text:
    77129.
    PARKS v. GWINNETT COUNTY et al.
    (380 SE2d 77)
   Pope, Judge.

Appellant Joe Emory Parks, Jr., brings this appeal arguing that the trial court erred in denying his motion to modify a judgment and court order. This appeal stems from a dispute between Gwinnett County (“the county”), appellant and Lonnie Strickland concerning the status of a roadway that crosses appellant’s property. In 1982, in Parks v. Gwinnett County, Civil Action File No. 82A-3330, appellant brought suit against the county to prevent the county from opening the roadway for public use. Immediately before trial, the parties reached a settlement and announced it to the court. The court then entered judgment, dated March 15, 1985, embodying the terms of the settlement. In this judgment, the court ordered appellant to convey certain property to the county, ordered Strickland to convey certain property to appellant, and ordered the county to construct a new road for public use. This judgment was twice amended as a result of negotiations between appellant and the county concerning the particulars of the road to be built. Apparently, neither appellant nor Strickland ever deeded the property as ordered, and the county never started work on the road.

In January 1987, Strickland brought a contempt action against the county to enforce the earlier judgment and to get the county to build the road. Appellant was added as a party defendant by order of the court on December 16, 1987. The court had a hearing on the matter and entered an order dated December 23, 1987 and filed with the clerk on December 28, 1987 transferring title from appellant to the county for the building of the road. The order directed the county to construct the road in accordance with the earlier judgment within 90 days, weather permitting. This order ended the case. The record and order are silent regarding Strickland’s duty to convey land to appellant. Held:

We are faced with the fact that appellant never appealed the March 15 judgment of the court in the earlier case, nor the order filed December 28, 1987 in the present case. Therefore, this court is precluded from considering any alleged errors in either of those rulings because the time for appeal has passed. OCGA § 5-6-38. The only question properly before us is whether the trial court erred in refusing to modify its rulings. The terms of court at which the rulings were entered had both ended. OCGA § 15-6-3(20) provides that the terms of court for the Superior Court of Gwinnett County are: “First Monday in January, March, May, July and November and second Monday in September.” Thus, the term in which the March 15, 1985 judgment was entered ended the last day of April, 1985. The term in which the December 28, 1987 order was entered ended January 3, 1988. “After the expiration of the term at which a decree was entered, it is out of the power of the court to modify and revise it in any matter of substance or in any matter affecting the merits.” (Citation and punctuation omitted.) City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489) (1971). The trial court was without power to modify the rulings; thus, the trial court did not err in refusing to modify them.

Judgment affirmed.

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

Decided March 6, 1989

Rehearing denied March 17, 1989

Chamberlain, Hardlicka, White, Johnson & Williams, Richard N. Hubert, for appellant.

George Gibson Dean II, Glyndon C. Pruitt, Walter M. Britt, for appellee.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    77191.
    SAFECO TITLE INSURANCE COMPANY v. CITIZENS & SOUTHERN NATIONAL BANK.
    (380 SE2d 477)
   Sognier, Judge.

Safeco Title Insurance Company brought suit against O. C. Hubert for breach of warranty of title, seeking to recover from Hubert the $100,000 it had paid a third party (hereinafter “Fisher”) to clear the title of land purchased by Safeco’s insured from Hubert. Upon Hubert’s death, Citizens & Southern National Bank, as temporary administrator of his estate, was substituted as party defendant. The trial court granted the bank’s motion for summary judgment, and Safeco appealed to the Georgia Supreme Court which transferred the appeal to this court.

Appellant’s insured, Terrell Mill I Associates, Ltd., purchased a large tract of property located near the intersection of Interstate 285 and Interstate 75 from appellee in November 1983. Appellant insured the fee simple title to the land subject to a “[n] on-exclusive easement for roadway purposes granted by Otis Brumby to Robert E. Brumby, dated July, 1946 . . . .” Appellee is Otis Brumby’s successor in interest; Fisher is Robert Brumby’s successor in interest. The interest passed by Otis Brumby to Robert Brumby in the “Brumby deed” affected a strip of property (the “disputed property”) which bisected the property purchased by Terrell Mill. Terrell Mill, after obtaining Fisher’s permission, paved the road on the disputed property, but in the course of its construction work Terrell Mill also built part of a swimming pool and part of a building foundation on the disputed property. Fisher protested the encroachment in letters to appellant’s insured and claimed that the Brumby deed conveyed to Fisher’s predecessor in interest not a non-exclusive roadway easement but a fee simple title to the disputed property. Although appellant’s attorney agent prior to the issuance of the insurance had determined that the Brumby deed transferred an easement, after the claim was made, appellant concluded that the interest conveyed was in fee simple and paid Fisher $100,000 for the disputed property in order to provide Terrell Mill with the title as insured.

1. Appellant contends the trial court erred by determining as a matter of law that the Brumby deed granted an easement rather than conveyed a fee simple title to the disputed property. The Brumby deed, a pre-printed form with typewritten insertions (denoted here by italics), provided that “for and in consideration of the sum of ONE DOLLAR . . . , in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey [to Robert Brumby], his heirs and assigns, all that tract or parcel of land lying and being in A strip of land off the West side of Land Lot 801 ... of varying width from 20 to 40 feet, said strip being fully shown on plat of survey of said property . . . . The property herein conveyed is to be perpetually used for a road from Terrell Mill Road into Land Lot 800, said District and Section, owned by the Grantee. TO HAVE AND TO HOLD, The said bargained premises, together with all and singular the rights, members and appurtenances thereof, to the same being, belonging, or in any wise appertaining, to the only proper use, benefit and behoof of him [Robert Brumby], his heirs and assigns, forever, IN FEE SIMPLE. And [Otis Brumby] for himself, his heirs, executors, administrators, will warrant and forever defend the right and title to the above described property unto [Robert Brumby], his heirs and assigns, against the lawful claims of all persons whomsoever.”

“[T]he crucial test in determining whether a conveyance grants an easement in, or conveys title to, land, is the intention of the parties, but in arriving at the intention many elements enter into the question. The whole deed or instrument must be looked to, and not merely disjointed parts of it. The recitals in the deed, the contract, the subject-matter, the object, purposes, and nature of the restrictions or limitations, if any, or the absence of such, and the attendant facts and circumstances of the parties, at the time of the making of the conveyance are all to be considered. [Cit.]” Jackson v. Rogers, 205 Ga. 581, 586-587 (54 SE2d 132) (1949). The Supreme Court in Rogers held that the document therein conveyed a fee simple title rather than a mere easement, noting that despite the nominal ($10) consideration and the absence of a warranty clause, the repeated recital in the document that it was “land” being conveyed, the fact that the conveyance was made not only to the railroad company involved but its “successors and assigns” as well, and the language in the habendum clause “[t]o have and to hold said tract or parcel of land to the said railroad company, for railroad purposes, forever in fee simple,” all indicated that the instrument conveyed fee simple title to the land in question to the grantee.

Appellee argues, and the trial court deemed, that Jackson v. Sorrells, 212 Ga. 333 (92 SE2d 513) (1956), is the most closely analogous case to the Brumby deed. We do not agree. In determining that the interest transferred in Sorrells was an easement, the Supreme Court noted that the deed recited nominal consideration, that the grantor retained the right to cultivate the land not in actual use by the grantee railroad company and placed a burden on the grantee to maintain stock gaps, that the deed specified the property was conveyed for use as a railroad, and that the land conveyed was a strip out of the middle of the grantor’s tract with no access between them. Id. at 335. Rogers was distinguished on the basis that the deed in the earlier opinion had contained no reservation to the grantor of any right in the land in question similar to the reserved right to cultivate the land up to the road bed in Sorrells.

The Brumby deed contains no reservation to the grantor of any right in the disputed property nor places any burden on the grantee similar to the reserved right to cultivate and the duty to maintain stock gaps in Sorrells. The conveyance was to Robert Brumby and his heirs and assigns; the deed refers solely to “land” with no mention of easement or right-of-way; and the deed contains both an habendum in fee and a warranty of title. “While . . . the use of the words, ‘forever in fee simple,’ does not demand the construction that [the] instrument conveys to the grantee title to [the] land, and not a mere easement therein ([cits.]), such words are ‘potent’ when considered in connection with the other terms of the instrument in inducing us to hold that this instrument conveyed the title to this strip of land to the grantee. [Cit.]” Rogers, supra at 587-588.

Furthermore, while the presence of the warranty clause is not controlling on the determination of the nature of the interest conveyed by a deed, see Bale v. Todd, 123 Ga. 99, 101-102 (2) (50 SE 990) (1905) (warranty clause in grant of use of stairway for all necessary purposes, with provision dividing cost of upkeep of stairway, held to be easement not fee simple title), the presence or absence of a warranty clause is a factor often cited as indicating fee simple title or easement, respectively, see Johnson v. Valdosta &c. R. Co., 169 Ga. 559, 564-565 (150 SE 845) (1929); Askew v. Spence, 210 Ga. 279, 280 (1) (79 SE2d 531) (1954), and the presence of such a clause in the Brumby deed warranting title of the disputed property against the claims of all persons whomsoever further distinguishes the deed sub judice from the one in Sorrells and the cases cited therein.

Thus we cannot agree with the trial court that Sorrells is controlling here since the Brumby deed is not distinguishable in any material respect from the deed under consideration in Rogers. We therefore hold that the Brumby deed did not grant an easement but instead conveyed a fee simple restricted to the perpetual use of the property solely as a road. Although typewritten words are generally entitled to more consideration than pre-printed items, see Hodsdon v. Whitworth, 153 Ga. App. 783, 786 (266 SE2d 561) (1980); OCGA § 13-2-2 (7), that principle applies when a conflict exists between the specially inserted provisions and the printed form, see Batson-Cook Co. v. Poteat, 147 Ga. App. 506, 507-508 (1) (249 SE2d 319) (1978), and in the absence of any conflict between the form and inserted provisions in the deed, we cannot ignore the pre-printed language, “boilerplate” arguments notwithstanding.

Therefore, the grant of appellee’s motion for summary judgment was error insofar as it determined the interest passed by the Brumby deed was an easement, rather than fee simple title to the disputed strip of property. See generally Barber v. Southern R. Co., 247 Ga. 84 (274 SE2d 336) (1981); Clark v. McBride, 256 Ga. 308, 309-310 (1) (348 SE2d 634) (1986).

2. As an alternate ground for its order, the trial court determined that appellant could not litigate the breach of warranty suit against appellee because it acted as a volunteer when it paid Fisher the $100,000 for the disputed property and the doctrine of subrogation does not apply to mere volunteers. Telfair Stockton & Co. v. Trust Co. of Ga., 203 Ga. 802, 809 (48 SE2d 532) (1948). While we do not question the validity of the principle relied upon by the trial court, the issue before the trial court cannot be resolved merely by applying that principle.

“[SJubrogation is a remedy recognized both in law and equity as a path of recovery whereby one is placed or substituted in the legal position of another .... The clear meaning of the language defining subrogation is that the subrogee is placed in the same position as the subrogor which includes the disabilities as well as the rights.” Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 308 (335 SE2d 681) (1985). The record is uncontroverted that the Fisher claim was precipitated by Terrell Mill’s encroachment upon the disputed property by the construction of portions of a swimming pool and building foundation thereon. That construction work was an encroachment on the disputed property regardless of whether the interest owned by Fisher was ¿n easement or fee simple title. In view of the fact that it was the improper act by appellant’s insured which precipitated the claim, we find no merit in appellant’s arguments that when it settled Fisher’s claim, it was acting under compulsion or in response to an emergency and that in some way legally entitled appellant to recover the $100,000 it paid for the disputed property from appellee.

The trial court’s determination that appellant acted as a volunteer was based on its erroneous conclusion that the interest conveyed in the Brumby deed was an easement and because the policy appellant issued to Terrell Mill expressly excluded coverage for adverse claims created by the insured (i.e., by encroaching on the easement), appellant was under no legal obligation to settle Fisher’s claim. While the record does reflect that Terrell Mill’s encroachment on the disputed property was the act which precipitated Fisher’s claim, the reason Fisher first claimed to be fee simple title owner of the disputed property is immaterial. Fisher was fee simple title holder to the disputed property, Division 1, supra, and the title appellant insured was not the title Terrell Mill received. There thus existed a valid legal obligation on appellant’s part under its policy, although that obligation does not validate the manner in which appellant responded to Fisher’s claim or entitle appellant to recover the sum it expended to extricate Terrell Mill from the economically distressing situation the insured’s improper action had hastened.

Decided March 2, 1989

Rehearing denied March 17, 1989

Weeks & Candler, Jerry L. Stepp, Terri A. Candler, Leslie D. Williams, for appellant.

Glenn P. Hendrix, Richard N. Hubert, Barbara J. Goldstein, for appellee.

“If the property ‘involved (is) described by boundaries and (if a portion of the property) within those boundaries (was) owned by someone other than [appellee,] (t)his amounts to a defect in title as contemplated by (OCGA § 44-5-36) . . . .’ [Cit.]” Etheridge v. Fried, 183 Ga. App. 842, 843 (360 SE2d 409) (1987). Under OCGA § 44-5-36, the damages the purchaser is entitled to recover from the seller for breach of warranty are “a proportionate reduction of the purchase price ... for that part of the land lost due to the defect in title. [Cits.]” McClure v. Turner, 165 Ga. App. 380, 381 (301 SE2d 304) (1983). See also Woodstock Village v. Fowler, 154 Ga. App. 82, 85 (1) (267 SE2d 558) (1980); Etheridge, supra. Having held in Division 1 that the disputed property purportedly conveyed by appellee to appellant’s insured was held in fee simple by Fisher, it follows that there remains for jury determination “the issue of ‘the amount of the unliquidated damages (to which [appellant, as subrogee of Terrell Mill] would be entitled) for the “reduction of the price according to the relative value of the land so lost.” [Cit.]’ [Cit.]” Etheridge, supra at 844 (2).

3. Although appellant argues certain other matters not related to those addressed above, our review of the trial court’s order establishes that the grant of summary judgment was based solely on the two issues discussed in Divisions 1 and 2 and the trial court did not rule or intimate any ruling on the matters asserted by appellant.

Judgment reversed.

Deen, P. J., and Benham, J., concur. Carley, C. J., disqualified.

Pollyann S. Campbell, amicus curiae.


author: Carley, Chief Judge.

text:
    76058.
    ATLANTIC WOOD INDUSTRIES, INC. v. ARGONAUT INSURANCE COMPANY et al.
    (380 SE2d 504)
   Carley, Chief Judge.

Appellant-plaintiff insured brought a declaratory judgment action, seeking a determination as to whether appellee-defendant insurers were obligated to defend a pending action. The trial court granted appellees’ motion to dismiss for failure to state a claim. In Argonaut Ins. Co. v. Atlantic Wood Indus., 187 Ga. App. 471 (370 SE2d 765) (1988), we were compelled to affirm. “Since this court is not free to ignore controlling Supreme Court authority, we are constrained to hold . . . that, notwithstanding this court’s present agreement or disagreement with the rationale of United States Cas. Co. [v. Ga. S. & Fla. R. Co., 95 Ga. App. 100 (97 SE2d 185) (1957)], we are required to apply it in this case. Only our Supreme Court is authorized to reevaluate its implicit endorsement in Residential Dev., Inc. [v. Merchants Indem. Co. of N. Y., 227 Ga. 332 (180 SE2d 729) (1971)] of the rationale of United States Cas. Co. and, after that reevaluation to overrule or to reaffirm that rationale.” Argonaut Ins. Co. v. Atlantic Wood Indus., supra at 474 (1).

On certiorari, the Supreme Court, after undertaking a reevaluation of the issue, concluded that the rationale expressed by the older cases was no longer viable. “We agree that insureds should have the same opportunity as insurers to determine in advance the scope of policy provisions. . . . Nothing in [OCGA § 9-4-1] prohibits an insured’s action for declaratory judgment. To sanction it levels the ground for insureds and insurers alike.” Atlantic Wood Indus. v. Argonaut Ins. Co., 258 Ga. 800, 801 (2, 3) (375 SE2d 221) (1989).

Accordingly, the judgment of the Supreme Court is hereby made the judgment of this court and the judgment of the trial court is reversed. Such decisions of this court as hold that declaratory relief is not available to an insured, including but not necessarily limited to United States Cas. Co. v. Ga. S. &c. R. Co., supra, and Residential Dev. v. Merchants Indemn. Co., 122 Ga. App. 503 (177 SE2d 715) (1970), are hereby overruled and will no longer be followed.

Judgment reversed.

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

Decided March 17, 1989.

Dennis M. Flannery, John H. Harwood II, Joseph K. Brenner, Bobby Jones, Joseph H. Barrow, James W. Thomas, James W. Greene, Frank B. Miller, Mary Lou Kramer, C. Michael DeCamps, Paul W. Painter, Jr., Benny C. Priest, John M. Tatum, for appellants.

Arnold C. Young, Gerald P. Norton, Edward A. Kurent, Waltraut S. Addy, for appellees.


author: McMurray, Presiding Judge. Benham, Judge,

text:
    77801.
    HAUGABROOK v. WACO FIRE & CASUALTY INSURANCE COMPANY.
    (380 SE2d 347)
   McMurray, Presiding Judge.

In January 1985 plaintiff Haugabrook purchased from defendant Waco Fire & Casualty Insurance Company (“Waco”) a fire insurance policy covering a building that housed a supermarket and the contents therein. On September 29, 1985, a fire damaged the building and caused the complete destruction of the store’s contents. Waco issued checks totaling $49,000 to cover the loss to the building, but paid nothing on the loss of the contents. Contending that defendant had an obligation to pay his loss and that defendant’s failure to do so amounted to a bad faith refusal to pay, plaintiff filed this lawsuit. A jury returned a $21,000 verdict, and plaintiff appeals from the judgment entered thereon. Held:

1. Defendant contends that the verdict returned by the jury is without an evidentiary basis. Plaintiff’s uncontradicted evidence shows a loss of the contents of the store amounting to $96,000. As the evidence shows that plaintiff had either a 100 percent, a 50 percent, or no insurable interest in the contents of the store, any award to plaintiff would be anticipated to be at least $48,000 based upon a 50 percent insurable interest. Since the jury apparently found for plaintiff on the issue of liability but awarded only $21,000, the verdict was so inadequate as to require a new trial. Karlan v. Enloe, 129 Ga. App. 1, 3 (2), 4 (198 SE2d 331). Therefore, we must reverse the judgment in the case sub judice and return the case for a new trial.

There is no merit in the contention that the amount of the personal property loss was disputed at trial. This position is predicated on the testimony of a certified public accountant (“CPA”) employed by defendant that invoices he had received from plaintiff totaled $22,000. This figure was presented in conjunction with other testimony by the CPA as to his failure to obtain complete records in regard to plaintiff’s loss, and thus proves nothing in regard to the total amount of the personal property loss. The CPA did not suggest that the $22,000 figure was an estimate as to the value of the contents of the store destroyed during the fire and, indeed, the contrary is readily inferred from his testimony.

Thus, the $22,000 figure for the invoice total can be relevant to a proper recovery only if plaintiff’s recovery is limited to an amount for which he can show invoices. Such is not the case in this instance. The pertinent provision in the insurance contract provides in part: “Duties of the Named Insured After A Loss. In case of loss the named insured shall:. . . prepare an inventory of damaged personal property showing in detail, quantity, description, actual cash value and amount of loss. Attach to the inventory all bills, receipts and related documents that substantiate the figures in the inventory . . .” While this contractual provision calls for the attachment of any substantiating documentation there is no language conditioning the insured’s recovery upon the existence or availability of such documentation. (Apparently, in the case sub judice, some records of the business were destroyed in the fire.)

Nonetheless, the insured’s duty to provide sufficient proof of loss is well provided for, since under the insurance policy the insured is required to prepare an inventory to establish the amount of loss. In the case sub judice, a physical inventory was conducted and defendant has not presented any evidence contesting the accuracy of the inventory. The defendant’s CPA witness, who was responsible for investigating the amount of the personal property loss, testified that he knew of no error in the physical inventory. Since the defendant failed to present any evidence which contradicted the result of the physical inventory of the contents of the store destroyed in the fire, the jury was not authorized to use the $22,000 figure as the amount of plaintiff’s loss.

2. During his cross-examination of a witness, counsel for defendant used for impeachment purposes a sworn statement given by the witness in March 1985 in a different fire insurance loss case. Plaintiff, claiming surprise, moved that all the witness’ testimony concerning the March 1985 statement be stricken since defendant had failed to make plaintiff aware of the statement as a supplement to its answers to plaintiff’s interrogatories. The trial court denied the motion.

The interrogatory at issue asked defendant if it was “aware of the existence of any written, recorded or transcribed statements made by anyone concerning this action or the subject matter of this action” and asked it to identify the statement. Counsel for defendant stated at trial that he was aware of the existence of the undisclosed statement “the day before yesterday.” The person who verified defendant’s answers to the interrogatories testified that he knew when he signed the answers to the interrogatories that the witness had made a sworn statement, but that he did not realize the statement would have “any bearing” on the case at bar until a few days before trial when he was preparing for the trial. Earlier in the trial, the witness whose prior sworn statement was at issue had testified that plaintiff had owned the supermarket’s contents; in the earlier sworn statement, the witness had said that she and her husband owned the store’s contents. In this suit, where a central issue was the insurable interest plaintiff had in the store’s contents, this evidence can be classified as of a “potentially ‘critical’ nature.” Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 379 (274 SE2d 761) (1980).

OCGA § 9-11-26 (e) (2) (B) requires a party who has responded to a request for discovery with a response that was complete when made to supplement the response to include information thereafter acquired if the respondent “obtains information upon the basis of which [h]e knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment.” Defendant’s response to the interrogatory should have been amended when the respondent realized the bearing the witness’ recorded statement had on the case sub judice.

Judgment reversed.

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

Benham, Judge,

dissenting.

Inasmuch as I cannot agree that the jury’s award of damages is “so small ... as to justify the inference of gross mistake or undue bias” (OCGA § 13-6-4), I must dissent to Division 1 of the majority opinion.

The majority opinion is dependent upon the conclusion that appellant’s evidence of loss, an inventory, undisputedly established an insurable loss of $96,000. I am not able to share the majority’s confidence that appellant’s evidence of loss was without contradiction.

A certified public accountant retained by appellee testified that he had received from appellant invoices totaling approximately $22,000, and that he had been refused access to additional documents needed to verify the inventory valuation submitted by appellant. While the CPA’s testimony did not directly contradict appellant’s evidence of a $96,000 loss, “[t]he jury is not ‘bound in every case to accept evidence as true although it is not contradicted by direct evidence. It may be inherently subject to discredit, or so from the circumstances.’ [Cits.]” Adams v. Adams, 218 Ga. 67, 78 (126 SE2d 769) (1962). The testimony of the CPA provided the basis from which the jury could discredit appellant’s evidence of the amount of loss, and also constituted evidence from which the jury could conclude that appellant’s amount of loss was approximately $22,000. “ ‘On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cits.]’ ” Trust Co. Bank v. Henderson, 185 Ga. App. 367 (1) (364 SE2d 289) (1987). The jury verdict of $21,000 had evidentiary support and is not so small, when compared with the evidence, as to justify the inference of gross mistake or bias that would permit appellate interference with a jury verdict. OCGA § 13-6-4. In light of the evidence presented at trial, I am compelled to disagree with the majority’s conclusion that the verdict is so inadequate as to require a new trial.

Decided March 17, 1989.

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Hugh B. McNatt, for appellee.

I am authorized to state that Judge Sognier and Judge Beasley join in this dissent.


author: Deen, Presiding Judge.

text:
    A89A0103.
    BROWN v. THE STATE.
    (380 SE2d 349)
   Deen, Presiding Judge.

Winston Brown appeals from his conviction of two counts of violation of the Georgia Controlled Substances Act, the sale of cocaine.

1. The evidence showed that an undercover police officer made two purchases of cocaine near a public housing project. At the time of the first sale, twelve other people were in line to purchase cocaine. The officer gave his money to purchase the contraband to a man known as “Bright Eyes” and saw him hand it to appellant. Bright Eyes gave the officer the cocaine in a blue bag marked “Mac’s Sack.” When the second sale took place in the same area, the officer gave the money directly to appellant, who told Bright Eyes to give the cocaine to the officer. This purchase also came in a blue bag marked “Mac’s Sack.” There was testimony that appellant was known by the nickname “Macaroni” and was wearing a necklace with that name on it at the time of the sales. An expert witness from the State Crime Laboratory testified that the contents of the sacks tested positive for cocaine.

The evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Humphrey v. State, 252 Ga. 525 (314 SE2d 436) (1984).

2. The trial court did not err in its charge on conspiracy. Conspiracy was not charged as a separate crime in the indictment and the jury was not told that it had an option to convict on that offense. The charge which the defendant claims was erroneous was given as a part of the charge on parties to a crime and stated that the State contended that the accused was a party to a crime or a party to a conspiracy to commit a crime. The defendant’s objection at trial to the charge on conspiracy went only to his contention that the court failed to charge on the standard of proof necessary for proof of a conspiracy. The court, in responding to this objection, replied that it had consistently charged the “beyond a reasonable doubt” standard throughout the charge. We have examined the charge and agree.

Decided March 17, 1989.

Kane & Anderson, Daniel Kane, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, John M. Turner, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

3. Appellant contends that OCGA §§ 16-13-34; 16-13-35; and 16-13-40 outline provisions whereby the sale of a controlled substance is legal and that the charge which stated that any sale of cocaine would be illegal is an incorrect statement of law.

Assuming arguendo that the court erred in charging that any sale of a controlled substance is a violation of the Act (when the Act in fact provides for exceptions), it is harmless error in the absence of a claim of right to sell the substance. The State is not obligated “to anticipate a possible defense based upon the various statutory exceptions to the Act or to present evidence of the nonapplicability or nonexistence of each potential exemption.” Nix v. State, 135 Ga. App. 672, 673 (219 SE2d 6) (1975). Brown did not raise the defense of claim of right.

Judgment affirmed.

Birdsong and Benham, JJ., concur. '


author: McMurray, Presiding Judge.

text:
    A89A0104.
    PIERCE v. TAYLOR.
    (380 SE2d 351)
   McMurray, Presiding Judge.

Plaintiff Gladys Pierce brought suit against defendant Henry Taylor, d/b/a Taylor Construction Company, in the Superior Court of Banks County. Alleging that defendant negligently constructed her home, plaintiff sought actual damages in the amount of $45,000. Defendant answered the complaint and denied he was liable to plaintiff. Furthermore, via counterclaim, defendant alleged that plaintiff owed him an additional $8,500 pursuant to the parties’ original contract and additional work performed upon plaintiff’s subsequent request.

The case was tried by a jury and a verdict was returned in favor of defendant on his counterclaim and against plaintiff in the sum of $3,500. Judgment was entered accordingly and plaintiff moved for a new trial. Plaintiff’s motion for a new trial was denied and this appeal followed. Held:

1. In her first enumeration of error, plaintiff contends the trial court erred in denying her motion for a new trial on the general grounds. This enumeration of error is without merit.

“ ‘This court does not pass upon the credibility of witnesses, nor the weight to be given evidence on disputed facts. These are questions for the jury. Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against its weight, is a question the law vests in the trial judge’s discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.’ Adler v. Adler, 207 Ga. 394, 405 (61 SE2d 824).” Southern R. Co. v. Garner, 101 Ga. App. 371, 373 (114 SE2d 211).

Plaintiff presented evidence that her home was constructed negligently. Defendant, on the other hand, introduced evidence showing the home was not constructed negligently. Although some of defendant’s witnesses admitted that parts of the home were negligently constructed, others, including defendant himself, did not.

The evidence presented by defendant was sufficient to support the jury’s verdict. It cannot be said, therefore, that the trial court erred in denying the motion for a new trial.

2. In her second enumeration of error, plaintiff asserts the trial court erred in failing to grant her motion for a directed verdict upon the counterclaim. In this regard, she argues that the evidence unequivocally demonstrated an accord and satisfaction between the parties.

“An accord and satisfaction is created when the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former contract. [Cit.] An accord and satisfaction is itself a contract and requires a meeting of the minds in order to render it valid and binding. [Cit.] As a general rule, whether there is accord and satisfaction is a question for the jury. [Cit.]” Woodstock Rd. Investment Properties v. Lacy, 149 Ga. App. 593, 594 (254 SE2d 910).

The evidence of accord and satisfaction was weak and conflicting. Defendant gave plaintiff a handwritten statement which read: “All material and labor is paid in full on Gladys Pierce home except carpet.” Defendant testified that he gave plaintiff the statement to assure her that he had paid for all of the materials and labor that had been furnished and put into the house; and that he never agreed to accept any amount other than the full amount due under the contract. Based on the evidence, the jury was authorized to conclude that the parties had not reached an accord and satisfaction. Accordingly, the trial court did not err in refusing to grant plaintiff’s motion for a directed verdict upon the counterclaim.

Decided March 17, 1989.

Cornwell, Church & Healy, Timothy P. Healy, for appellant.

Jack S. Davidson, Sam S. Harben, Jr., for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A89A0134.
    LARK v. THE STATE.
    (380 SE2d 505)
   Beasley, Judge.

Defendant appeals his conviction of theft by taking, OCGA § 16-8-2. He was tried by the court without a jury.

1. Defendant was spotted by a store detective in the men’s department. The detective noticed him because he was carrying an empty shopping bag and appeared to be aimlessly looking around. During the approximately thirty-minute period during which the detective constantly observed defendant, he did not speak to anyone else and was not assisted by a salesperson.

Defendant took a shirt out of its wrapper, left the wrapper on the floor, took his shirt off, and put the new shirt on. He did the same with a tie and a sports jacket and put his clothes on the floor along with the empty shopping bag. He walked into the women’s department, turned around and walked back through the men’s department and out of the store, and was stopped by the detective.

Defendant testified that he met a woman in the mall whose name he did not know and whom he never saw before. She told him that she wanted to buy him some clothes and went into the store with him. While she was elsewhere in the store, he put the clothes on and left the store after he talked to her in the women’s department and she told him it was fine, she would pay. He did not relate this explanation when arrested.

The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant contends that copies of two previous convictions for shoplifting were improperly admitted. See, e.g., French v. State, 237 Ga. 620 (229 SE2d 410) (1976); Sablon v. State, 182 Ga. App. 128, 130 (2) (355 SE2d 88) (1987). During its case the State tendered two certified exhibits, each including an accusation and sentence for two incidents of shoplifting in Fulton County in the spring of 1987. Defendant objected only on the grounds that it had not been shown how defendant was convicted and that there had been no showing that they were admissible for purpose of similar transactions “as far as, if they’re in aggravation, this would not be an appropriate time to admit them.”

On appeal, defendant raises numerous other objections which will not be considered here for the first time. Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980).

While there was no proof offered by the State that the person named in the convictions was defendant, counsel for defendant acknowledged that he was so by stating in his place that the defendant “denies that he was convicted ... he says they were dropped.”

Since this trial was conducted by the court without a jury, there was no need for a separate hearing to consider the similar crimes before they were admitted. The indictments were sufficient on their face to show the remaining elements of the required foundation and they were admissible as going to defendant’s state of mind, since he admitted walking out of the store with the clothing on this occasion one year later. French, supra; Sablon, supra; Williams v. State, 180 Ga. App. 227 (348 SE2d 747) (1986).

3. Prior to trial, the judge asked “Has there been a waiver of a jury trial?” Counsel for defendant answered “Yes, sir, ... we do waive a jury trial in this matter and we’d like to try it before the Court.” The court prefaced the written finding of guilt with the notation: “Def. waived jury trial . . . .” These are the only references to the waiver. With new counsel on appeal, although both were employed by the public defender’s office, it is contended that this was not an appropriate waiver.

“A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. Wooten v. State, 162 Ga. App. 719 (293 SE2d 11) (1982). When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either ‘(1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent (or incomplete) record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.’ Sims v. State, 167 Ga. App. 479 (1) (306 SE2d 732) (1983).” Hill v. State, 181 Ga. App. 473 (352 SE2d 651) (1987); see Johnson v. State, 157 Ga. App. 155 (1) (276 SE2d 667) (1981); Roberts v. Greenway, 233 Ga. 473 (211 SE2d 764) (1975).

Decided March 17, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.

There has been no such showing, and the record being insufficient for our ruling, the case is remanded with opportunity for a hearing on this issue, Wooten, supra at 721; see Sims, supra at (1), and a new notice of appeal if review of any resulting order is desired.

Judgment affirmed with direction.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A0327.
    RIVIERA v. THE STATE.
    (380 SE2d 353)
   McMurray, Presiding Judge.

Defendant was convicted of trafficking in cocaine. He appeals, contending the trial court erred in ruling that an incriminating statement was made voluntarily and that the cocaine was seized pursuant to a valid consent search.

On October 16, 1987, DeKalb County police officers went to an apartment occupied by defendant to execute a search warrant. Arriving at 7:45 p.m., the police found defendant, his wife and two children outside. The police identified themselves and accompanied defendant and his family inside the apartment.

Defendant’s wife was introduced as Rosa Sarmentos. Rosa, who spoke broken English, acted as the translator for defendant, who appeared to understand some English but spoke Spanish exclusively.

Defendant sat next to his wife on a living room sofa as the police officers searched the apartment. Unbeknownst to defendant and his family, one of the police officers, Officer Woods, was fluent in Spanish.

Woods heard defendant tell his wife in Spanish that she was to say she knew nothing. The officer also heard defendant make references in Spanish to “the stuff.” Moreover, Woods heard defendant praying as the officers continued their search.

Defendant’s wife asked Officer Woods in English why the police were searching the apartment. When the officer replied in English that they were looking for cocaine, defendant said he did not know what cocaine was. Defendant’s seven-year-old child dissented, stating in Spanish: “You know, the stuff you put in your nose.”

When Officer Woods asked if the family owned any cars, she was told they owned a car and a van, but the car was at a friend’s house. Asked if the police could have permission to look in the van, defendant’s wife produced a key. The van was searched by a police officer at that time, but nothing was found.

The telephone rang and Officer Woods answered it. A voice on the other end asked for someone named Martha. In Spanish, defendant told his wife to tell the officer that Martha was an old girl friend.

Thereafter, Officer Woods looked in defendant’s wife’s purse and came across two valid Florida driver’s licenses. A picture of defendant’s wife was on each one. Although the pictures were the same, the names on the licenses were different. One license bore the name “Rosa Sarmentos”; the other — “Martha Hill.” Questioned about the discrepancy, defendant’s wife burst into tears, exclaiming that she was in the United States illegally.

Officer Woods told defendant’s wife in English that she could be taken to jail for giving a false name. At that point, defendant stood up and said he would show the cocaine to the police if they did not take his wife and kids to jail. The police agreed and defendant led them to the van. Officer Woods stayed behind.

After a short period of time, Officer Woods went outside and saw defendant and the other police officers near the van. At that point, defendant still had not shown the officers the cocaine. Officer Woods approached defendant and told him that she spoke Spanish. Hearing that, defendant showed the officers a toy which was in the van. Inside the toy the officers found a white power subsequently identified as cocaine.

Defendant was led back into the apartment, placed under arrest and advised in Spanish of his Miranda rights. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). After he indicated that he understood his rights, defendant made an incriminating statement in Spanish which Officer Woods translated and transcribed in English. Defendant began making the statement at 10:15 p.m., he finished it at 10:55 p.m. Thereafter, defendant was taken to jail. At that time, he was given a Spanish version of his Miranda rights to read. After reading that document, defendant signed a waiver of his Miranda rights. The time was 11:30 p.m. Held:

1. Defendant contends that his statement that he would show the police the cocaine and the subsequent statement which was translated and transcribed by Officer Woods were inadmissible in evidence. In this regard, he argues that he was not given a Miranda (Miranda v. Arizona, 384 U. S. 436, 444, supra) warning before making either statement. We disagree.

“It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ [Cit.]” Berkemer v. McCarty, 468 U. S. 420, 440 (104 SC 3138, 82 LE2d 317). Short of that point, Miranda, warnings need not be given. Wilburn v. State, 230 Ga. 675, 679 (2) (198 SE2d 857). As it is said: “For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in some significant way.” Lobdell v. State, 256 Ga. 769, 773 (6) (353 SE2d 799).

In the case sub judice, defendant had not yet been arrested when he stated he would show the police where the cocaine was hidden — he was simply being detained pending the execution of the search warrant. See OCGA § 17-5-28 which provides that an officer executing a search warrant may reasonably “detain” any person in the place being searched to protect himself or to prevent the disposal or concealment of items described in the search warrant. Compare Orozco v. Texas, 394 U. S. 324 (89 SC 1095, 22 LE2d 311), in which a murder suspect’s Fifth Amendment rights were violated when he was questioned in his bedroom by police and was “under arrest” as soon as he gave his name. It follows, in the case sub judice, that it was not incumbent upon the police to advise defendant of his Miranda rights before he made the statement that he would show the police the whereabouts of the cocaine. See generally Humphrey v. State, 174 Ga. App. 165, 166 (2) (329 SE2d 306).

With regard to the incriminating statement which was translated and transcribed by Officer Woods, the evidence is clear (and the trial court found) that after he was arrested defendant was orally given his Miranda rights in Spanish, that he indicated he understood those rights, and that that Miranda warning preceded the statement made by defendant. The mere fact that defendant signed a waiver of his Miranda rights subsequently (after he was taken to jail) did not invalidate the prior oral warning. It cannot be said, therefore, that defendant was not advised of his Miranda rights before making the statement which Officer Woods translated and transcribed.

Defendant also argues that the statements were not made voluntarily, having been induced by the threat that defendant’s wife could be taken to jail and the ultimate promise that she would not be taken to jail. See in this connection OCGA § 24-3-50 which provides: “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.”

Defendant’s statements were not induced by a threat made to defendant’s wife in violation of OCGA § 24-3-50. On the contrary, when Officer Woods informed defendant’s wife that she was subject to arrest for giving a false name, she was merely stating a “truism.” (Having come across two valid driver’s licenses with pictures of defendant’s wife and two different names, the officer did not know which name was legitimate.) Accordingly, OCGA § 24-3-50 is inapplicable. Copeland v. State, 162 Ga. App. 398, 400 (291 SE2d 560). See Robinson v. State, 180 Ga. App. 43, 51 (6) (348 SE2d 662), reversed on other grounds in 256 Ga. 564 (350 SE2d 464).

Decided March 17, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Robert M. Coker, Fran Shoenthal, Assistant District Attorneys, for appellee.

Likewise, it cannot be said that defendant’s statements were induced by hope of benefit in violation of OCGA § 24-3-50. Any benefit to be derived by the hope that defendant’s wife would not be taken to jail was purely collateral. See Patrick v. State, 169 Ga. App. 302 (312 SE2d 385), affirmed in 252 Ga. 509 (314 SE2d 909). It did not contemplate the hope of lighter punishment. See Wesley v. State, 177 Ga. App. 877, 879 (4), 880 (341 SE2d 507). And it did not, therefore, render the statements inadmissible. OCGA § 24-3-51.

The trial court did not err in ruling that the incriminating statements made by defendant were voluntary and admissible. Defendant’s arguments to the contrary are not meritorious.

2. Defendant asserts the motion to suppress should have been granted because the search of the van was not within the curtilage of the apartment. See United States v. Stanley, 597 F2d 866 (4th Cir. 1979). This assertion misses the mark. The police did not search the van under the aegis of a warrant. Rather, they searched the van with the consent of defendant. And that consent was given freely and voluntarily. It cannot be said, therefore, that the search of the van was invalid. Lombardo v. State, 187 Ga. App. 440, 441 (3) (370 SE2d 503); Mayfield v. State, 186 Ga. App. 233 (366 SE2d 836).

Relying upon Radowick v. State, 145 Ga. App. 231 (244 SE2d 346), defendant also argues that the consent to search the van was obtained by coercion because he was detained “an inordinate period of time.” Id. at 242. We disagree. Under the circumstances of this case, we find the duration of the search and defendant’s detention to be reasonable. See OCGA § 17-5-28. After all, cocaine is a substance which is concealed easily. It cannot be said that a two-and-a-half hour search for such a substance in an apartment is unreasonable on its face.

The trial court did not err in denying defendant’s motion to suppress evidence.

Judgment affirmed.

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


text:
    A89A0453.
    BOWDEN et al. v. DEPARTMENT OF TRANSPORTATION.
    (380 SE2d 356)
   McMurray, Presiding Judge.

The Department of Transportation (DOT) brought this condemnation action to acquire a strip of land fronting on Broad Street in Gainesville, Georgia. The land was acquired for the purpose of widening Broad Street. The total acquisition amounted to 1,786 square feet. The DOT appraised the land at $7,150. No issue was made concerning consequential damages or benefits to the remainder.

Condemnees’ land was improved with an old house (which had been divided into apartments). Part of the house was situated on the strip of land which the DOT acquired.

The DOT assigned no value to the house. Condemnees’ expert appraised the house at $21,000. At trial, the DOT took the position that condemnees could have mitigated damages by moving the house before the date of taking. The house was demolished by the DOT after the taking. To that end, it cross-examined condemnees’ witnesses concerning the cost of moving the house. A witness responded that the house could have been moved for $2,000. Condemnees made no objection to that testimony.

At a charge conference, the DOT sought a charge on mitigation of damages. Such a charge was opposed by condemnees who argued that it would put them under too great a burden. Nevertheless, the trial court charged the jury: “[A] condemnee is under a duty to take reasonable steps to minimize his or her damages in accordance with the basic principle that an injured party is always under an obligation to take reasonable steps to minimize his or her damages.” Condemnees took exception to the charge, arguing they had no duty to move the house.

The jury awarded condemnees $9,130 as just and adequate compensation for their land taken. Following the denial of their motion for a new trial, condemnees appealed. Held:

The DOT concedes that the only issue in cases of this kind is the fair market value of the land on the date of taking. See State Hwy. Dept. v. Futch, 109 Ga. App. 741, 742 (2) (137 SE2d 350). After all, a condemnee is not required to mitigate damages unless additional compensation has been put in issue. See Continental Corp. v. Dept. of Transp. 172 Ga. App. 766, 767 (1) (324 SE2d 588); Garber v. Housing Auth. of Atlanta, 123 Ga. App. 29, 31 (3) (179 SE2d 300). And additional compensation was not sought in this case. Thus, the DOT does not take issue with condemnees’ assertion of error. It does insist, however, that the error does not require a reversal. In this regard, the DOT argues that condemnees failed to present the same grounds for reversal in the trial court and on appeal. It also argues that the error was harmless because the evidence was sufficient to enable the jury to arrive independently at the actual value of the land. These arguments do not withstand scrutiny.

Decided March 17, 1989.

Stewart, Melvin & House, Joe K. Telford, for appellants.

John A. Dickerson, Michael J. Bowers, Attorney General, for appellee.

Condemnees insisted in the trial court that the charge was erroneous because they did not have a duty to mitigate damages. They argue the same thing on appeal. Contrary to the DOT’s contention, condemnees do not argue on appeal that evidence of mitigation was lacking.

The charge on mitigation of damages was not harmless. It is quite conceivable that condemnees would have been awarded more compensation for the land (and the house) if the jury had not been instructed erroneously concerning mitigation of damages.

Judgment reversed.

Beasley, J., concurs. Carley, C. J., concurs in the judgment only.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A0490.
    CLIFTON v. THE STATE.
    (380 SE2d 507)
   McMurray, Presiding Judge.

Defendant was indicted for burglary. The evidence adduced at a jury trial showed that at approximately 7:00 in the morning on July 27, 1987, Fay Hurley discovered that a window had been broken at his supermarket place of business and that about 30 cartons of cigarettes had been taken from his store. The next day, Investigator Ron Turner of the Chattooga County Sheriff’s Department received information regarding the burglary which led him and other law enforcement officers to a house in Trion, Georgia. The officers found defendant hiding in the crawl space under the house. Defendant was placed under arrest, advised of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) and later questioned by Investigator Turner. Defendant then admitted that he burglarized Hurley’s supermarket, giving details of how and when he committed the crime. From this and other evidence presented at trial, defendant was found guilty. This appeal followed. Held:

In his sole enumeration of error, defendant contends the trial court erred in allowing Hurley’s testimony regarding statements made to him by defendant during several telephone conversations. Defendant argues that because Hurley could not identify the voice of the caller as that of defendant, the testimony was inadmissible.

Hurley testified that a person identifying himself as defendant called him “about four times” at his place of business, admitted to the commission of the burglary and promised to make restitution if Hurley would drop the charges against defendant. Hurley could not identify the voice of the caller and he could not remember the specific times and dates of the calls. Hurley was only aware that the caller identified himself as defendant and that the caller informed him that he was calling from the “Chattooga County Jail.”

“ ‘Although, generally speaking, proof of telephone conversations may be admissible in evidence when the identity of the person against whom the conversation is sought to be admitted is established by circumstantial as well as direct evidence, (cits.), an identification is not sufficient if identity is established only by what is said in the conversation itself. Price v. State, 208 Ga. 695 (69 SE2d 253) (1952).’ (Emphasis supplied.) Constantino v. State, 243 Ga. 595, 599 (3) (255 SE2d 710) (1979).” Hester v. State, 187 Ga. App. 873, 874 (2) (371 SE2d 684).

In the case sub judice, the State attempted to establish that defendant was the caller by introducing evidence showing that defendant made several telephone calls to Hurley’s place of business while incarcerated at the Chattooga County Jail. The State also entered a letter into evidence, which was purportedly drafted by defendant and addressed to Investigator Turner, in which defendant informed Investigator Turner that he had contacted Hurley regarding restitution for the crime. Assuming, without deciding, that this evidence was properly admitted, it fails to link defendant to the specific calls received by Hurley and is therefore insufficient to authorize a finding that defendant was the caller. See Green, Ga. Law of Evidence (3d ed.), 171-172, § 88. However, we find any error in admitting Hurley’s testimony harmless under the particular facts and circumstances of this case.

“The fact that there is other evidence to convict does not make the error harmless; rather, the test is whether the evidence may have influenced the jury’s verdict. Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (1985).” Hester v. State, 187 Ga. App. 873, 874 (2), supra. In the case sub judice, defendant’s purported telephonic admission to Hurley was cumulative of his incriminating statement to Investigator Turner. See Hawkins v. State, 185 Ga. App. 837 (2) (366 SE2d 222). Further, it is undisputed that defendant’s statement to Investigator Turner was voluntary and that defendant’s incriminating statement included a detailed account of his commission of the crime, including the time and place of the burglary and the articles taken during the crime. Considering this evidence, along with evidence showing that defendant hid from law enforcement officers before his arrest, we do not believe that Hurley’s testimony, that defendant admitted commission of the burglary in telephone conversations, influenced the jury’s verdict. On the contrary, we find this .evidence more than sufficient to enable any rational trier of fact to find that defendant was guilty, beyond a reasonable doubt, of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Carley, C. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur because there was sufficient evidence for the court in its discretion to allow the victim to testify that he received four phone calls from a person who identified himself as defendant. He testified that the caller was the same male each time, that he said he was the person who broke into the store and was calling from the Chattooga County Jail, that he wanted the store owner to drop the charges, and he would give some information on things that were happening at the store.

The victim did not know defendant and could not identify the voice as that of defendant. However, the jail phone logs for four days in late June and July 1 were introduced in evidence after the sheriff’s investigator properly identified them as business records. They showed that defendant made four phone calls to the victim’s store during this period.

The investigator testified in the hearing on admissibility that he had advised defendant that any discussion by defendant about restitution would have to be through the victim and not through himself as the investigator. He also stated that the victim told him that defendant had called him and the nature of the calls. A handwritten letter which had been given to the investigator by another officer at the jail, purportedly from defendant, stated that the writer had called the victim and his “people” about making restitution and that since the victim wanted the investigator to contact him about it, the writer requested this be done and that defendant be informed by the investigator about the results. The victim had also testified he had about two calls from a woman who purported to be defendant’s sister, with respect to restitution for the cigarettes.

There was sufficient circumstantial evidence of identity as to defendant’s having been the caller to the victim, to allow the jury to consider these calls. Reasonable certainty of identity is all that is required. OCGA § 24-4-40 (a). Admissibility of the victim’s testimony regarding the four calls, not the weight of such testimony, is the legal issue. See Price v. State, 159 Ga. App. 662, 664 (3) (284 SE2d 676) (1981).

I do not reach the question of harmless error.

Decided March 17, 1989.

Albert C. Palmour, for appellant.

Ralph Van Pelt, Jr., District Attorney, Susan R. Sarratt, James D. Franklin, Assistant District Attorneys, for appellee.


text:
    A89A0506.
    THE STATE v. MENDOZA.
    (380 SE2d 357)
   McMurray, Presiding Judge.

Via indictment, defendant Mendoza and another were charged with the offense of trafficking in cocaine. In this regard, it was alleged that on January 9, 1988, in Glynn County, Georgia, defendant Mendoza, and another, “did then and there, unlawfully, be in actual possession of or bring into this State 28 grams or more of cocaine or of a substance containing 10 percent or more of Cocaine. ...” (Emphasis supplied.) Defendant obtained counsel, waived formal arraignment and pleaded not guilty. He filed various pre-trial motions at that time. Thereafter, defendant’s counsel withdrew and defendant retained new counsel. Within 10 days, defendant’s new counsel filed a special demurrer. A few weeks later, the superior court entered an order which read: “The Defendant . . . having previously been arraigned and the attorney for the Defendant having been allowed to withdraw from the case and further the Defendant having obtained new counsel, the Court hereby extends the time allowable for the filing of Pre-trial Motions.” Thereafter, the superior court sustained defendant’s special demurrer because the indictment charged in the alternative. See Haley v. State, 124 Ga. 216 (52 SE 159). The State appealed. Held:

1. “The sustaining of a special demurrer, the result of which is either to strike from or add to the material allegations of an indictment, is equivalent to sustaining a general demurrer and quashing the indictment.” Gentry v. State, 63 Ga. App. 275, 276 (11 SE2d 39). It follows that the State was entitled to appeal directly from the sustaining of defendant’s special demurrer. OCGA § 5-7-1 (1). The motion to dismiss the appeal is denied.

2. The State does not take issue with the substance of the superior court’s ruling. Rather, it contends the court erred in sustaining defendant’s special demurrer because it was not filed at the time of arraignment. We disagree.

Rule 31.1 of the Uniform Rules for the Superior Courts provides, in part: “All motions, demurrers, and special pleas shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial.” (Emphasis supplied.) 253 Ga. 853. Pursuant to this rule, the superior court may extend the time for filing a special demurrer by a written order entered prior to trial.

Decided March 17, 1989.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellant.

James A. Chamberlin, Jr., for appellee.

In the case sub judice, the superior court entered such a written order. Thus, it cannot be said the court improperly considered defendant’s special demurrer.

The State argues that, Rule 31.1 notwithstanding, the court erred in considering defendant’s special demurrer because it was filed before the order extending time was entered. We cannot accept this argument. The clear import of the court’s written order extending time was to permit the consideration of defendant’s special demurrer. It would have served no useful purpose to require defendant to file the special demurrer again (following the entry of the order extending time) in order to consider it.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A0373.
    FRAZIER v. MERRITT.
    (380 SE2d 495)
   Banke, Presiding Judge.

The appellant, acting pro se, sued the appellee attorney for alleged legal malpractice arising from his representation of the appellant on certain criminal charges. Contemporaneously with the filing of his answer, the appellee moved to dismiss the complaint on the ground that it was not accompanied by the supporting affidavit of an expert as required by OCGA § 9-11-9.1 (a). The trial court granted the motion, and this appeal followed. Held:

1. The trial court did not err in refusing to appoint counsel to represent the appellant in the action. “[T]his being a civil proceeding, [the appellant], though indigent, was not entitled to have . . . appointed counsel. . . .” Crawford v. Linahan, 243 Ga. 161, 165 (253 SE2d 171) (1979).

2. The trial court did not err in granting the appellee’s motion to dismiss. Accord Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988). Compare Glaser v. Meck, 258 Ga. 468 (369 SE2d 912) (1988) (holding that the defendant was estopped from moving to dismiss a malpractice action based on the failure to file the required affidavit where he waited until after the statute of limitation had run to assert the defect). The appellant’s constitutional attack upon OCGA § 9-11-9.1 presents nothing for review, inasmuch as he has failed to specify in what respect the statute is deemed to be violative of the constitution. See DeKalb County v. Post Properties, 245 Ga. 214 (1), 218 (263 SE2d 905) (1980).

Decided March 8, 1989

Rehearing denied March 20, 1989.

James Frazier, pro se.

Lorenzo C. Merritt, Michael J. Classens, Francis W. Allen, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    77110.
    77111.
    77112.
    CREDITHRIFT OF AMERICA, INC. v. WHITLEY et al. BANNER FORD, INC. v. WHITLEY et al. OLD REPUBLIC LIFE INSURANCE COMPANY v. WHITLEY et al.
    (380 SE2d 489)
   Sognier, Judge.

Forda Lee Whitley and Carolyn Whitley brought suit against Banner Ford, Inc., Credithrift of America, Inc., and Old Republic Life Insurance Company for fraud and violation of the Georgia Fair Business Practices Act, OCGA § 10-1-390 et seq. (FBPA) and truth-in-lending laws, in regard to the insurance they purchased when they bought an automobile from Banner Ford. The Whitleys sought recovery of medical expenses and lost wages incurred by Carolyn Whitley and the Whitleys’ son, Christopher, in an accident involving the automobile, as well as exemplary damages, attorney fees, recovery of the loss on the automobile under the mechanical breakdown coverage purchased by them, and class certification of their action. The trial court granted the defendants’ motion for summary judgment as to all claims by the Whitleys’ son and as to the truth-in-lending claim. The trial court denied the defendants’ motion as to all other matters and we granted their applications for interlocutory appeal.

The installment sales contract executed by appellees and appellant Banner Ford, which Banner Ford then assigned to appellant Credithrift, contained a printed block titled “Insurance.” Underneath that title was the statement: “Credit Life and Credit Accident and Health Insurance are not required to obtain credit, and will not be provided unless you sign and agree to pay the additional cost. The cost for this insurance for the term of this contract is:

“Credit Life $_ [ ] I want Credit Life Insurance
“Joint Credit Life $_ [ ] We want Joint Credit Life Insurance
“Accident & Health $_ [ ] I want Accident & Health Insurance”

Property and automobile insurance complete the listing.

The contract executed by appellees was marked “N/A” in the space for “Credit Life,” and with a dollar figure and an “X” in the box (represented by brackets above) by the space for “Joint Credit Life” and a dollar figure and an “X” in the box by the space for “Accident & Health.” The other spaces are marked “N/A” and the spaces for signatures at the bottom of the section are blank. In the section marked “Itemization of Amount Financed,” directly beside the “Insurance” section, the contract shows under the section “amounts paid to others on your behalf” that appellees were purchasing joint credit life insurance and disability insurance. The contract is signed by Forda L. Whitley as “Buyer” and Carolyn Whitley as “Co-Buyer.” Although neither appellee signed in the spaces in the blocked insurance section, appellees do not assert that they did not purchase this insurance.

1. Appellees argue that they are entitled to recover the damages sought because appellants misrepresented to them (a) the nature of the coverage purchased, (b) the necessity for the purchase of the insurance, and (c) the persons covered by the insurance.

(a) We do not agree with appellees that a question of fact exists regarding the nature of the coverage they purchased. Although appellees argue they did not realize they were purchasing credit accident and health insurance and that statements by Banner Ford’s employee led them to believe they were purchasing regular disability insurance (or that they were never informed they were not purchasing regular disability insurance), no ambiguity exists in the language set forth above that the coverage purchased was credit accident and health insurance. Appellees do not allege they were prevented by any of the appellants from reading the contract they signed, see Delta Chevrolet v. Wells, 187 Ga. App. 694, 695 (1) (371 SE2d 250) (1988), nor does the record indicate that any relationship other than an arms-length business relationship existed between appellees and appellants. Compare OCGA § 23-2-58; Heidt v. Potamkin Chrysler-Plymouth, 181 Ga. App. 903, 904-905 (354 SE2d 440) (1987). “ ‘ “(I)n the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. [Cit.]” [Cit.]’ [Cit.]” Carr v. Nodvin, 178 Ga. App. 228, 233 (4) (342 SE2d 698) (1986). See also Delta Chevrolet, supra.

As to appellees’ FBPA claim, “ ‘(a) claimant who alleges the FBPA was violated as the result of a misrepresentation must demonstrate that he was injured as the result of the reliance upon the alleged misrepresentation. Therefore, under (OCGA § 10-1-399) when the alleged violation of the FBPA is a misrepresentation, the claimant is not entitled to recover if he had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so. [Cit.]’ [Cit.] ‘ “The FBPA is no panacea for the congenital ills of the marketplace. . . .” [Cit.] The Act does not instantly convert every alleged breach of contract into a violation of the FBPA.’ [Cit.] From our conclusion that the appellees alleged no artifice or fraud which would have prevented them from reading the [contract] prior to signing [it], it necessarily follows that they have alleged no misrepresentations which would give rise to a cause of action for damages for violation of the FBPA.” Delta Chevrolet, supra at 696 (2). The cases cited by appellees for the proposition that coverage cannot be excluded when the policy is not timely delivered pursuant to OCGA § 33-31-7 (c), see Robinson v. Volunteer &c. Ins. Co., 175 Ga. App. 292, 294 (333 SE2d 171) (1985); Investor’s Nat. Life Ins. Co. v. Norsworthy, 160 Ga. App. 340, 341 (287 SE2d 66) (1981), are not applicable here where coverage was denied not because the insureds’ claims were specifically excepted from the general coverage provided by the policy but because the policy purchased provides an entirely different type of general coverage.

Therefore, the trial court erred by denying appellants’ motion for summary judgment on appellees’ claims based on the nature of the coverage provided by the policy. See Delta Chevrolet, supra.

(b) Appellees allege that they are entitled to recover damages because appellants fraudulently misrepresented to them (and also violated the FBPA by telling them) that if appellees did not purchase the recommended insurance, they would not be able to purchase the automobile. In their complaint, appellees stated that at the time they entered into the contract “they were advised by [appellant Banner Ford] that although they were not required by law to purchase certain insurance referenced in the Contract, as a practical matter they would probably not be approved for the loan unless the insurance was purchased.” Thus, appellees have admitted that they knew they were under no legal obligation to purchase the insurance. Credit insurance covering a debtor’s life and health are legally recognized forms of insurance, OCGA § 33-31-1 et seq., and creditors have an interest in their debtors which can be insured by means of such insurance. See Vulcan Life &c. Ins. Co. v. United Banking Co., 118 Ga. App. 36 (2) (162 SE2d 798) (1968). Appellees cite no authority under which appellants were legally required to extend credit to appellees upon appellees’ refusal to purchase the credit insurance appellants deemed necessary to insure their loan. Nor have appellees produced any evidence of record that the statement made to them by Banner Ford as to the “practical” and “probable” result of their nonpurchase of the insurance, i.e., disapproval of the loan, was false or inaccurate in any manner. Although the alleged statement, construing the inferences in appellees’ favor, might have intimated that appellees would not get loan approval unless they purchased the credit insurance offered by appellants, the contract provided in capital letters in the insurance block that “you may choose the person through which this insurance is . . . obtained.”

“Essential elements of proof in an action for fraud in Georgia include a false representation by the defendant on which the plaintiff relied. [Cit.] The proof offered by [appellees] in this case did not make such a showing.” Gilder v. Davis, 187 Ga. App. 462 (370 SE2d 650) (1988). Even if the statement meant appellees had to purchase appellants’ credit insurance, such a statement, though unfair, was not shown to be a misrepresentation of the truth to constitute fraud, and although, as violative of OCGA § 33-31-11, it might constitute an unfair business practice in violation of the FBPA, appellees had “ ‘equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so,’ ” Delta Chevrolet, supra at 696 (2), and thus under that case and the cases cited above appellees cannot sustain this claim.

Therefore, the trial court erred by denying appellants’ motion for summary judgment insofar as appellees’ claim based on the necessity of the purchase of the insurance is concerned.

(c) Appellees do not allege appellants actively misrepresented to them that both appellees were covered by the policy. Rather, appellees assert that the failure to inform appellees that the “I” in the credit disability insurance section of the contract referred solely to Mr. Whitley so that coverage on the credit disability insurance was limited to him amounted to fraud and a violation of the FBPA because appellants’ action constituted concealment of the intrinsic quality of the insurance policy.

“Concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded, or where the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover. [Cit.]” Southern v. Floyd, 89 Ga. App. 602 (2) (80 SE2d 490) (1954); see also Woodall v. Orkin Exterminating Co., 175 Ga. App. 83, 84 (332 SE2d 173) (1985). We agree entirely with appellees’ argument that an ambiguity exists on the face of the contract they executed, since the contract does not reflect who was covered by the credit disability insurance and, both appellees being purchasers of the automobile, the “I” referenced in the insurance block cannot be said to refer exclusively to either appellee. However, even assuming, arguendo, that such an ambiguity could amount to a concealed material fact in that appellees did not know that appellants, in reliance on the master copy of the policy, would claim the credit disability coverage was limited to Mr. Whitley, the record is uncontroverted that appellees made no inquiries about this apparent ambiguity nor took any action whatsoever to clarify the matter at the time they read and executed the contract in an arms-length business transaction. See Nicholson v. Harris, 179 Ga. App. 35, 37 (3) (345 SE2d 63) (1986). While the fact that appellees did not have access to the master copy of the insurance policy until after the loss occurred might arguably constitute a contractual defense to the applicability of the provision, see Norsworthy, supra; see also Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 584-585 (2) (227 SE2d 77) (1976), the absence of the master copy did not prevent appellees from exercising proper diligence at the time they executed the contract by inquiring into the contractual ambiguity.

Although questions of fraud, the truth and materiality of representations made by a seller, and whether the buyer could have protected himsélf by the exercise of proper diligence are usually questions for the jury, except in plain and indisputable cases, see Del Mazo v. Sanchez, 186 Ga. App. 120, 127-128 (366 SE2d 333) (1988), in the absence of any special relationship of trust or other unusual circumstances shown by the evidence of record which would have prevented or excused appellees of their duty to exercise ordinary diligence, the trial court erred by denying appellants’ motion for summary judgment on this point both as to fraud, Nicholson, supra, and as to the FBPA. See Delta Chevrolet, supra at 696 (2).

2. Appellees alleged in their complaint that they purchased mechanical breakdown coverage and included in their prayer for relief that they recover from appellants the amount of the loss sustained on the automobile under this coverage. The record contains the “Ford Extended Service Plan” signed by Mr. Whitley which indicates that the coverage was provided by Ford Motor Company. The plan provides that it is a service contract and specifically excluded “[r]epairs needed because of damage . . . from . . . accident(s) . . . .” Assuming, arguendo, that appellees could assert their cause of action against Banner Ford, the plain and unambiguous language of the contract bars appellees from collecting collision damages. Appellants were thus entitled to summary judgment on this issue as well. See generally First Capital &c. v. Pennington, 186 Ga. App. 617, 619 (368 SE2d 165) (1988).

Judgments reversed.

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

Decided March 8, 1989

Rehearing denied March 21, 1989

Arnold & Hopkins, Alton H. Hopkins, for appellant (case no. 77110).

Wildman, Harrold, Allen, Dixon & Branch, Alfred B. Adams III, Laura E. Stevenson, for appellant (case no. 77111).

Hansell & Post, W. Rhett Tanner, Michael J. Templeman, David P. Baum, for appellant (case no. 77112).

Ford & Haley, James L. Ford, David C. Cole, for appellees.


author: Pope, Judge.

text:
    77262.
    THE STATE v. HIGHSMITH.
    (380 SE2d 272)
   Pope, Judge.

The State appeals the trial court’s grant of appellee’s motion in limine to suppress the results of a blood-alcohol test. Appellee was involved in a motorcycle-car collision in which he suffered serious injuries, including a partially severed foot. At the scene of the accident, the investigating officer detected an odor of alcohol on appellee’s breath. An ambulance arrived at the scene and appellee was taken to the hospital. The investigating officer remained behind to complete his investigation. He placed the other driver under arrest for DUI and took him to the jail for booking. Approximately thirty minutes later, the officer went to the hospital where he read appellee his implied consent rights and then requested that appellee submit to a blood test. The officer testified that appellee appeared incoherent and that he read appellee the implied consent rights again and again requested that he submit to the blood test. According to the officer, appellee expressed his reluctance to have any more needles stuck in him after the first request and refused the test. After reassurance from the officer, appellee agreed to submit to the test, and blood was taken.

Appellee testified to a different version of events. According to appellee, the officer made three separate requests for a blood test. Appellee testified that he refused the first request by telling the officer to leave him alone, that he was in enough pain. He refused the second request saying he did not want any unnecessary needles. Upon the third request, appellee testified, he consented to get rid of the officer. Appellee further testified that he originally refused the test because he was scheduled to lose his license for five years the next day as an habitual violator and that an automatic six-month suspension as a result of refusing the test would not matter to him.

Appellee, through counsel, took the position that his consent to the test was not freely and voluntarily given, and therefore the evidence should be suppressed. The trial court agreed, applying a “totality of circumstances” test as would be proper in determining whether a confession is freely and voluntarily given, and granted the motion to suppress. Held:

We reverse. “In Georgia, the state may constitutionally take a blood sample from a defendant without his consent. Strong v. State, 231 Ga. 514 (202 SE2d 428) (1973). Our ‘Implied Consent Statute’ (OCGA § 40-5-55) thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. OCGA § 40-6-392 and OCGA § 40-5-55 grant, rather than deny, a right to a defendant. We agree with the United States Supreme Court’s view that neither choice afforded a defendant is ‘so painful, dangerous, or severe, or so violative of religious beliefs’ that no choice actually exists. South Dakota v. Neville, 459 U. S. 553 (103 SC 916, 74 LE2d 748) (1983). We thus find no compulsion on behalf of the state and no violation of due process or OCGA § 24-9-20. Wessels v. State, 169 Ga. App. 246 (312 SE2d 361) (1983).” (Indention and footnote omitted.) Allen v. State, 254 Ga. 433, 434 (330 SE2d 588) (1985). “[A] criminal defendant’s refusal to submit to the test i . . is not the product of coercion, compulsion or force; rather it is the choice between options provided for by statute.” Wessels v. State, 169 Ga. App. 246, 247 (312 SE2d 361) (1983).

Because the choice afforded a suspect under the Implied Consent Statute does not rise to the level of constitutional self-incrimination, it is improper for a court to apply the “totality of circumstances” test. The issues to be determined are simply whether the officer told the suspect of his implied consent rights in a timely fashion (Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983); Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986)), and whether the suspect revoked the implied consent. Allen, supra at 434.

As with any procedure, the court must evaluate the officer’s actions to determine if the officer acted reasonably in the situation and whether the procedure was applied in a fair manner. We reject appellee’s argument that once a suspect indicates to an officer that he refuses to submit to a blood-alcohol test, the matter is closed. Such a rigid rule would not be consistent with the approach our courts have followed in applying the statute in the cases set out earlier in this opinion.

It is clear from the record in this case that the officer did not act unreasonably. The initial refusal was equivocal and apparently based upon appellee’s desire to avoid further pain. When assured by the officer that the test would be quick and relatively painless, appellee agreed to the test. The officer’s actions were reasonable and the results of the tests should be admitted in evidence.

Decided February 1, 1989

Rehearing denied March 21, 1989

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellant.

James B. Ashby, for appellee.

Judgment reversed.

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


text:
    77297.
    UNITED PARCEL SERVICE et al. v. OUTLAW.
    (380 SE2d 310)
   Carley, Chief Judge.

On September 26, 1985, appellee-employee received a blow to his right foot in an on-the-job accident. He received workers’ compensation in the form of temporary total disability income benefits until he returned to work on February 10, 1986. Because the accident had necessitated the amputation of three of appellee’s toes, appellants-employer/insurer commenced the payment of permanent partial disability income benefits to him. These benefits were calculated by appellants on the basis of the actual loss of appellee’s three amputated toes. See OCGA § 34-9-263 (c) (11).

At appellee’s request, a hearing was held in April of 1987 to determine “whether or not [he was] entitled to any additional permanent partial disability income benefits [under OCGA] § 34-9-263.” The Administrative Law Judge (ALJ) found that appellee had suffered no “actual permanent partial impairment to his right foot or leg, besides the loss of his second, third and fourth toes[,] as a result of his September 26, 1985 injury.” Under such circumstances, the ALJ concluded that appellee was “entitled to be paid permanent partial disability benefits equal to the greater of the number of weeks for his actual lost membersf, i.e., his three toes,] pr the referred loss to other members[, i.e., his right foot or right leg,] caused by the actual loss of his toes, but not both.” Because the benefits payable for the actual loss of appellee’s three toes would be greater than the benefits payable for either the 15 percent permanent partial disability found to exist in his right leg as the result of the loss of the toes or the 25 percent permanent partial disability found to exist in his right foot as the result of the loss of the toes, the ALJ concluded that appellee’s “permanent partial disability income benefits have been correctly calculated by [appellants] and that [appellee] is not entitled to any additional permanent partial disability income benefits as a result of his September 26, 1985 injury.”

Appellee appealed to the Full Board. After a de novo review, the Full Board adopted the award of the ALJ as its own. Appellee then appealed to the superior court. The superior court remanded the case for the Full Board’s determination of “whether or not [appellee] suffered an injury to his foot as well as to his toes.” Appellants then applied to this court for a discretionary appeal from the superior court’s order. This appeal is the result of the grant of appellants’ application.

1. “As a matter of law, a claimant under the Georgia Workers’ Compensation Act ([cit.]) is entitled to benefits for permanent partial disability for each specified individual member injured in a work-related accident. [Cits.]” (Emphasis supplied.) N. G. Gilbert Corp. v. Cash, 181 Ga. App. 775, 776 (353 SE2d 840) (1987). It is undisputed, that appellee was injured to the extent of losing three toes as the result of his work-related accident and that he is entitled to benefits for that injury. The issue presented for resolution is whether appellee is also entitled to additional compensation for any permanent partial disability of his foot or his leg. Although the superior court remanded the case for the Full Board to determine whether appellee had suffered a compensable injury to his foot, it is clear that the Full Board has already addressed this factual question. The award of the ALJ, as adopted by the Full Board, specifically found that appellee had incurred no “actual permanent partial impairment of his right foot or leg, besides the loss of his second, third and fourth toes as a result of his September 26, 1985 injury.” (Emphasis supplied.) Accordingly, the superior court erred in remanding the case. The decisive issue is not the failure of the Full Board to make a finding relative to the separate compensability of appellee’s foot or leg but the sufficiency of the evidence to support the finding which was actually made by the Full Board as to noncompensability for those specific members.

In appellee’s medical records, his treating physician had noted the following permanent disability rating: “100% 2nd, 3rd, 4th toes, rt. foot. 15% right lower extremity.” (Emphasis supplied.) Appellee urges that, in its emphasized portion, his medical record demands a finding of separate compensability for the 15 percent permanent partial disability found to exist as to his “right lower extremity.” However, the medical records themselves do not affirmatively show that the 15 percent loss of use of appellee’s “right lower extremity” is the result of any injury to the “right lower extremity” except that that occasioned by the actual loss of his toes. Compare General Accident &c. Corp. v. Beatty, 45 Ga. App. 104-105 (1) (163 SE 302) (1932), holding that when an employee suffers, “in addition to the loss of the two toes, a partial disability to the foot from injury to the ligaments and muscles that controlled the lost toes, and also an injury to the instep of the foot, he was, in addition to the compensation awarded for the loss of the toes, entitled to compensation for a partial loss of the use of the foot. ...” (Emphasis supplied.) There is absolutely nothing in the record which would demand a finding that the 15 percent permanent disability rating relative to appellee’s “right lower extremity” was not, as the Full Board interpreted it, merely the physician’s .determination of the equivalent percentage of permanent disability to appellee’s “right lower extremity” resulting solely from the amputation of appellee’s toes. See Holcombe v. Fireman’s Fund Ins. Co., 102 Ga. App. 587 (116 SE2d 891) (1960). “The [foot] includes the [toes], and it is of course true that an injury to a [toe] is an injury to the [foot]; but the law provides that if the [foot] is injured as a result of the injury to a [toe], and in no other way, the injury to the [foot] shall be compensated for in a certain and definite manner, namely, a certain amount for the loss of the [toe], or the use thereof, or for partial loss, or partial loss of use.” (Emphasis supplied.) Travelers Ins. Co. v. Colvard, 70 Ga. App. 257, 258 (28 SE2d 317) (1943). “The employee would be entitled to the additional compensation for a partial loss of the use of his foot. . . if the loss of the toes was not a contributing cause of the partial loss of the use of his foot.” (Emphasis supplied.) General Accident &c. Corp. v. Beatty, 174 Ga. 314 (lb) (162 SE 668) (1932). Accordingly, if, as it appears, appellee suffered the equivalent of a 15 percent permanent partial disability of his “right lower extremity” as a whole solely as the result of the 100 percent loss of three of his toes, the Full Board was correct in its award to appellee of the greater compensation payable for the actual loss of the toes. “[W]here there are specific losses as listed in [OCGA § 34-9-263], the amounts payable for the bodily members as listed in the schedule there [in] must be awarded as a minimum, and ... an estimation of percentage of partial loss of use of the [foot] as a whole, caused by amputations of three [toes] . . . cannot be applied to the partial loss of use of the [foot] as a whole so as to give the claimant a lesser award.” (Emphasis in original.) Holcombe v. Fireman’s Fund Ins. Co., supra at 590-591 (On Motion For Rehearing). See also Continental Cas. Co. v. Castleberry, 147 Ga. App. 684 (250 SE2d 19) (1978).

Appellee also urges that his own testimony would demand a finding of separate compensability for the 25 percent permanent partial disability found to exist as to his foot. However, the most that appellee’s testimony shows is his opinion as to the overall percentage of permanent partial disability of his foot as a whole resulting from his work-related accident. See Nance v. Argonaut Ins. Co., 143 Ga. App. 537 (239 SE2d 156) (1977). Nothing in appellee’s testimony would demand a finding that such permanent partial disability as exists in his foot is the proximate result of any injurious factor other than the loss of his toes. Compare General Accident &c. Corp. v. Beatty, 45 Ga. App. 104 (1), supra. Accordingly, based upon appellee’s testimony, the Full Board was authorized to find that he had suffered a 25 percent permanent partial disability to his foot as a whole as the result of his work-related accident. However, if, solely as the result of the 100 percent loss of three of his toes, appellee suffered the equivalent of a 25 percent permanent partial disability of his foot, the Full Board was correct in its award to appellee of the greater compensation payable for the actual loss of the toes. Holcombe v. Fireman’s Fund Ins. Co., supra.

Decided March 7, 1989

Rehearing denied March 21, 1989.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, George T. Talley, for appellants.

F. Leonard Morris, for appellee.

2. The evidence did not demand a finding that the 15 percent disability found to exist as to appellee’s “right lower extremity” or the 25 percent disability found to exist as to appellee’s right foot is the result of anything other than the 100 percent loss of his three toes. Under these circumstances, the Full Board was authorized to find that appellee was not entitled to separate additional compensation for his foot or his leg and to award compensation based solely on the loss of the toes. See Holcombe v. Fireman’s Fund Ins. Co., supra. Compare N. G. Gilbert Corp. v. Cash, supra. The superior court erred in failing to affirm the award.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.


text:
    77587.
    LEDBETTER et al. v. THE STATE.
    (380 SE2d 313)
   Sognier, Judge.

Danny William Ledbetter and Patricia Fay Ledbetter appeal their convictions on three counts of violation of the Georgia Controlled Substances Act.

1. In two enumerations of error appellants contend the trial court should have granted their motion to suppress because the affidavit used to obtain the search warrant for their residence contained intentionally false statements. The record reveals that Investigator Jonathan K. Taylor of the narcotics section of the Gwinnett County Police Department applied for the search warrant, and in support therefor presented his affidavit regarding information received from a confidential informant who allegedly had purchased cocaine from a man later identified as appellant Danny Ledbetter. In the affidavit, Investigator Taylor stated that he had spoken “with a confidential and reliable informant” (emphasis supplied), but then used the plural pronouns of “they” and “their” elsewhere in the affidavit to describe the informant. At the hearing on appellants’ motion to suppress, Investigator Taylor testified that he had only one informant, and that he used the plural pronouns to conceal the informant’s identity by masking the gender of the informant. Appellants contend that this deliberate use of plural pronouns constituted a false statement knowingly and intentionally made, and that under the authority of Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), the perjured testimony must be excised and the search warrant voided.

There is a presumption of validity with respect to an affidavit supporting a search warrant. Ross v. State, 169 Ga. App. 655, 657 (314 SE2d 674) (1984). “Franks provides that if the defendants] [make] a substantial showing of intentional falsity, the trial court must conduct a hearing on the issue. If, at that hearing, the allegations of falsity are established by a preponderance of the evidence, and if the affidavit is not sufficient without the false statement, the warrant is void. [Cit.] That is not the required result in the present case.” Wells v. State, 180 Ga. App. 133 (1) (348 SE2d 681) (1986). We agree with the trial court that the affidavit clearly indicated there was only one informant, and to the extent any confusion was created by the use of plural pronouns, that circumstance does not rise to the level of deliberate falsehood or reckless disregard for the truth. See id. Accordingly, we find no reversible error in the denial of the motion to suppress.

2. Appellants also argue that Investigator Taylor’s affidavit was defective because the informant never identified the person who sold the cocaine, whom he knew only as “Buster,” as appellant Danny Ledbetter, and that Investigator Taylor’s independent investigation of “Buster’s” identity was inadequate. We do not agree. “In making a determination as to probable cause pursuant to the ‘totality of the circumstances’ test. . . [cit.], ‘ “(t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . .” [Cits.]’ [Cit.]” Mize v. State, 173 Ga. App. 327, 328 (326 SE2d 782) (1985).

As to the denomination of appéllant as “Buster,” even if that nickname was incorrect, it was mere surplusage in an otherwise reliable affidavit, which provided appellant’s correct address and the subsequently verified information that contraband was located there. Regarding the adequacy of Investigator Taylor’s verification of “Buster’s” identity, Investigator Taylor’s affidavit gave reasons for his belief in the informant’s reliability, stated specifically how the informant obtained his knowledge, and established that Investigator Taylor took steps to verify the information provided by the informant. “Since the affidavit was sufficient to support the magistrate’s finding of probable cause without regard to the surplus information concerning the [nickname of ‘Buster’], we hold that the trial court did not err in denying appellants’] motion to suppress the evidence obtained pursuant to the search warrant. [Cit.] ” Id. at 329 (1).

Decided March 7, 1989

Rehearing denied March 21, 1989

Billy L. Spruell, for appellants.

Thomas C. Lawler III, District Attorney, Allyson F. Baillis, Assistant District Attorney, for appellee.

Judgment affirmed.

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