text:
    74803.
    M. WALTER & COMPANY v. NORTH HIGHLAND ASSEMBLY OF GOD, INC.
    (361 SE2d 256)
   Birdsong, Chief Judge.

This is an appeal by the plaintiff below protesting the grant of summary judgment to appellee church on the basis of accord and satisfaction. The appellant M. Walter & Co. is a purveyor of Christmas trees. The appellee North Highland Assembly of God, Inc., ordered trees to sell in December 1985. According to the church, a large number of ordered trees never arrived and a number of those which did arrive were damaged, nonconforming, and worthless. These complaints were disputed by M. Walter & Co. at the time. Ultimately the church, after several conversations with appellant’s agents, remitted a check for $3,700. The church, when sued for the full balance amount of the ordered trees, defended on the basis that appellee’s agent Maksimovich had agreed to accept less ($3,700) in satisfaction. Ultimately, the church, on motion for summary judgment, produced a document or documents, a copy of which appears in the record. This copy of document or documents appears to be an undercopy of the $3,700 check marked “not-negotiable.” The check copy is dated January 14, 1986. Apparently attached to the bottom of the check copy by perforated line is a voucher on which it is stated, in typing, next to the date of January 1, 1986: “Invoice #8520-85 Eastern — Adjusted Balance Per Telephone Conversation from Macon, GA. from Mr. Tom [Maksimovich] on 1-13-86 — $3700.” The church also produced the affidavit of one of its members setting forth the nature of the dispute and the telephone negotiations, and the compromise.

In response, the appellant produced the affidavit of its agent, Maksimovich, to wit: that in the early part of 1986 he had several telephone conversations with various individuals who claim to represent the defendant church; his purpose was to arrange a face-to-face conference at which to try to collect the outstanding indebtedness owed to M. Walter & Co.; he was never successful in arranging such a meeting, but he was told that the church would be sending a check in partial payment; at no time did he ever have any discussion with any agent of defendant church about compromising or reducing the total amount of the indebtedness by any amount whatsoever; and he stated: “I do not know what the words ‘adjusted balance’ shown on the voucher of defendant’s check [copy] . . . means.” By amended affidavit, Maksimovich stated he never had any authority to make an accord and satisfaction. The president of appellant also by affidavit averred that he investigated whether the alleged voucher shown on the church’s check was ever received by the company, and he was “unable to find anyone who had any recollection of whether said voucher was attached to said check . . . [and was] unable to find anyone who had any recollection of having seen the language which allegedly appears on the said voucher.” He also said Maksimovich had no authority to make an agreement reducing any outstanding indebtedness, and that no one acting for and in behalf of the company either agreed to an accord and satisfaction or to reduce any indebtedness. Held:

“ ‘If a debtor tenders a sum of money less than the amount claimed upon the condition, express or implied, that it satisfied the entire debt, and the creditor accepts the tender, an accord and satisfaction results. [Cits.] . . . However, to make [the compromise] binding, there must be a meeting of minds as to the subject matter embraced in the agreement. [Cit.]”’ Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517, 518 (292 SE2d 100). See State Farm Fire &c. Co. v. Fordham, 148 Ga. App. 48, 52 (250 SE2d 843); OCGA § 13-4-103. The burden to prove the defense of accord and satisfaction is upon the party claiming under it. Clark Equip. &c. Corp. v. Refrigerated &c. Co., 148 Ga. App. 405, 406 (251 SE2d 321); to authorize summary judgment the burden increases to proof of accord beyond any issue of material fact.

We are unable to perceive, from the non-negotiable copy of this check dated January 14, 1986, and the apparently attached voucher, dated January 1, whether the originals were sent together to appellant M. Walter & Co. and received. The appellee church in its brief refers to the document(s) in this fashion: as “a check on a disputed account with the language ‘adjusted balance per telephone conversation,’ ” and as “a check . . . which contained the language.” However, the language is not on the check-, it is on a copy of a paper (voucher) apparently attached to a non-negotiable check copy. The appellant M. Walter & Co. unequivocally denies entering into a compromise or agreement to accept less; Maksimovich denies even having had such a conversation and states he was told a check would be sent in partial payment. The date upon the check copy is different than the date upon the voucher copy. It is not patently clear what the language “adjusted balance” means in the context of Maksimovich’s version of events. In view of all these uncertainties, it cannot be said, beyond any genuine issue of material fact, that this check and allegedly attached voucher were sent and received, and that there was a meeting of the minds that it was tendered and accepted in full satisfaction. Furthermore, upon the church’s motion for summary judgment, the appellant’s agents’ statements that appellant never agreed to a reduction of indebtedness and Maksimovich’s statement that he never entertained such discussion, must be given the benefit of belief; and in that light, the language “adjusted balance per telephone conversation,” assuming it was received with the check, is not crystal clear.

Appellant’s president’s statement that he was unable to find any employees who have any recollection of receiving the voucher does not amount to an admission that they did receive it. In the cases advanced by the appellee church to sustain its summary judgment, it was clear and apparently undisputed that the creditor received the compromising statement, and thus the acceptance of payment was under the express condition imposed by the debtor. See Souchak v. Close, 132 Ga. App. 248 (207 SE2d 708); Gulf States Constr. v. Superior Rigging &c. Co., 125 Ga. App. 187 (186 SE2d 588). Similarly, in Chrietzberg v. Kristopher Woods, supra, no express condition accompanied the payment, yet it was “perfectly apparent” that the check in that case was tendered in full satisfaction of all claims, and the appellants in that case, by accepting it, “tacitly admitted that the accounting submitted . . . was correct.” Id. p. 518. It is not so perfectly apparent in this case that the $3,700 check was made and accepted “upon the condition, express or implied, that it satisfies the entire debt.” American Assoc. Cos. v. Vaughan, 213 Ga. 119, 120 (97 SE2d 144). We are of the opinion that the triers of fact should see the evidence, including the actual cancelled check, to determine, to a preponderance of the evidence, what it was that was sent and what was received, and what was understood by it. We cannot say beyond any material issue of fact so as to remove this case from the jury that the parties reached such an accord with the sending and accepting of the check. In Vintage Enterprises v. Guerdon Indus., 365 FSupp. 465, it was held, under a thorough study of Georgia law, that a cover letter accompanying payment, which letter identified the payment as “the balance [owed],” and the fact that the debtor labeled the check as “final” or as “the” payment check for a particular year, do not, insofar as summary judgment is concerned, “operate when coupled with the plaintiff’s acceptance of the checks, to create an understanding by the plaintiff that the debts were satisfied and that if in fact the accounts involved a sum greater than the amount represented by the checks, the plaintiff was barred from seeking to collect the balance. At most, the checks and the letters indicate an expression by the [debtor] that the accounts were paid in full. They do not indicate an intention on the part of the [debtor] that the plaintiff must accept the checks at the peril of foreclosing any debate over the amount which might actually be due on the accounts.” Id. p. 466. As the federal court pointed out, Georgia cases which have indicated that language such as “paid in full” by itself operates to create accord and satisfaction if the check is accepted, actually indicate under the facts that there must be a meeting of the minds, an accord, in which the creditor expressly or impliedly understood the tender was conditional on its acceptance as final. See American Assoc. Cos., supra, p. 120. The language allegedly on the voucher accompanying the check here, “adjusted balance” is even less clear than “paid in full.” It is for the jury to decide whether this voucher was sent and received and what was meant by it, and whether the appellant understood it as a final settlement of account and accepted on that basis.

Decided September 21, 1987.

Peter G. Williams, for appellant.

Kenneth M. Henson, M. Catherine Harris, for appellee.

Judgment reversed.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    74669.
    MARTIN v. J. M. CLAYTON COMPANY.
    (361 SE2d 385)
   Sognier, Judge.

Charles H. Martin filed a four-count complaint against J. M. Clayton Company (Clayton), seeking damages arising from his termination from positions as an officer and director of the corporation. The trial court granted Clayton’s motion for summary judgment as to Count 4 of the complaint, and Martin appeals.

In a previous appearance before this court, J. M. Clayton Co. v. Martin, 177 Ga. App. 228 (339 SE2d 280) (1985), we affirmed the trial court’s denial of summary judgment to Clayton as to Count 4, in which Martin sought nonspecific damages generally attributable to his loss of the corporate positions, on the basis that Martin had been improperly excluded from participating in the board of directors’ decision to terminate him, in contravention of the corporate bylaws, thereby “placing a cloud over the board’s decision.” Id. at 232 (5).

The record presented in this appeal reveals that in response to our decision in J. M. Clayton Co., supra, the corporation called special meetings of the board of directors and shareholders, properly including Martin, at which the previous (improper) actions terminating Martin were “ratified” and thus legitimized; appellee thereupon renewed its motion for summary judgment as to Count 4 of appellant’s complaint. Appellant responded by amending his complaint, striking the original paragraph 37, which had alleged appellant’s termination “was done with the intent of attempting to deprive [appellant] of various claims and rights to which he [was] entitled as a shareholder, director, and officer of [appellee],” and that portion of the ad damnum clause which sought $50,000 in actual damages. As amended, the complaint alleged appellant received a base salary of $21,000 per year, plus an “additional salary” of approximately $15,000 for his services, and sought to recover that portion of the compensation due appellant from the date he was improperly terminated to the date the termination was ratified, some two years and four months later.

Decided September 8, 1987

Rehearing denied September 22, 1987

Timothy D. Chambers, for appellant.

Appellant contends the trial court erred by granting summary judgment to appellee because appellant was entitled to recover his salary and other remuneration for the interim period between his improper termination and the proper ratification of that termination. We agree and reverse. “While there is not an abundance of discussion on this point, existing authorities appear to be in accord that the ‘ratification’ of the illegal firing of an officer does not operate to deprive the officer of his salary from the date of the illegal firing to the time of ratification. [Cits.]” McCreery v. RSA Mgt., 249 Ga. 43, 45 (2) (287 SE2d 203) (1982). Sherrer v. Hale, 248 Ga. 793 (285 SE2d 714) (1982), cited by appellee for the contrary view, is inapposite, in that in Sherrer, the Supreme Court focused on whether there existed a remedy for the ousted corporate officer’s loss of position and consequent lack of influence over the future direction of the corporation. For the same reason, appellee’s reliance on dicta in J. M. Clayton Co., supra, is misplaced. Our statement questioning “whether [appellant] has an adequate remedy at law for the deprivation of his positions as secretary and board member since the loss of these positions is not compensable in damages [cit.],” 177 Ga. App. at 232 (5), was made before appellant amended his complaint to seek the damages we have determined above are specifically authorized under Mc-Creery, supra. Thus our reliance on Sherrer in our earlier opinion was entirely appropriate there. After amending his complaint, appellant sought damages which are clearly recoverable as a matter of law. Since issues of fact remain for resolution, it was error for the trial court to grant summary judgment in favor of appellee. See generally Herrli Homes v. Roon, 175 Ga. App. 85, 86 (2) (332 SE2d 379) (1985).

Judgment reversed.

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

Ronald Barfield, James T. McDonald, Jr., for appellee.


author: Birdsong, Chief Judge.

text:
    74812.
    FLEMING v. LEE ENGINEERING & CONSTRUCTION COMPANY.
    (361 SE2d 258)
   Birdsong, Chief Judge.

Appellant/plaintiff J. B. Fleming, brings this appeal from the grant of summary judgment to appellee Lee Engineering and Construction Company. Southern Bell placed a guide wire for support of a utility pole near Fleming’s residence in 1973. Thereafter, Fleming’s sewer line had to be cleared in 1976, 1977, and 1978, because of stoppages. During 1979 and 1980, the line had to be opened by RotoRooter eight times. Upon the advice of Roto-Rooter personnel, in November 1980, Fleming had his sewer line dug up from his house to the connection with the county sewer line. Approximately 15 feet from the county sewer line, it was discovered that a hole had been drilled in Fleming’s sewer line when Southern Bell’s guide wire had been installed. A piece of tin had been placed over the hole drilled in the sewer line, which had subsequently rusted through. It was alleged the hole permitted roots to get into the sewer line and was the cause of its stoppage. Prior to discovery of the hole, Fleming was under the belief that his neighbors were the cause of the continuing stoppages in his sewer line, and considerable friction had developed between Fleming and his neighbors. Fleming stated that he received “continuous psychiatric treatment from April 1981 until January 1982” and “was under a severe emotional disability that did not allow [him] to handle any of [his] financial or family affairs” and during this period he had been hospitalized at the Georgia Regional Hospital receiving treatment “due to an emotional breakdown.” Fleming alleges the ongoing conflict with his neighbors was the cause of his mental problems.

Fleming notified Southern Bell of the cause of his sewer stoppage and he said they advised him “they would pay for the bill for repairs. . . .” However, the bills he tendered to Southern Bell were not paid and on April 18, 1984, Southern Bell advised him that Lee Engineering was the company which inflicted the actual damage to his sewer system. Fleming filed his action for trespass, negligence, and intentional infliction of mental distress, on September 22, 1986. Appellee’s motion for summary judgment, based on the running of the statute of limitations, was granted and Fleming brings this appeal. Held:

Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact, but may be either. Where the facts are in dispute, the question is one of fact to be determined by the trier of fact, but where the facts are not disputed, as in the instant case, the question is one of law for the court. Curlee v. Mock Enterprises, 173 Ga. App. 594, 596 (327 SE2d 736).

Fleming’s complaint sounded in trespass, negligent damage to property, and intentional infliction of mental distress. Actions for trespass and damage to realty (OCGA § 9-3-30), and injury to personalty (OCGA § 9-3-31), must be brought within four years. Action for injuries to the person, including infliction of mental distress must be brought within two years after the right of action accrues. OCGA § 9-3-33.

The statute of limitations is tolled for persons who are legally incompetent (OCGA § 9-3-90) during their incompetency, and by fraud of the defendant by which the plaintiff has been deterred from bringing an action (OCGA § 9-3-96). When fraud is alleged and proved, the period of limitation shall run only from the time of discovery of the fraud, or when the fraud should have been discovered. Jones v. Spindel, 239 Ga. 68, 69 (235 SE2d 486). We find that the placement of the tin covering over the damaged sewer line was a positive and affirmative act of intentional concealment of damage to Fleming’s property, and amounted to fraud which tolled the running of the statute until its discovery in 1980. Comerford v. Hurley, 246 Ga. 501, 502 (271 SE2d 782).

After discovery of the fraud in November 1980, this action was not filed until September 1986, a period of five years and ten months. Even if we accept Fleming’s affidavit as raising an issue of tolling the statute because of mental incompetence, that period existed only from April 1981 to January 1982, and the statute would run from January 1982, to the filing of the action, a period of four years and eight months.

Following discovery of the actual cause of the stoppage in his sewer line, Fleming could have had no conflict with his neighbors over the proximate cause of his sewer problems. And, even if the prior conflicts with his neighbors had been a contributing cause to his subsequent mental problems, his disability existed only from April 1981 to January 1982, and thereafter the two-year statute of limitations for an action based on intentional infliction of mental distress would have expired in January 1984, two years and eight months before this action was filed.

The only remaining issue is whether Fleming was deterred or debarred from bringing this action by the conduct of Southern Bell by its failure to reveal the identity of the actual perpetrator of the damage to Fleming’s property. There is no evidence that Lee Engineering did any act after the discovery of the cause of the sewer stoppages in November of 1980 to prevent Fleming from discovering whose negligence caused the damage to his property. Fleming’s relianee upon Southern Bell’s acknowledgment of liability and promises of payment of damages cannot be attributed to any fault, neglect, concealment, or fraud on the part of Lee Engineering. See Curlee, supra at 597. Mere ignorance of existence of facts constituting a cause of action does not prevent the running of the statute of limitations. Leathers v. Timex Corp., 174 Ga. App. 430, 432 (330 SE2d 102). Fleming’s acceptance of Southern Bell’s statements cannot be charged to Lee Engineering so as to prevent the statute from running as to Lee.

Decided September 22, 1987.

Victor C. Hawk, for appellant.

0. Wayne Ellerbee, for appellee.

Judgment affirmed.

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


text:
    74843.
    FIRST PACIFIC MANAGEMENT CORPORATION et al. v. O’BRIEN et al.
    (361 SE2d 261)
   Birdsong, Chief Judge.

Denial of Summary Judgment — Slip and Fall. This case is before us as the result of the grant of an interlocutory appeal. The case arose out of the following sequence of events. First Pacific Management Corp. and the other appellants are the owners and managers of Crestwood Apartments in Cobb County, in the vicinity of the City of Smyrna. The appellee, Harold M. O’Brien and his wife rented an apartment from the predecessor owners of the apartment complex in 1980. First Pacific purchased the complex in 1981, a year after O’Brien first moved into the apartment complex. At the time of the accident in question (1983), O’Brien had lived in the Crestwood Apartments for approximately three years.

Pertinent to our consideration of the issues raised in this case is the presence of a creek bed running across the property, tending to divide the property in half. The entrance and exit roads to and from the apartments paralleled the creek bed. Crestwood Apartments has units to the north and to the south of the creek. Prior to the development of the apartments in the mid 1960’s, the City of Smyrna maintained a public road that constituted the eastern boundary of the soon-to-be-developed apartment complex. A 48-inch drain pipe collected water from the easterly side of the road (which acted somewhat as a dam to the natural flow of water). This 48-inch pipe discharged the normal accumulations of water under the road and into the creek that ran in an east-west direction through the apartment grounds to a larger creek west of the apartments. The City of Smyrna maintained an easement across the body of land occupied by the apartments and ostensibly was charged with the maintenance of the creek and creek bed. The facts thus establish that the creek and its drainage easement had existed for at least 20 years, or at least prior to the development of the apartments in the mid 1960’s. It is apparent that over the term of years the creek had existed as a normal drainage channel, thus some erosion had occurred so that in some places the creek had cut a channel a number of feet deep.

Photographs available to the trial court (and in the record) show the entrance and exit roads to the apartments to be perhaps 30-feet wide with approximately a 20-foot grass and tree area separating the two roads. The creek meandered through this approximate 20-foot median. Aerial photographs show the creek was more or less hidden from above by the trees and brush, planted apparently as a beautification of the grounds. The photographs also reflect however that one driving at ground level on the entrance and exit roads could readily see the general configuration of the creek. The evidence also reflects that O’Brien had driven in and out the apartment complex on a more or less daily basis alongside the median and thus alongside the creek.

On the morning of October 3, 1983, O’Brien while on his way off the apartment grounds, was hailed by a friend whose car had broken down and was parked adjacent to the creek on the roadway. It appears from a photograph that the creek channel was at least visible from that point. O’Brien’s friend could not get his car to start. Apparently O’Brien and the friend obtained some gasoline. Starter cables were then attached to the two cars but the friend’s car still would not start. Thus, O’Brien primed the carburetor with gasoline while the friend attempted to start the car. After about three or four unsuccessful efforts, while O’Brien still had his head under the hood of the friend’s car, another attempt was made. The gasoline exploded and set O’Brien’s upper torso on fire. O’Brien attempted to pat out the fire but was unable to do so. Attempts to open his eyes indicated he could not see because of the flames enveloping his head. O’Brien was aware of the near proximity of the creek bed and stated he could hear the running water. In an effort to get to the water in the creek, O’Brien ran the approximate 16-feet from the parked cars to the creek’s channel and jumped, fell, or dived into the creek bed. Unfortunately for O’Brien, at the point he entered the creek’s channel, the creek bed was a number of feet (approximately eight feet) below ground level. As a result, O’Brien broke his neck and suffers from paraplegia. O’Brien brought suit against his friend and against First Pacific Management for his injuries. He obtained a default judgment against the friend but that action is not a subject of this appeal. He complained against First Pacific that as owner, First Pacific was more aware of the inherent dangers in the undulating creek running through the apartment complex than he was as tenant and that the apartment maintained a nuisance which resulted in injuries. First Pacific moved for summary judgment on the grounds of assumed risk. It is the denial of this motion for summary judgment that forms the basis for the grant of interlocutory appeal. Held:

In denying First Pacific its motion for summary judgment, $ie trial court concluded there was an issue of fact as to superior knowledge. O’Brien had deposed that while he knew the presence of the creek and its varying configurations, he thought that at the point he threw himself into the creek bed that the creek was level. The court also concluded there was a question of fact as to whether the apartment managers had a duty to construct and maintain safeguards because of the varying depths of the creek. Lastly the court considered that an issue existed as to whether maintenance of the creek in its condition constituted a nuisance.

As to the question of superior knowledge, several observations are noteworthy. Photographs taken of the scene show that from the point where the two cars ostensibly were parked, it would appear that the ground might not be level at the edge of the creek channel. It was uncontested that O’Brien was aware of the presence of the creek for he admitted he had seen it on many occasions and he heard the water at the moment and with specific intention to get to the water ran 16 feet to the edge of the channel and launched himself toward the water although he could not see into what he launched himself. It also is apparent that he knew the creek was not level with the ground throughout the creek’s meandering course for he stated he thought “at that point” it was level with the ground clearly reflecting that at other points he knew it not to be level. It also is clear that O’Brien had lived in the complex for three years and apparently on a more or less daily basis had driven by the spot where the incident occurred for he was on his way out of the complex when he was stopped by his friend. The photographs also show that the access roads were at least two lanes wide for traffic with an additional space on the side of the road away from the median strip for cars to park nose in to the curb. No sidewalks or pathways lie alongside the median through which the creek percolates. From this it is apparent that persons on the access road were not required or encouraged to walk close to the median strip nor the creek channel.

It is undisputed in this case that the creek bed is the result of natural erosion of a long standing and cumulative effect. The creek meanders through a median that, while the property of the apartments, is a natural drainage for realty to the east of the apartments. An easement for the use and control of the property lay in the City of Smyrna and presumptively the upkeep of the easement lay in the City of Smyrna. See Equitable Life &c. Society v. Tinsley Mill Village, 249 Ga. 769, 771 (294 SE2d 495). The creek bed thus is not a man-made excavation or an unprotected hole or depression created by the owner by which the occupants of the apartment complex are required to traverse on foot. We draw the distinction between irregular terrain caused naturally and that caused by man, because generally it may be stated that a landowner is not liable for injuries to an invitee arising from a patent defect on the premises preexisting the arrival of the invitee and of which the invitee knew or had the means of knowing equal to the landowner. The duty of the landowner is not to insure the safety of invitees but to exercise care to see that the premises are safe. As irregular as open land in this state tends to be, it would be impractical to hold that a landowner must render inaccessible every portion of irregular terrain or permanently station a guard to supervise activities thereon. Golf Club Co. v. Rothstein, 97 Ga. App. 128 (102 SE2d 654).

O’Brien contends that while he knew of the creek bed he was not aware of the danger at the point he fell into the creek bed and being blinded by flames could not see the danger. What effect does his denial of knowledge of the deep channel at the point of injury have upon the question of superior knowledge? The true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted. Speaks v. Rouse Co. of Ga., 172 Ga. App. 9, 11 (321 SE2d 774). We have observed that O’Brien passed the place where he fell into the creek bed on a daily basis and had done so for about three years. He had parked his car approximately 16 feet from the place a few minutes before injuring himself. Photographs show that casual observation would have disclosed the creek bed was below ground level. We also have observed that the existence of the creek bed cannot be considered a dangerous hazard on the owner’s land to which tenants are necessarily exposed. There are no foot paths alongside the median and parking and traffic flow are away from the creek bed. It is a creek, open and obvious, known not only to the landlord but to all the tenants. As pointed out herein, one cannot enter or exit the complex without having to ride by the creek on a regular basis. It can hardly be said therefore that O’Brien was without knowledge of the presence of the creek or the fact that in some places it was a deep ditch. Mewborn v. Winn-Dixie Stores, 179 Ga. App. 284 (346 SE2d 95). We can state without equivocation that O’Brien was under a duty equal to that of the owner to use his sight to discover any defect or dangers. Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47 (183 SE2d 7). While we will not weigh the evidence of equal knowledge, neither do we conclude that the simple denial of knowledge that a particular danger existed within a generally known hazard creates an issue of fact. One cannot admit knowledge of the presence of a mine field but claim ignorance because he was not aware that a mine was placed at the point he decided to enter it. Cases in which it is plain and palpable that knowledge was or should have been possessed by a person of ordinary intelligence and powers of observation will not be changed to a case involving disputed issues of material fact simply because the party claims he did not use his intelligence or powers of observation. See Forde v. C & S Ga. Corp., 178 Ga. App. 400, 402 (343 SE2d 164).

Although O’Brien’s precipitous action and incautious leap may have been generated by an emergency situation, this was not caused by the apartment owner. O’Brien deliberately sought and threw himself into the creek bed without any apparent effort to ascertain or verify the configuration of the creek bed. We can find no contention nor even an inference by O’Brien that he possibly could have fallen into the creek bed under normal circumstances nor otherwise expose himself to injury. There was no duty upon the owner to warn every invitee that the creek bed was deep in some places while at other places perhaps not as deep or even level with the ground. See White v. Fred F. French Mgt. Co., 177 Ga. App. 661, 662 (340 SE2d 276). A person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk. Where the evidence shows, as is the case here, that the hazard is apparent even to the casual onlooker, the fact that O’Brien ran without taking any precautions into a deep erosion channel cut by the creek should not relieve him from his own misadventure. O’Brien seeks to avoid the consequences of his volitional act by arguing the assumption of risk was negated by the blinding flames. It is clear, however, that O’Brien created that situation himself and this precludes him from arguing from such a position. Simone v. Hancock Textile Co., 175 Ga. App. 191, 193 (332 SE2d 669).

Finally in further consideration of the questions as to whether O’Brien was aware of the danger at the point of injury, whether the owner should have provided safety devices or should have warned its tenants as to apparent danger, we reach an opposite conclusion to the one reached by the trial court. The creek bed was a static defect created by nature. In and of itself, it could not have injured O’Brien unless he was unknowingly placed into a position by the owner so as inadvertently to fall into the ravine. See Durrance v. Bacon County Hosp. Auth., 172 Ga. App. 1 (321 SE2d 767). A prior and remote cause (the deep ditch) cannot be made the basis for a claim where the ditch did nothing more than furnish the condition by which the injury was made possible, where there intervenes between the prior or remote cause (the ditch) a distinct, unrelated and efficient cause of the injury (the negligent exposure to the exploding gasoline followed by a blind and thoughtless leap toward the sound of water which unfortunately lay at the bottom of a deep ditch). Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (341 SE2d 250). There is no necessity for an owner to warn his invitee against the unexpected, unusual or unlikely event, for one is bound to anticipate and provide against only what usually happens or what is likely to happen. Ivey v. Fort Valley Utilities Comm., 178 Ga. App. 791 (344 SE2d 543).

Decided September 22, 1987.

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

James L. Ford, Theodore L. Marcus, for appellees.

Furthermore, we do not conclude the creek to be a nuisance under the facts of this case. See Cannon v. City of Macon, 81 Ga. App. 310, 319 (58 SE2d 563). This was a natural, free flowing branch which in the normal course of events and passage of time had cut its own channel. It neither began upon nor ended upon the owner’s property nor was the flow subject to the control of the owner. It was not shown to be different from other naturally formed land formations. There was no evidence that the passage of the creek through the apartment complex was dangerous per se or to any passerby. Indeed there was no evidence offered that the owner had any responsibility at all to maintain the creek, the control of which apparently lay with the City of Smyrna. Lastly we are satisfied that it was the negligence of O’Brien that caused his own injury. Under such circumstances where the proximate cause of the injury was the negligence of O’Brien, First Pacific Management was afforded a valid defense as a matter of law. See Floyd v. City of Albany, 105 Ga. App. 31, 37 (7) (123 SE2d 446).

Based upon the foregoing, it follows the trial court erred in denying summary judgment to First Pacific Management Corp.

Judgment reversed.

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


author: Carley, Judge.

text:
    74644.
    WHITTINGTON v. THE STATE.
    (361 SE2d 211)
   Carley, Judge.

Appellant was tried before a jury on a four-count indictment, and verdicts of guilty were returned on all four counts. Appellant was granted a new trial as to two of the counts, but his motion for a new trial was denied as to the counts which charged him with driving under the influence and with driving although his license had been suspended as an habitual violator. Appellant appeals from the judgments of conviction and sentences entered on the jury verdicts as to those two counts.

1. Appellant asserts that, in reviewing the general ground of his motion for new trial, the trial court applied an erroneous standard of “any evidence.” However, the record does not support this contention. It reveals no reference to the standard employed by the trial court in denying appellant’s motion for new trial on the general grounds. It is presumed that the trial court applied the correct standard and our own review shows that the general grounds are without merit. After reviewing the entire record, we find that a rational trior of fact could have found appellant guilty, beyond a reasonable doubt, of being an habitual violator and of driving under the influence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court’s admission into evidence of the results of appellant’s intoximeter test is enumerated as error. The contention is that appellant was coerced into submitting to the test, as he was informed that his refusal to do so would result in the suspension of his driver’s license for a period of “six to twelve months.” Under the provisions of OCGA § 40-5-63 (b), as it existed at the time of appellant’s arrest, “[a]ny suspension made pursuant to Code Section 40-5-55 shall be for six months; provided, however, that, where a person who has refused to submit to a test or tests provided for in Code Section 40-5-55 has been charged with homicide by a vehicle as provided in Code Section 40-6-393, the suspension shall be for 12 months.” As there were no fatalities resulting from appellant’s alleged intoxicated driving, he urges that it was impermissibly deceptive for the officer to inform him that, if he refused to submit to the State-administered test, his license could be suspended for more than six months.

“In Georgia, the [S]tate may constitutionally take a blood sample from a defendant without his consent. [Cit.] Our ‘Implied Consent Statute’ (OCGA § 40-5-55) thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. OCGA § 40-6-392 and OCGA § 40-5-55 grant, rather than deny, a right to a defendant.” Allen v. State, 254 Ga. 433, 434 (1a) (330 SE2d 588) (1985). “OCGA § 40-5-55 creates the right to refuse. OCGA § 40-6-392 defines the right.” Allen v. State, supra at 434 (1a), fn. 1. Subsection (a) (4) of OCGA § 40-6-392, the statute which defines the right to refuse to submit to a State-administered test, merely provides that “[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code Section.” Thus, our “Implied Consent Statute” only requires that the arrestee be informed of his right to an additional test. There is neither a statutory nor a constitutional requirement that the arresting officer inform the arrestee of the consequences of the refusal to submit to the State-administered test. See South Dakota v. Neville, 459 U. S. 553 (103 SC 916, 74 LE2d 748) (1983). However, a warning to an arrestee of the legitimate consequences of his refusal to submit to a State-administered test is neither constitutionally nor statutorily prohibited. The State is authorized to create such consequences as a means of lawfully inducing an arrestee into choosing his option of submitting to a State-administered test. See South Dakota v. Neville, supra. “ ‘[T]he State wants [the arrestee] to choose to take the test, for the inference of intoxication arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test.’ [Cit.]” Wessels v. State, 169 Ga. App. 246, 247 (1) (312 SE2d 361) (1983). See also Sorrow v. State, 178 Ga. App. 83 (342 SE2d 20) (1986). Accordingly, by informing the arrestee of the legitimate consequences of his refusal to submit to the State-administered test, the arresting officer is engaging in an act of lawful inducement. Thus, the issue presented for resolution is whether, under the circumstances of this case, the arresting officer unlawfully coerced appellant’s election to submit to the State-administered test by informing him that his refusal could result in a suspension of his driver’s license for a period greater than six months or whether the arresting officer legally induced that election notwithstanding the non-fatal consequences of appellant’s act.

OCGA § 40-6-392 (a) (4) mandates that the arrestee be advised of his right to alternative testing at the time of arrest. Our Supreme Court has held that “ ‘(t)his [directive] cannot be interpreted to mean sometime in the future. . . .’ [Cit.]” Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983). Since the statute requires that the arrestee be informed of his right to additional testing at the point of his arrest, it follows that any other warnings or notifications purportedly given to induce his submission to the State-administered test are also to be made at that time and are to be considered from the perspective of such circumstances as then existed. However, at the point of arrest, it is not always possible for a law officer to know whether the arrestee will ultimately be charged with violating OCGA § 40-6-393 and thus whether the arrestee will ultimately face suspension of his license for twelve rather than for six months upon his refusal to take the State-administered test. This would be especially true where, as in the present case, the arrest is incident to the investigation of a vehicular collision. Even where the arrest is made merely for impaired driving which, to the officer’s current knowlédge, has yet to result in a physical injury, it is entirely possible that the arrestee may well have been involved in a prior incident, such as hit and run, of which the officer is yet unaware. Thus, it would be unreasonable to require that a police officer determine, at the point of each DUI arrest, whether or not the arrestee might ultimately be charged under OCGA § 40-6-393 and to require that the officer tailor his warnings accordingly. The problem is compounded by passage of the 1987 amendment to OCGA § 40-5-63 (b), whereby persons charged with violating OCGA § 40-6-394 are now included among those who will be subject to a twelve-month suspension for refusal to submit to the State-administered test.

Accordingly, we hold that evidence merely that the officer informed the arrestee that the consequences of his refusal to submit to a State-administered test could be suspension of his driver’s license for a period of “six to twelve months” in no way suggests “that the officer purposely attempted to mislead the [arrestee].” Sorrow v. State, supra at 84. There is no unlawful coercion of the arrestee’s submission to the State-administered test as the result of the officer’s imparting of such information, merely lawful inducement by the officer’s informing him of the permissible range of sanctions that the State may ultimately in fact be authorized to impose should he refuse to submit. The trial court correctly admitted the results of appellant’s blood-alcohol test into evidence.

3. The admission into evidence of certain testimony is enumerated as error. However, at trial there was no timely objection or motion to strike the testimony. “ Tt is a well settled rule in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection.’ [Cits.]” Skinner v. State, 155 Ga. App. 754, 755 (272 SE2d 570) (1980).

4. The trial court charged the jury that a guilty verdict would be authorized if it should find, beyond a reasonable doubt, that appellant had committed the offenses at any time within the applicable statute of limitations. Appellant, who had advanced an alibi defense, enumerates the giving of this charge as error.

“The instruction is a correct statement of a general principle of law. ‘Where the date alleged in the indictment is not a material element of the offense, the [S]tate may prove the offense as of any date within the statute of limitation. [Cits.]’ [Cit.] The principle is applicable even though the defense is alibi. [Cit.] Yet, it has also been recognized that, as a jury instruction, the legal principle is ‘potentially confusing in light of (the) alibi defense. [Cit.]’ [Cit.] ‘We have also held, however, that unless time is of the essence of the crime or is expressly made material, such an instruction is not grounds for reversal so long as the requirements set forth in De Palma v. State, 225 Ga. 465 (169 SE2d 801) (1969) are fulfilled. . . .’ [Cit.] Those requirements were fulfilled in the case at bar.” McCoy v. State, 174 Ga. App. 621, 622-623 (2) (330 SE2d 746) (1985). See also Brannon v. State, 176 Ga. App. 781, 782 (4) (337 SE2d 782) (1985).

Appellant further enumerates as error the trial court’s failure to grant a continuance for the purpose of preparing a defense to meet the State’s evidence that the alleged violations had occurred on a date which differed from the date specified in the indictment. However, appellant made no motion for a continuance. He only made various motions to dismiss the indictment, for mistrial, and for a directed verdict of acquittal. “[T]he instant variance should have been complained of by an appropriate motion for time to prepare a defense to meet the new date. [Cits.] We hold that the trial court did not err in denying the motion for directed verdict of acquittal, and that the time variance involved here cannot be reached by such motion or by the usual general grounds. While it would have been preferable for the trial court, sua sponte, to make an offer of additional time in which to attempt to establish an alibi defense for the different date, we will not hold that he was compelled to do so.” Caldwell v. State, 139 Ga. App. 279, 290-291 (228 SE2d 219) (1976). See also Haygood v. State, 172 Ga. App. 271, 273 (2) (322 SE2d 513) (1984); Frymyer v. State, 179 Ga. App. 391 (2) (346 SE2d 573) (1986).

Decided September 11, 1987

Rehearing denied September 23, 1987.

Michael P. Katz, Virgil L. Brown, for appellant.

William J. Smith, District Attorney, Michael D. Reynolds, Assistant District Attorney, for appellee.

5. Remaining enumerations of error have been considered, but have been found to be without merit.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    74819.
    STRICKLAND GENERAL AGENCY v. PURITAN INSURANCE COMPANY.
    (361 SE2d 186)
   Deen, Presiding Judge.

Appellant Strickland General Agency, Inc. (Strickland), is an insurance agency acting as general agent for appellee Puritan Insurance Company (Puritan). At some time prior to the incidents giving rise to the action below, Strickland had authorized the issuance of a fire insurance policy on behalf of Puritan to Mrs. Ada Kinney, insuring a residential dwelling in Dallas, Ga. The policy, issued through the Hart Insurance Agency (Hart), was for a one-year term beginning April 9, 1984, and expiring April 9, 1985. Mrs. Kinney died January 24, 1985. On February 25, 1985, a Mrs. Rich, who purported to represent Mrs. Kinney’s estate, telephoned Ms. Roberts, a Hart agent, and informed her that Mrs. Kinney had died, the house was vacant, and she did not wish to continue the existing insurance coverage. On that same day Ms. Roberts sent Strickland the following memorandum: “We have been informed today that [Mrs. Kinney] passed away 1-24-85, and the house is vacant. Please issue notice of cancellation direct. Your help in this matter is appreciated.” Across the bottom of the memorandum appears the following longhand notation written by a Strickland representative: “Told agent 3/13 we need policy to cancell [sic]. Can not mail notice. Not enough time or policy.” Strickland sent no notice of cancellation or nonrenewal. On April 10, 1985, a fire destroyed the property, and Puritan, in response to a demand by Mrs. Kinney’s estate, paid the sum of $26,000, on the basis that no notice of nonrenewal had been sent and that the policy had therefore, by operation of law, continued in effect.

Puritan brought an action against Strickland in the State Court of Fulton County, alleging that Strickland’s failure to send the notice, OCGA § 33-24-46, constituted both a breach of the agency agreement and a breach of the fiduciary duty owed to Puritan by Strickland. Both sides moved for summary judgment, and on February 18, 1987, the trial court granted Puritan’s motion and denied that of Strickland. Strickland appeals, enumerating as error (1) the trial court’s ruling that notice of nonrenewal is required under OCGA § 33-24-46; (2) the trial court’s ruling that notice of cancellation is required under this same statute; (3) the court further erred in concluding that an insurance policy on a residential dwelling cannot expire on its own terms without requiring notice of nonrenewal or cancellation; and (4) that the court erred in granting plaintiff’s motion for summary judgment and denying defendant’s motion. Held:

In its order the trial court held that the statute controlling the issues raised in the instant case is OCGA § 33-24-46, which deals specifically with “Cancellation or nonrenewal of property insurance policies,” rather than OCGA § 33-24-44, which provides for “Cancellation of policies generally” and is somewhat less stringent as to the fine points of its requirements. (It should be noted, however, that, with certain specific exceptions, both Code sections require thirty days’ written notice prior to cancellation.) The trial court further held that under the terms of the subject policy itself, as well as under the controlling statute, the insurer is required to give the insured at least thirty days’ written notice of nonrenewal; otherwise, the policy is automatically renewed. The trial court also held that, had Strickland acted promptly upon receipt of the memorandum from Ms. Roberts stating that a cancellation notice should be sent because the property was vacant, Strickland would have had ample time to send a timely notice of cancellation to take effect on or before April 9, 1985, the date to which the coverage of the policy, by its own terms, extended. The court held, moreover, that it was Strickland’s failure to take such timely action which placed Puritan in the position of having to decide whether to deny coverage (with the attendant prospect of litigation) or to pay.

Decided September 8, 1987

Rehearing denied September 23, 1987

Harry W. Bassler, for appellant.

J. Caleb Clarke III, for appellee.

We agree with the trial court’s analysis of the situation. Supposing, arguendo, that the Hart agent’s memorandum to Strickland had required as much as three days to make its way through the mail, there yet remained ample time — had Strickland taken timely action — to issue the required notice of nonrenewal and to request return of the policy. In the fact situation of the instant case, the decisions cited by Strickland in support of its proposition that the situation was one of lapse or expiration, and therefore was not subject to the notice requirements of OCGA § 33-24-46, simply do not support that proposition; nor does other relevant law we have examined in this connection. Strickland’s arguments concerning a purported transfer of the subject property, after Mrs. Kinney’s death, by Mrs. Rich (who purported in her call to Ms. Roberts to be representative of the estate), by virtue of a power of attorney, are irrelevant for several reasons: most notably, that a power of attorney ordinarily is terminated by the death of the grantor, OCGA § 10-6-33 et seq., together with the affirmative showing in the record that no administrator for Mrs. Kinney’s estate was appointed by the court until August 1985, months after the events relevant to the instant case.

We hold that the trial court ruled correctly as to the applicability and requirements of OCGA § 33-24-46 (enumerations 1, 2, and 3), and that, therefore, there was no error in the award of summary judgment to appellee and the denial of summary judgment to appellant (enumeration 4).

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

       We note that the policy provided for cancellation by the insured by the following means: “You may cancel this policy at any time by returning it to us or by notifying us in writing of the date cancellation is to take effect.” The record is devoid of evidence that this was done by anyone purporting to represent the Kinney estate; the telephone call to Hart by Mrs. Rich, with her unsupported allegation that she was representing the estate, would be legally insufficient to fulfill this policy provision. See generally OCGA § 10-6-1; Carter v. Kim, 157 Ga. App. 418 (277 SE2d 776) (1981).


text:
    74634.
    STEWART v. THE STATE.
    (361 SE2d 268)
    Decided September 23, 1987.

      Billy C. Mathis, Jr., for appellant.

      Hobart M. Hind, District Attorney, Melodie Swartzbaugh, Assistant District Attorney, for appellee.
   Sognier, Judge.

Appellant was convicted of burglary and two counts of aggravated assault, and he appeals. In his sole enumeration of error appellant contends the trial court erred by allowing the State to introduce a tape recording into evidence because a proper foundation was not laid for its admission.

The tape recording in question was a recording on the “911” emergency number in Albany, Georgia, received by the Albany police department. Detective Wilma Griffin testified that the call in question was from a person identifying himself as James Williams, who reported that he had just seen some old folks (the victims) get beat up, and that they were beaten up very badly. Appellant objected to admission of the tape recording of this call on the basis that the person making the call had not been connected with the crimes for which appellant was on trial. Appellant now argues that the identity of the caller was not shown, and under the holding in Steve M. Solomon, Inc. v. Edgar, 92 Ga. App. 207, 211-212 (3) (88 SE2d 167) (1955), the identity of the speakers on a tape recording is one of the facts which must be established in laying a proper foundation for admissibility of a tape recording.

We find it unnecessary to consider the issue raised by appellant, because even if the tape recording was admitted erroneously, the error was harmless under the facts of this case. Appellant’s fingerprints were found in the bathroom of the victim’s home, and a check issued to Mr. Dykes, one of the two victims, was endorsed and cashed by appellant. Thus, it is highly probable that the admission of the tape recording did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Riceman v. State, 166 Ga. App. 825, 828 (3) (305 SE2d 595) (1983).

Judgment affirmed.

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


text:
    74740.
    WADE v. THE STATE.
    (361 SE2d 266)
   Birdsong, Chief Judge.

Following a bench trial, appellant was convicted of trafficking in cocaine and possession of a firearm by a convicted felon. Appellant brings this appeal enumerating as error the trial court’s denial of his motion to suppress. Held:

We affirm. Appellant was observed as he disembarked a plane at Atlanta Hartsfield International Airport by Special Agent Jordan of the Georgia Bureau of Investigation and Agent Selph of the Drug Enforcement Agency. The flight was arriving from Miami, Florida, a known drug source city. Appellant initially attracted the agents’ attention because he ignored the volunteered offer of assistance from Delta agents who were offering information regarding connecting flights and yet walked a short distance up the concourse and began looking at the flight information monitors. While appellant was standing at the monitors, Agent Selph was able to look over appellant’s shoulder at the name on his ticket. Selph then left to obtain appellant’s flight reservation history from Delta.

Agent Jordan followed appellant as he continued up the concourse. Appellant appeared nervous, constantly looking about as if to determine whether anyone was watching him. Agent Selph then rejoined Jordan and informed him that appellant was traveling one way from Miami to Jackson, Mississippi, under the name of Terry Jackson. The ticket had been purchased shortly before the flight left Miami and was paid for by cash. Appellant’s behavior and his reservation history exhibited several characteristics of the “drug courier profile.” Consequently Agents Jordan and Selph decided to interview him.

The officers, who were casually dressed, approached appellant in the public concourse. Agent Selph identified himself as a police officer, displayed his badge and credentials, and asked appellant if he could speak to him for a minute. Appellant replied: “Sure.” Selph then asked if he could see appellant’s airline ticket. Appellant handed him the ticket which was in the name of Terry Jackson. Selph asked appellant his name and appellant responded: “Jackson, Terry Jackson.” Selph then handed the ticket back and asked if appellant had any identification. As appellant reached for his wallet, he said: “Terry Jackson is my cousin. My real name is Carlton McGrone.” Appellant’s driver’s license identified him as Carlton McGrone. Selph handed the license back and said: “[W]e’re narcotic officers. We’re looking for narcotics and narcotic related evidence being transported through the [a]irport. . . . We would like for you to cooperate with us by allowing us to search your bag and your person.”

At that point, appellant became very nervous and began to perspire. His voice cracked as he said he had to catch a plane. Selph assured him the search would only take a minute, but appellant started to walk off. Believing appellant had given a false name to hide his true identity and help conceal illegal activity, Agent Jordan placed appellant under arrest for giving a false name to a law enforcement officer. OCGA § 16-10-25.

Decided September 23, 1987.

Linda S. Cowen, for appellant.

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

Pursuant to the arrest, 47 grams of cocaine were seized from the briefcase that appellant had been carrying. The agents later obtained a search warrant and searched appellant’s checked bag from which they seized a handgun and other drug-related paraphernalia.

The initial encounter between appellant and the agents did not constitute a seizure that would give rise to Fourth Amendment protection. “ ‘A person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Moran v. State, 170 Ga. App. 837, 840 (1) (318 SE2d 716) (quoting United States v. Mendenhall, 446 U. S. 544, 554 (100 SC 1870, 64 LE2d 497)). The interview was conducted in a deferential manner, and in a conversational tone. The agents first asked for appellant’s cooperation and made no display of authority beyond identifying themselves as law enforcement officers. Thus the limited and non-coercive nature of the encounter did not invoke the Fourth Amendment. See McAdoo v. State, 164 Ga. App. 23, 26 (1) (295 SE2d 114).

The record clearly shows probable cause for Jordan to believe appellant had committed the offense of giving a false name to a law enforcement officer with the intent to mislead. OCGA § 16-10-25. The misrepresentation was made within the presence and immediate knowledge of Agent Jordan. Williams v. State, 171 Ga. App. 807, 809 (1) (321 SE2d 386). Consequently the subsequent search of appellant’s briefcase was permissible as a search incident to a lawful arrest. Laws v. State, 180 Ga. App. 528, 529 (349 SE2d 478); Moran v. State, supra. The trial court did not err in denying appellant’s motion to suppress the evidence.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    74664.
    In the Interest of B. M. et al.
    (361 SE2d 269)
   Beasley, Judge.

The mother of four children, now ages 10, 8, 6, and 5, appeals the order which terminated her parental rights as well as those of the father. She contends the evidence was insufficient to support the judgment.

In considering termination of parental rights, OCGA § 15-11-81 assigns priority to a determination whether there is “clear and convincing evidence of parental misconduct or inability.” See In re A. N. Y., 181 Ga. App. 499 (353 SE2d 8) (1987). As to the mother in this case, the court expressly applied OCGA § 15-11-81 (4) (A) (i) (ii), (iii) and (iv) and OCGA § 15-11-2 (8) (A). Among the factors demonstrably used by the court in ascertaining if the children were without parental care and control were those found in OCGA § 15-11-81 (4) (B) (i), (iv), and (v).

The trial court very carefully and fully set out the facts of this case, as required by law, In re J. L. L. & M. A. M., 179 Ga. App. 313 (346 SE2d 106) (1986), on which it made a determination based on the proper evidentiary standard.

On review, our duty is to decide whether “any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost.” In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986); In re K. H., 179 Ga. App. 4, 9 (4) (345 SE2d 108) (1986).

Without detailing the facts as found, which are supported by the evidence, it suffices to point out that while investigating a complaint in 1982, the Georgia DHR found the youngest child P. F., then an infant of two months, suffering from life-threatening malnutrition. Since that time there has been a pattern of neglect, constant moving including frequent farming out of one or more of the children, unstable home life and filthy conditions where the children resided. A showing was made as to physical and sexual abuse of the children by the mother’s live-in boyfriend, from whom the mother refused to disassociate herself. It was also brought out that the eldest daughter, B. M., when she was six, was made to watch her mother and her mother’s boyfriend engage in sex and encouraged to go and do likewise. As a result the children suffered from emotional disturbances as well as physically and in their educational development.

There was evidence that since physical custody of the children had been taken from the mother in October 1985, they showed marked improvement with respect to their emotional problems and in their school performance. See In re M. S., 181 Ga. App. 33, 34 (351 SE2d 523) (1986). During that same time the mother, although she had engaged in some desultory efforts to improve, had made little progress towards stabilizing her home life, keeping employed or improving her parenting skills. Over the course of the four and one-half years in which the Department of Family and Children Services had monitored the children’s circumstances, the mother had manifested, and at times herself confirmed, an inability if not even a lack of desire to cope with the children and their basic needs. As a result the court was authorized to conclude that the deprivation was likely to continue and not be remedied. In the Interest of S. G. & T. G., 182 Ga. App. 95, 100-101 (354 SE2d 640) (1987).

Decided September 24, 1987.

Marc E. Aeree, for appellant.

Louis J. Kirby, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.

Judgment affirmed.

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


text:
    74850, 74898.
    ANDERSON v. THE STATE (two cases).
    (361 SE2d 270)
   Birdsong, Chief Judge.

Willie Charles Anderson was convicted of burglary of a church, after having been found inside the church with boxes and bags of groceries in his arms. He explained that he was passing the church and saw the groceries sitting on the porch and that he merely intended to take the groceries inside the church and to find someone there to take the groceries. The State showed some of the items had been recently refrigerated, and that appellant had a screwdriver in his pocket and pry marks were found on a window.

Appellant complains of the admission in evidence of two guilty pleas, in 1984 for entering an automobile and in 1983 for burglary of a house. The trial court allowed this evidence on grounds appellant had put his character in evidence by saying he only meant to put the groceries inside the church; the trial court reasoned under Language v. State, 169 Ga. App. 649 (314 SE2d 484) that appellant was thus painting himself to be a Good Samaritan.

In Language, we held that appellant’s detailed explanations of his devotion to the church, wherein he explained in great detail his church activities so as to show how his finger came to be cut, “resulted in placing his character in issue.” Id., p. 650. In this case, Anderson’s explanation that he entered the church only to return groceries someone had left on the porch, even more clearly brings into question his character, as to which his propensity to enter others’ property for illegal purposes, is directly relevant to prove motive, intent, design and inclination. Moreover, if this offense had differed in material substance or modus operandi from the prior offenses, they would be less relevant to the question of his motives in entering the property; but as the facts stand, any prejudice engendered by this evidence is far outweighed by its direct relevance to the issue raised by the appellant of his intent and motive.

Decided September 24, 1987.

Richard 0. Ward, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Benjamin A. Jackson, Assistant District Attorneys, for appellee.

In criminal cases, the rule admitting evidence of similar crimes is an exception to the general rule against prejudicially putting a defendant’s character in issue. Millwood v. State, 164 Ga. App. 699 (296 SE2d 239). But where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact, it is properly admitted. Hayes v. State, 175 Ga. App. 135, 137 (332 SE2d 917); McCarty v. State, 165 Ga. App. 241, 243 (299 SE2d 95). However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged. Davis v. State, 249 Ga. 309, 311 (290 SE2d 273). The evidence qualified for admission under these standards. We find no error in the trial.

Judgment affirmed.

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


text:
    74960.
    ALLISON v. THE STATE.
    (361 SE2d 271)
   Beasley, Judge.

Defendant appeals his convictions of aggravated assault, OCGA § 16-5-21, and criminal trespass, OCGA § 16-7-21.

1. The sufficiency of the evidence is questioned and the principal argument is that the any-evidence standard is inappropriate.

On a criminal appeal where the sufficiency of the evidence is raised, either by motion for directed verdict or for new trial, our appellate courts apply the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), which is whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). Applying that here, the evidence was sufficient to authorize the convictions. Daughtry v. State, 180 Ga. App. 711, 712 (1) (350 SE2d 53) (1986); M. J. W. v. State, 133 Ga. App. 350 (1) (210 SE2d 842) (1974).

2. Defendant argues he was deprived of effective assistance of counsel because his oral request for continuance made on the date of trial was denied. He invokes no specific authority. We therefore only consider whether it was error to deny his motion.

Decided September 24, 1987.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, Douglas C. Pullen, Assis tant District Attorney, for appellee.

Defense counsel made a speedy trial motion on December 29, 1986, and the case was scheduled on the criminal docket for trial on January 27 but was continued to January 28. On that date defense counsel moved for a continuance contending that he had only a few minutes to interview his client because defendant had just been brought to Columbus from incarceration in Leesburg. The trial court noted that counsel had made no request to have defendant produced prior to trial although he had been charged on November 3, 1986. The trial court overruled the motion but, after striking the jury, recessed trial at 3:35 p.m. until the following day at 9:30 a.m. to allow defense counsel and defendant additional time to prepare. During the trial and after the close of the state’s evidence another recess was granted to permit defense counsel to interview his client and prepare further strategy. Defendant did not testify and called no witnesses.

“[M]otions for a continuance predicated on the basis that counsel had not had sufficient time to prepare for trial address themselves to the sound discretion of the trial court, and the ruling of the trial judge in denying a motion for a continuance will not be interfered with unless the court has abused its discretion in denying the motion.” Burnett v. State, 240 Ga. 681, 684 (1) (242 SE2d 79) (1978).

Moreover, an applicant for continuance must show that he used due diligence. Here, a demand for speedy trial was requested but no effort was made to interview defendant. O’Neal v. State, 254 Ga. 1, 2 (2) (325 SE2d 759) (1985); Lucas v. State, 174 Ga. App. 580 (1) (330 SE2d 792) (1985). On the facts, we find no abuse of discretion. See Mitchell v. State, 173 Ga. App. 560, 562 (3) (327 SE2d 537) (1985).

3. Defendant, who introduced no evidence at trial, contends the prosecuting attorney was erroneously permitted to comment upon his failure to testify. During closing argument, the state referred to the fact that evidence of defendant’s conduct was uncontradicted. This was commentary on the defense failure to refute the state’s case and did not evince a manifest intention to comment on defendant’s failure to testify. Thomas v. State, 174 Ga. App. 824, 825 (10) (331 SE2d 644) (1985); Hamilton v. State, 179 Ga. App. 434, 436 (5) (346 SE2d 881) (1986); Lowe v. State, 253 Ga. 308, 309 (1) (319 SE2d 834) (1984).

Judgment affirmed.

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


author: Benham, Judge.

text:
    74719.
    HUFF et al. v. HOUSEHOLD INTERNATIONAL.
    (361 SE2d 273)
   Benham, Judge.

Appellant Betty Huff worked for appellee Household International in the jewelry department of one of its TG&Y stores. When four other employees were questioned by a store investigator about missing merchandise, two of them implicated Mrs. Huff in the theft. The four were discharged from employment and arrested; Mrs. Huff denied involvement and resigned. After an investigation by local police, Mrs. Huff was arrested, and a newspaper published an article about all of the arrests. The case was sent to a grand jury, but it declined to indict Mrs. Huff, who subsequently filed suit against appellee for malicious prosecution, libel, negligence, and intentional infliction of emotional distress. Mrs. Huff’s husband, James, also an appellant, sued for loss of consortium. After discovery, appellee filed a motion for summary judgment, which the trial court granted. Appellants here seek a reversal of the judgment. We affirm.

1. Appellants contend that the trial court’s order does not address all of their causes of action and does not contain findings of fact and conclusions of law as to each material allegation of their complaint. Findings of fact and conclusions of law are not required when motions for summary judgment are ruled upon, and so the trial court did not err in omitting them. OCGA § 9-11-52; Karsman v. Portman, 173 Ga. App. 108 (3) (325 SE2d 608) (1984). Although at one point in the order the trial court characterizes the gravamen of appellants’ complaint as being two-pronged, it is clear from the order as a whole that the court considered all five of their causes of action before granting summary judgment to appellee.

2. The trial court in reaching its decision relied in part on the affidavits appellee submitted in support of its summary judgment motion. Appellants claim that the trial court erred in doing so, but we disagree. The arresting officer stated in his affidavit that his decision to arrest Mrs. Huff was independently made as a result of his own investigation and that he was not at all influenced by any of appellee’s representatives. That uncontroverted statement of fact relieved appellee of potential liability for malicious prosecution. Melton v. LaCalamito, 158 Ga. App. 820 (2) (a) (282 SE2d 393) (1981). With regard to the libel claim, the author of the newspaper article in question swore in her affidavit that she did not base her article on any press release issued by appellee implicating Mrs. Huff. She further stated that the article was based on public records she obtained through the county police department and the arresting officer. Since appellee did not supply the information for the allegedly libelous article, there was no publication on its part, thereby eliminating appellee’s liability. See OCGA § 51-5-1. Appellants failed to produce anything to contradict the facts appellee set forth and did not create an issue of material fact that would preclude the grant of summary judgment against them, and therefore, the trial court’s ruling in favor of appellee was not error.

Decided September 25, 1987.

John T. Strauss, C. Michael Walker, for appellants.

Robert C. Semler, Allen F. Harris, for appellee.

3. We must also disagree with appellants’ assertion that a question of fact remained whether appellee’s agents directly or indirectly instigated Mrs. Huff’s arrest by not fully disclosing all of the material information they had. The record reflects that appellants’ store manager Lilliard did not take out a warrant for Mrs. Huff’s arrest, but merely reported to the law enforcement authorities that two of the employee/suspects implicated Mrs. Huff in the theft. As noted earlier, appellant’s arrest was the result of the arresting officer’s independent investigation and not affected by information provided or withheld by appellee’s agents. That being so, appellee cannot be regarded as having instigated the proceeding against Mrs. Huff, and therefore may not be held liable for malicious prosecution. Melton, supra at 822. See also Rice v. Mansour, 176 Ga. App. 617 (337 SE2d 25) (1985). Since appellee did not instigate the prosecution, with regard to it, the question whether or not probable cause to arrest Mrs. Huff existed is moot, and so we need not address appellants’ last enumerated error.

4. We do not reach the merits of appellee’s motion for attorney fees and expenses of litigation (OCGA § 9-15-14), for such a motion is properly made in the trial court. Chrysler Corp. v. Marinari, 182 Ga. App. 399 (4) (355 SE2d 719) (1987). Appellee’s motion for imposition of a penalty for frivolous appeal (Court of Appeals Rule 26 (b)) is denied.

Judgment affirmed.

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


text:
    74906.
    BURNSED v. CITY OF ALBANY.
    (361 SE2d 275)
   Beasley, Judge.

Plaintiff sued the City of Albany and appeals from the grant of the city’s motion for summary judgment.

Plaintiff was a member of a community service detail working at Wetherbee Park, an athletic complex composed of baseball and softball fields owned and maintained by the city. According to the complaint, the city was negligent in failing to properly maintain wire fences surrounding baseball fields at the park in that the fences were not properly or safely affixed to the fence posts. During a break, she leaned against a fence which gave way, causing her to fall and sustain injury, for which she sought damages as the direct and proximate result of the city’s negligence.

The city’s answer denied the material averments and set forth several defenses, including improper use of the fence and assumption of the risk.

In response to the city’s interrogatories 1) as to what was defective and 2) how plaintiff contended the city was negligent, plaintiff stated: 1) “The wire (chain link) was not properly secured to the fence posts. As plaintiff leaned back against the fence slightly it gave way causing plaintiff to fall to the ground.” (Parenthetical words included.) 2) The “wire (chain link)” should have been secured so it would not give way when a person leans back on it. In her deposition she testified: “I had, briefly, just leaned against the fence, and just fell.” She further related that she and others were “policing” the park as part of their community service; during a break she “just barely leaned on it.” She did not remember anything about the fence, “didn’t pay any attention,” gave no thought to its purpose and noticed nothing wrong with it before she leaned on it. She did not examine or test it before she “backed into it.”

The city by an employee affidavit filed with the motion for summary judgment set forth: the fence was erected in 1983 (plaintiff fell in April 1984) for the exclusive purpose of protecting fans from being struck by batted or thrown balls; it was properly maintained for this purpose and there had been no complaints regarding the protection it provided or any other notice of a condition which would render it incapable of serving the purpose; the wire was attached in a manner suitable for the purpose intended, which was not for people lying or climbing over it; the “screen” was constructed by driving creosote poles into the ground and nailing wire to the post.

In response, plaintiff by affidavit reiterated that she leaned back slightly to rest on what appeared to be, and what she contends to be, a chain link fence similar to other chain link fencing surrounding the ball field.

As movant on summary judgment the city’s burden is to establish the absence of any genuine issue of material fact by negating one of the essential elements of plaintiff’s claim and showing that it is entitled to judgment as a matter of law. Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 838 (331 SE2d 899) (1985); Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981). If a defendant movant introduces proof which pierces the allegations of the complaint, the burden shifts to plaintiff who must rebut this proof and show there are genuine issues for trial. Edwards v. McTyre, 246 Ga. 302, 303 (4) (271 SE2d 205) (1980).

Plaintiff’s theory is that the city, a landowner, was negligent in not foreseeing that an invitee would misuse, by leaning against it, a fence put up to protect fans from batted or thrown balls, and affixing the fencing to the posts so that the fence would withstand an invitee leaning against it.

The obligation of an owner or occupier of land to invitees is found in OCGA § 51-3-1. That is amplified by numerous principles including the one upon which plaintiff’s case stands: “Where an instrumentality is put to a purpose or use not intended, the owner or person in control is not liable for injuries occasioned thereby unless he had actual knowledge that such instrumentality was defective or unsuited for that purpose and knew or should have anticipated it would be diverted to the foreign use. [Cits.]” Amear v. Hall, 164 Ga. App. 163, 169 (2) (296 SE2d 611) (1982).

It is a question of whether or not the misuse, here, should have been reasonably anticipated. “ ‘[T]he standard is whether a reasonably prudent person at the time and in the circumstances would have foreseen danger and what he reasonably would have done to prevent injury; negligence is defective foresight judged by this standard rather than by hindsight of what actually happened and the effectiveness of the action taken [to prevent the incident].’ [Cit.]” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 156 (1) (A) (256 SE2d 916) (1979). In that case and in the ones there discussed, the allegedly anticipated negligence was that of third parties, not the invitee plaintiff. The same principle would apply here, but of course it would have the added feature of requiring consideration of comparative negligence, since plaintiff has already admitted she “misused” the fence by using it for an unintended purpose.

One of the crucial facts in dispute is the composition of the fence. Plaintiff says it was chain link; if so, it might be reasonably anticipated that a person would lean on it, perceiving it to be sturdy. The city refers to it as wire, and screen; if so, it might not be reasonably anticipated that a person would lean on it, calling into play instead the principle that one is ordinarily not responsible for warning of conditions which are or should be obvious. Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 49 (183 SE2d 7) (1971). See Stenhouse v. Winn-Dixie Stores, 147 Ga. App. 473, 474 (249 SE2d 276) (1978); Amear v. Hall, supra at 169. The landowner in such circumstances would not have superior knowledge of the limited purpose of the fence. See Arnold v. Athens Newspapers, 173 Ga. App. 735, 738 (2) (327 SE2d 845) (1985) for the “superior knowledge” principles. A plaintiff is charged with the “avoidance of consequences” doctrine and the principle of assumption of the risk. Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). Plaintiff has a duty to “exercise ordinary care to avoid the consequences of any negligence by defendants when such is apparent or in the exercise of ordinary care should have become apparent to plaintiff.” Smith v. Poteet, 127 Ga. App. 735, 741 (6) (195 SE2d 213) (1972).

Decided September 25, 1987.

Richard L. Hodge, for appellant.

Leonard Farkas, for appellee.

In its current posture, with material facts in dispute, this is not that “plain and indisputable case” which can be disposed of by summary judgment. Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (174 SE2d 178) (1970).

Judgment reversed.

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


text:
    74932.
    74933.
    HART et al. v. THE STATE. BUNCH v. THE STATE.
    (361 SE2d 277)
   Birdsong, Chief Judge.

Ida Jane Bunch is the mother of Willa Dean Hart, Roger Dale Bunch and Henry Bunch, and is married to John Junior Bunch. The Bunch family lived in a house located in Portal, Georgia. Because of increasing debt burden, a discussion originated with the mother and stepfather (Ida and John Junior) to burn the house in Portal so as to collect the insurance on the personal belongings located in the house. Another son (uncharged in this case) was to start the fire. For unexplained reasons the fire in the Portal house was never accomplished. The family then moved to a farm house in Jenkins County. Again the plan was discussed between Ida and John Junior, Willa Hart, Roger, and Henry. Prior to the starting of a fire in the house, the family members and other friends began to move furniture and personal belongings from the house. Food stuff, clothing, pots and pans, a freezer, personal pictures and other sundries were moved from the Jenkins County farmhouse back to a son’s house in Portal. On the night of the burning, Roger asked for and received assistance from a friend to move his car from the side of the Jenkins County house because he stated it might be burned if he did not move it. The last item moved (by John Junior, Henry and Roger) was the freezer. Then Henry and Roger left the house in Portal for the ostensible purpose of burning the house in Jenkins County. The family stayed the night in Portal.

Henry and Roger returned several hours later reporting the house was “gone.” The house was totally destroyed by fire. Two creditors who had sold furniture and other personalty to the Bunch family had their debts insured and filed claims to recover the loss. The debts were either extinguished or substantially reduced and excess coverage was paid over to the Bunch family. The Bunch family themselves filed a claim with their insurer, the Independent Fire Insurance Company, individually. Henry Bunch admitted the discussions to burn the house and John Junior Bunch admitted the discussions and the burning. The several defendants offered no evidence, but on cross-examination brought out that there had been amateur electrical wiring of a broken wire and the well water was unsatisfactory and they were going to move. Based upon this evidence the jury under appropriate instructions found Henry Bunch guilty of the felony of secreting property to defraud another. Ida, John Junior and Roger Bunch and Wilma Hart were all convicted of first degree arson and secreting property to defraud another. All five defendants having been convicted as charged, Henry Bunch was sentenced to serve five years and the remaining four were sentenced to serve five years on each count but concurrently.

Although there are two cases (Henry Bunch was indicted separately and the remaining four indicted later), the two indictments were jointly tried. Each case has been appealed. However as to Henry Bunch’s appeal, we must take cognizance that the judgment of conviction and sentence was entered on October 15, 1986. Henry Bunch did not file his notice of appeal in the trial court until January 20, 1987, 87 days after the entry of judgment. The record contains no entry or indication of a request for an extension of time within which to file a notice of appeal nor a motion for nor a ruling upon a new trial. We are required to inquire into our own jurisdiction. It is obvious on its face that the notice of appeal in Henry Bunch’s case was not filed in a timely fashion and thus does not activate the jurisdiction of this court so as to empower us to rule upon the merits of the appeal. Smith v. State, 140 Ga. App. 492 (231 SE2d 493). Parenthetically we note however that he was part and parcel of the common plan and agreement to burn the house and secrete the goods in order to perpetrate the insurance fraud. As to the other four appellants, each of whom appeal on the general grounds, we can unequivocally conclude that any rational jury could reasonably conclude beyond reasonable doubt that the defendants entered into a criminal agreement as aiders and abettors in the criminal enterprise of first degree arson and the felony secretion of property to defraud their insurer and thus were in fact and law guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided September 25, 1987.

Phillips D. Hamilton, for appellants.

J. Lane Johnston, District Attorney, for appellee.

Judgment affirmed in Case No. 74932.

Appeal dismissed in Case No. 74933. Deen, P. J., and Pope, J., concur.


text:
    75015.
    THOMAS et al. v. HILLSON.
    (361 SE2d 278)
   Beasley, Judge.

Mr. and Mrs. Thomas sued Dr. Joseph Hillson. Count One alleged that when Mrs. Thomas sought treatment from Dr. Hillson for a vaginal infection he negligently and incorrectly diagnosed her condition as gonorrhea, gave her medication suitable only for the treatment of gonorrhea and requested that she inform her husband to make an appointment for an examination to determine if he had communicated the disease to her; but that after Mr. Thomas tested negative for gonorrhea, Mrs. Thomas was retested and likewise found to be suffering from another infection, not gonorrhea. She sought damages for pain and suffering. Count Two demanded damages of $50,000 for the intentional and malicious publication of false, slanderous and defamatory statements that Mrs. Thomas had gonorrhea, a communicable disease, to a third party, her husband, which subjected her to family disorder, ridicule and contempt, and damaged her good name and reputation.

Dr. Hillson denied the essential allegations and by amendment asserted the defense that any statements to Mrs. Thomas concerning her condition were made by him in good faith in the performance of a moral private duty between physician and patient. After discovery, he moved for summary judgment, which was granted. Appeal is taken only from the slander count.

While both Mr. and Mrs. Thomas have appealed, Mrs. Thomas is the sole plaintiff in Count Two. She alleges that the oral, in-person communication to her husband, “That I had gonorrhea,” constituted slander.

Dr. Hillson averred in his affidavit that his examination of Mrs. Thomas and her symptoms “suggested a pelvic inflammatory disease”; that he told her she needed intravenous antibiotics which could only be given in a hospital; that a media culture disclosed Nisseria Gonococcal organisms and when she asked what was wrong with her he told her that “she had a pelvic inflammatory process which may well be Nisseria Gonorrhea because the original culture grew out Nisseria Gonococcal organisms”; that Mrs. Thomas asked him to do a test on her husband and Mr. Thomas came to his office and a culture was taken; that he also retested Mrs. Thomas and neither of the cultures showed Nisseria Gonorrhea, which he told Mrs. Thomas; and that since Mrs. Thomas still had a pelvic inflammatory disease she remained in the hospital for treatment for five days.

Mrs. Thomas contended in her pleadings and affidavit that she was told she had gonorrhea and could be treated either in the doctor’s office or in the hospital. She chose to go to the hospital and no additional cultures were taken while she was there. She did not request that a test be done on her husband, she said, but Dr. Hillson stated that she should have her husband call him for an appointment. Dr. Hillson told her on more than one occasion while she was in the hospital that she had gonorrhea and also told her husband that she did. He never explained why he made these statements or apologized for the disruption they caused. Mr. Thomas’ affidavit corroborated his wife’s.

Whether or not Dr. Hillson told Mr. Thomas that Mrs. Thomas had (or might have) gonorrhea is not dispositive of the issue of slander. Under OCGA § 51-5-7 (2) and (3) statements made in good faith in the performance of a legal or moral duty are privileged communications which bar recovery in actions for slander or libel. See Auer v. Black, 163 Ga. App. 787 (294 SE2d 616) (1982); Zakas v. Mills, 148 Ga. App. 220 (251 SE2d 135) (1978). “Generally both the question of whether the communication was privileged and whether it was uttered maliciously are jury questions. [Cits.] ‘(T)o make the defense of privilege complete, . . . good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.’ [Cits.] On summary judgment the issue is simply whether defendant established as a matter of law that he made privileged statements.” (Indention omitted.) Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) (1986).

“Contrary to [Mrs. Thomas’] assertions on appeal, ‘privilege’ did not have to be specifically raised by [Dr. Hillson’s] answer in order to become a viable issue on the trial of the case. [Cit.]” Tetrault v. Shelton, 179 Ga. App. 746, 748 (2) (347 SE2d 636) (1986). In any event, Dr. Hillson did expressly raise the issue in his amended answer.

Assuming that the communication to Mr. Thomas constituted publication to a third party, the evidence concretely establishes that Dr. Hillson did not “publish” the information because Mrs. Thomas was either the first person to tell her husband, or she invited the publication by sending her husband to see Dr. Hillson for testing or consultation on the subject. If she first told her husband what Dr. Hillson related to her, then she invited an inquiry by the husband. “ ‘State-merits in response to inquiries as to another person, when the inquirer is one naturally interested in his welfare, are privileged. They are statements . . . within the purview of [present OCGA § 51-5-7] . . . [The statement] was privileged, because it was elicited by one who had an interest in the answer, and therefore, if not made to anyone else, it would not be slanderous.’ ‘A qualified privilege attaches to communications relative to family matters, made in good faith to the proper parties by members, intimate friends and third persons under a duty to speak.’ [Cit.] ‘A communication is qualified privileged when made in good faith in answer to one having an interest in the information sought, or if volunteered, when the person to whom the communication is made has an interest in it, and the person by whom it is made stands in such a relation to him as to make it a proper or responsible duty to give the information.’ [Cit.]” Cochran v. Sears, Roebuck & Co., 72 Ga. App. 458, 462-63 (2) (34 SE2d 296) (1945). “It is enough that the complainant requests or consents to the presence of a third party and solicits the publication of matter which he knows or has reasonable cause to suspect will be unfavorable to him. [Cit.]” Stone v. Brooks, 253 Ga. 565, 566 (322 SE2d 728) (1984).

Decided September 25, 1987.

Vernon J. Neely, for appellants.

Wiley S. Obenshain III, Tandy M. Menk, for appellee.

In addition, Dr. Hillson as Mrs. Thomas’ physician had cause to consult with Mr. Thomas as a part of his patient’s treatment. Thus the disclosure of Mrs. Thomas’ possible infectious disease “was in the performance of a private duty, either legal or moral, on [his] part, to give such information, and was . . . made with a bona fide intent and without malice, with an interest to be upheld, and a statement properly limited in its scope, a proper occasion, and publication to a proper person. [Cits.]” Cochran v. Sears, Roebuck & Co., supra at 463. Accord Auer v. Black, 163 Ga. App. 787, supra.

Summary judgment to Dr. Hillson on the allegations of slander was demanded.

Judgment affirmed.

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