text:
    75636.
    DENNY v. D. J. D., INC.
    (373 SE2d 383)
   Carley, Judge.

Appellee-plaintiff filed this suit, alleging two theories of recovery against appellant-defendant. One count of appellee’s complaint alleged that it had been fraudulently induced into entering a written contract to conduct a twelve-week “cost raising and/or going out of business sale” at appellant’s furniture store. The other count of appellee’s complaint alleged that its own furniture had been converted by appellant. The case was submitted to a jury under both the fraud and conversion theories. A general verdict in favor of appellee was returned and appellant appealed to this court. In Denny v. D. J. D., Inc., 186 Ga. App. 727, 729 (1) (368 SE2d 329) (1988), we held: “As to the fraud theory, the general grounds of appellant’s motion for new trial had merit. The trial court, therefore, erred in failing to grant a new trial as to the fraud count.” This holding resulted in a reversal of the judgment which had been entered on the general verdict returned for appellee. See Denny v. D. J. D., Inc., supra at 729 (3). Appellee’s petition to the Supreme Court for a writ of certiorari was granted. The Supreme Court neither affirmed nor reversed our judgment but merely remanded the case to us “for reconsideration in light of Peacock v. Forrest, [258 Ga. 158 (368 SE2d 519) (1988)].” In accordance with the Supreme Court’s mandate, we now undertake the reconsideration of this case.

1. In Forrest v. Peacock, 185 Ga. App. 189 (363 SE2d 581) (1987), a tenant, alleging her unlawful eviction, sought to recover against the landlord. The jury returned a verdict in favor of the landlord and the tenant appealed. This court reversed the trial court’s denial of the tenant’s motion for new trial on the general grounds. On certiorari, the Supreme Court reversed this court, holding: “The denial of the motion for new trial based on the general grounds was not error, as the evidence did not demand a verdict awarding money damages to the [tenant].” Peacock v. Forrest, 258 Ga., supra at 158.

Peacock v. Forrest, supra, is procedurally distinguishable from the case at bar. That tort case involved an appeal by the plaintiff from a judgment which had been entered on a jury verdict for the defendant. This tort case involves an appeal by the defendant from a judgment which has been entered on a jury verdict for the plaintiff. This procedural difference has appellate consequences. The appellate determination of whether the evidence in any given tort case demanded a verdict contrary to that finding which is represented by the jury’s verdict must necessarily differ depending upon whether the jury verdict under consideration was returned for the plaintiff or for the defendant. This difference in the appellate determination of an enumeration of the general grounds in a tort case stems from the fact that, in the trial of the case, it is the plaintiff who must bear the burden of proof as to the defendant’s liability. “While under notice pleading one need allege no more than a claim to relief, once the trial begins, under the evidentiary process, the plaintiff must still establish the elements of the right to recover.” Shivers Chix v. Ga. Farm Bureau Ins. Co., 150 Ga. App. 453, 454 (258 SE2d 208) (1979). “The burden is upon the plaintiff to make out his case. It is not accomplished by failure of the defendant to disprove allegations of the petition. Until there is proof of the allegations by the plaintiff the defendant is under no duty to do anything.” Clark v. Atlanta Veterans Transp., 113 Ga. App. 531, 534 (1) (148 SE2d 921) (1966).

Accordingly, a jury verdict returned in favor of the defendant in a tort case, as in Peacock v. Forrest, supra, represents a finding by the jury that the plaintiff did not meet his burden of proof as to the defendant’s liability for damages. As against this negative finding by the jury against the plaintiff, an appellate court would not be authorized to hold that a contrary positive verdict in favor of the plaintiff was demanded unless a review of the record demonstrated that, as a matter of law, the plaintiff had met his initial burden of proof as to the defendant’s liability and that the defendant had then failed to produce any evidence as to his non-liability. See generally Wardlaw v. Frederick, 13 Ga. App. 594, 595 (5) (79 SE 523) (1913). Thus, an appellate court’s reversal on the general grounds of a judgment which was entered on a jury verdict returned for the defendant in a tort case requires the existence of undisputed evidence of the defendant’s liability for damages.

Accordingly, we can only construe the opinion in Peacock v. Forrest, 258 Ga. 158, supra, to be a holding which was based upon one of two possible constructions by the Supreme Court of the evidence of the record in that case: Either the record showed that the plaintiff-tenant, had not met her initial burden of proof as to the defendant-landlord’s liability for damages for unlawful eviction or, in the alternative, the record showed that the defendant-landlord had countered the plaintiff-tenant’s showing with evidence sufficient to authorize the jury to make a contrary finding in his favor. In either event, the record in Peacock v. Forrest, supra, would not disclose the existence of undisputed evidence of the defendant-landlord’s liability for wrongful eviction and, absent such undisputed evidence, a positive finding and consequent verdict for damages in favor of the plaintiff-tenant would not have been demanded. Instead, the jury’s negative finding against the plaintiff-tenant as represented by its verdict returned for the defendant-landlord would be authorized and this court erred in reversing the trial court’s denial of the plaintiff-tenant’s motion for new trial on the general grounds.

A jury verdict in favor of the plaintiff in a tort case, as in the case at bar, represents a finding by the jury that the plaintiff did meet his burden of proof as to the defendant’s liability for damages. As against this positive finding by the jury in favor of the plaintiff, an appellate court would be authorized to hold that a contrary negative verdict against the plaintiff and in favor of the defendant was demanded if, but only if, a review of the record demonstrated, as a matter of law, that the plaintiff had failed to meet his burden of proof as to the defendant’s liability. See generally Harrison v. Harrison, 228 Ga. 126 (184 SE2d 147) (1971). Thus, an appellate court’s reversal on the general grounds of a judgment entered on a jury verdict which was returned for the plaintiff in a tort case requires the absence of any evidence of the defendant’s liability for damages. “The verdict of a jury which has the approval of the trial judge will not be set aside by this court if it is supported by any evidence. [Cits.] If there is no evidence to support a finding, a new trial must be granted. [Cit.] If there is doubt, the appellate court must decide in favor of verdicts. [Cit.]” (Emphasis in original.) Branch v. Anderson, 47 Ga. App. 858 (171 SE 771) (1933).

In our original opinion in this case, we reviewed the record and found that, notwithstanding the jury’s verdict, there was no evidence which would authorize a finding of appellant’s liability for damages for fraud: “[T]he evidence shows only that the parties entered into a contract after arms-length negotiations. Thereafter, the contract did not produce the results which had been anticipated by appellee and the business relation ended acrimoniously, with appellant possibly converting the furniture belonging to appellee. However, an acrimonious and possibly tortious end to a contractual relationship does not show that appellee had been fraudulently induced into that relationship from the outset. As to the fraud theory, the general grounds of appellant’s motion for new trial had merit.” Denny v. D. J. D., Inc., supra at 729 (1). Unless our original construction of the evidence of the record in this case was erroneous, our original holding was correct, for the record would disclose the absence of any evidence to authorize the positive finding and consequent verdict for appellee as to appellant’s liability for fraud. We have again reviewed the record in this case and we adhere to our original assessment that there is no evidence which would authorize the jury to return a verdict in favor of appellee as to the issue of appellant’s liability for fraud. “The trial court, therefore, erred in failing to grant a new trial as to the fraud count.” Denny v. D. J. D., Inc., supra at 729 (1).

Decided September 7, 1988

Rehearing denied September 19, 1988

Christopher G. Nicholson, for appellant.

Had the jury in this case returned a negative verdict against the plaintiff and in favor of the defendant as to the fraud count and had the plaintiff appealed and enumerated the general grounds, we would then have reviewed the record to determine whether there existed undisputed evidence of the defendant’s liability for damages that a contrary positive verdict in favor of the plaintiff was demanded as a matter of law. Peacock v. Forrest, 258 Ga. 158, supra. The jury in this case, however, returned a verdict in favor of the plaintiff, not the defendant. Accordingly, the only issue which was raised was whether appellee, as plaintiff, had met its burden of proof by adducing any evidence to authorize that positive verdict in its favor as to the liability of appellant, as defendant, for fraud. Appellee did not do so, and, under applicable principles of law, a negative verdict was demanded against appellee and in favor of appellant based upon the former’s failure to carry its burden of proof as to this issue. The decision in Peacock v. Forrest, 258 Ga. 158, supra, is inapplicable and does not authorize a holding which is contrary to that originally reached in this case.

2. Having adhered to our original holding that the evidence did not authorize a verdict on the fraud count in favor of appellee, as the plaintiff, against appellant, as the defendant, we likewise adhere to our original holding that the judgment entered on the general verdict in favor of appellee must be reversed. Denny v. D. J. D., supra at 729 (3).

Judgment reversed.

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

Stephen E. Curry, for appellee.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    76679.
    LOUIS v. THE STATE.
    (373 SE2d 231)
   Sognier, Judge.

Appellant was convicted of trafficking in cocaine and he appeals.

1. In his first three enumerations of error appellant contends the evidence is not sufficient to support the verdict, and therefore, it was error to deny his motion for a directed verdict of acquittal.

The evidence disclosed that pursuant to information received over a three-day period from two confidential informants, together with surveillance of a house where drugs were allegedly being sold, Investigator Hank Lowry of the Houston County Sheriff’s Department obtained a “no-knock” warrant to search the premises and the curtilage for cocaine. The warrant was executed about 11:00 or 11:15 p.m. and appellant, Jan Hunt, lessee of the house, and her baby, were present. Appellant was patted down by Lieutenant Arthur Harris, who felt something in appellant’s pocket which Harris thought was a package of cocaine. Therefore, Harris made a complete search of appellant. Although no contraband was found appellant had approximately $3,100 cash in his pockets. Appellant acknowledged that a car parked in the carport was his and when the car was searched, approximately $25,000 cash and some paper and plastic bags containing a white powdery substance were found under the hood. The powdery substance was analyzed and one bag contained 84 grams of cocaine with a purity of 66 percent. The other bags did not contain controlled substances but contained benzocaine, which can be purchased legally without a prescription. A set of scales and a syringe were also found in the house. Appellant did not testify on the merits or present any defense evidence.

We find this evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellant’s motion for a directed verdict of acquittal. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).

2. Appellant alleges error by the trial court in denying his motion to suppress evidence seized in the search of the premises. Appellant argues that because he was a mere visitor on the premises, the police had no authority to search him or his automobile. This enumeration of error is without merit.

In addition to the evidence summarized in Division 1, evidence was adduced at the suppression hearing that the informants told Investigator Lowry that two black Haitian males were selling cocaine on the premises. At Lowry’s request, one of the informants went to the house and observed two sales of cocaine less than twenty-four hours before the warrant was executed. The surveillance team observed appellant’s car in the carport about four hours before the search was conducted; they departed and returned shortly before the warrant was executed and at that time appellant’s car was gone. However, the car returned and a black male got out of the car and went in the house. When the police entered the house immediately thereafter, appellant was the only black male present, and it was determined that he was Haitian. After being patted down and searched, appellant acknowledged that the car in the carport belonged to him, and when asked for the keys, stated they were on the table with his other possessions which had been removed from his pockets. While appellant was being searched a small plastic bag containing a white powder fell out of a blanket wrapped around Hunt’s baby, who was on the couch.

Appellant testified at the suppression hearing that he was visiting Jan Hunt, whom he had met in Florida about six months earlier. Appellant testified he was getting ready to buy a boat, and had hidden the money under the hood of his car so he would not be robbed. Appellant also testified that he had been at the house about fifteen minutes when the warrant was executed, and denied having been there earlier. He also denied any knowledge of the cocaine, or how it got under the hood of his car.

Appellant argues that because he was only a visitor at the house the police had no authority to search him. We do not agree. Although no person was named in the warrant because the police were unable to determine who occupied the house, OCGA § 17-5-28 (2) provides: “In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time: ... To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.” We find that under the facts of this case, the search of appellant was authorized by § 17-5-28 (2). The police had information that two black Haitian males were selling cocaine in the house, and appellant was the only black Haitian male present. Thus, it was reasonable for the police to believe that appellant was one of the two men selling cocaine in the house. Although appellant claimed he had only been at the house for fifteen minutes, the police had observed his car there four hours earlier. Lieutenant Harris testified that appellant did not state he was a visitor, (although appellant testified at the suppression hearing that he told the police he was just visiting). Thus, when Lieutenant Harris felt what he believed was cocaine in appellant’s pocket, he was justified in searching appellant to prevent the disposal or concealment of articles (cocaine) named in the search warrant. See, e.g., Campbell v. State, 139 Ga. App. 389, 391 (4) (228 SE2d 309) (1976). Accordingly, we find the search of appellant was lawful.

Decided September 7, 1988

Rehearing denied September 19, 1988.

R. Robider Markwalter, for appellant.

G. Theron Finlayson, District Attorney, George R. Christian, Assistant District Attorney, for appellee.

We also find the search of appellant’s vehicle was authorized by the warrant. The warrant authorized a search of the premises and curtilage, and appellant’s car was parked in the carport within the curtilage. We have held that a vehicle parked within the curtilage is subject to search. Bellamy v. State, 134 Ga. App. 340, 341 (2) (214 SE2d 383) (1975); Robinson v. State, 180 Ga. App. 43, 49 (2E) (348 SE2d 662) (1986), (reversed on other grounds, 256 Ga. 564). Hence, the trial court did not err by denying appellant’s motion to suppress.

3. Appellant filed a supplemental brief containing an additional enumeration alleging error in the trial court’s charge that appellant could be found guilty if the jury believed beyond reasonable doubt that appellant was in constructive possession of more than 28 grams of cocaine. Although appellant objected to the court’s giving the definition of trafficking in cocaine twice, appellant made no objection to the charge now enumerated as error when asked by the court if counsel had any objections to the charge, and he did not reserve exceptions to the charge. Thus, he has waived his right to enumerate this charge as error. Henry v. State, 176 Ga. App. 462, 464 (5) (336 SE2d 588) (1985).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Deen, Presiding Judge.

text:
    77169.
    BAYLES v. THE STATE.
    (373 SE2d 266)
   Deen, Presiding Judge.

The appellant, Raymond Bayles, was charged with sodomy, aggravated child molestation, and attempted sodomy. In this interlocutory appeal from the denial of his motion to suppress, Bayles contends that the search warrant was improperly issued because the information given in application for the warrant was stale.

The averring officer, in applying for the warrant to search Bayles’s residence, related information given by six boys who claimed that Bayles had molested or sodomized them. All of the boys recalled various accessories which were used by Bayles in accomplishing his sexual deviancy and which were actually found during the search of his residence: “Polaroid pictures of boys; some fully clothed, some in bathing suits and underwear; a couple of pictures of a male, who appeared to be in his early twenties, without any clothes on; . . . Playboy magazines, three magazines that had nude photographs of men, a book on boy prostitution in America ... a red enema bag that several of the boys we interviewed said would be there, a thermometer that several of the boys also advised had been used in sexual acts, a couple of pairs of boys’ shorts, a Polaroid, or some style of Polaroid camera, a small book on erotic sexual positions, a book called ETC . . . a small amount of marijuana was discovered, and liquor. . . .”

Decided September 19, 1988.

Jesse G. Bowles III, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

The averring officer acknowledged that at the time of the application for the search warrant, the most recent information was approximately six months old and some of the information was almost two years old; however, the officer emphasized that during his investigations of approximately fifty other sexual offense cases it had been his experience that pedophiles usually retained the type of materials remembered by the boys in this case. Held:

Bayles contends that the information related by the averring officer was too stale to support issuance of a search warrant. “Time is assuredly an element of the concept of probable cause. Johnston v. State, 227 Ga. 387, 390 (181 SE2d 42) (1971). However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.]” State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).

In the instant case, the information related by the averring officer indicated the existence of an ongoing scheme of child molestation and sodomy, with six different boys recounting similar episodes over the past two years. Because of that ongoing scheme, “the passage of time becomes less significant than would be the case with a single, isolated transaction.” State v. Luck, supra; see also Midura v. State, 183 Ga. App. 523 (359 SE2d 416) (1987). That evidence of an ongoing scheme provided the magistrate with the requisite substantial basis for concluding that probable cause existed. State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). Accordingly, the trial court properly denied Bayles’s motion to suppress.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77356.
    LATHAN v. THE STATE.
    (373 SE2d 388)
    Decided September 19, 1988.

      Nelson Jarnagin, for appellant.

      Thomas C. Lawler III, District Attorney, Terry L. Lloyd, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

The appellant, Clifford Lathan, was arrested for trafficking in cocaine, after a search of the vehicle he was driving revealed approximately 2 kilos of cocaine, and he has remained incarcerated since his arrest. Following a hearing, the trial court denied Lathan’s petition for release on bail, finding that Lathan posed both a significant danger to the community and a significant risk of fleeing the jurisdiction. This appeal followed. Held:

OCGA § 17-6-1 (a) provides that the offense of “trafficking . . . any Schedule I or II controlled substances are bailable only before a judge of the superior court; and the granting of bail is, in every case except as otherwise provided in subsection (b) of this Code section, a matter of sound discretion.” The trial court’s decision will not be reversed on appeal absent a clear abuse of that discretion. Spence v. State, 252 Ga. 338 (313 SE2d 475) (1984). In this case, in denying bail the trial court concluded that Lathan posed a significant danger to the community, considering the fact that he was caught trafficking approximately four and one half pounds of cocaine, and that Lathan posed a significant risk of fleeing the jurisdiction, in view of his custodial statement to the police that, because he feared harm from the other people involved, he could tell them only that he was paid $100 to transport the cocaine. See OCGA § 17-6-1 (c). We find no clear abuse of discretion in the trial court’s decision here to deny bail.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76391. 76392. 76393.
    AUTO-OWNERS INSURANCE COMPANY v. BARNES. BARNES v. AUTO-OWNERS INSURANCE COMPANY et al. CALDWELL & LANGFORD INSURANCE AGENCY, INC. v. BARNES.
    (373 SE2d 217)
   Sognier, Judge.

James Barnes, the sole proprietor of a tire service and garage, brought suit against his insurance carrier, Auto-Owners Insurance Company (A-O), Caldwell & Langford Insurance Agency (C & L), an independent insurance agency, and Robert C. Doughty, a licensed insurance agent and officer of C & L, seeking payment for the loss of property of others which had been in Barnes’ garage when the premises were destroyed by fire, as well as bad faith penalties and attorney fees against the insurer for failing to pay the claim. The trial court directed a verdict in favor of Doughty, and he is not involved in this appeal. A verdict was also directed in favor of A-0 as to Barnes’ claim under the liability portion of the policy. The jury returned a verdict in favor of Barnes against A-0 but not C & L, and awarded penalties and attorney fees. All three parties appeal.

The record reveals that the policy contained a section providing coverage for property damage, as well as one providing liability coverage. In addition to the building and personal property belonging to Barnes, a substantial amount of property belonging to others which Barnes was holding on consignment, as well as tools and equipment belonging to family member employees of Barnes, were destroyed in the fire. Barnes sought payment from A-0 under the policy for the loss of his own property, as well as reimbursement for sums he had paid the owners of the consigned property and the tools. While promptly paying Barnes’ claim for the building and his own personalty up to the policy limits, A-0 paid only $2,000 of Barnes’ claim for the personal property belonging to others.

1. In Case No. 76391, A-0 contends the trial court erred by denying its motion for a directed verdict as to coverage under the property insurance portion of the policy. A-0 argues that under specific policy provisions it was obligated to pay Barnes only $2,000 for property belonging to others which was lost or damaged in the fire.

The declarations portion of the policy provides that “[t] his insurance shall cover for the account of the owner(s) (other than the named insured) personal property belonging to others in the care, custody or control of the insured. ...” However, later specific provisions clearly provide property insurance coverage only “up to 2% of the limit of liability specified for Personal Property of the Insured at such location, but not exceeding $2,000, as an additional amount of insurance, to cover . . . direct loss by a peril insured against to personal property, similar to that covered by this policy, belonging to others while in the care, custody or control of the named insured,” and state that “[a]s respects personal property belonging to others, this provision shall replace any loss payable provision of this policy.”

We reject Barnes’ argument that the general statement in the declarations controls, as such a construction contradicts explicit language to the contrary later in the policy. “ ‘An insurance policy must be construed as a whole [cit.], and “all of the provisions should be so interpreted so as to harmonize one with the other.” [Cit.]’ [Cit.]” Wil son v. Southern Gen. Ins. Co., 180 Ga. App. 589, 590 (349 SE2d 544) (1986). Rather we find the language in the declarations to be merely a general statement as to the type of property covered by the policy, the terms of coverage for which are set out specifically later in the policy. “ ‘Insurance is a matter of contract and rules governing construction of contracts are applicable to insurance contracts. [Cit.]’ [Cit.]” Id. It is well established that “[u]nder the rules of contract construction, a limited or specific provision will prevail over one that is more broadly inclusive. [Cit.]” Griffin v. Barrett, 155 Ga. App. 509, 510 (271 SE2d 647) (1980). The specific terms in this policy limit the coverage provided for property belonging to others.

Although the provisions of an insurance policy “will be construed against the insurer when a part is susceptible of two constructions and a court will adopt that interpretation which is most favorable to the insured . . . [,] if the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as written. [Cit.] Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision ‘ “is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.” ’ [Cit.]” Simmons v. Select Ins. Co., 183 Ga. App. 128, 130 (358 SE2d 288) (1987). We agree with A-0 that the foregoing provisions are clear and unambiguous in limiting coverage for personal property owned by persons other than the named insured to a maximum of $2,000. Accordingly, A-0 was entitled to judgment as a matter of law and the trial court erred by denying its motion for a directed verdict as to the issue of coverage under the property insurance portion of the policy.

2. A-0 also contends in Case No. 76391 that the award of penalties and attorney fees against it was improper. The award of penalties and attorney fees was based on A-O’s refusal to pay more than $2,000. Since “[t]he Supreme Court has held that ‘[an award of statutory penalties and attorney fees] is not authorized if an insurer had reasonable and probable cause for making a defense to the claim,’ [cits.],” Commercial Union Ins. Co. v. F. R. P. Co., 172 Ga. App. 244, 250 (4) (322 SE2d 915) (1984), and we have held in Division 1, supra, that A-0 was correct in withholding payment of more than $2,000, under the facts of the instant case we find that neither the statutory penalty nor attorney fees were authorized as a matter of law, id., and the judgment awarding them is consequently reversed.

3. In Case No. 76392, Barnes first asserts the loss of property belonging to others met the requirements for coverage under the liability portion of the policy, and the trial court erred by directing a verdict against him as to this issue. We do not agree.

The liability portion of the policy obligated A-0 to pay Barnes’ claim insofar as the property of others was concerned only to the extent that (a) Barnes’ liability was imposed upon him by law, or (b) Barnes assumed liability for damages under a contract as defined by the policy. The policy expressly prohibited Barnes from voluntarily making any payment or assuming any obligation for any expense other than immediate medical relief and further provided that A-0 was not subject to suit by Barnes unless he fully complied with all of the terms of the policy and “until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the Company.”

We find that the claim here meets none of the requirements for coverage under the liability portion of the policy. No evidence was presented that there had been a final legal determination of Barnes’ liability to the owners of the destroyed or damaged property, nor did Barnes demonstrate that any liability could be imposed by law against him in favor of the owners of the property. While it is uncontroverted that Barnes paid the claims made upon him by the owners of the destroyed property, it is undisputed that the claims were neither reduced to judgment nor agreed to by the insurance carrier. Thus, Barnes’ payment of those claims must be classified, for purposes of the insurance policy, as voluntary payments. As to the contractual assumption of liability provision, Barnes does not contend the agreements he had with the owners of the consigned property fit into five of the six categories of contract, as defined by the policy, the assumption of which would meet the requirements for liability coverage. Rather, Barnes ingeniously asserts that because the sixth category, “sidetrack agreements,” was not explained in the policy, it was ambiguous, creating a question of fact and allowing the jury to decide whether Barnes’ agreements were “sidetrack agreements” so as to provide liability coverage. However, “[w]ords generally bear their usual and common signification.” OCGA § 13-2-2 (2). We agree with the trial court that the term “sidetrack agreements,” although not fully explained, clearly refers to railroads, and in its ordinary meaning does not contemplate the agreements made by Barnes. Since Barnes’ claim did not meet the requirements for coverage under the liability portion of the policy, a verdict in favor of A-0 was demanded as to this issue, and the trial court did not err by granting A-O’s motion for a directed verdict as to this issue.

4. The case was submitted to the jury by special verdict, by which they were authorized to consider C & L’s liability to Barnes only if they found A-0 was not liable to Barnes on the issue of coverage. Because the jury determined A-0 was liable to Barnes on the issue of coverage, they did not reach the question of C & L’s liability. In his second enumeration of error in Case No. 76392, Barnes appears to maintain that if this court determines that A-0 had no liability to him because the policy provided no further coverage, then C & L’s liability must be reexamined.

Decided September 6, 1988

Rehearing denied September 20, 1988

William C. Sanders, for Auto-Owners

Russell M. Guttshall III, for Barnes.

Mark A. Gonnerman, Dawn G. Benson, for Caldwell & Langford.

We agree that the issue of C & L’s liability must be reviewed, and turn to that issue. C & L’s liability, as alleged by Barnes, arises from its negligent procurement of insurance which did not provide the coverage desired and sought by Barnes. However, “the general rule [is] that an insured has a duty to examine and reject a policy providing incorrect or insufficient coverage . . . .” King v. Brasington, 252 Ga. 109-110 (312 SE2d 111) (1984). Here, as in Epps v. Nicholson, 187 Ga. App. 246 (370 SE2d 13) (1988), there are no circumstances which operated to create an exception to the general rule that the burden is on the insured to examine the policy issued and determine whether the coverage desired by the insured is provided. The insured’s failure to carry this burden does not create a cause of action against the agency which procured the insurance. Ethridge v. Assoc. Mutuals, 160 Ga. App. 687, 690 (288 8E2d 58) (1981). Accord McCullohs Svc. Station v. Wilkes, 183 Ga. App. 687, 690 (1) (359 SE2d 745) (1987); Blalock v. Southern Ins. Co., 180 Ga. App. 319, 320 (349 SE2d 32) (1986). Accordingly, the judgment in C & L’s favor is correct, albeit for the wrong reason. It is well established that “[a]n appellate court in reviewing a lower court decision will affirm a judgment which is right for any reason. [Cit.]” Smith v. Fleming, 183 Ga. App. 342, 343 (1) (358 SE2d 900) (1987).

5. It is unnecessary for us to address further the contentions put forth by C & L in Case No. 76393, as our decision in Division 4 of this opinion requires that we affirm the judgment in favor of C & L.

Judgment affirmed in Case Nos. 76392 and 76393.

Judgment reversed in Case No. 76391. Deen, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    76808. 76809.
    COBB v. POPEYE’S, INC. K. WEILBAECHER ENTERPRISES, INC. v. COBB.
    (373 SE2d 233)
   McMurray, Presiding Judge.

Plaintiff Cobb brought this unusual “slip and fall” case against Popeye’s, Inc. (“Popeye’s”) and K. Weilbaecher Enterprises, Inc. (“KWE”). Following discovery, each defendant moved for summary judgment. Defendant Popeye’s’ summary judgment motion was granted and defendant KWE’s summary judgment motion was denied. Plaintiff appeals, enumerating error upon the grant of Popeye’s’ summary judgment motion. KWE cross-appeals, enumerating error upon the denial of its summary judgment motion.

Viewing the evidence in favor of plaintiff, the party opposing the summary judgment motions, as we are bound to do, Blount v. Seckinger Realty Co., 167 Ga. App. 778, 779 (1) (307 SE2d 683), we find the following: KWE operates three fast food restaurants in Savannah, Georgia, pursuant to a franchise agreement with Popeye’s. One such restaurant is located on W. Broad Street. Popeye’s only connection with the W. Broad Street restaurant is to provide supplies and consultation services for the operation of the franchise. The restaurant’s employees are employed by KWE. Popeye’s maintains no control over them.

On August 6, 1984, the parking lot and sidewalks at the W. Broad Street restaurant were scrubbed, washed and inspected. (The cleaning took place every morning before the restaurant opened. Thereafter, once the customers began to arrive, the parking lot and sidewalks were to be inspected every thirty minutes.) Shortly thereafter, between 8:00 and 9:00 a.m., plaintiff, a refrigeration repair man, went to the restaurant to fix a walk-in freezer. He parked in the rear of the restaurant and entered through the back door.

Plaintiff soon realized that he would have to go on the roof of the restaurant in order to fix the freezer. He obtained a ladder from his truck and looked for the best place to put it. Noticing that the pavement was still wet in several places, plaintiff chose the driest spot to put the ladder.

Before starting up the ladder, plaintiff looked at the soles of his shoes (he made a habit of doing so) and noticed a granular substance on them. He thought the substance adhered to his shoes because he had walked in the damp areas around the restaurant.

Plaintiff went on the roof and adjusted a time clock. As he was coming down, the ladder slipped out from under him. Plaintiff grabbed a gutter — but it would not hold his weight. He fell to the ground and broke his leg.

Lying on the paved surface, plaintiff noticed a thin layer of grease on the surface covered with a granular substance. He did not know how it got there or how long it had been there. He was sure, however, that the ladder (which had rubber, non-skid “feet”) slipped on it.

First aid was administered to plaintiff at the restaurant. Thereafter, he was taken to a hospital in an ambulance.

One of the medical technicians who treated plaintiff at the restaurant was warned “by various people” of the slippery condition of the pavement where plaintiff was lying. She could not readily see any grease on the pavement because it was covered with a “light coating of a granular substance.” She observed, however, that the soles of her shoes became coated with that substance.

One of plaintiff’s co-workers arrived at the restaurant to finish repairing the freezer. While he was on the roof, the co-worker saw two people, dressed in “Popeye’s” uniforms, “come outside and spread a granular substance on the sidewalk and pavement in the immediate vicinity” of plaintiff’s fall. He also saw them spread the substance in an area where grease barrels were stored.

The co-worker left the restaurant for about thirty minutes to check on some parts. When he returned, he noticed that the “sidewalks and pavement had been thoroughly cleaned.” The granular substance had been removed entirely and the grease barrels had been moved to another location.

KWE’s assistant manager averred that she was on duty when plaintiff fell from the roof and that she did not see any grease on the pavement either before or after plaintiff fell. (Two other KWE employees also averred that they did not see any grease on the pavement.) With regard to the grease barrels, the assistant manager deposed that they contained the grease which was drained weekly from the restaurant’s deep fryers; that the grease was not “splashable”; that the barrels were fitted with lids; and that they were kept outside the restaurant by the back door. She also deposed that if the grease was ever spilled, it was cleaned up immediately with a special solution. Held:

1. The Main Appeal (Case No. 76808). Popeye’s maintained no control over the operation of the restaurant. As the franchisor, it simply provided supplies and consultation services to KWE and KWE’s employees. Accordingly, it cannot be said that Popeye’s breached any duty to plaintiff. Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85). The trial court did not err in granting Popeye’s’ motion for summary judgment.

2. The Cross-Appeal (Case No. 76809). Although there is authority for dismissing the cross-appeal, Marietta Yamaha v. Thomas, 237 Ga. 840 (229 SE2d 753), we will follow the spirit of Executive Jet Sales v. Jet America, 242 Ga. 307 (248 SE2d 676), and consider the cross-appeal on its merits. Garrett v. Heisler, 149 Ga. App. 240, 242 (2) (b) (253 SE2d 863).

“[I]n order for a defendant to successfully move for summary judgment in a foreign substance slip and fall case, it must come forward with evidence tending to show that (1) it had neither actual nor constructive knowledge of the foreign substance or that (2) plaintiff had knowledge of the substance. See Rodriquez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291); Carder v. K-Mart, 185 Ga. App. 143 (363 SE2d 593). See also Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523).” Baggs v. Chatham County Hosp. Auth., 187 Ga. App. 834, 836 (371 SE2d 653).

Decided September 7, 1988

Rehearing denied September 20, 1988

David G. Hammock, for Cobb.

KWE’s employees averred that they had no actual knowledge of the grease which caused plaintiff to fall. (In fact, they stated that they did not see any grease either before or after plaintiff fell.) No direct evidence contradicts their averments. But the circumstantial evidence suggests that they knew about the grease all along.

Barrels containing grease were stored at the rear of the restaurant by the back door. There was grease on the pavement where plaintiff fell and the grease was covered with a granular substance. KWE’s employees were seen spreading such a substance at the rear of the restaurant after plaintiff fell. Thus, it would appear that it was KWE’s employees who covered the grease with a granular substance before plaintiff fell.

“The rule is that a fact shown by direct, uncontradicted, reasonable and unimpeached evidence cannot be disproved by circumstantial evidence consistent with such direct evidence.” King v. Sharpe, 96 Ga. App. 71, 78 (99 SE2d 283). On the other hand, direct evidence can be disproved by inconsistent circumstantial evidence. Thus, where direct evidence is contradicted by inconsistent circumstantial evidence, a jury issue is created.

The direct evidence that KWE’s employees did not have actual knowledge of the grease is contradicted by the inconsistent circumstantial evidence suggesting that they spread a granular substance on the grease before plaintiff fell. Accordingly, a jury issue is created as to KWE’s employees’ actual knowledge of the grease.

KWE would have us rule that plaintiff had knowledge of the grease before he climbed the ladder. We cannot so rule. It is clear that plaintiff did not see the grease until he fell to the ground. Nor can it be said that plaintiff should have seen the grease. The evidence demonstrates that it could not be seen readily since it was covered with a granular substance.

Genuine issues of material fact exist with respect to plaintiff’s claim against KWE. Accordingly, the trial court did not err in denying KWE’s motion for summary judgment.

Judgments affirmed.

Pope and Benham, JJ., concur.

F. Saunders Aldridge III, Wayne S. Racz, for Popeye’s and Weilbaecher.


author: Pope, Judge. Deen, Presiding Judge,

text:
    76474.
    DARTY v. THE STATE.
    (373 SE2d 389)
   Pope, Judge.

On October 20, 1981, Rick Darty was convicted of shoplifting as well as other crimes and was sentenced to serve two consecutive twelve-month sentences for the shoplifting convictions. On March 26, 1985, he entered a guilty plea to theft by shoplifting and was sentenced to serve twelve months on probation. Again on May 18, 1987, Darty pled guilty to shoplifting. On December 1, 1987, he was again convicted of theft by shoplifting and sentenced as a felon pursuant to the provisions of OCGA § 16-8-14 (b) (1) (C) and received a sentence of ten years in confinement. This Code section provides: “Upon conviction of a fourth or subsequent such offense, the defendant commits a felony and shall be punished by imprisonment for not less than one year nor more than ten years; and the first year of such sentence shall not be suspended, probated, deferred, or withheld.”

The indictment charging Darty as a fourth offender cited the two offenses of shoplifting for which he was convicted in October 1981 and the conviction upon his plea of guilty in March 1985. The October 1981 convictions involved two separate indictments (one for shoplifting a pair of shoes on April 25, 1981, and one for shoplifting a pair of jeans on July 17, 1981) returned at two separate terms of court. The two offenses, however, were consolidated for trial. Defendant contends the conviction for these two offenses constitutes only one single conviction for purposes of applying recidivist punishment. Thus, he argues he may not be punished as a fourth offender because the indictment on which he was convicted alleges only two, and not three, previous convictions. In support of this argument defendant cites OCGA § 17-10-7 (c), which states: “For the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.” This code section is “supplemental to other provisions relating to recidivist offenders” (OCGA § 17-10-7 (d)) and must be construed together with the statute permitting felony punishment for fourth offender shoplifters. See Cofer v. Hopper, 233 Ga. 155 (4) (210 SE2d 678) (1974). Therefore, the facts alleged in the indictment itself were insufficient to support a felony sentence. However, although it was not listed on the indictment, the additional conviction for shoplifting on the May 1987 guilty plea was introduced without objection at the sentencing hearing. Defendant’s attorney acknowledged he had been given notice prior to trial of the state’s intention to present this conviction as evidence at the sentencing hearing. The trial court did not err in sentencing defendant as a fourth offender under these circumstances.

The defendant in this case was indicted as a fourth offender and was under notice he was subject to felony punishment. So long as the defendant is indicted as a fourth offender, there is no requirement for the indictment to list a previous conviction providing the state’s intent to present such evidence is made known to the defendant prior to his trial, as required by OCGA § 17-10-2 (a). See State v. Hendrix-son, 251 Ga. 853 (310 SE2d 526) (1984). To the extent Parker v. State, 170 Ga. App. 295 (1) (316 SE2d 855) (1984), is in conflict with Hendrixson, it is disapproved.

We note, however, a significant distinction between the facts in Hendrixson and the facts of the case at hand. In Hendrixson, not only was the offense for which defendant was convicted itself a felony but also the code section under which defendant wás indicted (OCGA § 16-13-30 (d)) authorized a stiffer maximum sentence for a repeat offender. Thus, the Supreme Court concluded that the language providing a stiffer maximum sentence did not create a separate and independent offense which must be set forth in the indictment but merely served as direction for imposition of punishment under specified aggravated circumstances. For this reason, there was no requirement to set out prior offenses in the indictment. By contrast, in this case the offense for which defendant was convicted was a misdemeanor, for which defendant would not otherwise be subject to felony punishment unless it was shown that this was his fourth or subsequent conviction. The code section involved in this case, OCGA § 16-8-14 (b) (1) (C), does not simply give direction to the judge for sentencing purposes but changes the very nature of the offense from a misdemeanor to a felony.

The rule set forth in Black v. Caldwell, 231 Ga. 589 (203 SE2d 208) (1974), still applies. That is, before a defendant may be sentenced as a recidivist, he must have been indicted as a recidivist so that the indictment reflects the maximum punishment to which the defendant can be sentenced. Our holding in this case should not be interpreted as permitting a defendant who has been indicted for misdemeanor shoplifting to be sentenced as a repeat offender without first being indicted as a repeat offender pursuant to OCGA § 16-8-14 (b) (1) (A), (B), or (C). A conviction on a simple misdemeanor indictment cannot be turned into a felony at the sentencing stage of the trial. In this case, defendant’s right to be indicted on the charge for which he was punished was protected. Even though the three convictions listed in the indictment actually set forth only two previous convictions for purposes of imposing a recidivist sentence, the defendant did have notice prior to trial that the state intended to rely upon the additional conviction not listed in the indictment. The fourth offender sentence was proper.

Judgment affirmed.

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

Deen, Presiding Judge,

concurring specially.

The defendant was indicted for shoplifting a pair of shoes on April 25, 1981, and a pair of jeans on July 17, 1981, at two separate terms of court. The offenses, however, were tried together at the October term of court, and Darty was convicted of both offenses and received two consecutive sentences.

Both the state and the defendant agree that the issue in question is governed by OCGA § 17-10-7 (c), which provides: “For the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

This issue, however, is not to be controlling in this case. Although it was not included in the indictment, appellant was convicted of another shoplifting offense which occurred on October 15, 1986, when he entered a guilty plea to it on May 18,1987. At the sentencing hearing, counsel admitted that he knew prior to trial that the State would offer evidence of this conviction, and he made no objection to the court’s consideration of it in sentencing.

There is no statutory requirement that a conviction which antedates the offense for which the accused is sentenced be set out in the indictment in order to sentence a multiple offender of the same offense to a mandatory minimum term in prison. State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984). That case relies upon OCGA § 17-10-2 (a) which provides that at the sentencing hearing “the judge shall hear additional evidence in extenuation, mitigation and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant, or the absence of any prior convictions and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible.” (Emphasis supplied.) I agree with the majority that to the extent that Parker v. State, 170 Ga. App. 295 (1) (316 SE2d 855) (1984), is in conflict with Hendrixson, it must be disapproved.

I am authorized to state that Chief Judge Birdsong, Judge Carley, and Judge Sognier join in this special concurrence.

Decided September 20, 1988.

W. Donald Kelly, for appellant.

John M. Ott, District Attorney, J. Ellis Millsaps, Assistant District Attorney, for appellee.


author: Birdsong, Chief Judge.

text:
    76675.
    PROCTOR et al. v. INLAND SHORES, INC. et al.
    (373 SE2d 268)
   Birdsong, Chief Judge.

Tom and Doyle Proctor appeal the grant of directed verdict to the plaintiff below, Inland Shores, Inc., and the setting aside of deeds to twenty lots of land in Florida.

It appears that either the defendants, brothers Tom and Doyle Proctor, or Tom’s Ornamental Iron, Inc., were supposed to build an incinerator for Universal Heat Control, apparently to sell. This lawsuit was initiated by Inland Shores, Inc., (assignee of Quailco), which are both associated with the principals of Universal Heat Control. Apparently, although no incinerator was ever built or delivered, Tom and Doyle ended up with 20 lots of land in Florida (conveyed by Quailco) and 30 percent of the shares of Universal Heat Control.

Since no incinerator was ever delivered to Universal Heat Control, the appellee Inland Shores sued Tom and Doyle Proctor to have the deeds set aside, and/or for a lien and/or damages to be imposed. Inland Shores also sued in breach of contract and for fraud, on grounds Tom and Doyle never intended to build the burner, but only said they would so as to get the land in Florida and the shares of Universal Heat Control.

Inland Shores claimed lack of consideration for the deeds, and said that in any case the agreement had been that the deed conveyances were meant only as security against Universal Heat Control’s default in paying Tom’s and Doyle’s costs in building the incinerator. However, the deeds convey fee simple title without condition, which Tom and Doyle say proves their contention that the lots and the shares were given outright to them as down payment on their costs in building the incinerator.

Tom’s testimony was exceedingly confused and confusing. He gave no real evidence at all as to what the agreement had been. He was even unsure whether he and Doyle ever built a burner, or part of a burner; or whether they built one and took it to the local landfill. The only thing that seems clear is the inference that if he and Doyle started to build an incinerator for Universal Heat Control, they at some point stopped, but even this is clouded by references to an incinerator he took to the landfill.

Decided September 20, 1988.

Charles J. Vrono, for appellants.

Sam Johnson, D. M. Johnson, for appellees.

Doyle Proctor testified there was no written agreement concerning the building of the incinerator and gave no testimony as to his understanding of it, except: “Well, we were busy and we said we’d start it, but, you know, we’d get started.” He and Tom worked on it about seven weeks and then quit, having finished 50-85 percent of the machine and then determining it would cost $200,000 to $300,000 to finish the last 10-15 percent. He tendered in court some bills for blueprints and steel which he represented as what he had paid for parts. (Denial of a defendants’ counterclaim has not been appealed.) Held:

The trial court did not err in directing a verdict to Inland Shores’ favor and cancelling the deeds. It seems safe to say that if there ever was an agreement underlying as consideration the deeds to 20 Florida land lots, no one knows what it was. It also seems safe to say that whatever it was Tom and Doyle were supposed to do, they did not do. They implied they built some of the incinerator and then ran out of money, but from this record, it looks as if they just laid down their tools, without saying anything to anyone. Or perhaps they did build an incinerator, but took it to the landfill. In any case, Tom’s and Doyle’s testimony is so vague, uncertain, equivocal and self-contradictory, that all of it must be construed in all respects against them. Thacker v. Matthews Tuxedo, 183 Ga. App. 474 (359 SE2d 231). Therefore, we must conclude the deeds for the 20 lots were not unconditional conveyances but were based upon an agreement too vague to be enforced, or which they breached in any case. No incinerator was ever delivered. The conveyances of shares and land were therefore without consideration or they were based upon an agreement not in writing.

The trial court did not err in cancelling the deeds, nor, since the issue had been joined, was it required to allow the plaintiff to dismiss the complaint just prior to its ruling.

Judgment affirmed.

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


text:
    76880.
    HYER v. CITIZENS & SOUTHERN NATIONAL BANK IN MACON et al.
    (373 SE2d 391)
   McMurray, Presiding Judge.

Richard E. Hyer, Jr. (“plaintiff”) brought an action against the Citizens & Southern National Bank in Macon (“C & S”) to recover damages for “breach of contract” and, alternatively, “conversion,” alleging that C & S wrongfully distributed funds from plaintiff’s savings account to his then wife, Mary M. Hyer. C & S admitted that it disbursed $8,500 to Ms. Hyer from a “market investment account” which provided “that only the Plaintiff could withdraw funds from the account,” but denied liability for the alleged wrongful distribution, asserting ratification and “estoppel” based on a divorce settlement agreement entered into between plaintiff and his then wife, Mary M. Hyer, wherein the parties resolved disposition of their assets, including the funds which were the subject of C & S’s alleged unauthorized distribution. C & S then asserted a counterclaim, seeking damages under OCGA § 9-11-14 for plaintiff’s alleged “frivolous and groundless” complaint. Simultaneously, C & S filed a third-party complaint against Ms. Hyer for indemnification of “all sums that may be adjudged against [C & S] in favor of the Plaintiff. ...” Ms. Hyer answered and admitted that she withdrew $8,500 from plaintiff’s savings account, “but for clarification [she alleged] that she was entitled to withdraw this money . . . because the account and the money therein belonged to her as well as to [plaintiff].” Ms. Hyer further defended, alleging that she “was not unjustly enriched because . . . [plaintiff] ratified her actions in withdrawing the money by virtue of the [divorce settlement] agreement entered into between the parties. . . .”

Ms. Hyer, as third-party defendant, then asserted a “crossclaim” in four counts against plaintiff, seeking in Counts 1 and 2 “compensatory damages,” “exemplary damages,” “attorney’s fees and costs” based on what appears to be an action for “abusive litigation.” In Count 3, Ms. Hyer seeks indemnification “for all sums that may be adjudged against [her] in favor of [C & S]”; and, in Count 4, she contends that plaintiff “is in willful and intentional contempt . . .” of their final decree of divorce, alleging that “plaintiff is interfering, molesting, and harassing [her] by attempting to indirectly obtain money from her by suing [C & S] for monies which have been determined to belong to [Ms. Hyer], knowing that [C & S] would seek payment from her and make her a party to the lawsuit. ...”

Plaintiff filed a motion for summary judgment in his favor as to the main complaint and additionally plaintiff moved the court “to dismiss the third-party defendant’s [Ms. Hyer’s] cross-claim.” Defendant C & S then moved for summary judgment in its favor.

After considering “the briefs, affidavits and arguments of counsel,” the trial court denied plaintiff’s motion for summary judgment and motion to dismiss third-party defendant’s (Ms. Hyer’s) claim against plaintiff and granted C & S’s motion for summary judgment. Plaintiff now appeals. Held:

1. Plaintiff first contends the trial court erred in granting C & S’s motion for summary judgment, arguing that C & S is liable to him for deducting $8,500 from his savings account and disbursing this amount to his former wife.

“[A] bank has a duty to exercise due care and diligence in making payments from a savings account and may be held liable for failure to comply with that duty. Annot. 60 ALR2d 721.” First Nat. Bank of Atlanta v. Stephens, 124 Ga. App. 530, 532 (184 SE2d 484). In the case sub judice, there is no doubt that a genuine issue of material fact remains with regard to the diligence and care C & S employed in disbursing $8,500 to Ms. Hyer and debiting plaintiff’s “money market account” for the same amount. Nonetheless, C & S defends its actions, arguing that plaintiff ratified its alleged wrongful act by settling the dispute over the $8,500 with his former wife.

“A ratification by the principal relates back to the act ratified, and takes effect as if originally authorized. Civil Code (1910), § 3591 [now OCGA § 10-6-52]; Todd v. German-American Insurance Co., 2 Ga. App. 789 (3), 798 (59 SE 94).” Roberts v. Bank of Eufaula, 20 Ga. App. 221, 223 (1), 224 (92 SE 1015). “ ‘It is not requisite to the ratification of another unauthorized act of one assuming to act as the agent of another that the acquiescence should be in express terms. In most cases such ratification can be implied from the acts and conduct of the principal. As a general rule, if the principal, with full knowledge of all the material facts, accepts and retains the benefits of the unauthorized act, he thereby ratifies the act. Of course, as stated, ratification necessarily implies complete knowledge of all the material facts relating to the transaction.’ [Roberts v. Bank of Eufaula, 20 Ga. App. 221, 226 (3), supra.]” Liberty Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15, 21 (2), 25 (192 SE 56).

In the case sub judice, there is no question that plaintiff had full knowledge of his former wife’s unauthorized withdrawal of $8,500 from his “money market account” at the time he entered into the divorce settlement agreement with her on July 22, 1986. It is also undisputed that plaintiff and Ms. Hyer agreed in their property settlement agreement that “all personal property in [Ms. Hyer’s] possession and control or in [her] name was to be and become [her] sole and separate property, free and clear of any claims of [plaintiff] whatsoever. This included . . . the $8,500 which [Ms. Hyer] withdrew from the Market Investment Account at C & S.” Consequently, since plaintiff knowingly received the benefit of his former wife’s withdrawal, he cannot now claim that her withdrawal was unauthorized. “Under our view of the law of the case, the plaintiff could not receive a substantial benefit from the unauthorized act of [his former wife] without ratifying the transaction in its entirety.” Roberts v. Bank of Eufaula, 20 Ga. App. 221, 226 (3), supra. To hold otherwise would constitute an unjust enrichment to plaintiff since he received all that he had on deposit with C & S by virtue of the property settlement he effected with his former wife. See Cowen v. Valley Nat. Bank, 67 Ariz. 210 (193 P2d 918).

2. In his second enumeration of error, plaintiff contends the trial court erred in denying his motion to dismiss Ms. Hyer’s third-party “counterclaim” for failure to state a claim.

“ ‘(A) pleading should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief.’ Skelton v. Skelton, 251 Ga. 631 (1) (308 SE2d 838) (1983).” Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 114 (2) (351 SE2d 513). In the case sub judice, Counts 1 and 2 of third-party defendant’s [Ms. Hyer’s] claim assert what appears to be an action for “abusive litigation” based on plaintiff’s action against C & S for allegedly mishandling plaintiff’s saving’s account. See Yost v. Torok, 256 Ga. 92 (344 SE2d 414). More specifically, Ms. Hyer alleges that plaintiff’s action against C & S is “an improper employment of the civil process . . .” in that it was initiated as a subterfuge to harass her and “deprive her of funds which were determined to belong to her in the previous divorce action.” These allegations raise the fundamental question of whether a third-party defendant (Ms. Hyer) can sustain an action for “abusive litigation” against a “claimant” (plaintiff) for asserting an alleged “abusive” derivative action.

Although we find no cases in Georgia which address this issue, we find that the claimant’s liability for “abusive litigation” to persons not sued by the claimant is measured by the scope of the risk of damage stemming from the claimant’s alleged negligent conduct, i.e., frivolous litigation. See Harper, James & Gray, The Law of Torts 2d § 18.2. In other words, does Ms. Hyer state sufficient facts to support a finding that she was a foreseeable victim of plaintiff’s alleged “abusive litigation” against C & S. We find that she does. A jury could reasonably infer that plaintiff’s action against C & S for the $8,500 was “substantially frivolous, substantially groundless, or substantially vexatious” litigation and that any damage Ms. Hyer may have sustained in defending C & S’s third-party complaint was the proximate result of plaintiff’s alleged tortious conduct. Consequently, the trial court did not err in sustaining Counts 1 and 2 of third-party defendant’s (Ms. Hyer’s) claim. See Whitley v. Bank South, 185 Ga. App. 896, 899 (4) (366 SE2d 182). Compare Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 114 (2), supra. However, in light of our holding in Division 1 of this opinion, there remains no basis to sustain Ms. Hyer’s claim for indemnification in Count 3 of her claim. Further, we find that Ms. Hyer’s action for contempt in Count 4 of her claim cannot be sustained. See Atlantic Refining Co. v. Farrar, 171 Ga. 371, 374, 375 (155 SE 327). Accordingly, the trial court erred in failing to dismiss Counts 3 and 4 of third-party defendant’s (Ms. Hyer’s) claim.

Decided September 20, 1988.

5. Phillip Brown, for appellant. Martha C. Christian, Edward S. Sell III, Brian J. Passante, for appellees.

3. As plaintiff has not supported Enumeration of Error No. 3 by argument or citation of authority, it is deemed abandoned pursuant to Georgia Court of Appeals Rule 15 (c) (2). Schwartz v. Rennie, 185 Ga. App. 638 (1) (365 SE2d 159).

4. Lastly, plaintiff contends the trial court erred in failing to dismiss C & S’s third-party complaint against Ms. Hyer. This argument is rendered moot in light of our holding in Division 1 of this opinion.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.

       See Yost v. Torok, 256 Ga. 92 (344 SE2d 414).


text:
    76910.
    COGGINS v. THE STATE.
    (373 SE2d 269)
   McMurray, Presiding Judge.

On March 4, 1986, defendant was accused in the State Court of Hall County, Georgia of driving under the influence of alcohol (DUI), operating a vehicle without insurance and operating a vehicle with a revoked driver’s license. During the term of court in which he was to be tried on the above charges defendant was incarcerated at the Gwinnett County, Georgia jail, serving time for convictions in unrelated criminal matters. Consequently, the trial court entered an order “requiring that the Sheriff of Hall County or his lawful deputy ‘pick up . . . defendant and bring him before [the Hall County State] Court for the disposition of his case as soon as possible.’ [However,] due to some administrative problem between the Sheriff of Hall County and the Department of Corrections the Defendant was not brought to court . . . while he was incarcerated.”

Defendant “was released from the prison system ... in April of 1987,” and on January 25, 1988, defendant filed a motion entitled, “MOTION TO ACQUIT,” arguing that he was denied his right to a “speedy trial” under both state and federal law. The trial court denied this motion and this appeal followed. Held:

1. Defendant first contends he was denied his right to a speedy trial under OCGA § 17-7-170.

In order to invoke the provisions of OCGA § 17-7-170, a defendant must make a demand for trial. Dansby v. State, 140 Ga. App. 104 (1) (230 SE2d 64). In the case sub judice, it is undisputed that defendant failed to file a demand for trial. Notwithstanding, defendant contends the trial court’s order, “requiring that the Sheriff of Hall County or his lawful deputy ‘pick up . . . defendant and bring him before [the Hall County State] Court for the disposition of his case as soon as possible,’ ” was “sufficient to give notice to the Court and the State that the accused was actively requesting a speedy trial or resolution of his outstanding cases.” We do not agree.

“It was clearly held in Williams v. State, 140 Ga. App. 505 (231 SE2d 366) and Gay v. State, 140 Ga. App. 516 (231 SE2d 509) that a demand for jury trial is a demand for trial sufficient to invoke Code § 27-1901 [now OCGA § 17-7-170].” Wallis v. State, 154 Ga. App. 764, 765 (270 SE2d 45). In the case sub judice, the trial court’s order neither indicated that it was entered pursuant to a demand for trial made by defendant nor was the order sufficient to invoke the extreme sanction of OCGA § 17-7-170. See Smith v. State, 166 Ga. App. 352 (1) (304 SE2d 476).

2. Next, we address defendant’s assertion that he was denied his Sixth Amendment right to a speedy trial. “ ‘In speedy trial decisions, the court has emphasized that the denial of speedy trial may work to a defendant’s advantage, and therefore there is no per se prejudice to a defendant from delay, nor is there any specific number of days or months within which he must be tried. Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Factors to be considered are the length of the delay, the reason for the delay, the defendant’s assertion of the right, and actual prejudice to the defendant.’ Id. Harris v. Hopper, 236 Ga. 389, 390 (224 SE2d 1).” Dansby v. State, 140 Ga. App. 104 (1), 105, supra. In the case sub judice, the trial court addressed these factors as follows:

“I. Length of Delay[.] The delay in this case is from March 1986 until January of 1988. This is approximately 22 months. Although this is a significant delay, it is certainly not unusual in the State Court due to the number of cases filed and the number appearing on the trial calendar at each term.

“II. Reason for Delay[.] The only reason before the Court at this time for the delay is that the Defendant, obviously through his own actions, was incarcerated in another county for some 10 or 11 months. There was no other evidence by the Defendant that the delay was occasioned or caused by the State for any advantage to them. Also the State presented no evidence as to why the delay occurred.

“HI. Defendant’s Assertion of His Right[.] In this case some steps were taken by the Defendant’s counsel in June of 1986 to bring the case to trial pursuant to some discussions of a favorable recommendation by the Solicitor’s Office to a plea of guilty. [The solicitor who negotiated defendant’s plea is no longer the solicitor of the State Court of Hall County.] The Court at that time attempted to bring the Defendant to Hall County from the prison system. Through no fault of the Defendant, he was not brought before this Court. However at that time neither he nor his counsel filed a statutory demand for a speedy trial and no Motion to Acquit was filed by the Defendant or his counsel based on constitutional grounds until this hearing in January of 1988. Also the Court notes that the Defendant was released from the prison system in April of 1987 and neither his counsel nor the Defendant had any discussion with the current Solicitor about hearing the case at that time, putting the case on a calendar or doing anything with respect to the case. Defendant’s failure to assert his right to a speedy trial before January of 1988 is a factor to be weighed heavily against the Defendant.

“IV. Prejudice to the Defendant^] The Court notes that the only prejudice to the Defendant that can be inferred from the hearing was that the Defendant would have had a recommendation from the [former] Solicitor ... of a plea in June 1986 to concurrent time to serve. There was an inference, although no direct evidence on this point, that this' would not be the recommendation of the current Solicitor arid there was also no indication that any plea negotiations had been entered into other than what was subject to the Court’s approval. There is no assertion by the Defendant that witnesses are now unavailable or that evidence has been destroyed or lost or otherwise not available for use at trial. And the issue of whether or not the State is bound by a prior discussion with the previous Solicitor is not at issue in this matter because the Defendant has presented a Motion to Acquit, not a proceeding to have the former plea negotiation accepted.

“Notwithstanding the fact that there has been a delay of 22 months and that the defense counsel did attempt to have the Defendant brought to Hall County for purposes of entering a guilty plea in June of 1986, the Court finds that because the Defendant and his competent counsel did not assert a right to a speedy trial, especially in the time period from his release from incarceration in April of 1987 until the case was on the trial calendar in January of 1988, and further because the Defendant has not been prejudiced by the failure to bring these cases to trial prior to this time, the Court finds that the Defendant’s Motion to Acquit should be denied.” In the case sub judice, we find no evidence in the record to contradict these findings of fact. Consequently, for the reasons enumerated by the trial court, we find no Sixth Amendment violation and conclude that the trial court did not err in denying defendant’s motion to acquit. See Stephens v. State, 185 Ga. App. 546, 547 (4), 548 (365 SE2d 136).

Decided September 20, 1988.

T. Stanley Sunderland, for appellant.

Lydia S. Jackson, Solicitor, Raymond E. George, Assistant Solicitor, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76943.
    SKINNER v. THE STATE.
    (373 SE2d 271)
   McMurray, Presiding Judge.

Defendant Skinner appeals his conviction of the offense of arson in the first degree. Held:

1. Defendant contends that the evidence is insufficient to prove his guilt beyond a reasonable doubt. The State’s evidence shows that on a Friday night, March 27, 1987, Jackson was standing around talking with his friends outside the “Brown Derby” when he was accosted by defendant. A brief fist fight ensued and defendant left stating, “It’s not over with yet.” Defendant left the “Brown Derby” driving “pretty fast” and a tire was flattened when defendant’s car hit a hole in the driveway. Defendant and a companion, Walton, left the car at a nearby house and walked to the home of McGee, where they borrowed her car. In McGee’s car, defendant and Walton returned to defendant’s car and defendant removed a blue gas jug from the trunk of his car and placed it in McGee’s car. Defendant and Walton then returned to the “Brown Derby” where they encountered Clark who asked defendant (who was driving McGee’s car) for a ride to a convenience store. At the convenience store defendant purchased a dollar’s worth of gas which he placed in the blue gas jug. Defendant then drove himself and Walton to the back part of the Indian Oaks apartment complex. At the apartment complex defendant left for five or ten minutes while Walton spoke to someone at the apartment complex. Two witnesses saw defendant leave in the direction of a hole in the fence at the back of the apartment complex, but did not remember whether defendant was carrying anything. Another witness did not remember which direction defendant went when he left, but remembered that he saw defendant get something out of the car and leave carrying it. Defendant was seen by two witnesses returning from the direction of the hole in the fence. Defendant was not carrying anything when he returned. The residence of Jackson was on the other side of the fence, approximately 200 yards from where the borrowed automobile was parked. During the early morning hours of March 28, 1987, the family of Jackson awoke to find their house on fire. The characteristics of the fire indicated that it had been deliberately started by “something splashed on the side of the building.” A red Bic (disposable) cigarette lighter was found laying on the ground near the house. Earlier in the evening defendant had been lighting his cigarettes with a red or orange Bic (disposable) lighter. When defendant returned to the apartment complex he was walking fast or trotting. Upon defendant’s return to the borrowed automobile, he and Walton immediately drove away. Fire trucks arrived at the Jackson residence, “a couple of minutes,” after defendant drove away from the apartment complex.

“To warrant a conviction on circumstantial evidence, proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused. [Cits.] The evidence was all circumstantial. If separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is sufficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. [Cits.] In such cases it is not necessary that the circumstances remove every possibility of the defendant’s innocence. [Cits.]” Huncke v. State, 137 Ga. App. 299, 301 (4) (223 SE2d 492). See also Crumley v. State, 185 Ga. App. 795 (1), 796, 797 (366 SE2d 171). The evidence in the case sub judice satisfied this standard and was such that any rational trier of fact could find defendant guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crumley v. State, 185 Ga. App. 795 (1), 796, 797, supra; Johnson v. State, 185 Ga. App. 505, 506 (2) (364 SE2d 893).

2. Defendant also enumerates as error the trial court’s refusal to give a portion of his request to charge No. 1. “ ‘It is not necessary to give the precise language of a request to charge when the principles upon which the jury must make its decision are clearly explained. (Cits.)’ Jackson v. State, 249 Ga. 751 (2) (295 SE2d 53) (1982).” Curtis v. State, 182 Ga. App. 388, 389 (6), 390 (355 SE2d 741). Such being the situation in the case sub judice defendant’s first enumeration of error is without merit. Mathis v. State, 184 Ga. App. 455, 457 (4) (361 SE2d 856); Daniels v. State, 184 Ga. App. 689, 690 (2) (362 SE2d 775).

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided September 20, 1988.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Kimberly S. Shumate, Assistant District Attorneys, for appellee.


text:
    77063, 77064.
    ALLISON et al. v. THE STATE.
    (373 SE2d 273)
   Birdsong, Chief Judge.

David and Everett Allison were tried jointly and bring these appeals from their convictions. On August 15, 1987, Special Agents Claude Nix, Jerry Scott and Dale Thomason of the Georgia Bureau of Investigation, and Special Agent Pete Conley of the Federal Bureau of Investigation, were monitoring a gathering of the Abate Motorcycle Club at Prater’s Mill in Whitfield County. The Sheriff of Whitfield County had requested the assistance of the GBI and the FBI in monitoring this meeting which was expected to have in attendance members of the “Hell’s Angels” and “Outlaws” motorcycle “gangs.”

The agents were wearing exposed side arms and clothing which indicated their organization — FBI and GBI. At approximately 7:15 p.m. on the evening of August 15, 1987, agent Nix noticed three motorcycles had pulled off to the side of the road approximately one-half mile west of Prater’s Mill. The officers pulled over to the side of the road adjacent to appellants, identified themselves, and asked if “they were having [any] difficulty.” The three individuals, David Allison, Everett Allison and Larry Hudgins, responded that they were not having any difficulty. Agent Thomason recognized the Allisons as members of the “Outlaws” and “asked to see their colors ... in other words, their leather jackets. They pulled those from their motorcycles and allowed Agent Thomason to look at them. There was also a pickax-type handle in a scabbard on the side of the motorcycle driven by Everett Allison.” Agent Thomason inquired of Allison as to its purpose and was told there was no purpose, that it had been on the motorcycle a long time. Thomason then asked permission to search the person and motorcycles of the three individuals. Everett Allison responded that he had a pistol. Agent Nix asked him where it was and Allison said he was sitting on it. Agent Nix looked underneath the motorcycle seat and removed a .38 caliber semi-automatic pistol. The weapon had been fully concealed. At that time Everett Allison was arrested and a search made of his person and his motorcycle. A marijuana cigarette was found in his shirt pocket and cocaine and LSD tablets were found in his motorcycle bags. David Allison and Larry Hudgins were asked if they had any weapons and responded negatively. A “pat down” of David Allison uncovered a “large Case pocketknife” in his jeans pocket. When it was removed a packet containing suspected amphetamine tablets was also found “along with that. . . .” David Allison was placed under arrest and a search of his motorcycle revealed a .38 caliber revolver and a pair of brass knuckles. It was stipulated at trial that the drugs found were marijuana, cocaine and LSD.

At trial, the appellants filed motions to suppress the evidence found during the searches. The trial court denied their motions. David Allison was convicted of one count of carrying concealed weapons — a .38 caliber revolver and one pair of metal knuckles. Everett Allison was convicted of one count of carrying a concealed weapon — a .38 caliber pistol, and three counts of violations of the Georgia Controlled Substances Act — possession of marijuana, cocaine, and LSD. The Allisons then filed these appeals. Held:

Appellants enumerate but one error — denial of their motions to suppress, contending the seizure and subsequent search were unconstitutional, not based on probable cause, and the seizure of the contraband was a product of an illegal arrest. We do not agree.

The GBI is charged with the obligations of “ safeguard [ing] the lives and property of the public” and the “investigation of] violations of the criminal laws of this state. . . .” OCGA §§ 35-2-32 (b) and 35-3-4 (b). In carrying out these duties, it was the judgment of the Sheriff of Whitfield County, the GBI and FBI that the meeting of the Abate Motorcycle Club, including attendance of the “Hell’s Angels” and “Outlaws” motorcycle “gangs” warranted monitoring by local, state and federal law enforcement officials. This was a value judgment by an official charged with this responsibility.

It is in society’s interest to deter unlawful conduct, and courts must balance this societal interest against the individual’s right under the Fourth Amendment to be free from unreasonable searches and seizures. United States v. Brignoni-Ponce, 442 U. S. 873, 878 (95 SC 2574, 45 LE2d 607). The paramount public interest in law enforcement is substantial and justifies a minimal intrusion, short of seizure of the person, to question an individual regarding subject matter which piqued police suspicion. Radowick v. State, 145 Ga. App. 231, 236-237 (244 SE2d 346); Scott v. State, 253 Ga. 147, 149 (317 SE2d 830). Such suspicion must be reasonable and articulable. Id. A police officer, as well as other citizens, enjoys the liberty of addressing questions to other persons. And, the person questioned has the right to ignore the questioner and to walk away. United States v. Mendenhall, 446 U. S. 544 (100 SC 1870, 64 LE2d 497). The initial encounter here did not involve a seizure of the person, or an invasion of appellants’ reasonable expectation of privacy. The appellants had stopped on their own accord. The officers stopped to offer assistance. Observation by an officer of a “pickax . . . handle,” in plain view, in a scabbard on a motorcycle is sufficiently provocative to a law enforcement official monitoring a gathering of motorcycle clubs to establish reasonable and articulable suspicion of the officer to question its possessor of the reason for its presence at a motorcycle “gang” conclave.

Police officers are experts in the field of law enforcement and possess knowledge and expertise, both from training and experience, of which the ordinary citizen does not know or appreciate the significance. Courts should accord substantial deference to the determination of a police officer in matters of law enforcement in judgmental decisions of this type, which are based upon the officer’s expertise and induce him to question the individual or investigate the circumstances which invite his intervention. Moreover, this court need not close its eyes to the obvious — it is well known that axe handles can be and are used as weapons, and when so used, are likely to produce death or serious bodily injury.

We find no fault with the officers questioning a member of the “Outlaws” motorcycle club, who is attending a meeting of motorcycle clubs, and is carrying a “pickax” handle in plain view which can be used in a manner to classify it as a deadly weapon. See Miller v. State, 174 Ga. App. 42, 45 (329 SE2d 252) (an arrow, jackhandle, and paddle can be used as a deadly weapon); Banks v. State, 169 Ga. App. 571 (314 SE2d 235) (a ceramic statue can be used as a deadly weapon); Beard v. State, 155 Ga. App. 654 (271 SE2d 906) (a broomstick can be used as a deadly weapon).

Further, the officer asked permission to search and was voluntarily told by the appellant that he possessed a revolver. The appellant’s voluntary admission of possession of a deadly weapon per se provided for a limited intrusion under the seat of appellant’s motorcycle. Such an intrusion at that point obviously was necessary for the protection of the officers. The revolver was concealed and justified the arrest of Everett Allison. A full search of his person and vehicle was authorized following his arrest. Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9); State v. Hopkins, 163 Ga. App. 141 (2) (293 SE2d 529).

The finding of a revolver on one appellant justified a pat-down of the other appellant which uncovered a knife, which also can be used as a deadly weapon. Suspected drugs were uncovered in the removal of the weapon, and possession of suspected drugs authorized the arrest of David Allison. OCGA § 17-4-20 (a). Following his arrest, a search of his motorcycle was authorized and the discovery of a revolver and metal knuckles was a product of a lawful search. The trial court did not err in refusing to suppress evidence unearthed during the search.

Judgments affirmed.

Banke, P. J., concurs. Beasley, J., concurs in judgment only.

Decided September 20, 1988.

Marcus R. Morris, for appellants.

Jack O. Partain III, District Attorney, Lee R. Taylor, Assistant District Attorney, for appellee.


text:
    77088.
    PROFESSIONAL INSURANCE SERVICES, INC. v. SIZEMORE ELECTRIC COMPANY, INC.
    (373 SE2d 276)
   McMurray, Presiding Judge.

Plaintiff Professional Insurance Services, Inc., brought this suit on open account against Sizemore Electric Company, Inc. It contended that defendant was indebted to it in the amount of $8,429.57 and that that sum represented the balance due for the provisions of various insurance coverages.

At trial, plaintiff’s president testified that the balance shown on plaintiff’s ledger sheet, $8,429.57, accurately reflected the amount of defendant’s indebtedness to plaintiff. No objection was made with respect to this oral evidence.

Plaintiff did not introduce its ledger sheet or any other documents into evidence and, at the close of plaintiff’s case, defendant moved for a directed verdict. The trial court granted the motion, ruling that plaintiff failed to make out a prima facie case since it did not introduce documentary evidence reflecting the balance due. The jury obligingly returned a verdict in favor of defendant. Judgment was entered accordingly and plaintiff appealed. Held:

1. If there is “any evidence” creating a material issue of fact, a motion for a directed verdict cannot be granted. Little v. Little, 173 Ga. App. 116 (325 SE2d 624); OCGA § 9-11-50 (a). Was “any evidence” creating a material issue of fact introduced in the case sub judice? Yes, it was.

“ ‘If secondary evidence ... is admitted without objection, it is to be considered as evidence, and a charge or verdict may be based upon it; and such verdict will not be set aside as being unsupported by the evidence.’ Munroe v. Baldwin, 145 Ga. 215 (88 SE 947).” Thomas &c. Lumber Co. v. Atlantic Mill &c. Co., 24 Ga. App. 749 (2) (102 SE 135). Thus, in a suit on open account, a prima facie case is made by a plaintiff where oral evidence concerning the balance due is introduced without objection even though documents setting forth the balance due are not received in evidence. Thomas &c. Lumber Co. v. Atlantic Mill &c. Co., 24 Ga. App. 749 (2), supra. See also Roth-stein v. Mirvis & Fox, Inc., 155 Ga. App. 79, 80 (2) (270 SE2d 301).

Decided September 20, 1988.

Billy R. Smith, for appellant.

John L. Blandford, for appellee.

In the case sub judice, oral evidence concerning the amount of defendant’s indebtedness to plaintiff was introduced without objection. This evidence made out a prima facie case and it was not necessary for plaintiff to introduce other documents reflecting the balance due in order to prevail against defendant’s motion for a directed verdict. Thomas &c. Lumber Co. v. Atlantic Mill &c. Co., 24 Ga. App. 749 (2), supra. Compare Wolfe v. Brown-Wright &c. Corp., 87 Ga. App. 12, 14 (73 SE2d 82). It follows that the trial court erred in granting defendant’s motion for a directed verdict.

2. The remaining enumerations of error are either moot or without merit.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Banke, Presiding Judge,

text:
    77122.
    CARTER v. THE STATE.
    (373 SE2d 277)
   Banke, Presiding Judge,

Curtis Carter brings this appeal from his convictions of theft by shoplifting and obstruction of an officer.

According to the stipulated facts submitted in lieu of a trial transcript, a store employee observed the appellant and his brother place four cartons of cigarettes into their shopping cart and thereafter engage in an animated conversation, in which the appellant was heard to say to his brother, “Go.” At that point, the appellant left the store, and his brother concealed the cigarettes under his clothing. The appellant’s brother was immediately detained by the store manager, and during that confrontation, the appellant reentered the store several times and “looked around.” The appellant and his brother were both taken to the manager’s office, where the appellant denied knowing his brother. After being placed under arrest for shoplifting, the appellant gave the booking officer an incorrect birthdate and social security number. Held:

1. The appellant contends that there was no evidence of any intent on his part to participate in the theft. While mere presence at the scene of a crime affords no basis for a conviction, “ ‘presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.]” Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2$ 327) (1980). Criminal intent may be inferred by the trier of fact “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. Moreover, “ ‘[w]here transactions involving relatives are under review slight circumstances are often sufficient to induce a belief that there was collusion between the parties.’ [Cits.]” Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985) . We hold that the evidence concerning the appellant’s conduct in this case was sufficient to enable a rational trier of fact to find him guilty as a party to the offense of theft by shoplifting beyond a reasonable doubt. See generally OCGA § 16-2-20; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 20, 1988.

Janet G. Scott, for appellant.

John C. Carbo III, Solicitor, Jackie N. Stanton, Anne Landrum, Assistant Solicitors, for appellee.

2. The appellant contends that his failure to give accurate information to the booking officer did not constitute obstruction of an officer. See In re G. M. M., 179 Ga. App. 800 (1) (348 SE2d 126) (1986) . That offense is committed by “knowingly and willfully obstruct [ing] or hinder [ing] any law enforcement officer in the lawful discharge of his official duties. . . .” OCGA § 16-10-24. “[T]he statute was made purposefully broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties.” Hudson v. State, 135 Ga. App. 739, 742 (2) (218 SE2d 905) (1975). Whether the actions of a defendant in a particular case actually had the effect of hindering or impeding the officer is a decision for the trier of fact. Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354) (1986). The trial judge, sitting as the trier of fact, was authorized to determine that the appellant’s conduct in providing false information to the booking officer constituted obstruction of an officer. Accord Hudson v. State, supra.

3. The appellant maintains that the trial court erred in allowing the state to introduce into evidence, over his objection, several cigarette cartons found in his brother’s van at the time of their shoplifting arrests. “[E]vidence is relevant if it renders the desired inference more probable than it would be without the evidence.” Baker v. State, 246 Ga. 317, 319 (3) (271 SE2d 360) (1980). Under the wide latitude given the trial court in determining whether the probative value of evidence outweighs its potential for prejudice, the admission of this evidence was not error. See Alexander v. State, 239 Ga. 108 (1) (236 SE2d 83) (1977).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    77215.
    In re J. D. H.
    (373 SE2d 279)
    Decided September 20, 1988.

      Kenneth R. Carswell, for appellant.

      Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.
   Deen, Presiding Judge.

In the case sub judice parental rights were terminated following trial of the case in response to a petition filed in April 1987 by the Department of Family and Children’s Services (DFCS). The mother appeals from this judgment, enumerating as error the trial court’s failure to appoint an attorney to represent the child’s interests; the trial court’s alleged failure to apply the “clear and convincing evidence” standard in finding that the child was deprived as defined by OCGA § 15-11-2 (8) (a); and the trial court’s further failure to meet the “clear and convincing” standard in finding that such deprivation was likely to continue, absent judicial intervention. Held:

1. OCGA § 15-11-85 (a), effective January 1, 1986, requires, in pertinent part, that “[i]n any proceeding for terminating parental rights or any rehearing or appeal thereon, the court shall appoint an attorney to represent the child as his counsel. . . .” (Emphasis supplied.) The Supreme Court held in In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987), that this statute requires that in any case involving termination of parental rights in which no attorney was appointed by the trial court to represent the interests of the child, the judgment must be vacated and the case remanded to the juvenile court for retrial under the provisions of OCGA § 15-11-80 et seq. Accord In the Interest of D. B., 187 Ga. App. 66 (369 SE2d 498) (1988); In re J. S. C., 182 Ga. App. 721 (356 SE2d 754) (1987). The record in the instant case shows that no attorney was appointed to represent the interests of the child, and the judgment below must therefore be vacated and the case remanded for retrial.

2. Because the case must be remanded for retrial, we need not address appellant’s remaining enumerations.

Judgment vacated and case remanded with direction.

Carley and Sognier, JJ., concur.