author: Sognier, Judge. Beasley, Judge,

text:
    73850.
    GILMORE INTERNATIONAL TRAVEL, INC. v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.
    (358 SE2d 279)
   Sognier, Judge.

Gilmore International Travel (GIT) brought suit against its lessor, The Equitable Life Assurance Society of the United States (Equitable), for fraud and breach of contract in regard to Equitable’s alleged violation of a covenant in the parties’ lease agreement that provided Equitable would not lease other premises in its complex to businesses similar to GIT. The trial court denied Equitable’s motion for summary judgment as to GIT’s fraud and breach of contract counts but granted partial summary judgment to Equitable on the issue of lost profits. GIT appeals.

The trial court’s order stated: “Concerning the issue of lost profits, partial summary judgment is granted to [appellee] as follows: [Appellant] will not be permitted at trial to recover from [appellee] for lost profits. However, at trial this court will consider whether evidence of lost profits, loss of good will, etc., are relevant for the limited purpose of establishing the value of the leasehold in accordance with the rule enunciated in Carusos, et al. v. Briarcliff, Inc. etc. et al., 76 Ga. App. 346 (45 S.E. 2d. 802) (1947).”

1. Appellant contends the trial court erred by ruling that appellant is precluded from recovering lost profits from appellee as a result of the alleged breach of contract. “The measure of damages recoverable for a lessor’s breach of covenant not to rent other stipulated premises for a competing business is the difference in value between the plaintiffs’ leasehold with the covenant against competition unbroken and the same leasehold with the covenant broken. The value of said leasehold is not controlled by the stipulated rental therefor, nor the profits which the tenant could have realized from the operation of his business without the adjacent competing business. However, allegations and evidence of loss of profits are material to show the damage sustained by the lessee, in accordance with the rule herein stated. [Cits.] . . . [E]vidence [of loss of profits] is admissible and pleadings in support thereof proper in order that the jury may properly estimate the value of the leasehold estate before and after the covenant is broken. Therefore, a recovery for loss of profits occasioned by a breach of contract when properly pleaded and proved may be indirectly had.” Carusos, supra at 351-352 (2). See also 49 AmJur2d, Landlord & Tenant, §§ 162; 188. We do not find appellant’s arguments seeking to distinguish the controlling language of Carusos to be persuasive. The cases cited by appellant, Bass v. Carpenter, 152 Ga. App. 298 (262 SE2d 578) (1979) and Wideman v. Selph, 71 Ga. App. 343 (1, 2) (30 SE2d 797) (1944), both involve lessees prevented by their lessors from cultivating or harvesting crops on the rental property and are thus inapposite to the case sub judice. The trial court’s grant of partial summary judgment to appellee on the issue of the recovery of lost profits as a result of the alleged breach of contract is accordingly affirmed.

2. Appellant contends the trial court erred by ruling that appellant is precluded from recovering lost profits from appellee as a result of the alleged fraud. “ ‘It may be stated as a general rule that in tort actions a recovery may be had for loss of profits, provided their loss is the proximate result of the defendant’s wrong and they can be shown with reasonable certainty. . . .’ [Cit.]” Norris v. Pig’n Whistle, 79 Ga. App. 369, 373 (1) (53 SE2d 718) (1949). See also Groover v. Dickey, 173 Ga. App. 73, 75 (6) (325 SE2d 617) (1984); Cobb & Eldridge, Ga. Law of Damages (2d ed.), § 2A-8. Thus, the trial court’s ruling disallowing appellant from recovering lost profits is, as to the fraud count, erroneous as a matter of law.

Appellee argues, however, that the trial court’s grant of partial summary judgment was proper because the evidence of lost profits submitted by appellant was insufficient. After finding that questions of fact exist as to appellant’s fraud count, the trial court granted partial summary judgment to appellee on the issue of lost profits, citing Carusos, supra, and reserving until trial evidentiary matters concerning the lost profits. The trial court did not explicitly address lost profits in terms of appellant’s fraud count and to the extent the order implicitly held lost profits not recoverable under the fraud count, that decision has been reversed. We see no difference in the proof necessary to ascertain lost profits to show the value of the leasehold before and after the breach of the covenant not to rent other premises to competing businesses, as required by Carusos, supra, and the proof necessary to ascertain lost profits as a result of appellee’s alleged fraudulent behavior. Since it is clear that the trial court reserved the issue of lost profits until trial as to the Carusos standard, we do not find it necessary to rule on the sufficiency of the evidence as to the appellant’s fraud count. That portion of the trial court’s order concerning lost profits pertaining to appellant’s fraud count is, accordingly, reversed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur, but only because it states the law in Georgia as set out in Carusos v. Briarcliff, Inc., 76 Ga. App. 346, 351 (2) (45 SE2d 802) (1947). The indirect nature ascribed to these damages, which are actually the primary damages allegedly incurred because of the breach, is rather obfuscating and the distinction difficult of application.

I would urge following instead the rule set out in the Restatement, Property, Second, “Damages” § 10.2: “If the tenant is entitled to recover damages from the landlord for his failure to fulfill his obligations under the lease, . . . damages may include one or more of the following items as may be appropriate so long as no double recovery is involved: ... (5) if the use of the leased property contemplated by the parties is for business purposes, loss of anticipated business profits proven to a reasonable degree of certainty, which resulted from the landlord’s default, and which the landlord at the time the lease was made could reasonably have foreseen would be caused by the default;

Decided May 28, 1987.

Dana L. Jacket, for appellant.

Michael V. Elsberry, Stephen B. Schrock, for appellee.

Georgia law does provide as a fundamental principle that: “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2.

It certainly appears, from the express covenant in the lease, that the parties contemplated loss of profits to the tenant in the event the exclusivity feature of the lease was violated by the landlord, as profits were the purpose for the tenant’s leasing the premises in the first place. To say that they may be considered “indirectly” blurs the gravity of the real loss, for now the tenant has premises which produce a significantly reduced revenue (or at least we must assume, in this summary judgment posture of the case). That leasehold had a particular earning capacity during its term which assertedly has been diminished because of an incursion by the landlord. See Hayes v. City of Atlanta, 1 Ga. App. 25, 32 (6) (57 SE 1087) (1907).

Plaintiff still has the leasehold, so it is presumably of some value to it although it may have no value in the marketplace to another travel agency. And is the jury to determine what the market value was, at the time of the breach, and then again as a consequence of the breach? It is hard to discern how this would be arrived at.

Of course, if lost profits are to be recovered, whether directly or “indirectly,” they will have to be proved with sufficient certainty and plaintiff will have to show that they are a result of the breach, that is, that the clients and prospective clients were lost because of the proximity of the competitor.


source: Caselaw Access Project

license: Public Domain

text:
    74113.
    NALLE v. QUALITY INN, INC.
    (358 SE2d 281)
   Sognier, Judge.

L. Paul Nalle brought suit against Quality Inn, Inc., to recover damages for injuries sustained when he was attacked and robbed while a hotel guest. The trial court granted summary judgment in favor of Quality Inn, Inc., and Nalle appeals.

Appellant contends the trial court erred by granting judgment to appellee as a matter of law because previous criminal incidents at the hotel were sufficiently similar to that suffered by appellant to put ap-pellee on notice that a danger existed, thus creating a duty to protect appellant.

It is uncontroverted that the provisions of OCGA § 51-3-1 govern this case. “Under this statute, ‘(t)he true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. [Cits.]’ [Cit.]” McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). “ ‘[0]ne is not ordinarily charged with the duty of anticipating acts mala per se, but there are exceptions to this rule. . . .’” Pittman v. Staples, 95 Ga. App. 187, 191 (97 SE2d 630) (1957). The rule has been held inapplicable if the landowner had reasonable grounds for apprehending that such a criminal act would be committed. McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592) (1980).

The factual situation in McCoy, supra, was remarkably similar to that in the case sub judice. In both cases, appellant was attacked in the parking lot of a hotel. In both cases the hotel had hired security personnel who were on duty but elsewhere on the premises when the attack occurred. “The burden of proof was on appellant, as plaintiff, to demonstrate appellee’s knowledge that the parking lot subjected invitees to the unreasonable risk of criminal attacks.” McCoy, supra at 591. In both cases, appellant attempted to meet this burden by introducing evidence of prior crimes at the hotel. “While the relevancy of other occurrences is ordinarily within the sound discretion of the court, ‘it is necessary that the conditions of the things compared be substantially similar.’ [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. [Cits.]” Carlton Co. v. Poss, 124 Ga. App. 154, 155 (3) (183 SE2d 231) (1971). Neither in McCoy nor in the case sub judice had the prior crimes taken place in that area of the hotel premises where the attack on appellant occurred. Thus, as in McCoy, “we hold that the evidence of [the prior crimes] at the Inn did not meet the ‘similarity’ requirement so as to constitute a sufficient showing of [appellee’s] knowledge of the ‘litigated’ dangerous condition.” McCoy, supra at 592-593. Thus, “[n]o evidence was admitted, or was proffered and improperly excluded, which would support a finding that [appellee] knew or should have known that the Inn’s parking lot, as lighted and as periodically patrolled by the security guard, subjected the Inn’s invitees to an unreasonable risk of sudden, unprovoked and unexpected criminal attack.” Id. at 593-594. Since appellant failed to carry his burden, superior knowledge on the part of appellee was not shown, and appellee was therefore entitled to judgment in its favor as a matter of law.

Appellant also argues that even if its evidence of prior crimes was not sufficiently similar to impose a duty on appellee to provide security, appellee is liable to appellant because it nevertheless assumed that duty and then discharged it in a negligent manner. Although appellant claims this argument is supported by the affidavit of William B. Dobbs, we are unable, despite a thorough and diligent search of the record, to locate such an affidavit. We are unable to say, from the record as it exists, that appellee undertook to secure the parking lot area where appellant was attacked, or how that duty was performed. In fact, George Ramirez, appellee’s chief security officer, stated in his unrebutted affidavit that the principal function of the security officers was to guard the front desk. Appellant has thus shown neither assumption of a particular duty to secure that area, nor its negligent discharge. Atlanta Center, Ltd. v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986) and Burdine v. Linquist, 177 Ga. App. 545 (340 SE2d 198) (1986), cited by appellant, are distinguished by their facts and therefore inapposite. In Cox, supra, the criminal attack occurred as the guests were exiting the hotel elevator, notwithstanding the hotel’s installation of mechanical security devices which monitored the elevators. The installation of these devices indicated the hotel was aware that something untoward might befall its guests at that location, and consequently the question of whether the security provided was adequate and non-negligently performed remained for jury consideration. In Burdine, supra, at least one prior incident offered by the victims as evidence was sufficiently similar to be admissible for the purpose of showing that the hotel was, or should have been, aware of the dangerous condition created by the dim lighting immediately outside the guest room. In contrast, however, in the case at bar, as discussed above, there is no indication that the hotel was or should have been aware that its parking lot presented a particularly dangerous condition. Thus, even viewing the evidence in a light most favorable to appellant as the nonmovant, see Butler v. Terminix Intl., 175 Ga. App. 816 (1) (334 SE2d 865) (1985), no genuine issues of fact remained, and appellee was entitled to judgment as a matter of law. We find the trial court did not err by granting summary judgment in appellee’s favor.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but wish to describe the evidence which plaintiff presented of prior crimes which he says put the motel operator on notice and thus imposed a duty to protect the plaintiff guest.

There is evidence that the attack and robbery occurred about 12:15 a. m. on January 5, 1984, when plaintiff was drinking a cup of coffee while standing at the fence surrounding the pool. He had left his room for some fresh air and was attacked by two men who emerged from the bushes. The pool was at the rear of the motel premises. The security guards were in the front office at the time.

Decided May 28, 1987.

James D. McGuire, Mark Harper, for appellant.

Glenn S. Bass, Stephen L. Goldner, for appellee.

The evidence submitted to show that the operator had such knowledge that it should have anticipated criminal acts was a sheaf of police reports of twenty-five previous crimes on the motel’s premises. All but one were in 1980, 1981, and 1982. The one on November 26, 1984, just more than a month preceding plaintiff’s experience, was an alleged larceny of $100 from an envelope which a guest had deposited in the motel safe deposit box at the front desk.

Among the others there were two stolen autos, three thefts of personal items from vehicles, one burglary and one other theft from the restaurant and kitchen when unoccupied, six incidents in which televisions were stolen from guest rooms, five room burglaries where guests’ personal belongings were taken, two thefts from the motel office, larceny of twelve fire extinguishers from twelve different locations on the premises, one incident which cannot be deciphered from even the original evidence, and what appears to be two armed robberies in the front office. The latter two, which are the only two involving personal confrontation, occurred in November 1982.

All of these crimes share with the current incident the factors of nighttime occurrence and the perpetrators’ goal of obtaining personal property. However, the incidents are too remote in time to cast on defendant a reasonable apprehension of a criminal act on a guest in January 1984. In addition, all of them except the theft of fire extinguishers involved crimes from locked places, such as rooms and vehicles, or were in the lobby, where the security guards were on this occasion. None involved an attack on a patron out in the open, nor an attack on a patron’s person in the first place.

Thus this case differs from the leading case of Lay v. Munford, Inc., 235 Ga. 340 (219 SE2d 416) (1975), because as a matter of law the evidence offered to prove reasonable foreseeability is irrelevant. Without it, defendant could not be charged with the duty of anticipating a crime against plaintiff. Cf. Washington Rd. Properties v. Stark, 178 Ga. App. 180 (342 SE2d 327) (1986).


author: Pope, Judge.

text:
    74158.
    GUNDER v. THE STATE.
    (358 SE2d 284)
   Pope, Judge.

Appellant was indicted on two counts of arson in the first degree. The trial court granted a directed verdict as to Count 2 of the indictment and the jury found appellant guilty of criminal damage to property in the second degree on Count 1. Held:

Appellant contends that the trial court erred in failing to direct a verdict of acquittal based on the State’s failure to show damage to the dwelling house of another, which is an essential element of the crime charged. OCGA § 16-7-60 (a). In a related enumeration, appellant contends that the trial court erred in charging the jury on the offense of criminal damage to property in the second degree.

The State contends that the trial court did not err in refusing to grant appellant’s motion for a directed verdict because the evidence adduced at trial showed that the mobile home in which appellant allegedly started the fire suffered smoke damage, which is sufficient to constitute “damage” as that term is used in OCGA § 16-7-60. Smith v. State, 140 Ga. App. 200 (1) (230 SE2d 350) (1976). Although the State points to testimony that the occupant of the mobile home opened the door after the fire to let smoke out, the record shows that the testimony of all witnesses who had occasion to inspect the damage caused by the fire was unequivocal that the only damage was to the bed and bed coverings on which the fire was set. Thus, we agree with appellant that the State failed to show damage to the dwelling house of another as charged in the indictment and as provided in OCGA § 16-7-60.

The State argues, however, that even if a conviction was not authorized on the charge of arson in the first degree, the evidence was sufficient to convict on the lesser included offense of criminal damage to property in the second degree. OCGA § 16-7-23 (a) (2).

Under OCGA § 16-1-6 an accused may be convicted of a lesser included offense to the crime charged in the indictment or accusation. “A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” “To warrant conviction of a lesser offense on an indictment or information charging a greater offense, it is essential that the allegations describing the greater offense contain all the essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.” Porter v. State, 163 Ga. App. 511, 513 (295 SE2d 179) (1982); Tuggle v. State, 145 Ga. App. 603 (1) (244 SE2d 131) (1978).

In the present case the indictment did “charge and accuse [appellant] with the offense of arson in the first degree for that the [appellant] . . . did . . . unlawfully and knowingly damage, by means of fire, the dwelling house of another . . . OCGA § 16-7-60 (a). Under OCGA § 16-7-23 “[a] person commits the offense of criminal damage to property in the second degree when he: . . . (2) [r]ecklessly or intentionally, by means of fire or explosive, damages property of another person. ...”

Decided May 28, 1987.

Howard S. McKelvey, for appellant.

John R. Parks, District Attorney, for appellee.

In Corson v. State, 144 Ga. App. 559 (1) (c) (241 SE2d 454) (1978), we considered whether under the facts of that case, defendants could be convicted of both arson in the first degree and criminal damage to property in the second degree, and found that “[n]ecessarily, anyone who commits first degree arson has also committed criminal damage to property, provided that the property damaged belongs to another person. . . . Since the latter crime was established by proof of the same conduct as the former but required proof of a ‘less culpable mental state’ [(OCGA § 16-7-23)], it is an included crime in first degree arson.” Id. at 560.

Likewise, in the case sub judice we also find that arson in the first degree as charged in the indictment necessarily involved criminal damage to property as defined in OCGA § 16-7-23 (a) (2). See generally Terry v. State, 166 Ga. App. 632 (305 SE2d 170) (1983). Hence, the trial court did not err in so charging and the jury conviction of the lesser offense was authorized.

Judgment affirmed.

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


text:
    74220.
    MORRIS v. DeLONG et al.
    (358 SE2d 285)
   Sognier, Judge.

Charles Morris brought suit against Michael DeLong, Ploof Truck Lines, Inc. (PTL) and Transport Indemnity Company, PTL’s insurer, seeking damages for injuries incurred in an accident between Morris’ automobile and PTL’s truck, driven by DeLong. PTL counterclaimed for property damages to its truck. The jury returned a verdict against Morris on his claim and in favor of Morris on PTL’s counterclaim. The trial court denied Morris’ motion for a new trial and this appeal followed.

Appellant’s car was struck from behind by PTL’s tractor trailer truck, driven by DeLong, on Interstate Highway 75 in Turner County, Georgia, on the night of October 14, 1983. Appellant and a companion had been driving over 24 hours from Oklahoma straight through to Florida with only a few rest breaks at the time of the accident. Appellant testified he was travelling 50 to 55 miles per hour in the right hand (outside) lane and spotted PTL’s truck when it was 10 to 15 feet behind him travelling an estimated 90 miles per hour. DeLong testified he was travelling 55 miles per hour when he observed appellant’s car moving into the emergency lane (though no brake lights or turn signals were used). DeLong checked his side mirror but was unable to move into the inside passing lane because a car was in the process of passing his truck. When he looked forward seconds later, appellant’s car had veered back into the right hand lane and was travelling “very slow.” DeLong stood on his brakes but was unable to stop his flatbed truck, weighing 76,000 pounds with a load of sacked cement, from colliding with the rear of appellant’s vehicle. The occupants of the car in the passing lane, Norman and Terri Wehner, testified DeLong’s truck was travelling 55 miles per hour as they passed it and that appellant’s car was “practically stopped,” “almost at a dead stop,” travelling at a speed of four to five miles per hour. The State Patrol trooper who investigated the accident determined that at the time of the accident, DeLong was travelling at approximately 55 miles per hour and that appellant was “almost stopped in the roadway,” estimating an approximate speed of “about five miles an hour.”

1. Appellant contends the trial court erred by failing to charge that professional truck drivers owe a higher duty of care to the motoring public because of their superior driving skill. We need not address this issue since the record reveals there was no written request to charge on this issue and no objection was made to the charge as given on the duty of care owed by the parties. See Cochran v. Quinter, Inc., 156 Ga. App. 109, 110 (2) (274 SE2d 113) (1980).

2. Appellant complains the trial court erred by giving those charges cited as error in enumerations 2, 3, 4, 6, and 8. It is axiomatic that a party cannot complain of the giving of an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. OCGA § 5-5-24 (a). The record reveals that appellant failed to object to any of the charges cited in his enumerations. “ ‘ “Failure to except before verdict generally results in a waiver of any defects in the charge [cits.], the exception under [OCGA § 5-5-24 (c)] applying only when there has been a substantial error which was blatantly apparent and prejudicial, and which resulted in a gross miscarriage of justice.’” [Cit.]” Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244) (1982). We find no blatant or prejudicial error in the charges of which appellant complains.

3. Appellant argues that the trial court erred by charging the jury that if appellant’s negligence was equal to or greater than appel-lees’ negligence then appellant could not recover, arguing there was no evidence that appellant was negligent on which to base this charge. We need not address appellees’ argument that appellant failed to object properly to this charge, since we find the record is replete with evidence of appellant’s negligence in that it appears appellant veered in and out of the emergency lane without signalling and slowed to a near stop on a limited-access interstate highway with a 40 miles per hour minimum speed limit. See generally Smith v. Lott, 246 Ga. 366 (271 SE2d 463) (1980).

4. Appellant contends the trial court erred by charging the provisions of OCGA § 40-6-123, regarding the use of signals required on turning, changing lanes, slowing, or stopping. Appellant argues this charge was inapplicable because DeLong was aware of appellant’s change of lanes while 2,000 feet from appellant. This assertion is rebutted by DeLong’s testimony that although he observed appellant’s car moving into the emergency lane (without signals), he was aware only seconds before the crash that appellant’s car had veered back into the right hand lane. Since appellant failed to indicate the movement of his vehicle by any appropriate signal, the trial court was authorized to charge OCGA § 40-6-123 (a-c). Although OCGA § 40-6-123 (d) as charged may have been inapplicable under the facts in evidence, it is not usually cause for a new trial that an entire Code section is given. Chapman v. Piggly Wiggly Southern, 178 Ga. App. 835 (344 SE2d 755) (1986).

5. Appellant next complains that the trial court erred by charging that “no person shall stop, stand, or park a vehicle on any controlled-access highway.” OCGA § 40-6-203 (a) (1) (I). The Wehners testified that appellant’s car was “sitting there in the right-hand lane” and that it was “almost at a dead stop.” Appellant argues, however, that this charge is applicable only where the vehicle is at a “dead stop.” We agree with appellees that “stop” necessarily includes the act of stopping and that the evidence presented an inference from which the jury could have found that appellant was in the process of stopping or had come to a rolling stop at the time of the collision. We find support for this holding in OCGA § 40-6-204 which exempts from the purview of OCGA § 40-6-203 any driver of a vehicle so disabled that “it is impossible to avoid stopping” the vehicle. See also Blake v. Continental Southeastern Lines, 161 Ga. App. 869 (289 SE2d 551) (1982) and 168 Ga. App. 718 (309 SE2d 829) (1983), in which this court found a question of fact existed whether a bus, having entered the roadbed of a limited-access highway and travelling at 30 miles per hour, had violated OCGA § 40-6-203 (a) (1) (I).

6. Appellant, in his final enumeration, contends the trial court erred by charging the jury on the doctrine of emergency because the evidence indicated either that the emergency was created by De-Long’s own negligence or that DeLong had ample opportunity to extract himself from the sudden emergency, avoiding appellant’s act. Under the evidence adduced at trial, as discussed above, we find no merit in this enumeration. Barlow v. Veber, 169 Ga. App. 65, 66 (1) (311 SE2d 501) (1983).

Decided May 28, 1987.

G. Gerald Kunes, for appellant.

Joseph B. Gray, Jr., for appellees.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in all divisions of the opinion except Division 5. I agree that there was evidence of such action on the part of Morris that the jury could find it came within the meaning of OCGA § 40-6-203 (a) (1) (I). This is not to say that a driver does not have an affirmative duty to “stop” rather than just to “slow down,” at a stop sign. OCGA § 40-6-72 (b). Compare OCGA § 40-6-72 (c). The negative duty in OCGA § 40-6-203 (a) (1) is to not stop, because of the obstruction to oncoming traffic, and this duty embraces so closely approximating a full stop that it amounts to the same hazard. In respect to the scope of the statute prohibiting stopping, here under review, the most analogous case is Garrett v. Brannen, 164 Ga. App. 10 (2) (296 SE2d 205) (1982), overruled in another regard, Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983). A charge on what is now OCGA § 40-6-203 (a) (1) was found not to be error; there was evidence that one of the vehicles “slowed down or stopped . . . applied [the] brakes and stopped . . . suddenly.”

In Blake v. Continental Southeastern Lines, 161 Ga. App. 869 (289 SE2d 551) (1982), and 168 Ga. App. 718 (309 SE2d 829) (1983), the stopping prohibited by OCGA § 40-6-203 related to the bus actually coming to a stop on the paved shoulder, where it remained for a period of time, not to the act of returning to the highway and reaching an acceleration speed of 30 mph. The question with regard to the unauthorized stop on the shoulder (i.e., not for an emergency) was whether it was a proximate cause of the collision which occurred after the bus had reentered the highway. It was not disputed that the bus had been fully stopped.

Thus that case does not stand for the proposition that “stop” includes starting up and achieving movement again or, as in this case, slowing down to a stop.


author: Birdsong, Chief Judge.

text:
    74389.
    SIMMONS et al. v. SELECT INSURANCE COMPANY.
    (358 SE2d 288)
   Birdsong, Chief Judge.

Select Insurance Company issued a garage insurance policy to Frank C. Simmons, d/b/a Everready Service Garage, for the period July 1, 1984 through July 1, 1985. On March 3, 1985, Debra Sue Sasser parked her car in a no-parking zone while having dinner at a restaurant across the street. Her car was towed by a wrecker from the Everready Garage and was damaged in transit. When she went to the garage to claim her car, she was advised of the damage, that there would be no towing costs, and the owner said if she would get a “fair” estimate he would give her a check for that amount. Ms. Sasser obtained an estimate for damages to the right and left sides of her car and presented it to Simmons. Simmons had not seen the damage to her car when it was brought in and the wrecker driver was not then present, so he gave Ms. Sasser a check in the amount of the estimate, $592.07. Sasser deposited the check in her account and proceeded to write checks against the amount deposited. Shortly after Sasser left the garage, the wrecker driver returned and told Simmons that he had damaged only the right side of Sasser’s car. Simmons stopped payment on his check and did not advise Sasser of the stoppage. Sasser’s checks were returned by her bank for insufficient funds and she returned to talk to Simmons. Sasser claimed her car was damaged on both sides by the towing, but Simmons would only pay for the damage on the right side. Sasser said she had “checks that had to be covered, and [she] wasn’t going to argue with him.” Sasser accepted a check in the amount of $454.07 and went to see her lawyer. Simmons said Sasser admitted the damage to the left side of her car was done prior to the towing and accepted the smaller amount in full settlement of damages to her car.

Sasser filed an action against Simmons and Everready on May 19, 1985. On June 17, 1985, Simmons notified his insurance carrier, Select Insurance Company, about the towing incident. Select then filed this declaratory judgment action to ascertain whether it was required to defend Simmons and Everready in the Sasser action, and whether Simmons had forfeited his insurance coverage. Select contends Simmons and Everready forfeited coverage under the policy because of their failure to comply with the policy provisions of notification to the insurer of a covered incident, and by his voluntary assumption of liability, and payment to a claimant. Select moved for and was granted summary judgment, and Simmons brings this appeal. Held:

1. The appellant enumerates as error the grant of appellee’s motion for summary judgment. The insurance policy provided, inter alia, that “[n]o insured shall, except at his or her own cost, voluntarily make any payment, assume any obligation or incur any expense.” Further, under liability coverage, the policy provided that “[t]his insurance does not apply to: 1. Liability assumed under any contract or agreement. ...”

In the instant appeal, the insured voluntarily agreed to assume liability for his employee’s act which damaged Ms. Sasser’s car while being towed to his garage. The agreement accepting liability, and the subsequent voluntary payment of the amount of the estimate to Ms. Sasser, were in direct contravention of policy provisions. The policy also provided that no action would lie against the company unless there had been full compliance with the terms of the policy.

Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract, including insurance contracts, unless prohibited by statute or public policy. Donaldson v. Pilot Life Ins. Co., 177 Ga. App. 748, 749 (341 SE2d 279). The provisions cited above are neither prohibited by statute nor public policy. Hence, the insured failed to comply with his policy provisions not to assume liability or make voluntary payments to claimants. Accordingly, under the policy his actions were not covered and the insurer is not responsible for the amount represented by the voluntary payment. Jones v. State Farm &c. Ins. Co., 100 Ga. App. 727, 729 (112 SE2d 323).

2. Appellants contend the trial court erred in granting appellee’s motion for summary judgment “as questions of fact exist arising from ambiguous provisions in the insurance policy” regarding appellee’s “duty to defend” appellants for his actions arising from the “stop payment order.” They argue that any damages resulting from the stop payment order “were ‘accidents’ as defined by the insurance policy because they were unintentional and unexpected.” Appellants allege Simmons was unaware of the possible consequences of his stop payment order and that he did not intend any inconvenience to Ms. Sasser, but thought the bank would notify her he had stopped payment on her check.

The insurance policy defines “accident” as “continuous or repeated exposure to the same conditions resulting in bodily injury or property damage the insured neither expected nor intended.” “Bodily injury” was described as “bodily injury, sickness or disease including death,” and “property damage” as “damage to or loss of use of tangible property.” The policy also provided that the insurer had “no duty to defend suits for bodily injury or property damage not covered by this policy.”

“ ‘Insurance is a matter of contract, and the language used is to be accorded its general and ordinary meaning, bearing in mind that the contract is to be construed in accordance with the intention and understanding of the parties, and, in construing it, the court can go no further than a fair construction of the language used will permit.’ ” Guest v. Horace Mann Ins. Co., 168 Ga. App. 714, 715 (310 SE2d 241). An insurance policy is to be construed liberally in favor of the object to be accomplished. Its provisions will be construed against the insurer when a part is susceptible of two constructions and a court will adopt that interpretation which is most favorable to the insured. However, if the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as written. Donaldson, supra at 749. Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision “ ‘is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.’ ” Brown v. Peninsular Fire Ins. Co., 171 Ga. App. 507, 508 (320 SE2d 208).

Decided May 28, 1987.

Steven E. Scheer, Henry P. Smith, for appellants.

Albert N. Remler, Richard M. Scarlett, for appellee.

We find the contract provisions, referred to in this appeal, to be plain and unambiguous. And, pretermitting the issue of whether the alleged results of the stoppage of payment on the check by Simmons were unexpected and unintended, this particular element is but one of the several elements of “accident” as defined by the policy. First, the single instance of stoppage of payment on one check did not involve “continuous or repeated exposure to the sáme condition. . . Further, there was no resultant “bodily injury” (“bodily injury, sickness or disease including death”), or “property damage” (“damage to or loss of use of tangible property”) (emphasis supplied), as defined and restricted by the unambiguous terms of the insurance policy.

Accordingly, appellant’s claim that the stoppage of payment on the check was an “accident” is without merit. The policy did not include coverage for “bodily injury or property damage not covered by this policy.” Hence, stoppage of payment upon a check the insured issued in violation of the terms of the policy is not reasonably susceptible of being construed as an “accident” as that term is defined in the policy. The trial court did not err in granting summary judgment to the insurer.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    73957.
    SUPERIOR DISTRIBUTORS, INC. et al. v. JOHNSON et al.
    (358 SE2d 474)
   Banke, Presiding Judge.

Mrs. Joan Johnson and her husband brought this action against Superior Distributors, Inc., and Dennis Crim to recover for personal injuries sustained by Mrs. Johnson when an automobile she was driving was struck from the rear by a tractor-trailer truck owned by Superior and being driven by Crim. The trial court directed a verdict against the defendants on the issue of liability and entered judgment against them based on the jury’s subsequent award of damages. This appeal followed.

Mrs. Johnson testified that her car was struck from the rear by the truck as she was waiting to turn left from the inside lane of a 4-lane highway. She had no actual recollection of whether she had engaged her left-turn signal but maintained that it would have been an instinctive act on her part to have done so. Also, she was unable to recollect at trial how long she had been stopped prior to the collision.

An eyewitness testified that the Johnson vehicle was stopped and that he saw its turn signal blinking immediately prior to the collision. This witness estimated that the truck was proceeding at a speed of between 60-65 mph when he first observed it and that its speed at impact was about 25-30 mph. Officer Simmons of the Georgia State Patrol testified that in his opinion, based on his investigation of the accident scene, the truck had been travelling at a speed of 60 mph at the time of the collision. He further testified that the speed limit at the location was 55 mph and that the tractor-trailer left skid marks 184 feet long. Over objection, he was additionally allowed to testify that in his opinion the cause of the wreck was “following too close and too fast for conditions.” The defendants rested without calling any witnesses. Held:

1. In their initial enumeration of error, the defendants contend that the jury would have been authorized to find from the evidence that Mrs. Johnson was contributorily negligent and that the trial court consequently erred in directing a verdict in favor of the plaintiffs on the issue of liability. However, we agree with the trial court that there was no evidence even remotely suggesting that Mrs. Johnson was guilty of any negligence which might have contributed to the collision. In particular, even assuming, as the defendants contend, that Mrs. Johnson’s credibility as a witness was somehow called into question by her own testimony concerning the effects of the accident on her emotional state, it does not follow that this created a conflict in the evidence on the issue of liability, since the circumstances of the collision were independently established by the testimony of other witnesses with no apparent interest in the outcome of the litigation. Considering the evidence in the light most favorable to the defendants, we conclude that a verdict for the plaintiffs was demanded on the issue of liability and that the trial court properly directed a verdict in favor of the plaintiffs on this issue. Accord Davis v. Pachuilo, 169 Ga. App. 677 (1) (314 SE2d 692) (1984). The defendants’ reliance upon such cases as Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25) (1976), and Myers v. Barnard, 180 Ga. App. 192 (348 SE2d 733) (1986), is misplaced in that those cases did involve disputed issues of fact concerning the issue of negligence.

2. The defendants contend that the investigating officer’s opinion regarding the cause of the collision was inadmissible because it went to the ultimate issue for the jury to decide. However, this issue is rendered moot by our holding in Division 1, supra, that there was no jury issue with respect to liability.

3. The defendants complain that the form of the jury’s verdict awarding damages was contrary to the form specified in the pretrial order in that it permitted separate awards for various categories of damages. This enumeration of error is without merit. The record shows that during the argument of certain pretrial motions, the court announced that a special verdict form would be utilized to categorize the damages. Although the judge did not specifically state at this time that he was modifying the pretrial order, it was clearly his intention to do so to this extent, and it was also clearly within his discretion to do so. See generally Ambler v. Archer, 230 Ga. 281 (196 SE2d 858) (1973).

4. During the course of her testimony, Mrs. Johnson was asked by her counsel to give her opinion of the fair market value of her automobile prior to the collision. In response to an objection by opposing counsel, Mrs. Johnson’s counsel then said, “If your honor please, we are not seeking damages for the Lincoln, we’ve been paid for the Lincoln. ...” The defendants contend that this statement was ground for a mistrial in that it implied to the jurors that they had admitted liability. Even assuming arguendo that the corrective instruction given by the trial court was insufficient to dispel the alleged improper implication, the alleged error must be considered harmless in view of the lack of any jury issue as to liability.

5. Finally, the defendants complain that the plaintiffs’ attorney was improperly allowed to use colorized charts as aids in its argument to the jury on damages. However, the charts were not offered in evidence nor otherwise made a part of the record, nor were they sent out with the jury. Consequently, we are unable to conceive of how they might have been prejudicial to the defendants, and this enumeration of error presents nothing for review.

Judgment affirmed.

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

Decided May 29, 1987.

Lemuel H. Kemp, for appellants.

E. Crawford McDonald, Nancy E. Bradshaw, for appellees.


text:
    74038.
    CAYLOR v. POTTS.
    (358 SE2d 291)
   Banke, Presiding Judge.

In May of 1982, Stephen Potts filed a wrongful death action to recover for the homicide of his three-year-old daughter, Stephanie. At the time of the child’s death, Potts was divorced from the child’s mother, Pamela Caylor, who is the appellant in the present case. In May of 1984, while his wrongful death action was pending, Stephen Potts died in a motorcycle accident. Ms. Caylor was subsequently substituted as plaintiff in that action, and in March of 1986, she settled with two of the defendants in the case for the net amount of $6,220.50. She then brought the present action against the administrator of Stephen Potts’ estate, the appellee herein, seeking a declaration that Potts’ estate is not entitled to a one-half share of these settlement proceeds. This appeal is from the grant of the appellee administrator’s motion for judgment on the pleadings. Held:

1. Two statutes govern the respective rights of recovery of the parties in the present case. The first, OCGA § 19-7-1 (c), provides, in pertinent part, as follows:

“(1) In every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child, either as provided in this Code section or as provided in Chapter 4 of Title 51.

“(2) If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents, if any, given such a right by this paragraph. . . .

“(B) If either parent is deceased, the right shall be in the surviving parent. . . .” (Emphasis supplied.)

The second applicable statute is OCGA § 9-2-41 (former Code Ann. § 3-305), which governs the survival of tort actions generally. It provides, in pertinent part, as follows: “[No] action or cause of action for the recovery of damages for homicide, injury to the person, or injury to property [shall] abate by the death of either party. The cause of action, in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff.” (Emphasis supplied.) The words “or cause of action” were added to the first sentence of this statute by Ga. L. 1952, p. 224. Prior to that amendment, the statute had been construed as enabling a parent’s existing right of action to recover for the homicide of a child to survive to the representative of the parent’s estate in the event of the parent’s death only in the event such an action by the parent was already pending at the time of the parent’s death. See Frazier v. Ga. R. &c. Co., 101 Ga. 77 (1) (28 SE 662) (1897); Roadway Express v. Jackson, 77 Ga. App. 341 (1) (48 SE2d 691) (1948); Peebles v. Charleston &c. R. Co., 7 Ga. App. 279 (66 SE 953) (1909).

When the foregoing cases were decided, the statute governing wrongful-death actions specified that “[a] mother, or if no mother, a father, may recover for the homicide of a child . . . unless said child shall leave a wife, husband or child.” Code of 1933 § 105-1307; Acts 1887, pp. 43, 45. If that statutory language, when construed in conjunction with the then existing version of the general survival statute (current OCGA § 9-2-41, supra), did not operate to extinguish a pending action by a mother to recover for the homicide of a child in the event of the mother’s death during the lifetime of the father, then we can discern no basis for construing the present statutory scheme to have such an effect under similar circumstances. Indeed, since the passage of the 1952 amendment to the survival statute, it would appear that an existing right of action by a parent to recover for the homicide of a child will survive to the representative of the parent’s estate regardless of whether the action was filed during the parent’s lifetime.

We do not consider this interpretation of OCGA § 9-2-41 to be inconsistent with OCGA § 19-7-1 (c) (2) (B), supra, which specifies that “[i]f either parent is deceased, the right shall be in the surviving parent.” We instead interpret that code section as setting forth the rights of the parents as they exist on the date of the child’s death, an interpretation which is in accordance with the general principle that statutes are to be construed in harmony with existing law where possible. See generally Lewis v. City of Smyrna, 214 Ga. 323 (104 SE2d 571) (1958). Thus, we hold that the trial court did not err in granting summary judgment to the administrator of the father’s estate in the present case.

2. We do not, however, consider this appeal to have been so palpably without merit as to admit of no other conclusion than that it was filed for purposes of delay. Consequently, the appellee’s motion for imposition of damages against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal is denied. See Great Atlantic &c. Tea Co. v. Burgess, 157 Ga. App. 632 (4) (278 SE2d 174) (1981).

Judgment affirmed.

Carley and Benham, JJ., concur.

Decided May 29, 1987.

Clifton M. Patty, Jr., for appellant.

Kenneth Davis, Jr., John W. Knapp, Jr., for appellee.


text:
    74299.
    MERRITT v. THE STATE.
    (358 SE2d 293)
   Birdsong, Chief Judge.

Randy Merritt appeals his conviction for armed robbery. The evidence of the two victims, largely supported by the juvenile co-actor, showed the following: The victims are brothers, Shane and David Thompson. Shane had recently purchased a truck and wanted to install in it a stereo system. He learned from another boy the name of a person who could get him some amplifiers; this person was Dave, the juvenile co-actor. Shane called Dave several times asking if Dave could get him some “amps.” Finally on December 29, 1985, Shane called Dave and the appellant Randy Merritt answered and identified himself as “Dave.” Appellant told Shane he could sell him four amps for $200, and arranged to meet Shane later that evening at Dearborn Park in DeKalb County. Shane and his brother David, who also wanted an amplifier, determined to buy only two amps for $100, which amount David carried in his wallet. Shane and David drove with David’s girl friend to the park about 7:00 p. m. Shortly, appellant and his accomplice Dave approached David’s truck and Shane and David got out. When appellant asked the brothers if they had the money, they told appellant they had only $100 and wanted only two amps. Appellant and Dave then walked with the brothers, Shane and David, into the park where the amps supposedly were. The group stopped at some picnic tables, and appellant and Dave went up into the woods where appellant and Dave said the amps were hidden. A few minutes later they returned, and the brothers saw a gun in appellant’s pants under his unzipped jacket. Appellant said: “We’ll... do business this way,” and stuck the gun at David Thompson’s head and cocked the trigger. Appellant demanded the money; David removed his wallet and handed it to appellant who gave it to his accomplice Dave to look through. Appellant commanded Shane to give up his wallet to Dave. Appellant then ordered the brothers to sit and held the gun at David’s head, evidently because David had struggled briefly and in appellant’s view proposed the greatest threat. Dave searched the wallets and, discovering no more money than $100, threw the wallets back at the brothers. David Thompson begged appellant not to shoot him. Apparently chagrined to be cheated out of the anticipated full $200, appellant said: “You can’t rush us like this, and you can’t rip us off,” and he ordered the brothers to lie down, saying he could kill them if he wanted to. Shane and David lay face down, believing they were “dead” and would be killed for certain, but David kept trying to look back to see appellant still pointing the gun at him. Appellant said: “If you think I’m kidding . . .,” and shot the gun. Shane felt the dirt fly up between him and his brother and believed his brother had been killed. He heard Dave say, “Let’s go,” and heard them run away; finally his brother David let Shane know he was not hurt, and the pair arose and fled. As they approached the truck, a shot rang out again but struck no one. David’s girl friend sitting in the truck, saw the two run towards her under the street light, and saw a spark which she took to be a gunshot. The three drove to a store and called the police, giving them the telephone number where Shane had first called Dave. Arrests followed within a few hours.

Appellant attempted to show at trial that he engaged in this episode because a “gang” called Down By Law was after him threatening and intimidating him, thus “coercing” him to do this thing to get money to pay them for his own “protection.” Appellant also attempted to show that not he, but Dave, conceived the idea and procured the gun; that he meant only to “scare” the two brothers into giving him and Dave their money, and only pointed it at David because he had given the most resistance. He further, by cross-examination of the victims, attempted to establish in defense of the crime that the victims had “never really lost anything” because they had gotten their money returned; that they could not ever have been really afraid because they kept looking back when appellant made them lie down; that the brothers should have suspected the illusory amps were probably stolen goods; that appellant had been really friendly to them until he discovered they did not have the full $200 and became upset; that appellant never really held either wallets or money for very long; and that appellant did not intend to shoot them but only to scare them and in truth appellant did not shoot them; and that he never actually touched David’s head with the gun barrel but only held it near David’s head. Held:

1. Appellant contends the evidence was insufficient to prove armed robbery and that the jury should have been allowed to consider robbery as a lesser offense. In support of this advocation that the jury could have, and should have, found robbery and not armed robbery, he states that he himself “never actually physically took anything from either victim, [and] never intended to hurt anyone, and ... he never threatened anyone.” We reject this proposition out of hand. The evidence shows without dispute, and even assuming appellant’s own testimony to be true, that appellant extracted money from the victims with the use of a handgun. This is armed robbery, under OCGA § 16-8-41. Appellant’s argument on appeal that he did not commit “armed robbery” because he testified the money was handed over without his asking for it and because he shot near (and not at) David Thompson only after the money was taken and not before, is meaningless in point of law. Likewise we reject the urgings of appellant in this case that this crime, vicious at the very least in the degree of fear of imminent death imposed upon his victims, might be justified or defended by his need of money to protect himself from a “gang.” The evidence clearly shows that appellant never disclosed to anyone, neither victims, accomplice, nor police, that he acted out of or even suffered fear of a gang; but even had this been true, it is not a defense to this crime.

Decided May 29, 1987.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Fran W. Shoenthal, Assistant District Attorneys, for appellee.

2. Similarly, appellant’s contention that he was entitled to a jury charge on abandonment of criminal enterprise under OCGA § 16-4-5, because he “didn’t intend to take anything to begin with and didn’t end up taking anything from Shane Thompson at the end of their time together before appellant ran away” is so devoid of merit in its mere statement that it need not be answered, particularly in view of appellant’s own testimony that he needed money to combat threats of a “gang,” he meant to extract it from the victims, and he used a handgun to do it and shot it near the victims as they lay on the ground, intending to frighten them.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    73659.
    NOWLIN v. PARKER.
    (358 SE2d 258)
   McMurray, Presiding Judge.

On December 7, 1984, Mozelle C. Nowlin (decedent) executed her “Last Will and Testament” naming as primary beneficiaries her children, Bryan Tillman Nowlin, Jr. (Nowlin) and Bobbie June Parker (Parker). Other than specific bequests, decedent provided that her property was to be divided equally between Nowlin and Parker.

On December 13, 1984, decedent died and on December 17, 1984, her “Last Will and Testament” was filed in the Probate Court of Cobb County, Georgia. Simultaneously, “Letters Testamentary” issued to Parker as executrix of decedent’s estate. On January 17, 1985, Nowlin filed a petition seeking removal of Parker as executrix of decedent’s estate. In his petition, Nowlin alleged that Parker misappropriated estate assets by converting funds derived from certain savings certificates, formerly owned by decedent, to her own use. In an order filed February 6, 1985, the Judge of the Probate Court of Cobb County found that Parker had not misappropriated estate funds because the savings certificates at issue were held in joint capacity by decedent and Parker and as such remained with Parker as the surviving party. Nowlin appealed to the Superior Court of Cobb County, Georgia for de novo review.

On November 11, 1985, Parker filed a motion for summary judgment and a supporting affidavit which showed that Parker and decedent jointly owned a passbook savings account and three certificates of deposit with Lockheed-Georgia Employee’s Federal Credit Union. (The first savings certificate was issued on July 7, 1983, in the principal amount of $20,000; the second savings certificate was issued on January 5, 1984, in the principal amount of $10,000; and, the third savings certificate was issued on July 25, 1984, in the principal amount of $16,000.) From this evidence, Parker argued that she is entitled to the proceeds of the joint accounts, citing OCGA §§ 7-1-810 (4) and 7-1-813 (a).

OCGA § 7-1-810 (4) defines a joint account as “an account payable on request to one or more of two or more parties, whether or not mention is made of any right of survivorship.” OCGA § 7-1-813 (a) provides, in pertinent part, that “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.”

The affidavit submitted in support of Parker’s motion for summary judgment was that of R. W. Hampton, the “Assistant Manager” of the Lockheed-Georgia Employee’s Federal Credit Union. Corroborating the presumption created by the above Code sections, Mr. Hampton referred to each of the certificates of deposit in his affidavit, and deposed that “[a]t the time said joint [accounts were] created by [decedent], there was no evidence manifested by her of an intention to have said [accounts] belong to her estate as opposed to the surviving joint owner, Bobbie June Parker.” Referring to the joint passbook savings account, Mr. Hampton deposed that the “membership agreement” of the savings account “provides that in the case of the death of one of the joint owners, that the survivor shall be entitled to all rights of ownership as to said passbook account.”

In opposition, Nowlin submitted the deposition of Odell Allen, the decedent’s sister, who testified that she had related to decedent that she (Odell Allen) had her own daughter’s name put on her certificates of deposit in case something happened to her (Odell Allen). In this regard, Allen testified that decedent “had [Parker’s name] put on her certificates . . . [s]trictly for convenience in case something happened. It was not [decedent’s] intent that those certificates and her money go to [Parker].” Upon cross-examination, Allen testified that neither she nor decedent was aware that the survivor of a joint account would become the owner of the account.

From this evidence, the trial court entered an order excluding the testimony of Allen as inadmissible hearsay and concluded “that the sums remaining on deposit with the Lockheed-Georgia Federal Employee’s Credit Union were held in a joint account and as such belong to the surviving party, Bobbie June Parker, as against the estate of the Deceased, Mozelle C. Nowlin.” The trial court further held that Parker “has not violated her oath of office and should not be removed as the executrix of the estate.” Nowlin appeals. Held:

Nowlin contends the trial court erred in excluding the testimony of Odell Allen as inadmissible hearsay. From this contention, Nowlin argues the trial court erred in granting summary judgment in favor of Parker because Allen’s testimony was sufficient to raise an issue of fact concerning decedent’s intent in creating joint ownership in the certificates of deposit with Parker.

Assuming, without deciding, that Allen’s testimony was admissible in opposition to Parker’s motion for summary judgment, we find insufficient evidence in Allen’s deposition to rebut the statutory presumption of survivorship as an incident to the creation of the joint assets. As stated above, OCGA § 7-1-813 (a) requires “clear and convincing evidence of a different intention at the time the account is created” to rebut the presumption that “a joint account [shall] belong to the surviving party ... as against the estate of [the non-surviving party].” Although Allen testified that she advised decedent to create joint accounts with someone, she did not testify that decedent told her that she intended to create an interest with Parker in the certificates of deposit other than that prescribed by OCGA § 7-1-813 (a). On the contrary, at the time the joint certificates of deposit were created Allen testified that she did not witness decedent manifest an intent contrary to the creation of joint assets. Allen’s conclusion that decedent did not intend to create joint assets “with rights of survivor-ship” in the certificates of deposit was not based on what decedent told her, it was based on Allen’s erroneous conclusion as to the effect of the creation of joint assets. Further, the statutory presumption is supported by the fact that decedent’s will, which she executed after the creation of the joint assets, makes no reference to the disposition of the savings certificates. Consequently, finding no “clear and convincing evidence” to contradict the statutory presumption, we find the trial court properly entered summary judgment in favor of Parker. See Lastinger v. Johnson, 148 Ga. App. 453, 454 (3, 4) (251 SE2d 369); White v. Royal, 150 Ga. App. 57 (256 SE2d 662); and Collins v. Collins, 176 Ga. App. 79 (335 SE2d 307).

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Ca,rley, Sognier and Benham, JJ., concur. Been, P. J., Pope and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

There are questions for the jury to resolve, created by the testimony of Mozelle’s sister Odell taken in deposition, which the superior court erroneously refused to consider on the ground the pertinent statements were inadmissible hearsay. The court applied correct principles regarding summary judgment but incorrect rules of evidence in relation thereto, and it also construed the “time” language of OCGA § 7-1-813 (a) too narrowly. The effect of these errors undermines the validity of the summary judgment.

OCGA § 7-1-813 creates a right of survivorship in a joint account, thereby, giving certain legal results to a contractual arrangement between a depositor and a financial institution. One is that it constitutes part of the statutory scheme to provide a shield for the bank, which is protected from liability if it pays the total proceeds to the survivor. OCGA §§ 7-1-816; 7-1-817. Agnor discusses this aspect as one of the two, in “Joint Bank Accounts: A Different Form of Joint Tenancy,” 17 Ga. St. B. J. 184 (1981). We are not here concerned with that relationship between the creator and the depository.

The other result of OCGA § 7-1-813 controls the interests of the parties to the account, leaving ownership open to resort to an eviden-tiary procedure rather than automatically creating a right of survivor-ship as a matter of law. That is to say, the right of survivorship is not conclusive but is only presumptive. As specified in the statute and recognized in Collins v. Collins, 176 Ga. App. 79 (335 SE2d 307) (1985), the presumption may be overcome by “clear and convincing evidence of a different intention at the time the account is created.” That evidence could be expressly included in the terms of the contract, of course, but as shown here and testified to by the depository’s employee, Mozelle did not manifest such intention when the actual transaction was negotiated. See in this connection OCGA § 7-1-813 (e).

Since it is only a presumptive right, that does not end this matter. And so the court below did go farther, but within narrowly drawn constraints which proved fatal to its legal conclusion.

One of the reasons the superior court refused to consider Odell’s testimony was that it did not relate to intention expressed when she accompanied Mozelle to the credit union and that she was not in fact present on other occasions at the credit union. From a reading of the superior court order, it considered “at the time” to refer only to that narrowly subscribed event transpiring at the credit union office, whereas I believe it is more properly construed to include the circumstances surrounding the transaction as well.

The objective is to ascertain and enforce the intention of the depositor. Where that intention is conveyed not to the depository’s employee, who is a stranger, but rather to a more likely confidant somewhat contemporaneously with the actual transaction, it is evidenced within the scope “at the time.”

Surrounding circumstances will often shed light on the real significance and meaning of isolated events. Intentions are traditionally recognized as provable by consideration of the person’s words, conduct, demeanor, motive and all other circumstances connected with the act focused on. See, e.g., OCGA § 16-2-6 which, while governing criminal trials, states a principle of general law.

Moreover, the cases construing this Multiple-Party Accounts Act demonstrate that evidence of circumstances surrounding the actual formal transaction are relevant to the ascertainment of the creator’s intent. See, e.g., Collins, supra; Lastinger v. Johnson, 148 Ga. App. 453 (251 SE2d 369) (1978).

The other reason the court excluded Odell’s testimony was that since the employee was also present when Odell was, her testimony did not meet the no-other-person requirement of Chrysler Motors Corp. v. Davis, 226 Ga. 221 (173 SE2d 691) (1970) for permitting a decedent’s hearsay.

However, Odell testified at length concerning the reason Mozelle made the accounts joint, it being for convenience, as the two of them had discussed on several occasions before it was done. There was no evidence whatsoever that anyone else was present during these conversations.

The superior court was satisfied that the trustworthiness requirement of Chrysler was met, as Odell had no interest in the money.

Another impediment in the exclusion of the evidence is that a significant amount of Odell’s testimony regarding intent is not hearsay in the first place. She stated that she was very close to her sister and had been with her a good bit of the time since Mozelle’s husband contracted cancer and died in 1981 and right up until Mozelle’s own death in 1984. According to Odell, she assisted Mozelle with her financial affairs and advised her to add her daughter Bobbie’s name to the accounts because the two sisters traveled a lot together and something might happen that would necessitate the money’s withdrawal, and also, that if joint, Bobbie could get the money quickly after Mozelle’s death and share it equally with her brother without having the delay of probate. Odell knew intimately the relationship which Mozelle had with each of her children and what she did with respect to her will.

Thus, what Odell told Mozelle, what understanding Odell had and passed on to Mozelle of what the legal and anticipated consequences of this arrangement would be, and what Mozelle did as a result, would not be hearsay and would be relevant to the question of Mozelle’s intention. What Odell did not realize, and did not tell Mozelle, was that there was a possibility that Bobbie would not be compelled to share the proceeds of the accounts equally with her brother if she did not voluntarily honor her mother’s desire as expressed both within and outside the will, because Bobbie would have legal title. This evidence is not hearsay.

Even the hearsay, that is, Mozelle’s statements regarding her intention that the two children share equally in the money, would be admissible under the Chrysler rule. The two prerequisites for the exception to the hearsay rule as it applies to a deceased’s statements, i.e., necessity and a circumstantial guaranty of trustworthiness, are satisfied here and would thus the statements be admissible before a jury.

That being the case, the superior court erred in excluding it from consideration. When added to the total picture, it is entitled also to all reasonable inferences which may be drawn from it, in favor of the non-moving party. Davis v. Dickson, 232 Ga. 338, 339 (206 SE2d 473) (1974). All the evidence must be construed most strongly against the movant. Ga. Health Care v. Loeb, 151 Ga. App. 350 (1) (259 SE2d 734) (1979). It is not surprising that a clear, written manifestation of intent was not expressed, or that there was some misunderstanding of consequences. The law in Georgia on the subject of multiple party accounts has itself been unsettled and unclear, see Link, “Probate and Administration of Small Estates in Georgia: Some Proposals for Reform,” 6 Ga. L. Rev. 74, 80 (1971), and the statute now at issue had been passed just in 1976. It was in this total milieu that Mozelle acted.

This court concludes that there is not “clear and convincing evidence” that Bobbie was not to have the total beneficial interest, but that is first up to the jury, which will see and hear and observe the witnesses. Defendant has not established that she is entitled to prevail as a matter of law under OCGA § 9-11-56 (c), as there is a genuine issue of material fact made by plaintiff’s competent evidence and the rules governing it, which favor the respondent, whose right to a trial is at stake.

I would reverse.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.

Decided May 11, 1987

Rehearing denied June 1, 1987

Gary Walker, David N. Soloway, for appellant.

Robert E. Flournoy II, for appellee.


author: McMurray, Presiding Judge.

text:
    73687.
    DEPARTMENT OF TRANSPORTATION v. KANAVAGE.
    (358 SE2d 464)
   McMurray, Presiding Judge.

The Department of Transportation (DOT) filed a proceeding in rem, condemning property owned by Helen W. Kanavage (con-demnee). Condemnee timely filed a notice of appeal, demanding a trial by jury as to the value of the property taken. The jury awarded condemnee $26,500 and DOT appeals. Held:

In its sole enumeration of error DOT contends the trial court erred in denying its motion to strike the testimony of condemnee’s expert witness concerning the value of the condemned property as a convenience store.

In Dept. of Transp. v. Katz, 169 Ga. App. 310, 315 (5) (312 SE2d 635), this court held as there was evidence from which the jury would be authorized to conclude that the property had reasonable potential for a use other than for that to which it was presently being put, it was error for that trial court to refuse to give condemnees’ written request to charge as follows: “ ‘In the estimation of value of land taken for public uses, it is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated. The test in such cases is whether the land could be used for other purposes, not whether the land would be used for other purposes.’ See OCGA § 22-2-62 (d) (Code Ann. § 36-505).” In this regard, “[t]he jury [should be] allowed to inquire as to all legitimate purposes, capabilities and uses to which the property might be adapted, provided that such use [is] reasonable and probable and not remote or speculative.” Canada West, Ltd. v. City of Atlanta, 169 Ga. App. 907, 912 (6) (315 SE2d 442).

In the case sub judice, the condemnee’s expert witness testified that the condemned property’s highest and best use would be as a convenience store because of the property’s location in relation to nearby industry and residential development. Since this testimony was based on relevant facts concerning existing local population and industry, we find sufficient basis to authorize a conclusion that the condemned property could be used as a convenience store. Consequently, the trial court did not err in denying DOT’s motion to strike the testimony of condemnee’s expert witness.

Decided April 17, 1987

Rehearings denied May 18, 1987 and June 1, 1987.

William A. Zorn, for appellant.

Emmett P. Johnson, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Carley, Judge.

text:
    74211.
    BUTLER v. GEORGIA POWER COMPANY.
    (358 SE2d 266)
   Carley, Judge.

“The [appellant-]plaintiff in this tort action against multiple defendants alleges that he was injured while working beneath high voltage electrical lines when an electrical arcing occurred between the power line and a concrete conveyer unit, the controls of which [appellant] was holding at that time. This appeal arises from the grant of summary judgment in favor of one of the defendants, [appellee Georgia Power Company].” Butler v. T. C. Brittain Co., 181 Ga. App. 774 (353 SE2d 589) (1987).

The facts, insofar as they are relevant to this appeal, are undisputed. The concrete conveyer unit that appellant was operating at the time of his injury is, when fully extended, more than 35 feet in length. The unit was mounted on a truck at a point which was some five feet above the ground. Thus, the unit was capable of being extended vertically an approximate distance of some 41 feet from the ground. Measured vertically from the point where appellant was standing at the time of his injury, appellee’s closest electrical distribution line is 36-Vt feet from the ground. Other than by virtue of the height of their placement above the ground, appellee’s uninsulated lines were not protected against contact. Appellant saw appellee’s lines before he extended the conveyer unit and was injured. However, neither appellant nor anyone else had given appellee notice pursuant to OCGA § 46-3-33 that the conveyer unit would be operated within 8 feet of the lines. On this evidence, the trial court concluded “that the lines in question were properly located and maintained. There being no evidence that [appellee] was made aware of [appellant’s] activities as required by OCGA § 46-3-30 et seq., under the authority of Malvarez v. Georgia Power Company, 250 Ga. 568 [(300 SE2d 145) (1983)], . . . [appellant] is barred from any recovery from [appellee].” It is from that order that appellant brings this appeal.

In Malvarez v. Ga. Power Co., supra at 569, our Supreme Court held: “Although an employee as well as his employer may in some circumstances be a ‘person responsible’ for notifying the line owner or operator (OCGA § 46-3-30, [cit.]), lack of such notification is a bar to recovery only where the lines are ‘otherwise properly located and maintained.'' [Cit.] One whose injury is caused by negligent installation or maintenance of high-voltage lines, even where such injury occurs while engaged in acts enumerated in OCGA § 46-3-32 ([cit.]) within eight feet of the lines, is not barred by failure to give notice''' (Emphasis supplied.)

There being no notification to appellee of appellant’s ultimately injurious “construction work” activity, resolution of this case thus depends upon whether appellee breached its duty as to the installation and maintenance of its wires. If a genuine issue of material fact remains concerning appellee’s negligence in this regard, the trial court erred in granting appellant’s motion for summary judgment notwithstanding the lack of notification. If no such issue remains, summary judgment was proper since, absent notification, appellee owed no duty to appellant, the breach of which was a proximate cause of his injury.

Appellant’s position is, in essence, that the question of a power company’s negligence in the installation and maintenance of its electric wires is always a jury question. This position is not supported by the case law. See Carden v. Ga. Power Co., 231 Ga. 456 (202 SE2d 55) (1973) (summary judgment to power company affirmed); Georgia Power Co. v. Williams, 132 Ga. App. 874 (209 SE2d 648) (1974) (denial of power company’s motion for summary judgment reversed); Anderson v. Saffold, 134 Ga. App. 31 (213 SE2d 127) (1975) (summary judgment to power company affirmed). The evidence in this case is only that appellee installed and maintained uninsulated high-voltage electric lines some 36- Vi feet above the ground where appellant was standing when he was injured. “The use of uninsulated high tension wires by a power company in the transmission of electricity is not negligence. [Cit.] Where the company maintains its wires at a height such that it is not reasonable to anticipate that people will, in their normal living and passing under them, come in contact with them, insulation is not required. [Cits.]” Georgia Power Co. v. Williams, supra at 876 (2). “In our view the [power company’s] liability for injury resulting from contact with an uninsulated high tension wire arises only when it is reasonable for the company to foresee that contact might be made with its uninsulated wire, i.e., that there is a reasonably foreseeable danger of harm to [appellant] created by [ap-pellee’s] wires. [Cit.]” Georgia Power Co. v. Williams, supra at 877 (3). “[T]he mere maintenance, without more, of high tension wires at a minimum height of twenty-four feet four inches above a traveled roadway is not actionable negligence.” Carden v. Ga. Power Co., supra at 457.

It appears that appellee’s electric lines were not even passing over a traveled roadway at the point where the conveyer unit made contact with them. The evidence of record indicates that it was at some point off a traveled roadway that appellant parked the truck and then extended the conveyer unit. If the installation and maintenance of uninsulated electric wires some 24 feet and 2 inches above a traveled roadway is not, as a matter of law, negligence, then it is certainly not reasonable to anticipate that people will, in their normal living and passing under them, ever come into contact with such wires as are installed and maintained some 36-% feet above an area where neither pedestrian nor vehicular traffic is otherwise to be expected. Moreover, even assuming that the power lines were located over an area where pedestrian or vehicular traffic was otherwise expected to be passing underneath, it is undisputed that the lines were installed and maintained at a height such that it was not reasonable to anticipate that people would, in their normal living and passing under them, ever come into contact with those lines. Appellant was not merely passing under appellee’s lines. “But for” appellant’s “construction work” activity under the wires, contact with them would never have been made. The effect of holding that, notwithstanding the lack of any notice to appellee of that activity, it may still be held liable to appellant would be to negate the provisions of OCGA § 46-3-33. The trial court did not err in granting summary judgment in favor of appellee. See Carden v. Ga. Power Co., supra.

Decided May 20, 1987

Rehearing denied June 1, 1987

Ronald A. Lowry, for appellant.

Thomas C. Taylor, Robert L. Pennington, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge. Beasley, Judge,

text:
    73884.
    HONESTER v. TINSLEY.
    (358 SE2d 295)
   Banke, Presiding Judge.

This is an appeal by the tenant from a judgment entered on a jury verdict for the landlord in a dispossessory proceeding. In addition to seeking a writ of possession, the landlord also sought to recover unpaid rent and the cost of repairing certain damage allegedly caused by the tenant. The tenant counterclaimed to recover actual and punitive damages in excess of $14,500, based on allegations that the landlord had unlawfully caused her belongings to be removed from the premises subsequent to the initiation of the dispossessory proceedings, but prior to the date set forth in the summons for filing an answer. Because the tenant was no longer in possession of the premises at the time of trial, only the damage claims were tried before the jury. The jury returned a verdict of $100 for the landlord, and the tenant filed a direct appeal, enumerating as error the denial of her motion for a directed verdict on the counterclaim. Held:

1. OCGA § 5-6-35 (a) (6) mandates that an application for appeal must be taken “in all actions for damages in which the judgment is $2,500 or less.” This provision has been interpreted by the Supreme Court to apply where a judgment is rendered for some amount between one cent and $2,500. See City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986); Brown v. Assoc. Fin. &c. Corp., 255 Ga. 457 (339 SE2d 590) (1986). However, where the appellee has obtained such a judgment but, in addition, has prevailed on a counterclaim filed by the appellant, this court has held the code section to be inapplicable and has allowed the appellant to file a direct appeal. See Boatner v. Kandul, 180 Ga. App. 234 (2) (348 SE2d 753) (1986); Williams v. Charter Credit Co., 179 Ga. App. 721 (347 SE2d 635) (1986). To the extent that Rich v. McDonald Car &c. Leasing, 180 Ga. App. 613 (349 SE2d 832) (1986), is authority for a contrary holding, it is overruled. We accordingly reach the merits of the present appeal.

2. The appellant testified at trial that her belongings had been removed from the apartment by two men acting at the appellee’s direction, whereas the appellee testified that she had merely observed the appellant moving her personal property out of the apartment on the night in question and that the appellant had told her, upon being questioned about her intentions, that she did not intend to pay the past-due rent and she was voluntarily moving out. The appellee denied having contracted with anyone to remove the appellant’s property; however, her testimony in this regard was contradicted by two witnesses who claimed to have been hired by her to move the appellant’s furniture onto the street.

Prior to trial, the appellant served the appellee with a document styled, “Defendant’s Request for Admissions of Facts and Genuineness of Documents and Interrogatories Propounded to Plaintiff.” The first section of this document contained requests for admission while the following section contained “Interrogatories” seeking full explanations for any denials made in response to the first section. The appel-lee denied two requests for admission in which she was called upon to admit that she had contracted for or supervised the removal of the appellant’s property from the apartment on December 6, 1985; however, she went on to explain that any contract for the removal of furniture or any supervision by her of such removal had not taken place until after a hearing was held before the magistrate on December 12th. The appellant submits that this explanation was offered in response to the requests for admission, with the result that it must be considered a binding “admission” in judicio, which the appellee was not entitled to contradict at trial. However, we agree with the trial court that the explanation was, technically speaking, offered in response to the appellant’s interrogatories, with the result that the ap-pellee was not barred from contradicting it at trial. See generally Albitus v. Farmers &c. Bank, 159 Ga. App. 406 (1) (283 SE2d 632) (1981); Stone v. Lenox Enterprises, 176 Ga. App. 696 (1) (337 SE2d 451) (1985); Benn v. McBride, 140 Ga. App. 698 (231 SE2d 438) (1976).

The standard of review of the trial court’s denial of a motion for directed verdict in a civil case is the “any evidence” standard. United Fed. Sav. &c. Assn. of Waycross v. Connell, 166 Ga. App. 329 (1) (304 SE2d 131) (1983). See also OCGA § 9-11-50 (a). Since the appellee’s testimony in the present case provided at least some evidence that no unlawful eviction had occurred, the trial court did not err in denying the appellant’s motion for a directed verdict.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Brown v. Assoc. Fin. &c. Corp., 255 Ga. 457 (339 SE2d 590) (1986), is the principal Supreme Court case dealing with a main action and a counterclaim. However, it does not concern a situation where there was a money recovery under either. It held that “an application is required when a party seeking a money judgment prevails, that is a judgment for some sum is obtained.” The court reasoned: “In our view the legislature intended to remove the right of direct appeal when a claimant prevails but a fact finder has determined that the damage suffered is not substantial.” Brown found that a petition for writ of possession which was granted was not an action and judgment for damages, and thus OCGA § 5-6-35 (a) (6) did not apply.

Although there was a counterclaim seeking a set-off or recovery of statutory penalties which was dismissed, the Supreme Court opinion did not include the dismissal of the counterclaim (a so-called “zero” judgment) as an independent basis for direct appeal. Instead, review of the dismissal of the counterclaim was permitted because it was brought up with the judgment on the writ of possession (OCGA § 5-6-34 (c)), which was appealable because that judgment did not involve recovery of damages.

Boatner v. Kandul, 180 Ga. App. 234 (348 SE2d 753) (1986) and Williams v. Charter Credit Co., 179 Ga. App. 721 (347 SE2d 635) (1986), should not be followed because each decision is predicated upon a concept not found in Brown, that a direct appeal may be based upon a zero verdict on a counterclaim even though there was a recovery of damages in the amount of less than $2,500 on the main complaint. If these cases were correct, then Brown would have held that the dismissal of Brown’s counterclaim was subject to direct appeal and need not have bottomed the holding on the writ of possession.

Decided June 1, 1987.

Margaret L. Argent, for appellant.

John B. Adams, for appellee.

Instead the focus in Brown simply is whether there was an action for damages or not. If not, then OCGA § 5-6-34 (a) (6) is inapplicable; if so, on the other hand, then apply the $.01 to $2,500 test.

In my view, Rich v. McDonald Car &c. Leasing, 180 Ga. App. 613 (349 SE2d 832) (1986), involves a different situation and should not be overruled. Instead, Boatner, supra, and Williams, supra, should be overruled as conflicting with Brown, supra. This appeal should have been by application and thus should be dismissed because appellant chose the wrong vehicle for review.


author: Benham, Judge.

text:
    73890.
    HEFLIN v. THE STATE.
    (358 SE2d 298)
   Benham, Judge.

A jury found appellant guilty of the charges of which he had been accused in a 15-count indictment. Fourteen of the fifteen counts were related to attacks on various women in their automobiles. On appeal, appellant questions the sufficiency of the evidence presented against him on two counts, several evidentiary rulings, and the denial of his motion for a continuance.

1. Pursuant to appellant’s petition, appellant underwent a psychiatric examination and was found competent to stand trial. On the morning of trial, appellant’s counsel sought and was denied a second continuance and funds in order that appellant might undergo a second psychiatric examination. Appellant now argues that the lack of a “meaningful” psychiatric examination rendered appellant’s counsel ineffective insofar as the presentation of a defense of mental illness was concerned.

“A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. [Cits.]” Lucas v. State, 174 Ga. App. 580 (1) (330 SE2d 792) (1985). Appellant’s second motion for continuance was based upon his counsel’s belief that the first psychiatric examination was not “meaningful.” The record contains no evidence to support appellant’s assertion. At trial, appellant called as a witness the examining psychiatrist, who expounded upon his written report and testified that he had concluded that appellant was legally sane, although suffering from schizophrenia. The State complied with its obligations under the United States Constitution as interpreted by the U. S. Supreme Court in Ake v. Oklahoma, 470 U. S. 68 (106 SC 1087, 84 LE2d 53) (1985), and appellant did not make a showing that additional psychiatric study was necessary. We find no abuse of discretion in the trial court’s denial of appellant’s motion for continuance. Insofar as appellant’s enumeration of error may be read as alleging a denial of effective assistance of counsel, we note that our review of the trial transcript reveals an adequate presentation of the insanity defense. We will not further address that area of appellant’s enumeration since it was not ráised in the trial court. Brown v. State, 251 Ga. 598 (3) (308 SE2d 182) (1983).

2. Count 15 of the indictment charged appellant with entering an automobile with intent to commit a theft. See OCGA § 16-8-18. The arresting officer testified that while routinely patrolling a parking deck as a security officer, he observed an automobile, the trunk of which, although not opened, had been damaged by an attempt to pry it open. When the officer stopped appellant, whom he had observed walking quickly from the damaged vehicle, appellant displayed a tire tool and said, “You got me, I did it.” Appellant now questions whether there was sufficient evidence presented concerning his intent to commit a theft.

“As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent.” Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209) (1980). While evidence that valuables were present in the trunk is sufficient to support a finding of the requisite intent (Fields v. State, 167 Ga. App. 400 (1) (306 SE2d 695) (1983)), lack of such evidence does not automatically result in a lack of evidence from which intent may be inferred. The intent to commit a theft may also be inferred by appellant’s admitted action of attempting to break into an area of an automobile in which valuables might be stored. The fact that appellant may have failed in accomplishing his apparent purpose does not render a finding of guilty improper. Bradshaw v. State, 172 Ga. App. 330 (2) (323 SE2d 253) (1984). There was sufficient evidence to convict appellant of the crime charged.

3. Appellant also takes issue with the sufficiency of the evidence concerning the allegation that he committed aggravated assault with intent to rape the victim named in Count 10. Again, appellant challenges the evidence of his intent.

The victim named in Count 10 testified that appellant, passing as a parking garage employee, gained access to her automobile and grabbed her around her neck. After a struggle she escaped from appellant before suffering further injury. Another victim testified she was forced to commit sodomy on a man who had gained entry to her automobile by posing as a parking garage attendant; another victim was raped in her car, in which appellant’s fingerprints were found. Yet another woman identified appellant as the man who raped her in the back seat of an auto she believed to be a taxicab. All of these incidents occurred in November 1985 in or near downtown Atlanta. Evidence of the similar crimes was admissible to prove appellant’s intent to rape the victim named in Count 10. Gladson v. State, 253 Ga. 489 (2) (322 SE2d 45) (1984). We find the evidence on that issue sufficient.

4. Appellant next asserts error in the admission of evidence of similar transactions. The State presented evidence from a woman that she had been assaulted in her automobile at 7:00 a.m. on November 20, 1985, in a neighboring county by a man who was driving the auto stolen the previous night from the victim named in Count 10. This attack preceded by a few hours the assault of the victim named in Counts 11-14. Appellant concedes the incident was similar but contends that the testimony was inadmissible because he was not identified as the perpetrator.

“ ‘The general rule is that on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.’ [Cits.] Yet, this court has long recognized exceptions to this general rule ‘. . . as when the extraneous crime forms a part of the res gestae; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused, or articles connected with the offense . . .’ [Cits.]” Natson v. State, 242 Ga. 618 (1) (250 SE2d 420) (1978). In light of the proximity of the timing of the separate crime to two of the incidents for which appellant was being tried; the use of the vehicle appellant was accused of taking; and the similarity of the descriptions each victim gave of her assailant, we conclude that the evidence of the separate incident was admissible as one of a system of mutually dependent crimes.

5. Appellant’s failure to object to the line of questioning that serves as a basis for appellant’s final enumeration of error leaves this court with nothing to review. Curry v. State, 233 Ga. 455, 456 (211 SE2d 746) (1975).

Judgment affirmed.

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

Decided June 1, 1987.

Michael H. Lane, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.