regard to the claim stated in the amendment to his complaint. This claim, predicated on the alleged improper termination of utilities to plaintiff’s condominium unit, seeks to recover damages only from the members of the Board of Directors of Leafmore Forest Condominium Association of Owners, individually. However, as the persons named as individual defendants were never served with summons and complaint in compliance with OCGA § 9-11-4 (d) (7), the superior court lacked jurisdiction over these individuals. Elmore v. Elmore, 177 Ga. App. 682 (2), 683 (340 SE2d 651). The sole movant on the only motion for summary judgment contained in the record is defendant Leafmore Forest Condominium Association of Owners. The superior court’s order, ruling on the motion for summary judgment, refers to plaintiffs claims against the individual members of the Board of Directors, but nonetheless, refers to a singular defendant under a style that identifies that single defendant as Leafmore Forest Condominium Association of Owners. Consequently, we construe the superior court’s order as granting summary judgment against plaintiff and in favor of Leafmore Forest Condominium Association of Owners only. In our view, the issue argued in plaintiff’s third enumeration of error was not reached by the superior court and, thus, is not ripe for appellate review.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided June 5, 1991

Rehearing denied June 25, 1991

Robert S. Devins, pro se.

Simmons, Warren & Szczecko, M. T. Simmons, Jr., Paige O. Haines, for appellee.


author: Carley, Judge,

text:
    A91A0469.
    ATLANTA CASUALTY COMPANY v. POWELL.
    (407 SE2d 56)
   Carley, Judge,

In 1988, appellee-plaintiff Eddie James Powell (insured) applied for and was issued an automobile insurance policy by appellant-defendant Atlanta Casualty Company (insurer). The insured was subsequently injured in a vehicular mishap and he sought optional no-fault benefits from the insurer, asserting that the application form upon which his policy had been issued did not comply with the requirements of OCGA § 33-34-5 (b). When the insurer denied the claim, the insured brought the instant action to recover optional no-fault benefits. Cross-motions for summary judgment were filed. The trial court denied the insurer’s motion and granted summary judgment in favor of the insured and the insurer appeals.

OCGA § 33-34-5 (b) provides: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional [no-fault] coverages . . . have been explained to the applicant.” In order for there to be an “effective rejection of additional coverage, the application must (1) contain a statement that the optional coverage required by the statute to be offered has been explained to the applicant, (2) that the statement be in boldface, and (3) that the statement be signed by the applicant.” Southern Guar. Ins. Co. of Ga. v. Goddard, 259 Ga. 257, 258 (379 SE2d 778) (1989).

In relevant part, the application submitted by the insured to the insurer contained two paragraphs. Paragraph A was denominated as “ADDITIONAL NO FAULT OPTIONS” and provided boxes to be checked signifying acceptance of $10,000, $25,000, or $50,000 in optional personal injury protection coverage or a rejection of such optional coverage. The insured had checked the box signifying his rejection of the optional coverages. Paragraph B was denominated as “OPTIONAL BASIC PERSONAL INJURY PROTECTION DEDUCTIBLE” and provided boxes to be checked signifying acceptance or rejection of a deductible. The insured had checked the box signifying his rejection of a deductible. Immediately following Paragraph B was the following boldface statement: “Each of the Personal Injury Protection Options shown above has been fully explained to me. I have knowingly made my selection by checking the appropriate block and have verified this selection by my signature below. Any block not checked indicates my rejection of the option.” (Emphasis supplied.) Following this statement, the insured had placed his signature on the line provided.

Decided May 15, 1991

Rehearing denied June 25, 1991

Simpson & Gray, Joseph B. Gray, Jr., Lawrence C. Walker, Jr., for appellant.

Berrien L. Sutton, for appellee.

The above-quoted statement refers to the applicant’s receipt of an explanation of “[e]ach of the Personal Injury Protection Options shown above” and, of the two personal injury protection options that were shown immediately above this statement, the option that was shown in Paragraph A dealt with the optional no-fault coverages required by OCGA § 33-34-5 (a) to be offered to an applicant. The statement was in boldface and was signed by the insured. It follows that the statement was in compliance with OCGA § 33-34-5 (b). Compare Southern Guar. Ins. Co. v. Goddard, supra at 258 (wherein the application contained no boldface statement “concerning an explanation being given. . . .”) “While there are undoubtedly clearer and more straightforward ways of accomplishing an explanation which meets the Georgia requirements, the method used by [the insurer in the instant case] does not violate the precepts articulated by our cases. [Cits.]” Duncan v. American Mut. Fire Ins. Co., 197 Ga. App. 548, 550 (398 SE2d 759) (1990). Accordingly, the trial court erred in granting summary judgment in favor of the insured and in denying the insurer’s motion for summary judgment.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A91A0614.
    CASTELLANA v. CONYERS TOYOTA, INC.
    (407 SE2d 64)
   Beasley, Judge.

Rhonda Castellana bought an automobile from Conyers Toyota, Inc. (CTI). The car was repossessed by CTI and she sued for conversion in October 1988. At all times pertinent to this action CTI was open and doing business at 945 Iris Drive in Conyers, Georgia. The sale was negotiated at the Iris Drive location, and all the contract documents Castellana signed in connection with the transaction showed that address. However, in arranging service of the summons and complaint, her attorney contacted the Secretary of State’s office and was erroneously told that CTI’s registered agent could be found at a Klondike Road address in Conyers. This address was a former business location, and CTI had notified the Secretary of State’s office of the change of address in April 1988, when it filed its 1988 annual registration. The Secretary of State’s office reported the name of CTI’s registered agent as William T. Paul, but Castellana’s attorney wrote down the name incorrectly as William P. Hall.

Service was unsuccessfully attempted at the wrong address on Klondike Road on William P. Hall, but the deputy, who personally knew Paul, noted on the entry of service that Paul “can be served at Carey Paul Ford at Snapfinger Road.” Nevertheless, Castellana’s attorney requested the Secretary of State to acknowledge service pursuant to former OCGA § 14-2-62 (replaced by OCGA § 14-2-504, Ga. L. 1988, pp. 1070, 1072, effective July 1, 1989), and sent two copies of the complaint and the fee. The Secretary of State acknowledged service on November 2, 1988, and mailed a copy of the documents to the Klondike Road address. These documents were subsequently returned marked as undeliverable and Castellana was so advised by the Secretary of State.

A bench trial was held without notice to CTI and Castellana was awarded a default judgment. CTI was first notified of the litigation when a copy of the order was mailed to Iris Drive, the Secretary of State having corrected the record when it received the 1989 annual registration. Upon receipt CTI moved to set aside the default judgment under OCGA § 9-11-60 (d) (1). It was granted.

CTI moved for summary judgment on the ground that repossession of the car was legal under the contract documents signed by Castellana. It, too, was granted.

1. Plaintiff Castellana contends first that the trial court erred in setting aside the default judgment. She argues that lack of jurisdiction over the person of CTI because of ineffective service is the only possible ground that would authorize relief under OCGA § 9-11-60 (d), but that service was proper under former OCGA § 14-2-62 (b) (replaced by OCGA § 14-2-504, effective July 1, 1989). That section provides in pertinent part: “Whenever a corporation shall fail to appoint or maintain a registered agent in this state, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any process, notice, or demand may be served.”

Appellant insists that due diligence was exercised by her attorney who, being unfamiliar with the corporate defendant, called the office of the Secretary of State to learn the identity of its registered agent and office, had the sheriff attempt service on the named person at the given address, and served the Secretary of State when no agent could be located at the registered office; and that all the requirements of Lovett Sports v. Atlantic Exhibit Svcs., 178 Ga. App. 278 (342 SE2d 726) (1986) for proper service were met by the mailing of the summons and complaint to the Secretary and obtaining his acknowledgment. She further asserts that CTI failed to comply with former OCGA § 14-2-61 (replaced by OCGA § 14-2-502, effective July 1, 1989) to change the address of its registered office, as the filing of the annual report form alone was not enough. See Grimaud v. Knox-Georgia Homes, 210 Ga. 514 (1 (b)) (81 SE2d 476) (1954).

The 1988 annual registration form filed by CTI with the Secretary of State’s office fully complies with all the germane requirements of former OCGA § 14-2-61 (a) and (d), setting forth the procedures to be followed to change the address of a registered agent. Indeed, the Secretary of State officially certified that the 1988 annual registration filed by CTI was “in the form commonly accepted” by his office for change of address; and that “the standard practice is to update into the Secretary of State Computer Information System any changes made on the Annual Registration,” but that in this case, through no fault of CTI, the changes were not updated into the computer system.

If the change of address had been properly entered into the computer information system and appellant’s summons and complaint had therefore reflected the correct address, CTI’s registered agent likely would have been properly served at the Iris Drive address and no default would have occurred. It is a fundamental tenet of due process that a defendant have notice of suit in accordance with law. The mistakes made by plaintiff’s attorney and the Secretary of State’s personnel which frustrated the operation of the law cannot deprive the defendant of that due process.

The court has discretion to set aside the judgment when the motion to set aside is made within the same term of court, as it was here. Bricks v. Walker Showcase, 255 Ga. 122, 124 (2) (336 SE2d 37) (1985). We make the same holding here as was made in that case: “Finding no abuse of discretion, we hold that the exercise of discretion by the court in setting aside the judgment will not be disturbed on appeal.”

2. As previously stated, appellant claimed conversion. Although CTI established that the repossession was authorized by the contract documents signed by appellant, specifically the “spot delivery” form, she denied signing it and insisted that the signature on the form was a forgery. CTI moved for summary judgment based in large part upon the deposition testimony and affidavit of a GBI forensics and handwriting expert stating that the signature on the form was genuine.

Two months later appellant amended her complaint to add a claim for relief under the Georgia Fair Business Practices Act (OCGA § 10-1-390 et seq.), admitting that she signed the form but alleging that CTI deceived her into doing so. She also alleged that CTI’s salesman orally misrepresented to her that her credit application had been approved by CTI the day before she executed the documents; and that she was unaware the sale was contingent upon approval of her credit application or that a third party was involved in the credit transaction.

Summary judgment was authorized. Five documents are instrumental:

(1) The “spot delivery” form clearly states that the credit application had not been approved or rejected by Toyota Motor Credit Corporation and that the buyer could take possession and use the vehicle pending approval of the application for credit. This form stipulated that in the event appellant’s credit application was rejected or disapproved the vehicle must be returned straightaway to CTI; and that CTI retained a security interest empowering it to repossess the vehicle in the event of rejection or disapproval of Castellana’s credit application.

(2) The Customer’s Statement form, which bears the heading “Toyota Motor Credit Corporation administered by World Omni Financial Corp.,” reflects that the buyer has applied for credit and provides that the application will be submitted to TMCC for purchase or consideration as to whether it meets purchase requirements.

(3) The Installment Sales Contract bears the same heading and on the reverse side contains a seller’s assignment granting CTI the option to sell or assign “to Toyota Motor Credit Corporation (TMCC) all of its right, title or interest in this contract.”

(4) The typewritten Purchase Contract refers to Toyota Motor Credit Corp. and authorizes CTI as dealer to “initiate and conduct a credit investigation based upon the information voluntarily provided by Purchaser. ...”

(5) The MV-1 form lists Toyota Motor Credit Corp. as first lienholder on the vehicle, and in the agreement to provide accidental physical damage insurance there are five references to TMCC, one of them authorizing it to apply for insurance in its own name to protect its interest in the vehicle.

The only reasonable construction of these documents is that no approval of the purchaser’s credit application had been made when she signed them, nor would this occur until TMCC processed and approved it, and that CTI was authorized to repossess the vehicle if her credit application was rejected or disapproved. “ ‘[I]t is general contract law in Georgia that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears. (Cit.)’ [Cit.]” Kurc v. Herren, 196 Ga. App. 331, 332 (1) (396 SE2d 62) (1990). There being no such prohibition, these contracts are enforceable.

“ ‘Fraud which constitutes a ground for voiding the contract under (OCGA § 13-5-5) must be fraud which induced the parties to enter the contract. (Cit.)’ [Cit.]” Hudson v. Montcalm Pub. Corp., 190 Ga. App. 629, 631 (379 SE2d 572) (1989). Appellant went to CTI of her own volition and chose the car she wished to buy. She contends that she would not have signed the documents had she not been told by CTI’s salesman that her credit had already been approved. The salesman denies having made any such statement. Even assuming that such a misrepresentation was made, it is a matter of substantive law that, absent fraud, parol evidence is without probative value to vary the terms of a written contract. Lyon v. Patterson, 138 Ga. App. 816, 820 (227 SE2d 423) (1976).

“ ‘Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations. . . . (Cits.)’ [Cit.]” Carpenter v. Parsons, 186 Ga. App. 3, 5 (2c) (366 SE2d 367) (1988). In her deposition appellant testified that she read every document she signed, and that she understood or believed she understood what they said prior to signing them. She estimated that reading and signing these documents took about 2 hours and 45 minutes. She agreed when questioned that in the documents she signed there were no statements that her credit application had been approved, and that she knew when she signed them that Toyota Motor Credit Corporation, not CTI, would be financing the loan.

A prerequisite to stating a claim for relief under the Fair Business Practices Act is the commission of some unfair act or deceptive practice, from which the Act is designed to protect the public. OCGA § 10-1-391 (a). “ ‘In the absence of a confidential relationship a party may not rely and act on the misrepresentations of an opposite party as to the contents of a written instrument where the party signing can read and where no artifice or fraud is practiced which prevents the party signing from reading the instrument.’ [Cits.]” Heidt v. Potamkin Chrysler-Plymouth, 181 Ga. App. 903, 904-905 (354 SE2d 440) (1987). See also Credithrift of America v. Whitley, 190 Ga. App. 833 (380 SE2d 489) (1989). Having failed to establish any unfair or deceptive practice by CTI, the purchaser’s claim under the FBPA is likewise foreclosed.

The construction of a contract is a matter of law for the court under OCGA § 13-2-1, particularly where, as here, the terms are unambiguous. It is thus a matter peculiarly well suited for adjudication by summary judgment, Foshee v. Harris, 170 Ga. App. 394, 395 (317 SE2d 548) (1984), which in this case was proper.

Decided May 28, 1991

Rehearing denied June 25, 1991.

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, Cashin, Morton & Mullins, A. L. Mullins, Jr., for appellee.

3. CTI’s motion for contempt is denied.

Judgment affirmed.

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


text:
    A91A0720.
    THOMAS v. MAYOR OF WAYCROSS et al.
    (407 SE2d 57)
   McMurray, Presiding Judge.

Keith Eugene Thomas (plaintiff), as pro se, sued the Mayor of the City of Waycross and others (defendants), seeking damages for injuries he allegedly sustained when he was struck by the force of a City of Waycross garbage truck. Defendants denied the material allegations of the complaint and moved to dismiss because of insufficient service of process. The trial court granted the motion to dismiss and this appeal followed. Held:

1. Plaintiff contends the trial court erred in dismissing the complaint, arguing that defendants waived the defense of insufficient service of process by “undertaking a course of litigation. . . .” This contention is without merit.

The defense of insufficient service of process “shall be made before or at the time of pleading [and no] defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.” OCGA § 9-11-12 (b). In the case sub judice, defendants preserved the defense of insufficient service of process by raising the defense in their answer and compelling a ruling via a motion to dismiss. Defendants did not waive the defense of insufficiency of service by answering plaintiff’s complaint and responding to plaintiff’s discovery requests. See OCGA § 9-11-12 (h) on waiver or preservation of certain defenses.

2. Plaintiff’s “MOTION TO COMPEL AND OR MOTION FOR SANCTIONS” is denied.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided May 22, 1991

Rehearing denied June 25, 1991

Keith E. Thomas, pro se.

Walker & Sweat, Bruce M. Walker, Hackel & Hackel, Thomas M. Hackel, Kopp, Peauey & Conner, Neal L. Conner, Jr., for appellees.


author: Carley, Judge.

text:
    A91A0067.
    GREEN v. MORELAND et al.
    (407 SE2d 119)
   Carley, Judge.

The relevant facts in this appeal are as follows: Appellee-defendant Catoosa County (county) contracted with F&C Contractors, Inc. (F&CCI) to replace a bridge located in appellee-defendant City of Fort Oglethorpe (city). While engaged in this bridge replacement project as an employee of F&CCI, appellant-plaintiff’s husband was killed when a crane came in contact with overhead high-voltage electrical lines. As the result of her husband’s death, appellant received workers’ compensation benefits from F&CCI and she thereafter initiated this tort action against appellees. Appellees answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellees and appellant appeals from that order.

1. With regard to appellant’s theory that the county could be held vicariously liable for the negligence of F&CCI, the trial court held that F&CCI was not a servant but an independent contractor. Appellant urges that, in so holding, the trial court erred because a genuine issue of material fact remains as to whether F&CCI was a servant for whose negligence the county could be held vicariously liable.

The evidence of record establishes the terms of the contract for the bridge replacement project. Compare Harrison & Ellis v. Nashville Milling Co., 156 Ga. App. 697 (1) (275 SE2d 374) (1980); Moon v. Ga. Power Co., 127 Ga. App. 524, 526 (1) (194 SE2d 348) (1972). Under the terms of that contract, F&CCI was an independent contractor and not a servant. See generally Mason v. Gracey, 189 Ga. App. 150 (la) (375 SE2d 283) (1988). Moreover, if F&CCI had been the county’s servant rather than an independent contractor, then the county would have been the statutory employer of appellant’s deceased and thus immune to tort liability pursuant to OCGA § 34-9-11. See generally Worth County Indus. Dev. Auth. v. Lehigh Valley Indus., 183 Ga. App. 634 (359 SE2d 707) (1987).

2. When machinery is to be operated within eight feet of a high-voltage line, OCGA § 46-3-33 (a) requires the “person or persons responsible for the work to be done” to give prompt notification to the owner or operator of the lines. The phrase “person responsible for the work to be done” is defined in OCGA § 46-3-30 (2) and, when read in conjunction with OCGA § 46-3-33 (a), requires the person or persons immediately responsible for the operation of machinery within eight feet of a high-voltage line to give notice. See generally Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145) (1983); Savannah Elec. &c. Co. v. Holton, 127 Ga. App. 447, 449 (3) (193 SE2d 866) (1972). It is undisputed that only F&CCI undertook the operation of machinery within eight feet of any high-voltage line. It follows, therefore, that the county was not required to give notice and that the county’s failure to have given notice is not a basis for imposition of liability against the county for the death of appellant’s deceased.

Moreover, the failure to give notice was certainly not a proximate cause of the death of appellant’s deceased. The purpose of OCGA § 46-3-33 (a) is to place “a duty upon the owner and maintainer of high-voltage lines where notice is given of a ‘construction work risk’ although such owner would otherwise not be liable.” Carden v. Ga. Power Co., 231 Ga. 456, 457 (202 SE2d 55) (1973). Thus, the failure to have given notice would demonstrate only that the owner of the high-voltage lines owed no duty to appellant’s deceased. The only statutory duty that was owed to appellant’s deceased, the breach of which could be a proximate cause of his death, is that established by OCGA § 46-3-31: “No person or his agent shall require or permit any employee to perform any act [within eight feet of a high-voltage line] unless and until danger from accidental contact [there] with . . . has been effectively guarded against in the manner prescribed in Code Section 46-3-32.” This duty was owed to appellant’s deceased by his employer. See Pappas v. Hill-Staton Engineers, 183 Ga. App. 258 (358 SE2d 625) (1987). As noted above, his immediate employer was F&CCI and, if F&CCI was not an independent contractor but a servant of the county, the county would nevertheless be immune to tort liability as the statutory employer.

3. Appellant urges that a genuine issue of material fact remains as to the applicability of two exceptions to the general rule of non-liability for the negligence of an independent contractor.

Appellant first urges that the failure of the county to give notice pursuant to OCGA § 46-3-33 (a) “is the violation of a duty imposed by statute” and thus, is within the exception recognized in OCGA § 51-2-5 (4). This contention is clearly without merit for the reasons set forth in Division 2.

Appellant further urges that, “according to the [county’s] previous knowledge and experience, the work to be done [was] in its nature dangerous to others however carefully performed. . . .” OCGA § 51-2-5 (2). However, appellant has not rebutted the county’s showing that the bridge could have been safely built if the crane had been placed in a different location. Moreover, such work near high-voltage lines is permitted by OCGA § 46-3-30 et seq. so long as certain safety precautions are taken. Therefore, the work was not “dangerous ‘however carefully performed.’ Where the work is not inherently dangerous except as a result of the negligence of the contractor the employer is not liable. [Cit.]” Mason v. Gracey, supra at 153 (1b). “In Georgia Power Co. v. Gillespie, 49 Ga. App. 788 (176 S.E. 786) [(1934)] it was held that, although electricity is an inherently dangerous substance, where there was a safe way to perform the work and the negligence resulting in injury was purely collateral to the work contracted to be done, the employer would not be liable.” Community Gas Co. v. Williams, 87 Ga. App. 68, 79 (2) (73 SE2d 119) (1952). “It is apparent from the record that except for the negligent conduct of the independent contractor and its employees in doing this work, the injury would not have occurred.” Georgia Power Co. v. Gillespie, supra at 795. See also Allen v. Cooper, 145 Ga. App. 555, 556 (244 SE2d 98) (1978).

4. The trial court held that the county had no liability in its capacity as the owner or occupier of land because the evidence of record showed that possession and control of the work site had been relinquished to F&CCI at the time of the incident. See Black v. City of Cordele, 163 Ga. App. 322, 326 (293 SE2d 557) (1982) (factually distinguishing Daniel v. Ga. Power Co., 146 Ga. App. 596 (247 SE2d 139) (1978)); Amear v. Hall, 164 Ga. App. 163, 166-167 (2) (296 SE2d 611) (1982). A review of the record demonstrates that the trial court’s holding in this regard is correct.

5. Appellant urges that genuine issues of material fact remain as to her claim under 42 USC § 1983. In her complaint, she had alleged a violation of due process in that her husband’s death was a direct result of the failure of both the city and the county to enact any safety methods or procedures for construction projects.

“[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. . . . [The] purpose [of the Due Process Clause of the Fourteenth Amendment] was to protect the people from the State, not to ensure that the State protected them from each other.” (Emphasis supplied.) DeShaney v. Winnebago County Dept. of Social Svcs., 489 U. S. 189, 195-196 (109 SC 998, 103 LE2d 249) (1989). “Further, that ‘special relationship’ which [may] impose a duty to [establish safety standards] upon the state does not exist under these circumstances. Such a ‘special relationship’ arises ‘from the limitation which [the state] has imposed on [the person’s] freedom to act on his own behalf.’ [Cit.] ‘The key concept is the exercise of coercion, dominion, or restraint by the state.’ [Cit.]” Cleveland v. Fulton County, 196 Ga. App. 168, 169 (1) (396 SE2d 2) (1990). Compare Barnes v. Merritt, 376 F2d 8, 11 (5th Cir. 1967).

Decided June 25, 1991.

Mitchell, Coppedge, Wester & Bisson, Susan W. Bisson, Terry L. Miller, for appellant.

Renzo S. Wiggins, John T. Minor, Gleason & Davis, John W. Davis, Jr., David J. Dunn, Jr., for appellees.

Moreover, “ ‘[municipal [or county] liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives’ by city [or county] policymakers. [Cit.]” (Emphasis supplied.) City of Canton, Ohio v. Harris, 489 U. S. 378, 389 (109 SC 1197, 103 LE2d 412) (1989). See also Dinsmore v. Cherokee County, 177 Ga. App. 93, 94 (338 SE2d 523) (1985). In light of the state’s enactment of safeguards against contact with high-voltage lines, OCGA § 46-3-30 et seq., any need for the city or the county to address that issue is not “so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city [and the county] can reasonably be said to have been deliberately indifferent to the need.” City of Canton, Ohio v. Harris, supra at 390.

Judgment affirmed.

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


text:
    A91A0498.
    In the Interest of B. S. L., a child.
    (407 SE2d 123)
   Carley, Judge.

The relevant facts in the instant appeal are as follows: Having been adjudicated as delinquent by reason of his commission of a burglary, B. S. L. was placed on probation. After B. S. L.’s seventeenth birthday, he allegedly committed another burglary. However, no petition to revoke B. S. L.’s probation pursuant to OCGA § 15-11-42 (b) was filed. Instead, a delinquency petition was filed alleging that B. S. L.’s commission of the subsequent burglary was a delinquent act in that it was a violation of his probation. See OCGA § 15-11-2 (6) (B). The juvenile court found B. S. L. to be delinquent by reason of the commission of a designated felony act and, after determining that restrictive custody was required pursuant to OCGA § 15-11-37 (c), entered a dispositional order in conformity with OCGA § 15-11-37 (e). It is from that order that the State appeals.

The State’s contention is that the juvenile court erred in failing to enter its dispositional order in compliance with OCGA § 15-11-37 (f). OCGA § 15-11-37 (f) provides: “When the order is for restrictive custody in the case of a youth found to have committed any designated felony act and such youth has been found by a court to have committed a designated felony act on a prior occasion, regardless of the age of the youth at the time of commission of such prior act, the order of the court shall” impose a mandatory initial 18-month period of confinement in a youth development center.

“The juvenile court shall not have jurisdiction to initiate any new action against an individual for acts committed after he has reached the age of 17 years.” (Emphasis supplied.) OCGA § 15-11-5 (d). Thus, although the violation of probation may constitute a “delinquent act” in and of itself, a violation of probation which occurs after the juvenile’s seventeenth birthday will not authorize the initiation of a new delinquency petition against the juvenile. The juvenile court’s jurisdiction would extend only to revoking the juvenile’s probation for his previous adjudication of delinquency. The juvenile court “shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action: Concerning any child . . . [w]ho has been placed under the supervision of the court or on probation to the court; provided, however, that such jurisdiction shall be for the sole purpose of completing, effectuating, and enforcing such supervision or a probation begun prior to the individual’s seventeenth birthday. . . .” OCGA § 15-11-5 (a) (1) (F).

It follows that, if a probation revocation petition had been filed in the instant case, then the juvenile court would have been authorized to enter a dispositional order pursuant to OCGA § 15-11-37 if the original burglary was shown to be a “designated felony act.” “[I]t is permissible to subject probation violators to the sentence which might have originally been imposed upon them in lieu of probation, or to impose a greater sentence than that originally given. [Cit.]” In the Interest of B. N. D., 185 Ga. App. 906, 907 (366 SE2d 187) (1988). “However, no petition to revoke [B. S. L.’s] probation was ever filed in the juvenile court. Indeed, it appears that only a petition of delinquency was filed, alleging [B. S. L.] had committed the [delinquent act of violating his probation by perpetration of another burglary].” In re B. C., 169 Ga. App. 200, 201 (311 SE2d 857) (1983).

“Jurisdiction over the subject matter of a case cannot be conferred by agreement or consent. [Cits.] A judgment rendered by a court without jurisdiction of the subject matter is a nullity and is subject to reversal by the appellate courts on their own motion. [Cit.]” Barland Co. v. Bartow County Bd. of Tax Assessors, 172 Ga. App. 61, 62 (322 SE2d 316) (1984). Thus, the juvenile court in the instant case clearly did not err in failing to impose a mandatory 18-month period of confinement against B. S. L. This is true because the juvenile court had no subject matter jurisdiction to adjudicate B. S. L. to be delinquent by reason of his alleged commission of a burglary after his seventeenth birthday or to enter any dispositional order based on such a finding. Accordingly, those void orders are hereby reversed.

Decided June 25, 1991.

Thomas J. Charron, District Attorney, Amy H. McChesney, Assistant District Attorney, for appellant.

Derek H. Jones, for appellee.

Brian S. Lipscomb, pro se.

Judgment reversed.

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


text:
    A91A0510, A91A0511.
    HOLMES et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (407 SE2d 124)
   Carley, Judge.

The facts, insofar as they are relevant to these appeals, are as follows: After a vehicular collision, two suits were filed wherein appellants Randall Holmes and his employer, Hanna Creative Enterprises, Inc., and appellee Metropolitan Atlanta Rapid Transit Authority (MARTA) were named as defendants. The complaints alleged that MARTA had been negligent in allowing “a quantity of diesel or other type fuel or oil to spill onto the roadway, creating a potentially dangerous condition for vehicles travelling thereon [and] had been warned about creating such a potentially dangerous condition on numerous occasions prior to the date of the collision . . . and had the means and opportunity to discover and remove the diesel or other type of fuel or oil from the roadway prior to the time of the subject collision. ...” After discovery, MARTA moved for summary judgment in both cases and the trial court granted the motions. In their capacities as alleged joint tortfeasors, appellants filed appeals from the grant of summary judgment in favor of MARTA. See Merritt v. McCrary, 162 Ga. App. 825, 826 (1) (292 SE2d 920) (1982). Compare Shackelford v. Green, 180 Ga. App. 617 (349 SE2d 781) (1986), aff’d 257 Ga. 9 (356 SE2d 27) (1987). The two appeals are hereby consolidated for appellate disposition in this single opinion.

The evidence of record establishes that neither of the two plaintiffs nor appellant Holmes, the three individuals who had actually been involved in the vehicular collision, had personal knowledge of the existence of a spill on the roadway attributable to MARTA. In fact, neither of the plaintiffs nor appellant Holmes had any personal knowledge of the existence of any spill whatsoever on the roadway. One of the plaintiffs acknowledged that she had not noticed “any slickness on the road at all.” The other plaintiff acknowledged that she had not noticed “any kind of wetness on the pavement at all.” Appellant Holmes testified that the roadway had appeared “perfectly dry” to him and that he had never seen “any kind of liquid spillage of any kind” on the roadway. Thus, the parties’ own testimony negates the existence of a spill on the roadway, an essential element of the claim that MARTA has any liability for the vehicular collision, and, in the absence of any evidence to the contrary, the grant of summary judgment was proper. See generally Tolliver v. Hollingsworth, 161 Ga. App. 118 (289 SE2d 272) (1982).

The only sworn testimony offered in opposition to MARTA’s motion was the affidavit of a police officer who investigated the collision. In his affidavit, the officer stated that he had observed a large diesel spill at the scene and that he had been told by unidentified individuals that they had “observed diesel oil spill from a MARTA bus onto the [roadway] just prior to the [collision].” The officer’s testimony as to his observations after the collision would not appear to be probative as to the existence of a spill on the roadway at the time of the collision. “ ‘ “The doctrine of continuity, that is, that a state of things proved to have once existed is presumed to have continued to exist until a change or some adequate cause of change appears ([cit.]), does not include a presumption either that something shown to exist will continue in the future, or that it had previously existed. The doctrine is limited to the presumption that something which has been shown to have existed has thereafter continued to exist.” ’ [Cit.]” McCluskey v. American Oil Co., 224 Ga. 253, 255 (161 SE2d 271) (1968). Even assuming that the officer’s testimony regarding his post-collision observations would constitute probative circumstantial evidence as to the pre-collision existence of a spill on the roadway, that testimony would not be sufficient to rebut the direct evidence in the form of the parties’ testimony that, on personal knowledge, no such pre-collision spill existed. “ ‘ “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” ’ [Cit.]” Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (1979).

Decided June 25, 1991.

Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith, Paul R. Vancil, for appellants.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland,' Cynthia J. Becker, Ray C. Norvell, Sr., for appellee.

Moreover, even assuming that the officer’s testimony regarding his post-collision observations was otherwise probative as to the existence of a pre-collision spill on the roadway, his testimony was clearly not probative as to whether that spill was attributable to MARTA. “The testimony of the police officer in this case as to what he knew about [when and] how [any spillage] occurred clearly came from the lips of [unidentified witnesses] at some indefinite time after the occurrence. It was not testimony of an exclamation or surprise uttered at the time of, or so nearly in connection with, the occurrence as to reasonably be said to constitute a part of the res gestae.” Augusta Coach Co. v. Lee, 115 Ga. App. 511, 517 (154 SE2d 689) (1967). Compare Whitley v. State, 137 Ga. App. 68, 69 (2) (223 SE2d 17) (1975). “The hearsay statements] of the [unidentified witnesses], which [were] not part of the res gestae, [were] not admissible in a summary judgment proceeding. [Cit.]” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 66 (2c) (397 SE2d 576) (1990).

The evidence of record establishing that no genuine issue of material fact remains as to MARTA’s liability for the collision, the trial court correctly granted summary judgment in favor of MARTA.

Judgments affirmed.

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


author: Pope, Judge.

text:
    A91A0633.
    JACKSON v. DYCHES et al.
    (407 SE2d 126)
   Pope, Judge.

Earl Boatright and his wife suffered severe injuries when their automobile was struck by a vehicle driven by Joseph Morgan Jackson. Boatright’s wife died as a result of her injuries. Boatright, individually and in his capacity as executor of his wife’s estate, settled his claim against Jackson and signed a release in favor of Jackson, his agents, etc., “and all other persons. . . Boatright then filed a complaint for damages against defendants Don Dyches and Dyches Construction Company, alleging they were joint tortfeasors with Jackson. Defendants answered and defendant Don Dyches filed a third-party complaint against Jackson for contribution and indemnity for any damages plaintiff may recover from him. Both defendant Dyches and third-party defendant Jackson filed a motion for summary judgment, arguing they had been released from liability by plaintiff Boatright’s written release. Both motions were denied. Only third-party defendant Jackson appeals. We affirm.

Decided June 25, 1991.

Of course, the release precludes Boatright from filing a claim for damages against Jackson. The release in no way precludes defendant Dyches from bringing a claim against his alleged joint tortfeasor Jackson. Jackson, however, argues that defendant Dyches was also released by the plaintiff; he argues he cannot be brought in as a third party to the action because the action, itself, cannot be brought against Dyches.

This argument is contrary to the rule announced by the Georgia Supreme Court in Posey v. Med. Center-West, 257 Ga. 55, 59 (354 SE2d 417) (1987): “A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others for the same harm, unless it is agreed that it will discharge them. [Cit.] We further add that the intent of the parties to the release regarding its effect may be proven by external evidence as against a third party. . . . Williams v. Physicians &c. Hosp., Inc., [249 Ga. 588 (292 SE2d 705) (1982)].” (Indention omitted.) In Williams, the Supreme Court held that the boilerplate language, “all other persons,” when used in a release, does not serve to release a successive tortfeasor who is not named in the release, unless evidence shows the parties meant to include him. Posey extended the rationale of the Williams case, which involved successive tortfeasors, to cases involving joint tortfeasors. In this case, correspondence between the parties to the release shows the parties did not intend the release to apply to the alleged joint tortfeasor, Dyches. Thus, the reference to “all other persons” in the release did not operate to release Dyches. Plaintiff Boat-right is not precluded by his written release of Jackson from bringing an action against Dyches. As noted above, neither does the release preclude Dyches from bringing a claim against his alleged joint tortfeasor, Jackson.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Brannen, Searcy & Smith, Joseph J. Berrigan, David R. Smith, for appellant.

Kent & Rackett, R. Nathaniel Rackett III, Branan & Brogdon, Wallace M. Brogdon, Jr., for appellees.

       Jackson could have protected himself from liability for such a claim, up to the amount of the settlement, by obtaining from Boatright a promise to indemnify him and hold him harmless from liability for claims by other parties arising out of the incident. Our holding does not preclude Jackson from seeking indemnity from Boatright, up to the amount of the settlement, in the event a judgment is entered against Jackson on the third-party complaint, though we do not mean to hold that Jackson would be entitled to such a recovery; no such claim is now before us.


text:
    A91A0664.
    BORDEN v. POPE JEEP-EAGLE, INC.
    (407 SE2d 128)
   Pope, Judge.

On December 1, 1988, plaintiff/appellant Ronald E. Borden contracted with defendant/appellee Pope Jeep-Eagle, Inc., to purchase a 1989 Jeep Cherokee. Plaintiff traded in his 1986 Isuzu Trooper II as part of the deal. During the negotiations for the vehicle, plaintiff told the salesperson with whom he was dealing that he wanted a simple interest car loan. Plaintiff testified that the finance manager for defendant told him that there was no such thing as a simple interest car loan. After it became apparent that plaintiff was not going to purchase the vehicle unless he was given a simple interest loan, the finance manager produced a simple interest car loan. The form of that loan recited that the assignee of the loan would be First National Bank of Atlanta.

Plaintiff was asked by defendant to sign an additional form regarding the loan, which provided that the loan had not been officially approved by First Atlanta and that the defendant reserved the right to void the contract if First Atlanta did not approve the loan within three working days from the original delivery date. The form also provided that “[i]t is further understood that said vehicle will be returned by customer at Pope Jeep Eagle Inc.’s request if financing cannot be arranged.” It was signed by plaintiff and defendant’s representative. Plaintiff accepted delivery of the new vehicle on that same evening, December 1, 1988.

Plaintiff testified that on December 9, 1988, plaintiff received a call from the salesperson with whom he had dealt. The salesperson told him that he needed to return to re-execute some papers. When plaintiff inquired about exactly what he needed to sign, the salespérson refused to be more specific. Plaintiff also testified that beginning on or about December 13, 1988, he began receiving calls from defendant’s employees approximately once or twice a day telling him that he needed to return to execute certain papers, but the callers would not be more specific. Plaintiff further testified that on or about December 20, 1988, he received a call from the new car sales manager for defendant, who told him that if he “did not come in and resign these papers . . . they would come out to my apartment and arrest me, have the sheriff come to my apartment and arrest me for theft.” The new car sales manager denied those allegations. Defendant presented further evidence that it was their policy to never harass or threaten a customer. The evidence showed, however, that defendant was unable to sell plaintiff’s loan to First Atlanta and wanted plaintiff to agree to different contract terms so that his loan would be more marketable.

Shortly after plaintiff was contacted by defendant concerning rescission of the contract for sale of the vehicle, plaintiff sought the advice of legal counsel and on January 13, 1989, wrote to defendant insisting that the contract be honored, as written. It was stipulated by the parties that plaintiff’s trade-in was sold on December 10, 1988. The evidence is undisputed that even though defendant maintained that the contract had been rescinded, plaintiff made four payments on the vehicle, via certified mail, which defendant accepted. Defendant, however, refused to present plaintiff’s checks for payment in a timely manner. Plaintiff refused to make further payments to defendant. After plaintiff’s loan was in arrears four months, defendant repossessed the vehicle in question on September 19, 1989. Two days later, on September 21, 1989, defendant sent a letter to plaintiff informing him that the vehicle would be sold by private sale on October 5, 1989. Defendant, however, did not sell the vehicle until after the defendant prevailed at trial. Plaintiff did not purchase another vehicle before trial.

On December 8, 1989, plaintiff filed suit against defendant alleging the defendant’s conduct gave rise to claims for fraud, breach of contract, wrongful repossession, a violation of the Georgia Fair Business Practices Act, and a violation of the Georgia RICO Act. Defendant counterclaimed for breach of contract. A jury trial was conducted in this case in DeKalb State Court on August 14 and 15, 1990. The jury returned a verdict in favor of defendant and awarded defendant $18,830.11 on its counterclaim. Plaintiff moved for a new trial, but the trial court denied that motion.

Plaintiff filed this appeal asserting the following enumerations of error: (1) the verdict below is contrary to law and is an illegal verdict; (2) the trial court erred in excluding evidence that defendant refused to present plaintiff’s payment checks in a timely manner; (3) the trial court erred in failing to charge the jury on estoppel; (4) the trial court erred in failing to charge the jury on the Fair Business Practices Act; (5) the trial court erred in failing to charge the jury on fraud; (6) the trial court erred in failing to charge the jury on tort liability; and (7) the trial court erred in failing to charge the jury on wrongful repossession.

1. We will first address plaintiff’s assertion that it was error for the trial court to refuse to charge the jury regarding the Fair Business Practices Act (“FBPA”). The law is well-settled in Georgia that even though a single instance of an unfair or deceptive act can be a sufficient basis for a claim under the FBPA, that act does not apply to suits based upon deceptive practices which occur in transactions that are essentially private. Zeeman v. Black, 156 Ga. App. 82, 84-86 (273 SE2d 910) (1980). In other words, “ ‘[u]nless it can be said that the defendant’s actions had or has potential harm for the consumer public the act or practice cannot be said to have “impact” on the consumer marketplace and any “act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA.’ ” Waller v. Scheer, 175 Ga. App. 1, 4 (332 SE2d 293) (1985) (quoting Zeeman, supra at 84). Although plaintiff alleges it was error for the trial court to refuse to instruct the jury concerning the FBPA, we assume that the plaintiff is in fact appealing the trial court’s decision to direct a verdict for defendant as to that claim. A directed verdict is proper when there is no conflict of evidence as to any material issue and the evidence, together with all reasonable deductions therefrom, demands a particular verdict. Kent v. Hunt & Assoc., 165 Ga. App. 169, 170 (299 SE2d 123) (1983); Jones v. Smith, 160 Ga. App. 147, 148 (286 SE2d 478) (1981).

The trial court did not err in directing a verdict for defendant on the FBPA claim. There is no evidence that the defendant’s actions in this transaction had the potential for harming the general public. Defendant did not advertise simple interest contracts to the general public nor was there evidence that it was defendant’s practice to sell cars promising simple interest installment loans and later attempt to dishonor those contracts. Defendant entered into a simple interest installment loan with plaintiff at plaintiff’s urging. Accordingly, the trial court’s dismissal of plaintiff’s claim under the FBPA was correct.

2. We find plaintiff’s contentions that the trial court erred in failing to charge the jury on estoppel and in excluding evidence that defendant had not deposited plaintiff’s payments in a timely manner to be without merit. Plaintiff seeks to have this court equate defendant’s delay in depositing the checks received from plaintiff to those cases in which one prohibits another from being able to perform a contract and then sues the nonperforming party for breach of contract. See, e.g., Kent, supra. The facts of this case do not allow for such an analogy. Plaintiff had a legal obligation to pay for the automobile he purchased from defendant. Although there was evidence that First Atlanta was named as a secured party on the title of plaintiff’s vehicle, plaintiff at all times knew that defendant held the note to his vehicle. Since plaintiff sought to affirm the installment loan contract he had entered into with defendant and keep the vehicle, he was obligated to make payments to that party. While defendant’s refusal to cash plaintiff’s checks may have been frustrating for plaintiff, it did not change plaintiff’s obligations under the contract nor did it prevent plaintiff’s ability to perform thereunder. As plaintiff correctly pointed out in his supplemental brief to this court, when a party that received a check does not present the check for payment within a reasonable time, the party issuing the check may assume that it has been accepted. Studstill v. Amer. Oil Co., 126 Ga. App. 722, 725 (191 SE2d 538) (1972), aff'd and remanded 230 Ga. 305 (196 SE2d 847) (1973). For these reasons, the trial court correctly refused to give plaintiff’s requested charges on estoppel and prevention of contract performance.

3. Plaintiff also contends that the trial court erred in failing to charge the jury on wrongful repossession. As this court held in Hopkins v. First Union Bank, 193 Ga. App. 109, 113 (387 SE2d 144) (1989), wrongful repossession occurs when a repossession is accompanied by a wrongful act, which shall mean an act that “is iri contravention of some legal duty owed to the party from whose possession the vehicle is being taken.” Plaintiff argues that defendant’s untimely acceptance of plaintiff’s payments constitutes a wrongful act. As discussed above, while defendant’s failure to present plaintiff’s checks for payment in a timely manner may have been frustrating to plaintiff, defendant did not owe plaintiff a legal duty to submit plaintiff’s checks to his bank for payment. By refusing to present the checks for payment in a timely manner, defendant simply placed itself in the precarious situation that the checks might be dishonored when defendant decided to present them for payment. Thus, the tort of wrongful repossession cannot be based on defendant’s actions in that regard.

Plaintiff further argues that defendant’s untimely acceptance of plaintiff’s payments — also untimely on occasion — evidences mutual departure from the contract and the defendant should have notified plaintiff pursuant to OCGA § 13-4-4 that defendant intended to rely on the exact terms of the agreement before defendant sought to pursue its remedies under the contract. Plaintiff seems to suggest that defendant’s conduct of not presenting plaintiff’s checks in a timely manner for payment can be interpreted as defendant acquiescing in plaintiff’s use of the vehicle without payment. “As a general rule, evidence of acceptance by a creditor of repeated, late, irregular payments from a debtor creates a factual question as to the formation of a quasi new agreement.” Lewis v. C & S Nat. Bank, 174 Ga. App. 847, 848 (332 SE2d 11) (1985). In this case, as in Lewis, the plaintiff’s payments were not merely late and irregular, but the indisputed evidence showed that plaintiff had totally failed to make four payments. As this court held in Lewis, under such circumstances the secured party is clearly entitled to seek its remedies under the contract including acceleration of the debt and foreclosure proceedings, without giving the notice contemplated by OCGA § 13-4-4, even if defendant had accepted untimely payments in the past. Id. In light of the evidence presented at trial, the trial court did not err in failing to charge the jury on the tort of wrongful repossession.

4. We next address plaintiff’s contention that the trial court erred in refusing to give the jury his requested charges on fraud and torts. Plaintiff seemingly asserts several bases for its fraud claim against defendant. First, plaintiff attempts to premise a fraud claim on the evidence presented that defendant either knew or should have known that First Atlanta would not purchase the contract in question, but induced plaintiff into entering into the contract in question by leading plaintiff to believe that First Atlanta would become the assignee of the contract. Second, plaintiff alleges that defendant falsely represented that plaintiff must return the Jeep or face criminal charges. Finally, plaintiff claims that defendant’s conduct with regard to his trade-in gives rise to a fraud claim. The elements of fraud are: (1) that the defendant made the representations; (2) that at the time he made them he knew they were false; (3) that he made them with the purpose of deceiving plaintiff; (4) that plaintiff relied on those representations; and (5) that the loss or damage suffered by plaintiff was the proximate result of the false representations made by defendant. Thompson v. Huckabee Auto Co., 190 Ga. App. 540, 542 (379 SE2d 411) (1989).

With regard to plaintiff’s claims that fraud can be premised on defendant’s statement that he would be subjected to criminal charges if he did not return the Jeep and on defendant’s conduct with regard to his trade-in, there was no evidence presented at trial that plaintiff relied on those statements or acts or that plaintiff suffered any damage as a result thereof.

With regard to plaintiff’s claim that there was fraud in the inducement of the contract, the law is well-established in Georgia that fraud in the inducement renders a contract voidable at the election of the injured party. OCGA § 13-5-5. When a “ ‘purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased articles, he is estopped from asserting that he relied upon the seller’s misrepresentation and his action for fraud must fail. [Cits.]’ ” Roth v. Bill Heard Chevrolet, 166 Ga. App. 583, 584 (305 SE2d 31) (1983) (quoting Kot v. Richard P. Rita &c., Inc., 134 Ga. App. 438 (214 SE2d 690) (1975)). The record is replete with evidence that plaintiff affirmed the contract in question. Moreover, a review of that contract reveals that it contained a provision reciting that it was the full agreement between the parties. For these reasons, the trial court properly refused to instruct the jury on fraud.

We find plaintiff’s enumeration of error that the trial court erred in failing to give the jury his requested charge on torts to be without merit. The only two torts presented in this case were fraud and wrongful repossession. For the reasons we have discussed above, the trial judge properly refused to charge the jury on both those torts. There being no tort claims that could properly be submitted to the jury, the trial court correctly refused to give plaintiff’s requested charge on torts.

5. Finally, we address plaintiff’s contention that the verdict rendered below is contrary to the law and is an illegal verdict. Plaintiff asserts that the verdict rendered by the jury is contrary to the law because plaintiff was not given credit for the value of the repossessed collateral. In this case, defendant repossessed the automobile in September of 1989. The vehicle was not sold until after defendant prevailed at trial, which was approximately a year later. As this court noted in ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710, 711-712 (320 SE2d 784) (1984), “ ‘[o]nce default has occurred, the creditor is authorized to take or retain possession of the collateral. (OCGA § 11-9-503.) He may then proceed to reduce his claim to judgment, to foreclose on the goods, to dispose of the collateral in a commercially reasonable manner, or to retain the goods in satisfaction of the debt. (OCGA §§ 11-9-501; 11-9-503; 11-9-504; 11-9-505.) Nothing in the Code prohibits the creditor in possession of the goods from proceeding in a judicial action on the note. The remedies are cumulative and the creditor is not required to reduce himself to the position of an unsecured creditor so long as he acts in a commercially reasonable manner and does not, by his actions or omissions, further impair the position of the debtor.’ ” A creditor, however, cannot deprive the debtor of possession of the collateral for an unreasonable length of time and not reduce the debt owed by the reasonable value of the collateral at the time of repossession. “ ‘Once a creditor has possession he must act in a commercially reasonable manner toward sale, lease, proposed retention, where permissible, or other disposition ... If such disposition is not feasible, the asset must be returned, still subject, of course, to the creditor’s security interest. To the extent the creditor’s inaction results in injury to the debtor, the debtor has a right of recovery.’ ” Id. at 712 (quoting Henderson Few & Co. v. Rollins Communications, 148 Ga. App. 139, 141 (250 SE2d 830) (1978)).

Although defendant is correct in its assertion that it did not have to dispose of the collateral before pursuing judicial action on the note, defendant’s failure to dispose of the collateral and seek a deficiency judgment did not change the burden of proof that defendant had to meet before it could prevail on its counterclaim. “The secured party must. . . prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt. If this proof is not forthcoming, it is presumed that the value of the goods is equal to the amount of the debt.” Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596 (281 SE2d 338) (1981). Accord Farmers Bank &c. v. Hubbard, 247 Ga. 431, 435 (276 SE2d 622) (1981). The only evidence presented at trial concerning the value of the vehicle was evidence presented by defendant concerning the value of the vehicle at the time of trial. It is a matter of common knowledge that generally a vehicle depreciates in value each year. As this court found in Richard, absent evidence of the value of collateral at the time of repossession, the value of the goods is presumed to be equal to the debt owed. Thus, defendant did not meet its burden of proof in order to prevail on its counterclaim.

Decided June 25, 1991.

S. Robert Hahn, Jr., for appellant.

Timothy W. Hewett, for appellee.

Furthermore, neither party requested a charge concerning the commercial reasonableness of defendant’s conduct or that defendant could not recover more than the debt owed to it, and therefore, defendant’s recovery would have to be offset by the value of the collateral at the time of repossession. For both these reasons, the verdict of the jury is improper and the judgment rendered on that verdict cannot stand. This case is remanded to the trial court for a determination of the commercial reasonableness of the sale of the vehicle and the value of the vehicle at the time of repossession.

Judgment reversed and case remanded.

Birdsong, P. J., and Cooper, J., concur.

       Plaintiff later withdrew his Georgia RICO Act claim.


author: Sognier, Chief Judge.

text:
    A91A0673.
    SHOEMAKE v. SHOEMAKE.
    (407 SE2d 134)
   Sognier, Chief Judge.

Rex Shoemake brought a personal injury suit against Abby Shoemake in September 1990. In response, Ms. Shoemake filed a verified answer in which she averred that she and Mr. Shoemake were married on January 18, 1990 and “have been married ever since.” Ms. Shoemake then filed a motion to dismiss the complaint on the ground that it was barred by the doctrine of interspousal tort immunity. OCGA § 19-3-8. The trial court considered the facts set forth in Ms. Shoemake’s verified answer (as it was authorized to do, see Foskey v. Smith, 159 Ga. App. 163, 164-165 (283 SE2d 33) (1981), cert. vacated, 249 Ga. 32 (289 SE2d 248) (1982)) and, converting Ms. Shoemake’s motion to dismiss into a motion for summary judgment without objection by Mr. Shoemake, see Davidson v. American Fitness Centers, 171 Ga. App. 691, 693 (320 SE2d 824) (1984), granted the motion. Mr. Shoemake appeals.

Appellant contends the trial court erred by granting appellee’s motion because the trial court misapplied the doctrine of interspousal tort immunity to this case. We do not agree. The doctrine of inter-spousal tort immunity bars actions between spouses in respect to personal torts committed by one spouse against the other, see Robeson v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) (1981), except where the traditional policy reasons for applying interspousal tort immunity are absent, i.e., where there is no marital harmony to be preserved and where there exists no possibility of collusion between the spouses. Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984); Stanfield v. Stanfield, 187 Ga. App. 722 (371 SE2d 265) (1988). Since we have held that “there is [no] burden upon a defendant spouse to prove absence of collusion and the existence of marital harmony sufficient to invoke the [doctrine of interspousal tort] immunity, either as a defendant in suit, as movant in summary judgment, or as spouse,” Jones v. Jones, 184 Ga. App. 709, 710 (1) (a) (362 SE2d 403) (1987), rev’d on other grounds in 259 Ga. 49 (376 SE2d 674) (1989) and in Trust Co. Bank v. Thornton, 186 Ga. App. 706, 709 (368 SE2d 158) (1988), the grant of appellee’s motion was proper unless the record reveals that appellant’s suit falls within “that category of cases” of “extreme factual situations” as discussed in Stanfield, supra at 723, so as to authorize the courts to “deviate from a strict application of the general rule regarding interspousal immunity.” Id.

Even construing the record most strongly in favor of Mr. Shoemake as the respondent on motion for summary judgment and giving him the benefit of all favorable inferences and reasonable doubts, see generally Ga. Farm &c. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (379 SE2d 619) (1989), the only possible evidence we have found in the record indicating a lack of marital harmony is the slight inference created by the filing of the negligence action itself. Such an inference, pales beside the affidavit filed by the wife in Stanfield, supra, detailing the physical and mental abuse she had suffered at the hands of her husband, which provided explicit evidence that all marital harmony had ceased to exist in that household before the date of incident which was the subject of her suit. Despite such evidence, a majority of this court held that the husband in Stanfield was entitled to summary judgment as a matter of law on his defense of interspousal tort immunity. But see id. at 724-725 (Sognier, J., dissenting).

In view of the controlling authority of Stanfield, there is no question that this appeal does not present the necessary factual situation to authorize a deviation from the strict application of the doctrine of interspousal tort immunity. Contrary to appellant’s argument, nothing in GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595) (1986) supports his argument that the doctrine of interspousal tort immunity is not applicable in the case sub judice. Therefore, the trial court did not err by granting appellee’s motion.

Decided June 25, 1991.

Dale P. Smith, for appellant.

Blasingame, Burch, Garrard & Bryant, James B. Matthews III, for appellee.

Judgment affirmed.

Andrews, J., concurs. McMurray, P. J., concurs in judgment only.