author: Ruffin, Judge. Pope, Presiding Judge,

text:
    A95A1702.
    PARKER v. THE STATE.
    (464 SE2d 910)
   Ruffin, Judge.

Seaton Parker appeals his convictions of armed robbery, aggravated assault (two counts), criminal attempt to commit armed robbery, possession of a firearm during the commission of a crime, carrying a concealed weapon, and possession of tools for the commission of a crime. The charges stemmed from an August 21, 1993 armed robbery and a September 3, 1993 robbery attempt of two Wendy’s restaurants in DeKalb County. Because the trial court erred in finding that the State exercised its peremptory strikes in a racially-neutral manner, we reverse and remand for a new trial.

1. Parker, an African-American, enumerates as error the trial court’s determination that the State overcame his challenges to the State’s exercise of its peremptory strikes based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The State used four of its six peremptory strikes against African-American prospective jurors.

“The preliminary issue of whether [Parker] established a prima facie case of discrimination [under Batson] is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination. [Cit.] We therefore need only address the sufficiency of the prosecutor’s explanations for the exercise of the four peremptory strikes of black [prospective jurors]. ‘The prosecutor’s explanations must be strong enough to overcome the prima facie case.’ [Cit.]” Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728) (1993).

“ ‘(T)he exercise of a peremptory challenge may not be based on either the race of the juror or racial stereotypes held by the party. (Cit.)’ [Cit.] ‘In order for the State to carry its Batson burden, the prosecutor (must) explain his striking of the jurors at issue by articulating a racially-neutral reason related to the particular[s of the] case. (Cit.)’ [Cit.]” (Emphasis supplied.) Id. In this case, the prosecutor explained that juror Hollis, a criminal justice major at West Georgia College, was struck because he always hesitated to put anyone with education in the law or criminal justice on a jury. He stated his belief that one with her background would take a microscopic view of the evidence, have an extremely narrow perspective of reasonable doubt, and therefore not be a good State’s juror. The trial court found this explanation to be racially neutral and sustained the State’s peremptory strike. Its ruling is entitled to great deference. Kelly v. State, 209 Ga. App. 789 (1b) (434 SE2d 743) (1993). “A reasonable suspicion about a prospective juror’s impartiality that falls short of justifying an excusal for cause might well justify the exercise of a peremptory strike.” (Citations and punctuation omitted.) Chunn, supra. The prosecutor’s explanation, based on a reasonable suspicion, was racially neutral and related to the particulars of this case. Thus, the trial court’s ruling was not clearly erroneous. See Kelly, supra at 210.

On the other hand, the prosecutor’s explanations for striking the other three African-American prospective jurors are suspect.

The prosecutor explained that he struck juror Strong because she did not appear to be paying attention. He stated that during jury selection, every time he looked at Strong, her arms were crossed, her eyes were closed, and she appeared to be sleeping. He also stated that he struck Strong because she said she had been a babysitter for the nieces and nephews of another prosecutor in his office.

The State offered conflicting explanations for striking juror Johnson. The prosecutor stated that she “clearly did not want to be here to participate in the process. She appeared not to be paying attention, when we were talking with her.” The prosecutor explained that Johnson’s “inability to focus” was demonstrated by the fact that she was a 24-year-old, unemployed, part-time student. He also stated that the juror “seemed somewhat inwardly . . . hostile towards questions by both me and I thought [defense counsel]” and “hostile toward the system. . . .”

The prosecutor explained that he struck Juror Shepherd because her arms were crossed throughout the proceedings and she had a “very dour frown on her face.” She appeared to “glare off into the distance” and refused to look at him during questioning. Based on these observations, the prosecutor concluded that Shepherd was annoyed that she had to be in court and that she would not pay attention to the evidence.

The prosecutor admitted that he based his explanations almost entirely on the jurors’ demeanor and not on any specific responses to questions. Although he is entitled to draw reasonable inferences, we are troubled by such complete reliance on bare hunches drawn from the jurors’ demeanor and the apparent absence of any inquiry into whether these jurors actually held any biases. There is absolutely no evidence that the jurors formed or expressed any opinion as to Parker’s guilt or innocence; that they held any pro-prosecution or pro-defense leanings; or that they could not sit and serve as fair and impartial jurors and return a verdict based solely on the evidence introduced at trial. Indeed, without such evidence, the prosecutor’s explanations reflected unacceptable stereotypical attitudes as to particular groups which cannot serve as a basis for exercising peremptory strikes. See Tharpe v. State, 262 Ga. 110 (6) (416 SE2d 78) (1992); McKibbons v. State, 216 Ga. App. 389 (1) (455 SE2d 293) (1995). Furthermore, we fail to see how the explanations given are related to this case.

In the case of Strong, there was no inquiry as to whether or why she was sleeping and whether the inattentiveness the prosecutor perceived was related to this particular case such that she could not be a fair and impartial juror. Furthermore, if the prosecutor observed this juror sleeping, he had a duty to bring it to the court’s attention. See Williams v. State, 190 Ga. App. 361 (2) (378 SE2d 886) (1989). There is also no evidence of how Strong’s rather attenuated relationship with another prosecutor, not involved in this case, would have affected her service on the jury.

The prosecutor inferred from Johnson’s body language that she was both inattentive and hostile. We question how a person could give the appearance that she is not paying attention and hostile at the same time. In any event, the prosecutor failed to tie either of those attitudes to this case. Furthermore, there is no apparent connection between her status as a 24-year-old unemployed, part-time student and the prosecutor’s perception that she necessarily had an “inability to focus” on, we presume, the evidence in the case.

With respect to Shepherd, there is likewise no apparent connection between the prosecutor’s conjecture as to her fitness to serve on the jury, derived solely from his perceptions of her body language, and any aspect of this case. Moreover, our courts have specifically recognized that explanations involving certain aspects of eye contact can reflect impermissible stereotypical attitudes. See Tharpe, supra; McKibbons, supra.

Although the trial court’s findings are entitled to great deference, we cannot condone the exclusion of the three prospective African-American jurors based almost entirely on their demeanor. The prosecution’s reasons for striking these African-American prospective jurors were not the kind of concrete, tangible, race-neutral, case-related and neutrally applied reasons sufficient to overcome Parker’s prima facie case. Therefore, the trial court’s determination that the State did not use its peremptory strikes in a racially discriminatory manner was clearly erroneous and should be reversed. In accordance with Williams v. State, 262 Ga. 732 (1) (426 SE2d 348) (1993), the case is remanded for a new trial. See also Rector v. State, 213 Ga. App. 450 (1) (444 SE2d 862) (1994).

2. We have considered Parker’s remaining enumerations of error and find that they either lack merit or are unlikely to recur at trial.

Judgment reversed and remanded.

Beasley, C. J., concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I agree that the State failed to articulate adequate, racially-neutral reasons related to the specifics of this case for three potential jurors, and that retrial is therefore warranted under Batson and Georgia cases applying Batson.

I write separately to point out that since the recent United States Supreme Court decision in Purkett v. Elem,_U. S._(115 SC 1769, 131 LE2d 834) (1995), the law regarding Batson challenges is in a state of flux. In Purkett, a per curiam decision issued on a petition for certiorari without benefit of briefing or oral argument, the United States Supreme Court implicitly overruled Batson in part, concluding that despite explicit language in Batson to the contrary, the equal protection clause of the Federal Constitution does not require the State’s racially-neutral reason to be related to the case (or even sensible); as long as the trial court believes the State’s denial of purposeful discrimination, any reason (other than “because he is African American”) is legally sufficient.

Decided December 5, 1995.

Alden W. Snead, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Desiree S. Peagler, Assistant District Attorneys, for appellee.

Thus, this case would have to be affirmed if we considered only the equal protection clause of the Federal Constitution. Our consideration is not so limited, however, as the Georgia Constitution also has an equal protection clause. The Georgia Supreme Court has consistently required the State’s racially-neutral reason to be related to the case. See, e.g., Congdon v. State, 262 Ga. 683 (424 SE2d 630) (1993); Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993); Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987) (‘““(Rubber stamp” approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to “ensure that no citizen is disqualified from jury service because of his race” ’ ”). I therefore think the proper course is to continue to follow this line of cases and require the racially-neutral reason to be related to the case unless and until the Georgia Supreme Court determines that case relatedness is not required under the equal protection clause of the Georgia Constitution.

In Justice Marshall’s separate concurrence in Batson, he accurately predicted the difficulties courts would face in trying to eliminate racially discriminatory peremptory strikes. See 476 U. S. at 102-108. This prediction was based not just on an assumption that some prosecutors would lie about their reasons, but also on a realization that our racial and ethnic stereotypes may be so deep rooted that prosecutors may not even realize they are relying on them. Id. at 106. As a result, Justice Marshall suggested that we should simply eliminate peremptory strikes as the only way to eliminate discriminatory strikes. Id. at 107-108. And after years of reviewing these cases, I am beginning to see the wisdom of such a course.

       The prosecutor in Purkett had explained his strike by saying that the struck juror “seemed suspicious” because he had long, unkempt hair, a mustache and a beard. The Eighth Circuit Court of Appeals rejected this explanation, holding that the racially-neutral reason for a strike must bear some relationship to the person’s ability to serve as a juror in that case, and where the reason was facially irrelevant, the prosecutor at least had to articulate some plausible reason for believing those factors would somehow affect the person’s ability to serve as a juror. The Supreme Court reversed, holding that the prosecutor’s obligation to articulate a racially-neutral reason “does not demand an explanation that is persuasive, or even plausible.” 131 LE2d at 839.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A95A1387.
    ATKINSON v. THE STATE.
    (466 SE2d 32)
    Decided December 4, 1995.
    Thomas B. Atkinson, pro se.

      Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.
   Pope, Presiding Judge.

On December 20, 1993, defendant Thomas Atkinson pled guilty to robbery by sudden snatching, theft by taking a motor vehicle, driving without a license and obstruction. On December 28, 1994, defendant moved to withdraw his guilty plea, contending that his trial counsel was ineffective in failing to inform defendant that he had a right to appeal. Defendant filed the present appeal following the trial court’s denial of his motion to withdraw his plea. Concluding that the trial court did not err, we affirm.

Although defendant’s motion was styled as a motion to withdraw a guilty plea, in essence, the motion amounts to a request for an out-of-time appeal. “An out-of-time appeal is occasionally appropriate where, due to ineffective assistance of counsel, no appeal has been taken. Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991); Henderson v. State, 265 Ga. 317 (2) (454 SE2d 458) (1995). However, an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984).” Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995).

In this case, defendant contends that his guilty plea was not voluntary because his trial counsel defrauded him and coerced him into entering the plea. Such allegations cannot be verified or disproved by the facts appearing in the record. Consequently, defendant “had no right to file even a timely notice of appeal from the judgment of conviction entered on [his] guilty plea, [and therefore] he was not entitled to be informed of a non-existent ‘right’ to appeal.” Morrow, supra at 4. Defendant’s only available remedy in this case is through a habeas corpus proceeding. Id. This is true even if we did not treat defendant’s motion to withdraw his guilty plea as a motion for an out-of-time appeal. See Vaughn v. State, 248 Ga. 325 (283 SE2d 263) (1981); Jarrett v. State, 217 Ga. App. 627, 628-629 (1) (458 SE2d 414) (1995).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A1333.
    A95A1334.
    FORTUNE et al. v. PRINCIPAL FINANCIAL GROUP, INC. et al. ETHRIDGE v. PRINCIPAL FINANCIAL GROUP, INC. et al.
    (465 SE2d 698)
   Blackburn, Judge.

Evelyn Ethridge and John and Denise Fortune appeal from the grant of summary judgment to the Principal Financial Group, Inc. and the Principal Mutual Life Insurance Company (Principal). In their suits against Principal and Ernie Malcolm James, Ethridge and the Fortunes sought damages arising out of their investments in the “Principal Manager’s Fund,” a non-existent fund which James falsely represented to be a Principal fund. In identical four-count complaints against Principal, they alleged that James made false representations to them as Principal’s agent; that Principal breached its contract with them; that Principal negligently hired James as its agent; and that Principal negligently failed to adequately regulate, supervise, and monitor James. We have consolidated these closely-related appeals for disposition in a single opinion.

1. Ethridge and the Fortunes urge that the trial court erred in granting summary judgment to Principal in that genuine issues of material fact remain as to Principal’s liability in tort. In this regard, they argue that jury questions exist as to whether James may be deemed to have acted within the scope of actual or apparent agency on behalf of Principal; as to whether Principal was negligent in hiring and supervising James; and as to whether Principal breached investment contracts with the Fortunes and Ethridge.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nbnmoving party, warrant judgment as a matter of law. [Cit.] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The evidence reflects that Ethridge and the Fortunes met James as a result of their common membership in the same church. Ethridge had heard that James taught Sunday school and had friends at church who had invested money through him. The Fortunes and James had taught Sunday school together. Over dinner one evening in his home, James told the Fortunes that he was a Principal agent able to handle “all kinds of insurance, plus securities and investments.” It was upon this background that Ethridge and John Fortune later contacted James for the purpose of seeking his assistance in making Individual Retirement Account (IRA) investments.

On each occasion, James advised that he could do so; however, he indicated that he could make them more money if they allowed him to first invest their funds in the Principal Manager’s Fund (Fund). Ethridge invested $3,000 upon James’ recommendation that she defer making a $2,000 IRA investment until the April deadline for doing so. The Fortunes invested a total of $12,000 in the Fund on the understanding that James would later move $4,000 from it to a Principal IRA. In both cases, the investment checks were written by the appellants directly to James, not to Principal. Principal never received the funds and had no knowledge of the transaction. In turn, James personally executed and delivered promissory notes to appellants promising repayment with interest at a date certain and said notes did not purport to bind Principal. Neither the Fortunes nor Ethridge asked to be shown the Fund’s prospectus. Apart from his business cards which James showed John Fortune, both relied exclusively on James’ oral representations as to the scope of his authority on behalf of Principal Mutual.

“An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. In the absence of evidence of actual control, the test distinguishing an employee from an independent contractor is whether the employer assumed “ ‘the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.’ [Cit.]” Allrid v. Emory Univ., 249 Ga. 35, 40 (285 SE2d 521) (1982).

Principal and its predecessor entity, the Bankers Life Company, entered into five contracts with James between July 16, 1984 and October 1, 1990. Although termed agent’s contracts, each contract denominated James’ status as that of an independent contractor. In Georgia, such a contractually conferred designation is presumed true unless other evidence is introduced to show that the employer exercised control as to the time, manner and method of performing the work sufficient to establish an employer-employee relationship. Lagoueyte v. Rocket Express, 196 Ga. App. 143 (395 SE2d 389) (1990). “On the other hand, where the contract specifies that the employee’s status shall be that of independent contractor but at the same time provides that he shall be subject to any rules or policies of the employer which may be adopted in the future, no presumption arises.” (Punctuation omitted.) Ross v. Ninety-Two West, 201 Ga. App. 887, 891-892 (412 SE2d 876) (1991).

Neither Ethridge nor the Fortunes assert that James was contractually denominated as other than an independent contractor of Principal. Such contracts made Principal’s “rules, requirements and instructions” applicable to James; however, unlike Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549 (43 SE2d 784) (1947), cited by the dissent, they did so only to the extent that these were not inconsistent with his status as an independent contractor. Further, although the dissent cites Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 133 (4) (220 SE2d 707) (1975) for the proposition that susceptibility to monitoring, grading and discharge will deny an insurance agent status as an independent contractor, Franklin was decided principally upon the fact that the agent therein was a manager in a hierarchical organizational structure. As such, he supervised those below him and was subject to the supervisory control of those who were above him in the company. Id. Both Gulf Life and Franklin are here inapposite on the basis of other factors as well. Among these, Principal did not specify or restrict James’ sales territory; Principal allowed James to sell the products of other companies; and Principal did not require James to work out of a certain location or require him to attend scheduled training for company agents. Moreover, the contracts authorized James to solicit life and health policies and annuity contracts for Principal and denied him authority to “[i]ncur any liability or debt against us” or to “accept risks or contracts of any kind or bind us in any way.”

While Ethridge and the Fortunes correctly contend that Principal enabled James to distribute company business cards describing himself as an agent and brochures describing its insurance products, such evidence is insufficient to establish that James lacked independent contractor status. “ ‘In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.’ (Citation and punctuation omitted.) Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (1979).” McElroy v. Cody, 210 Ga. App. 201, 202 (435 SE2d 618) (1993). In this regard, it is undisputed in the record that James did not have authority under his contracts with Principal to sell investment funds or securities; Principal never received any money from James’ sales of the Fund; and, on July 25, 1991, it terminated James upon first learning that it existed.

Citing Jester v. Hill, 161 Ga. App. 778 (288 SE2d 870) (1982), the dissent notes that a jury may impute liability to an insurance provider upon evidence that the criminal acts of an independent insurance broker resulted out of apparent authority it conferred upon such agent to so act.

“ ‘In order to recover under (an apparent or ostensible agency) theory, however, a plaintiff must present evidence that: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury. Further, it is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury.’ (Citations and punctuation omitted.) [Cit.]” Marcoux v. Northside Realty Assoc., 207 Ga. App. 99, 100 (427 SE2d 72) (1993). While the dissent correctly points out that Principal provided James business cards which described him as an agent of the Principal Financial Group, it fails to note that it provided James two other business cards neither of which describes him as such an agent. Moreover, the record reflects that only Fortune was shown a business card, a card which indicated that James was an agent of the Principal Insurance Company rather than the Principal Financial Group. Otherwise the evidence is that Ethridge and Fortune “invested” in the Fund in reliance upon James’ reputation as an insurance agent in the church of which they were members and his own representations as to his authority. Under these circumstances, Principal may not be deemed to have clothed James with apparent authority to act as its agent and liability based thereon necessarily cannot arise. Jester, supra.

Also citing Jester, the dissent asserts that liability for negligent selection of an insurance broker may arise in an insurance provider if such an independent contractor is deemed to have “a poor general reputation in the insurance community.” Id. at 783. However, in Jester this Court held only that upon such evidence a jury question arises as to the adequacy of the insurance provider’s pre-employment background check to discover propensity in the prospective independent insurance broker for fraudulently using insurance flyers and application forms. Id. at 783-784.

Unlike Jester, there is here no evidence that James had a poor general reputation in the insurance community which would have been readily discoverable by “any reasonable investigation.” Id. at 783. Instead, the evidence reflects that Principal employed Equifax Services to provide it background information pertinent to all applicants for employment, including James. When Principal rehired James in 1990, Equifax reported that the Northwestern Mutual Insurance Company, James’ employer at the time he was being considered for re-employment, regarded his business expertise as excellent and that he was there earning $50,000 a year in a managerial position. Principal had high regard for James as well in that he had successfully worked for Principal earlier as a life insurance agent known for integrity. Although Equifax also reported that two insurance companies for whom James had previously worked declined to divulge the basis upon which his employment had been terminated, they did so on the basis of neutral, company-wide policy, rather than for cause. Finally, our review of the record indicates that Principal made a good faith effort to resolve conflicting information in James’ pre-employment file.

James did not disclose, and Equifax did not report, that he had been employed and terminated by Cotton States Mutual Life Insurance Company for, among other things, the misapplication of insurance premiums. “ ‘An employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s violent and criminal propensities. [Cits.]’ ” Diaconescu v. Hettler, 210 Ga. App. 191, 193 (435 SE2d 489) (1993). Lying about personal and professional qualifications in applying for employment does not constitute such proof. Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 880 (298 SE2d 600) (1982). That Principal’s employment file on James reflected that he had experienced long-term financial difficulties as evidenced by a bankruptcy, personal indebtedness reduced to judgment and garnishment action, a Georgia tax lien against him, and a low score on a preemployment agent qualifications test likewise do not constitute proof of propensity to commit any crime, job-related or otherwise, particularly in light of James’ employment record while first with Principal. Principal satisfied its duties in the investigation and hiring of James. See OCGA § 33-23-8 (e).

Although it does not regularly occur, “a case may present a factual situation wherein the issue of the existence or non-existence of the master-servant relationship is properly decided as a matter of law. [Cit.] This is such a case.” Dennis v. Malt, 196 Ga. App. 263, 266-267 (395 SE2d 894) (1990). Viewing the evidence in a light most favorable to Fortune and Ethridge, we conclude that James was here an independent contractor and that liability in Principal for negligently hiring him as such does not lie. Accordingly, the trial court’s grant of summary judgment was proper. Lau’s Corp., supra at 491.

2. In light of our disposition of Division 1, we do not reach appellants’ remaining enumerations of error.

Judgments affirmed.

Beasley, C. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., Pope, P. J., and Ruffin, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I do not agree with the majority that the Fortunes and Etheridge are precluded (as a matter of law) from recovering based on a theory of respondeat superior. Specifically, I believe there is proof that would authorize a jury’s finding that Ernie Malcolm James was Principal’s actual agent or, alternatively, that Principal clothed James with (apparent) authority to act as an authorized agent. Furthermore, I do not believe that Principal’s liability for negligent hiring and retention is foreclosed by a finding that Ernie Malcolm James acted outside the scope of his agency or that James was an independent contractor. Unlike liability based on respondeat superior, a principal may be liable for negligent hiring and retention if there is proof that the principal failed to act reasonably in selecting or retaining an independent contractor or agent for a position of public or private trust.

Respondeat Superior: Actual Authority. In Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549 (43 SE2d 784), cert. dismissed at 203 Ga. 95 (45 SE2d 64), this Court held that an insurance agent’s agreement to conform to all company rules and regulations, along with the company’s right to revoke the agency at any time, constitutes sufficient indicia of control to authorize a finding of agency. Id. at 554. Such circumstances stand unrefuted in the case sub judice. Principal not only had the right to terminate James at any time, James agreed to obey all of Principal’s rules, regulations and instructions. Nonetheless, the majority discounts this evidence by citing a term in the parties’ agency agreements which provides that James is only required to comply with Principal’s rules “to the extent that these were not inconsistent with his status as an independent contractor.” The problem with this logic is that the above exception means nothing if the parties’ agreement, relations and conduct exclude the possibility that James is an independent contractor. See Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 554-558, supra. In other words, if the circumstances indicate that Principal had the right to exercise certain control over James, other than just to see that the general terms of the parties’ agreement were met, then a jury would be authorized in finding that an agency (rather than an employer-independent contractor) relationship existed. Quinan v. Standard Fuel Supply Co., 25 Ga. App. 47 (1) (102 SE 543). Accordingly, it is from this perspective that I observe that James agreed (in two agency contracts) “to devote [his] principal business activity to the solicitation of life and health insurance policies or annuity contracts for Principal”; that Principal provided James with material for marketing its products; that James was subject to the supervision and control of a Principal manager; that this manager monitored, graded and assisted James at least once a week, and that James utilized and was subject to Principal’s marketing techniques and sales goals. Under strikingly similar circumstances, this Court held in Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 132 (4) (220 SE2d 707), that “[i]t is unrealistic to contend that under [such hierarchical methods of control] or organization [an insurance agent is] a mere independent contractor for whose actions the company had no responsibility. [Cits.]” Id. at 132-133 (4). For the same reason, I believe the majority in the case sub judice incorrectly characterizes James (as a matter of law) as an independent contractor for whose actions Principal has no responsibility. For the reasons stated, I stand “ ‘unequivocally committed to the doctrine that the jury are arbiters of [such] issues of fact.’ Hines v. Chappell, 1 Ga. App. 480, 482 (58 S. E. 220).” Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 553, supra.

Respondeat Superior: Apparent Authority. In Jester v. Hill, 161 Ga. App. 778 (288 SE2d 870), this Court held that a jury may impute liability to insurance providers where there is evidence that the criminal acts of an independent insurance broker (i.e., retaining the plaintiff’s insurance premiums but not effecting issuance of an insurance policy) were accomplished because the insurance providers clothed the broker with apparent authority to issue their insurance policies. Id. at 780 (1). The basis of this holding was the maxim that “ ‘[a]n estoppel will arise when a principal places an agent in a position of apparent authority, so that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has authority to perform a particular act and deals with the agent upon that assumption. Commercial Credit Corp. v. Noles, 85 Ga. App. 392, 396 (69 SE2d 309).’ ” Id. at 780 (1), 783. And the circumstances authorizing application of this rule was mere proof that the insurance providers gave the brokerage firm the advertising flyer and the insurance application (with their respective names printed thereon) the unscrupulous broker used to compel the plaintiff to part with his premium. Id. at 780 (1), 781.

In the cases sub judice, Principal provided James with business cards characterizing him as an “Agent” of “the Principal Financial Group,” and advertising brochures describing Principal’s insurance and securities products, i.e., disability insurance, individual retirement accounts and various savings plans. These marketing brochures were embossed with the logo, “The Principal Financial Group,” and comic strip scenes portraying Principal’s products as a secure haven for customers’ foreseen and unforeseen hardships. Also inscribed on these advertising brochures (but not mentioned in the majority opinion) are portrait-type photographs of Ernie Malcolm James and a standardized greeting from James (designed to instill trust and confidence), James’ signature, and his business address and phone number. It is my view, that these circumstances, evidence that Principal was publicly marketed (at times pertinent to the case sub judice) as an established insurance and securities provider and that Evelyn Etheridge and John Fortune trusted James because of his association with Principal, raise genuine issues of material fact as to whether Principal is estopped to deny agency, and therefore liability based on respondeat superior.

Negligent Hiring and Retention. Unlike liability based on respondeat superior, an employer may be liable under a theory of negligent hiring and retention if an employee injures a third party while acting outside the scope of his employment. Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 733 (2) (193 SE 347). Further, this Court has held that an insurance provider may be liable for negligent selection of an independent insurance broker if it is unrefuted that such an independent contractor “had a poor general reputation in the insurance community.” Jester v. Hill, 161 Ga. App. 778, 783 (2), supra. Indeed, this holding is consistent with the Georgia Supreme Court’s ruling that an employer may be liable for the negligent acts of an independent contractor if public policy demands imposition of such a duty. Peachtree-Cain Co. v. McBee, 254 Ga. 91 (1) (327 SE2d 188). And in this vein, it is relevant in the cases sub judice that Georgia’s public policy has long required insurance providers to investigate the background and qualifications of any person who applies for an insurance agent’s or subagent’s license or certificate of authority. See OCGA § 33-23-8 (e) and former OCGA § 33-23-8 (a) (3) (A) (Code 1933, § 56-811a, enacted by Ga. L. 1960, pp. 289, 293, § 1, p. 420, Ga. L. 1980, pp. 1163, 1164, § 4, p. 1165). In fact, since 1992 Georgia law has required insurance providers to document the extent of such investigations and certify that their applicants are trustworthy and qualified to act as insurance agents. OCGA § 33-23-8 (e).

In the cases sub judice, there is no conclusive proof that Principal complied with its public duty to make its own reflective inquiry into James’ character and ability as a professional insurance agent. Specifically, Principal cites no evidence that it checked the personal references James provided when he applied to serve as a Principal insurance representative, and it appears that Principal failed to make a deeper inquiry when one of James’ former employers noted (in response to a letter of inquiry) that James is not eligible for reappointment. It also appears that Principal never attempted to resolve an apparent discrepancy between a report from a private investigator, indicating that James sold “Herbalife” products in 1984, and a statement James made on a “Personal History” form, dated June 1990, indicating that he has no “selling experience” outside insurance and securities. Further, Principal fails to explain why no inquiry was made when James failed to answer the following question on his “Personal History” questionnaire: “Can you remain at [your current] job?” And it does not appear that Principal made inquiry in response to the following notation on a report on James submitted by a private investigator: “We have attempted to contact Mr. James in this investigation on numerous occasions but he has not been available.” It is my view, that these circumstances, along with proof that Principal was aware of James’ prior financial difficulties, his termination by another insurance carrier for alleged misapplication of policy premiums, and his failure to measure up to Principal’s own quality standards (as gleaned from standardized agent-evaluation procedures), raise genuine issues of material fact as to Principal’s liability for negligent hiring and retention of James. To say otherwise (in my view) diminishes the legislative mandate that insurance providers document and certify that their agents are trustworthy and qualified insurance professionals. See OCGA § 33-23-8 (e).

Decided November 17, 1995

Reconsideration denied December 6, 1995

Taylor & Roberson, Leah 0. Taylor, Ted Taylor, Jerry D. Roberson, John P. Tucker, Jr., for appellants.

Carter & Ansley, Ben Kingree III, Elizabeth J. Bondurant, for appellees.

I am authorized to state that Presiding Judge Pope joins in this dissent.

       James promised Etheridge and John Fortune that any money invested in the Fund would earn interest at the rate of ten percent.

       While a Principal broker, James held broker contracts with United Family Life Insurance Company, American Family Life Insurance Company, Integrity Life Insurance Company, Credit Life Insurance Company, Hartford Life & Accident Insurance Company, Ameritas Life Insurance Corporation, and Northwestern Mutual Insurance Company.

       Principal made training available to its brokers, including James, but it was not mandatory that they attend.

       Notwithstanding the dissent’s claim to the contrary, Principal followed up to resolve favorably to James’ conflict between a pre-employment written statement in which he indicated he had not worked beyond the insurance industry and an Equifax report that indicated he had previously sold Herbalife products. We are unable to find evidence in the record to support the dissent claim that James refused to answer the question “Can you remain at this job?” in applying for re-employment with Principal while still employed by Northwestern Mutual. Rather, there is only evidence that James did not respond to such question when completing his application for employment. Finally, the dissent correctly indicates that Principal did not make further inquiry upon the “not eligible for reappointment” response it received to its letter of inquiry sent to the Liberty Mutual Life Insurance Company, one of James’ former employers. The dissent fails to point out, however, that Liberty Mutual explained James’ ineligibility for re-employment as “[d]ue to Company’s policy not to rehire after two previous connections.” Under these circumstances, we submit that further inquiry by Principal was neither reasonably required nor appropriate.

       James scored 12 on a test denominated the Aptitude Index Battery (AIB) in 1984; 13 was then the minimum permissible score in Principal’s experienced agent category. Principal waived such testing for James in 1990 at the time of his re-employment; however, by that time the minimum permissible score had been reduced to 11. Notwithstanding James’ low score in this testing, Principal viewed him as a qualified agent in light of his long career and experience, six years of which had been with Principal. In rating him overall, inclusive of his low AIB score and a prospective market evaluated only as “fair,” James was rated as eligible for employment pursuant to Principal’s numerical rating guide.

       It is not only undisputed that Principal had the right to terminate James at any time, but there is little doubt that such termination was inevitable had James proved to be an unproductive sales agent or had he disobeyed Principal’s rules, regulations and instructions.

       While the majority states that “Principal allowed James to sell the products of other companies,” two of the agency contracts James executed were entitled, “Career Agent’s Contract,” and required James “to devote [his] principal business activity to the solicitation of life and health insurance policies or annuity contracts for Principal Mutual Life Insurance Company.” These contracts referred to James as a “full-time” agent and provided in a section entitled, “AFFILIATION WITH COMPANY,” as follows: “You agree, in exchange for the issuance of this full-time agent’s contract and the valuable incidents to which it entitles you, to submit all of your applications for policies, except for [group plans of employer sponsored life and health insurance benefits, known as PEP (Planned Employee Program)], to us for underwriting and approval. You are free to sell the applicant a policy issued by another company if we decline the application or the applicant does not accept the policy as issued. You are not required to submit applications for PEP to us first.” Similar language appeared in another agency contract James executed entitled, “Career Assessment Phase.”
      The majority also incorrectly concludes (as a matter of law) that “Principal did not require James ... to attend scheduled training for company agents.” There is proof that James was contacted (at least once a week) by a Principal supervisor who monitered and encouraged James, gave James direction on how to improve his skills and graded each and every contact James made on behalf of the company. In fact, there is proof that Principal offered James training for developing his skills as an insurance agant and provided James with materials aimed at marketing Principal’s insurance products and financial planning services.

       Indeed, a “Personal History Form” from Ernie Malcolm James in Principal’s employment records indicates that Principal was more concerned with James’ ability to develop business with friends and acquaintances (via detailed inquiry into James’ civic and social activities) than with his personal character and his ability as a professional insurance agent.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A1363.
    AMERSON v. KELLY et al.
    (465 SE2d 470)
   Andrews, Judge.

Ruth Amerson appeals from the trial court’s order granting summary judgment to Kelly’s Food and Gas (“Kelly’s”). We affirm the order of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewing all the evidence in the light most favorable to the plaintiff, the record shows that on March 2, 1992, around 11:00 in the evening, Ms. Amerson drove to Kelly’s to get gas. She had been to these same gas pumps approximately eight times to put gas in her car. Her previous trips had been at different times of the day and night. There was a canopy over the pump island with four lights, and there were also two security lights, one of which was in front of the store and lighted the gas pumps and the parking lot. In addition, there were lights on the front of the store. Amerson pulled up with the right side of her car immediately adjacent to the island, got out of her car and walked around to the other side to take off the gas cap. She removed the gas nozzle and was turning to put it into the gas tank when she fell to the pavement, injuring her left knee. Amerson then discovered that the cause of her fall was the uneven pavement, specifically a portion of the island which was raised approximately one inch above the rest of the pavement.

Amerson claims that due to the location of the overhead lighting, the car’s shadow prevented her from seeing clearly the uneven pavement. Amerson states that she was not looking at the ground because her attention was diverted by the task of getting the nozzle in order to pump gas into her car.

Sam Kelly, the owner of Kelly’s, testified at his deposition that he had not repaved or made any changes to the gas islands since he took over the station from Majik Market in 1991. He further testified that he had never known anyone to complain or report a fall on the gas pump island.

To prevail in a slip and fall case, a plaintiff must show that the landowner had superior knowledge of the condition or hazard on the premises causing an unreasonable risk of harm. A landowner’s superior knowledge is negated, and is equal to that of the plaintiff, where the plaintiff in the exercise of ordinary care for her own safety knew or should have known of the hazard. See generally Alterman Foods v. Munford, 178 Ga. App. 214 (342 SE2d 480) (1986); Adams v. Winn-Dixie Stores, 192 Ga. App. 892 (386 SE2d 686) (1989); Hudson v. Quisc, Inc., 205 Ga. App. 840 (424 SE2d 37) (1992); Jester v. Ingles Market, 206 Ga. App. 327 (425 SE2d 323) (1992).

Broken or uneven pavement is a “static” condition which is not dangerous unless someone fails to observe it and steps into it. Gaydos v. Grupe Real Estate &c., 211 Ga. App. 811, 813 (440 SE2d 545) (1994). In cases involving “static” conditions, “if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” (Citation and punctuation omitted.) Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Further, “when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Citation and punctuation omitted.) Rose, supra.

Amerson had successfully negotiated the pavement around the gas pumps eight times before, both during the day and at night. As stated previously, Sam Kelly testified that no one had ever complained of the uneven pavement. However, even if Kelly’s could be assumed to have constructive knowledge of this potentially dangerous condition, they were justified in believing that Amerson would have either discovered the condition or realized the risk involved. Jeter v. Edwards, 180 Ga. App. 283, 284 (349 SE2d 28) (1986). Although Amerson claims that the uneven pavement was in the shadow of her car and she was distracted due to reaching for the gas nozzle and turning to put it in the gas tank, that avails her nothing in this case. She had successfully negotiated this same gas island several times previously and is presumed to have knowledge of the condition of the pavement. Rose, supra. Further, it was incumbent upon her, as a matter of law, to use her eyesight to discover any possible hazards. Emory Univ. v. Duncan, 182 Ga. App. 326, 329 (355 SE2d 446) (1987).

Decided November 16, 1995

Reconsideration denied December 6, 1995

O’Neal, Brown & Sizemore, James M. Wootan, for appellant.

For the reasons discussed above, we find that there are no genuine issues of fact for a jury to consider. Accordingly, the trial court’s granting of summary judgment to defendant was proper.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Johnson and Smith, JJ., concur. McMurray, P. J., Pope, P. J., Blackburn and Ruffin, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of affirmance. Under the facts as recited by the majority, a jury question is presented as to whether plaintiff failed to exercise ordinary care for her own safety under all the attendant circumstances. Consequently, it is my view that the case sub judice is controlled favorably to the plaintiff by the whole court decision in Pinkney v. VMS Realty, 189 Ga. App. 177 (375 SE2d 90). In Pinkney, just as in the case sub judice, the plaintiff “conceded that she was aware of the existence of the [alleged hazard] and that she could have seen [the difference in height or] the drop-off if she had ‘looked for it very closely,’ but she indicated that its location was not readily observable because the two levels appeared to blend together due to the [inadequate] lighting. . . .” Thus, the whole court reversed the grant of summary judgment, holding that “[w]hether [plaintiff’s] failure to see the ledge constituted a lack of due care for her own safety under these circumstances and whether, if so, her [own] negligence outweighed any possible negligence on the part of the [premises owner or occupier] in failing to provide . . . warning markers, and/or better lighting are issues of fact to be resolved by a jury. [Cits.]” Pinkney v. VMS Realty, 189 Ga. App. 177, 179, supra. It is well settled in Georgia, however, that questions of negligence, diligence, comparative negligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain, palpable and indisputable cases. See, e.g., Mixon v. City of Warner Robins, 264 Ga. 385, 389 (2), 391 (444 SE2d 761). In my view, the case sub judice falls within the general rule rather than the rare exception, such that summary judgment was inappropriate. As my colleagues in the majority nevertheless would affirm, I respectfully dissent.

I am authorized to state that Presiding Judge Pope, Judge Blackburn and Judge Ruffin join in this dissent.

Groover & Childs, Craig M. Childs, for appellees.


text:
    A95A1485.
    ROWE et al. v. CSX TRANSPORTATION, INC. et al.
    (465 SE2d 476)
   Andrews, Judge.

In this malicious prosecution and defamation case, plaintiffs Freddy Rowe and Cleo Brown appeal the trial court’s order granting summary judgment to defendants CSX Transportation, Inc. (“CSX”), a railroad, and its detective, Robert Johnson.

This case arose in January 1992 when a Racine rail saw, used to cut rails, was stolen from a truck parked in the CSX railyard. Six months later, while investigating the theft, Johnson interviewed Fabian Terry, who stated that he got the saw from Willie, Jr. who said he bought it for $20 from Brown. Terry also told Johnson that the saw was on Rowe’s property and Rowe knew it was stolen. After Johnson went to Rowe’s house and asked about the saw, which had “Property of CSX” painted on it, Rowe admitted he had lent it to a friend and agreed to give it back to the railroad. At his deposition, Rowe testified that Johnson promised not to press any charges if he brought back the saw. Rowe returned the saw, but Johnson subsequently reported the results of his investigation to a county magistrate who issued arrest warrants for Rowe and Brown for receiving stolen property. After their arrest, the men waived their right to a preliminary hearing and posted bond. It is undisputed that Johnson did not attempt to contact Brown after receiving Terry’s statement.

The criminal cases against Rowe and Brown ultimately were dismissed without prosecution because Johnson was unable to appear. In addition, the assistant district attorney prosecuting the case indicated that, because Brown had been incarcerated when the crime occurred, he felt the charges should be dropped. Rowe and Brown were subsequently indicted on the same charges, but the charges were again dismissed.

Rowe and Brown then commenced this action alleging malicious prosecution and defamation. CSX and Johnson moved for summary judgment, arguing that probable cause for the arrests existed based on the evidence and because Rowe and Brown waived their preliminary hearing. They also contended that Johnson lacked malice. CSX and Johnson further argued that, because the evidence showed Johnson made his statements in good faith in the performance of a public duty, summary judgment was warranted on the defamation claim. The trial court summarily granted the motion for summary judgment.

Rowe and Brown argue that the trial court erred in granting summary judgment because whether Johnson lacked probable cause to prosecute them was a jury question. They also contend that disputed issues remain to be tried on malice. We disagree.

“[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate . . . that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

The essential elements of malicious prosecution are: “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff. [Cit.]” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293) (1994). Lack of probable cause exists when the circumstances satisfy a reasonable person that the accuser had no ground for proceeding but a desire to injure the accused. OCGA § 51-7-43. Further, the return of an indictment is prima facie, though not conclusive, evidence of probable cause, as is the waiver of a preliminary hearing. Smith v. Holeman, 212 Ga. App. 158, 161 (6) (441 SE2d 487) (1994); Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 93 (427 SE2d 308) (1993).

Prima facie evidence of probable cause existed because Brown and Rowe were indicted by a grand jury and waived their preliminary hearing. Moreover, Terry’s statements that he had acquired the saw from a man who bought it from Brown, the saw was located on Rowe’s property, and Rowe knew it was stolen are also prima facie evidence of probable cause. In this procedural posture, the prima facie establishment of probable cause becomes conclusive if left unrebutted. Garmon, supra at 93 (2). Thus, the burden shifted to Brown and Rowe to “ ‘point to specific evidence giving rise to a triable issue.’ . . . [Cits.]” Id. at 94; Smith v. Trust Co. Bank, 215 Ga. App. 413 (1) (450 SE2d 866) (1994).

The record reveals no such evidence. The dismissal of the charges against Brown due to his incarceration when the offense occurred does not create a dispute about the existence of probable cause. Brown’s incarceration lasted from January 1992, when the saw was stolen, to February 1992. The saw was returned in June 1992. Because Brown was charged with theft by receiving, the fact that he was jailed on the date of the theft is irrelevant to the issue of probable cause. Nor does the reasonableness of Johnson’s failure to corroborate Terry’s statements give rise to a triable issue. In circumstances where a cursory investigation would have revealed physical or documentary evidence corroborating the factual defenses claimed by the accused, we have held that a reasonable person would be required to investigate further before initiating legal proceedings. Garmon, supra at 95;

see, e.g., Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154 (2) (404 SE2d 327) (1991); Atlantic Zayre v. Meeks, 194 Ga. App. 267 (1) (390 SE2d 398) (1990). No such circumstances exist in this case. Because Brown and Rowe failed to offer evidence to rebut the prima facie proof of probable cause, no disputed issue of fact precluded summary judgment. Akins v. Warren, 258 Ga. 853 (4) (375 SE2d 605) (1989). This alone is fatal to their case.

In addition, however, no issues remain to be tried on the element of malice. Rowe and Brown base their argument that a jury must decide the issue of malice solely on inferences drawn from the purported absence of probable cause and Johnson’s broken promise that Rowe would not be prosecuted if he returned the saw. Malice, however, cannot properly be inferred absent a total lack of probable cause. OCGA § 51-7-44; Lolmaugh v. T.O.C. Retail, 210 Ga. App. 605 (2) (436 SE2d 708) (1993). Moreover, Johnson presented undisputed evidence that he did not know Brown or Rowe prior to this investigation and bore them no ill will. Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876 (2) (429 SE2d 264) (1993). Brown and Rowe have presented no evidence of the requisite animus in response. Id. at 881 (4).

Further, the trial court’s disposition of this case comports with public policy. “[M]alicious prosecution suits are not favored. It is public policy to encourage citizens to bring to justice those who are apparently guilty.” Monroe v. Sigler, 256 Ga. 759, 761 (8) (353 SE2d 23) (1987). Accordingly, the trial court properly granted summary judgment.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., and Pope, P. J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment. My review of the evidence persuades me that a jury should decide whether defendant Robert L. Johnson, Jr., the private detective for defendant CSX Transportation, Inc. (“CSXT”), failed to take reasonable steps to verify the information leading him to swear out arrest warrants alleging plaintiffs Freddy Rowe and Cleo Brown were guilty of theft by receiving the stolen property of CSXT.

Plaintiffs brought this tort action against defendant CSXT and defendant Robert L. Johnson, Jr., “in his individual and official capacity, [as] a Special Agent for [CSXT],” alleging in their verified complaint that plaintiff Freddy Rowe cooperated with defendant Robert L. Johnson, Jr. in the investigation of a theft of CSXT property, a Racine rail saw, and that Freddy Rowe “did eventually locate said stolen equipment and cause same to be returned to the Meriwether County Sheriff as directed by [defendant Robert L. Johnson, Jr.]”; that defendant Robert L. Johnson, Jr. nevertheless “did make several sworn affidavits, and then requested and caused the issuance of two arrest warrants,” leading to the arrest of each plaintiff for the offense of theft by receiving stolen property; that they were confined and incarcerated in the common jail; that the Meriwether Grand Jury returned indictments against both plaintiffs based upon the sworn affidavits of defendant Robert L. Johnson, Jr. but that these “indictments were dismissed by the prosecuting District Attorney.” Allegedly as a consequence of defendants’ intentional acts, each plaintiff has suffered embarrassment and humiliation in the general community. Plaintiffs sought general and punitive damages, the expenses of litigation, and pre-judgment interest.

In their verified answers, defendant Robert L. Johnson, Jr. and defendant CSXT admitted that plaintiff Freddy Rowe, “upon learning that he was a suspect in the theft of the Racine rail saw, did return the rail saw to the Meriwether County Sheriff.” Defendants further admitted that defendant Robert L. Johnson, Jr. “during the course of his official duty as a CSXT police officer did present sworn testimony to the Grand Jury”; that indictments were returned; and that orders of nolle prosequi were entered as to these indictments after the Prosecuting Attorney declared “that he did not intend to prosecute . . . ,” but denied the material allegations of defamation and malicious prosecution.

After a period of discovery, defendants jointly moved for summary judgment, supporting their motion with the affidavit of defendant Robert L. Johnson, Jr., who deposed that he is employed by CSXT as a Special Agent for Police and Special Services; that he is POST (Peace Officer’s Standard Training) certified and authorized to carry a weapon and effectuate arrests; and that it is his responsibility to investigate crimes committed against CSXT and to report such offenses to local prosecutors so they may review them and decide whether to prosecute. Defendant Robert L. Johnson, Jr. investigated the theft of a Racine saw “from a truck while it was parked at the roadmaster’s office in the CSXT yard in Manchester, Georgia, on or about January 6, 1992.” Robert L. Johnson, Jr. questioned a young man named Fabian Terry, who told defendant that he, Fabian Terry, “had the rail saw, and had gotten it from ‘Willie, Jr.’, who had purchased it from Cleo Brown for $20.00.” Robert L. Johnson, Jr. further deposed that “Fabian Terry provided to me signed statements implicating [plaintiffs] Freddy Rowe and Cleo Brown in the crime of theft by receiving stolen property. I turned these written statements over to the office of the District Attorney for Meriwether County for their possible prosecution of these two suspects.” Fabian Terry told Robert L. Johnson, Jr. that “the saw was on property belonging to Freddy Rowe[, . . . and that] Freddy Rowe knew the saw was on his property and also knew that it was stolen.” When Robert L. Johnson, Jr. interviewed Freddy Rowe, Mr. Rowe told him that “he would get the saw back . . . and turn it in to the Sheriffs Department.” Robert L. Johnson, Jr. expressly disavowed any personal animus toward the plaintiffs, explaining that his “only involvement with Mr. Rowe and Mr. Brown has been because information I discovered during my investigation of the rail saw theft led me to believe they were guilty of having received stolen property.” Defendants also submitted the affidavit of Mark A. Gomez, a former Assistant District Attorney for the Coweta Judicial Circuit who “prosecuted Freddy Rowe and Cleo Brown on charges of theft by receiving stolen property, in connection with the theft of a [CSXT] Racine rail saw. . . .” Mark A. Gomez deposed: “I recall Fabian Terry stating that he had the rail saw and had gotten it from Cleo Brown. Fabian Terry said he was keeping the saw on property belonging to Freddy Rowe, and stated that Freddy Rowe knew the saw was there and knew it was stolen.” Mark A. Gomez also deposed that he “received from Mr. Johnson statements signed by Fabian Terry implicating Cleo Brown and Freddy Rowe in the theft of the rail saw,” although such signed statements do not appear of record.

Other undisputed facts are that defendant Robert L. Johnson, Jr. never spoke with plaintiff Cleo Brown before swearing out a warrant for his arrest. Cleo Brown testified at his deposition that he was brought in for questioning first by Officer Dixie Cole of the Manchester Police Department. She informed Cleo Brown that “the Railroad Man wanted [him].” Cleo Brown accompanied Officer Cole but they “couldn’t never get in touch with [defendant Robert L. Johnson, Jr.], never could.” Consequently, the police released Cleo Brown “to go on to work that day.” After “another month or two,” officers of the Meriwether County Sheriff’s Office arrested Cleo Brown at work, only this time, “[t]hey locked [him] up. . . .” Cleo Brown testified that he has a record of petty thefts but no evidence was adduced in support of defendants’ motion for summary judgment that Robert L. Johnson, Jr. knew of and relied upon Cleo Brown’s record in charging him with theft by receiving the stolen CSXT saw. Cleo Brown denied all knowledge of the Racine saw and testified that he has “[n]ever been in possession of any Railroad property[.]”

Although Robert L. Johnson, Jr. did speak with plaintiff Freddy Rowe, who admitted knowledge of the location of the saw, Robert L. Johnson, Jr. never saw Freddy Rowe in possession of the saw, and Freddy Rowe never admitted any knowledge that the saw was stolen. At his deposition, Freddy Rowe testified that Fabian Terry, “he come up with it, said that he got it from a Cleo Brown, and ... I asked him, I said, ‘Well, who is Cleo Brown?’ [Fabian Terry] told me, ‘A fellow who lived in Manchester.’ I didn’t even know Cleo Brown, . . . and Fabian told me that he had got the saw from him. Well, I didn’t just have no reason not to believe him, and I figured that’s where he got it.” Freddy Rowe knew “the rail saw, it had a [CSXT] Railroad Sticker on it, which [he] figúred that it could have been sold at a auction the same as [a] truck and tractor [in Freddy Rowe’s yard].” When Robert L. Johnson, Jr. “came to the house and asked me about the saw ... [h]e told me that Fabian told him that he [Fabian] brought it there without me [Freddy Rowe] knowin’ it, . . . and he asked me would I get the saw and give it back to ‘em, and I told him, ‘Yeah.’ [Robert L. Johnson, Jr.] said, ‘If you’ll just get the saw and bring it back,’ he said, ‘that’s all I want. You’ve got my word there won’t be no charges pressed against you at all.’ I told him, ‘Okay.’ ” Nevertheless, Freddy Rowe was arrested three weeks later. After his arrest but before the charges were dropped, Freddy Rowe spoke with Robert L. Johnson, Jr. by telephone. Freddy Rowe said: “ T thought you give me your word that there wouldn’t be no charges pressed against me.’ He said, ‘Things didn’t work the way I thought they was.’ ”

Plaintiffs each posted bond shortly after arrest and did not pursue a preliminary hearing. The grand jury returned true bills charging plaintiffs Rowe and Brown with “[TH]EFT BY RECEIVING” stolen property. At the behest of Assistant District Attorney Gomez, however, the Meriwether Superior Court entered orders of “NOLLE PROSEQUI” as to both indictments on August 25, 1992.

In opposition to the motion, plaintiffs submitted a subsequent affidavit of former Assistant District Attorney Mark A. Gomez, who deposed that the indictment against Cleo Brown was dropped because it had been brought to his attention that Cleo Brown “was in confinement when the crime occurred.” This fact is corroborated by a letter from D. Givens, Warden of the Meriwether County Correctional Institution, indicating that “Cleo Brown was incarcerated . . . from 12-04-91 thru 02-20-92.” Mark A. Gomez further deposed that the decision to dismiss charges against Freddy Rowe was taken because “Mr. Robert L. Johnson, Jr., the railroad law enforcement officer, was the sole prosecuting officer involved in investigating this matter, and was unavailable to prosecute at arraignment.” Mr. Gomez identified from the jacket of the Freddy Rowe indictment a “notation made by me in my own handwriting[.]” This notation recites: “Dismissed by ADA per officer’s request[.] 24 July 92.” Plaintiffs also submitted a sworn statement from Fabian Terry, who deposed that he “got the Racein [sic] rail saw from Cleo Brown and took it down to the room [where] I was staying down at Freddy Rowe’s and he didn’t know the saw was there.”

The trial court granted defendants’ motion for summary judgment as to all claims and this appeal followed. For the following reasons, I conclude that the trial court erred in granting that motion.

1. “A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” OCGA § 51-7-40. The essential elements to a cause of action under this Code section are: “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff. [Cit.]” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293). In the case sub judice, plaintiffs contend the trial court erred in concluding no genuine issues of any material fact remained for jury determination with respect to their “claims for malicious prosecution. . . .” Specifically, they argue that a jury should determine whether Robert L. Johnson, Jr. acted without probable cause and with malice in swearing out the arrest warrants (and in testifying before the grand jury). It is plaintiffs’ burden to establish genuine issues on both of these factual matters in order to obtain a reversal of the judgment under review. “There can be no recovery, even though the prosecution was malicious, if there was probable cause for it; and [even] if there was no probable cause, there can be no recovery if the prosecutor acted without malice. [Cits.]” Ga. Loan & Trust Co. v. Johnston, 116 Ga. 628, 630 (43 SE 27).

2. “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.” OCGA § 51-7-43. This Code section is not exhaustive of all cases of the absence of probable cause but “undertakes to settle an [extreme] instance in which the court and the jury shall recognize the absence of probable cause.” Coleman v. Allen, 79 Ga. 637, 640 (1), 641 (5 SE 204), interpreting the substantively identical provisions of § 2983 of the 1882 Code. Accord Auld v. Colonial Stores, 76 Ga. App. 329, 334 (2), 335 (45 SE2d 827), interpreting former Code Ann. § 105-802.

“ ‘Probable cause is that apparent state of facts existing after reasonable and proper inquiry; the prosecutor is under a duty of caution and avoidance of haste.’ Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 207 (163 SE2d 256) (1968).” Voliton v. Piggly Wiggly, 161 Ga. App. 813 (288 SE2d 924). “ ‘ “While a prosecutor need not be fully satisfied of the truth of the charge that he makes in his affidavit, and is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless, where slight diligence would have brought to his attention facts which would have shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.” (Cit.)’ Voliton v. Piggly Wiggly, 161 Ga. App. 813-814[, supra]. See also Melton v. LaCalamito, 158 Ga. App. 820, 823 (2) (b) (282 SE2d 393) (1981).” Munford, Inc. v. Anglin, 174 Ga. App. 290 (1), 291 (329 SE2d 526). While a prosecutor’s reasonable belief that probable cause exists “is not inconsistent with a considerable element of doubt, [yet] it must be [based on] more than mere conjecture or unfounded suspicion. Beyond this, the belief must be supported by appearances known to the defendant at the time, and an arrest or prosecution instituted without probable cause cannot be justified by anything, short of guilt in fact, which comes to the knowledge of the defendant[-prosecutor] later. [Cit.]” McGonagil v. Treadwell, 216 Ga. App. 850, 853 (2), 854 (456 SE2d 260). “The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution or swearing out an arrest warrant, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification.” (Citations and punctuation omitted.) McGonagil v. Treadwell, 216 Ga. App. 850, 853 (2), 854, supra. On the other hand, “ ‘[e]ven if on instigating the prosecution the prosecutor had probable cause at the commencement, if he after-wards acquired knowledge, or the reasonable means of knowledge, that the charge was not well-founded, his continuation of the prosecution is evidence of the want of probable cause, requiring that the question be submitted to the jury.’ . . . Munford, Inc. v. Anglin, 174 Ga. App. 290, 291 (1)[, supra].” Fuller v. Jennings, 213 Ga. App. 773, 775 (1), 776 (445 SE2d 796).

In the case sub judice, the subsequent return of true bills against the plaintiffs by the grand jury is “prima facie but not conclusive evidence that probable cause existed. . . . Darnell v. Shirley, [31 Ga. App. 764, 765 (7) (a) (122 SE 252)].” Hill v. Trend Carpet, 154 Ga. App. 446 (1) (268 SE2d 682). “This prima facie evidence could be rebutted either by direct or circumstantial evidence.” Auld v. Colonial Stores, 76 Ga. App. 329, 334 (2), 336, supra. The evidence submitted to establish probable cause to have Cleo Brown and Freddy Rowe arrested on suspicion of theft by receiving the stolen CSXT Racine rail saw is defendant Robert L. Johnson, Jr.’s affidavit that Fabian Terry told Mr. Johnson that he (Terry) got the saw from “Willie, Jr.” who had gotten it from Cleo Brown for $20. It appears that this conversation occurred in June 1992, i.e., some six months after the theft itself. As noted above, defendants have failed to adduce the actual written statement of Fabian Terry as submitted to the Assistant District Attorney which “implicates” Freddy Rowe and Cleo Brown. Since the sworn statement of Fabian Terry is not of record, we are shown only defendant Johnson’s conclusions that the words spoken by Fabian Terry provided any credible factual basis for concluding that either Cleo Brown or Freddy Rowe knew of the existence of the CSXT saw, knew that it was stolen, and intended to exercise dominion over it, knowing it was stolen. The statement of Fabian Terry as recited by Robert L. Johnson, Jr. is original evidence that their conversation took place. OCGA § 24-3-2. But it is hearsay as to any involvement by Cleo Brown as alleged by Fabian Terry via the unknown “Willie, Jr.” OCGA § 24-3-1. “The rule in Georgia has been that [probable cause] may be based on hearsay information as long as there is a substantial basis for crediting the hearsay. Devier v. State, 247 Ga. 635, 637 (277 SE2d 729) (1981).” Lewis v. State, 255 Ga. 101, 104 (2), 105 (335 SE2d 560). It is my view, however, that defendant Robert L. Johnson, Jr.’s conclusory affidavit utterly fails to establish the veracity and basis of knowledge for Fabian Terry’s allegation that plaintiff Freddy Rowe knew the saw was stolen. Likewise, the affidavit of Mark A. Gomez stating that Robert L. Johnson, Jr. had probable cause to swear out arrest warrants against plaintiffs is only his non-probative opinion as to a legal conclusion. See Wells v. Metropolitan Life Ins. Co., 107 Ga. App. 826, 834 (131 SE2d 634).

As it is undisputed that defendant Johnson never interviewed plaintiff Cleo Brown and failed to establish his whereabouts at the time of the theft in January 1992, before swearing out an arrest warrant for suspicion of theft by receiving stolen property, a jury question is presented as to whether defendant Robert L. Johnson, Jr.’s actions were reasonable, proper, and sufficient under the circumstances, or whether the warrant was sworn out in haste and without proper caution, impermissibly based upon mere conjecture and unfounded suspicion. McGonagil v. Treadwell, 216 Ga. App. 850, 853 (2), 854, supra. Similarly, the record does not conclusively establish that Robert L. Johnson, Jr. had probable cause to suspect Freddy Rowe of knowingly receiving the stolen saw, since the unrefuted testimony of Freddy Rowe shows that Robert L. Johnson, Jr. told him that Fabian Terry informed Robert L. Johnson, Jr. that Freddy Rowe did not know that the saw was stolen at the time Robert L. Johnson, Jr. spoke with Freddy Rowe. Consequently, a jury question exists as to whether Robert L. Johnson, Jr. should have corroborated Fabian Terry’s statements, under his duty to exercise caution and avoid undue haste. “In order to later be insulated from liability because of the action of the [grand jury] in [returning true bills] in a malicious prosecution case, the defendant prosecutor ‘must make a fair, full and complete statement of the facts as they exist. He is not relieved'if he conceals facts, nor if he distorts facts, nor if he is negligent in ascertaining facts.’ Hicks v. Brantley, 102 Ga. 264, 273 (2) (29 SE 459) (1897).” Martin v. Reitz, 152 Ga. App. 854, 856 (264 SE2d 305). As a POST-certified law enforcement officer, Robert L. Johnson, Jr. may justly be deemed “even more knowledgeable than most as to the legal definitions of ‘theft [by receiving]’ and ‘larceny[.]’ ” Martin v. Reitz, 152 Ga. App. 854, 856, supra. The nuance that distinguishes theft by receiving from other forms of larceny is the element of scienter, namely guilty knowledge that the goods are stolen. OCGA § 16-8-7 (a); McGill v. State, 106 Ga. App. 482, 483 (1) (127 SE2d 332). In the case sub judice, defendants’ motion fails to adduce the underlying facts that would lead an officer of ordinary prudence and caution to accept at face value Fabian Terry’s conclusory allegation that Freddy Rowe knew the saw was stolen.

3. “Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2. “A total lack of probable cause is a circumstance from which malice may be inferred; however, the inference may be rebutted by proof.” OCGA § 51-7-44. “This inference is one of fact to be drawn by a jury.” Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3), supra. In Auld, the plaintiff was charged in an accusation with being a swindler and a cheat, because his personal check, presented for payment more than two months after he drew it, was returned unpaid due to insufficient funds. There, although the prosecutor stated that his design was to deter others, the whole court agreed that “the only method by which the sincerity of this declaration can be tested is the surrounding circumstances throwing light upon the motive.” Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3). The whole court held that the circumstance where a prosecutor “expected to deter others by demonstrating to them how completely embarrassed they might become in winning the [criminal] case, and how much it might cost them in time, in worry and trouble defending it, and in cost of attorneys fees, etc., even though they should win . . . [would justify the jury] in finding that this kind of determent was within itself a malicious prosecution. It follow[ed] that malice may consist of a general disregard of the right and consideration of . . .a portion of society, directed by chance against the individual injured.” Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3), supra. Compare Mayor &c. of Savannah v. Wilson, 214 Ga. App. 170, 172 (3) (447 SE2d 124). In the case sub judice, the jury would be authorized to conclude that Robert L. Johnson, Jr.’s broken promise to Freddy Rowe that no charges would be pressed if the saw were returned is some evidence of either personal spite or else that general disregard for the right consideration of mankind which amounts to malice in the eyes of the law. “From the circumstances present in this case, the jury could [similarly] infer malice [toward Cleo Brown].” Melton v. LaCalamito, 158 Ga. App. 820, 823 (2) (c), 824, supra. Furthermore, the jury may conclude that a total lack of probable cause to arrest him authorizes an inference of malice. “There is some evidence of lack of probable cause as well as [the existence] of malice. This is an appropriate case for jury resolution, and we [should] reverse the trial court’s [grant of summary judgment].” Fuller v. Jennings, 213 Ga. App. 773, 775 (1), 777, supra. Accord Jones v. Parrish, 203 Ga. App. 566, 568 (1), 569 (417 SE2d 210). As my colleagues in the majority would nevertheless affirm, I respectfully dissent.

Decided November 16, 1995

Reconsideration denied December 6, 1995

Thomas R. Morgan, Jr., Joseph W. Jones, Jr., for appellants.

Casey, Gilson & Williams, Matthew D. Williams, Sandra Gray, for appellees.

I am authorized to state that Presiding Judge Pope joins in this dissent.

       Inasmuch as Rowe and Brown failed to address the trial court’s adjudication of their defamation claim in their appellate brief, we deem the issue abandoned and decline to reach it. Court of Appeals Rule 27 (c) (2).

       Compare Darnell v. Shirley, 31 Ga. App. 764, 765 (5) (122 SE 252), where this Court, applying § 4440 of the Civil Code (l910), held that want of probable cause “exists only ‘when the[se] circumstances . . .’ ” obtain. (Emphasis supplied.)