text:
    8186.
    Peavy et al. v. Moore & Evans.
    Decided April 25, 1917.
    Motion for discharge in trover; from Dooly superior court— Judge George. August 31, 1916.

      Powell & Lumsden, J. T. Hill, for plaintiffs in error.

      L: L. Woodward, contra.
   Jenkins, J.

1. The typewritten bill of exceptions in this ease shows various interlineations written therein amounting to material changes in fact and substance. Attached to it is the affidavit of one of the attorneys of record for the plaintiffs in error, stating that the attorney for the opposite parties had been personally served with a copy of “the within bill of exceptions.” A motion to dismiss, sworn to by counsel for the defendants in error, is made upon the ground that the copy of the bill of exceptions served upon him, which copy is attached to the motion, is not a true copy of the original in fact or substance. Held, that as this court has no jurisdiction to hear contradictory evidence as to the verity óf a record from the trial court which it is sought to impeach, and as the bill of exceptions, with the affidavit of service accompanying it, shows on its face jurisdiction of this court, the writ of error will not be dismissed. Ga., Fla. & Ala. Ry. Co. v. Lasseter, 122 Ga. 679 (51 S. E. 15); Swafford v. Swafford, 125 Ga. 386 (53 S. E. 959).

2. Where defendants in bail-trover process proceed, under the provisions of § 5154 of the Civil Code of 1910, to ask their discharge upon their own recognizance, conditioned for their appearance to answer the suit, it is incumbent upon them to satisfactorily show that they were unable, at the time the process was sued out, to comply with the requirements of the law in regard to producing the property or giving the security, and that such inability continues without fault or misconduct on their part since that time; and where, under such a motion, no evidence shows why a portion of the property sued for could not be produced, and where no evidence is submitted as to any attempt by any .of them to give the bond and security, and where it affirmatively appears by the testimony of two of the movants that no such effort was made by them, the discretion of the judge, in remanding the latter back to custody and in requiring an appearance bond by the former, will not be distuibed.

Judgment affirmed.

Broyles, P. J., and Blood-worth, J., concur.


source: Caselaw Access Project

author: Bkoydes, P. J.

license: Public Domain

text:
    8189.
    Allen v. Allen et al.

   Bkoydes, P. J.

1. The evidence, the admission of which is complained of in the special grounds of the motion for a new trial, was admissible for the purpose stated by the trial judge at the time of its admission.

2. This was a suit upon the bond of an administratrix, brought against her and the sureties on the bond. Under the facts of the case the insurance policy upon the life of the deceased was void and unenforceable,- but this was not an issue in the case. The only issue before the jury was whether the $1,000 which the insurance company paid to Mrs. Allen, the widow and administratrix of the decedent, and which was sued for in this ease, was paid solely as a personal gift to her, on account of former services rendered the company by the decedent, or was paid to her as the administratrix of the estate of the decedent, in settlement of the policy. Upon this issue the evidence was conflicting and would have warranted a finding either way. The jury returned a verdict against Mrs. Allen, for $500, but in favor of her bondsmen, and the plaintiff made a motion for a new trial. The trial judge granted a new trial as to Mrs. Allen, but refused it as to the other two defendants, the sureties on the bond, and the movant excepted. The record discloses no error of law, and the judgment of the lower court is accordingly Affirmed.

Decided April 25, 1917.

Action on bond; from Wilcox superior court—Judge George. August 22, 1916.

Hal Lawson, for plaintiff. J. T. IT ill, for defendants.

Jenkins and Bloodworth, JJ., concur.


author: Rboyles, P. J.

text:
    8227.
    Hogan et al. v. Thomas.
    Decided April 25, 1917.
    Complaint; from Laurens superior court—Judge Kent. May 29, 1916.
    James A. Thomas sued Boseoe C. Hogan and Uriah G-. B. Hogan for $350 and interest,- alleged to be due under a written contract by which they agreed to pay him that sum to obtain a loan of $3,500 for them on certain land. He alleged that he obtained the loan and placed it at their disposal, but that they refused to accept it. The defendants, in their answer, denied the material allegations of the petition. On the trial the judge, at the conclusion of the evidence, directed a verdict for the plaintiff. The defendants brought the case to this court on exceptions to the refusal of their motion for a new trial, in which they alleged that the verdict was contrary to evidence and without evidence to support it, and that the directing of a verdict for the plaintiff was error, because the contract sued on was without consideration, unilateral, and without mutual obligation, and because the money was not tendered to or refused by the defendants, and it was not shown that the plaintiff secured the money to close the loan with, and further, because there was a question of fact as to who was to get the land released from the old loan when the contract was made.
   Rboyles, P. J.

Under the evidence introduced, the court erred in directing a verdict for the plaintiff.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.

The contract introduced in evidence by the plaintiff was as follows :

“Dublin, Ga., January 2d, 1915.

“To James A. Thomas: We hereby constitute you our agent, and request and authorize you as such to negotiate for us a loan of thirty-five hundred dollars, on five years time, with interest at 7 per cent, per annum, payable . . . annually, at such place as you may name; said loan to be evidenced by our note, of the form used by you, and said note and loan to be secured by a deed with power of sale to secure debt, of the form used by you, to real estate owned by us, consisting of 300 acres of land in the 18th district of Laurens county, Georgia, more particularly described in our application of even date. In consideration of the procurement of said loan by you or by any other party or parties to whom you may transfer this contract, we hereby agree: First: To pay as commission ten per cent, of loan granted us, . . . dollars, to be deducted from the proceeds thereof. Second: To furnish a full and complete abstract, showing perfect title- to lands described in my application for said loan, and to save you harmless from loss by reason of your guarantee that said abstract is full and complete. Third: To accept said loan if negotiated for us, and to pay interest thereon from the day the money is placed at our disposal, subject to completion and delivery by us of notes and deed of approved form, which shall be a first lien upon the property described in our said application. Fourth: To pay the fees for recording, other incidental expenses, and all expenses incurred in perfection of our title.

“If for any cause we . . . unable or unwilling to carry out the provision of this contract after said loan shall have been' procured for us, or our title should be pronounced defective by competent counsel employed to review said abstract, then we agree to pay you, or transferees, interest on the money from the date of procurement of loan, and said commission.

“We have made, constituted, and appointed, and by these presents do make, constitute, and appoint said James A. Thomas our true and lawful attorney in fact to obtain for us said loan, and we hereby authorize .... to receive for us the whole or any part thereof, check, draft, or in cash, either for the payment of any prior lien or claim against the property described in our. said application, or for our further use or benefit. And we further authorize the said James A. Thomas to pay off any and all liens or claims of whatsoever kind and character against the property described in our said application, paying the amounts thereof directly to the legal holders of the same respectively, and to take out in our name insurance on the buildings described in said application, to the amount of-.

“Witness our hands and seals, this second day of January, 1916.

[Signfed] Eoscoe C. Hogan (L. S.)

[Signed[ Uriah G. B. Hogan (L. S.).”

The plaintiff testified as follows: He performed his part of said contract. He took the application, made abstract, submitted it to his companjr. They accepted the application, $3,500, and sent him all the loan papers to be signed by the defendants, and authority to draw on them for the money. The only reason the loan was not closed was the fact that there was a prior lien on this land in the application and other lands, made by D. G. Hughes, for $30,000, and defendants were unable to get this land in their application released from the old loan. He did not have the money in his hands, nor did he see the money sent to close this loan with, but Howard M. Smith, of Macon, Georgia, informed him that this loan had been accepted, and that the money was then ready to close it with when the title was straight. He knew of the old loan of $-10,000 when and before he took the contract sued on. He had a talk with defendants, Mr. Finn, and Mr. Williams about getting the land in this application released from the big loan, and it was the understanding that they were to have this done, and it was not the contract or agreement that plaintiff was to do this. “From the time the loan was accepted until it was called off, interest to the amount of $16.30 had accrued, and I had this to pay. I did all I could to close the loan, and it was no fault of mine that it was not closed, and I admit it was not the fault of defendants, but it was tin account of the prior loan on this and other land that they could not get released.” Plaintiff was ready to give draft or cash to Finn or defendants to close the loan the day it was called off.

E. C. Hogan, one of the defendants, testified: He was the one who made the contract with Mr. Thomas to get the loan. He told Mr. Thomas that they owed Mr. Finn money on this land and wanted the loan to pay him with; also told Mr. Thomas about the Hughes loan, and told him if he and Mr. Finn and Mr. Williams could get it in shape, he wanted Mr. Thomas to get the loan, but that if he, Thomas, Finn, and Williams could not get this land out of the old loan, defendants did not want to pay anything on the land or loan; and Mr. Thomas said he had seen Finn and Williams, and that the old loan could be arranged and this land released; and on these terms and with this understanding he gave Thomas the contract. Thomas has never offered them the money, and defendants have not refused to' take the money. They wanted it then and still want it, but it was the distinct understanding that the defendants were not the ones to get the old loan released from the land in quesion, and Thomas, Finn, and Williams all knew this.

G. H. Williams testified: Thomas and Finn came to him about getting the land released from the old loan, and he told them he thought he could do so, and would try, and he did what he could to get it released, but it was just after the war broke out, and loan companies would not disturb anything at that time. He, Finn, and Thomas all did all they could to get the land released, but failed. He had assumed the payment of the old loan, and the .money Thomas was trying to get was not to go to the loan company, but was to go to Finn. Thomas and Finn both knew about the old loan before the contract sued on was made.

Williams & Flynb, for plaintiffs in error.

8. W. Sturgis, contra.


author: Rloodworth, J.

text:
    8230.
    Hester v. Dreyer & Hinson.
   Rloodworth, J.

1. “While a married woman may not contract a debt of suretyship that will hind her, she may, as an original undertaker, become liable for goods furnished to another from which she derives no personal benefit.” Freeman v. Coleman, 86 Ga. 590 (12 S. E. 1064); Finch v. Barclay, 87 Ga. 393 (13 S. E. 566).

2. “A judgment overruling a motion for a new trial is not an error of law which can he corrected in this court, where no material error of law was committed during the trial, and where there is any evidencS upon which the verdict could have been based. A verdict can not be set aside by this court merely because it is against the weight of evidence. Applying the foregoing to the facts as they appear in the present record, the judgment overruling the motion for new trial must be affirmed.” Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132).

Decided April 25, 1917.

Foreclosure of mortgage; from Laureus superior court—Judge Kent. June 1, 1916.

Gamp & Twiily, for plaintiff in error. J. S. Adams, contra.

Judgment affirmed.

Broyles, P. /., and Jenhins, J., concur.


author: Droyles, P. J.

text:
    8231.
    Bond et al. v. First National Bank of Sandersville.
    Decided April 25, 1917.
    Complaint; from Twiggs superior court—Judge Kent. August 1, 1916.

      L. D. Moore, for plaintiffs in error.

      M. L. Gross, B. A. Harrison, contra.
   Droyles, P. J.

1. To avoid a contract on account of mental incapacity, there must be an entire loss of understanding. Frizzell v. Reed, 77 Ga. 724; Maddox v. Simmons, 31 Ga. 512, 527; Nance v. Stockburger, 111 Ga. 821 (36 S. E. 100) ; DeNieff v. Howell, 138 Ga. 248 (75 S. E. 202). (n) One who has not strength of mind and reason equal to a clear and full understanding of his act in making a contract is one who is afflicted with an entire loss of understanding. Barlow v. Strange, 120 Ga. 1015, 1018 (48 S. E. 344).

2. In the instant ease, while there was abundant evidence tending to show that the defendant was not mentally incapacitated to make the contract sued upon, yet there was some evidence to the contrary, and this issue should have been submitted to the jury with appropriate instructions. The court therefore erred in directing a verdict for the plaintiff, and in refusing to grant a new trial.

Judgment reversed.

Jenhins and Bloodworth, J.J., concur.


author: Wade, 0. J.

text:
    8012.
    CITY OF GRIFFIN v. STEWART.
    The several grounds of the demurrer were without any substantial merit, and the trial court did not err in overruling them.
    Decided May 3, 1917.

      Action for damages; from city court of Griffin—Judge Flynt. December 7, 1916.

      G. G. Mills, for plaintiff in error.

      J. A. Darsey, J. 11. Williams, for defendant.
   Wade, 0. J.

J. A. Stewart brought suit against the City of Griffin to recover damages for alleged personal injuries, and the defendant filed a general and special demurrer to the' petition. The court overruled the demurrer, on each and every ground, and the defendant excepted. , . n

. The first ground of the .general demurrer is that “under the allegations of the petition, plaintiff is not entitled to maintain his suit or to recover damages against the defendant.” The defendant contends that the court should have sustained this ground because the .plaintiff failed to comply with the requirements of the Political Code, § 910, by presenting, before suit, a written claim for $232 to the authorities of the municipality, while in his petition he seeks to recover $5,000 as the extent of his injuries. This section of the code provides that “no person, firm, or corporation, having a claim for money damages against any municipal corporation of this State on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the same, without first presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as near as practicable, and the negligence which caused the same, and no such suit shall be entertained by the courts against such municipality until the cause of action therein has been first presented to said governing authority for adjustment.” A substantial compliance with those requirements of this code-section is all th$t is necessary, since the object of the notice therein provided for is to put the municipality in possession of such facts as will enable it to investigate the actual merits of the claim and to determine whether to pay it. In Langley v. Augusta, 118 Ga. 590, 600 (45 S. E. 486, 98 Am. St. R. 133), it was said that this section “does not contemplate that the notice shall be drawn with all the technical niceties necessary in framing a declaration,” and that “it is necessary only that the city shall be put on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury.” In Mayor &c. of Macon v. Stringfield, 16 Ga. App. 480 (85 S. E. 684), it was said: “The paper which this section of the code requires to be presented is there designated as ‘a claim for money damages;’ and a claim for money should state the amount of money claimed. One of the things required by this section is a statement of the ‘extent’ of the injury. The reason for this requirement is obvious. The object and purpose o£ the statute was to require such information as would apprise the governing authority of the municipality of the amount of the claim and enable the proper officials to investigate the injury complained of and determine whether or not to adjust the demand without suit.” See also authorities cited in that case.

The notice given to the municipal authorities in this case sets out the time, the place, the nature of the alleged injury, and the extent of the injury; and we hold that this was at least a substantial (if not exact) compliance with the law, notwithstanding this notice claims money damages in the sum of $232, while the petition seeks to recover the sum of $5,000 as the “extent” of the injuries therein complained of. Of course, had the notice failed to specify any amount of money as damages (as was the ease in Mayor &c. of Macon v. String field, supra), there would have been no compliance with the code section. However, as stated above, the plaintiff in his notice claimed a specified amount as damages, for which amount the injury could have been compensated; and if “admissions or propositions made with a view to a compromise are not proper evidence” (Civil Code, § 5781), they can not thereafter bo pleaded in bar against the plaintiff. The mere fact that the amount named in the notice, and which the city refused to accept in adjustment of the claim, differed from the amount subsequently sued for is immaterial. Any ruling to the contrary would be obviously improper, since it would be equivalent to holding that a plaintiff, by offering to compromise for a stated sum, eoidd not later sue for a greater amount. The plaintiff may amend an action for damages by increasing or reducing the amount sought to be recovered; and, this being true, it would certainly be unreasonable to hold that he could not sue a city for a larger amount on account of injury to person or property than he had previously demanded of the municipality in full compensation therefor, in compliance with the requirements of the statute. Certainly where the plaintiff made demand for $232 and this demand was refused by the city, the municipality could not rationally claim that it did not have an opportunity to adjust the claim without suit, because the plaintiff afterwards brought his action for $5,000. The failure or refusal to pay the $232 demanded in the claim presented to the governing authority of the city amounted to a denial of liability on the part of the city, and left the plaintiff free to bring suit for whatever amount he in his judgment saw fit to claim, without in any way running counter to the purpose which section 910 is intended to subserve; for in no sense was the city thereby deprived of an opportunity to investigate and determine the validity of the claim and effect a settlement thereof within 30 days without incurring the cost of suit. See Williamson v. Savannah, ante, 784. There is, therefore, no merit in this ground of the demurrer.

The second ground of the general demurrer is that “ho cause of action is set forth in the petition in favor of plaintiff and against defendant.” The defendant contends that the court should have sustained this ground because th'e petition shows on its face that no notice had been submitted to the governing authorities for adjustment, placing the extent or amount of damages at $5,000, and without such allegation the petition set forth no cause of action. In view of the ruling above, this ground of the demurrer is without merit. Paragraph 12 of the plaintiff’s petition is as follows: “Plaintiff avers further that he made a written demand on the 25th day of September, 1916, for his claim for damages as aforesaid, to the governing authorities of said city of Griffin, mayor and council, for adjustment, a copy of said demand being hereto attached and marked exhibit ‘A’.” -Exhibit “A” is a copy of the notice which we considered in dealing with the first ground of the demurrer, and which we held above to be a sufficient comjffiance with the requirements of the Political Code, § 910. In the case of City of Columbus v. McDaniel, 117 Ca. 823 (45 S. E. 59), it was held: “Inasmuch as a municipality is not, since the passage of the act of December 20, 1899 [Political Code, § 910], subject to suit on a claim of the character therein mentioned until after the same has been presented in writing to the municipal authorities for adjustment, it is imperative that one instituting an action to enforce the payment of such a claim shall in his petition affirmatively allege full'compliance with the" requirements of that act. Saunders v. Fitzgerald, 113 Ga. 619 (38 S. E. 978). But the plaintiff is under no obligation to encumber his pleading by setting forth in his petition, or attaching thereto as an exhibit, an exact copy of the written demand made upon the defendant corporation, since it merely affords evidence of his right to presently prosecute his suit, and is in no sense an instrument to be declared on as giving rise to his cause of action.” Here a copy of the demand was attached as an exhibit, though the same was not fully set out in the petition itself. The third and fourth grounds of the general demurrer are merely amplifications of the preceding grounds, and are therefore without merit and need no further discussion.

The grounds of the special demurrer complaining that paragraphs 3, 4, 5, 6, and 7 of the petition are so vague, uncertain, and indefinite that the municipal corporation was unable to meet the allegations contained therein are without merit. By referring to these paragraphs we find that they sufficiently show the “time” when the injury occurred, the place “where,” the “negligence” of tire defendant in allowing and permitting- the place to be left open for four weeks or longer, and the nature and character of the defect in the street which caused the injury.

The last ground of the special demurrer is as follows: “For further special demurrer defendant says that no bill of particulars is attached, and without same it will be impossible to successfully defend this suit for damages.” This ground is likewise without merit. The claim for money damages, presented to the governing authority of the municipality, which was attached to the petition as an exhibit, contained the follorving statement: “Now, in order to avert a damage suit, and in order to effect a compromise, if the said city will pay me two hundred ($200) dollars, medical service twenty-five ($25) dollars, drug bills four dollars forty cents ($4.40), and for shoe three ($3) dollars, amounting in all to $232, I will release the city from all liability by reason of being injured in said city, provided it is done at once, and provided this offer of compromise does not act as a bar to suing for á greater sum;” the $200 therein referred to being compensation for the injury to the plaintiff and the resulting physical pain and suffering. The petition itself sets forth the injury for which the plaintiff sued, the nature and character thereof, the resulting effect in decreasing the earning capacity of the plaintiff, his ex- ■ pectancy, etc., and further alleges that he was put to expense “for medical service, etc., on account of said injuries,” and as an exhibit to the petition the amount of “medical services, etc,” is distinctly and definitely alleged; so the defendant was clearly put upon sufficient notice as to what amount would be claimed for medical services, etc., notwithstanding the difference between the total amount claimed in the petition and the total amount claimed in the notice, or the amount named for the injury to the plaintiff and the resulting pain and suffering.

Judgment affirmed.

George and Luke, JJ., concur.


author: Wade, C. J.

text:
    8065.
    Walters v. Taylor.
    Decided May 3, 1917.
    Levy and claim; from Hart superior court—Judge Meadow. January 4, 1916.

      A'. A. McGurry, for plaintiff in error,

      A. S. Richardson, J. II. Skelton, contra,
    cited: Civil Code (1910), § 6051; James v. Avery, 3 Ga. App. 357.
    cited: H. S. Eev. Stat. §§ 3450, 3460; United States v. Two bay mules, etc., 36 Fed. 84; United States v. Seven barrels of distilled oil, 6 Blatch. 174, s. c. 27 Fed. Cases, No. 16253:
   Wade, C. J.

1. In a purchase-money note to the plaintiff in fi. fa., on which his judgment and fi. fa. were based, title to the property in dispute was retained in him; and the note was duly recorded. The claimant could not, at a sale of this property under proceedings by a revenue ' officer of the Eederal government against the party holding it under this contract with the plaintiff, obtain any greater interest than was then vested in the defendant, and this sale could not opératelo divest the title then existing in the plaintiff. Title never having in fact vested in the defendant, but remaining throughout in the plaintiff in fi. fa., the sale could not operate to create a title in the holder of the property or in the purchaser at such sale.

2. Under the foregoing ruling there was no error in the exclusion of the documentary evidence relating to the seizure and sale, of the property in. the revenue proceeding, and the court did not err in directing a verdict finding the property subject to the plaintiff’s execution.

Judgment affirmed.

George and Luke, JJ., eoneur.


text:
    8255.
    MAYFIELD v. CITY OF COLLEGE PARK.
    1. Suit for damages was brought and process issued against the “City of ' College Park,” alleged to be a municipal corporation. The charter of the city, referred to in the petition and process, provides that “said city is hereby incorporated under the name and style of College Park,” but further provides that “said municipal government shall be styled the ‘mayor and council’ of the city of College Park, and by that name are made a body corporate; and as'such . . may sue and be sued.” Acts of 1895, p. 251 (§§ 2, 3). The suit being therefore a nullity ab initio (White v. Forsyth, 136 Ga. 634 (71 S. E. 1073), the demurrer raising the point that the defendant corporation was not sued in the name designated in its charter as the name in which it shall be sued, and that “the action, not being brought in the true corporate name of the defendant, can not be maintained in law,” was properly sustained, notwithstanding the demurrer was not interposed until after appearance and pleading; and the court did not err in refusing to allow a proposed amendment to the void suit. See, in this connection, Boon v. Jachson, 98 Ga. 490 (25 S. E.. 578) ; Town of Dexter v. Gay', 115 Ga. 765. (42 S. E. 94); Augusta Southern RaiUcay Go. v. Tennille, 119 Ga. 804 (47 S. E.-179); Toion of East Rome v. City of Rome, 129 Ga. 290 (58 S. E. 854) ; Gelders v. Fitzgerald, 135 Ga. 400 (69 S. E. 569); White v. Forsyth, supra.
    2. Jn view of the repeated and uniform adjudications by the Supreme Court on the question involved, some of which have been recently made, this court does not feel that it should invite the attention of the Supreme Court to the question and ask that these decisions be reviewed, and either modified, set aside, or reaffirmed.
    Decided April 25, 1917.
    Action for dahiages; from Fulton superior court—Judge Bell. February 4, 1916.

      J. F. Goliglitly, for plaintiff. A. G. Riley Jr., for defendant.
   Wade, C. J.

The act of 1891 (Acts of 1890-1, vol. 3, p. 685), incorporating the Town of Dexter, in Laurens county, contains the following provisions: “Be it enacted by the General Assembly of the State of Georgia, that the town of Dexter, in the county of Laurens, be, and the same is, hereby incorporated as a town under the name of the town of Dexter. . . Be it further enacted, that the corporate limits of said town of Dexter shall be one-half mile in any direction from the depot warehouse, on the Empire and Dublin Bailroad. . . Be it further enacted, that the. municipal government of said town shall be vested in a mayor and five aldermen, who shall be styled the mayor and aldermen of Dexter, and by that name are hereby made a body corporate. As such they shall have perpetual succession; shall have a common seal; may contract and be contracted with; may sue and be sued, purchase, receive, hold, possess, sell- and convey, for the use of said town, real or personal estate of any kind,” etc. In construing this charter and determining the manner in which suit must be brought against the municipal corporation, the Supreme Court said, in Town of Dexter v. Gay, 115 Ga. 765 (43 S. E. 94), that “A municipal corporation can be sued only in the corporate name set forth in the charter. . . When the General Assembly by an act incorporates ‘a town under the name of the Town of Dexter/ and declares that the municipal government of such town shall be vested in a mayor and five aldermen, who shall be styled ‘The Mayor and Aldermen of Dexter, and by that name are hereby made a body corporate/ and as such may sue and be sued, such town can be sued only in the corporate name last referred to, and a suit brought against the ‘Town of Dexter’ should be dismissed on demurrer.” The act of 1895 (Acts of 1895, p. 351), incorporating College Park, contains the following provisions: “Be it further enacted by authority aforesaid, that said city is hereby incorporated under the name and style of College Park,” etc. “Be it further enacted by authority aforesaid, that the municipal government of said city shall be vested in -a mayor and six councilmen, who shall have been bona fide residents of said city for one year preceding their election to said offices. Said municipal government shall be styled the ‘mayor and council’ of the city of College Park, and by that name are made a body corporate; as such they shall have perpetual succession, shall have a common seal, may contract, hold, possess, sell, and convey, for the use of said city, real or personal estate of any kind; may sue and be sued; shall pass such ordinances, resolutions, and by-laws for the government of said city as they may deem proper, not in conflict with this charter or the constitution and laws of this State, or of the United States.” '

It will be observed that the act incorporating the Town of Dexter declares that “the town of Dexter, in the county of Laurens, be, and the same is, hereby incorporated as a town under the name of the town of Dexter;” and that the act incorporating College Park declares that “said city is hereby incorporated under the name and style of College Park.” The language used in both instances is practically identical. Tt is further provided that the municipal government shall be vested in. a body, who in the one case “shall be styled the mayor and aldermen of Dexter, and by that name are hereby made a body corporate,” with the right of perpetual succession, etc., and under that name “may sue and be sued;” and in the other case “shall be styled the ‘mayor and council’ of the city of College Park, and by that name are made a body corporate,” with the right of perpetual succession, etc., and under that'name “may sue and be sued.” In the case of the Town of Dexter, although the act declares that the municipality is incorporated as “a town under the name of the town of Dexter,” yet since it further declares that the municipal government shall be vested in a mayor and five aldermen, who “shall be styled the mayor and aldermen of Dexter, and by that name are hereby made a body corporate,” and as such may sue and be sued, the Supreme Court held that “such town can be sued only in the corporate name last referred to, and a suit brought against the ‘Town of Dexter’ should be dismissed on demurrer.” This ruling is precisely in point in the ease under consideration; and, since it does not appear to have been doubted or criticised by the Supreme Court, and the decisions of that court are precedents binding upon this court, until reversed or set aside by the Supreme Court itself, the ruling in the first headnote above necessarily follows.

Judgment affirmed.

George and Lulce, JJ., concur.


author: Bloodworth, J.

text:
    7735.
    Roach et al. v. Williams.
    Decided May 3, 1917.
    Trover; from municipal court of Atlanta. July 5, 1916.

      Albert JS. Mayer, for plaintiffs in error.

      Paul Donehoo, Mayson & Johnson, contra.
   Bloodworth, J.

Under the ruling in American Life &c. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction to hear and determine this case, and the writ of error must be

Dismissed.

Broyles, P. J., and Jenlcins, J., concur.


author: Jenkins, J.

text:
    7738.
    Jones v. Wester.
    Decided May 3, 1917.
    Attachment; from municipal court of Macon—Judge Chambers. July 24, 1916.

      E. F. Strohecker, for plaintiff in error. G. E. Garrett, contra.
   Jenkins, J.

Under the ruling in American Life &e. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction t.o hear and determine this case, and the writ of error must be

Dismissed.

Broyles, P. J., and_ Bloodworth, J., concur.


text:
    7742.
    Napier v. Southern States Fire &c. Insurance Co.
    Decided May 3, 1917.
    Action on policy; from municipal court of Macon—Judge Chambers. July 20, 1916.

      Byals & Anderson, B. S. Deaver, for plaintiff in error.

      F. 0. Powers, contra.
   Jenkins, J.

Under the ruling in American Life &e. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction to hear and determine this case, and the writ of error must be

dismissed.

Broyles, P. J., and Bloodworth, J., concur.


author: ' Broyles, P. J.

text:
    7748.
    Smith v. Georgia Packing Company.
    Decided May 3, 1917.
    Complaint; from municipal court of Macon—Judge Chambers. July 21, 1916.

      B. K. Eines, Augustin Daly, for plaintiff in error.

      Will Gunn, Charles Euguley, contra.
   ' Broyles, P. J.

Under the ruling in American Life &c. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction to hear and determine this case, and the writ of error must be

Dismissed.

Jenlcins and Bloodworth, JJ., concur.


text:
    7794.
    Central of Georgia Railway Company v. Odom et al.

    Decided May 3, 1917.
    Complaint; from municipal court of Macon—Judge Chambers. July 29, 1916.

      Newman & Newman, for plaintiff in error.

      Herring &-Sparles, contra.
   Jenkins, J.

Under' the ruling in American Life &c. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction to hear and determine this case, and the writ of error must be

Dismissed.

Broyles, P. J., and Bloodworth, J., concur.


text:
    7816.
    Childs v. Moon Motor Car Company.
    Decided May 3, 1917.
    Complaint; from municipal court of Atlanta, May 19, 1916. Lamar Hill, for plaintiff in error.

      Anderson, Slate & D’Orr, L. S. Hulbert, contra.
   Bloodworth, J.

Under the ruling in American Life &c. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction to hear and determine this case, and the writ of error must be

Dismissed.

Broyles, P. J., and Jenkins, J., concur.


text:
    7836.
    Adams v. Burden, Smith & Company.
    Decided May 3, 1917.
    Complaint; from municipal court of Macon—Judge' Chambers. August 19, 1916.

      B, L. Berner, W. J. Holliman, for plaintiff in error.

      Herring & Sparles, contra.
   Bloodworth, J.

Under the ruling in American Life <&c. Insurance Co. v. Quarterman, ante, 798, the Court of Appeals is without jurisdiction to hear and determine this case, and the writ of error must be

Dismissed.

Broyles, P. J., and Jenkins, J., concur.


author: Broyles, P. J.

text:
    7269.
    Griffin v. Sisson.
    Decided May 11, 1917.
    Affidavit of illegality; from municipal court of Atlanta. January 22, 1916.

      J. R. Bedgood, A. Kemper, J. 8. James, for plaintiff in error.

      Alvin L. Richards, contra.
   Broyles, P. J.

■ Under the decision of the Supreme Court in response to questions certified by the Court of Appeals in this case, the Court of Appeals, since the adoption of the constitutional amendment of 1916 as to its jurisdiction, is without jurisdiction to hear and decide any case pending therein on writ of error from the municipal court of Atlanta. Griffin v. Sisson, 146 Ga. 661 (92 S. E. 278). The writ of error is therefore Dismissed.

Jenkins and Bloodworth, JJ., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77299.
    LASTER v. STAR RENTAL, INC.
    (378 SE2d 320)
   Sognier, Judge.

Robin Laster filed a multi-count complaint against Star Rental, Inc. (Star) seeking damages arising from the issuance of a warrant for her arrest for violation of OCGA § 16-8-19 pursuant to an affidavit from Star’s employee, Anthony Tucker. In Laster v. Star Rental, 181 Ga. App. 609 (353 SE2d 37) (1987), we affirmed the trial court’s grant of summary judgment to Star on the count alleging malicious prosecution. Upon remand to the trial court, Laster amended her complaint to allege a violation of 42 USC § 1983, and the case was tried before a jury. At the close of Laster’s evidence the trial court granted Star’s motion for a directed verdict and Laster appeals.

The record reveals that appellant acquired a set of bunk beds from appellee, signing appellee’s form contract which provided that she would own the beds after payment of $10.25 per week for 104 weeks, or a total of $1,066. (The weekly sum was later increased when appellant also acquired a coffee table.) After making a number of payments, appellant defaulted under the terms of the contract. Following several threatening visits from representatives of appellee and after obtaining legal advice, appellant refused to make further payments or to return the furniture. After notifying appellant, without success, to return the property, appellee swore out a criminal warrant which charged appellant with violation of OCGA § 16-8-19, conversion of leased personal property. The criminal charge was dismissed on the day set for appellant’s arraignment in exchange for appellant’s promise to return the merchandise.

“A plaintiff in a § 1983 action must show (1) ‘[deprivation] “of a right secured by the ‘constitution and laws’ of the United States,” ’ and that (2) the defendant acted under color of state law. . . . The conduct causing the deprivation must be fairly attributable to the state in order to be conduct ‘under-color-of-state-law.’ This is characterized as the ‘fair attribution’ test.” Poss v. Moreland, 253 Ga. 730, 731 (324 SE2d 456) (1985).

Poss follows the United States Supreme Court opinion in Lugar v. Edmondson Oil Co., 457 U. S. 922 (102 SC 2744, 73 LE2d 482) (1982), and sets forth a two-part standard for determining whether state action is present, both parts of which must be satisfied. The first part focuses on the deprivation of a right arising under federal law. It must be caused by (a) the exercise of some right or privilege created by the state, or (b) a rule of conduct imposed by the state, or (c) a person for whom the state is responsible. The second requirement focuses on the party charged with the deprivation — the “actor.” He or she must be a “state actor” in that (a) he or she is a state official, or (b) he or she has acted together with or has obtained significant aid from state officials, or (c) his or her conduct is otherwise chargeable to the state. Poss, supra at 731-732. The basis for the grant of a directed verdict in favor of appellee in the case sub judice was the trial court’s finding that, using the fair attribution test, no state action existed here because appellee was a private “actor.”

Appellant contends the trial court erred by granting the directed verdict because, contrary to the trial court’s express finding, the requisite state action was present.

(a) Appellant first argues that because the warrant office of the Fulton County State Court actively participated in the issuance of the warrant and the marshal’s office participated in the arrest, the requirement of state action has been met. However, the record shows the warrant office personnel merely followed a manual to determine which crime was alleged by the complainant and issued a warrant as prescribed by law, and the marshal’s only action was delivery to appellant of the card which commanded her presence in court. We reject appellant’s argument that these ministerial acts are similar to those of the probate courts in Oklahoma found to constitute “state action” by the United States Supreme Court in its recent decision in Tulsa Collection Svcs. v. Pope, 485 U. S._ (108 SC 1340, 99 LE2d 565) (1988). In that case, a majority of the court found that an Oklahoma nonclaim statute offended the due process requirement of the United States Constitution because it was not merely a self-executing statute of limitation, but one which required “pervasive and substantial” involvement of the probate court in the nonclaim process by appointing an executor and issuing orders. 99 LE2d at 577.

Rather, here, as in Hardee’s Food Systems v. Hall, 184 Ga, App. 586 (362 SE2d 143) (1987), “[w]e agree with [the trial court] that, as a matter of law, defendant’s actions ... do not constitute state action. . . . ‘(T)he mere fact that the [defendant was a complainant and a witness] in an action which itself was prosecuted under color of law does not make (its) complaining or testifying other than what it was, i.e., the action of (a) private (person) not acting under color of law.’ [Cit.]” Id. at 588-589 (3).

(b) Appellant next argues that state action is present because appellee did rely on a statute, OCGA § 16-8-19, which was declared unconstitutional by the Georgia Supreme Court. In State v. Russell, 256 Ga. 503 (2) (350 SE2d 430) (1986), the Georgia Supreme Court found that OCGA § 16-8-19 (b) created an impermissible presumption regarding intent, and was therefore invalid. However, that court also specifically noted that “[t]he invalidity of subsection (b) . . . does not mean that the statute describing the offense of conversion of leased personal property is, in like manner, invalid.” We find no support in the record for appellant’s conclusory statement that appellee relied specifically and exclusively on subsection (b) (3) of the statute in swearing out the warrant, and agree with the trial court that OCGA § 16-8-19 (a), defining the crime of conversion of leased personal property, is not unconstitutional, either as written or as applied in this case. Accordingly, we reject appellant’s argument that state action existed because of appellee’s reliance on OCGA § 16-8-19.

“A directed verdict is proper ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ [Cit.]” Carpenter v. Parsons, 186 Ga. App. 3, 4 (2) (366 SE2d 367) (1988). The evidence is not in conflict in this case as to the material facts. From those facts, we have determined the trial court was correct in finding that appellee’s actions may not fairly be attributed to the state. We note that we share both appellant’s and the trial court’s concern and abhorrence for the practice employed by appellee, which utilizes a legitimate state criminal procedure for the questionable and no doubt unintended purpose of collecting civil debts (and we note that the legislature has since repealed OCGA § 16-8-19, Ga. L. 1988, p. 763, § 2, eff. July 1, 1988). The Canons of Ethics, Code of Professional Responsibility, EC 7-21, provides that “[threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of [the civil adjudicative] process,” and Directory Rule 7-105 prohibits attorneys from presenting, or threatening to present, criminal charges solely to obtain an advantage in a civil matter. While it is clear that the warrant in this case was not filed by an attorney, and we do not intimate otherwise, the ethical consideration cited is indicative of our state’s public policy in this regard. However, for the reasons previously stated, we find that a verdict in favor of appellee was demanded and we affirm the trial court’s grant of appellee’s motion for a directed verdict.

Judgment affirmed.

Carley, C. J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

This writer has reservations about joining the majority opinion’s expression of sympathy for the appellant over the appellee’s resort to OCGA § 16-8-19, as well as its condemnation of that statute.

First of all, I am not so sure that the legislative intent behind the statute did not include a motivation to promote payment of lease obligations. “Why should not a man pay what he owes, and perform what he promises? If he will mot do so voluntarily, why should not society, through wholesome laws, compel him? Fidelity to contracts is essential to private virtue and to public order and prosperity.” Johnson v. Griffin Banking &c. Co., 55 Ga. 691, 695 (1876). Attaching a criminal penalty for nonpayment of a lease obligation or refusal to return the leased property deters and eliminates the negative of nonpayment and nonreturn and promotes and accentuates the positive plan and program of payment and return. Secondly, contrary to the majority opinion’s implication that the legislature recently repealed OCGA § 16-8-19 because creditors used it to collect debts, more than likely the repeal merely resulted from the Supreme Court’s invalidation of subsection (b) of the statute that allowed an impermissible presumption. See State v. Russell, 256 Ga. 503 (350 SE2d 430) (1986). The legislature obviously did not see fit to eliminate the crime of theft by conversion of leased property, since it added that specific crime to the general statute on theft by conversion found at OCGA § 16-8-4, at the same time of the repeal of OCGA § 16-8-19. The procedure utilized by the appellee in this case thus remains available.

The majority opinion also refers to the State Bar’s Code of Professional Responsibility in suggesting that the appellee was unethical in utilizing OCGA § 16-8-19, and states that that Code of Professional Responsibility (which was promulgated by the Supreme Court) indicates this state’s public policy on this matter. “[A]n emphatic statement should be made . . . that the legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional.” Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963). (Emphasis supplied.) Holding otherwise constitutes a judicial usurpation of a legislative prerogative. With these stated reservations, I concur in the majority opinion’s judgment of affirmance.

Decided January 5, 1989

Rehearing denied January 24, 1989

Remar & Graettinger, John S. Graettinger, Jr., for appellant.

Davis, Price & Young, Robert E. Price, for appellee.


author: Banke, Presiding Judge.

text:
    77722, 77723, 77724.
    HADAWAY v. THE STATE (three cases).
    (378 SE2d 127)
   Banke, Presiding Judge.

The three appellants were convicted of “underage possession of alcohol.” See OCGA § 3-3-23 (a) (2). Each has filed a separate appeal to this court.

Sometime after midnight on August 17, 1986, Officer Littler of the Cobb County Police Department was dispatched to a house located on Clark Lake Road to investigate a report that a fight was in progress there. The officer testified that when he arrived on the scene he observed numerous teenagers milling about the area, cars parked on either side of the road, and beer containers scattered throughout the vicinity. He stated that a “large, loud party” was in progress at the back of the residence in question and that there were “two large kegs of beer and cups of beer and alcoholic beverages sitting in the area.” The officer testified that as he approached the house he observed the teenagers discarding their beer cups and that, after dispersing the crowd, he began to check identification for underage drinking because, in his words, “most of the people I had contact with . . . [appeared] to be intoxicated.” The officer stated that each of the appellants had the odor of alcohol about his person with the result that, after ascertaining that each of them was a teenager, he administered alco-sensor tests to them. Each tested positive for intoxication. Held:

1. The appellants contend that all evidence obtained subsequent to their initial detention by Officer Littler should have been suppressed because their conduct gave rise to no articulable suspicion of criminal misconduct. As a general rule, a police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). “What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the- court can determine that the detention was not arbitrary or harassing. [Cit.]” Brisbane v. State, 233 Ga. 339, 341 (211 SE2d 294) (1974).

It is clear from Officer Littler’s testimony that there was an observed, factual basis for the suspicions that the appellants were underage and that they had been in possession of alcoholic beverages. It follows that the appellants’ motion to suppress was properly denied.

Decided January 3, 1989

Rehearing dismissed January 24, 1989.

Billy L. Spruell, for appellants.

Patrick H. Head, Solicitor, Melodie H. Clayton, Jane P. Manning, Assistant Solicitors, for appellee.

2. The appellants contend that the evidence was insufficient to support the verdicts because there was no evidence they had consumed an “alcoholic beverage,” as opposed to some non-beverage product containing alcohol, such as mouthwash. They further contend that mere consumption of an alcoholic beverage does not, in any event, necessarily equate with possession of such beverage within the meaning of OCGA § 3-3-23 (a) (2). With respect to the first of these contentions, the circumstances would clearly have authorized a rational trier of fact to conclude beyond a reasonable doubt that the appellants had been drinking beer rather than mouthwash. As for the second contention, a rational trier of fact could easily have concluded beyond a reasonable doubt from the evidence that the appellants had possessed the alcohol prior to consuming it. Accord Stevens v. State, 165 Ga. App. 814 (302 SE2d 724) (1983) (upholding a defendant’s conviction of cocaine on the basis of a positive test for cocaine in his urine). See generally Jackson v. Virginia, 443 U. S. 307 (1) (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Birdsong and Beasley, JJ., concur.


author: Benham, Judge.

text:
    77147.
    SMITH v. THE STATE.
    (378 SE2d 349)
   Benham, Judge.

Convicted of armed robbery, possession of cocaine, and possession of a firearm during commission of a felony, appellant contends on appeal that the evidence was insufficient to authorize his conviction and that the trial court erred in denying him the opportunity to impeach Harris, the alleged victim of the armed robbery, by testimony contrary to Harris’s testimony. Our review of the record persuades us that although the evidence was sufficient to authorize the conviction, appellant’s complaint with regard to the exclusion of his proffered evidence is valid and that he is entitled to a new trial.

1. The victim testified at trial that as he left a service station, appellant blocked his way with a van; that when the victim got out of his car, appellant’s co-indictee pointed a pistol at him, then gave the pistol to appellant who held it while the co-indictee went through the victim’s pockets and took his money; and that appellant hit the victim in the head with the pistol, then shot him. Other witnesses for the State testified that a white powder found on a sifter and on a weighing device seized from appellant’s van at the time of his arrest was cocaine. The evidence was sufficient to authorize a rational trier of fact to conclude that appellant was guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Baty v. State, 257 Ga. 371 (359 SE2d 655) (1987); Kelly v. State, 184 Ga. App. 337 (2) (361 SE2d 659) (1987).

2. The defense asserted by appellant was that he and Harris had been acquainted for a year or so and were involved together in a series of illegal ventures, that the events which Harris described as a robbery were merely a falling-out between acquaintances, and that Harris’s gunshot wound on that occasion was an accident. Harris, however, denied an acquaintance with appellant, swearing they had met only once before the alleged robbery occurred. On cross-examination, Harris also denied being acquainted with two other individuals named by defense counsel. When appellant attempted to call those two individuals as witnesses for the purpose of impeaching Harris, the trial court sustained the State’s objections, telling defense counsel repeatedly that Harris was not on trial. The two witnesses testified during a proffer of evidence outside the presence of the jury that they had known Harris for some time and that they had often seen Harris together with appellant using drugs and selling stolen property. The trial court ruled that testimony irrelevant and forbade appellant to question the witnesses about Harris’s acquaintance and business dealings with appellant.

We disagree with the trial court’s assessment of the relevance of the testimony appellant offered. Appellant’s defense to the armed robbery charge was founded in large part on his contention that he and Harris were not only acquainted but were partners in crime, and that the transaction which the State characterized as a robbery was merely a disagreement between partners. Harris’s denial of acquaintance with appellant was, therefore, also a denial of appellant’s whole defense. Even if the issue of their acquaintance was only collateral to the issue of whether appellant robbed Harris, it was at least indirectly material. “Generally, ‘a party may show anything which in the slightest degree affects the credit of an opposing witness.’ [Cit.] ‘A witness may be impeached on a collateral issue which is indirectly material to the issue in the case.’ [Cit.] ‘Evidence tendered for impeachment purposes need not be of the kind or quality required for proving the facts.’ [Cit.]” Pound v. Medney, 176 Ga. App. 756, 760 (337 SE2d 772) (1985). See also Doby v. State, 173 Ga. App. 348 (3) (326 SE2d 506) (1985). The right of a criminal defendant to impeach the witnesses against him by presenting evidence contrary to theirs is an invaluable one. The trial court’s refusal to permit appellant to impeach Harris was error. In the present case, considering that appellant’s whole defense to the armed robbery charge was based on his interaction with Harris as an acquaintance and “business” associate, we cannot find that error to be harmless. Cf. Henderson v. State, 255 Ga. 687 (1) (341 SE2d 439) (1986). Appellant is entitled to a new trial on the armed robbery charge. Since the charge of possession of a firearm during the commission of a felony was expressly based on the armed robbery and could not stand without it, that conviction must also be reversed. The impeachment issue did not relate in any way, however, to the possession of cocaine charge, and appellant has shown no grounds for reversal of that conviction. The judgment below is reversed only as to the convictions for armed robbery and for possession of a firearm during commission of a felony; the conviction for possession of cocaine is affirmed.

Decided January 24, 1989.

Lawrence E. Diamond, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Doris L. Downs, Assistant District Attorneys, for appellee.

3. In light of our holding above, appellant’s third enumeration need not be addressed.

Judgment affirmed in part and reversed in part.

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


author: Pope, Judge.

text:
    77210.
    ARNOLD v. JORDAN.
    (378 SE2d 139)
   Pope, Judge.

This is a case arising under the Uniform Child Custody Jurisdiction Act (UCCJA). The sole issue on appeal is whether the trial court abused its discretion in transferring the case to another jurisdiction.

Appellee mother and appellant father were divorced in 1983 by a decree entered in the Superior Court of DeKalb County, Georgia. Pursuant to a contract of settlement incorporated into the decree, the mother was granted custody of the parties’ minor child and the father was granted certain specified visitation. On April 5, 1984 the mother filed a “Motion for Termination of Parental Rights; or, in the Alternative Motion for Cessation of Visitation Rights” in which she alleged that the father sexually molested the minor child, who was then two- and-a-half years old, while she was visiting with him pursuant to the terms of the agreement. The mother also requested that the father be restrained from contact with either her or the child. The court granted this request and issued an order suspending the father’s visitation rights. The mother subsequently amended her motion to include other facts of alleged sexual misconduct.

On August 8, 1984 Judge William T. Dean denied the mother’s motion for termination and reinstated visitation privileges “provided that all visitation by the [father] with the minor [child] be supervised by the [father’s] parents and provided further that during such visitation periods said minor [child] shall reside at the home of the [father’s] parents until such time as the defendant in this case remarries;

On August 29, 1984 the Honorable B. J. Smith, pursuant to the father’s motion for contempt and the mother’s request for clarification of the court’s August 8, 1984 order, reinstated the visitation provided in the contract of settlement, to wit, that the father could visit the minor child without supervision.

On December 28, 1984 Judge Carol W. Hunstein, acting sua sponte, ordered the mother and father to submit to psychological examinations. The court further ordered that the child be examined and a written, sealed order submitted to the court concerning the child’s mental health. The court also ordered an evidentiary hearing concerning the impact of visitation on the child’s mental health.

In December 1985 the mother and the child moved to Texas to live with the mother’s new husband. Both the father and the court were made aware of the move.

On April 14, 1987 Judge Hunstein issued a “Final Order” denying the mother’s motion to terminate and granting the father supervised visitation until the child reaches the age of seven (the child was then five-years-old).

On June 12, 1987 the mother filed a petition in the 53rd Judicial District of Travis County, Texas, requesting that the father be restrained from removing the child from the state or withdrawing the child from the psychiatric hospital (Charter Lane Hospital in Austin, Texas) to which she had been admitted for treatment. The mother also requested that the father not be allowed to see the child or, in the alternative, that he be allowed to see the child only under the supervision of a mental health professional. Attached to the petition was the affidavit of one of the child’s doctors at Charter Lane who averred that the child’s symptoms indicated she had been sexually abused by her father and that due to this factor and the child’s hospitalization, he believed visitation with the child should be in Austin, Texas and supervised by a mental health professional. The mother also attached her affidavit, in which she informed the Texas court that she had participated in custody proceedings concerning the minor child in Georgia.

On July 22, 1987 Judge Hunstein amended her prior order to state with greater specificity the terms of the father’s visitation.

The father filed a motion for contempt in the Georgia action based on the mother’s refusal to comply with the Georgia court’s April 14, 1987 order. On July 23, 1987 the mother filed an amended response to the father’s motion in which she informed the Georgia court that the Texas court had assumed jurisdiction under the emergency provisions of the UCCJA (see OCGA § 19-9-43 (a) (3) (B)).

On August 14, 1987 the Texas court held a hearing in which it expressed the opinion that “to send that child on an airplane to Georgia would create a serious and immediate question concerning the child’s welfare.” The court issued a TRO preventing the father from removing the child from the State of Texas or the psychiatric hospital.

On August 24, 1987 the Georgia court held a hearing on the father’s motion for contempt. At that hearing, Judge Hunstein indicated that she would contact the Texas court concerning the court’s jurisdiction. (See OCGA §§ 19-9-41 (8); 19-9-46 (c) and 19-9-47 (d)). The court further found service of the father’s motion on the mother to be insufficient and issued an order requiring the father to request a new hearing once service had been perfected.

On February 9, 1988 Judge Hunstein issued an order finding Texas to be the proper forum in which to litigate the custody modification and visitation issues. Judge Hunstein further ordered all pertinent documents and transcripts forwarded to the Texas court. The Georgia court retained jurisdiction over any contempt proceedings relating to the prior orders of the court. (See Daily v. Dombroski, 250 Ga. 236 (297 SE2d 246) (1982)). We granted the father’s application for discretionary review.

The UCCJA was adopted to resolve jurisdictional disputes between two states, each of which could properly exercise jurisdiction over a child’s custody, and to “assure that custody proceedings take place in the state with which the child and his family have the closest connections.” Graham v. Hajosy, 159 Ga. App. 466, 467 (283 SE2d 683) (1981). To this end, OCGA § 19-9-47 (a) provides that a court with jurisdiction may decline to exercise jurisdiction if it finds that it is an inconvenient forum and that a court of another state is a more appropriate forum. Thus, although a Georgia court may have jurisdiction over a particular child custody proceeding, it is discretionary with the trial court whether it should exercise or decline jurisdiction under the inconvenient forum provision of the Act.

The prime consideration in determining if a court of this state is an inconvenient forum is the best interest of the child. OCGA § 19-9-47 (c) lists five factors which may be taken into account in making this determination:

Decided January 24, 1989.

Stanley M. Lefco, for appellant.

E. Alan Armstrong, for appellee.

1. If another state is or recently was the child’s home state;

2. If another state has a closer connection with the child and his family or with the child and one or more of the contestants;

3. If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available;

4. If the parties have agreed on another forum that is no less appropriate;

5. If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Code Section 19-9-41.

We agree with the trial court that consideration of the above factors favors Texas as the more appropriate forum. Texas has been the home state of the child and the custodial parent for over three years. The minor child was enrolled in school in Texas. The child has been a patient in a mental health facility and has been treated by several mental health practitioners there. The mother’s move to Texas was precipitated by her remarriage, and there is no evidence of record to suggest that the move was made in an attempt to deny the father the exercise of his visitation rights. The mother apparently intends to stay in Texas. The parties have not agreed on another forum.

These factors weigh heavily in favor of a transfer of jurisdiction for the child’s best interest. Although jurisdiction would be proper in either Georgia or Texas, we cannot say that the trial court abused its discretion in transferring this case to Texas. See Bennett v. Bennett, 506 S2d 1021 (Ala. 1987); In the Interest of Wicks, 693 P2d 481 (Kan. 1985). Cf. Carr v. Towns, 172 Ga. App. 691 (2) (324 SE2d 489) (1984).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    77280.
    STONE v. COOK.
    (378 SE2d 142)
   Beasley, Judge.

Cook, a farm laborer, suffered a broken foot while riding on the fender of a tractor owned and driven by Stone, Cook’s employer. Cook sued for damages resulting from Stone’s alleged negligence. Stone contends there is no evidence that he was negligent and that if there is, Cook is precluded from recovery because he assumed the risk by riding on the fender. The jury, after being instructed on the principles of negligence, accident, assumption of the risk, comparative negligence, and contributory negligence, returned a verdict for Cook. Stone enumerates as error the trial court’s denial of his motions for directed verdict and judgment notwithstanding the verdict.

1. The issues of a directed verdict or judgment n.o.v. are reviewed on the same basis. Horton v. City of Macon, 144 Ga. App. 380, 381 (2) (241 SE2d 311) (1977). “[T]he question before this court is not whether the verdict and the judgment of the trial court was merely authorized, but is whether a contrary judgment was demanded.” Simon v. McGee Plumbing &c. Co., 164 Ga. App. 667, 668 (2) (299 SE2d 388) (1982). OCGA § 9-11-50 (a). A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981); Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1) (256 SE2d 916) (1979); Pendley v. Pendley, 251 Ga. 30, 31 (302 SE2d 554) (1983).

Based upon the foregoing principles the issue is whether the jury’s verdict was sustained by any evidence.

The incident occurred when Cook and employer Stone were bringing in a load of tobacco from the field. Cook hooked a hydraulic lift trailer to the rear of the tractor. As was customary, Cook sat on the shelf of one of the fenders covering the tractor wheels to ride to the barn. Stone, to avoid driving around a harvester several yards in front of the tractor, put the tractor in reverse. Without warning, he started to back up. The tractor bogged down in the muddy soil, causing the hydraulic lift to rise and trap Cook’s foot between the lift and the tractor, breaking it.

Stone’s motions urged the following: (1) the evidence was insufficient to support a finding for Cook and demanded a verdict for Stone; (2) there was no evidence proving any act of negligence by Stone which caused Cook’s injury; (3) Cook voluntarily assumed the risk of danger and injury to himself; and (4) the injury was the result of an accident. The two cases on which appellant principally relies are Swails v. Carpenter, 112 Ga. App. 117 (144 SE2d 182) (1965), and DeWinne v. Waldrep, 101 Ga. App. 570 (114 SE2d 455) (1960). Neither is dispositive because of distinguishable fact patterns.

In Swails the plaintiff was injured when he drove a tractor into, a stump hole in defendant’s muddy field for the second time. Only moments earlier, the defendant had helped plaintiff remove the tractor from the very same hole. Holding for defendant, this Court ruled that in order for an employee to recover from his employer for injuries sustained for failure to comply with what is now OCGA §§ 34-7-20 and 34-7-23, the employer must have been negligent, and the employer’s negligent act or omission to act must have been the proximate cause of the injury. Even if an employer is negligent, he is not liable for injuries sustained by the employee where it appears that the employee had equal knowledge or means of knowing of the danger, and the danger was as obvious to the employee as it was to the employer. OCGA § 34-7-23. See Bowers v. L. & N. R., 33 Ga. App. 692 (1 & 2) (127 SE 667) (1925). In suits based upon the negligence of an employer as governed by the two code sections, the employee must show that “the [employer] knew or ought to have known ... of the defects or danger in the machinery supplied, and it must also appear that the [employee] injured did not know and had no equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof.” Swails, supra at 123. Based upon these principles of law, appellant contends that he was entitled to judgment as a matter of law, irrespective of the jury’s verdict.

The plaintiff/employee in Swails failed to establish that the employer’s failure to exercise ordinary care was the proximate cause of plaintiff’s injury. He also failed to show he did not have equal means of knowing of the danger. Plaintiff had driven the tractor into the stump hole once and knowing of the danger, voluntarily drove into the hole again. The court concluded that the injuries to the employee were the result of “pure accident.”

Stone, on the other hand, testified to his knowledge of the danger: Q. “Mr. Stone . . . had you gone forward instead of backwards there would have been no risk of that tractor bucking and, of course, breaking Mr. Cook’s foot. . . ?” A. “That couldn’t happen if I’d have went forward, true.” Q. “Do you agree that going backwards is more risky than going forwards.” A. “In relation to what?” Q. “The trailer bucking up and, of course, crushing Mr. Cook’s foot . . .” A. “It would be more likely to happen going in reverse than forward, true.”

Further, Cook had no way of knowing Stone would drive the tractor in reverse. If Cook had no knowledge of a risk or did not appreciate the danger to himself, he cannot be said to assume the risk. Owens-Illinois v. Bryson, 138 Ga. App. 78 (225 SE2d 475) (1976); 53 AmJur2d 313, Master & Servant, § 278 (1970); Prosser & Keeton, Torts (5th ed.), § 68 at 487 (1984). It was a jury question whether, without a warning, Cook may have had knowledge of the danger and thereby assumed the risk.

DeWinne is not a suit against an employer. The plaintiff was on a deer hunting trip and was holding his rifle while standing up in the back of a pickup truck which was traveling at 30 m.p.h. across a field dotted with trees, when he fell from the truck and was injured. The risk of injury was blatant. Here Cook was sitting on the fender of a tractor traveling less than one m.p.h. Because the risk was not obvious, this issue was properly left to the jury. Louisville & N. R. Co. v. Crapps, 62 Ga. App. 437, 446 (1) (8 SE2d 413) (1940).

We recapitulate the facts and principles that meet the requirement of authorities, including those cited by appellant. Stone was fully aware that Cook was riding on the fender of the tractor. It was proper for the jury to find that when Stone decided to back the tractor up knowing that the hydraulic lift would rise upward, he should reasonably have known or anticipated that Cook could be injured in the process. Whether it was reasonably foreseeable that such an injury might occur, whether a warning would have prevented the injury, whether driving forward instead of backward would have avoided the injury, and whether in totality Stone exercised ordinary care, are questions of fact on which the jury could differ. It is likewise regarding whether Cook assumed the risk by riding on the tractor’s fender and whether he could have avoided the consequences of Stone’s negligence after it became known to him. See, e.g., DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811 (278 SE2d 712) (1981); Thigpen v. Executive &c. of Baptist Convention, 114 Ga. App. 839 (152 SE2d 920) (1966); Lassiter v. Poss, 85 Ga. App. 785 (70 SE2d 411) (1952) [a jury question was presented where a fourteen-year-old minor was injured while riding on the fender of an automobile]; Smith v. American Oil Co., 77 Ga. App. 463 (49 SE2d 90) (1948) (overruled on other grounds Union Camp Corp. v. Helmy, 258 Ga. 263, 268 (367 SE2d 796) (1988)) (it is a jury question whether riding on the fender of a truck constitutes negligence or assumption of the risk). See also cases cited in Simowitz v. Register, 60 Ga. App. 180, 181-2 (3 SE2d 231) (1939).

“In the absence of legal error, an appellate court is without jurisdiction [or authority] to interfere with a verdict supported with some evidence, even where the verdict may be against the preponderance of evidence.” Thompson v. Hill, 143 Ga. App. 272, 276 (238 SE2d 271) (1977). Based on the evidence here, the court correctly denied Stone’s motions for directed verdict and judgment notwithstanding the verdict.

2. Cook’s motion to impose a penalty against Stone for filing a frivolous appeal, pursuant to OCGA § 5-6-6, is denied. After a close examination of the record and the arguments made by Stone, it cannot be concluded that he filed this appeal “solely for the purpose of delay.” Although his enumerations of error are without merit, the appeal was based upon reasonable arguments. Damages pursuant to OCGA § 5-6-6 “are granted only where this court is fully convinced the case was appealed for delay only.” Scales v. American Lease Plans, 153 Ga. App. 670, 672 (3) (266 SE2d 323) (1980); Prattes v. Southeast Ceramics, 132 Ga. App. 584, 586 (3) (208 SE2d 600) (1974).

Decided January 24, 1989.

Reinhardt & Whitley, Glenn Whitley, for appellant.

Morris & Webster, F. Leonard Morris, Jr., Craig A. Webster, for appellee.

Judgment affirmed.

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


text:
    77380.
    EADDY v. THOMAS.
    (378 SE2d 147)
   Pope, Judge.

In 1984, appellant Samuel Eaddy obtained an order from the Superior Court of Appling County determining him to be the father of the minor child of appellee Lillian Hudson Thomas born on October 4, 1983. The order granted him certain visitation rights. The order did not contain an award of child support to Thomas. On January 28, 1988 Eaddy filed a motion for contempt against Thomas alleging she had failed to comply with the order granting visitation rights. After a hearing on the motion, the court granted the motion for contempt and, on its own motion, ordered Eaddy to pay child support of a stipulated monthly sum to Thomas. Eaddy appealed on the ground the court lacked jurisdiction to award child support in adjudication of a motion for contempt of an order in which it did not award child support. We agree.

The motion for contempt was brought in regard to the order entered in the original paternity suit. “The same remedies and procedures shall apply for enforcement and modification of visitation and support orders [in paternity actions] as apply to enforcement and modification of such orders arising from divorce proceedings.” OCGA § 19-7-52 (b). In a divorce proceeding, in which the order did not determine an award of child support, a petition for child support must be brought as a separate action in the superior court of the county where the defendant to the petition resides. OCGA § 19-6-17 (a). In a divorce case, the trial court has no authority to grant or modify child support in a contempt proceeding. See Sells v. Eilender, 251 Ga. 463 (306 SE2d 662) (1983); McNeal v. McNeal, 233 Ga. 836 (213 SE2d 845) (1975). A petition for a revision of an award of child support is a separate and independent suit and must be brought in the county in which the defendant resides. Bugden v. Bugden, 224 Ga. 517 (162 SE2d 719) (1968). Pursuant to OCGA § 19-7-52 (b), these same procedural rules should be applied in this paternity action.

The record shows appellant Eaddy is no longer a resident of Appling County. Consequently, the trial court had neither subject matter jurisdiction, personal jurisdiction nor proper venue to impose an award of child support in this case. If appellee Thomas had filed an action for child support, the appropriate procedure would be to remand with direction to transfer the action to another court with proper jurisdiction, pursuant to rule 19.1 (A) of the Uniform Superior Court Rules. However, since no action was filed in this case, it cannot be transferred. Moreover, the record suggests that appellant Eaddy is no longer a resident of Georgia. However, our holding in no way precludes appellee Thomas from bringing an action for child support in the proper jurisdiction.

Decided January 24, 1989.

Ken W. Smith, for appellant.

Lillian Thomas, pro se.

Judgment reversed.

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


text:
    77391.
    RUSSELL v. WICKES LUMBER.
    (378 SE2d 148)
   Benham, Judge.

Wickes Lumber (Wickes) sold building materials to Russell on account, and when Russell failed to make payment, Wickes sued on the account. The case was tried before a jury, and the trial court entered judgment for Wickes in accordance with the verdict. Russell appeals from the judgment against him, raising 14 enumerations of error. We find that none of them has any merit, and we affirm the judgment.

1. Appellant complains that the trial court erred in refusing to grant his motion to compel Wickes to produce requested documents, in refusing to impose sanctions against Wickes for its late production of the documents, and in denying appellant a 10-day continuance to review the documents. We find no such errors. Appellant filed his motion to produce two months before the date of trial. The request did not specify a date or time by which the documents were to be produced. Wickes did not respond to the request, but Russell did not file his motion to compel until the day of trial, even though he had been given ample notice of the trial date. When Wickes received the motion to compel on the day of trial, it produced the discovery information sought. The trial court was within its discretion to rule that Wickes was in compliance with the request and to deny the continuance to allow appellant to review the material, inasmuch as appellant’s motion to compel did not conform to the requirements set out in Uniform Superior Court Rules 6.3 and 6.4, and his request for a continuance did not comply with Rule 8.5. There being no abuse of discretion in this matter, we will not interfere with the trial court’s rulings. Freeman v. Ripley, 177 Ga. App. 522, 523 (339 SE2d 795) (1986).

2. While cross-examining Wickes’ witness, appellant asked her whether she had seen a letter dated December 1987, in which he purportedly asked for the discovery he received just before the trial. The trial court ruled that the inquiry was improper and that the matter was irrelevant to the issues being tried. Appellant complains that the trial judge unduly restricted his right of cross-examination. We find that no such restriction occurred, since the evidence appellant sought to elicit was irrelevant to the case. “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. “Questions of relevancy of evidence ... are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere. [Cit.] Thus, as here, where the evidence did not appear to be material [to] or illustrative of any issue in the case, its exclusion was not error. [Cit.]” MacNerland v. Johnson, 137 Ga. App. 541 (1) (224 SE2d 431) (1976).

3. We will not consider appellant’s enumeration on appeal concerning the trial court’s inquiry about his absence from the courtroom, inasmuch as appellant did not object to the question at trial. DuBois v. Ray, 177 Ga. App. 349 (5) (339 SE2d 605) (1985).

4. Appellant contends that the admission into evidence of five of appellee’s exhibits was error. Exhibit 1 was appellant’s commercial credit application; Exhibits 2 and 3 were lists of materials that appellant ordered and received from Wickes; Exhibit 4 was a set of bills sent for payment for the materials purchased; and Exhibit 5 was a letter appellee’s attorney sent to appellant demanding payment for the materials. The first four exhibits were properly admitted under the business records exception to the hearsay rule, the proper foundation having been laid by the witness. OCGA § 24-3-14. See Suarez v. Suarez, 257 Ga. 102 (2) (355 SE2d 649) (1987). The witness through whom they were admitted testified that she was in charge of all of the books and payments, approved all the credit applications, and was familiar with the books' and records of customer accounts; that the records were kept in the ordinary course of business under her supervision and control; that the entries in the business records were made at or near the time of each transaction that they reflect; and that she was familiar with appellant’s account. The trial court did not err in admitting the evidence. As for the demand letter, the objections to it that appellant raised at trial differ from the ones he raises on appeal. He thereby failed to preserve his objection on that specific point; therefore, this court will not consider it. Jeff Goolsby Homes Corp. v. Thomas, 181 Ga. App. 308 (4) (352 SE2d 172) (1986); Cain v. State, 178 Ga. App. 247 (3) (342 SE2d 742) (1986).

5. Appellant’s enumeration that the trial court erred in refusing to let the complaint and answer go out with the jury has no merit. Pleadings are not evidence (Behar v. Aero Med. Intl., 185 Ga. App. 845, 846 (366 SE2d 223) (1988)), and whether or not to allow the pleadings to go out with the jury is purely within the discretion of the trial judge. We find no abuse of discretion in this instance of refusal.

6. The trial court did not err in allowing appellee to offer evidence on the issue of appellant’s having paid invoices for which there were no signatures. Appellant’s contention that the invoices were not produced in response to his discovery motion has no merit. This issue was resolved in Division 1 of this opinion. Moreover, appellant raised the issue to which appellee sought to respond when appellant cross-examined the witness. Under the circumstances, appellant cannot be heard to complain, since his own conduct led to the judge’s ruling. Marsh v. White, 185 Ga. App. 642 (4) (365 SE2d 464) (1988). Nor was there any error in holding the charge conference before appellee presented the evidence in question. The trial court stated that if appellant had additional charges based on the additional testimony, he could submit them. Appellant was not prejudiced with regard to the timing of the conference.

7. Appellant’s contentions that the trial court erred in not giving his Requests to Charge Nos. 1 through 10 and in giving appellee’s Request to Charge No. 3 have no merit. We have reviewed the jury charge as a whole and find that it was adequate, and that appellant’s charges were either not adjusted to the evidence, essentially covered in the trial court’s charge, or withdrawn. Therefore, it was not error to exclude them. See State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (2 b) (364 SE2d 62) (1987). Appellee’s request to charge was properly given. In essence, it said that if a debtor fails to object to a statement of account given to him, the jury may infer that his failure to object implies an agreement on his part that the account was correct. Since appellant had failed to object to the statements of account offered in evidence at trial when given opportunities to do so, the jury instruction was a valid one.

8. The record does not support appellant’s assertion that the trial court allowed “plaintiff’s counsel to testify, not under oath, but before the jury, and without an opportunity for cross-examination” with regard to plaintiff’s Exhibit 5, the demand letter. Moreover, appellant did not raise these grounds for his objection when the matter was discussed at trial, and so he has waived his right to do so here. See Division 4 of this opinion.

9. The trial court acted properly in denying appellant’s motion for directed verdict. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. [Cits.]’ ‘The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. [Cits.]’ ” State Farm Fire &c. Co. v. Morgan, supra, Division 1. There was evidence that appellant had ordered and received materials from Wickes for which he had promised to pay and that he had not paid for the materials, despite the demands for payment that had been made. Appellant offered no defense. The trial court properly denied the motion.

Decided January 24, 1989.

George P. Graves, for appellant.

Howard H. Johnston, Jr., for appellee.

10. Appellee seeks the imposition of $500 damages for frivolous appeal, in accordance with OCGA § 5-6-6. We deny the request.

Judgment affirmed.

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


text:
    77438.
    HARMON v. CUNARD.
    (378 SE2d 351)
   Benham, Judge.

This case involves defamation of title to land under OCGA § 51-9-11. Cunard contracted with Harmon to repair and reconstruct portions of Harmon’s house, which had been damaged by fire. The contract price agreed to by the parties was $14,942.42. Cunard had partially completed the work for which they had contracted but had not received any payment when he filed a material and labor lien for $14,000. He later filed suit against Harmon seeking a judgment for $5,826.50 under the contract, $4,000 for lost time and profits, and $200 for materials allegedly damaged by Harmon. Harmon answered and counterclaimed, alleging inter alia that Cunard’s filing of the lien was wilful and tortious, and that it prevented Harmon from selling her house and from obtaining funds needed to complete work on it. A jury trial was held, and the jury returned a verdict in Harmon’s favor on the defamation of title issue, awarding her $500 nominal damages and $3,000 punitive damages. The trial court entered judgment in accordance with the verdict, Cunard filed a motion for judgment n.o.v., and the trial court granted the motion. Harmon appeals from the grant of the judgment n.o.v.

OCGA § 51-9-11 states that “[t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” “In order to sustain an action of this kind, the plaintiff must allege and prove the uttering and publishing of the slanderous words; that they were false; that they were malicious; that he sustained special damage thereby; and that he possessed an estate in the property slandered.” Schoen v. Md. Cas. Co., 147 Ga. 151, 153 (93 SE 82) (1917). Appellant failed to prove the required facts. She contends that appellee’s complaint and appellee’s testimony proved that the claim of the lien was clearly excessive. Appellee testified that he filed the lien at a time when appellant owed him $10,000 on the contract; that appellant prevented him from completing his work by refusing to let him perform the job in accordance with the insurance company specifications, contrary to what was agreed to in the original contract; that at the time appellee had stopped working on appellant’s home he had completed $5,826.50 worth of work; and that appellee felt that he had suffered an additional $4,000 loss of time and profits by attempting to assist appellant to resolve her disputes with building supply companies, the insurance company, and the Department of Housing and Urban Development (HUD). Appellee’s testimony supported his good faith in filing the $14,000 lien, and appellant presented no proof that appellee acted with malice in filing it. Even if the amount of the lien was excessive, that is not the standard one uses to prove defamation of title.

Decided January 24, 1989.

Scott Walters, Jr., for appellant.

McReynolds & Associates, J. Michael Welch, Frederic S. Beloin, for appellee.

Appellant also failed to prove that she suffered any special damages as a result of appellant’s action. She alleged in her counterclaim that the lien prevented her from obtaining funds necessary to complete her house and prevented her from selling her house, without offering specific figures for the damage allegedly suffered. A review of the record shows that she does not testify to or otherwise prove any special damages actually sustained in this regard. In her brief she argues that the damage she suffered was the denial of full enjoyment of her home and that because of the lien claim, HUD would not release funds intended for completion of the work to her home. Appellant was entitled to recover “only such special damages as [she] actually sustained as a consequence of the alleged wrongful acts, and [she] was required to plead them plainly, fully and distinctly. [Cits.]” Copeland v. Carpenter, 203 Ga. 18 (3) (45 SE2d 197) (1947). There being no proof of defamation of title as required, the trial court did not err in granting appellee’s motion for judgment notwithstanding the verdict.

Judgment affirmed.

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


text:
    77481.
    BAUGHCUM v. CECIL KEY PAVING, INC. et al.
    (378 SE2d 151)
   Beasley, Judge.

Baughcum appeals the grant of summary judgment to defendants Cecil Key Paving, Inc., and Key Curbing, Inc.

Baughcum was injured on August 1, 1985 when her car struck the rear of a pickup truck driven by Ms. Frick. Defendant companies, which were separate corporations owned by Cecil Key, were under contract to the owner of a realty office to provide curbing and paving for a new parking lot located on Highway 78, a busy thoroughfare.

Plaintiff contended that her injuries were proximately caused by the defendants’ failure to “properly mark the work site to warn oncoming traffic of the danger represented by the work site.”

Construing the evidence in plaintiff’s favor, it showed that Key Curbing was involved in the process of pouring concrete into the forms which had been placed to make the curb cut for the realty office lot. The concrete poured into the forms was provided by a third company not involved in the suit. The site of this activity was located nearly 800 feet from the centerline of Davis Road, an intersecting street.

Ms. Frick stated that, as she was driving in the left lane of traffic, she topped the hill in front of Progressive Lighting, located beyond Davis Road and 982 feet from the realty office driveway. She saw a large yellow truck parked near the curb cut to a vacant lot. This lot was 273 feet from the centerline of the realty office curb cut. Behind the truck were about five orange cones and three or four men, one or two of whom were kneeling in the street behind the truck. Ms. Frick said the truck “favored a county truck.” The western property line of the realty office property was 94 feet west of the centerline of the curb cut.

The traffic in front of Frick’s vehicle was swerving as it attempted to avoid this truck, and she stopped, barely missing a pickup truck which swerved from the right lane into her lane. She saw plaintiff’s vehicle behind hers. Plaintiff continued to come because* she could not see beyond the Frick vehicle. Plaintiff stated that as she came over the hill, Frick’s vehicle in front of her just stopped. Initially, when she noticed traffic slowing, she just touched her brakes and then began to give it “all she had” when she realized the traffic was stopping. She said she would have missed Frick’s vehicle had it not been for a trailer hitch on the back.

The Frick vehicle came to rest with its nose in the intersection of Davis Road and Highway 78. In a drawing which she prepared of the accident scene, Ms. Frick further described the truck parked in the right lane as a “heavy duty work truck” and placed it some distance from the realty office driveway, back toward Progressive Lighting. She also depicted it with a covered back. There was no indication from her that it was pouring concrete or was otherwise involved in curb work or paving work.

In support of their summary judgment motions, defendants supplied unrefuted evidence that on July 22 an order for this job was placed with Southern Lights for placement on Highway 78 of 10 flashing light barriers, one “merge left” sign, and one “right lane closed” sign. They were placed there by Southern Lights the next day. The “right lane closed” sign was placed at the top of the hill near the work site. The “merge left” sign was placed 500 feet from the work site toward the hill, and the flashing barriers were placed along the side of the road, at the job site, twenty-five feet apart. The owner of the realty office property affirmed that the flashing barricades were on the project during the construction and were not removed until it was finished. The job superintendent for Key Curbing stated that he was at the job the day the curb was poured and the flashing barricades and warning signs were present. Defendants did not use orange cones as warning devices. Eight of the barriers and the “right lane closed” sign were picked up by Southern Lights on August 20. Two flashing barriers and the “merge left” sign were missing.

Ms. Frick’s only testimony concerning the flashing barriers was that she did not see any at the point where the yellow truck was located. Plaintiff’s only statement was that she did not see the cones before the accident.

In opposition to the summary judgment motion, plaintiff also submitted the affidavit of a safety consultant who had reviewed the accident report and Ms. Frick’s diagram. Based on that review, it was his opinion that generally accepted standards for safety on highway construction, as provided by the federal Department of Transportation “Work Zone Traffic Control Standards and Guidelines” required that the first warning sign be placed a mile ahead of the project with the second or “merge left” sign a half mile ahead'.

1. “In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cits.]’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); [Cit.]” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

The evidence submitted by all parties shows that the yellow truck precipitated the swerving which caused Ms. Frick to come to a complete stop. By plaintiff’s own evidence, the truck was located at the vacant lot curb cut, which was 179 feet from the property line of the realty office property.

“The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cit.]” Kelly v. American Fed. Savings &c. Assn., 178 Ga. App. 542, 543 (1) (343 SE2d 755) (1986); Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); Coleman v. McDonald’s Corp., 185 Ga. App. 628, 629 (365 SE2d 282) (1988).

2. Assuming that the highway standards tendered by plaintiff establish the standard of care required and that the standard was not met by placing the barriers sufficiently far from the work site, this still does not create a triable issue. ‘ “ ‘To state a cause of action for negligence, there must be a legally attributable causal connection between the defendants’] conduct and the alleged injury.’ [Cits.] The inquiry is not whether the defendants’] conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. [Cit.] In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. [Cits.]” [Cit.]’ Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176 (1) (342 SE2d 497) (1986). “[A] cause which is merely incidental is not the proximate and responsible one.” Standard Oil Co. v. Harris, 120 Ga. App. 768 (3) (172 SE2d 344) (1969).

“[W]here the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of [a] third person . . . , the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.” Ga. Power Co. v. Kinard, 47 Ga. App. 483, 486 (3) (170 SE 688) (1933); First Union &c. v. Daniel, 186 Ga. App. 826, 828 (2) (368 SE2d 768) (1988); Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 189 (2) (345 SE2d 858) (1986).

Plaintiff’s evidence was that there were two other actors involved in the accident, the unidentified yellow truck and the truck which swerved in front of Ms. Frick, causing her to abruptly stop. The undisputed evidence also shows that the warning signs and barricades were placed not by defendants but by an independent contractor, for whose negligence defendants were not liable. OCGA § 51-2-4.

Summary judgment to the defendants was proper. Gray v. Gober, 185 Ga. App. 624, 627 (1) (365 SE2d 279) (1988).

Judgment affirmed. Banke,

P. J., and Birdsong, J., concur.

Decided January 24, 1989.

David Sinclair Walker, Jr., for appellant.

G. Melton Mobley, Charles Barrett III, for appellees.