author: Pope, Judge.

text:
    A89A1027.
    WALKER et al. v. MODNAR CORPORATION.
    (389 SE2d 558)
   Pope, Judge.

Appellee Modnar Corporation leased seven minibuses to MTW Enterprises, Inc. Appellants Pamela Li Walker and Larry Walker, officers of MTW, personally guaranteed the leases. MTW defaulted and Modnar repossessed the collateral and sold it. Modnar then brought this action in effect seeking a deficiency balance. The leases were treated by the trial court as secured sales and this point is not contested on appeal. After trial with a jury, Modnar received a verdict and judgment in the amount of $77,053.11. The Walkers appeal, raising five enumerations of error. Held:

We reverse. We need address only one of the enumerations of error. The Walkers argue that the trial court erred in failing to grant their motion for directed verdict, or in the alternative for judgment notwithstanding the verdict, because Modnar failed to prove the fair and reasonable value of the vehicles at the time of sale. We agree. The record shows that the only evidence of value of the vehicles was the offers received after the default by Dr. Dickerson, Modnar’s president, upon his solicitation of some fifteen individuals nationwide, and the actual price paid at the sale of the vehicles. This is not sufficient to establish fair and reasonable value.

“A secured creditor has the right to dispose of repossessed collateral at a private sale if the method, time, place, and terms of the sale are commercially reasonable. OCGA § 11-9-504 (3). When the reasonableness of the sale is challenged, the seller of the collateral has the burden of proving that the sale was reasonable. A secured creditor who fails to meet this burden is barred from recovering any deficiency between the sale price and the debt. Farmers Bank v. Hubbard, 247 Ga. 431 (276 SE2d 622) (1981). The fact that a better price could have been obtained by a sale at a different time or in a different manner, however, will not itself make a sale commercially unreasonable. OCGA § 11-9-507 (2).

Decided December 5, 1989

Rehearing denied December 20, 1989

Abraham A. Sharony, for appellants.

Weinstein, Rosenthal & Robin, Michael S. Rosenthal, for appellee.

“In establishing that the disposition was reasonable, the seller must affirmatively show that the resale price was the fair and reasonable value of the collateral. Failure to prove that the resale price was the reasonable value of the collateral at the time of repossession and that the value of the collateral did not equal the value of the debt results in a presumption that the resale price equaled the debt. Richard v. Fulton Nat. Bank, 158 Ga. App. 595 (281 SE2d 338) (1981); Granite Equip. Leasing Corp. v. Marine Dev. Corp., 139 Ga. App. 778 (1) (230 SE2d 43) (1976). In the case at bar, [Modnar] merely showed that it solicited bids . . . and that the property was sold for that amount. This is insufficient to show the commercial reasonableness of the price received for the machinery. In Zohbe v. First Nat. Bank, Cobb County, 162 Ga. App. 604 (1) (292 SE2d 444) (1982), the creditor presented testimony that three bids were taken on the repossessed property and that the highest bid was accepted. This was the only evidence offered by the creditor regarding value. The court in Zohbe reversed the trial court’s directed verdict in favor of the creditor holding: ‘Proof of the price brought at public sale is not sufficient to overcome the presumption against the creditor that the value of the collateral equals the debt on it. Foreclosure sales are forced sales and notoriously fail to bring the true market price of the article. Cost alone is never proof of market value. (Cit.)’ Zohbe, supra at 605.” Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752, 753-754 (334 SE2d 352) (1985).

It follows that Modnar failed to rebut the presumption that the amount received at resale equaled the debt and the Walkers were entitled to a directed verdict.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A89A1080.
    KING v. THE STATE.
    (389 SE2d 500)
   Pope, Judge.

Defendant/appellant King was convicted of DUI and failure to grant the right-of-way. The evidence at trial showed that defendant’s car collided with another car when he ignored a stop-light and went into the intersection. While investigating the accident, the state trooper at the scene detected the odor of alcohol on defendant’s breath and observed that he appeared intoxicated. The other driver also had the opinion that defendant was drunk. An intoximeter test showed that defendant had a blood alcohol reading of .22 percent.

1. Defendant argues that the actions of the trial court in excusing two jury panels that had already tried cases that week “threw” the jury pool out of racial balance and that one of the two peremptory strikes made by the State was to excuse a black juror in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). There is no merit to this enumeration of error. “A defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, 430 U. S. 482, 494 (97 SC 1272, 1280, 51 LE2d 498) (1977) and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Avery v. Georgia, 345 U. S. 559, 562 (73 SC 891, 892, 97 LE 1244) (1953). Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

“In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a pattern of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors. (Emphasis supplied.) Bat-son, 106 SC, supra at 1722, 1723.” (Punctuation omitted.) Mincey v. State, 257 Ga. 500, 503 (360 SE2d 578) (1987).

The record in the present case shows that the trial court excused jurors who had served on two cases previously tried, leaving 34 jurors, including blacks in the pool from which the jury in the present case was selected. This was a racially neutral action and no inference of an intent to discriminate can be drawn from it. Regarding the striking of one of the blacks, the prosecutor stated that she was struck because she knew the defendant and his family. This also was a racially neutral action. In addition, the record shows that at least two blacks served on the jury. Thus, we find no error.

2. Defendant argues that the trial court erred in failing to hear and grant his motion to suppress the results of the Intoximeter 3000 machine. However, the record shows that defendant never brought up such a motion at trial, nor objected to the court’s failure to rule. Nor did he object to the operator’s testimony regarding the results. Thus, we have nothing to review. Cooper v. State, 188 Ga. App. 297 (3) (372 SE2d 679) (1988).

3. The trial court properly denied defendant’s motion for a directed verdict. Contrary to defendant’s argument that the accusation is undated and that there is no proof that the accusation followed the occurrence of the crime charged, the record shows that the offense occurred on May 16, 1987, that the case was transferred from probate court to superior court on May 29, 1987, and that the accusation in superior court on its face shows that it is for the November 1987 term and contains a handwritten notation “N/A 11/16/87.” This is sufficient proof that the accusation followed the occurrence of the crime. The evidence was sufficient to send the case to the jury.

4. Defendant argues that the trial court erred in charging the jury on the elements of OCGA § 40-6-391 (a) (1-3) when he was charged only with the per se violation of having .12 percent blood-alcohol level contained in OCGA § 40-6-391 (a) (4). “Since [defendant] was charged with DUI by having .12 percent or more by weight of alcohol in his blood . . . the instructions concerning being a less safe driver . . . and the inferences listed in OCGA § 40-6-392 (b) (1-3) were superfluous. [Cit.] However, since the jury was also informed of the legal ramifications of a blood-alcohol content of over .12 percent and there was evidence that [defendant’s] blood-alcohol content was greater than .12 percent, we do not believe the additional language in the charge was harmful to [defendant].” Courson v. State, 184 Ga. App. 793, 795 (363 SE2d 41) (1987). Nor do we find harmful the trial court’s repetition of the elements of OCGA § 40-6-391 (a) (4) in separate portions of the charge.

5. In sentencing, the trial court accepted into evidence a copy of a prior conviction for DUI in the City Court of Griffin. It was attested by Pat Walker, a notary public, to be a true and accurate record. Defendant objected that it was not properly certified. He was correct. It was not certified under seal as required by OCGA § 24-7-21. However, another properly certified conviction for DUI was admitted. As the sentence imposed is within the limits set out in OCGA § 40-6-391 (c) (2) for those convicted twice within a five-year period, defendant suffered no harm from the improper admission.

Decided November 9, 1989

Rehearings denied December 11 and December 20, 1989

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Carley, Chief Judge. Benham, Judge, Beasley, Judge,

text:
    A89A1091.
    PENDER v. WITCHER.
    (389 SE2d 560)
   Carley, Chief Judge.

Appellant-plaintiff filed this action, seeking to recover for the personal injuries he allegedly sustained as the proximate result of appellee-defendant’s negligence. The case was tried before a jury and verdict in favor of appellant was returned. Appellant’s motion for new trial was denied and he appeals.

1. Appellant enumerates as error the denial of his motion for new trial on the ground that the damages awarded by the jury were inadequate. A review of the evidence shows that this enumeration of error is without merit. See generally Wright v. Satilla Rural Elec. Co-op., 179 Ga. App. 230, 232 (2) (345 SE2d 892) (1986).

2. The trial court denied appellant the opportunity to use, for impeachment purposes, appellee’s first offender record for possession of cocaine. This ruling is enumerated as error.

The law provides that an adverse witness may be impeached by several different methods. One such method is to disprove the facts to which he has testified at trial. See OCGA § 24-9-82. Another method is to prove that he made prior contradictory statements relevant to his trial testimony and to the case. See OCGA § 24-9-83. It was only these two methods of impeachment which were discussed and applied in Hightower v. General Motors Corp., 255 Ga. 349, 352 (338 SE2d 426) (1986): “To insure that in seeking the truth, the jury is not misled by false or deceiving testimony, we hold that a guilty plea as to which a plaintiff in a civil case has been granted first offender treatment is admissible in evidence to disprove and contradict such party’s testimony given in a civil case.” However, neither of these two methods is relevant to the impeachment issue presented in the instant case. Accordingly, the Supreme Court’s holding in Hightower has no bearing whatsoever on this appeal.

The relevant inquiry in the instant civil case is whether the adverse witness’ first offender record is admissible, for impeachment purposes, as evidence of a conviction of a felony or a crime of moral turpitude. Proof that an adverse witness has been convicted of a felony or a crime of moral turpitude is yet another method of impeachment which, entirely unlike the two methods discussed by the Supreme Court in Hightower, is in no way dependent upon a consideration of his trial testimony. “In Georgia, a witness in a civil case may always be impeached by proof of a conviction for a felony or other crime involving moral turpitude. [Cit.]” Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (1984). Regardless of the specifics of an adverse witness’ trial testimony, he is nevertheless subject to impeachment simply because his conviction of a felony or a crime of moral turpitude reflects upon his general lack of credibility. “The fact that a witness has been convicted of a crime involving moral turpitude is admissible for the purpose of discrediting his evidence. [Cit.] . . . Evidence which discredits a witness on the ground of infamy tends to impeach him.” Ford v. State, 92 Ga. 459 (17 SE 667) (1893).

A majority of this court has previously held that it is permissible to impeach an adverse witness in a civil case by proving his first offender record for commission of a felony or a crime of moral turpitude. See Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 113 (1) (332 SE2d 336) (1985), aff’d on other grounds 255 Ga. 349, supra. See also Salomon v. Earp, 190 Ga. App. 405, 407 (379 SE2d 217) (1989); Hardman v. Hardman, 185 Ga. App. 519, 520 (4) (364 SE2d 645) (1988). Possession of cocaine is a felony. Accordingly, unless and until this court’s decision in Hightower and the cases which follow that decision are overruled, they must be followed in the instant case and the judgment herein reversed for the erroneous failure of the trial court to allow appellant to impeach the adverse witness by proof of his first offender record for the felony of possession of cocaine.

Whidby v. Columbine Carrier, 182 Ga. App. 638 (356 SE2d 709) (1987) is not viable authority for the proposition that no reversible error occurred in this case. In Whidby, this court, relying upon the Supreme Court’s decision in Hightower, held: “The defendant’s [first offender] criminal record did not tend to ‘disprove and contradict [the defendant’s] testimony’ in this civil case as to a specific material fact testified to by defendant. [Cits.] It tended at best only to impeach the character and credibility of the defendant generally, in this civil suit instigated by another; the fact that defendant had committed theft in the past had no logical bearing on the specific issue of negligence in driving the truck.” (Emphasis in original.) Whidby v. Columbine Carrier, supra at 640 (3). It is clear, however, that the Whidby decision is premised upon an erroneous construction of the Supreme Court’s decision in Flightower, supra. As previously noted, the Supreme Court’s decision in that case related solely to the issue of impeachment pursuant to OCGA §§ 24-9-82 and 24-9-83, and not to the issue of impeachment by proof of conviction of a felony or a crime of moral turpitude. With specific regard to the issue of impeachment by proof of conviction of a felony or crime of moral turpitude, it is the decision of this court in Hightower that is controlling. Thus, regardless of the irrelevancy of an adverse witness’ prior first offender record to his trial testimony or to any factual issue in a civil case, that record is admissible as impeaching evidence if it shows his commission of a felony or a crime of moral turpitude. Such evidence is admissible to impeach the witness for the very reason that it does, in fact, reflect upon his general lack of credibility. See generally Ford v. State, supra. Accordingly, the witness in Whidby was subject to impeachment by virtue of his first offender theft record and this court erred insofar as it held that he was not. See Hightower v. Gen. Motors Corp., supra at 175 Ga. App. 113 (1); It follows that Whidby v. Columbine Carrier, supra, is clearly not authority for affirming the judgment in this case. The decision in Whidby is erroneous and is hereby overruled.

As previously noted, the judgment in this case can be affirmed only if the whole court decision in Hightower v. Gen. Motors Corp., 175 Ga. App. 112, supra, and the decisions which follow it are overruled. A majority of this court, as presently constituted, adheres to the holdings in those decisions. Accordingly, the judgment in this case must be reversed for the erroneous failure of the trial court to allow appellant to use appellee’s possession of cocaine first offender record for impeachment purposes.

3. An enumeration of error predicated upon the argument of appellee’s counsel and upon a jury instruction given by the trial court presents nothing for review. The record shows that appellant made no objection to either the contested argument or the challenged instruction.

4. Appellant’s contention that he was erroneously denied the opportunity to testify as to his diminished capacity to work and labor is refuted by the record which contains his testimony in that regard.

Judgment reversed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong and Sognier, JJ., concur. Pope, Benham and Beasley, JJ., concur specially.

Benham, Judge,

concurring specially.

I concur fully with the majority and write only with respect to Division 2 of the opinion. As the majority points out, the judgment in this case can only be affirmed if the decision in Hightower v. Gen. Motors, 175 Ga. App. 112 (1) (332 SE2d 336) (1985) is overruled. I dissented in Hightower because I believed then, as I do now, that it extended the Supreme Court’s decision in Favors v. State, 234 Ga. 80 (3) (214 SE2d 645) (1975), which allowed the defendant in a criminal case to impeach the State’s witness with evidence of a first offender conviction, far beyond what that case intended. The case at bar presents an opportunity for the Supreme Court to decide the issue which they found unnecessary to review in Hightower v. Gen. Motors Corp., 255 Ga. 349 (338 SE2d 426) (1986): whether evidence of a first offender conviction may be used to impeach a witness in a civil case as evidence of a conviction of a felony or crime involving moral turpitude.

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

Beasley, Judge,

concurring specially.

I concur fully and only add, with regard to Division 2, what may explain why the logical rationale in Whidby v. Columbine Carrier, 182 Ga. App. 638 (356 SE2d 709) (1987), is in error.

Defendant, as a witness, was subject to impeachment just as any other witness other than an accused in a criminal case. Harris v. State, 173 Ga. App. 787, 788 (2) (328 SE2d 370) (1985). One of the common law methods of impeachment is conviction of a crime of moral turpitude or a felony, the roots of which rule are synopsized in Lewis v. State, 243 Ga. 443 (254 SE2d 830) (1979). The evidentiary rule is a relaxation of the former common law tradition of barring certain convicts from testifying altogether. The reason for this former rule of witness incompetency was the view that “insensibility to the obligation of an oath . . . [followed] conviction of an offense which rendered one infamous.” Shaw v. State, 102 Ga. 660, 670 (29 SE 477) (1897). It was infamy which precluded such a witness from testifying altogether, as the law conclusively presumed the witness not to be credible. Now such a witness is permitted to testify, but the effect of the witness’ crime-producing infamy on the issue of his or her credibility is deemed relevant and is left to the jury to accept or reject.

Not all convictions would be admissible for this purpose, as demonstrated by the analysis in Lewis, supra, and the distinction is not drawn upon whether the crime is malum in se or malum prohibitum. The Supreme Court applied two tests without expressly holding that satisfaction of only one would be sufficient, although that is indicated. It held that the sale of cocaine (OCGA § 16-13-30 (b)) meets both tests.

In this case, the crime is possession of cocaine. It, too, meets both tests. First, it draws felony punishment. OCGA § 16-13-30 (a) and (c). Second, it is “contrary to justice, honesty, modesty, good morals or man’s duty to man.” Lewis, supra at 446. Since possession of cocaine necessarily means that the possessor obtained the drug or received it from someone, and that he or she did so prompted by the desire to have it for some reason (such as to use or sell or give to another), it follows that the possessor is an integral and obviously essential link in the chain of drug trafficking, a scourge of mankind. The possessor, a contributor to such activity, violates “man’s natural duty to man.” Lewis, supra at 447. It is thus “a crime falsi,” the concise term used in Georgia R. v. Homer, 73 Ga. 251, 258 (5) (1884), which according to Black’s Law Dictionary, 4th ed., “involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud.”

Decided December 5, 1989

Rehearing denied December 20, 1989

Davis, Sissel & Williams, Warren P. Davis, for appellant.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellee.

The evidence was relevant and, considering its case-recognized potential effect in the credibility equation, exclusion from the jury’s ken was harmful error.


text:
    A89A1108.
    STRIGGLES v. HANOVER INSURANCE COMPANY.
    (391 SE2d 767)
   Pope, Judge.

The question presented in this appeal is whether an application for optional no-fault motor-vehicle insurance coverage is in substantial compliance with the requirements of OCGA § 33-34-5 (b) pursuant to the holding in St. Paul Fire &c. Ins. Co. v. Nixon, 252 Ga. 469 (314 SE2d 215) (1984). The trial court found that the form was in substantial compliance and granted appellee-defendant The Hanover Insurance Company’s motion for summary judgment. Plaintiff-appellant Striggles had sued for $45,000 additional benefits, contending that the form did not comply with the statute as it was written before the 1982 amendment. Held:

We reverse. “To be in substantial compliance a form should satisfy the intent of the General Assembly to ensure that insurers offer optional coverages to applicants for no-fault insurance and that an applicant’s waiver of his privilege to obtain optional coverages be made knowingly and in writing. Is the present application in substantial compliance? That is, is there enough on the form to show as a matter of law that the insured was offered these benefits and knowingly rejected them? And, is it clear from the form that the intent of the insured was to reject optional PIP benefits? We think not.” (Citation, punctuation and indention omitted). Associated Indem. Corp. v. Sermons, 175 Ga. App. 513, 515 (333 SE2d 902) (1985).

The form at issue in the present case, reproduced in the appendix at the end of this opinion, is entitled “Supplement To Automobile Application Georgia No Fault Coverages.” The section relating to PIP reads as follows:

1. Basic Personal Injury Protection (PIP)

Mandatory $5,000. Limit (Required by Law)

2. Additional Personal Injury Protection

Includes

the $10,000

Basic $25,000

$5,000 $50,000

Boxes are set next to each amount and on the right side of the form, the applicant is instructed to “Check only one." Sections 3, 4 and 5 provide spaces for the applicant to accept or reject collision coverage, comprehensive coverage and loss of use coverage. Directly above the single signature line is this sentence, “I understand that this form has given me the opportunity to select the coverages I desire as offered by the Georgia No Fault Law.”

This is far short of the information found to be in substantial compliance in Nixon, supra. “The policy application in Nixon consisted of two pages, and each was signed at the bottom. Notices on both the first and second pages directed the insured to complete the second page, which was titled ‘OFFER TO PURCHASE ADDITIONAL COVERAGE APPLICATION.’ Part 1 of the second page was titled ‘OPTIONAL PERSONAL INJURY PROTECTION COVERAGE,’ and immediately below this heading were two boxes, one below the other. The first box was followed by a statement which provided, ‘I do not want to purchase Optional Personal Injury Protection Coverage,’ and the second was followed by a statement which provided, ‘I want to purchase Optional Personal Injury Protection Coverage as indicated below.’ The line below the latter statement contained three boxes. To the right of each of these boxes were the aggregate benefit limits available for optional PIP coverage. They were $10,000, $25,000, or $50,000. The insured, if he or she desired to have optional PIP coverage, was to place an ‘x’ in the box to the left of the amount desired. Nixon put an ‘x’ in the box to the left of the statement T do not want to purchase Optional Personal Injury Protection Coverage.’ Nixon, supra, p. 469.” Tolison v. Georgia Farm &c. Ins. Co., 253 Ga. 97, 99 (317 SE2d 185) (1984).

The form in the present case does not make it clear that it is an offer for the insured to purchase additional PIP. The only explanation appears at the bottom of the page and says only that the applicant understands that he has been given the opportunity to select the coverage he desired as offered by the Georgia No-Fault Law. Additionally, lines 1 and 2 dealing with PIP are grouped into one section and, by instructions off to the side, the applicant is directed to check only one. A box is placed immediately to the right of the phrase “Mandatory $5,000. Limit (Required by Law)” contained under line 1 entitled “Basic Personal Injury Protection (PIP).” The arrangement of this form would likely induce the reasonable man or woman unfamiliar with no-fault to check the box immediately following the phrase “Required by Law.” This arrangement plus the lack of any clear explanation that the applicant is being offered the opportunity to purchase (or to reject) additional PIP causes the form to not be in substantial compliance with the requirements of the statute.

Thus, the trial court erred in granting summary judgment to defendant and in denying plaintiff’s motion for summary judgment on the issue of the form’s compliance with the statute.

Judgment reversed. Banke, P. J,, and Sognier, J., concur.

Appendix.

Decided December 5, 1989

Rehearing denied December 20, 1989

Siler & Jonap, D. Jeffrey Grate, for appellant.

Darroch & Ohenshain, Robert M. Darroch, C. David Vaughan, for appellee.


text:
    A89A1188.
    BOWEN v. THE STATE.
    (389 SE2d 516)
   Pope, Judge.

Defendant Richard Marvin Bowen was convicted of burglary. On November 7, 1987, the house of Helen Wilcox was burglarized. The victim found two laundry and drycleaning tickets in her carport with the name “R. Bowen” on them. A witness from the cleaner testified that she marked customers’ tickets and she put “R. Bowen” on Richard Bowen’s ticket to distinguish his clothes from his father’s which were marked “C. Bowen.” On November 13, 1987, defendant pawned several items taken in the burglary. Later, a search of defendant’s property turned up another item taken in the burglary.

1. Defendant argues that the trial court erred in denying his motion to suppress in that the search exceeded the scope of the warrant and the information upon which the warrant was based was stale. Officer Reed of the Newton County Sheriff’s Department obtained a warrant to search defendant’s premises for a quantity of marijuana. The affidavit in support of the application stated that a confidential informant known to Reed and considered reliable had seen a quantity of marijuana on the premises within the past 14 days. The affidavit also contained information that Reed had independently verified that defendant lived there and that defendant had a previous arrest record. No marijuana was found, but police found and seized a jewelry box taken in the burglary of the Wilcox house.

Defendant argues that the information on which the information was based was stale. Staleness “is included in the broad overview of ‘totality of circumstances’ [as set out in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983)]. [Cit.] Thus, the issuing magistrate’s task is to make a practical common sense decision, based on all the circumstances presented in the affidavit, whether there is a fair probability that evidence of a crime will be [found]. The reviewing court must insure there was a substantial basis for the magistrate’s conclusion. [Cit.]” Ayers v. State, 181 Ga. App. 244, 248 (351 SE2d 692) (1986).

We agree with the trial court that this affidavit is “borderline.” We conclude, as did the trial court, that a magistrate could make a common sense decision that marijuana might still be present. Even if the affidavit did not provide the magistrate with probable cause to believe that marijuana would be found, the evidence need not be suppressed because “the officer’s reliance on the magistrate’s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.” (Citation and punctuation omitted.) Adams v. State, 191 Ga. App. 916, 917 (383 SE2d 378) (1989).

Nor do we find that the trial court erred in finding that the search did not exceed the scope of the warrant. The warrant authorized a search of the house, a barn and a workshop on the premises. Police noticed items of jewelry in plain view in a trash pile (also described as a garden). Officer Reed testified that when he went to pick the items up he saw other items and used a nearby rake to move aside sticks, trash and loose dirt to uncover these items. Officer Reed thought the jewelry looked too new to be discarded and that is what attracted his attention. He also knew that there had been several burglaries in Newton and Rockdale counties. The officer had the right to seize the items found. See Whittington v. State, 165 Ga. App. 763 (302 SE2d 617) (1983).

2. Defendant argues that the trial court erred in allowing the State to continue to question Scott Cunningham, a former roommate of defendant’s son, when he invoked his Fifth Amendment privilege. The State believed that Cunningham would testify about a trip to the pawnshop in which items from the burglary were pawned. When Cunningham took the stand, he surprised the State by invoking the privilege. Outside the presence of the jury, the trial court determined that the answers could be incriminating and ruled that he would allow Cunningham to invoke the privilege. After the jury returned, the State asked the following questions, all of which Cunningham refused to answer under his Fifth Amendment privilege:

“Mr. Cunningham, were you present with the defendant when he pawned those items at Phil’s Pawn Shop?”
“Did Mr. Bowen show you those items in his automobile the day before he took them to Phil’s Pawn Shop?”
“Were you aware Mr. Bowen had burglarized the residence on Limberlost Trial in Rockdale County?”
“Were you aware that Mr. Bowen had stolen property at his house in Newton County that came from the Limberlost residence?”

Defendant argues that he was denied his right to cross-examination in this circumstance and relies on Lawrence v. State, 257 Ga. 423 (3) (360 SE2d 716) (1987). However, we note crucial distinctions between Lawrence and this case. In Lawrence, Hart had made a written statement to police incriminating the defendant. Before Hart was called to testify, he and his counsel advised the court and counsel that Hart would not answer any questions. In this case Cunningham did answer questions, only invoking the privilege on some questions. Further, counsel for .the defendant did cross-examine Cunningham, eliciting testimony favorable to defendant. The trial court followed the procedure set out by the Supreme Court in Lawrence in Footnote 3 of the opinion at pages 424-425. In these circumstances, we find no error in the procedure followed and no restriction on defendant’s right to cross-examine.

Decided November 27, 1989

Rehearing denied December 20, 1989

John Martin, for appellant.

Richard Bowen, pro se.

Robert F. Mumford, District Attorney, for appellee.

3. There is not merit to defendant’s argument that the charge on recent, unexplained possession of stolen property is burden-shifting. Williamson v. State, 248 Ga. 47 (1) (c), particularly at 57 (281 SE2d 512) (1981).

4. Defendant filed a brief to supplement that filed by his able counsel. Although not required to do so, see Wilson v. City of Atlanta, 184 Ga. App. 651 (362 SE2d 460) (1987), we will address the two additional errors alleged in his brief. First, defendant argues that the indictment is defective in that it failed to describe what items were stolen. The indictment charged defendant with burglary. In an indictment for burglary, the State need not allege a description, value or ownership of goods actually stolen to have a valid indictment. Davis v. State, 139 Ga. App. 105 (3) (227 SE2d 900) (1976). Lastly, defendant raises the general grounds. Upon a review of the entire record, we find that a rational trier of fact could have found beyond a reasonable doubt from the evidence adduced at trial that defendant was guilty of the offense of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Per curiam. Sognier, Judge, Benham, Judge, Pope, Judge,

text:
    A89A1195.
    A89A1260.
    ETHRIDGE et al. v. PRICE. PRICE v. MIMS.
    (389 SE2d 784)
   Per curiam.

Hattie Eileen Price was severely and permanently injured in an automobile collision on May 10, 1983. She filed suit against numerous defendants including the Georgia Department of Transportation (DOT) on May 9, 1985, but subsequently amended the complaint to show her mother as plaintiff acting as next friend due to her incapacity from brain damage. Price moved to add as defendants Wyndald C. Ethridge, Earl L. Tyre and W. Wilson Mims, who were all retired DOT employees, alleging that their negligence in designing, constructing and maintaining the road on which the collision occurred contributed to her injuries and damages. DOT filed a motion for summary judgment, which was granted by the trial court on grounds of sovereign immunity, and this court affirmed on appeal. Price v. Dept. of Transp., 182 Ga. App. 353 (356 SE2d 45) (1987).

On grant of certiorari the Supreme Court reversed, holding that insurance protection had been provided for the claims raised in the suit; and that the issue of sovereign immunity had been decided adversely to DOT in Martin v. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987) and was binding on the facts presented. Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987). However, on motion for reconsideration the Supreme Court ordered the trial court upon remand to rule on Price’s motion to add the named employees as defendants, stating that “[i]f they, or any of them, are made defendants there is a waiver of sovereign immunity as to the DOT as stated in the opinion. Since a waiver depends upon the presence of a claim in the action for which liability insurance protection has been provided, if no employee is made a party defendant there will be no waiver as to DOT.” Id. at 537-538.

Upon return of the case to the trial court, the motion to add Ethridge, Tyre and Mims as party defendants was granted and they were served with copies of the amended complaint in February of 1988, this being their first notice of the 1983 collision. After some discovery a summary judgment motion was filed by all three employees, and was granted in favor of Mims but denied to Ethridge and Tyre. This court granted the applications for interlocutory review of Ethridge and Tyre in A89A1195 and of Price in A89A1260, and has consolidated the appeals. For other appeals previously entertained in this case, see Price v. Wright Contracting Co., 183 Ga. App. 595 (359 SE2d 406) (1987); Price v. Reeves Constr. Co., 181 Ga. App. 241 (351 SE2d 655) (1986).

1. In Case No. A89A1195 Price alleged that Ethridge in his capacity as State Road Design Engineer was negligent in not designing, or having those who worked under him design, the road project location on which she was injured with more extensive guardrails, a median barrier between the opposing lanes and a more moderate slope in the fill sections of the roadway so as to prevent vehicles from plunging down a steep embankment. She further alleged that Tyre as DOT District Engineer had the authority to extend the guardrail system on the bridge approach where the collision occurred and negligently failed to do so. Ethridge retired from DOT in 1978, and Tyre retired in 1979. Both men assert that during the entirety of their DOT service the law of Georgia protected them in the exercise of their judgment by official immunity. See, e.g., Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) (1982); Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980); Roberts v. Barwick, 187 Ga. 691 (2) (1 SE2d 713) (1939); Truelove v. Wilson, 159 Ga. App. 906 (4) (285 SE2d 556) (1981). Although the purchase of liability insurance was authorized effective July 1, 1975, to insure state employees, including Ethridge and Tyre, they argue that because the 1983 amendment of Art. I, Sec. II, Par. IX of the Georgia Constitution made no mention of official immunity as opposed to sovereign immunity, insurance coverage was not construed to be a waiver of official immunity until the 1987 decision was rendered in Martin v. Dept, of Public Safety, supra, which should not have been applied retroactively to them.

We do not agree that this has been retroactively applied here. The constitutional provision proclaims that “the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments or agencies for which liability insurance protection for such claims has been provided. . . .” (Emphasis supplied.) It seems apparent that the operation of the waiver occurs at the time the action arises, not at the time the allegedly negligent act was committed. As stated in Price v. Dept, of Transp., supra at 536, the “waiver of sovereign immunity [is] not for the claim, but for the action.” Since Price was injured on May 10, 1983, after the amendment became effective on January 1, 1983, the waiver is applicable here. See Wilmoth v. Henry County, 251 Ga. 643 (2) (309 SE2d 126) (1983) and Holloway v. Rogers, 181 Ga. App. 11 (1) (351 SE2d 240) (1986), where both appellate courts considered only if the cause of action arose prior to the effective date of the waiver, not when the defendants’ alleged negligence occurred. See also Hunter v. Johnson, 259 Ga. 21 (3) (376 SE2d 371) (1989).

2. Either for the reason stated in the special concurrence of Judge Sognier or for the reason stated in the special concurrence of Judge Benham, summary judgment should have been granted to Ethridge and Tyre. Accordingly, we reverse the trial court’s denial of summary judgment to these defendants.

3. In Case No. A89A1260 Price has appealed the trial court’s grant of summary judgment to the defendant Wilson W. Mims. Review of the depositions and affidavits submitted in this regard reveals that Mims as DOT’s area resident engineer had administrative supervision over all construction jobs in this four-county area, and supervisory responsibility for all road maintenance in the same area. His construction responsibilities consisted of seeing that the contractors were properly paid and the DOT personnel effectively allocated among the construction projects. Thus his duties did not include the actual design or construction of the roadway project. Moreover, he was never involved with maintenance of the roadway because it was not opened to traffic until April 1, 1981, subsequent to his retirement on November 1, 1978, and no maintenance was performed until after the road was opened. Accordingly, insofar as Mims is concerned, this is one of those rare instances when issues of negligence, contributory negligence and proximate cause are for the court rather than a jury to decide and, in the absence of any evidence showing negligence on the part of Mims, we agree with the trial court that he has satisfied his evidentiary burden so as to support an award of summary judgment. Edwards v. Trammell, 187 Ga. App. 22, 24 (369 SE2d 288) (1988), and cases cited therein. Accordingly, we affirm the trial court’s grant of summary judgment to Mims.

Judgment affirmed in Case No. A8A1260. Judgment reversed in Case No. A89A1195.

Carley, C. J., Deen, P. J., Birdsong, Sognier, Benham and Beasley, JJ., concur specially. McMurray, P. J., Banke, P. J., and Pope, J., concur specially in part and dissent in part.

Sognier, Judge,

concurring specially.

I join in the per curiam opinion and concur specially for the following reasons.

1. Having determined that the immunity waiver is effective against the DOT employees, we must now consider their contention that Price’s action against them was barred by the two-year statute of limitation under OCGA § 9-3-33. It is undisputed that Price was rendered permanently incompetent by the accident, and “[m]inors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” OCGA § 9-3-90. I do not agree with the argument made by Ethridge and Tyre and adopted in Judge Benham’s special concurrence that because Price filed suit against the DOT, the tolling of the statute of limitation ceased. Neither Cline v. Lever Bros. Co., 124 Ga. App. 22, 23 (4a) (183 SE2d 63) (1971), cited in Judge Benham’s special concurrence, nor those cases cited by Ethridge and Tyre, stand for that proposition. The cited portion of Cline merely stands for the proposition that the suit brought by next friend in that case was timely and not barred by the statute of limitation, because the plaintiff was incapacitated. Moreover, this court has held that the statute of limitation will not run against a minor represented in litigation by next friend or guardian ad litem, Barnum v. Martin, 135 Ga. App. 712, 715 (219 SE2d 341) (1975); see also Jones v. Hartford Accident &c. Co., 132 Ga. App. 130 (207 SE2d 613) (1974), and that “[sjince all the parties enumerated in [OCGA § 9-3-90] are in the same class, it follows that the law applicable to a minor is equally applicable to the other classes of persons enumerated.” Whalen v. Certain-Teed Prods. Corp., 108 Ga. App. 686, 688 (134 SE2d 528) (1963). Consequently, it is established law that the statute of limitation remains tolled against an incompetent despite the institution of an action by next friend or guardian.

Even if the policy arguments put forth by Ethridge and Tyre for holding otherwise are meritorious, the statute is clear, and any change is better left to the wisdom of the Legislature. Accordingly, in my view the trial court correctly denied the motions of Ethridge and Tyre for summary judgment on this issue on the ground that the statute of limitation was tolled during Price’s incapacity, and the action against them was timely filed.

I do not agree with Judge Pope that Ethridge and Tyre meet the statutory requirements for the relation back of amendments adding parties as set forth in OCGA § 9-11-15 (c). In his opinion, Judge Pope has concluded that the amendment adding Ethridge and Tyre relates back because Price had good reason for the delay in adding them, and the added parties would not be prejudiced by the addition. However, under the statutory language, that analysis is deficient. Those two factors are simply among those “to be considered by the trial court in determining whether to allow the amendment,” Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983), as pointed out in Judge Pope’s opinion. Other factors are that “within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” OCGA § 9-11-15 (c).

It is undisputed that both Ethridge and Tyre had retired from the DOT years before the accident occurred, and thus there would have been no reason for either of them to have known of the accident, to have received notice of the institution of this action against the DOT, or to have knowledge that “but for a mistake concerning the identity of the proper party, the action would have been brought against [them].” Id. In fact, in the affidavit in support of his motion for summary judgment, Tyre specifically averred that he had “no knowledge of this law suit until perhaps a couple of weeks prior to February 1, 1988,” when he was served, almost three years after the institution of the action. That averment was unrebutted. In my view, therefore, the necessary statutory preconditions for relation back have not been met.

2. Nevertheless, in my view both Ethridge and Tyre were entitled to summary judgment on the merits.

The allegation of negligence against Tyre was specific, as demonstrated by the plaintiff’s answers to interrogatories. The claim was that “[i]t was Mr. Tyre’s decision as to whether or not existing guardrail on the roadway should be replaced or extended. Mr. Tyre negligently failed to have the guardrail on the subject bridge approach extended so as to prevent automobiles leaving the roadway from dropping down the high, steep embankment.” This claim of negligence clearly relates to maintenance, rather than to design or construction. However, Tyre’s unrebutted affidavit in support of his motion for summary judgment shows that although he was the District Engineer in the Tifton office of the DOT from 1975 to 1979, the project was not completed or open to traffic until several years after his retirement in 1979, and he was never involved with maintenance of the project. Moreover, even if the claim of negligence against Tyre had related to design or construction it could not have survived summary judgment, since in his affidavit Tyre also averred that his job did not call for him to have any actual contact with the construction of the West Oakridge Road project, he had no input into the design, and no participation in the construction beyond overseeing some administrative tasks. Accordingly, I believe the trial court erred by denying Tyre’s motion for summary judgment.

3. As to Price’s claims of negligence against Ethridge, again her interrogatory answers are specific, and allege that Ethridge “and/or those persons under his supervision negligently designed the subject bridge approach to create . . . defects” (emphasis supplied) consisting of a high embankment, lack of sufficient guardrail, lack of median barriers, failure to correct a drop caused by settlement, and failure to correct the road surface to prevent pooling of water. It is clear that the last two “defects” alleged are not design defects, but maintenance failures. Ethridge had no responsibility for maintenance. As to the alleged design defects, in his affidavit in support of his motion for summary judgment Ethridge averred that during his tenure as State Road Design Engineer from December 1974 to his retirement in December 1978 he did no actual drafting or designing of projects, that the “ordinary business routine in [his office] would have called for the West Oakridge construction plans to have been certified by the Office of Engineering Services as meeting the design standards and specifications of the [DOT],” that his time “was devoted largely to overseeing the timely completion of plans and to the allocation of personnel,” and that the West Oakridge Road project was designed “in accordance with the [DOT] policies for state aid projects which were in effect at the time.” In my view, this uncontroverted evidence rebuts Price’s allegations of negligence as to Ethridge and entitles him to summary judgment.

Accordingly, I would reverse the trial court’s denial of summary judgment as to Ethridge and Tyre on that basis, without reaching the remaining arguments put forth by them as supporting summary judgment.

I am authorized to state that Presiding Judge Deen and Judge Birdsong join in this special concurrence.

Benham, Judge,

concurring specially.

I concur in the majority decision that summary judgment was appropriate for all three DOT employees, appellants Ethridge and Tyre and appellee Mims.

I agree with Judge Sognier’s special concurrence that the necessary statutory preconditions for relation back under OCGA § 9-11-15 (c) were not met in the case at bar. However, I believe that summary judgment should have been granted to appellants Ethridge and Tyre and appellee Mims on their statute of limitation defense. While Price’s incompetency tolled the statute of limitation (OCGA § 9-3-90), the period of limitation commenced upon the institution of an action by Price’s next friend, her mother. This court has held that where, as a result of the occurrence giving rise to the cause of action, a person becomes mentally and physically incapable of acting for himself in carrying on his business and in prosecuting his claim, the statute of limitation is tolled until such time as he regains the capacity to act for himself, or until such time as a guardian is appointed and actually does act for him, or until such time as one bona fide acting for him as next friend actually files suit on his behalf. Cline v. Lever Bros. Co., 124 Ga. App. 22 (4a) (183 SE2d 63) (1971); City of Atlanta v. Barrett, 102 Ga. App. 469 (116 SE2d 654) (1960). Thus, the two-year statute of limitation governing personal injury suits commenced in the case at bar on June 26, 1985, the day the mother of the incapacitated adult filed suit as next friend of her incapacitated daughter. Appellant Tyre and appellee Mims were not served with process until February 1, 1988, and appellant Ethridge was not served until February 6, 1988, more than 2-1/2 years after Ms. Price’s next friend filed suit. Since, as Judge Sognier’s special concurrence states, the Prices did not meet the necessary statutory preconditions for relation back of amendments adding parties, summary judgment should have been granted Ethridge, Tyre, and Mims on the ground that the statute of limitation had expired.

In reaching the conclusion that the statute of limitation does not run against an incapacitated person represented in litigation by next friend, Judge Sognier’s special concurrence relies upon Barnum v. Martin, 135 Ga. App. 712 (2) (219 SE2d 341) (1975), which relies upon Jones v. Hartford Accident &c. Co., 132 Ga. App. 130 (207 SE2d 613) (1974). In Barnum, a minor brought suit through her next friend four years before giving the required ante litem notice to a municipality. In deciding Barnum, this court stated that “[a]ny doubt that the statute of limitation will not run against a minor plaintiff who sues through next friend is resolved by our decision in Jones u. Hartford Acc. &c. Co., [supra], where it was held that ‘the disability of infancy ... is only removed when the party affected reaches his lawful majority.’ ” However, the issue in Jones, as recognized by that court, was “whether or not the proviso . . . permitting an eighteen-year-old married person to maintain an action and settle a claim in his own name abolishes the disability of infancy . . . and requires an eighteen-year-old married person to commence his action for injury to the person within the time limitation of [OCGA § 9-3-33].” The court went on to hold that it did not. The Jones case had nothing to do with the commencement of the statute of limitation when a minor brought suit by next friend or guardian, and Barnum’s improper reliance on it should not be perpetuated. In light of the precedents in existence at the time Barnum was decided (Cline v. Lever Bros. Co., supra, and City of Atlanta v. Barrett, supra), which precedents held that the statute of limitation commenced when a guardian or next friend filed suit on behalf of the incapacitated person, I would take this opportunity to overrule Barnum.

I am authorized to state that Chief Judge Carley and Judge Beasley join in this opinion.

Pope, Judge,

concurring in part and dissenting in part.

I join in Divisions 1 and 3 of the per curiam opinion. However, I disagree that summary judgment should have been granted to defendants Ethridge and Tyre either for the reasons stated by Judge Sognier in his special concurrence or by Judge Benham in his special concurrence.

1. I agree with Judge Sognier that the action against the defendants was not barred by the applicable statute of limitation but not for the reasons stated in his special concurrence. Rather than a new action against the named employees, I believe this action should be treated as an amendment adding parties, which is controlled by OCGA §§ 9-11-15 (c) and 9-11-21, since an action had been brought seeking recovery for Price’s injury by her mother as next friend. See Cline v. Lever Bros. Co., 124 Ga. App. 22 (4a) (183 SE2d 63) (1971). This action was first commenced against DOT and the other named defendants on May 9, 1985. On December 13, 1985, Price deposed DOT’s operations division director and learned for the first time that Mims, Ethridge and Tyre were the former employees who were involved in the design, construction and/or maintenance of the bridge approach where the collision occurred. On April 16, 1986, Price filed her motion to add Mims, Ethridge and Tyre as party defendants, but this motion was not ruled upon by the trial court until after remand by the Supreme Court on October 28, 1987, with direction to do so. On January 25, 1988, the trial court entered an order naming Mims, Ethridge and Tyre as party defendants; all three were served in February 1988.

“Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” OCGA § 9-11-15 (c). Although the statutory language refers to “changing” the party, it has been held to include adding parties as well. Cobb v. Stephens, 186 Ga. App. 648 (368 SE2d 341) (1988). “Among the factors to be considered by the trial court in determining whether to allow the amendment are whether the new party will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new party previously. [Cits.]” Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983).

Price moved to add the new parties as soon as she learned their identities, and the trial court’s delay in acting on this motion was through no fault of her own. Ethridge and Tyre complain that the suit was in active litigation for two years and nine months before they were served, and there is no evidence of record that they knew about it prior to that time. However, they have not shown that they were harmed or prejudiced by this delay so as to preclude the amendment’s relating back to the institution of the action. On motion for summary judgment the evidentiary burden as to these issues was on them as movants. Cobb u. Stephens, 186 Ga. App. at 651; accord Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805 (2) (371 SE2d 421) (1988). Consequently, I believe that summary judgment was properly denied as to this issue.

2. I disagree, however, that the trial court erred in denying summary judgment to Tyre and Ethridge on the merits. (Divisions 2 and 3 of Judge Sognier’s special concurrence.) Firstly, Ethridge and Tyre argue that they were entitled to summary judgment because their involvement in the design and construction of the roadway project was limited to execution of DOT’s policies, and the judicial branch of government is without authority under the doctrine of separation of powers to establish policy for an executive agency of government. Price argues that it was not her intent to involve this court in road designing, but that she is seeking recovery from DOT and its employees for their negligent design, construction and maintenance of the road as demonstrated by their failure to adhere to their own guidelines. The guidelines to which Price refers apparently are contained in a booklet entitled “Highway Design and Operational Practices Related to Highway Safety,” a report of a special AASHTO Traffic Committee dated February 1967, which were adopted by DOT as the standards to be followed in constructing the state highway system. However, this booklet is not included in the record on appeal and, indeed, may not have been introduced in evidence. Moreover, the only mention of the AASHTO regulations was in the deposition of a DOT employee who testified, without contradiction, that while these standards were followed for state highways they were not used in conjunction with county roads. Appellants’ evidence that the road in issue here was designed and built for the county, not the state highway system, was undisputed.

“When the (defendant-movant) for summary judgment presents evidence apparently destroying the plaintiff’s cause of action, the movant has met his burden, and the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain.” (Citations and punctuation omitted.) West End Investments v. Hills, 188 Ga. App. 274, 277 (372 SE2d 665) (1988). Price failed to meet her burden of showing that DOT and its employees did not follow their own guidelines, or that they were obligated to do so, when she did not come forward with rebuttal evidence. See Hinkley v. Bldg. Material Merchants &c., 187 Ga. App. 345 (370 SE2d 201) (1988).

This was not, however, the sole ground upon which Price’s action was based, as she also contended that negligent design, construction and maintenance of the roadway was the proximate cause of the automobile collision. “It is generally a question for a fact-finding body to determine questions of negligence and whose negligence and what negligence involved is the sole proximate cause of the injury. It is only where the negligent conduct alleged is susceptible of but one inference that it becomes a question of law for the court to determine.” (Citations and punctuation omitted.) Lewis v. Duggan, 184 Ga. App. 563, 565 (1) (362 SE2d 73) (1987). Although Judge Sognier’s special concurrence holds that the allegations against Tyre relate only to the maintenance of the project, it is clear that the question of extending the guardrail on the project could occur during either the design, construction or maintenance phase of the project. Moreover, the record shows that Tyre was the DOT District Engineer and that as such his “responsibility was to supervise all personnel in the District including the construction personnel.” Likewise, although Ethridge averred that he did no actual designing or drafting of projects, the record shows that Ethridge signed and submitted the “Guard Rail Location Details” drawings for this project to the State Highway Engineer for approval in July 1975, and that he signed and submitted the entire set of plans to the State Highway Engineer before the project began. Furthermore, in his capacity as head of the State Road Design Office, he “supervised an organization of 105 people including engineers, designers, draftsmen and support staff.” Consequently, although Tyre and Ethridge may not have actually performed the drafting, design or construction tasks on the project which plaintiff alleges as negligence, they were clearly responsible, in their supervisory capacities, for the engineers, draftsmen and workers who did perform these tasks. “In the instant case the evidence does not mandate a judgment as a matter of law; a scrupulous sifting and weighing of the evidence by a jury is required. [In my opinion] the trial court properly denied summary judgment [on this basis].” Bragg v. Missroon, 186 Ga. App. 803, 806 (368 SE2d 564) (1988).

3. Ethridge and Tyre also urge, however, that the trial court erred in denying their motions for summary judgment because, even assuming that they were negligent, any negligence on their part was not the proximate cause of the collision in which Price was injured. However, “[t]here may be more than one proximate cause of an injury. [Cit.]” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (1) (256 SE2d 916) (1979). See also Eubanks v. Business Equip. Center, 161 Ga. App. 202, 203 (288 SE2d 273) (1982). Price alleged that she was injured not only when her car was struck by two other vehicles, but when she plunged 22 feet down the steep embankment of the bridge approach because DOT’s employees failed to provide a guardrail, recovery area or a gradually sloping road shoulder. She further contended that had there been a median barrier the collision would never have occurred, and that the respective, concurrent negligence of each employee contributed to her injuries.

“It is no defense to an action for an injury resulting from negligence that intervening negligence contributed to cause the injury, if the negligence of [the DOT employees] was an efficient cause without which the injury would not have occurred. [Cits.] ‘(I)f the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act. That is a jury question.’ [Cit.]” Eubanks, supra at 203. In my opinion, this issue must be determined by the jury.

4. I would likewise reject Ethridge and Tyre’s assertion that having ruled in Price v. Wright Contracting Co., 183 Ga. App. 595 (359 SE2d 406) and Price v. Reeves Constr. Co., 181 Ga. App. 241 (351 SE2d 655), that the contractors involved with the roadway project could not be held liable as a matter of law for its design and construction because they were simply following the rules established by DOT, this court is bound to reach the same conclusion in regard to them. On the contrary, those cases turned on the general rule that “ ‘where the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, . . .’” Wright at 597; Reeves at 241. As further pointed out in Wright, supra at 597-598: “ ‘when the work is finished by (the contractor) and accepted by [the] employer [DOT], the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective condition of the work. (Cits.)” (Cit.)’ [Cit.]” Accord Wilmock, Inc. v. French, 185 Ga. App. 259 (1) (363 SE2d 789) (1987). If the evidence is sufficient to show misfeasance and negligence on the part of DOT’s employees in undertaking to design, construct or maintain the roadway project, a jury may also find them personally liable. Howell v. Ayers, 129 Ga. App, 899 (4) (202 SE2d 189) (1973).

5. Ethridge and Tyre also object to the fact that under OCGA § 36-33-4, municipal or local government employees are liable only for those official acts performed “oppressively, maliciously, corruptly or without authority of law” which, were it also applicable to them, would have entitled them to judgment as a matter of law. However, the Georgia cases, including the instant suit, which have considered the liability of the state and counties and their employees have consistently applied the standard of ordinary care. See, e.g., Price v. Dept. of Transp., 257 Ga. 535, supra; Thigpen v. McDuffie County Bd. of Education, 255 Ga. 59 (335 SE2d 112) (1985); Curtis v. Cobb County, 254 Ga. 673 (333 SE2d 595) (1985); Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985); Swofford v. Cooper, 184 Ga. App. 50 (360 SE2d 624) (1987); Early County v. Fincher, 184 Ga. App. 47 (360 SE2d 602) (1987). If a higher standard is to apply, it must come from the legislature. Consequently, I believe the trial court properly denied summary judgment to defendants Ethridge and Tyre.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this special concurrence and dissent.

Decided December 5, 1989

Rehearings denied December 20, 1989

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, Roland F. Matson, Senior Assistant Attorney General, Beverly B. Martin, Assistant Attorney General, for Ethridge, Tyre and Mims.

Burt & Burt, Hilliard P. Burt, Terry J. Marlowe, for Price.

       The trial court awarded summary judgment to Mims on a different ground, and the majority affirms that judgment. I, therefore, concur in the judgment only in A89A1260.


author: Benham, Judge. Birdsong, Judge,

text:
    A89A1228, A89A1241.
    TOROK v. YOST (two cases).
    (389 SE2d 793)
   Benham, Judge.

This appeal follows the trial court’s grant of appellee’s motion to dismiss appellants’ personal injury lawsuit (case no. A89A1228) and abusive litigation lawsuit (case no. A89A1241) for failure to comply timely with an order entered by the trial court. We reverse.

1. The order at issue was entered on August. 5, 1988, after the trial court held a hearing to give direction to the parties, who had been unable to formulate a joint pre-trial order. The trial court’s order, among other things, noted that special damages must be pleaded with particularity under OCGA § 9-11-9 and ordered appellants to file a “pleading of special damages by dollar amount.” The order did. not give a deadline for appellants’ compliance. In October, appellee filed a motion to dismiss due to appellants’ failure to comply with the order to amend their pleadings. Appellants amended their complaint to plead special damages by dollar amount on November 14, ten days after the trial court held a hearing on the motion to dismiss. The trial court granted appellee’s motion to dismiss on January 9, 1989.

As noted previously, the trial court’s order did not set a time within which appellants had to amend their pleadings. The Civil Practice Act provides that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). While the records contain several proposed pre-trial orders submitted by each party, neither record contains a pre-trial order signed by the trial court and entered. See OCGA § 9-11-16 (b). Thus, appellants’ amendment, filed prior to the entry of a pre-trial order, was proper and timely and should have been considered by the trial court. See Rushing v. Ellis, 124 Ga. App. 621 (1) (184 SE2d 667) (1971). Since appellants amended their complaint as ordered by the trial court, the trial court erred in dismissing appellants’ lawsuit for failing to obey the trial court’s order. Graham v. Dev. Specialists, 180 Ga. App. 758 (350 SE2d 294) (1986), is distinguished since there the trial court gave the plaintiffs a time certain within which they were to file the more definite statement sought by the defendants. Id. at 760.

Appellee maintains that OCGA § 9-11-12 (e) gave appellants 15 days to obey the trial court’s order. Relying on Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974), appellee asserts that compliance with an order that refers to OCGA § 9-11-9 is governed by the time limitations set forth in OCGA § 9-11-12 (e). However, according to the language of OCGA § 9-11-12 (e), it comes into play after a party moves for a more definite statement and the motion is granted. No such motion was made or granted in the case at bar. In Cochran, the Supreme Court held that a pleading involving a special matter (fraud, mistake, etc.) should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief, and noted that a motion for more definite statement was the proper means for seeking more particularity. See Bryant v. Bryant, 236 Ga. 265 (223 SE2d 662) (1976). However, as stated earlier, that is not the setting for the case at bar. Here, no motion for a more definite statement preceded appellee’s motion to dismiss, and the motion to dismiss did not have as its basis a failure to state a claim, but contended instead that appellant had not timely complied with an order of the court.

2. In light of the holding in Division 1, appellee’s motion for the imposition of a penalty for frivolous appeal is denied.

Judgments reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Sognier and Pope, JJ., concur. Deen, P. J., Birdsong and Beasley, JJ., dissent.

Birdsong, Judge,

dissenting.

I must dissent. The circumstances of this case clearly show that Torok’s failure to comply with the trial court’s pre-pretrial order to “[plead] special damages with the particularity réquired by OCGA § 9-11-9 (g),” was wilful and intentional and without justification (Bell’s Ferry Landing v. Wirtz, 188 Ga. App. 344.(373 SE2d 50)), and that he had no intention of complying with the order in any fashion until forced by Yost and the court to do so. He made no issue of any “misunderstanding” about whether he should “plead” special damages in an amended compliant or in a pretrial order, or when he should do it.

Even assuming (as I do not believe) that the CPA makes no provision as to when a more definite statement (which is a specific pleading; see Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13); see Tucker v. Chung Studio of Karate, 142 Ga. App. 818, 820-821 (237 SE2d 223)) is required to be filed when ordered by the trial court, Torok could not reasonably believe he did not have to plead specifically until a pretrial order was filed, or that he only had to plead specifically in a pretrial order, because he was expressly ordered to plead under § 9-11-9 (g). His failure to seek instruction or clarification shows conclusively that he intended to gamble, at the court’s expense, that he could do as he pleased with impunity and avoid or delay a trial. Under Graham v. Dev. Specialists, 180 Ga. App. 758, 763 (350 SE2d 294), dismissal of his actions was authorized.

These cases began with the personal injury suit filed in August 1984, by Torok based on what appellee Yost describes as “a minor auto collision” in which the police were not called to the accident scene and no accident report was made. See OCGA §§ 40-6-274; 40-6-275; 40-6-279. Yost contends that the questions whether property damage exceeded $250 and whether reasonable medical expenses exceeded the Georgia No-Fault threshold, are critical issues in the personal injury case; and that because of Torok’s failure to comply with the code sections just cited, any claims by Torok exceeding $250 property damage and the Georgia No-Fault threshold, might be barred altogether. Yet, Torok has never itemized his special damages in the personal injury case, but has “lumped all damage claims together.” The abusive litigation case was Torok’s response to a counterclaim brought by Yost which was dismissed without prejudice, but Torok never specified his damages in the abusive litigation suit, which deficiency leaves unresolved the issue of entitlement to “vindictive damages.”

The trial court dismissed Torok’s lawsuits when he failed, after four years of litigation, to plead his special damages in both cases, as these were deemed by the trial court to be basic and necessary to these cases. See Graham, supra. According to Yost, after these cases had been up and down on interlocutory appeals for four years (see Yost v. Torok, 256 Ga. 92 (344 SE2d 414); Torok v. Yost, 176 Ga. App. 149 (335 SE2d 419)), the trial court had attempted for some months to get the parties to “make the case manageable by use of a pretrial order”; the instant pre-pretrial order requiring Torok to “plead special damages” came after the parties’ utter failure to develop a pretrial statement, and two lengthy pretrial conferences including hearings and arguments.

On its face, the provision that a party “may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order,” (OCGA § 9-11-15 (a)) (emphasis supplied), has no application to a situation where the trial court has expressly ordered a party to “plead” specifically, i.e., to amend his pleadings. To the contrary, if he is ordered to plead specifically, he necessarily must do so before a pretrial order is entered, because under the same code section he can do so afterwards only with “leave of court”; Torok’s position is an oxymoronic proposition at best.

The order (which included rulings and reservations of rulings on other substantive matters) was issued August 5, 1988, to facilitate pretrial proceedings; on October 6, 1988, defendant Yost filed his motion to dismiss for Torok’s noncompliance. The trial court gave no time limit within which Torok was to “plead special damages with particularity under OCGA § 9-11-9.” However, this code section generally is enforced by the mechanism of a motion for more definite statement under § 9-11-12 (e). Cochran v. McCollum, supra. That code section (§ 9-11-12 (e)) provides that the court’s order requiring such definite statement or specific pleading (which are the same mechanism, see Cochran), shall be obeyed “within 15 days after notice of the order . . . [or] the court may . . . make such order as it deems just.”

The code section (§ 9-11-12 (e)) does not condition this time limit upon the making of a motion for more definite statement, but upon the trial court’s grant of an order for more definite statement or specific pleading. See Cochran, supra; Tucker, supra. In deciding whether the provision as to specific pleading at § 9-11-9 (g) is governed by the 15-day time limit to respond to the trial court’s order, we are governed by § 9-11-1, which states that the Civil Practice Act “shall be construed to secure the just, speedy, and inexpensive determination of every action.” In light of that directive, there can be no conclusion that in refusing to do anything at all until forced by more litigation, Torok acted reasonably or innocently.

The majority has nevertheless accepted as reasonable the fact that appellant did not comply with the trial court’s order within 15 days, nor did he ask for any clarification or express any misunderstanding, nor did he attempt to amend his pleadings until more than three months later, a month after appellee had filed his motion to dismiss. His actions did nothing to promote a just and speedy trial. Plaintiff Torok argued he was confused and was misled to believe the trial court intended him to plead special damages in the consolidated pretrial order and did not, as it now appears, mean that Torok should so amend his original complaint.

The trial court’s entire order entitled “Order Consolidating Cases and Scheduling Other Matters” is, as a matter of law, not unclear or misleading. The clear meaning was to have certain things be done and resolved, so that a pretrial order could be entered. Reason necessitated that Torok do as ordered, before the pretrial order was entered, for the express purpose of the instant order was to facilitate a pretrial order.

OCGA § 9-11-7 (describing “pleadings”) and OCGA § 9-11-15 (as to amended and supplemental pleadings) leave no doubt that “pleadings” do not generally refer to a pretrial order, and in the context of the trial court’s order here did not refer to a pretrial order.

As to Torok’s insistence that he was “misled” by the trial court’s failure to state that he was to “plead” special damages in his complaint, he has trapped himself, for the order was equally silent as to any suggestion that they be pleaded in a pretrial order. Plaintiff did not then question the “silence” he now seeks to take advantage of. No rational basis exists, and he offers none, permitting the assumption a pleading need only be in the pretrial order. If he had barely looked at the statute which he was ordered to comply with (§ 9-11-9), he could not reasonably have concluded, in ordinary diligence, that he should not bother to amend his pleadings (see § 9-11-16 (a) (2)), even if he did “think” the trial court only wanted him to specify damages in the pretrial order.

I find no material distinction between this case and Graham v. Dev. Specialists, supra. Although in Graham, the party was ordered to plead within 30 days, the material nexus is that in both that case and this one, the party unreasonably and intentionally “gambled” on the court’s indulgence to avoid or further hinder a trial, or cause more litigation. The extreme sanction of a dismissal in this case is not unwarranted (see Ambler v. Archer, 230 Ga. 281 (196 SE2d 858)), in view of the fact that the amount of special damages which plaintiff was ordered to plead would determine the viability of any trial on the personal injury suit and damages therefor, and of the trial court’s later ruling on the recovery of “vindictive damages” and attorney fees in the consolidated abusive litigation suit.

I also agree with the trial court, which was most familiar with the entire litigation, that a less harsh sanction for disobedience of court order was not appropriate. In the long history of these cases, after four years of intense fixation upon the histrionics of litigation, a trial was not yet in sight. This order represented the trial court’s efforts to flail certain trial issues out of the parties. Both parties knew the object and intent (and any construction of the law; see § 9-11-1) of this order was to facilitate a speedy trial. In response to its efforts, the trial court received complete non-action from a party who was ordered specifically to do a certain necessary thing towards accomplishing a trial. The only excuse offered is that the party “misunderstood” what it was not reasonable to misunderstand, and so did nothing at all.

The evidence of proceedings here justifies the conclusion that, as in Graham, the plaintiff here chose to gamble on what he could remotely later claim he “thought” the trial court meant, while doing nothing towards seeking a clarification and substituting nothing towards any sort of compliance. Even if there were no specific statutory time limit within which Torok should have complied with the trial court’s order (see § 9-11-12 (e)), it is an old and honored rule that where no time is stated for compliance with any directive, it must be obeyed within a reasonable time. See, e.g., OCGA § 13-4-20. Clearly Torok knew he had to comply within some reasonable time, i.e., before the pretrial conference. The trial court was justified to conclude that Torok did not intend to comply with the order in any fashion until he was forced by more litigation to do so, and that he acted only to avoid a trial, for the sake of dalliance with the subject litigation itself.

Decided December 5, 1989

Rehearings denied December 20, 1989

Scheer & Eisner, Robert A. Eisner, Wayne Chatham, for appellant.

Chambers, Mabry, McClelland & Brooks, Jack G. Slover, Jr., Gambrell, Clarke, Anderson & Stolz, Seaton D. Purdom, for appellee.

For these reasons, I would affirm the trial court’s dismissal of both of these cases.

I respectfully dissent. I am authorized to state that Presiding Judge Deen joins in this dissent, and that Judge Beasley joins in judgment only of the dissent.


author: McMurray, Presiding Judge.

text:
    A89A1327, A89A1328.
    A89A1329.
    A89A1330.
    MANAGEMENT COMPENSATION GROUP/SOUTHEAST, INC. et al. v. UNITED SECURITY EMPLOYEE PROGRAMS, INC.; and vice versa. SIMMONS v. UNITED SECURITY EMPLOYEE PROGRAMS, INC. COMPENSATION SYSTEMS, INC. et al. v. UNITED SECURITY EMPLOYEE PROGRAMS, INC.
    (389 SE2d 525)
   McMurray, Presiding Judge.

Plaintiff United Security Employee Programs, Inc. (“USEP”), a Georgia corporation, organized to engage in the business of selling insurance policies, filed suit to share in commissions from the sale of certain insurance policies to the Coca-Cola Company and to recover other damages. As amended, the complaint contains 16 counts stating claims against one or more of seven corporate and individual defendants.

Plaintiff allegedly combined in 1983 with defendant Compensation Systems, Inc. (“CSI”) to pursue the sale of insurance to the Coca-Cola Company under an arrangement whereby both corporations would share equally in any commissions. Count 5 stated a breach of contract claim against defendant CSI for failure to pay to plaintiff 50 percent of any commissions defendant CSI received as a result of insurance purchases by the Coca-Cola Company. Plaintiff alleges that on or about June 5, 1984, a partnership known as “The Consortium” was formed to solicit sales of life insurance to the Coca-Cola Company for the purpose of funding various executive benefit programs. “The Consortium” included plaintiff, CSI, defendant Management Compensation Group/Southeast, Inc. (“MCG”), and defendant Tax and Corporate Planning Group, Inc. (“TCPG”), a Georgia corporation of which the sole shareholder was defendant Simmons. Count 3 stated a breach of contract claim against defendants CSI, TCPG, and MCG, predicated on the alleged agreement creating “The Consortium.” Count 4 stated a claim against defendants CSI, TCPG, MCG, and Simmons for breach of fiduciary duty by converting the commissions earned by plaintiff. Defendant Optimum Funding Corporation (“OFC”) is the agent of record with the insurer who issued certain life insurance policies to the Coca-Cola Company. Defendants Hefner and Balser are the presidents of defendants CSI and MCG.

Plaintiff filed a motion for partial summary judgment as to Counts 3, 4 and 5 of its amended complaint on the grounds that it is entitled to 25 percent of commissions payable on life insurance purchased by the Coca-Cola Company in 1985 to fund certain employer funded executive benefit programs. (Commissions arising from the Coca-Cola Company’s purchase of additional insurance for employee funded programs are also at issue in the cases sub judice, but were not the subject of plaintiff’s motion for partial summary judgment.) Defendants CSI, TCPG, MCG, OFC, and Simmons responded by moving for summary judgment (“defendants’ motion for summary judgment”) as to Counts 1 to 11 of plaintiff’s amended complaint.

The superior court entered an order on July 8, 1988, disposing of portions of the opposing motions for summary judgment. Plaintiff’s motion for partial summary judgment as to Counts 3 and 5 was granted. As to Count 4, the superior court denied plaintiff’s motion on the grounds that the claim stated was inconsistent with the contract claim of Count 3 so that an election of remedies required that Count 4 not be pursued. Defendants’ motion for summary judgment as to Count 4 was granted on the theory that since there was no evidence of benefit to these defendants from withholding the funds at issue no conversion was shown. The superior court denied defendants’ motion for summary judgment insofar as it related to plaintiff’s contentions regarding the exclusion from The Consortium agreement of employee funded executive benefit plans. No ruling was entered as to the remaining issues raised by defendants’ motion for summary judgment.

Four appeals from the superior court’s order of July 8, 1988, were filed. Appellants in Case No. A89A1327 are defendants MCG, TCPG, OFC, Balser, and the estate of defendant Simmons. Case No. A89A1328 is the cross-appeal of plaintiff USEP. The estate of defendant Simmons, deceased, is the appellant in Case No. A89A1329. In Case No. A89A1330 the appellants are defendants CSI and Hefner. Held:

1. On June 24, 1988, a suggestion of the death of defendant Simmons was filed. The executrix of the estate of Simmons was substituted as party defendant on July 15, 1988. The superior court’s order of July 8, 1988, having been filed in the interval is void as to defendant Simmons. South DeKalb &c. of Metro. Atlanta v. Frazier, 236 Ga. 903, 905 (225 SE2d 890); Allen v. Cloudburst Mfg. Co., 162 Ga. App. 188 (290 SE2d 529).

2. Under the statutory scheme, only licensed persons may act as life insurance agents (OCGA § 33-23-2 (a)) and receive payment of commissions for services as a life insurance agent. OCGA § 33-23-2 (c). Only natural persons may be licensed as life insurance agents although a partnership or corporation may be an “agency” provided that all partners, officers, directors, stockholders, and employees who shall act as agents shall be licensed. OCGA § 33-23-1 (1). In order for an incorporated insurance agency to share in any commissions, all of its employees, stockholders, directors, or officers who solicit, negotiate, or effectuate insurance contracts must be qualified insurance agents holding a currently valid license. OCGA § 33-23-2 (d). “Agent” is defined in OCGA § 33-23-1 (2) (A).

Licensure must be proven to exist both at the time services were rendered and at the time recovery is sought. Contracts made in violation of such regulatory statutes are void and unenforceable. Management Search v. Kinard, 231 Ga. 26, 28 (2) (199 SE2d 899). Thus, a failure to comply with the statutory scheme governing life insurance agents will bar any recovery on the basis of a contractual claim. This strict rule has been held to be necessary to compel compliance with the licensure requirement. McLamb v. Phillips, 34 Ga. App. 210, 216 (129 SE 570).

The three shareholders of plaintiff USEP are Clement, Jackson and Riddle. While Riddle was a licensed life insurance agent at all times relevant to this action, Jackson was unlicensed until August 1986, after this action was filed. Clement was licensed only for the last four or five months of 1984 and after August 1986. Notwithstanding the lack of licensure, in July and August of 1983, both Clement and Jackson, as representatives of the partnership between plaintiff and CSI, took part in meetings with representatives of the Coca-Cola Company. Their purpose in participating in these meetings and in making other contacts with the Coca-Cola Company was to influence the Coca-Cola Company to purchase insurance from plaintiff.

Defendants contend that plaintiff’s unlicensed stockholders, Clement and Jackson, were engaged in the solicitation or procurement of a contract of life insurance in violation of OCGA §§ 33-23-1 (2) (A) and 33-23-2. Thus, defendants argue that plaintiff lacked capacity to enter into a contract to receive commissions from the sale of life insurance and that the superior court erred in granting plaintiff’s motion for partial summary judgment as to Count 3 (and defendant CSI argues- that the grant of plaintiff’s motion as to Count 5 was also error). Since plaintiff contends that the acts of Clement and Jackson did not constitute “solicitation” or “procurement,” within the meaning of the statutes, an issue is raised as to the correct construction of these terms which are not defined in the statute.

“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.” OCGA § 1-3-1 (b). “In the absence of words of limitation, words in a statute should be given ‘their ordinary and everyday meaning.’ Richmond County Bd. of Tax Assessors v. Ga. R. Bank &c. Co., 242 Ga. 23, 25 (247 SE2d 761) (1978).” Risser v. City of Thomasville, 248 Ga. 866 (286 SE2d 727). See also Radford v. IPD Printing & Distrib., 184 Ga. App. 64 (2) (360 SE2d 656) and Curlee v. Mock Enterprises, 173 Ga. App. 594, 599 (4), 600 (327 SE2d 736). These terms “are not words of art or words connected with a particular trade or subject matter but, rather, words that are in general use and are understood in their ordinary signification.” Anderson v. Little &c. Funeral Home, 242 Ga. 751, 752 (1) (251 SE2d 250).

Webster’s New Intl. Dictionary, 2d ed., defines “solicit” as “to entreat, importune ... to endeavor to obtain by asking or pleading ... to urge . . .” and defines “procure” as “to prevail upon by persuasion . . . induce ... to endeavor to bring about. ...” See also in this connection Chattanooga Glass Co. v. Strickland, 244 Ga. 603, 604 (1) (261 SE2d 599); Melton v. Helms, 83 Ga. App. 71, 73 (62 SE2d 663); Hines v. State, 16 Ga. App. 411, 414 (85 SE 452); and Rose v. State, 4 Ga. App. 588, 593 (2), 594 (62 SE 117). The terms at issue are quite broad and thus extremely restrictive of the activities of unlicensed stockholders such as those in the cases sub judice. While plaintiff contends that the activities of its unlicensed stockholders amounted only to introductions or furnishing a lead, when the activities of the shareholders are examined in the context of the correct construction of the regulatory statutes it is clear that plaintiff’s stockholders Clement and Jackson were engaged in the solicitation or procurement of an application for a contract of life insurance in violation of OCGA §§ 33-23-1 (2) (A) and 33-23-2.

Next, plaintiff contends any activities of its unlicensed stockholders which constituted improper solicitation or procurement are irrelevant since they took place prior to the formation of The Consortium. Plaintiff argues that since the commissions at issue were paid as a result of the success of The Consortium and not for the unsuccessful efforts which predated the formation of The Consortium, it would be illogical that an improper solicitation involving a proposed sale that was never consummated would preclude it from earning a commission on a different consummated sale. However, the underlying premise of plaintiff’s argument, that is, the absence of any causal link between the solicitations of plaintiff’s unlicensed stockholders prior to the formation of The Consortium and The Consortium sales, is not established by uncontroverted evidence.

It remains for a jury to determine whether the improper solicitations of plaintiff’s stockholders contributed to the sales of life insurance which gave rise to the commissions at issue. The superior court erred in granting plaintiff’s motion for partial summary judgment as to Counts 3 and 5 of the complaint.

3. All of the defendants also contend that the superior court erred in denying defendants’ motion for summary judgment as to Counts 1 to 3 and 5 to 11. Two arguments are presented in support of this contention. Defendants maintain that plaintiff lacked the capacity to contract to receive insurance commissions or to recover such commissions due to the improper solicitations of its unlicensed stockholders. This has been discussed at length in Division 2 of this opinion. Defendants also argue that there was no enforceable contract between plaintiff and defendants.

First, we will consider separately defendants’ motion for summary judgment as to Counts 1, 2, and 6 to 11. The superior court has not ruled upon those issues except to deny defendants’ motion insofar as it related to plaintiff’s contentions regarding the exclusion from The Consortium agreement of employee funded executive benefit plans. The superior court’s ruling as to the single specified issue is correct under the evidence (but void as to defendant Simmons for the reason stated in Division 1). We may not consider the additional issues argued by defendants as to these counts which were not ruled on by the lower court. Porter v. Mid-State Homes, 133 Ga. App. 706, 708 (2) (213 SE2d 10).

Before considering, on the merits, the denial of defendants’ motion for summary judgment as to Counts 3 and 5, we note that these counts present no claim against defendants UFC, Balser, Hefner or Simmons. Nonetheless, each of these four defendants has asserted enumerations of error seeking a grant of summary judgment or similar relief in regard to these counts. However, as parties whose rights and obligations are not affected by the claims stated in Counts 3 and 5, these defendants lack standing to complain as to the rulings in regard to these counts.

Decided November 29, 1989

Rehearing denied December 20, 1989.

Long, Aldridge & Norman, Jack H. Watson, Phillip A. Bradley, J. James Johnson, Virginia G. Morrow, for Management Compensation et al.

Finally, as to the motion for summary judgment on Counts 3 and 5 of defendants CSI, MCG, and TCPG, we note that insofar as these defendants rely on the matters discussed in Division 2, genuine issues of material fact remain for resolution by a jury. We also find that the record contains evidence of the contracts alleged by plaintiff, sufficient to preclude a grant of summary judgment in favor of these defendants. While the evidence showing the existence of the contracts between plaintiff and CSI as well as the later creation of The Consortium, consisted primarily of oral rather than written agreements, plaintiff’s evidence shows that the contracts were sufficiently complete as to their terms to be binding. Also, we note the absence of evidence of termination of either of the alleged partnership agreements.

4. The superior court did not err in granting the motion for summary judgment of defendants CSI, MCG and TCPG as to Count 4 of the complaint. “[Plaintiff] is not seeking to recover some specific money, either in certain bills or coins to which [it] had title, but instead seeks to recover a certain amount of money generally. There is no evidence in the record that there were ever any particular bills delivered or counted out which belonged to [plaintiff]. Rather it appears [plaintiff’s] claim . . . could have been discharged by the payment of any lawful currency of the United States, whether it constituted a part of [defendants’] gross profits then in hand or not. Thus, this is not such a case for which a cause of action for conversion was intended. See Cooke v. Bryant, 103 Ga. 727 (30 SE 435) (1898).” Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751 (1) (365 SE2d 494).

While plaintiff argues that Count 4 “states a claim based on breach of fiduciary duties, not conversion,” the only breach of fiduciary duty alleged is conversion. In our view, plaintiff urges a distinction without a difference.

5. In Case Nos. A89A1327, A89A1329, and A89A1330 the judgment is affirmed in part and reversed in part due to the reasons stated in Divisions 1, 2 and 3. The judgment is affirmed in Case No. A89A1328 for the reasons stated in Division 4.

Judgment affirmed in part and reversed in part in Case Nos. A89A1327, A89A1329, and A89A1330. Judgment affirmed in Case No. A89A1328.

Carley, C. J., and Beasley, J., concur.

Love & Willingham, Daryll Love, Hezekiah Sistrunk, Jr., Allen Willingham, Robert Monyak, for United Security.

Minkin & Snyder, Gary M. Snyder, for Simmons.

Bondurant, Mixson & Elmore, Emmet J. Bondurant II, Carolyn R. Gorwitz, for Compensation Systems.