text:
    74722.
    BLESSING v. DOCTORS MEMORIAL HOSPITAL, INC. et al.
    (362 SE2d 394)
   Banke, Presiding Judge.

The appellant filed a medical malpractice suit against the appellees herein, a hospital and two physicians, to recover for injuries he allegedly sustained during surgery as the result of the use of faulty equipment and the improper positioning of his legs by operating room personnel. He additionally sought to recover for an invasion of his privacy which he allegedly suffered when unauthorized “visitors” were allowed to enter the operating room and view his genitalia during the surgery. This appeal is from an order granting summary judgment to the hospital on both the malpractice and the invasion of privacy claim and granting partial summary judgment to one of the two physicians, Dr. Morganstern, on the invasion of privacy claim.

The specific allegations making up the invasion of privacy claim are that the two physicians, while performing urological surgery on the appellant, allowed several visitors who had no connection with the operation to enter the operating room “for observation of the [appellant] on the operating table,” in violation of an express agreement by the physicians and the hospital that no such visitors would be allowed in the operating room during the surgery. In support of their motion for summary judgment, the appellees submitted Dr. Morganstern’s affidavit averring that only such medical personnel as were necessary to the performance of the surgery were present in the operating room and further averring that the equipment provided by the hospital was in good working condition and that the manner in which the appellant’s legs were positioned during the surgery was necessitated by his obesity and not, as alleged by the appellant, by the need to accommodate faulty surgical equipment. Held:

1. The appellant initially challenges the sufficiency of Dr. Morganstern’s affidavit on the basis that it is conclusory, is not based on personal knowledge, and is contradictory to his (Dr. Morganstern’s) subsequent deposition testimony. Suffice it to say that, based on our review of the affidavit and of Dr. Morganstern’s deposition testimony, we find these contentions to be without merit.

2. The trial court properly granted summary judgment to Dr. Morganstern and the hospital on the breach of the privacy claim. This claim was, of course, based not upon allegations of professional malpractice but upon the breach of an alleged contractual obligation on the part of the appellees not to allow “visitors” into the operating room during surgery. In his affidavit, the appellant, who was only under a local anesthetic during the surgery, averred merely that he had observed several female visitors in the operating room “wearing clothing which led me to believe they were not medical personnel.” Dr. Morganstern, on the other hand asserted unequivocally, both in his affidavit and in his deposition testimony, that only such personnel as were necessary to the operation were present during the procedure. Strictly speaking, there is nothing in the appellant’s affidavit which conflicts with this assertion.

OCGA § 9-11-56 (e) provides that “[w]hen a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” As the appellant’s affidavit sets forth no specific facts tending to negate Dr. Morganstern’s unequivocal testimony that no unnecessary personnel were present in the operating room during the surgery, it follows that no issue of fact remained to be tried with respect to the invasion of privacy claim.

3. We turn next to the liability of the hospital for the alleged medical malpractice committed in the operating room. Pretermitting whether the trial court relied, properly or improperly, on the “locality rule” in assessing the hospital’s duty to provide properly functioning surgical equipment, we hold that the evidence of record establishes conclusively that the equipment in question was not faulty. Dr. Morganstern, the physician who utilized the equipment, affirmatively stated in his affidavit that it was in good working condition, and the only evidence offered to the contrary consisted of the appellant’s own testimony regarding statements purportedly made by certain unidentified operating room personnel during the course of the surgery. Absent any identification of the persons who purportedly made these statements and of their relationship to the hospital, such testimony is clearly insufficient to controvert Dr. Morganstern’s affirmative testimony with respect to this issue.

Decided October 5, 1987

Rehearing denied November 4, 1987

Thomas F. McNally, Jr., for appellant.

Lawrie E. Demorest, John A. Gilleland, Jennie E. Rogers, for appellees.

4. The evidence further established without dispute, that the positioning of the appellant’s legs was done under the direction of the surgeon. Consequently, any negligent injury resulting therefrom must be imputed to the surgeon rather than to the hospital. “[W]hen a hospital yields control of its employees to a surgeon in the operating room and the surgeon exercises immediate personal supervision over those employees, ‘then he becomes their master and their negligence during the course of the master-servant relationship will be imputed to him.’ [Cits.]” McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 418 (336 SE2d 268) (1985). It follows that the trial court did not err in granting summary judgment to the hospital with respect to the medical malpractice claim.

Judgment affirmed.

Benham, J., concurs. Carley, J., concurs in Divisions 1, 2, and 4 and in judgment.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74723.
    SMITH v. THE STATE.
    (362 SE2d 384)
   Birdsong, Chief Judge.

Michael Marceya Smith a/k/a Van Moody a/k/a Michael Scott was tried by jury for armed robbery of a UPS truck and driver, and found guilty. Smith was not present during his trial because he escaped custody of his guard in the courthouse, after the jury had been impaneled but before evidence was taken. Several jurors saw the escape but several did not. Over objection and motion for mistrial, the trial court allowed the guarding deputy to testify that appellant had escaped.

The appellant urges the overturning of the armed robbery verdict because of the prejudicial effect of proceeding with trial after the escape, because of the jury’s knowledge of the escape, and because of the admission of the deputy’s testimony as to the escape, all of which he contends deprived him of his constitutional rights on every ground. Held:

The evidence showed two men abducted the UPS driver in downtown Atlanta using a gun and threatening bodily harm; and that the driver observed them for several minutes while they threatened to shoot him. When he was let go and was told to run or he would be shot, he did run, but looked back to see one of the robbers moving as if to get in a parked black Chevrolet Malibu with its emergency lights blinking. When the robber saw the victim looking, he got back in the truck and the two robbers drove north on Piedmont Avenue. The victim truck driver called the police; he told them about the truck heist and about the parked Malibu that one of the robbers had appeared to be going towards. The truck was soon found abandoned; the black Malibu was found parked where the victim said it was, 30 or 40 feet from the exit ramp of the parking garage where the UPS truck and driver had been overtaken. A patrolman parked his car across the street from where the black Malibu was still illegally parked with its lights still flashing. Finally, about three hours after the robbery, a man who fit a description given by the UPS driver, walked towards the Malibu and got in it. The patrolman gave chase along with two other policemen in another car. The chase led onto Interstate 75/85 and then to Interstate 20. Finally, the man exited at Lee Street, abandoned the Malibu, ran through a building (being chased by a security guard) and then ran through a construction site where he was seen jumping into a dumpster.

The pursuers surrounded the dumpster and thus the appellant was captured. He was removed to the police station, robbery division, and was searched for weapons. A key was found in his pocket. This key had numbers on it and was identified by the UPS driver as the key to the back door of his UPS van which the robber had taken from the driver’s key ring. Also, the victim was shown a photographic lineup and unhesitatingly selected appellant’s photo as being that of one of the robbers.

This evidence is such that a reasonable trier of fact could rationally have found proof of appellant’s guilt of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The evidence directly connecting the appellant with the armed robbery of the UPS truck and driver is, we think, overwhelming, even in the face of the appellant’s voluntary absence from his trial and the consequent inability of the victim to physically identify him at the trial.

The admission of the evidence of escape and the fact that some jurors observed the escape do not justify overturning this conviction. The testimony of the guard explained appellant’s absence. The evidence had probative value for jury consideration. In Carver v. State, 137 Ga. App. 240 (1) (223 SE2d 275), we upheld a conviction over similar objections, because flight, even an escape from jail after the offense, is a circumstance which may be weighed by the jury in connection with other circumstances to determine the guilt of the accused. See also Durham v. State, 179 Ga. App. 636 (1) (347 SE2d 293), where we held an escape while defendant was attending a bond hearing three months after arrest, was not too remote in time to have probative value concerning the charge for which he was tried. As to the probativeness of the evidence, the entire question is for the jury, for “[w]hether the acts of the defendant constitute flight, and were due to a consciousness of guilt, or whether such acts have an innocent explanation, is a question for the jury.” Butler v. State, 172 Ga. App. 405, 407 (4) (323 SE2d 628). The fact that this was an escape from the courthouse during trial does not remove this conduct from the rule just stated, because the question to be decided is whether flight “or similar acts” were due to a sense of guilt or for other purposes. See Fredericks v. State, 172 Ga. App. 379 (323 SE2d 265); and see Bogan v. State, 177 Ga. App. 614, 618 (3) (340 SE2d 256).

As for appellant’s having voluntarily absented himself from his trial, he should not be allowed to profit from this action by winning a reversal of the conviction because he was not there. “Confrontation rights are personal to the accused and are waived when the accused . . . voluntarily absents himself from the trial.” Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610), cert. den. 442 U. S. 1011 (95 SC 2636, 45 LE2d 675); Croy v. State, 168 Ga. App. 241 (308 SE2d 568).

Therefore, neither the conduct of the trial in the face of appellant’s voluntary absence from his trial, nor the admission of testimony as to his flight “or similar act” was error by itself; and the two do not combine to create error. We conclude, in any case, that if any error attached to the conduct of the trial on these grounds, it is highly probable that any such error did not contribute to the conviction for armed robbery, and any such error was harmless beyond a reasonable doubt. Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133). The appellant was caught red-handed by returning to retrieve the apparent get-away car, after a flight and a fierce interstate chase, with the key to the UPS truck in his pocket; and his photo was immediately identified by the victim. The evidence is overwhelming that he committed the armed robbery and, in these circumstances, it would indeed be a perversion of justice to reverse his conviction because he escaped during trial in such circumstances that the jury became aware of it. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515).

Appellant’s objection that the sentence of 20 years, not to be served concurrently with any other, is indeterminate, is without authority, without argument, and without merit.

Judgment affirmed.

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

Decided September 17, 1987

Rehearing denied November 4, 1987

Frank B. Hester, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Doris L. Downs, Assistant District Attorneys, for appellee.


author: Carley, Judge.

text:
    74824.
    FOOD GIANT, INC. v. DAVISON.
    (362 SE2d 447)
   Carley, Judge.

At the time relevant to this appeal, appellee-plaintiff was employed as a truck driver by Stelman Leasing. Stelman Leasing is in the business of hiring out its trucks and drivers to others. In the course of its business, Stelman Leasing hired out a truck and the services of appellee to Charter Express. Charter Express then sent appellee to make delivery of 48,000 pounds of cheese to the Atlanta warehouse of appellant-defendant Food Giant, Inc. Upon his arrival at appellant’s warehouse, appellee was told by appellant’s dock supervisor that he must unload his own truck or the cheese would not be accepted. Appellee initially refused to comply with this direction and he telephoned both Stelman Leasing and Charter Express for instructions. In these telephone conversations, appellee successfully negotiated for additional payment for unloading the truck, and only then did he agree to do so. After his telephone conversations with representatives of Stelman Leasing and Charter Express, appellee began to unload the cheese from his truck, using the equipment that appellant had provided to him for that purpose. Appellant’s shipping clerk told appellee where to put the cheese when it was unloaded. Appellee was also told to separate any damaged cheese, to reload that damaged cheese onto the truck, and to return it to Charter Express as goods which had been rejected by appellant. While reloading the damaged and rejected cheese back onto his truck, appellee injured his foot on a piece of appellant’s equipment that he was using.

Appellee brought this suit, alleging that the injury to his foot had been caused by appellant’s negligence in providing defective equipment for him to use in unloading and reloading his truck. Among the defenses raised in appellant’s answer was the assertion that, because appellee was its “borrowed servant” at the time of his injury, workers’ compensation was his only remedy and OCGA § 34-9-11 barred this tort action. Cross-motions for partial summary judgment as to appellant’s “borrowed servant” defense were filed. After a hearing, the trial court granted partial summary judgment in favor of appellee and denied appellant’s motion for summary judgment as to this issue. Appellant appeals from the trial court’s order granting appellee partial summary judgment as to the “borrowed servant” defense.

“[I]n order for an employee to be a borrowed employee, the evidence must show that ‘(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.’ [Cit.]” Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981). All of these elements must exist and the element of the right to control relates specifically to the occasion when the injury occurred. Bosch v. Perry, 169 Ga. App. 28 (1) (311 SE2d 481) (1983). There is apparently no dispute that, notwithstanding his status as a general employee of Stelman Leasing, appellee was a borrowed servant as to Charter Express with regard to the delivery of the cheese to appellant’s warehouse. Charter Express had, to the apparent exclusion of Stelman Leasing, complete control and direction over appellee’s delivery of the cheese and the exclusive right to discharge him from the performance of that duty. Thus, the issue to be resolved is whether, in unloading and reloading the cheese, appellee left the control and direction that Charter Express exercised over his delivery of the cheese so as to become the borrowed servant of appellant.

“The responsibility of a carrier shall commence with the delivery of the goods to him or to his agent or at the place where the carrier is accustomed or agrees to receive them. The carrier’s responsibility shall cease with the delivery of the goods at destination according to the direction of the person sending the goods or according to the custom of the trade.” OCGA § 46-9-45. When construed most strongly in favor of appellant, as the non-moving party, the evidence as to the right of control over appellee, in the sense of the authority to direct that he unload and reload the goods, shows the following: Appellee refused to comply with appellant’s direction to unload his truck. Only after telephoning those whom he considered to be authorized to give him orders and after being assured that he would be paid for doing so, did appellee undertake the assignment. Appellee was subjected to the same treatment and instructions as any other truck driver who was sent to deliver goods to appellant’s warehouse. Appellant’s dock supervisor testified that it was common for truck drivers who had not previously delivered goods to appellant’s warehouse to balk when informed that they, rather than appellant, would be responsible for unloading their trucks. When any truck driver questioned the directive to unload his own truck, appellant’s dock supervisor would always call the driver’s employer “to see if the trucking company would make [the driver] move or unload his truck.” This was corroborated by the testimony of appellant’s shipping clerk, who testified that the instructions that appellee received “were no different than those given to dozens of truckers on a daily basis and hundreds of truckers on a yearly basis” and “the action taken by [appellant’s dock] supervisor with a troublesome trucker would be to call the trucker’s employer in order to have the trucker’s employer work out the problem.”

Under this evidence, it is clear that appellant itself considered that the delivery of goods to its warehouse required more than the arrival of a carrier’s loaded truck. Appellant considered that a contract of delivery had been completed only if the carrier’s truck driver actually unloaded the goods and reloaded the rejected goods onto the truck. Thus, in directing a carrier’s truck driver to unload and reload his truck, appellant was seeking to enforce the carrier’s contract of delivery and, in doing so, appellant relied upon the carrier, as the truck driver’s employer, rather than upon its own authority as the truck driver’s master. “The mere fact that a servant is . . . performing work beneficial to a third person, does not render him the servant of such third person. . . . [Cits.]” Graham v. Cleveland, 58 Ga. App. 810, 812-813 (200 SE 184) (1938). In unloading and reloading his truck at appellant’s warehouse, appellee was not acting as appellant’s borrowed servant, but as the servant of Charter Express. In so doing, appellee was directly engaged in completing Charter Express’ contract to deliver goods to appellant. The fact that appellee was under the direction of appellant’s employees with regard to some aspects of the performance of the task of unloading and reloading the truck did not make him appellant’s borrowed servant. “There is a distinction between the act of merely following directions while giving assistance to another’s servant and the status of being within the ‘complete control’ of another’s servant. The former connotes cooperation with another’s servant, not the subordination which is implicit in the notion of ‘complete control.’ [Cit.]” Jones v. Tingue, Brown & Co., 171 Ga. App. 597, 598 (1) (320 SE2d 587) (1984).

“[T]he record here, including the pleadings, discovery proceedings and testimony, plainly and conclusively establishes that [appellee] was not a ‘borrowed servant’ nor any other kind of servant of [appellant]. [Appellee’s] employer, [Charter Express], sent him to the place of business of [appellant] to [deliver goods]. He was [Charter Express’] servant for all of that time. [Appellant] did not dictate the time when [appellee] should work, nor the method of working. [Appellant] simply [told appellee, upon his arrival, where to put the goods and to separate any damaged goods and to reload them on the truck]. As to [appellee, appellant] was a third person, and the statute is very clear that an injured employee may be entitled to collect workers’] compensation from his employer and at the same time may maintain an action in tort against a third party who is responsible for his injuries and damages. [Cits.]” Avis Truck Rental v. Coggins, 129 Ga. App. 81, 82 (1) (198 SE2d 716) (1973).

Decided October 23, 1987

Rehearing denied November 4, 1987

Donald R. Andersen, Robin E. Goff, for appellant.

Larry K. Butler, James J. McGinnis, Frank R. Seigel, for appellee.

Accordingly, as to the “borrowed servant” defense, the trial court did not err in granting summary judgment in favor of appellee, nor in denying appellant’s motion for partial summary judgment as to this issue.

Judgment affirmed.

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


author: Pope, Judge.

text:
    74870.
    JOHNSON v. THE STATE.
    (362 SE2d 450)
   Pope, Judge.

Nathan Johnson brings this appeal from his conviction and sentence of homicide by vehicle in the first degree, OCGA § 40-6-393 (a). Held:

1. Defendant first enumerates as error the admitting into evidence of certain blood-alcohol test results. He cites two grounds in support of this enumeration.

(a) We find no merit in defendant’s challenge to the chain of custody of the blood sample taken from him at the hospital shortly after the incident. “[W]here the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence. [Cit.] Hence, the burden is on the prosecution ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cit.] However, the State need not negate all possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the confiscated evidence. [Cits.]” Kelly v. State, 182 Ga. App. 7, 9 (354 SE2d 647) (1987). “It is true that there was some discrepancy in the testimony as to the amount of blood drawn but this does not prove . . . that there was a break in the chain of custody or that there was tampering with the sample.” Cunningham v. State, 255 Ga. 35, 37 (334 SE2d 656) (1985). Nor doés the absence of the testimony of the police officer who placed the sample in the police department refrigerator prior to delivery to the State Crime Lab render this evidence inadmissible. Mutcherson v. State, 179 Ga. App. 114 (345 SE2d 661) (1986). “[W]hen a blood sample is routinely handled and nothing in the record raises a suspicion that the blood tested was other than that taken from the defendant, the evidence of tests on such blood is admissible.” (Punctuation omitted.) Cunningham, supra at 38.

(b) We likewise find no merit in defendant’s assertion that he was not properly advised of his right to an independent test pursuant to OCGA § 40-6-392 (a) (3). “[W]here there are conflicts in the evidence as to whether a defendant was advised of this right to an additional test,' resolution of the question of credibility is for the trial court. . . . Even if, as [defendant] seems to allege, he was [“groggy”] or semi-conscious, and thereby incapable of refusing to consent to the test, the results of the test were nevertheless admissible.” (Citations and indention omitted.) Holmes v. State, 180 Ga. App. 787, 788 (350 SE2d 497) (1986).

2. Defendant also cites as error the introduction into evidence of a photograph of the victim at the scene and alleges that it was inflammatory and irrelevant. Photographs depicting the nature and extent of the victim’s wounds, the location of the body, the crime scene, and the victim’s identity are admissible. Gaskins v. State, 250 Ga. 386 (5) (297 SE2d 729) (1982), overruled on other grounds, Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984). Photographs which tend to show relevant and material facts are admissible although it is alleged that they are designed to inflame and prejudice the jury. Meeker v. State, 249 Ga. 780 (294 SE2d 479) (1982); see Mincey v. State, 257 Ga. 500 (8) (360 SE2d 578) (1987). “This is true even when the cause of death is not in dispute.” Meeker, supra at 780. Therefore, the introduction of the photograph in this case was not error.

3. The jury returned the following verdict: “In the case of The State v. Nathan Johnson, charged with the offense [s] of homicide by vehicle in the first degree and driving under the influence, we, the Jury, find the Defendant guilty of homicide by vehicle in the first degree.” In his final enumerations of error defendant argues that since he was not found guilty of driving under the influence of alcohol, he could not be sentenced for “felony” vehicular homicide. We find no merit in this argument.

The trial court properly and fully charged the jury the law relating to both offenses charged. The court specifically charged that “Count Two charges the Defendant with driving under the influence. And that’s a necessary part of Count One also. ...” See OCGA § 40-6-393 (a). The court further charged the jury that “if you find the Defendant guilty of the first offense, homicide by vehicle in the first degree, that, of course, eliminates the others.” “[T]he court was justified in instructing the jury so as to prevent them from needlessly considering the charge of [driving under the influence] if they found [defendant] guilty of [homicide by vehicle in the first degree.]” Harper v. State, 157 Ga. App. 480, 481 (278 SE2d 28) (1981); see also Rogers v. State, 180 Ga. App. 310 (4) (348 SE2d 888) (1986). In light of the charge and the facts of record, the jury necessarily found defendant guilty of driving under the influence when it found him guilty of felony vehicular homicide, and the evidence was such that any rational trier of fact could have found defendant guilty thereof beyond a reasonable doubt. See Deshazier v. State, 155 Ga. App. 526 (2) (271 SE2d 664) (1980).

Decided October 23, 1987

Rehearing denied November 4, 1987

Michael A. Lewanski, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The trial court also charged the offense of homicide by vehicle in the second degree as a lesser included offense in addition to charging the offense of driving under the influence of alcohol.


text:
    74888.
    ALLIED ELECTRICAL CONTRACTORS, INC. v. KERN & COMPANY, INC.
    (362 SE2d 452)
   Pope, Judge.

Appellant subcontractor brought this action for foreclosure of a materialman’s lien against appellee landowner and also the general contractor, Contel Construction Company. Appellant has been unable to locate Contel Construction in order to effect service of process upon it. Appellee answered the complaint and subsequently moved for and was granted summary judgment. The trial court found substantial compliance with the several statutory prerequisites to foreclosure of the subject lien “with the exception that the notice clearly was not executed under oath.”

In order to make good a materialman’s lien such as the one in this case, the lien “must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable: . . . The commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due. In addition, at the time of filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. . . . [Among other requirements, the] notice shall be executed, under oath, by the party claiming the lien or by his attorney of record.” OCGA § 44-14-361.1 (a) (3). “ ‘This act is in derogation of the common law, and must be construed strictly. It creates a lien in favor of certain persons under certain circumstances, which overrides all other liens. Before this lien can be allowed, the party must show compliance with all the conditions, and bring himself within all the requirements and limitations of the statute.’ ” Kwilecki v. Young, 180 Ga. 602, 604 (180 SE 137) (1935). “Strict compliance with these sections is required. [Cits.]” King v. Rutledge, 208 Ga. 172, 175 (65 SE2d 801) (1951).

Decided October 23, 1987

Rehearing denied November 4, 1987

Michael J. Kramer, for appellant.

Robert K. Picker, Jr., for appellee.

The notice in this case was signed by appellant’s counsel but was not executed under oath. Appellant argues that due to counsel’s status as an officer of the court, he was not required to execute the notice under oath. See generally Whitehead v. State, 96 Ga. App. 382 (1) (100 SE2d 139) (1957). We find no support whatsoever for this proposition in the face of statutory language to the contrary. See, e.g., OCGA §§ 18-4-61; 44-7-50; 44-14-231 (requiring a statement of facts by an attorney to be made under oath). Rather, we find the cited language of the statute to be plain and unambiguous. Failure to comply with the statutory mandate of filing notice of the lien under oath renders the lien unenforceable. There being no factual dispute in this regard, the trial court properly entered summary judgment in favor of appellee. See Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438 (1) (339 SE2d 406) (1986); D & T Glass v. Barrow Enterprises, 172 Ga. App. 797 (325 SE2d 170) (1984); Statham Mach. &c. Co. v. Howard Constr. Co., 160 Ga. App. 466 (287 SE2d 249) (1981); see also 57 CJS, Mechanics’ Liens, § 167.

Judgment affirmed.

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


author: Benham, Judge.

text:
    74970.
    WEBSTER v. VULCAN MATERIALS COMPANY et al.
    (362 SE2d 420)
   Benham, Judge.

Appellant brought suit against appellees for damages done to his truck in a collision between it and a railroad car owned and operated by Vulcan. At the time of the collision, appellant’s truck was parked on the premises of an asphalt plant leased from Vulcan by appellee Blount Construction Company. The truck, along with other trucks, was parked in close proximity to a railroad track which had previously been separated from the parking area by a ditch and by an embankment four or five feet in height, made of asphalt, gravel, and dirt. It appeared to appellant that the embankment had been removed to increase the parking area since there had previously been barely enough room to turn the trucks. Appellant swore that he thought the track was inactive because, although he had been to that location many times, he had néver seen a train on that track before; because the rails appeared to be in disuse and non-operational and were in a neglected condition; because gravel from leveling the embankment and filling the ditch had been left strewn on the tracks; because he had observed at every other quarry to which he had been that a man was posted at active tracks, and no one was posted there; and because he and the other drivers were allowed to park there on that day. Although appellant’s testimony was essentially uncontradicted, the trial court granted summary judgment to appellees on the ground that appellant had assumed the risk of an obvious danger. This appeal is from that judgment.

“[T]he party opposing a motion for summary judgment is to be given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence [cit.] . . .” Washington v. Washington, 181 Ga. App. 848 (354 SE2d 25) (1987). Applying the foregoing rule to the evidence in this case, we find the grant of summary judgment erroneous. While evidence may be developed at a trial in this case authorizing a jury to find that appellant should have realized that the tracks were active and that it was dangerous to park his truck where he did, the state of the record does not presently demand that conclusion. A different result is not mandated by Kelley v. Hines, 25 Ga. App. 186, 187 (102 SE 921) (1920), cited by appellees for the proposition that “[a] railroad track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track. [Cit.]” That case is distinguishable from this one in that there is no indication in that case that the plaintiff, a railroad employee who went to sleep beside the tracks and was hit by a train, had any reason to believe that the tracks were not active. Here, there is evidence that appellant was unaware that the tracks were active and that he had reason to believe they were inactive. “As there is no evidence that the plaintiff had some actual knowledge of the danger or understood and appreciated the risk therefrom, we cannot say that as a matter of law in the exercise of ordinary care he should have avoided the [collision]. [Cits.]” Butler v. T. C. Brittain Co., 181 Ga. App. 774, 775 (353 SE2d 589) (1987).

Decided October 19, 1987

Rehearing denied November 4, 1987

Victoria J. Hoffman, for appellant.

E. Alan Miller, Albert J. DeCusati, Thomas S. Carlock, M. David Merritt, for appellees.

Judgment reversed.

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


author: Banke, Presiding Judge.

text:
    75153.
    TODD v. THE STATE.
    (362 SE2d 400)
   Banke, Presiding Judge.

Todd was convicted of two counts of theft by receiving stolen property and one count of unlawful possession of protected wildlife. At trial, he did not contest his guilt of the latter offense. Consequently, the present appeal involves only the two theft convictions.

Acting on a telephone tip from a “concerned citizen” advising that the appellant was in possession of certain protected wildlife which he intended to transport to Florida the following day, two Georgia Department of Natural Resources (“DNR”) rangers proceeded to the vicinity of a farm operated by the appellant but owned by his mother. There, from a vantage point on adjacent property, they observed an individual loading crates onto the bed of a truck. Later, after the truck had departed, the rangers proceeded onto the farm to investigate further, whereupon they observed two poultry crates containing protected species of wildlife. They also observed two vehicles on the property, one a Mercedes-Benz automobile and the other a Chevrolet Silverado pickup truck with no engine or rear bumper. The vehicle identification numbers had been removed from the dashboards of both these vehicles, but the vehicle identification number of the truck was discovered inside its glove compartment, enabling the agents to determine from the Georgia Bureau of Investigation that the pickup truck had been reported stolen. Based on this information, a search warrant was obtained authorizing the seizure of “stolen motor vehicles and component parts of stolen motor vehicles.” The enusing search resulted in the seizure of a box of veterinary supplies from the back of the Mercedes, bearing a shipping label naming the appellant as addressee. Through certain warranty information discovered in the glove compartment of the Mercedes, the agents were able to determine that it had also been reported stolen.

The appellant’s mother testified that the two vehicles had been on her property for approximately 11 months prior to their seizure. She stated that about an hour before the Silverado pickup truck had appeared there, the appellant had told her: “A man’s going to bring me something in. And you don’t have to go out. He knows where to unload.” She further stated that an individual she knew as Robert White had arrived shortly thereafter, transporting the pickup on a larger truck. The appellant’s mother testified that she had not observed the delivery of the Mercedes-Benz onto her property. Held:

1. The appellant asserts that the trial court erred in failing to grant his motion for a directed verdict of acquittal with respect to the two counts of theft by receiving stolen property.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should have known was stolen unless the property is received, disposed of or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a). While proof of knowledge that the property is stolen is an essential, “[t]his guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man. [Cits.]” Whitehead v. State, 169 Ga. App. 518, 519 (313 SE2d 775) (1984).

The circumstances surrounding delivery of the pickup truck, combined with the evidence that the vehicle identification numbers had been removed from both it and the Mercedes in violation of OCGA § 40-4-22, was sufficient to warrant an inference of guilty knowledge with respect to the receipt and possession of both vehicles. See generally Cheek v. State, 170 Ga. App. 230 (1) (316 SE2d 583) (1984). Reviewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could reasonably have found the appellant guilty of both counts of theft by receiving stolen property beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984).

2. The appellant asserts that the trial court erred in denying his motion to suppress the evidence seized from the farm prior to the issuance of the search warrant.

It is the relationship of the person with the property searched that gives rise to the protection of the Fourth Amendment. See Sanders v. State, 181 Ga. App. 117 (1) (351 SE2d 666) (1986). Here, the appellant asserted no possessory or other interest in either the vehicles or in the farm property where the search was conducted. “The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387). And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed. Id. The defendant had no legitimate claim to any expectation of privacy in the premises searched and may not now assert a valid claim of illegal search and seizure. [Cits.]” Staton v. State, 164 Ga. App. 464, 465 (297 SE2d 375) (1982). The trial court did not err in denying the motion to suppress.

Decided October 13, 1987

Rehearing dismissed November 4, 1987.

William R. Rice, Charles P. Rose, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

3. The appellant contends that the evidence failed to support the court’s charges to the jury regarding parties to a crime. See generally OCGA §§ 16-2-20 and 16-2-21. “A charge on this subject is error only where there is insufficient evidence, circumstantial or otherwise, to support the theory. [Cit.]” Evans v. State, 138 Ga. App. 460, 461 (226 SE2d 303) (1976). The circumstantial evidence in the present case supported the theory that a joint scheme existed between the appellant and White, whereby the appellant would receive and retain the stolen vehicles. Accordingly, this enumeration of error is without merit.

4. The appellant made a timely request for a charge that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Such a charge is required only when the evidence relied on for conviction is entirely circumstantial. Whittington v. State, 252 Ga. 168 (7) (313 SE2d 73) (1984). As we must agree with the appellant that the evidence against him with respect to the theft charges was wholly circumstantial, we hold that the trial court committed reversible error in refusing to give the requested instruction. Accordingly, the two theft convictions must be reversed.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.


text:
    75405.
    PALMER et al. v. FARMER et al.
    (362 SE2d 453)
   Banke, Presiding Judge.

This is an action by Tammy Bice Palmer and her father, Aaron Bice, to recover for injuries allegedly sustained by Tammy while she was riding as a passenger in the back seat of an automobile owned by Howard W. Farmer and being operated by his minor son, Michael Wayne Farmer. The complaint sought recovery for the medical expenses and for pain and suffering allegedly sustained by Tammy, as well as for the loss of her services allegedly experienced by her father. Howard W. Farmer was named as the sole defendant, both in his individual capacity and as next friend of his minor son. The case was tried before a jury, which awarded Tammy $1,200 for her medical expenses but awarded nothing for pain and suffering or for loss of services. This appeal is from the denial of the plaintiffs’ subsequent motion for new trial.

The colisión occurred at the intersection of a two-lane county road and a four-lane highway. Michael Wayne Farmer was headed west on the county road and was required both to stop at a stop sign and to yield to traffic on the four-lane highway prior to proceeding into the intersection. Farmer testified that he complied with his obligations in this regard and that he observed no approaching traffic on the highway before entering the intersection. His testimony to this effect was corroborated by that of a passenger who had been riding beside him in the front seat of the car. However, it was shown that when Farmer proceeded across the intersection, his vehicle nevertheless collided with a vehicle traveling north on the highway. Held:

1. The plaintiffs enumerate as error the denial of their motion for directed verdict on the issue of liability. “Issues of negligence . . . are generally for the jury, and a court should not decide them except in plain and indisputable cases. [Cits.] ‘Even where there is no dispute as to the facts, it is . . . usually for the jury to say whether the conduct in question met the standard of the reasonable man.’ [Cit.]” Collins v. McGlamory, 152 Ga. App. 114 (262 SE2d 262) (1979). We conclude that the evidence in this case did not establish as a matter of law that the collision occurred as the proximate result of negligence on the part of Michael Farmer. Moreover, in view of the jury’s ultimate verdict in the case imposing liability on the defendant, any error committed by the court in failing to direct a verdict in favor of the plaintiffs on the issue of liability must be deemed harmless. See generally Union Camp Corp. v. Guinn, 180 Ga. App. 391 (2) (349 SE2d 221) (1986).

2. The plaintiffs assert that the jury’s award of only $1,200 for medical expenses was inadequate because the parties had stipulated that the total amount of medical expenses incurred by Tammy subsequent to the collision was $1,498.05. While the parties did stipulate to the total amount of medical expenses incurred, there was no stipulation that all of these expenses were incurred as a result of the accident. Rather, this was a contested issue in the case. The evidence demonstrated that prior to the collision the injured plaintiff had been receiving medical treatment for a pre-existing condition which was characterized by symptoms similar to those allegedly caused by the collision.

Decided October 23, 1987

Rehearing denied November 4, 1987.

James T. Bennett, Jr., for appellants.

Robert M. Clyatt, Willie Linahan, for appellees.

It is well settled that “ ‘[a] verdict for less than the amount of the plaintiff’s proved medical expenses is not so inadequate as to require a new trial where there was testimony showing that the plaintiff’s complaints were at least partially related to her physical condition prior to the collision.’ [Cits.]” Trowell v. Weston, 154 Ga. App. 572, 573 (269 SE2d 74) (1980). Compare Smith v. Doe, 176 Ga. App. 711 (337 SE2d 367) (1985). Accordingly, this enumeration of error is without merit.

3. The plaintiffs contend that the jury’s failure to award any amount for pain and suffering was the result of gross mistake. When Tammy was examined in the hospital emergency room immediately following the accident, the treating physicians noted some bruises on her forehead and nose, a “slight” brain concussion and hematoma of the scalp, and a “minimal non-displaced fracture” of the facial bones. Additionally, Tammy complained of subsequent headaches and an inability to concentrate on her school work; however, the evidence demonstrated that she had been troubled by similar symptoms for several years prior to the accident.

“The amount of damages returned by the jury in ... a verdict, for pain and suffering, sustained because of alleged negligence, [is] governed by no other standard than the enlightened conscience of impartial jurors. . . .” Brown v. Garcia, 154 Ga. App. 837, 838 (270 SE2d 63) (1980). Under the circumstances, we do not find that the jury’s failure to award any amount for pain and suffering can be considered the result of “gross mistake.” We accordingly conclude that this enumeration of error is meritless.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    75528.
    CASWELL et al. v. JORDAN.
    (362 SE2d 769)
   Deen, Presiding Judge.

On August 14, 1984, appellee R. G. Jordan filed an action to set aside a conveyance against appellants Jerry and Jane Caswell, Bud Shimp and Local Bonding Company, Inc. The complaint alleged that Jerry Caswell was president of Local, Shimp was secretary and Jordan was a minority stockholder in Local, owning 102 shares of common stock constituting approximately 20 percent of the outstanding 500 shares. It was further set forth in the complaint that Local was incorporated in 1976, and that Jordan was one of the original incorporators and a 50 percent shareholder therein; that in 1979 Jordan and the holder of the other 50 percent of the shares of the corporation conveyed to Jerry Caswell one-third of the outstanding shares; that prior to 1979 the corporation had purchased the property described in the suit, which constituted all or substantially all of the assets of the corporation for several years; that after a series of stock transfers Jerry Caswell gained control of the corporation in February 1983, and since then has paid out large amounts of money on a frivolous lawsuit and “plundered and looted” the assets and taken money directly for his own benefit.

The complaint in this regard alleged that on November 15, 1983, Caswell pledged all of the real estate owned by Local as collateral for a $60,000 loan; that since that time, with the exception of $10,000 that was placed in escrow to pay unpaid fi. fa.’s, this money had been “wasted, dissipated, looted, plundered and out right embezzeled” from the corporation by Caswell; that on February 13, 1984, Caswell as president of Local and Shimp as secretary of Local conveyed all the real estate owned by Local to Caswell’s wife Jane Caswell; that this conveyance was made without any valid consideration therefor; and that Local’s real property was conveyed without any notice of or holding a stockholders’ meeting, or any prior approval or consideration of other stockholders. Asserting that this conveyance was illegal and carried out as a conspiracy between Jerry and Jane Caswell and Bud Shimp for the purpose of defrauding minority stockholders and looting the assets of the corporation, the complaint sought to set aside and declare the conveyance null and void, that a judgment be awarded for any monies fraudulently transferred from the corporation, for punitive damages in the amount of $250,000 and for attorney fees.

In response the defendants contended that the complaint failed to state a claim upon which relief could be granted; that Jordan lacked standing to assert the claims made in the complaint; that appellants were without knowledge of certain allegations; and that insofar as Jerry Caswell and Bud Shimp were concerned, all acts alleged to have been committed by them were done as officers of Local and not as individuals so that Jordan was entitled to no relief against them.

During discovery the following facts were disclosed. Jordan retired and sold his stock to Caswell in February of 1983, making Caswell the owner of two-thirds of the outstanding voting stock in Local. Smith, the owner of the other one-third of the stock, was prevented from writing checks or doing anything on behalf of the company without Caswell’s permission. When Caswell refused to second Smith’s motion that all past due debts of Local be paid, Smith offered to sell his stock to Caswell first for $36,000 then for $18,000, and when both offers were rejected Smith offered his stock to Jordan for $8,000. Jordan borrowed the money from his attorney and bought Smith’s one-third shares of the stock. Smith then went into the bail bond business in competition with Local. After Local’s business began to dissipate, a suit was initiated against Smith and the sheriff of Gwinnett County by Caswell on behalf of Local. Although Jordan became a party to the suit because he understood as secretary of Local he was obligated to do so, he shortly thereafter asked Caswell to dismiss the suit. When Caswell refused, Jordan resigned from the company as secretary on July 8, 1983. Shortly thereafter he attempted to inspect Local’s books, but was unable to do so because of lack of cooperation from Caswell and the accountant.

On December 12, 1983, Jordan’s attorney by certified letter to Caswell again requested that Jordan examine Local’s books of incorporation. Upon Caswell’s refusal Jordan filed suit seeking inspection of these books and although on February 15, 1984, an order was issued to allow Jordan access to the books, he was treated so rudely that he left the accountant’s office without inspecting them. On July 25,1984, Jordan transferred 65 shares of his stock to his attorney who also attempted to inspect the books and was refused. Jordan’s attorney then petitioned in his own name to inspect the documents and on October 15,1984 inspection was ordered. On that same date the attorney’s 65 shares of stock were transferred back to Jordan.

On November 18, 1985, Jordan dismissed Local as a party defendant and subsequently amended his complaint in the instant suit to seek $8,000 in actual damages for specified wrongful expenditures by Caswell, including transfers of Local’s funds to Jane Caswell and bail bond forfeitures. The final count of the amended complaint demanded punitive damages from Jerry and Jane Caswell because they still owned controlling stock in Local, and since a judgment in favor of Local against them would only result in money being paid to the corporation which was in the control of the Caswells and would make it probable that the Caswells would appropriate it to their own use, Local had been dismissed as a party to the suit and Jordan was entitied to all the damages sought. On January 20, 1987, a further amendment to the complaint was filed asserting that Jerry Caswell had continued to conduct business and execute bonds on behalf of Local, from which he received fees on behalf of Local which were converted to the personal use of Jane Caswell and none of the money was paid into the corporation or to Jordan, so that he was entitled to be awarded in addition to the judgment sought one-third of all such money received.

At trial evidence was presented showing that after Jordan resigned, Local was no longer doing any bail bond business at the Gwinnett County jail, but that Caswell continued to pay money out of the company. It was also shown that when Caswell bought his shares in Local it owned 17 acres of property valued at $119,000, and owned this property at the time of Jordan’s resignation. On November 15, 1983, Caswell executed a deed to secure debt against the property endorsed by Jane Caswell, and borrowed $60,000. After paying off closing costs and the existing mortgage on the property, the remaining sum of $36,852.41 was paid into Local. During the next three months over $30,000 in checks payable to Jerry and Jane Caswell were written on Local’s account. Caswell as president of Local also declared dividends in 1984 in the amount of $18,736.56 to himself and $9,368.28 to Jordan, although Jordan never received any money from the corporation. The money was paid to Caswell by means of caricellation of a $14,000 debt owed to Local by Mrs. Caswell and transfer of other cash and property.

On February 14, 1984, Caswell, as president of Local, deeded the 17 acres of land owned by Local to his wife without any notice to other stockholders or a stockholders’ meeting. According to Caswell, the consideration for this transfer was that Mrs. Caswell had paid the interest to the bank on the $60,000 loan. On March 5, 1984, Mrs. Caswell became a stockholder in Local for the first time, having never previously been a stockholder, officer or employee thereof. After the property was deeded to her, Mrs. Caswell listed it for sale and on May 15, 1984, executed a sales contract providing that she would be paid $100,000 cash at closing. However, because of the instant lawsuit she was unable to sell the property. After Caswell was questioned on deposition about the sale of the property, at his request Mrs. Caswell deeded the land back to Local about a year later. Thereafter she purchased the security deed from the bank and attempted to foreclose on it. A temporary restraining order was issued upon Jordan’s petition for liquidation of Local to avoid the foreclosure in September 1985, and later by agreement of counsel the property was sold and funds in the approximate amount of $150,000 received from the sale were deposited in the registry of the court.

A motion for directed verdict was made by appellants at the close of the plaintiff’s evidence and renewed at the close of their evidence. Prior to the charge conference Jordan withdrew his claim for actual damages because the corporation was no longer a party to the suit, and sought nominal damages instead. The jury returned a verdict against Mr. and Mrs. Caswell, jointly and severally, in the amount of one dollar in nominal damages, $70,000 as punitive damages and $8,000 for attorney fees. Motions for judgment notwithstanding the verdict and for new trial were denied and this appeal was filed by the Caswells.

1. Appellants contend that a minority shareholder may not bring a direct action against an officer or director of a corporation in the absence of “exceptional situations,” which were not present in the instant case. On the contrary, when the “realistic objectives” of this suit are examined under the standards established by the Supreme Court in Thomas v. Dickson, 250 Ga. 772, 774 (301 SE2d 49) (1983), to determine if a direct action is proper, the reasons for requiring a derivative action are extinguished. “The general rule is that a shareholder seeking to recover misappropriated corporate funds may only bring a derivative suit. OCGA §§ 14-2-153, 14-2-123 [and other cits.] . . . The reasons underlying the general rule are that 1) it prevents a multiplicity of lawsuits by shareholders; 2) it protects corporate creditors by putting the proceeds of the recovery back in the corporation; 3) it protects the interests of all shareholders by increasing the value of their shares, instead of allowing a recovery by one shareholder to prejudice the rights of others not a party to the suit; and 4) it adequately compensates the injured shareholder by increasing the value of his shares. [Cits.]” (Indention omitted.)

Here, as in Thomas v. Dickson, supra, Jordan is the sole injured shareholder, the only other shareholders being the Caswells; there was no evidence of any creditor in need of protection; Local is a closely held corporation with no ready market for the sale of Jordan’s shares, so he would not be adequately compensated by a corporate recovery; and since Jordan is the only injured shareholder, there can be no prejudice to others not a party to the suit. Therefore, none of the underlying reasons for requiring that a recovery be had in favor of the corporation exist here. Accord Pelletier v. Schultz, 157 Ga. App. 64 (36) (276 SE2d 118) (1981).

2. Appellant’s argument that the dismissal of Local as a party to the suit was fatal to Jordan’s claim also lacks merit. After Jordan filed a motion to disqualify appellants’ attorney from representing both Local and the Caswells because of a conflict of interest, the trial court ruled on July 16, 1985, that Local was not a necessary party since no relief was sought from the corporation and, accordingly, that Jordan could have Local discharged as a defendant. In conformity with this ruling Jordan dismissed Local without prejudice on November 18,1985. No objection was made by appellants either to the ruling or to the dismissal, nor was any attempt made to have the suit against the Caswells dismissed or to prevent the case from going to trial for a direct recovery against them. “Where it is claimed that the plaintiff has failed to join an indispensable party, the issue must be raised by motion to dismiss filed pursuant to OCGA § 9-11-19 . . . Otherwise, such defenses are deemed waived. [Cit.]” Klorer-Willhardt v. Martz, 166 Ga. App. 446, 447 (1) (304 SE2d 442) (1983).

3. Appellants’ assertion that Jordan is barred from recovery by his failure to seek relief within the corporation and his lack of explanation for such failure is simply belied by the record. The persistent efforts of both Jordan and his attorney to examine the books of the corporation were thwarted in every instance by Caswell, and the acts of alleged wrongdoing were all carried out without notice or a meeting of the stockholders, in this case only Jordan himself. Jordan’s complaint as amended was in compliance with OCGA § 14-2-123 (c) in alleging with particularity his efforts to secure the initiation of a derivative action on behalf of the corporation and his reasons for deciding not to do so. Whether or not it was reasonable to require Jordan to seek relief within the corporation before he filed his suit was a question which was argued before the jury, and the jury was properly charged on the issue and found in Jordan’s favor. Appellants’ motions for directed verdict and for judgment notwithstanding the verdict on this ground were correctly denied. See American Game &c. Svcs. v. Knighton, 178 Ga. App. 745 (12) (344 SE2d 717) (1986).

4. The questions of bad faith and conspiracy were also properly presented to the jury. OCGA § 14-2-152. See generally Cook v. Robinson, 216 Ga. 328 (116 SE2d 742) (1960); Pelletier v. Schultz, supra. “Factual findings and credibility issues are for the trier of fact [here the jury] and an appellate court will not disturb such findings if there is evidence to support those findings. [Cits.] We find no reason to disagree with the [jury] in this case.” Brown v. WTA/CHC, 172 Ga. App. 636, 637 (324 SE2d 205) (1984).

5. In view of our determination that the suit could be brought directly against the Caswells, appellants’ enumeration of error in regard to the propriety of a charge allowing an award of nominal damages in a shareholder’s derivative action against the corporation need not be considered. Nor was there any error in the award as made. “A plaintiff may recover nominal damages not only where his actual damages are minute, but also where he has not proved his actual damages by a preponderance of the evidence to the satisfaction of the jury.” Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 254 (3) (329 SE2d 918) (1985); rev’d in part on other grounds, 254 Ga. 734 (334 SE2d 308) (1985).

6. “OCGA § 14-2-123 (e) does not prevent a shareholder’s recovery of costs and attorney fees directly from the corporate officers responsible for the misconduct giving rise to the derivative action.” Grizzard v. Petkas, 173 Ga. App. 629, 630 (2) (327 SE2d 514) (1985). Thus the trial court did not err in charging the jury that Jordan was allowed to recover such expenses and fees.

7. Appellants object to the charge on punitive damages and complain that the award of punitive damages was excessive. Since OCGA § 51-12-5 authorizes the jury to award punitive damages only as “additional” damages, there must first be a right under the pleadings and evidence to recover general, nominal or special damages. Beverly v. Observer Pub. Co., 88 Ga. App. 490 (4) (77 SE2d 80) (1953). Where an injury is of a character incapable of being estimated in money or the injury is small, nominal damages only are given. OCGA § 51-12-4; Hodsdon v. Whitworth, 173 Ga. App. 863 (1) (328 SE2d 753) (1985). Punitive damages may be awarded in a suit based in tort. OCGA § 51-12-5. “The relationship of a corporate officer or director to the corporation and its stockholders is fiduciary or quasi-fiduciary, which requires that they act in utmost good faith. [Cits.] ‘Directors and officers in the management and use of corporate property in which they act as fiduciaries and are trustees are charged with serving the interests of the corporation as well as those of all the stockholders.’ [Cit.] For a violation of these duties resulting in waste of the corporate assets or injury to such property, the directors and managers of a corporation are liable to account to the stockholders. [Cit.] The plaintiff was a major stockholder (1/3). A breach of these fiduciary duties is sufficient to support an award of punitive damages arising out of such tortious misconduct.” Pelletier v. Schultz, 157 Ga. App., supra at 66.

The charge given on the subject of punitive damages was a correct statement of the law, and appellants’ objection thereto was based only upon its contention that Jordan was not entitled to a direct recovery against them, which we have previously determined adversely to their position. The question of imposition of punitive damages is ordinarily for the jury to decide and the controlling question for the appellate court is whether there was any evidence to support their award. Dempsey Bros. Dairies v. Blalock, 173 Ga. App. 7 (1) (325 SE2d 410) (1984). The evidence here was sufficient.

Nor can we agree as a matter of law that the award of $70,000 in punitive damages for appellants’ fraudulent acts was so excessive as to demand a new trial. “Determination of the amount of punitive damages necessary to deter recurrences of such conduct is rightfully a jury function and we will only disturb their determination if it is blatantly egregious. [Cits.]” Mercer v. Woodard, 166 Ga. App. 119, 127 (11) (303 SE2d 475) (1983). “This court cannot find that the jury’s verdict infers bias and prejudice or that the amount is so excessive as to demand a reversal. Under such circumstances the measure of punitive damages is within the enlightened conscience of the jury. [Cits.]” Jim Walter Corp. v. Ward, 150 Ga. App. 484, 492 (5) (258 SE2d 159) (1979), rev’d on other grounds, 245 Ga. 355 (265 SE2d 7) (1980). Accord King v. Towns, 102 Ga. App. 895 (8) (118 SE2d 121) (1960).

Decided October 20, 1987

Rehearing denied November 4, 1987

Tom Pye, for appellants.

Wynn Pelham, for appellee.

Accordingly, the denial of appellants’ motions for judgment notwithstanding the verdict and for new trial was proper.

Judgment affirmed.

Pope, J., concurs. Birdsong, C. J., concurs in the judgment only.


text:
    74610, 74611.
    BATCHELOR v. TUCKER; and vice versa.
    (362 SE2d 493)
   Benham, Judge.

Batchelor, a real estate broker, and Tucker, the owner of certain commercial real estate, entered into a real estate listing contract. When Tucker refused to sell the property for the price he had requested in the listing contract to a purchaser procured by Batchelor, Batchelor filed suit to recover the broker’s commission that would have been due him had the sale been consummated. Tucker filed a counterclaim, asserting that Batchelor was guilty of inceptive fraud, bad faith, and stubborn litigiousness. The trial court directed a verdict for Batchelor on Tucker’s counterclaim, and a jury found in favor of Tucker on Batchelor’s claim. In Case No. 74610, Batchelor appeals from the denial of his motion for directed verdict on his claim; in Case No. 74611, Tucker seeks reversal of the directed verdict granted Batchelor on the counterclaim.

1. By means of the exclusive listing agreement entered into by Batchelor and Tucker, the property’s listing price and purchase price was set at $305,000, with a 10 percent commission to Batchelor if, during the three-month term of the listing agreement, the property was sold or a firm contract for the sale of the property was entered into by Tucker and a purchaser. No other terms or conditions of sale were mentioned in the listing agreement. The eight-page real property purchase agreement signed by the prospective purchaser set forth a purchase price of $305,000 and several conditions precedent to its performance, among them approval of the site from the franchisor, the purchaser’s approval of a soil test report to be provided by Tucker, and the securing of the appropriate governmental permits and approvals. If any of the conditions precedent were not fulfilled on or before closing, the purchaser had the option to terminate the agreement and recoup the earnest money previously paid, or to obtain a 30-day extension upon payment of an extension fee, to be applied to the purchase price. If the purchaser defaulted, the proposed contract limited the seller’s liquidated damages to the earnest money.

Batchelor asserts he was entitled to a directed verdict on his claim because he presented evidence that he had secured a buyer ready, willing, and able to meet the purchase price set in the listing agreement by the seller. The seller testified that, while the purchase price was acceptable to him, the conditions precedent set forth in the purchaser’s offer were unacceptable. Batchelor countered this argument with the contention that the conditions to which Tucker objected should not deprive Batchelor of his commission since they are “standard in the industry and necessary to protect a purchaser in being able to use the property as contemplated by the offer of sale . . . .” In essence, it is Batchelor’s argument that the additional conditions proposed by the prospective buyer and rejected by Tucker were minor and immaterial variations of the listing agreement.

“The broker’s commissions are earned when, during the agency, he finds a purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.” OCGA § 10-6-32. “Proof of an offer by the proposed purchaser to buy on terms not stipulated by the owner will not entitle the plaintiff broker to his commissions. [Cits.] Even a slight variation will prevent the agent from recovering. [Cits.]” Clover Realty Co. v. Gouyd, 153 Ga. App. 64 (1) (264 SE2d 547) (1980). See also Bentley Group v. Paces Ferry &c. Assoc., 180 Ga. App. 818 (350 SE2d 826) (1986). This court has recently concluded that the closing date and the amount of liquidated damages are negotiable terms, not to be set by one party when not mentioned in the listing agreement. Bentley Group, supra. Furthermore, the provision permitting the purchaser to cancel the contract at its discretion “constituted a contingency beneficial solely to the purchaser and detrimental to the seller, and the listing agreement made no provision for such contingencies. It too is a variation contrary to the ‘terms stipulated.’ . . . [T]he fact that [the amount of earnest money] was the contractual limitation of damages is also non-conforming.” Id. at 819-820. In light of the variations between the terms of the listing agreement and the terms of the offer to buy presented by the prospective purchaser, it was not error to deny Batchelor’s motion for directed verdict.

2. Through his cross-appeal, Tucker seeks reversal of the trial court’s grant of Batchelor’s motion for directed verdict on Tucker’s claims that Batchelor was guilty of inceptive fraud and breach of fiduciary duty, and for expenses of litigation under OCGA § 13-6-11.

Decided November 4, 1987.

Edward S. Sell III, Lori L. Chapman, for appellant.

G. McGregor Jordan, Jr., for appellee.

Quinton S. King, amicus curiae.

When failure to perform a promised act is coupled with evidence that the promisor made the promise with the intention not to perform, inceptive fraud is shown. Cowart v. Gay, 223 Ga. 635, 637 (157 SE2d 466) (1967). In the case at bar, there was no evidence that Batchelor éntered into the listing agreement with the intent not to perform. The direction of a verdict in favor of Batchelor was not error. OCGA § 9-11-50 (a).

Tucker asserts that he presented evidence sufficient to withstand Batchelor’s motion for directed verdict on the claim Batchelor had breached his fiduciary duty to Tucker. Even if it is assumed that Batchelor did, indeed, breach his fiduciary duty, Tucker failed to prove the damage he suffered as a direct consequence of that breach. While he asserted he expended $40 to clean up the property, that expense was not a result of any of Batchelor’s actions which Tucker put forth as evidence of a breach of fiduciary duty. In light of Tucker’s failure to establish that Batchelor’s alleged violation of duty caused Tucker actual loss or unjustly enriched Batchelor, it was not reversible error to direct a verdict in favor of Batchelor. 12 AmJur2d 836, Brokers, § 83.

It was appropriate to direct a verdict in favor of Batchelor on Tucker’s claim for expenses of litigation under OCGA § 13-6-11 in light of the resolution of Tucker’s claims against Batchelor. Furthermore, Tucker’s expert testimony concerning the reasonableness of the fee charged did not distinguish between the amount expended in defense of Batchelor’s claim and the amount expended in pursuit of Tucker’s counterclaim. Since there can be no recovery under OCGA § 13-6-11 for expenses incurred in the defense of a claim (DuBose v. Box, 246 Ga. 660 (5) (273 SE2d 101) (1980)), and Tucker failed to prove the attorney fees involved in pursuit of his counterclaim, direction of a verdict in favor of Batchelor was appropriate. See First Bank of Clayton County v. Dollar, 159 Ga. App. 815 (4) (285 SE2d 203) (1981); Eways v. Ga. R. Bank, 806 F2d 991 (11th Cir. 1986).

Judgments affirmed.

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


text:
    74860.
    ITT BUSINESS SERVICES CORPORATION et al. v. ROBERTS.
    (362 SE2d 496)
   Pope, Judge.

Plaintiff ITT Business Services Corporation (hereinafter ITT-Missouri) brought this action for declaratory judgment against defendant Tax Commissioner of Fulton County, seeking the release of certain real property from a tax lien. By amendment, ITT Commercial Finance Corporation (hereinafter ITT-Delaware), a commonly owned and controlled corporation, was added as a second party plaintiff. Plaintiffs allege that one or both of them are owners or the holders of an equity, lien, or interest in or on real property returned or assessed of American Food Purveyors, Inc. (hereinafter AFP) located in Atlanta, Fulton County. As to that realty, plaintiffs contend they are entitled to the protections of OCGA §§ 48-5-25 and 48-5-28 (b) against defendant’s recorded liens for 1981 and 1982 personal property taxes of AFP. This appeal arises from the trial court’s grant of defendant’s motion for summary judgment.

The facts of record are substantially without dispute. AFP operated a wholesale food business and food processing plant and owned certain improved real estate located in Atlanta, Fulton County. In 1979 AFP borrowed money from the Citizens Trust Bank and executed a deed to secure debt in favor of the bank on the real property. Beginning in 1980 ITT-Delaware made the first of a series of loans to AFP. These loans were modified from time to time and secured by two deeds to secure debt on the real property and by Uniform Commercial Code financing statements on the personal property of AFP. On or about March 1, of 1981 and of 1982, AFP filed a schedule of its assets, liabilities and net worth for tax years 1981 and 1982, respectively, with the taxing authorities of Fulton County. Ad valorem taxes for 1981 and 1982 were assessed on the real and the personal property of AFP as of January 1, 1981 and January 1,1982, respectively. Based upon the assessments, AFP was billed for the respective ad valorem taxes.

As of January 1, 1983 ITT-Delaware had loaned millions of dollars to AFP, which was then in default on its loans. ITT-Delaware’s management determined that AFP’s financial situation was so dire that it should foreclose on its security. A title search made at that time showed an outstanding recorded judgment lien by a creditor. ITT-Delaware was alerted by its Georgia counsel to the doctrine of merger. Counsel advised, “[I]f the deed in lieu of foreclosure were recorded, that judgment creditor’s interest would be superior to the fee interest to be acquired through that deed. Of course, it was recognized that title was being taken not in the name of [ITT-Delaware], the holder of the mortgage, but, rather, in the name of [ITT-Missouri]. The thinking was that in that manner our mortgage would be protected from application of [the] doctrine of merger and, if necessary, we could foreclose out any subsequent mortgage or lien creditor. Of course, because of the affiliation of the two companies, whether that ploy will work is open to some question.”

On January 23, 1983 AFP executed a warranty deed for the real property to ITT-Missouri subject to the deeds to secure debt held by Citizens Trust Bank and ITT-Delaware. The consideration of the deed was $1,000,000 credit by ITT-Delaware against the account debt of AFP. ITT-Missouri was designated as the grantee by common management to purchase the real property of AFP in 1983 in order to protect the interests of ITT-Delaware in the property. On January 27, 1983 AFP executed a bill of sale on its personal property to ITT-Missouri.

On April 19, 1983 and June 29, 1983 fieri facias (fi. fas.) for personal property taxes owed by AFP for 1981 and 1982 were recorded on the general execution docket in Fulton County. Simon Visser, a vice president of both ITT-Delaware and of ITT-Missouri, knew that AFP owed ad valorem taxes to the City of Atlanta and to Fulton County in late 1982 or early 1983. In May 1983 Citizens Trust Bank commenced foreclosure proceedings on the real property. On June 7, 1983 ITT-Missouri bought the real property at a judicial sale. The consideration for the purchase was $331,647.42 cash supplied by ITT-Delaware.

On August 10, 1984 ITT-Missouri agreed in writing to sell the real property together with the personal property located thereon to Thomas L. Moore. On the dates of August 23 and 24, 1984, ITT-Missouri executed the following instruments: (a) a bill of sale to Thomas L. Moore for the personal property of AFP; (b) a quitclaim deed to Thomas L. Moore for the real property; and (c) an owner’s affidavit with respect to the real property and the personal property located thereon. In consideration of the above, Moore delivered a promissory note to ITT-Missouri. On August 23, 1984 ITT-Delaware released its 1980 deed to secure debt on the real property and ITT-Missouri indemnified Thomas L. Moore with respect to 1981 and 1982 personal property ad valorem taxes on any and all personal property located on the premises of the real property.

On or about August 31, 1983 an attorney for plaintiffs tendered a check to defendant in the amount of $8,980.42 in payment for ad valorem taxes due on the personal property of AFP for 1981 and 1982 and requested a release pursuant to OCGA § 48-5-25. Said tender was refused by the defendant, and no release was issued. On or about July 3, 1984 defendant levied two fi. fas. on the real property and served notice that he would proceed to sell the property in September 1984 to satisfy tax fi. fas. against AFP for 1981 and 1982 taxes.

By order of court entered in this action in August 1984, the real property and personal property located thereon were sold free and clear of any tax liens subject to payment by ITT-Missouri from the proceeds of such sale of the sum of $85,979.89 for personal property taxes of AFP for tax years 1981 and 1982, including interest, penalties and costs.

As is pertinent to the issues in this case, OCGA § 48-5-25 provides: “The owner or the holder of any equity, lien, or interest in or on property returned or assessed with other property for taxes shall be allowed to pay the taxes assessed against any one or more pieces of such property: ... by paying the proportionate part of the taxes represented by such property according to the valuation in the return or assessment. . . . The officials charged with the collection of taxes . . . shall be required to accept payment of the taxes when tender is made as provided in this Code section, shall issue a receipt showing the payment, and shall execute a release of the property from the lien for taxes.” OCGA § 48-5-28 (b) provides: “The title and operation of a security deed shall be superior to the taxes assessed against the owner of property when the tax represents an assessment upon property of the owner other than that property specifically subject to the title and operation of the security deed.”

Plaintiffs argue that ITT-Delaware’s use of its “sister corporation,” ITT-Missouri, should not deprive it of the benefits of the foregoing statutes. In support of this contention, plaintiffs cite the affidavit of the vice president of ITT-Delaware: “ITT Commercial Finance Corp. ... is a Delaware corporation [ITT-Delaware], and a wholly-owned subsidiary of ITT Finance Corporation. ITT Business Services Corporation ... is a Missouri corporation [ITT-Missouri], organized in 1978 as a wholly-owned subsidiary of [ITT-Delaware]. In 1980, [ITT-Delaware] transferred the stock of the Missouri corporation to ITT Financial Corporation. After the stock transfer . . . , although the Missouri corporation and [ITT-Delaware] were technically “sister corporations,” the Missouri corporation was at all times and is currently operated as a de facto subsidiary of [ITT-Delaware], as shown by the following: (a) all the directors and the officers of the Missouri corporation have been and are also directors and/or officers of [ITT-Delaware], and, in particular, Melvin F. Brown was and is the president of both corporations; and (b) the managers of the Missouri corporation report directly to the managers of [ITT-Delaware]; and (c) the results of the Missouri corporation’s operations are consolidated into the statements of [ITT-Delaware] results; and (d) all funds required by the Missouri corporation for its operations have at all times been provided by [ITT-Delaware. ITT-Delaware and ITT-Missouri] have a vital concern about and a direct tangible interest in the business operations of each other. [ITT-Delaware] caused [ITT-Missouri] to take title to the former American Food Purveyors, Inc. property in order to provide protection (against intervening judgment lien creditors) that would not have been available had [ITT-Delaware] taken title and its mortgage been eliminated by merger. All consideration paid in connection with [ITT-Missouri’s] acquisition of title to the property was provided by [ITT-Delaware].”

In essence plaintiffs argue that based on the foregoing factors, we should disregard the corporate entity of ITT-Missouri in favor of ITT-Delaware for tax purposes, notwithstanding ITT-Delaware’s use of the corporate entity of ITT-Missouri as the grantee of the real estate to avoid the doctrine of merger. “Volumes have been written on the subject of ‘piercing the corporate veil,’ etc. Many theories have been advanced as to the reasons why courts should disregard the separate corporate existence of a one-man corporation or a subsidiary corporation. By whatever means the conclusion to disregard corporate entity is arrived at, when it is reached it merely means that under the facts of the case the person or corporation in control of the subservient corporation is held liable for the acts or omissions of the subservient corporation. No hard and fast rule can be laid down, but it seems clear that so long as the law authorizes the formation of subservient corporations, the law would defeat its own purpose by disregarding its own creature merely because a parent corporation, or other sole owner, controls the subsidiary, or one-man corporation, and uses it and controls it to promote his or its ends.” Condenser Svc. &c. Co. v. Brunswick Port Auth., 87 Ga. App. 469, 474 (74 SE2d 398) (1953). “This is true also in respect to tax problems.” Schwob Mfg. Co. v Huiet, 69 Ga. App. 285 (1) (25 SE2d 149) (1943). There is no evidence that the incorporation of ITT-Missouri was a sham or that it was used to defeat a public convenience, to justify wrong, protect fraud, defend crime, or any other reason which in equity and good conscience would justify the disregard of ITT-Missouri’s separate entity. See, e.g., Boafo v. Hosp. Corp. of America, 177 Ga. App. 75 (338 SE2d 477) (1985); Jenkins v. Judith Sans Intl., 175 Ga. App. 171 (1) (332 SE2d 687) (1985), and cits.; Collins v. Booker, 129 Ga. App. 824 (1) (201 SE2d 676) (1973), and cits. See generally Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69 (3) (354 SE2d 628) (1987).

In light of the foregoing, we find this case controlled by the holding in Brown v. Nash, 216 Ga. 303 (116 SE2d 227) (1960), which we paraphrase here: At the time plaintiff ITT-Missouri purchased the property in January of 1983, the liens for the years 1981 and 1982 as to the assessment of real and personal property owned by AFP had become fixed. At the time the liens became effective and at the time it purchased the property ITT-Missouri was not the owner or the holder of any equity, lien, or interest in the real estate which it purchased. It bought the property with knowledge of the existence of the liens, covering the personal property taxes, against the property. It obtained no better title than that held by its grantor. AFP could not have obtained a release of the real property without payment of the personal property taxes. Neither can its grantee, ITT-Missouri.

Decided November 4, 1987.

John M. Sikes, Jr., for appellants.

Harold T. Daniel, Jr., for appellee.

“The case of Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285 (46 SE2d 578) [(1948)], is not applicable here. There the party seeking to pay taxes assessed against a trac[t] of land and to obtain a release of the lien without paying the taxes assessed against the personal property of the taxpayer, held a deed to secure debt to the real estate at the time the taxes were assessed.” Brown v. Nash, 216 Ga. at 305, supra.

The trial court properly entered summary judgment in favor of defendant tax commissioner.

Judgment affirmed.

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


text:
    74900.
    MOODY v. THE STATE.
    (362 SE2d 499)
   Benham, Judge.

Richard Lewis Moody brings this appeal from his conviction in a bench trial of carrying a concealed weapon and trafficking in cocaine.

The facts of the case are by and large undisputed. The arresting officer testified that while responding to a call in an apartment complex in DeKalb County, he noticed appellant exiting an apartment with a package in his hand, but that upon seeing the officer, appellant immediately turned and went back into the apartment. Feeling that there was something suspicious about appellant’s conduct, the officer continued to patrol the complex, and within a short period of time once again noticed appellant exit the apartment and then go back in upon seeing the officer. The officer called for a backup unit and left the complex. Shortly thereafter, appellant drove away from the complex, and the officer followed him. After traveling only 100 yards from the complex, appellant made a right turn into a shopping center without giving a turn signal, whereupon the officer pulled appellant’s vehicle over. As the officer approached him, appellant exited his vehicle and the officer asked to see his driver’s license. While standing near the door checking appellant’s driver’s license, the officer saw what he recognized as the handle of a gun protruding from under the driver’s seat of appellant’s vehicle. The officer asked appellant if he had a license to carry a concealed weapon, and appellant answered in the negative. Appellant was then placed under arrest for the traffic violation and for carrying a concealed weapon. The gun, a loaded .357-caliber Magnum pistol, was removed from underneath the driver’s seat, and an inventory search of the car incident to the arrest revealed scales, a brown paper bag containing cocaine, and 16 baggies containing cocaine. Lab reports showed the substance to weigh 112 grams, 87.6 grams of which was pure cocaine.

1. Appellant contends that there was insufficient evidence to convict him of carrying a concealed weapon. OCGA § 16-11-126 (a) provides: “A person commits the offense of carrying a concealed weapon when he knowingly has or carries about his person, unless in an open manner and fully exposed to view, any bludgeon, metal knuckles, firearm, knife designed for the purpose of offense and defense, or any other dangerous or deadly weapon or instrument of like character outside of his home or place of business, except as hereinafter permitted under this Code section.” Subsection (d) provides: “This Code section shall not forbid the transportation of any firearm by a person who is not among those enumerated as ineligible for a license under Code Section 16-11-129, provided the firearm is enclosed in a case, unloaded, and separated from its ammunition. This Code section shall not forbid the transportation of a loaded firearm in any private passenger motor vehicle in an open manner and fully exposed to view or in the glove compartment of the vehicle.”

Appellant, citing, inter alia, this court’s rulings in McCroy v. State, 155 Ga. App. 777 (272 SE2d 747) (1980); and Goss v. State, 165 Ga. App. 448 (301 SE2d 662) (1983), contends that since the butt of the gun was showing, it was not a “concealed weapon.” However, appellant’s reliance on McCroy and Goss is misplaced. “The law on this particular question was . . . announced by Judge Lyon in delivering the opinion in [Stockdale v. State, 32 Ga. 225 (1861)]; that is, the legislature intended to compel persons who carried such weapons to so wear them about their persons that others who came in contact with them might see that they were armed and dangerous persons, who were to be avoided in consequence.” Stripling v. State, 114 Ga. 538, 540 (40 SE 733) (1901). The amount of exposure of the weapon is not as important as the method in which the gun is carried. Accord Gainer v. State, 175 Ga. App. 759 (334 SE2d 385) (1985). As was pointed out in Stripling, the law forbidding the carrying of concealed weapons was designed to put those dealing with such persons on notice so that they could govern themselves accordingly. Here, a gun slightly protruding from under the seat of a vehicle does not put others on notice and, therefore, is not “fully exposed” within the statute governing such weapons. Hence, appellant’s enumeration of error is without merit.

Decided November 4, 1987.

R. Michael Whaley, for appellant.

Robert E. Wilson, District Attorney, R. Stephen Roberts, Barbara Conroy, Assistant District Attorneys, for appellee.

2. In his remaining enumeration of error, appellant contends that the trial court erred in denying his motion to suppress the cocaine seized as a result of the search of his vehicle following his arrest, and in allowing into evidence an incriminatory statement he made to the arresting officer concerning his role as a middle man in a cocaine transaction. The thrust of appellant’s argument for suppression is that both the statement and the discovery of the cocaine were the fruits of an arrest which was illegal because appellant’s actions did not constitute the crime of carrying a concealed weapon. However, since we have determined in Division 1 of this opinion that appellant’s acts did constitute a crime, appellant was legally arrested. Therefore, these enumerations lose their undergirding and must fall.

Judgment affirmed.

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