text:
    76931.
    BLOSSMAN GAS COMPANY v. WILLIAMS et al.
    (375 SE2d 117)
   Sognier, Judge.

Barbara Williams and Richard Moore were severely injured when gas that had leaked from a gas water heater installed in Williams’s basement exploded. Williams and Moore, together with Williams’s then-husband, Henry Gilbert, brought suit against A. O. Smith Corporation, the water heater manufacturer, Emerson Electric Company, manufacturer of the thermostat installed on the water heater, and the two companies that supplied liquid propane gas for the heater, Reliance Gas Corporation and Blossman Gas Company. The plaintiffs settled their claims against A. O. Smith and Emerson, and those defendants are not involved in this appeal. The jury returned a verdict of $800,000 in compensatory and punitive damages against Blossman, and it appeals.

The record reveals that in September 1983, Williams and Gilbert bought an eight year old gas water heater previously owned by the Reverend John Barr. Appellant supplied liquid propane gas to Barr during 1981-1984, and first sold gas to appellees on August 4, 1984, three weeks before the explosion. The water heater appellees purchased was equipped with a thermostat manufactured by Emerson which was the subject of a recall beginning in late 1980 because the safety valve in the pilot gas control knob on the thermostat tended to stick in the open position, allowing gas to escape and posing a risk of explosion. To effectuate the recall, Emerson mailed a strongly worded notice to liquid propane gas dealers nationwide, and also printed the recall notice in a number of trade publications. In this notice, Emerson requested gas dealers to provide their customer lists so that Emerson could notify owners about the defective thermostats, and offered to reimburse the dealers for any expenses they incurred in replacing thermostats for their customers.

At trial, appellees introduced into evidence twenty-two return mail receipts, which indicated the Emerson recall notices were received at appellant’s home and branch offices in December 1980, and also introduced a letter written to Emerson by R. C. Mayer, appellant’s vice president and treasurer, in which Mayer requested 60,000 copies of the recall notice and stated appellant would send them to each of its customers in their bills. Easton Weaver, Emerson’s recall manager, testified he then mailed the requested notices to appellant, and also sent a follow-up letter to appellant on March 4, 1981, but had no further communication with appellant. Several of appellant’s senior executives testified they did not remember the recall effort or the notices Emerson mailed, but they acknowledged regularly reading the trade magazines in which the recall notice was published, and also conceded the company and its branch offices replaced forty-one defective Emerson thermostats, including several within a few miles of appellees’ home. There was no evidence appellant ever informed its customers of the recall program, and both Barr and appellees testified they never received any warning of the recall or the defective thermostat.

1. In its first three enumerations, appellant contends the trial court erred by denying its motion for a directed verdict made on the general grounds. Appellant asserts specifically that it owed no duty to appellees because it did not sell or install the water heater and had no knowledge that appellees owned a water heater with a defective thermostat. In support of this argument, appellant relies on cases setting forth the general rule that when a gas water heater installed in a private home “is owned and installed by the owner or occupant, the gas company not selling or installing the appliance but merely furnishing gas to it, is not responsible for the condition of the appliance and is not liable to the owner ... for injuries caused by its defective condition, unless the gas was supplied by the company with actual knowledge on its part of the defective and dangerous condition of the appliance. [Cits.]” Davis v. Gen. Gas Corp., 106 Ga. App. 317, 321 (1) (126 SE2d 820) (1962). Moreover, absent actual knowledge of a defect, a company that merely supplies gas to a water heater owner has no duty to inspect the appliance. Milligan v. Ga. Power Co., 68 Ga. App. 269, 280 (22 SE2d 662) (1942). Thus, appellant argues, because it had no actual knowledge of the defect in appellees’ water heater and was under no duty to inspect and discover the problem, it cannot be held liable to appellees.

However, appellees contend these cases are not controlling because their claim was based not merely upon a duty arising from appellant’s actual knowledge that appellees owned a defective thermostat or a duty to inspect the appliance when first supplying gas service, but also upon appellant’s breach of a voluntarily assumed duty to warn its customers about the defect. Appellees assert that the evidence adduced at trial supports a finding that as a result of appellant’s negligent failure to complete its obligations with regard to the recall, appellees and Barr were not notified of the defect in the thermostat, and that appellees’ injuries were proximately caused by appellant’s failure to warn its customers.

Assuming, without deciding, that appellant’s arguments regarding actual knowledge and the duty to inspect are correct, nonetheless we agree with appellees that the evidence authorized a verdict for appellees on the issue of appellant’s negligent performance of the voluntarily assumed duty to notify its customers of the recall. “ ‘It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.’ [Cit.]” Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 837 (331 SE2d 899) (1985). “ ‘[T]he law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which an action lies.’ ” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 524 (317 SE2d 853) (1984). This principle is further articulated in Section 324A of the Restatement (Second) of Torts, which was adopted by the Georgia Supreme Court in Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980), and which provides: “Liability to Third Person for Negligent Performance of Undertaking. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person . . . .”

In a factually similar case, the Iowa Supreme Court addressed the question of whether a farm implements dealer was liable to a subsequent purchaser of a used auger for failing to warn the prior owner of the manufacturer’s recall of the product. In Nichols v. Westfield Indus., 380 NW2d 392 (Sup. Ct. Iowa 1985), the manufacturer had notified the dealer of the recall program and had requested a list of purchasers of the auger, but the defendant dealer did not supply the name of the owner from whom the plaintiff bought the used auger even though his name was in their files, and the prior owner never learned of the recall program and thus never warned the plaintiff. The court held that the jury could have found “that a reasonably prudent dealer, in [the dealer-defendant’s] situation, would have cooperated in the manufacturer’s recall campaign in order to reduce a perceived risk to users of the product,” and concluded that the evidence was “sufficient to support a finding that [the dealer] was negligent in failing to cooperate in the recall procedure and that such negligence was a proximate cause of plaintiff’s injuries.” Id. at 398 (II).

We concur with the reasoning of the Iowa court. Given the well established principle of Georgia law concerning the duty of volunteers to exercise ordinary care, we hold that when a dealer voluntarily agrees to notify its customers of a product recall and to mail notices provided by the manufacturer, and the evidence discloses that the manufacturer furnished the notices but that the dealer failed to perform its voluntarily assumed task, its negligence in failing to perform this obligation will give rise to a cause of action to one who suffers injuries as a proximate result thereof. Although the dealer is not obligated to conduct the recall program, once it undertakes to do so a duty devolves upon the dealer to exercise ordinary care, and whether it did so under the circumstances is a question for the jury. See generally Cunningham, supra; Housing Auth., supra at 523-524 (3) (a); Cleveland v. American Motorists Ins. Co., 163 Ga. App. 748, 751-752 (2) (295 SE2d 190) (1982); Mixon v. Dobbs Houses, 149 Ga. App. 481, 483 (254 SE2d 864) (1979).

Nonetheless, appellant argues that even if it was obligated to notify its customers of the recall program, any negligence of appellant in its execution of that duty is not actionable unless there is a causal relation to appellees’ injuries, a connection appellant contends was not established by the evidence adduced at trial regarding its failure to send recall notices to its customers. “Negligence which is the proximate cause of an injury is such an act that a person of ordinary caution and prudence would have foreseen that some injury might likely result therefrom. [Cit.]” Harris v. Hardman, 133 Ga. App. 941, 942 (1) (212 SE2d 883) (1975). “The most common test of negligence is whether the consequences of the alleged wrongful act are reasonably to be foreseen as injurious to others coming within the range of such acts .... [Cits.]” Thomas v. Williams, 105 Ga. App. 321, 326-327 (124 SE2d 409) (1962).

Construing the evidence in favor of appellees, we find that the record contains evidence authorizing a finding that appellees’ injuries were a foreseeable consequence of appellant’s failure to complete its voluntarily assumed duties with regard to the Emerson recall program. The jury could have found that appellant offered to distribute the recall information, and then could have concluded either that appellant received the shipment of recall notices from Emerson but never mailed them to its customers, or that appellant did not receive the requested notices, but having assumed the duty to notify its customers a reasonably prudent dealer would have contacted Emerson when the notices failed to appear. Additionally, the jury was authorized to infer that had the notices been mailed to appellant’s customers, “this would have produced a chain of events resulting in [replacement of the defective thermostat] at the time [the water heater] was sold to [appellees].” Nichols, supra at 398 (II). The evidence further authorized the jury to find that the explicit language in the recall notices regarding the risk of explosion from leaking gas would have led a gas dealer of ordinary prudence to foresee that users of appliances equipped with the defective Emerson thermostat could be injured in explosions if they were not notified of the danger, and that appellant’s negligence in executing its obligation to so notify its customers, particularly the failure to send a recall notice to Barr, was a direct and proximate cause of appellees’ injuries. See Nichols, supra at 396-397 (I).

“On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cits.]” Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 254 (1) (342 SE2d 694) (1986). In the instant case, we have found that the evidence adduced at trial authorized the jury to conclude that injury from an explosion of gas leaking from a defective Emerson thermostat reasonably could have been foreseen by appellant, and that appellant’s negligent failure to complete its voluntarily assumed duty to distribute the recall notices was the proximate cause of appellees’ injuries. Although appellant contends the verdict was against the weight of the evidence, “weighing the evidence is a function for the jury and the trial court, not an appellate court. [Cits.]” Verde v. Granary Enterprises, 178 Ga. App. 773 (1) (345 SE2d 56) (1986). We find the evidence was sufficient to support the verdict, id., and thus find the trial court did not err by denying appellant’s motion for a directed verdict. See generally American Game &c. Music Svc. v. Knighton, 178 Ga. App. 745, 746 (1) (344 SE2d 717) (1986).

2. Appellant next contends the trial court erred by excluding from evidence the covenants not to sue executed by appellees in favor of the other defendants upon settlement of appellees’ claims against them, thus precluding appellant from disclosing to the jury the allegations previously made against the other defendants and from arguing against a “double recovery.” “ ‘While [OCGA § 13-4-81] provides that a covenant never to sue is equivalent to a release, this statute applies to the parties with whom the covenant is made and not to another tortfeasor. A covenant not to sue one tortfeasor will not bar actions against another tortfeasor. (Cits.)’ [Cit.] . . . Anything received by way of such covenants not to sue operates as a payment pro tanto upon any judgment obtained against appellant. [Cits.]” American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 837 (278 SE2d 719) (1981). The record reveals the trial court reduced the jury’s verdict by the amount previously paid by the other defendants in settlement, and also allowed appellant to discuss evidence of alleged wrongdoing by other defendants. Thus, the trial court’s exclusion of the covenants not to sue did not create a risk of double recovery, and accordingly, there appears no error requiring reversal. See Ford Motor Co. v. Lee, 237 Ga. 554, 555-556 (2) (229 SE2d 379) (1976); Malone v. City of Rossville, 107 Ga. App. 271, 272 (1) (129 SE2d 563) (1963).

3. The record does not support appellant’s contention that the trial court allowed appellees’ counsel to “read the law to the jury” during closing argument. The record reveals appellees’ attorney did not read verbatim from statutes or cases but instead briefly outlined certain legal principles, which is clearly permitted. “It is counsel’s right to state his legal position to the jury; this right is indispensable to an intelligent presentation of his case. [Cits.]” Garrison v. Rich’s, 154 Ga. App. 663, 664 (3) (269 SE2d 513) (1980). Appellees’ counsel merely referred to legal principles the court was planning to charge, and thus there was no error. See id.

4. Appellant next enumerates as error the trial court’s failure to give all of appellant’s requested charges. This enumeration cannot be considered because the requests to charge do not appear in the record. Northern Assur. Co. v. Roll, 176 Ga. App. 893, 895 (7) (338 SE2d 870) (1985).

5. Finally, appellant asserts the trial court erred by charging the jury regarding a National Fire Protection Association regulation concerning odorization of liquid propane gas because the regulation was not admitted into evidence. This enumeration is without merit. The regulation at issue was adopted by the Safety Fire Commissioner pursuant to the Georgia Administrative Procedure Act, OCGA § 50-13-1, et seq., see Ga. Admin. Comp. Ch. 129-3-16.06, and thus the trial court was required to take judicial notice of the regulation. OCGA § 50-13-8.

Decided October 26, 1988 —

Rehearing denied November 8, 1988

H. Baxter Harcourt, Tina G. Stanford, for appellant.

Michael C. Smith, Swearingen, Childs & Philips, Ben B. Philips, Jessie G. Bowles, for appellees.

Thomas W. Bennett, Frank J. Beltran, amici curiae.

Judgment affirmed.

Carley, J., concurs. Deen, P. J., concurs in the judgment only.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    77344.
    HUDSON v. THE STATE.
    (374 SE2d 212)
   Banke, Presiding Judge.

Hudson was convicted of two counts of aggravated assault upon a peace officer (OCGA § 16-5-21 (c)), one count of aggravated assault (OCGA § 16-5-21 (a) (2)), and one count of driving while under the influence of alcohol. He brings this appeal from the denial of his motion for new trial.

The evidence, construed in favor of the verdict, established the following facts. As Kenneth Golphin was stopped at a red light, the appellant drove his pickup truck into the rear of Golphin’s automobile, pushing it into the intersection. At the next traffic light, Golphin got out of his car and walked up to the driver’s window of the appellant’s truck. At that time, the appellant lowered the window and pointed a revolver in his face. Golphin retreated to his car, noted the license tag number of the appellant’s truck, and later telephoned the police from a nearby service station. He then accompanied the officers who responded to the call to the appellant’s residence, the location of which was determined through a check of the registration data on the truck. Shortly thereafter, the appellant was observed driving the truck on the street behind his residence. As the police approached the vehicle, the appellant exclaimed, “I’m not afraid of no damn police” and discharged a firearm in the direction of the officers. He then ran into the woods but was soon apprehended. Held:

1. The appellant contends that the trial court erred in denying his motion for mistrial made in response to a remark by the state’s attorney during closing argument to the effect that it was his (the state’s attorney’s) feeling that the reason the appellant had retained three different attorneys was because he was seeking to find one he could control. At the appellant’s election, the closing arguments were not recorded. Assuming, however, that the state does not dispute that the challenged remark was in fact made (see generally Munsford v. State, 129 Ga. App. 547 (4) (199 SE2d 843) (1973), overruled on other grounds in Lowe v. State, 133 Ga. App. 420 (210 SE2d 869) (1974)), we conclude that it did not require the declaration of a mistrial, inasmuch as evidence concerning the appellant’s representation by three different counsel had previously been brought to the jury’s attention, and the remark was not inherently prejudicial.

Decided October 21, 1988 —

Rehearing denied November 8, 1988.

Mary S. Donovan, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Russell J. Parker, Assistant District Attorneys, for appellee.

2. The appellant contends that the trial court erred in instructing the jury on parties to a crime and aiding and abetting. As the appellant specifically requested an instruction on aiding and abetting, this enumeration is without merit. See Edwards v. State, 235 Ga. 603, 604 (221 SE2d 28) (1975).

3. The trial court did err, however, in failing to charge that knowledge by the accused that the victim is a peace officer is an essential element of the offense of aggravated assault upon a peace officer. See Bundren v. State, 247 Ga. 180 (2) (274 SE2d 455) (1981); Britt v. State, 184 Ga. App. 445 (2) (361 SE2d 710) (1987). Accordingly, the appellant’s convictions of aggravated assault upon a peace officer must be vacated; and, in accordance with the state’s expressed preference for resentencing rather than for a new trial on these counts, the case is remanded to the trial court with direction that the appellant be resentenced on Counts 1 and 2 of the indictment in accordance with OCGA § 16-5-21 (b), which sets forth the punishment for the lesser included offense of “ordinary” aggravated assault. See generally Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981).

Judgment affirmed in part and vacated and case remanded with direction in part.

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


author: Deen, Presiding Judge.

text:
    77636.
    FELLMAN v. THE STATE.
    (375 SE2d 476)
    Decided October 24, 1988 —
    Rehearing denied November 8, 1988

      Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

      Johnnie L. Caldwell, Jr., District Attorney, for appellee.

      Andrew J. Whalen III, Newton M. Galloway, for City of Griffin.

      Ralph T. Bowden, Jr., amicus curiae.
   Deen, Presiding Judge.

Daniel R. Fellman was convicted of various traffic offenses, including DUI, in the City Court of Griffin. He appealed his convictions to the Superior Court of Spalding County pursuant to the provisions of OCGA § 40-13-28. He and the city entered into a stipulation in which the city admitted that his conviction of driving on a suspended license should be reversed, and he admitted that he was properly convicted of three offenses. He also admitted that he was driving a motor vehicle while under the influence of alcohol, and it was stipulated that he was not under the influence of any other drug. He appealed, contending that he was protected from punishment under the exception contained in OCGA § 40-6-391 (b). The only issue to be resolved was whether OCGA § 40-6-391 (b) repealed OCGA § 40-6-391 (a) and provides a total defense where the drug involved is alcohol. The parties agreed to a bench trial on the appeal. The superior court affirmed appellant’s DUI conviction, and he filed a direct appeal with this court. Appellant has filed a motion to dismiss the appeal, contending that under OCGA § 5-6-35 (a) (1) and (b) Fellman was required to file an application for appeal with this court rather than a direct appeal. Held:

OCGA § 5-6-35 (a) (1) provides that “appeals to this court from decisions of the superior court reviewing decisions of lower courts ‘by certiorari or de novo proceedings’ are discretionary.” Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521) (1988). As the appeal to the superior court was a “de novo proceeding,” under the holding in Anderson, we must dismiss the appeal for failure to comply with the provisions of OCGA § 5-6-35 as we have no jurisdiction over it.

Appeal dismissed.

Carley and Sognier, JJ., concur.


author: Benham, Judge.

text:
    76688.
    In the Interest of J. E. L. et al.
    (375 SE2d 490)
   Benham, Judge.

The Department of Family & Children Services (DFCS) filed a petition against the parents of J. E. L. Ill, a five-year-old boy, and T. M. L., a two-year-old girl, accusing them of child deprivation. See OCGA § 15-11-2. The petition was based on information that the children had been sexually abused by their father. After the trial court heard testimony on the issue, it found that the children were deprived and needed to be removed from their parents’ home, and awarded temporary custody to the Houston County DFCS. The father, acting pro se, appeals the denial of his motion for new trial. We affirm.

1. Appellant contends that J. E. L.’s competency to testify at trial was not sufficiently shown, and therefore the videotape of his accusatory statements about the sexual abuse his father inflicted upon him and his sister should not have been admitted. Appellant also argues that the in-court testimony of the DFCS social worker and a psychologist who had interviewed the boy should have been excluded for the same reason, rather than be admitted under OCGA § 24-3-16. We disagree. “[T]he standard of competency of a child to be a witness . . . [is] ‘not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.’ . . . Because the trial court has had the opportunity to observe the child during the competency examination and because such observation provides material indicia of competency (or the lack thereof) which this court cannot glean from a cold record, we will upset the ruling of competency only when the record clearly shows that the child was not competent as [previously] defined . . . [Cits.]” Westbrook v. State, 186 Ga. App. 493 (1) (368 SE2d 131) (1988). Although the victim here could not define the word “lie,” he demonstrated that he knew the difference between truth and falsehood, and gave truthful answers to the questions posed to him by counsel. We also note that the trial court found that “the child did . . . well considering the demeanor of the child [and] the circumstances surrounding the questioning.” Under these circumstances, we find that the trial court did not abuse its discretion in finding the victim competent to testify. Id. Since the child was found to have been competent to testify at trial and had been made available for giving testimony at trial, the trial court did not err in admitting the videotape and the live witnesses’ testimony about the victim’s accounts of the alleged abuses. OCGA § 24-3-16. See Newberry v. State, 184 Ga. App. 356 (1) (361 SE2d 499) (1987). None of that testimony was subject to hearsay objections, as appellant alleges. Reynolds v. State, 257 Ga. App. 725 (1) (363 SE2d 249) (1988).

2. Contrary to appellant’s assertions, we find that the evidence was sufficient to support the trial court’s determination that appellant’s children were deprived within the meaning of OCGA § 15-11-2 (8). Although the boy victim was obviously reluctant to talk about it, he had given consistent accounts of his father’s conduct toward him and his sister, both on the videotape and to the persons who testified about those accounts at the hearing. The medical evidence introduced showed that the children had been sexually abused. There being a clear and convincing evidentiary basis for the trial court’s determination of deprivation, we find no abuse of the trial court’s exercise of discretion in removing the children from appellant’s custody and placing them in the temporary custody of the DFCS. In the Interest of T. A. L., 177 Ga. App. 846 (341 SE2d 496) (1986).

Decided November 8, 1988.

James E. Lanier, pro se.

Carl A. Veline, Jr., Solicitor, Robert E. Turner, Assistant Solicitor, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, Deborah A. Edwards, Charlotte M. Hobson, for appellees.

3. Appellant contends that the deposition of Dr. Harvey, a doctor who examined the children, was inadmissible. However, the record shows that while the court was reviewing the admitted evidence at trial, it stated that Dr. Harvey’s deposition had been admitted without objection, and appellant’s attorney did not dispute that statement. The enumeration has no merit.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    77055.
    GWINNETT GRAPHICS, INC. v. NORTH AMERICAN VAN LINES, INC.
    (375 SE2d 292)
   Pope, Judge.

Plaintiff North American Van Lines, Inc., brought suit against defendant, Gwinnett Graphics, Inc., to collect the shipping charges allegedly due for goods transported from the shipper’s place of business in Florida to the office of Gwinnett Graphics, Inc. in Lilburn, Georgia. Summary judgment was awarded to plaintiff and Gwinnett Graphics appeals.

The bill of lading lists Gwinnett Graphics as both the shipper and the consignee. Gwinnett Graphics submitted the affidavit of its sales manager denying that it was the shipper. However, Gwinnett Graphics admits it was the consignee and received the shipped goods. Gwinnett Graphics argues summary judgment was improper because the affidavit of its sales manager created a genuine issue of fact to be tried.

Because this case involves an interstate shipment of goods by a common carrier, it is governed by the Interstate Commerce Act. “Under [49 USC § 10744 (1978)], unless the consignee is an agent, having no beneficial interest in the property, he is generally responsible for the payment of all lawful shipping charges. . . . Our own cases have held that the carrier may collect the charges from the shipper or from the consignee, absent a special contract under which the carrier agrees to relieve one or the other.” Aero Mayflower Transit Co. v. Harbin, 126 Ga. App. 72, 73 (190 SE2d 91) (1972). While the shipper is presumed to be primarily liable for freight charges for the transportation of goods, “the general rule is that the carrier may collect freight charges from either the shipper or the consignee, absent a special contract under which the carrier agrees to relieve one or the other.” O’Boyle Tank Lines v. Beckhan, 616 F2d 207, 209 (5th Cir. 1980). In O’Boyle, the defendant who was listed on the bill of lading as consignee presented evidence that it was merely the receiving agent for the party which held the beneficial interest in the goods. Consequently, an issue of fact was created as to the named consignee’s liability and summary judgment was reversed. However, in the instant case, Gwinnett Graphics was both the named consignee and the holder of the beneficial interest in the goods. The fact that Gwinnett Graphics contests whether it was properly listed on the bill of lading as the shipper does not create an issue of fact regarding the carrier’s right to collect from it as consignee.

The holding in Bekins Van Lines Co. v. Barlow, 123 Ga. App. 601 (2) (181 SE2d 908) (1971), is distinguishable and not controlling of the facts now before us. In Bekins, the defendant’s employer entered into a contract with the carrier for moving its employees’ household goods. The contract between the employer and the carrier constituted evidence of a special contract binding only the employer to pay for the shipping. Consequently, “[t]he evidence did not demand a finding for the [carrier]” and this court refused to reverse the jury verdict in favor of the defendant-consignee. The case now before us involves a commercial transaction between the shipper and the consignee in which the consignee consented to the shipment of goods it ordered via common carrier. Although the shipper may be primarily liable, the consignee may also be liable for shipping costs. The fact that the shipper is the party which actually hired the carrier does not create an issue of fact to defeat the carrier’s motion for summary judgment.

Decided November 8, 1988.

Davidson & Associates, William M. Davidson, Thomas P. Lenzer, for appellant.

Lamb & Associates, Melody R. Hennick, T. Gordon Lamb, Frederick G. Boynton, Edward H. Wasmuth, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

       We note that the consignee’s third-party claim against the shipper for indemnification of the judgment against it is still pending.


author: Sognier, Judge. Carley, Judge,

text:
    76598.
    YAEGER et al. v. CANADAIR, LTD.
    (375 SE2d 469)
   Sognier, Judge.

John and Patricia Yaeger filed a products liability suit based on negligence and strict liability against Canadair, Ltd. and others seeking damages for personal injury and loss of consortium allegedly resulting when a “Flextrac” all-terrain vehicle manufactured by Canadair, Ltd., and equipped with another manufacturer’s “Texoma” auger, rolled over while John Yaeger, who was operating the equipment, was inside. In their complaint, the Yaegers alleged, inter alia, that the Flextrac was “not merchantable or reasonably suited for the use intended, and was defectively designed, manufactured, assembled, equipped and modified.” The Yaegers appeal from the trial court’s grant of summary judgment in favor of Canadair, Ltd.

The facts of this case are more fully set forth in Yaeger v. Stith Equip. Co., 177 Ga. App. 835 (341 SE2d 492) (1986) and Yaeger v. Stith Equip. Co., 185 Ga. App. 315 (364 SE2d 48) (1987). In this appeal, appellants contend the trial court erred by granting appellee’s motion for summary judgment in that the motion was based on opinion evidence proffered by appellee’s experts that the Flextrac vehicle was not defective or dangerous. We agree with appellants that the holding in Pepper v. Selig Chem. Indus., 161 Ga. App. 548, 549 (1) (288 SE2d 693) (1982) is controlling here in that “this is not the type of case in which an expert’s opinion introduced by the movant will authorize the grant of summary judgment. [Cits.]” Id. Since appellants need not necessarily produce an expert’s opinion in order to prevail at trial, the language cited by appellee in Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978) is not applicable here. See Holley v. Smallwood, 174 Ga. App. 365, 366-367 (330 SE2d 136) (1985) (dissenting opinion). Nor do we find applicable appellee’s citations to Trailmobile, Inc. v. Smith, 181 Ga. App. 134 (351 SE2d 528) (1986) or Stodghill v. Fiat-Allis &c. Machinery, 163 Ga. App. 811 (295 SE2d 183) (1982). In both Trailmobile and Stodghill, it was held that the plaintiffs’ assumption of the risk of obvious defects in the product entitled the manufacturers to summary judgment despite the introduction of expert testimony by the plaintiffs that the products were negligently designed. It was due to the application of the doctrine of assumption of the risk that the patent defect in the products did not give rise to “an actionable design or manufacturing defect.” (Emphasis supplied.) Trailmobile, supra at 135 (2). These cases are thus inapposite to the case sub judice in which there was no evidence that appellant John Yaeger was cognizant of the risk he was assuming by operating the Flextrac vehicle.

Appellee also asserts that it cannot be held liable because appellants’ cause of action does not arise out of the condition of appellee’s all-terrain vehicle as it was sold but instead arises exclusively out of the defective design of the vehicle as modified by the addition of the Texoma auger. Thus, appellee asserts that it is entitled to summary judgment both as to negligence and as to strict liability in that no question of fact exists as to proximate cause, a necessary element under either theory of recovery. See Center Chem. Co. v. Parzini, 234 Ga. 868 (218 SE2d 580) (1975). First, since the affidavit of appellee’s expert cannot serve to pierce appellants’ assertion that the Flextrac vehicle was negligently designed and/or manufactured, Pepper, supra, and construing the evidence as we must in favor of appellants as respondents, Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987), it cannot be said as a matter of law that the alleged defective condition of the Flextrac when sold was not the exclusive cause for the vehicle rolling over, whether modified by the auger or not. Second, even assuming, arguendo, that appellee has correctly characterized appellants’ cause of action, the modification of the Flextrac by the addition of the auger can serve as an intervening act absolving appellee from liability only if the independent, intervening act “was not foreseeable by [appellee], was not triggered by [appellee’s] act, and . . . was sufficient of itself to cause the injury. [Cit.]” Union Carbide v. Holton, 136 Ga. App. 726, 729 (222 SE2d 105) (1975). Under the evidence adduced in the record we cannot say no questions of fact exist regarding the proximate cause of appellant John Yaeger’s injuries. Although appellee asserts the holding in Omark Indus. v. Alewine, 171 Ga. App. 207 (319 SE2d 24) (1984) is controlling here, that case involved an accident which the plaintiff therein conceded was not foreseeable by the manufacturer, id. at 209, and is thus inapplicable here.

“ ‘On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden .... [Cit.]” Gaylor v. Jay &c. Chrysler-Plymouth-Dodge, 183 Ga. App. 255, 256 (358 SE2d 655) (1987). Accordingly, the trial court erred by granting summary judgment in favor of appellee. See generally Butler v. T. C. Brittain Co., 181 Ga. App. 774, 775 (353 SE2d 589) (1987).

Decided October 19, 1988 —

Rehearing denied November 9, 1988

Jenkins, Bergman & Darroch, Frank E. Jenkins III, Jeffrey W. Frazier, for appellants.

Henning, Chambers & Mabry, W. C. Brooks, James T. Budd, for appellee.

Judgment reversed.

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

Carley, Judge,

concurring specially.

I concur in the judgment of the majority reversing the grant of summary judgment because I believe that the facts of this case bring it within the rationale of Thebaut v. McCloskey Varnish Co., 162 Ga. App. 651 (291 SE2d 398) (1982). Compare Talley v. City Tank Corp., 158 Ga. App. 130 (279 SE2d 264) (1981).

I am authorized to state that Presiding Judge Deen joins in this special concurrence.


author: Sognier, Judge.

text:
    77353.
    LYNN v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (375 SE2d 259)
   Sognier, Judge.

Idus Lynn brought suit against Georgia Farm Bureau Mutual Insurance Company to recover casualty insurance benefits allegedly due him for wind and rain damage his home sustained during Hurricane Kate. The trial court granted summary judgment in favor of the insurer based on Lynn’s failure to submit proof of loss and file suit in timely fashion under the terms of the policy, and Lynn appeals.

The record reveals that appellant sustained damage to his roof, with resulting damage to interior walls from leaking rain on November 21, 1985. Appellant reported his loss to appellee’s local agent the following day. Appellant submitted written estimates from roofers in February 1986 but complained at his deposition that he tried but could not get an adjuster to inspect the interior damage. In April 1986 appellee offered to pay appellant $4,300 in settlement of the roof damage claim, maintaining the roof could be repaired for that amount. Appellant, believing that no repair would be satisfactory, rejected the offer and insisted that the roof needed to be replaced. Nothing further transpired between the parties until August or September 1986, at which time appellant submitted to Mike Southall, appellee’s adjuster, two additional estimates for roof replacement. In October 1986, appellee’s offer of $4,300 for the roof damage was again extended, and a draft dated October 7, 1986 was mailed to appellant. In early November 1986, appellant furnished three estimates to appellee for repair of the interior damage. It is undisputed that appellant’s property was insured for $40,000 although it is likely that its value was in excess of $100,000. Because of this, and his belief that co-insurance would apply, Southall issued a draft dated November 25, 1986 to appellant in the amount of $2,320 in settlement of the interior damage claim, which sum was 40 percent of the highest estimate submitted by appellant. Further correspondence between appellant’s attorney and appellee’s agent took place between March and May of 1987, culminating in the return of the two drafts by appellant and the filing of this suit on May 5, 1987.

1. Appellant concedes he did not submit a formal proof of loss form within sixty days of the loss, nor did he file suit within twelve months of the loss, both as required by provisions in the policy, but contends the trial court erred by granting summary judgment in favor of appellee because appellee, by its conduct, waived those provisions by leading him to believe it would not insist on strict compliance with its requirements. We agree and reverse.

(a) By deposition, Southall admitted the insurer had received many claims for damage from this particular hurricane, that it was considered a catastrophic loss, and that their general policy was to settle these claims without requiring official proof of loss forms. He further admitted that appellee neither informed appellant that his claim was insufficient nor provided him with proper proof of loss forms, and that appellee’s offer to settle appellant’s claim was made after the expiration of the sixty day period for providing proper proof of loss. These facts are sufficient to show a waiver of the requirement of a written proof of loss. See Johnson v. Ga. Farm &c. Ins. Co., 141 Ga. App. 859, 860 (1) (234 SE2d 693) (1977).

(b) “ ‘ “It is a universal rule that, where the insurer, by its acts in negotiating for a settlement, has led the policyholder to believe that he will be paid without suit, the insurer cannot take advantage of a provision in the policy which requires the action to be brought in a certain time. [Cit.] . . . [Cit.]” ... If the facts show that negotiations for a settlement have led the insured to believe that the claim would be paid by the insurer, without a suit, this will constitute a waiver of the time requirement. . . .’ [Cit.]” Georgia Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28-29 (348 SE2d 554) (1986).

Decided October 28, 1988 —

Rehearing denied November 9, 1988.

Smith, Perry & Epps, Ralph C. Smith, Jr., for appellant.

Lambert, Floyd & Conger, George C. Floyd, for appellee.

OCGA § 33-24-40 provides that negotiation between parties looking toward possible settlement of a loss or claim does not constitute waiver of any policy provision, but “ ‘[i]f the insurer never denied liability, but continually discussed the loss with its insured with a view toward negotiation and settlement without the intervention of a suit, whether or not this lulled the insured into a belief that the 12-month clause in the contract of insurance was waived by [appellee], became a question of fact, which, under the pleadings, was in dispute. Such a dispute as to intent properly is a matter to be submitted to a jury under appropriate instructions. [Cits.]’ [Cit.]” Reserve Ins. Co. v. Smith, 145 Ga. App. 850, 852 (1) (245 SE2d 66) (1978). See also Commercial Union Ins. Co. v. F.R.P. Co., 172 Ga. App. 244, 248 (1) (322 SE2d 915) (1984). It is undisputed that appellee never denied liability, even though according to its own evidence (albeit disputed by appellant) appellant failed even to mention the interior damage until more than eleven months had passed from the time of the loss. Nothing was ever said to appellant indicating that appellee would insist on strict compliance with the policy limitations. Moreover, appellee accepted appellant’s estimates and even issued drafts beyond the twelve month period. Here, as in Nee v. State Farm Fire &c. Co., 142 Ga. App. 744, 747-748 (236 SE2d 880) (1977), “there is evidence that could lead a jury to believe the intent of the parties was to negotiate a settlement, thus impliedly waiving the contractual limitation. . . . There being a material issue of disputed fact in this case, the trial court erred in granting summary judgment in favor of [appellee].”

Judgment reversed.

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


text:
    77448.
    NEWMAN v. PHYSICAL THERAPY ASSOCIATES OF ROME, INC.
    (375 SE2d 253)
   Deen, Presiding Judge.

The appellant, Rhoda Newman, was injured in an automobile collision in October 1984, and consequently underwent physical therapy at the premises of the appellee, Physical Therapy Associates of Rome, Inc. At a therapy session on February 6, 1985, it was necessary to remove two pieces of jewelry from Newman’s neck. Newman placed one piece on a peg on the wall in the therapy room, and the therapist placed the other. After the session, Newman dressed but forgot to retrieve her jewelry from the wall pegs. She noticed the absence of her jewelry the next day and called the appellee, but the jewelry was gone. Subsequently, Newman commenced this action, asserting bailment as the theory of recovery. The trial court directed a verdict for the appellees, and this appeal followed. Held:

Decided October 18, 1988 —

Rehearing denied November 9, 1988.

Roy N. Newman, for appellant.

Jo H. Stegall III, for appellee.

A “bailee must have independent and exclusive possession of the property. [Cits.]” Buckley v. Col. Mining Co., 163 Ga. App. 431, 432 (294 SE2d 665) (1982). “Where, although an article is turned over generally to be stored on premises owned by another, where the owner retains the right to remove it at will without the knowledge of the person in charge of the premises, no bailment arises. [Cit.]” Mossie v. Pilgrim Self-Svc. Storage, 150 Ga. App. 715 (258 SE2d 548) (1979). In the instant case, as it was undisputed that Newman retained the right to remove her jewelry at any time without the knowledge of the appellee, there was no exclusive possession by the appellee and thus no bailment. The trial court properly directed a verdict for the appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77555.
    MURPHY v. SUDDETH.
    (375 SE2d 253)
   Deen, Presiding Judge.

In February 1984, while a student at a Statesboro, Georgia, college, appellant Murphy became involved with appellee Suddeth, who lived and was working in the vicinity. In December 1984 she became pregnant and left college to return to her parental home. Appellant and her mother met with appellee’s mother the following February and informed her of the pregnancy; the latter’s response was to deny that her son, appellee Suddeth, was the father, a response in which she was subsequently joined by appellee. Appellee allegedly subsequently rejected expressly the idea of marriage.

During the remainder of the pregnancy and during the first two- and-one-half years of the child’s life, appellee allegedly offered no financial support to mother or child and maintained no contact. In November of 1985, while appellant and the three-month-old infant were visiting relatives in the Statesboro area, appellant allegedly offered appellee’s parents (intervenors below) an opportunity to see the child, but they declined. During this period appellant asked appellee’s parents for financial help and also sought and received from the DeKalb County Department of Family and Children’s Services (DFACS) financial assistance to cover hospital expenses and child support. DFACS subsequently requested reimbursement from appellee but received no response. Meanwhile, appellee’s mother began sending payments to appellant which the latter received “under protest.”

In January 1988 appellee filed a legitimation petition, and the following April the parental grandparents filed for intervention, seeking grandparent visitation rights. On April 26 appellee was ordered to make weekly child support payments of $50.00. Two of the payments were apparently late, and on May 20 appellant filed a motion for contempt.

After a May 1988 hearing, the Gwinnett County Superior Court on June 10,1988, entered an order which, inter alia, granted legitimation and visitation rights to appellee, ordering him to make regular weekly child support payments of $60; and, while denying intervenors’ petition, provided that the paternal grandparents share in the visitation. Ms. Murphy filed a motion for reconsideration, and, upon denial, has appealed from this order. She enumerates as error (1) the trial court’s granting paternal [sic] rights to appellee; (4, 5) the denial of her motion for contempt and to compel discovery; (2, 3, 6) the trial court’s findings that appellee had not abandoned his “opportunity interest,” that he had provided support and established a parental bond, and together with “all parties” was fit to have custody, and that he was not desirous of abandoning the child or any rights pertaining thereto; (8, 9) that the trial court had applied improper evidentiary standards; (7) that permitting the father to seek legitimation two and one-half years after the child’s birth violated the mother’s constitutional equal protection rights in that a mother has only ten days after the child’s birth to decide whether to let it be placed for adoption; and (10) that the trial court erred in considering visitation rights during a legitimation hearing. Held-.

1. Georgia law has consistently favored the preservation of the relationship between biological parents and their children. “There can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring,” intoned the Supreme Court in Nix v. Dept. of Human Resources, 236 Ga. 794 (225 SE2d 306) (1976). “Seldom does the State wield so awesome a power as when it permanently cuts the family ties between parent and child,” echoed this court in R. C. N. v. State, 141 Ga. App. 490, 491 (233 SE2d 866) (1977). The State has established rigorous standards for the termination or severance of the parent-child bond. See, e.g., OCGA § 15-1-81; Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982).

This is true whether the child was born in or out of wedlock, and whether the non-custodial parent has disavowed the relationship and its concomitant duties from the time of the child’s birth (or even before), or has relinquished or abandoned those duties during the offspring’s infancy or childhood. See In the Interest of C. T., 185 Ga. App. 561 (365 SE2d 117) (1987). See also Quilloin v. Walcott, 443 U. S. 246 (98 SC 549, 54 LE2d 511) (1978).

In the instant case the trial court applied the “best interest of the child” standard for settling custody disputes between parents to the adjudication of a controversy over whether or not the father should be permitted to legitimate his child and to visit her. The evidence can be construed as showing that from the time he learned of the child’s mother’s pregnancy until more than two years after the child’s birth, the father both negligently and affirmatively ignored his daughter’s existence, making no contribution to her support and making no direct inquiries as to her welfare and progress; that the DeKalb County DFACS was called upon to provide child support and did so, and notified the father of his financial obligation, but with no success; that appellee/father’s parents began tendering some support payments and making some overtures towards the child in the form of phone calls, gifts, etc.; that in conjunction with the legitimation petition appellee was ordered to make regular weekly support payments and that, although there was some question as to the timeliness and sufficiency of certain of these payments, they had all been made as of the time of the filing of the instant appeal. On the other hand, there is evidence that the custodial parent (appellant here) needed financial assistance (she sought such assistance from the DFACS, as noted supra, and alleged that she “practically had to beg” the father’s parents for assistance). We note from the trial court’s June 1988 order that the mother has been awarded permanent custody, and that the visitation rights awarded the father are structured on a graduated scale of frequency and duration such as would minimize the likelihood of psychological harm to a child of tender years.

2. Although we can sympathize with the plight of a mother who must make the important decision whether or not to place her child for adoption within the short space of ten days, we do not find this proposed analogy to appellee’s alleged two-and-one-half year wait before beginning legitimation proceedings to be apposite, either in fact or as a matter of law, to the case at bar. We therefore find no equal protection violation (Enumeration 7). Our further study of the record persuades us that there was no error in the trial court’s denial of appellant’s motions for contempt and to compel discovery (Enumerations 4 and 5), as both were moot. As to the enumerations regarding evidentiary standards, it is true that (contrary to appellant’s assertions) in a custody proceeding the standard as between parents is “best interest of the child.” See, e.g., Quilloin, supra. Because the instant case does not involve a custody proceeding as such, however, the rule is inapposite here. Appellant is likewise in error as to the evidentiary standard for showing unfitness. See Miele v. Gregory, 248 Ga. 93 (281 SE2d 565) (1981); Blackburn v. Blackburn, supra. Appellant shows neither how the evidentiary standards are applicable in the instant case nor what harm, if any, she has suffered from their application vel non to the case at bar. These enumerations (8, 9) are also withiput merit.

3. In In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987), the baby’s father filed a legitimation petition when he learned that the child, with whom he had had no contact since birth, had been placed for adoption and that a suitable couple were actually seeking to adopt her. The evidence, although conflicting, appeared to show that the father had provided no financial support for either mother or child and had not otherwise displayed any interest in the child prior to learning of the proposed adoption. The Supreme Court determined that the biological father of an illegitimate child may, if he fulfills certain criteria, have a constitutionally protected “opportunity interest” that gives him certain rights, including, inter alia, those of legitimating the child and even of gaining custody. The court remanded the case for the trial court’s determination of whether the father had “abandoned his opportunity interest through his conduct with regard to [the mother] and the child and otherwise.” Id. at 297. The court then held, “If it is determined that the opportunity interest has not been abandoned [,] then the court must determine whether [the father] is a fit person for custody. If he is fit, legitimation should be granted. If not, it should be denied.” Id.

In the instant case the trial court expressly found that the father had not abandoned his opportunity interest and that “all parties” were fit. Although the custody issue per se is not involved here, the standard enunciated in Eason, supra, seems to mandate that appellee Suddeth be permitted to legitimate his child. It would naturally follow that it was proper for him to have visitation rights. Such determinations are within the trial court’s sound discretion and, absent abuse, that discretion will not be disturbed. Appellant’s second, third, and sixth enumerations are devoid of merit.

4. We find no merit in appellant’s remaining enumerations. The trial court’s findings of fact and conclusions of law, as incorporated in the order from which this appeal is taken, would seem to comport with both the letter and the spirit of applicable law.

Judgment affirmed.

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

Decided October 27, 1988 —

Rehearing denied November 9, 1988

Robert F. Coheleach, for appellant.

Robert S. Lanier, Jr., for appellee.


text:
    76670.
    PENNSYLVANIA LUMBERMENS MUTUAL INSURANCE COMPANY v. HANEY et al.
    (375 SE2d 293)
   Benham, Judge.

The question to be resolved in this interlocutory appeal from the denial of appellant’s motion for summary judgment is whether, under the circumstances here involved, the appellees are insureds under a policy issued by appellant. The policy was issued by appellant to a corporation. One of the cars listed on the policy, which by its terms covers vehicles owned by the corporation, is actually owned by the mother of the two minor appellees. The mother, with whom appellees reside, is divorced from and lives separately from the father, who is an employee and officer of the corporation which is the named insured under the policy. Appellees were injured while riding as passengers in a car not covered by the policy and driven by a person not associated with the corporation. Served as uninsured motorist carrier, appellant denied coverage on the ground that appellees are not insureds under the policy. That denial was based on appellant’s position that appellees would be covered while riding as passengers in a car not covered by the policy only if appellees were members of the family of the named insured, and that a corporation cannot have a family. We agree and reverse.

1. Appellees’ argument has not been that they are entitled to coverage as members of the family of the corporate insured, but that because their mother is the owner of a car listed on the policy, she has the status of named insured and, because they are relatives of the named insured resident in the same household, they are insureds under OCGA § 33-7-11 (b) (1) (B) no matter what car they occupy. The flaw in that argument is the equation of owner with insured.

At the heart of appellees’ position is an interpretation of the opening words of OCGA § 33-7-11 (a) (1): “No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless . . .” it includes uninsured motorist coverage. Appellees interpret that language to mean that the insurance must be offered to the owner. They then reason that since their mother is the owner of a car listed in the policy, she must be the “named” insured. That interpretation ignores both the second clause of the quoted language and the realities of motor vehicle ownership. The second clause requires the inclusion of uninsured motorist coverage in every policy, not just those issued to owners, showing that the legislature contemplated that not all named insureds would be the owners of the vehicles involved. If appellees’ position were correct, the owner of a vehicle leased to another would then be included in the uninsured motorist coverage procured by the lessee, even if the owner were driving a different car. We find untenable appellees’ argument that their mother is a “named” insured solely because she owns one of the cars listed on the policy appellant issued to a corporation.

Appellees’ efforts to show that this court has previously equated “owner” with “insured” are ineffective. In Gulf American Fire &c. Co. v. McNeal, 115 Ga. App. 286 (3) (154 SE2d 411) (1967), this court, quoting from a treatise, held, “ ‘The uninsured motorists coverage applies not only to the owner of an insured automobile but to his spouse and relatives of either if they live in his household.’ ” In that case, however, and in the cases cited by appellees which quote from that case, there was no distinction between owners and insureds; they were all the same. The use of the word “owner” in those contexts was correct because the owners were the named insureds, but that usage does not constitute a holding that all owners are named insureds.

Purcell v. Allstate Ins. Co., 168 Ga. App. 863 (310 SE2d 530) (1983), relied upon by appellees for the proposition that the owner of a vehicle and resident relatives of the owner are insureds under the policy, does not support their position. There, the sole proprietor of a business bought a vehicle in the name of the business and insured it in the name of the business. When his wife was later injured by an uninsured motorist while she was a pedestrian, the insurer denied coverage on the ground that the named insured was “Purcell Radiator Service,” not Mr. Purcell, and that Mrs. Purcell was not a relative of Purcell Radiator Service who resided in its household. This court reversed a judgment for the insurer, holding that since Purcell Radiator Service was a sole proprietorship, it was not a distinct entity, but merely a trade name used by Mr. Purcell. That being so, Mr. Purcell was the named insured and Mrs. Purcell, as his spouse resident in his household, was an insured under the policy even when she was not in the vehicle named in the policy.

An essential difference between that case and the present case is that the named insured in this case, a corporation, is a distinct entity which is capable of being the named insured in an insurance policy. This case, then, is closer in principle to Hogan v. Mayor & Aldermen of Savannah, 171 Ga. App. 671 (320 SE2d 555) (1984). There, an officer, director, and stockholder of a corporation, after being injured while riding as a passenger in a police car, attempted to come within the definition of insured in a policy issued to the corporation. This court rejected the notion that a corporation could have family members and affirmed the judgment in favor of the insurer.

Decided November 9, 1988.

McLain & Merritt, William S. Sutton, for appellant.

Jordan & Bodner, H. Garold Jordan, Boling, Rice & Bettis, Larry H. Boling, Harper & Cooper, Thomas D. Harper, for appellees.

Since, as we have held above, appellees’ mother, though she is the owner of a car listed on the policy under which they seek to recover, is not the named insured, appellees could recover only if their injuries were sustained while they were passengers in the car listed in the policy. Id. Appellant’s statement that it would not have denied coverage if that had been the case is not inconsistent with its denial of coverage: coverage was not denied because of any dispute concerning ownership of the vehicle, but because appellees are not resident family members of the named insured.

2. Appellees have also asserted an estoppel theory based on an allegation that appellant was aware of the ownership of the car and cannot, therefore, deny coverage on the basis of nonownership. See Christian v. Allstate Ins. Co., 239 Ga. 850 (239 SE2d 328) (1977). That theory is inapplicable here for the simple reason that appellant has never denied coverage of the vehicle named in the policy on the ground of nonownership or any other ground. All appellant has denied is that appellees are family members of the named insured, the corporation to which the policy was issued.

In summary, since appellees were injured while in a vehicle not covered by the policy, they would be insureds under the policy only if they were resident members of the family of the named insured; since the named insured is a corporation, it has no family, and appellees are not insureds. The trial court erred in denying appellant’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


text:
    77033.
    MIRANDA v. THE STATE.
    (375 SE2d 295)
   Benham, Judge.

Convicted of trafficking in cocaine and giving a false name to a law enforcement officer, appellant contends on appeal that the trial court erred in denying her motion to suppress the incriminating evidence found in a search of her personal effects. We agree and reverse her conviction.

The only witness at the hearing on the motion to suppress was the arresting officer. He testified that he suspected appellant of transporting contraband when he saw her deplane from a flight originating in Miami. On cross-examination, he admitted that his suspicion was not based on any articulable facts, just his “gut-feeling.” Nonetheless, he followed appellant through the airport, and noted that she went into a rest room and changed from a loose fitting blouse to a tight tank-top. He then positioned himself to overhear her conduct a 10-minute telephone conversation which he was unable to understand because it was conducted in Spanish. The officer then approached appellant, asked to speak with her, displayed his credentials and identified himself as a police officer, and asked for her ticket. He observed that the ticket was a one-way ticket bought with cash and there were no baggage claim tickets attached to it. While he held the ticket, the officer asked appellant three times whether the name on it was hers, receiving an affirmative answer to the third question. Returning the ticket, the officer asked appellant for identification and was told that she had none. He testified that she became very nervous during that conversation, and that he then asked her if she would allow him to search her and her purse and tote bag. When appellant indicated that she did not understand the question, he repeated it and then gestured with his hand to tell her to follow him to a small room nearby, which she did without speaking. In the room, the officer asked again for consent to search appellant, at which time she opened her tote bag, still without speaking, and took out two articles of clothing. While she stood with the clothes in her hands, the officer searched the bag himself and found cocaine. A search of her purse after her arrest revealed that the name on the ticket was not appellant’s. At the close of cross-examination of the officer, he repeated that his initial stop of appellant was based solely on his hunch.

1. Appellant contends that the initial encounter between her and the arresting officer amounted to a seizure, and that since the officer lacked an articulable suspicion of wrongdoing, the seizure was illegal. We agree with appellant that the officer lacked the requisite articulable suspicion which would support a seizure, but we do not agree that the initial encounter was a seizure.

“Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. [Cits.] ‘Factors determinative of whether or not an intrusion or “seizure” has occurred “include the lack of interference with the individual’s progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual . . . anxiety and fear.” [Cit.]’ [Cit.]” Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85) (1987).

In the present case, the evidence was sufficient to authorize the trial court, under the standard set out in Verhoeff, to find that the initial stop, in which the officer identified himself, asked appellant whether he could speak with her, asked for and got her ticket, then gave it back to her after questioning her about her name, was not a seizure.

2. As to the next stage of the encounter, however, we reach a different result. A person has been “seized” within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. Moran v. State, 170 Ga. App. 837 (1) (318 SE2d 716) (1984). Under the circumstances of this case, we hold that appellant was “seized” at the point when she was taken to a room to be searched.

According to the officer’s testimony, appellant indicated that she did not understand him when he asked for consent to search her. He testified that after twice getting that reaction, he asked her to go with him and gestured with his hand for her to follow. Still without giving any verbal response, appellant followed the officer to the small office where he once again asked for permission to search her. It was then that appellant put down her bag, unzipped it, and removed two articles of clothing. The officer testified that he and appellant were alone in the room and that she never gave verbal consent to the search of her bag. He also stated that he had not told her that he was a narcotics officer and that although he was carrying a card which explained an individual’s right to refuse consent to a search, he never read it to appellant or told her in any other form that she need not permit a search or continue conversing with him. Applying to those facts the principles quoted above from Verhoeff, we hold that the evidence demands the conclusion that appellant was seized when the officer directed her by gesture to accompany him.

“Once a stop has been held a seizure, it can be constitutional only if based upon reasonable suspicion.” United States v. Berry, 670 F2d 583, 598 (5th Cir. 1982). At the point when the officer motioned for appellant to go with him out of the airport concourse and into a small office, the only information he had gained to supplement the hunch which he testified was his only reason for stopping her was that her one-way ticket was purchased with cash, she had no identification, and she was nervous or scared. Those facts, which the officer explained in light of his experience to be typical of drug couriers, are also equally susceptible of perfectly innocent explanation. Considering the totality of the circumstances, we hold that the evidence did not establish the existence of reasonable suspicion of wrongdoing by appellant at the time she was seized. It follows, therefore, that the seizure which occurred when she was taken to a room to be searched was illegal. Id.

3. The inquiry does not end with that determination, however, because if the subsequent search was pursuant to a voluntary consent which was not a product of the illegal detention, the taint of that illegal detention would not require suppression of the evidence. Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824) (1979). “Whether an individual’s consent is, in fact, voluntary, is to be determined from the totality of all the circumstances under which consent was given. [Cit.]” Scott v. State, 253 Ga. 147, 149 (317 SE2d 830) (1984).

In United States v. Berry, supra, at 597-8, the court commented on the “salutary practice of informing individuals that they are free to refuse consent to a search and to contact a lawyer.” In Scott, supra; Del Rio v. State, 171 Ga. App. 381 (3) (320 SE2d 236) (1984); and Aguero v. State, 169 Ga. App. 462 (2) (313 SE2d 735) (1984), the fact that the accused was told of those rights was one of the factors which supported a finding that the consent was voluntary. There was no such advice given in the present case. Instead, the officer seized appellant, took her to a small room where she was alone with him, and asked again for consent to search. There is no evidence that appellant ever gave any consent to search. While her conduct in opening her bag and removing two garments, an action which did not reveal any contraband, may well have signalled acquiescence, it did not show consent. Citing Bumper v. North Carolina, 391 U. S. 543 (88 SC 1788, 20 LE2d 797) (1968), the court noted in United States v. Berry, supra at 596, that “acquiescence cannot . . . substitute for free consent.” Considering that appellant was, at the time of her supposed consent to search, in illegal detention, that she was never informed of her right to refuse to consent to a search of her person and effects, and that there is no evidence of any express giving of consent on her part, we determine from the totality of the circumstances that, as a matter of law, there was no valid consent to search. The trial court erred in ruling otherwise.

It follows from our rulings that the denial of appellant’s motion to suppress was error which requires the reversal of her convictions.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.

Decided November 9, 1988.

Frank J. Petrella, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.


text:
    76456.
    DON SWANN SALES CORPORATION v. PARR et al.
    (375 SE2d 466)
   Deen, Presiding Judge.

In 1969 appellee Parr became associated with appellant Don Swann Sales Corp. (Swann), a closely held corporation selling paper products and related items to such businesses as Waffle House and Six Flags Over Georgia. The evidence is undisputed that a Mr. Priddy, president of the corporation at the time of the incidents giving rise to the instant case, had purchased the corporation from its founder and former president and owned 100 percent of its stock. Although a supplemental agreement between Swann and Parr alluded to the possibility that some stock might at some unspecified time be offered to Parr, the record contains no allegation or evidence that such an offer was ever actually made, and Parr affirmatively testified that he never “owned any stock or other ownership interest” in appellant corporation. The purchasing arrangements between Swann and its customers consisted of “blanket orders” which set the prices at which customers could purchase items from Swann during the term of the “blanket order,” which was renegotiated approximately annually. These agreements contained no restrictions prohibiting the purchase of such items from suppliers other than Swann.

Parr rose to the position of sales manager and was subsequently named a vice-president (one of four) and director. Parr testified, however, that he never attended a directors’ meeting and that to his knowledge none was ever held; and that, moreover, he was required periodically to sign “minutes” prepared by Priddy. In December 1974, at the request of Priddy, Parr executed an “Employment Agreement” prepared by Swann’s attorney, whereby he agreed to represent no other company, to devote full time and efforts to Swann, and to conduct himself in such manner as to reflect credit upon Swann. Under this document he further agreed that, in case of termination of his employment (which, under the terms of the agreement, could be accomplished merely by either party’s giving the other thirty days’ written notice), he was not to engage in any capacity in a competing business within a 100-mile radius of Atlanta for a period of two years and was to return to Swann any customer lists or other confidential documents that he might have in his possession. His compensation was to consist solely of commissions based on specified percentages of gross profit, as outlined in the agreement; .“gross profit” was defined therein as the difference between invoice and selling price, without any deductions for quantity discounts, free goods, or cash discounts. Further, under the agreement, Parr was to have no authority to extend credit without express authorization by Swann, and he was to have no responsibility for, and to be subject to no deductions in income for, a purchaser’s default. Two employees, Chitwood and Harvil, worked exclusively for Parr and assisted in servicing his accounts; their pay was to be computed as a specified percentage to be deducted from Parr’s commissions.

On March 29, 1984, Parr submitted written notice of resignation, effective the preceding day. On that same day Chitwood and Harvil also submitted resignations effective March 28, and several days later the three set up PHC Distribution Merchants, Inc. Several of Parr’s customers, including Six Flags and Waffle House, ceased to order from Swann and began doing business with the new corporation, which provided services of the same sort as those provided by Swann. Several other customers subsequently followed suit. Parr testified by affidavit that his resignation was due to Swann’s making unauthorized deductions from his commissions by unilaterally altering the definition of “gross profit,” supra. Chitwood and Harvil testified that their resignations were due to unauthorized deductions and to undesirable working conditions, including, with respect to Harvil, sexual harassment.

Some fifteen months after the resignations and the formation of PHC, Swann filed an action against Parr, alleging (1) that the latter had breached the employment agreement by, inter alia, failure to give thirty days’ notice of termination, failure to allow confidential documents to remain the sole property of Swann, failure to devote full time and efforts to Swann and to conduct himself in a manner that would reflect credit on the company, and violation of the covenant not to compete; (2) that Parr had breached his common-law fiduciary duties to the company; and (3), (4) that he had tortiously interfered with the contractual relations between Swann and its customers and its employees. Appellant subsequently sought to add a fifth count alleging tortious misconduct (burglary and unauthorized use of current price lists). The trial court is holding this court in abeyance pending the outcome of this appeal. ,

Plaintiff/appellant Swann sought an interlocutory injunction to enforce the covenant not to compete. The trial court denied the motion on the grounds, inter alia, that the restrictive covenant was overly broad and unfairly restricted competition, and found that the contract contained no severability clause but was entire. The trial court further held that, as Parr alleged, Swann had breached the employment agreement by unilaterally altering the method of computing compensation, and that the contract was therefore void and unenforceable. The Supreme Court affirmed without opinion, pursuant to Rule 59. Don Swann Sales Co. v. Parr (Case No. 43864, aff’d without opinion Oct. 29, 1986), 256 Ga. XXVI (1986). Parr moved for summary judgment on the remaining counts of the complaint as a whole, or in the alternative for partial summary judgment with respect to each count. The trial court granted the motion, and Swann appeals, contending that there remained genuine issues of material fact with regard to each count. Held:

1. Our examination of the entirety of the lengthy record in the instant case persuades us that the trial court acted properly in granting summary judgment as to appellant’s claim based upon appellee Parr’s alleged breach of the “post-termination covenants” of his employment contract, appellee Parr’s alleged breach of his fiduciary duty, and the alleged tortious interference with appellant’s contractual relations; and that appellant’s second, third, and fourth enumerations of error are without merit. We find no competent evidence that Parr ever disclosed confidential information to competitors, represented any competing firm, interfered with any existing contractual relations between Swann and its employees or customers, or breached any fiduciary duty of any sort during his fifteen-year association with Swann. Appellant itself acknowledges that Parr, through his own efforts, produced one-third of the company’s revenues from sales, in addition to supervising the remainder of its sales operation; in light of this unrefuted evidence of Parr’s productivity, one would think he would have insufficient time left for committing the alleged breaches of contract or confidentiality. Swann’s current president, Priddy, admitted having had shouting matches with Parr over the former’s interpretation of “gross profit” with respect to the basis of the compensation due Parr, Chitwood, and Harvil. The trial court properly granted summary judgment on those issues.

2. Genuine issues of material fact remain, however, as to the merits of appellant’s remaining claims, which are based upon appellee Parr’s alleged breach of his employment contract by his failure to give appellant “at least one (1) month’s notice” of the termination of his employment and by failing to “return to [appellant] all price lists, customer lists, written or printed matter concerning the customers, prices, products of The Company. . . .” In denying the interlocutory injunction, the trial court had found that appellant could not enforce the employment contract because appellant was itself in material breach of the contract by virtue of its unilateral alteration of the method of computing appellee Parr’s compensation. On summary judgment, however, the evidence of record must be construed most strongly in favor of appellant as the non-moving party. See Hinson v. Woodard, 246 Ga. 465 (271 SE2d 860) (1980). When this is done, an issue of fact remains as to whether appellant was in material breach of the employment contract or whether the compensation provisions had been modified by the parties’ mutual departure therefrom. See OCGA § 13-4-4.

Decided October 18, 1988 —

Rehearing denied November 10, 1988

Nolan B. Harmon, Archer D. Smith III, T. M. Bridges, for appellant.

Porter & Foster, J. Alexander Porter, Simuel F. Doster, Jr., for appellees.

The burden was upon appellees, as the movants for summary judgment, to show that appellant had suffered no harm from Parr’s alleged breaches of his employment contract. Nothing in the record shows that appellees met this burden. Furthermore, the lack of any evidence of harm to appellant would not constitute a viable basis for granting appellees’ motion for summary judgment. “In every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.” OCGA § 13-6-6. See Bishop v. Intl. Paper Co., 174 Ga. App. 863 (332 SE2d 12) (1985); Bradley v. Godwin, 152 Ga. App. 782, 784 (3) (264 SE2d 262) (1979). Accordingly, the trial court erred in granting summary judgment in favor of appellees as to appellant’s claims for the so-called “pre-termination breaches.”

3. We note that appellee had filed a counterclaim in the action below, and that this counterclaim remained pending at the time he filed his motion for summary judgment. The trial court’s order granting the motion makes no mention of the counterclaim other than to authorize the addition of Priddy as a defendant, and we therefore presume that the counterclaim is still pending in the court below and is not affected by our ruling on the motion for summary judgment.

Judgment affirmed in part and reversed in part.

Carley and Sognier, JJ., concur.


author: Beasley, Judge.

text:
    76978.
    K MART CORPORATION v. GRIFFIN.
    (375 SE2d 257)
   Beasley, Judge.

Dixie Griffin sued K Mart for malicious prosecution (OCGA § 51-7-40), false arrest (OCGA § 51-7-1), and false imprisonment (OCGA § 51-7-20), but the case was tried only on the first count. K Mart appeals from the judgment for Ms. Griffin.

The first five enumerations of error attack the sufficiency of the evidence. Thus, as presented by the parties, and given the law on malicious prosecution and the merchant’s statutory defense (OCGA § 51-7-60), the question boils down to whether there is any evidence of probable cause and malice. According to the code, both must be established by the plaintiff in order to carry her burden of proof. Turner v. Bogle, 115 Ga. App. 710 (155 SE2d 667) (1967). West v. Baumgartner, 228 Ga. 671, 676 (187 SE2d 665) (1972); Seamans v. Hoge, 105 Ga. 159 (31 SE 156) (1898); Nunnally v. Reveo, 170 Ga. App. 320 (316 SE2d 608) (1984).

Malice may be inferred from a total lack of probable cause, OCGA § 51-7-44, so the focus need be only on whether there was any evidence that K Mart lacked probable cause to instigate and carry on a criminal prosecution against Ms. Griffin for shoplifting. That “is the gravamen of this tort.” Day Realty Assoc. v. McMillan, 247 Ga. 561, 562 (277 SE2d 663) (1981). She had been acquitted by a jury of the crime, but of course that is not proof of a lack of probable cause. Fisher v. Ky. Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877) (1985); Darnell v. Shirley, 31 Ga. App. 764, 765 (122 SE 252) (1924).

Plaintiff has a particularly heavy burden in malicious prosecution cases because of the countervailing public interest in encouraging the citizen to discharge his duty to society to vindicate violations of law. “ ‘The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.’ [Cit.].” Day Realty Assoc., supra.

Plaintiff’s climb up the hill is met with another obstacle. Not only have the courts traditionally disfavored such suits, but in 1958 the legislature encoded that view with specific protection to the merchant, which is now found in OCGA § 51-7-60. It outlines what actions of a merchant will, by law, take his actions outside the scope of consideration of whether he lacked probable cause. That is, if the merchant’s actions conform to the description in the statute, then as a matter of law he did not lack probable cause and a jury could not find otherwise. The purpose of the statute is to remove such cases from jury consideration and, hopefully, from filing in the first place.

“What facts and circumstances amount to probable cause is a pure question of law.” South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 7 (182 SE 61) (1935); Hearn v. Batchelor, 47 Ga. App. 213, 214 (170 SE 203) (1933). (Emphasis supplied.) Thus, although “[l]ack of probable cause shall be a question for the jury, under the direction of the court,” OCGA § 51-7-43, this is not without qualification. For if the material facts are essentially undisputed, whether or not probable cause existed is for determination by the court. Melton v. LaCalamito, 158 Ga. App. 820, 823 (282 SE2d 393)(1981); Arnold v. Eckerd Drugs, 183 Ga. App. 211, 212 (358 SE2d 632) (1987); Fisher, supra at 545.

We turn, then, to examine the facts that are undisputed, recognizing that the disputed facts are to be viewed in favor of the verdict for plaintiff. All-important is what appeared to K Mart’s loss-prevention manager to be going on in this incident, for it is he who apprehended Ms. Griffin and pursued the prosecution. He had been employed in this security capacity for over two years at the time of the incident and had been trained in loss prevention and security.

The store had a service desk at the front, which patrons had to pass upon entering and where they were supposed to check in and have tagged any items being brought into the store. He observed Ms. Griffin, a middle-aged woman whom he did not know, in the center aisle with a pair of purple stretch pants held in her hand. The pants were not on a hanger, which is how they are normally displayed and normally carried by a customer who wishes to purchase them. She was not in the clothing section. She was also carrying a wig in a plastic box. When she was in the toy department, he saw her put the pants in her purse.

She then went to the rest room at the far opposite end of the store, appeared to read the sign saying no merchandise was to be taken in, laid the wig on a counter, and went in. When she exited, she went straight to the check-out and paid for the wig with a check. The loss-prevention manager approached her, identified himself, told her he saw her place an article of clothing in her purse in the toy department, and wanted to know what it was. He saw the pants in the side of the purse and asked her to accompany him to the security office, which she did.

In the purse were the stretch pants and a scarf, both brand-new and with labels showing they were merchandise manufactured for K Mart. Neither had a price tag, and Ms. Griffin said she bought the pants earlier at either another K Mart or a Wal-Mart but, when asked, said she did not have and could not produce a sales receipt, only a check stub. She knew the price, as differentiated from a higher priced style, and the apparel manager verified the garment as K Mart merchandise.

The manager called the police, and an officer came and took custody. A receipt was never produced, and the case was tried, with the manager and the female employee who witnessed the security office events serving as witnesses for the state.

These undisputed facts “established by competent evidence . . . [t]hat the plaintiff had so conducted [her] self or behaved in such manner as to cause a man of reasonable prudence to believe that [she], at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting, as defined by Code Section 16-8-14; . . . .” OCGA § 51-7-60. Thus, as a matter of law, plaintiff is precluded from recovery, and defendant was entitled to a directed verdict at the close of all the evidence. OCGA § 9-11-50 (a); Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983); United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329 (1) (304 SE2d 131) (1983). The judgment must be reversed and entered instead by the trial court for defendant. OCGA § 9-11-50 (e).

Decided October 27, 1988 —

Rehearing denied November 10, 1988

Smith, Shaw, Maddox, Davidson & Graham, James D. Maddox, for appellant.

Patton, Price & Murphy, C. Ronald Patton, for appellee.

This being the case, the remaining enumerations are rendered moot.

Judgment reversed and case remanded with direction.

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


text:
    76995.
    MORRIS v. CLARK et al.
    (375 SE2d 616)
   Beasley, Judge.

This is a peculiar appeal because of the status of the appellant. He appeals from an order approving a settlement agreement in a wrongful death suit in which he is not a plaintiff or a defendant. Morris is the father of Brian, a minor, and as such filed an appearance in the case as Brian’s next friend and guardian of his person and property.

Following Brian’s parents’ divorce, Brian’s mother married Clark. The son and mother were passengers in Clark’s automobile when it collided with an automobile driven by Brooks. The mother was killed and Brian was injured. Mr. Morris, individually and on behalf of his son, sued Clark and Brooks for the son’s personal injuries and related costs, alleging that defendants’ combined negligence caused his son’s injuries.

While the action was pending, Clark sued Brooks in another county for the wrongful death of his wife plus damages for his own personal injuries and loss of consortium. Clark and Brooks, covered by the same insurer, reached a settlement. Clark filed a motion seeking court approval of the settlement, noting that Morris had filed an appearance. The agreement proposed to settle all issues on the wrongful death action for a total of $49,500 representing $14,500 of Brooks’ $15,000 single-event liability coverage and Clark’s $35,000 uninsured motorist coverage, plus $500 to settle all issues in Clark’s claim for personal injuries.

Morris objected to the language and effect of the proposed order. The court held an evidentiary hearing on the motion for approval of the settlement. The parties were present, as well as Morris. No transcript was filed, with one of the results being that we do not know whether the court permitted Morris to participate in the hearing, although it appears that he may have.

The court, in the order appealed from, recited certain facts and conclusions, noted the appearance of Morris as Brian’s guardian, approved the settlement “as being in the best interest of all parties, including the minor,” and directed plaintiff Clark to execute a release to Brooks and dismiss the action on payment of the insurance proceeds.

Thereafter, but before filing the notice of appeal, Morris filed a motion to intervene as a plaintiff under OCGA § 9-11-24 and a proposed cross-claim setting out solely a wrongful death claim against Clark. A few minutes before filing the notice of appeal in the thirtieth day, he filed a motion to set aside or vacate the order. The record contains no ruling on either motion. In any event, these after-notice filings do not affect the order appealed from, which was final.

Because the court’s order indicates that the court considered Morris a party in some respect, we will consider his appeal.

1. Appellant contends that the approval order is void on its face and therefore should be set aside because the issuing senior judge was without authority to serve on the date he signed the order. The order was entered on a subsequent date. Morris points to an order entered by the chief judge of the circuit authorizing the senior judge “to preside” on four specific days prior to the date the senior judge signed the order. The chief judge’s order does not state that the senior judge shall “serve” only on those dates. Thus it does not establish that he was without authority to sign the order to conclude the matter he earlier presided over.

We start with “a presumption, in the absence of a showing to the contrary, that a public official, including a trial judge, performed faithfully and lawfully the duties devolving upon him by law. [Cit.]” Curry v. State, 148 Ga. App. 59 (251 SE2d 86) (1978).

With that in mind, we look at the particular law involved. Even though the designated judge was not specifically authorized to hold court in that circuit on the date he signed the order, we know of no requirement in the law that a senior judge must render a decision on a day he is authorized to preside. It is not found in USCR 18 or OCGA § 47-8-64 or OCGA § 15-1-9.1, which govern the service of senior judges pursuant to Ga. Const. 1983, Art. VI, Sec. I, Par. Ill and Sec. IX, Par. I. Both statutes give the senior judge the same powers and authority as judges of the court in which he is presiding. The requirement which appellant urges would effectively prevent those judges from taking cases under advisement.

Moreover, the court expressly stated that the written order was in accord with its oral pronouncement made at the hearing; appellant shows no harm from the fact that memorialization did not occur until a few weeks later. Barnes v. Cornett, 134 Ga. App. 120, 122 (5) (213 SE2d 703) (1975).

2. Morris further contends that the court did not have authority or subject matter jurisdiction to approve the settlement and thereby determine questions concerning what is in the best interests of Brian, or to direct Clark to execute a release to Brooks on behalf of the deceased’s son. He maintains that only the probate court or its delegate is empowered to determine the best interests of the minor. He also argues that once Clark moved the court to settle Clark’s portion of the wrongful death claim, it was required to secure the approval of the child’s guardian if the settlement was to affect the son and his rights.

Morris misperceives the entitlements of the surviving spouse and the surviving child respectively. The case is governed by OCGA § 51-4-2 and the cases of O’Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373 (349 SE2d 382) (1986), and Mack v. Moore, 256 Ga. 138 (345 SE2d 338) (1986).

The legislature created a cause of action for wrongful death and delineated those entitled to bring it. Clark, and only Clark because he was the surviving spouse, had the right of action. OCGA § 51-4-2 (a). Brian has a right to share in any amount recovered. OCGA § 51-4-2 (d) (1). As the surviving spouse, and thus the only possible plaintiff here, Clark was expressly authorized by the statute to “release the alleged wrongdoer without the concurrence of the child or children or any representative thereof and without any order of court, provided that such spouse shall hold the consideration for such release subject to subsection (d) . . . .” OCGA § 51-4-2 (c).

In O’Kelley, supra at 374, the Supreme Court summarized its holding in Mack, supra. “[W]e acknowledged,” it said, “that one spouse in a wrongful death action for the death of the other spouse acts both as an individual and as a representative of any children of the deceased spouse. We then held that the surviving spouse owes a duty to the children to prudently assert, prosecute, or settle the wrongful death claim. Finally, we stated that, ‘(t)he failure to do this could subject the spouse to liability for breach of duty as a representative.’ [Cit.]”

Thus, in the wrongful death action, Clark was representing Brian’s property interest in the recovery. Morris could not do so, under the statutory scheme. We recognize that there may be a conflict of interest, as here, where the child contends that Clark was at least contributorily negligent and that the amount of recovery is affected thereby so as to reduce the non-tortious child’s share. However, the legislature “has not created a procedure whereby [children] might share in control of” a wrongful death action brought by the spouse. Id.

That is not to say that the child has no recourse. The Supreme Court, in the cases cited, has interpreted the wrongful death statute as creating a separate cause of action in the child for breach of the spouse’s duty as representative. Although an assertion of that claim may be what Morris was aiming at, he did not seek to intervene under OCGA § 9-11-24 before the final order. By saying this, we do not suggest that injection of this collateral claim can be, or should be, permitted in the wrongful death action.

The point is that it was not done. Morris’ motion to intervene was subsequent to the order. Even if it had been made and granted earlier, the proposed cross-claim states only a wrongful death claim based on Clark’s and Brooks’ joint negligence in the collision. It does not state a claim for breach of Clark’s duty as representative. Thus the issues which would be related to the latter claim were not before the court and its rulings in that regard were gratuitous.

3. Since Morris was not, and could not be by law, a party to the wrongful death suit, the court did not err in approving the settlement without determining the full value of the mother’s life or the percentage of Clark’s alleged contributory negligence. This enumeration also fails.

4. Morris contends that the court erred in failing to serve his counsel with notice or a copy of the final order. He relies on OCGA § 15-6-21 (c), which casts upon the judge a duty, when he has decided a motion, to file his decision and notify the attorney or attorneys of the losing party of it. Among the reasons this does not win reversal are the following.

(a) Even if Morris, representing his son, were a party by virtue of his appearance and apparent limited participation, he was not a losing party within the meaning of the statute. The settlement in plaintiff’s favor would by law be shared in by Morris’ son.

(b) Even if it was error for the court not to promptly notify Morris’ counsel of the decision, he was not shown any resultant prejudice. Without harm, there can be no reversible error. Baldwin v. Walker, 143 Ga. App. 382, 384 (2) (238 SE2d 695) (1977).

Decided October 26, 1988 —

Rehearing denied November 10, 1988

Walter H. Beckham III, Mark S. Izenson, for appellant.

Bischoff & White, James A. White, Jr., Divine, Wilkin, Deriso, Raulerson & Fields, R. Kelly Raulerson, for appellees.

5. Appellee Clark moves for imposition of ten percent damages pursuant to OCGA § 5-6-6 against appellant for bringing a frivolous appeal. “[C]onsideration of the whole case does not lead us to the conclusion that it was appealed for delay only. [Cit.]” Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 862 (12) (360 SE3d 418) (1987). As in that case, the motion is denied.

Judgment affirmed.

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