text:
    A89A1288, A89A1798.
    WILSON et al. v. LEDBETTER; and vice versa.
    (389 SE2d 771)
   Beasley, Judge.

This case involved the exclusion of certain government benefits (Social Security and Veterans) from the class of “child support payments” which are subject to being disregarded (up to $50) as income when computing the eligibility of a person for other government benefits (Aid to Families with Dependent Children).

Oletha Wilson, acting in her own right and on behalf of others similarly situated, brought an action against James Ledbetter in his capacity as Commissioner of the Department of Human Resources. Wilson and the class she sought to represent are eligible for and recipients of Aid to Families with Dependent Children, a joint federal-state program which provides cash assistance to needy families. In October 1984, as a result of changes in the federal law, grants were recalculated to include income of all stepsiblings in a family, the “sibling deeming” rule. 42 USC § 602 (a) (38). This income had previously been excludable. To partially mitigate the effects of the “sibling deeming” rule, the law was also changed to provide that the first $50 of any child support paid in any given month be disregarded in calculating the amount of grant. 42 USC § 602 (a) (8) (A) (vi) and 42 USC § 657 (b) (1).

DHR took the position that Social Security or Veterans benefits paid to dependents would not be considered child support within the meaning of the $50 child support disregard. Wilson, a recipient of AFDC benefits on behalf of her minor children, became the subject of a routine redetermination review in December 1984. She reported receipt of Social Security disability benefits for a minor member of her family who was a beneficiary of his disabled father. As a result her AFDC budget was modified and her benefits reduced. She requested a hearing and a date was set, but she subsequently cancelled it, causing DHR’s hearing unit to dismiss the request in February 1985.

On October 16, 1986, in Ledbetter v. Foster, 180 Ga. App. 696 (350 SE2d 31) (1986), this court determined that Social Security benefits did constitute child support within the meaning of the relevant enactments.

Apparently because of the belief that federal funds would not be available for reimbursement of payments made pursuant to the Foster ruling, an amendment to OCGA § 49-4-6 (b) was enacted and became effective April 17, 1987 (Ga. L. 1987, pp. 1435, 1436). It provided that the $50 child support disregard would not be applied to Social Security benefits paid under the OASDI program, to Veterans benefits paid to the family, or to any other benefits not assignable to the State pursuant to Title IV of the Social Security Act.

In June 1987 Wilson filed a class action against DHR for “All AFDC recipients, one or more of whose children received, between October 16, 1986 [the date of the appellate decision], and April 17, 1987 [the effective date of the statute], Social Security or Veterans Administration dependents’ benefits based on disability of a parent which benefits were not treated as child support by the defendant for purposes of determining AFDC eligibility or grant amount.” The complaint as amended contained three counts. The first challenged the 1987 Act on the ground that it violated 1983 Ga. Const., Art. Ill, Sec. V, Par. Ill, because it referred to more than one subject matter. The second contended that the 1987 Act was enacted in violation of the Fiscal Note Act. The third sought recovery for AFDC benefits which plaintiffs should have received for the period between the Foster decision and the effective date of the amendment to OCGA § 49-4-6.

The trial court certified Wilson’s proposed class and after discovery both sides moved for summary judgment. At the conclusion of the hearing, DHR’s motion as to counts one (the constitutional issue) and two (violation of the Fiscal Note Act) was granted, as was Wilson’s motion as to count three (recovery of benefits for the six-month period). DHR appealed to the Supreme Court from the grant of summary judgment in favor of Wilson on count three, but because the constitutional issue was not raised on the appellate level, its appeal was transferred to this court and became Case No. A89Á1798. Wilson’s appeal, Case No. A89A1288, arises from the holding that OCGA § 49-4-6 (b) is not in violation of the Fiscal Note Act.

Case No. A89A1798

1. Among the several enumerations of error in DHR’s appeal, crucial is its contention that Wilson failed to exhaust available administrative remedies. This is especially significant because a determination must be made in the context of a class action involving over 1,700 people. Among the requirements of a class action are numerosity of the potential class action members, the ability of plaintiff to represent the members, and whether common questions of law and fact predominate over individual issues. Ford Motor Credit Co. v. London, 175 Ga. App. 33 (332 SE2d 345) (1985); Stevens v. Thomas, 257 Ga. 645, 648 (2) (361 SE2d 800) (1987); Ga. Investment Co. v. Norman, 229 Ga. 160 (190 SE2d 48) (1972). If exhaustion of administrative remedies was required, it would be an essential factor in describing members of the class and also in ascertaining whether Wilson could represent the class.

DHR cites its own regulations and the Administrative Procedure Act as establishing a thorough system for hearings and administrative review of those hearings before resort to the courts. See OCGA §§ 49-4-13 and 50-13-19. See Rules & Regulations of the State of Ga., 290-1-1.05, .14, .22 & .23. DHR points out that it has long been the rule in Georgia that a litigant must exhaust administrative remedies prior to seeking judicial review of an agency decision, even if constitutional issues are raised, citing Dept. of Public Safety v. MacLafferty, 230 Ga. 22 (195 SE2d 748) (1973), and Dept. of Public Safety v. Foreman, 130 Ga. App. 71 (202 SE2d 196) (1973). Moreover, it points out, even use of a declaratory judgment proceeding under OCGA § 9-4-2 to avoid administrative review is not favored. See George v. Dept. of Natural Resources, 250 Ga. 491 (299 SE2d 556) (1983), which also reaffirms the general principles requiring resort to administrative channels first.

Exhaustion of administrative remedies prior to review is contained in OCGA § 50-13-19 (a), but it also provides that it does not limit utilization of or the scope of judicial review available under other means of review, relief, etc. Wilson argues that because of the entrenched nature of DHR’s policy with reference to the $50 disregard it would have been futile to pursue administrative relief, citing Rules & Regulations 290-1-1-.13: “A hearing need not be granted when either State or Federal Law require automatic grant adjustments for classes of recipients unless the reason for an individual appeal is incorrect grant computation. In such cases when incorrect grant computation is not involved, the Hearing Officer shall deny the request.” Rules & Regulations 290-1-1-.15 (b) state that DHR may deny or dismiss a request for a hearing when “the sole issue is one of State or Federal Law requiring automatic grant adjustments for classes of recipients.”

Two important principles are relevant to a consideration of Wilson’s arguments. 1) “ ‘Decisions to the effect that a failure to invoke administrative remedies . . . preclude(s) or render(s) premature a resort to the courts (are) based upon statutes which by express terms or necessary implication (give) to the administrative board exclusive jurisdiction or (which make) the exhaustion of administrative remedies a condition precedent to judicial action.’ ” Hunnicutt v. Ga. Power Co., 168 Ga. App. 525, 526 (1) (309 SE2d 862) (1983) (emphasis in original.), quoting from Evans v. Louisville & Nashville R. Co., 191 Ga. 395, 401 (12 SE2d 611) (1940). 2) “A litigant is not required to exhaust an optional administrative process before seeking redress to the courts.” Motor Fin. Co. v. Harris, 150 Ga. App. 762, 765 (4) (258 SE2d 628) (1979). Granted that an unexhausted administrative remedy does not, in itself, afford an absolute defense to the institution of an action, the concept of futility in seeking redress through the administrative process is something more than the mere inability to secure a favorable ruling. “[0]nly in rare instances will the requirement of exhaustion be relaxed. This will be the case only when the administrative remedy exacts a price which causes it to be no remedy at all.” Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226) (1986). Examples given in Moss are an exorbitant fee as a prerequisite to a remedy or if the remedy is available only upon exposure to loss of livelihood.

No exorbitant price was exacted for Wilson to follow the applicable administrative procedure. There was little hope for affirmative relief, but there was no threatening reprisal either. This was not a rare instance for the relaxation of the exhaustion rule. See Rybert & Co. v. City of Atlanta, 258 Ga. 347, 350 (4) (368 SE2d 739) (1988); Moss, supra; George, supra; Foreman, supra. As first noted, this is a class action involving over 1,700 individuals and, because the requirement of exhaustion is rarely relaxed, this court is loathe to grant an exception of such far reaching consequences. Moreover, a class comprised solely of those who had exhausted their administrative remedies, which plaintiff is not a member of, might well be a viable one; we make no ruling on such proposition.

Summary judgment should have been granted to DHR because of the bypass of the administrative process.

Case No. A89A1288

2. Exhaustion of administrative remedies may also be applicable to Wilson’s appeal but no such contention is made. For that reason and because the validity of the 1987 Act is crucial to the parties so that a determination as to its continuing viability would effectively “turn on the light” for all concerned, we consider the merits.

Wilson contends that the 1987 amendment to OCGA § 49-4-6 is invalid because it was passed in violation of OCGA § 28-5-42, the Fiscal Note Act. Sub-section (a) of that code section mandates that “any bill having a significant impact on the anticipated revenue or expenditure level of any state department ... or other state agency must be introduced no later than the twentieth day of any session.” Subsection (b) further provides if any bill is introduced after the prescribed time, it shall not be considered in any manner by either the Senate or the House. Wilson notes the legislative journal reveals that the 1987 Act was introduced 25 days after the beginning of the session.

A long procession of cases, starting with DeLoach v. Newton, 134 Ga. 739, 742 (68 SE 708) (1910), has pronounced the rule expressed well in Atlantic C. L. R. Co. v. State, 135 Ga. 545 (1) (69 SE 725) (1910): “A duly enrolled act, properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with constitutional requirements; and it is not permissible to show by the legislative journals, or other records, that it did not receive on its passage a majority vote of all the members elected to each house, or that there was any irregularity in its enactment.” See Whitley v. State, 134 Ga. 758, 776 (4) (68 SE 716) (1910); Dorsey v. Wright, 150 Ga. 321 (103 SE 591) (1920); Bachlott v. Buie, 158 Ga. 705, 708 (3) (124 SE 339) (1924); Williams v. MacFeeley, 186 Ga. 145, 150 (197 SE 225) (1938); Capitol Distrib. Co. v. Redwine, 206 Ga. 477, 484 (1) (57 SE2d 578) (1950); Collins v. Woodham, 257 Ga. 643 (1) (362 SE2d 61) (1987). Early cases (see, e.g., Speer v. City of Athens, 85 Ga. 49, 53 (1) (11 SE 802) (1890), Fullington v. Williams, 98 Ga. 807 (1) (27 SE 183) (1896), and Cutcher v. Crawford, 105 Ga. 180, 182 (1) (31 SE 139) (1898)) apparently countenanced examination of the journals but not any other extrinsic source. Since DeLoach, however, the Supreme Court in an unbroken line of decisions has refused to consider the journals of the General Assembly as a means of invalidating an enrolled act. See Hooper v. Harvey, 62 Ga. App. 224 (2) (8 SE2d 456) (1940), where this court acknowledged that the validity of an enrolled act could not be disputed by reference to the legislative journals.

Because the conclusive presumption doctrine is applicable where state constitutional violations have been urged, there is no inhibition against applying it to a statutory requirement. The sole Supreme Court case treating the Fiscal Note Act has recognized that generally the courts will not question the procedure used by the General Assembly in enacting legislation and refused to enforce the requirements of that Act as though it were a constitutional mandate. Richmond County v. Pierce, 234 Ga. 274, 278 (3) (215 SE2d 665) (1975).

Wilson points to the enactment of OCGA § 28-5-56 which makes specific reference to the conclusive presumption doctrine with regard to Local Government Impact Fiscal Notes. Because the Fiscal Note Act contains no similar reference to the doctrine, she argues that the omission establishes the legislative intent to bypass it. Since it is applicable even where constitutional requirements are not met, the “conclusive presumption” rationale could only be eliminated, if at all, by specific reference to its exclusion, not by mere omission.

Decided November 28, 1989

Rehearing denied December 19, 1989

Phyllis J. Holmen, John L. Cromartie, Jr., for appellant.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Mary Foil Russell, Assistant Attorneys General, for appellee.

The trial court correctly upheld the validity of the amendment to OCGA § 49-4-6 in the face of this attack.

Judgment affirmed in Case No. A89A1288; judgment reversed in Case No. A89A1798.

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


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    A89A1304.
    KENDALL v. CURTIS et al.
    (389 SE2d 550)
   Benham, Judge.

Appellant owns a parcel of real estate that is contiguous with a parcel owned by appellee Effie Curtis and with a parcel owned by appellees William and Joan Curtis. Appellant’s southern boundary line is the northern boundary of William and Joan’s property, and a portion of appellant’s western boundary is Effie’s eastern boundary line. When agents of the appellant tore down fences erected by the Curtises, contending they were built upon appellant’s property, appellees filed suit. Judgment was entered on a jury verdict that found the Effie Curtis/Kendall boundary line to be as Mrs. Curtis contended, and the William and Joan Curtis/Kendall line to be as Mrs. Kendall contended. Money damages were also awarded Effie Curtis.

1. The jury originally returned a verdict in which they found the boundary lines to be as appellant contended, and awarded monetary damages to Effie Curtis. The trial court recognized the verdict as inconsistent, refused to receive it, and sent the jury back for further deliberations. Appellant’s motion to mold the verdict by setting aside the award of monetary damages to Effie was denied. Appellant asserts the denial of her motion as error.

Appellant relies upon OCGA § 9-12-8, which states, “If a part of a verdict is legal and a part illegal, the court will construe the verdict and order it amended by entering a remittitur as to that part which is illegal and giving judgment for the balance.” However, the verdict in the case at bar is not partially illegal; rather, “[t]he verdict finding that [appellant] owned this disputed property, and that [appellee Effie Curtis] was entitled to actual. . . damages for [repair and replacement of her fence] was absolutely contradictory. [Cits.] ‘A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon.’ . . . Where such an inconsistent and void verdict is returned by the jury, it is proper for the trial judge to refuse to receive the verdict, and to require them to return for further deliberations, under proper instructions. [Cits.]” Thompson v. Ingram, 226 Ga. 668 (2) (177 SE2d 61) (1970). The trial court took the appropriate action and was correct in denying appellant’s motion to mold the verdict originally returned by the jury.

Decided December 5, 1989

Rehearing denied December 19, 1989

David E. Ralston, for appellant.

2. Contending that there was no evidence that the Effie Curtis/ Kendall boundary line was uncertain or unascertained, appellant next asserts that the trial court erred by instructing the jury on the law of acquiescence in disputed boundary line cases. Appellant claims the charges were inapplicable because the deeds of the parties left no doubt or uncertainty as to the location of the boundary line.

“A boundary line which is in dispute, uncertain or unascertained may be established either (a) by oral agreement, if the agreement is accompanied by actual possession to the line or is otherwise duly executed or (b) by acquiescence for seven years as provided in [OCGA § 44-4-6.] [Cits.] A line is uncertain or unascertained if its location on the ground is unknown even where the line is clearly described in the deeds [cit.]. ... A line may not be established by acquiescence unless there is some contention between the landowners over the location of the line as a result of which a boundary is established in which the landowners subsequently acquiesce. ...” Cothran v. Burk, 234 Ga. 460, 461 (216 SE2d 319) (1975). Thus, the testimony that the parties had disputed the location of the boundary line prior to 1974 and that, as a result of that dispute, a boundary had been established and appellee had erected a fence six inches within her side of the boundary line in which appellant had acquiesced for 13 years was evidence to support a charge on acquiescence. The fact that each party’s deed described her property did not remove the law of acquiescence from the debate. See Wright v. Thompson, 236 Ga. 655, 658 (225 SE2d 226) (1976).

Judgment affirmed.

Birdsong, J., concurs. Deen, P. J., concurs dubitante.

J. Tracey Ward, for appellees.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A1501, A89A1516.
    CHRYSLER MOTORS CORPORATION et al. v. MORGAN; and vice versa.
    (389 SE2d 545)
   Deen, Presiding Judge.

Morgan, appellee/cross-appellant, purchased a new automobile from appellants/cross-appellees, Chrysler Motors Corporation and Ringgold Chrysler-Plymouth & Dodge, Inc. Upon discovering that prior to his purchase of the automobile it had been driven with the odometer disconnected as part of appellants’ “Plant Overnight Quality Evaluation Program” (OEP), Morgan sued appellants for breach of contract and fraud, seeking actual and punitive damages. The trial court denied appellants’ motion for summary judgment on the breach of contract and fraud claims, but granted the motion on the punitive damages claim. The main appeal (Case No. A89A1501) follows our grant of an application for interlocutory review of the partial denial of appellants’ motion for summary judgment. The cross-appeal is from the partial grant of the motion.

In this case, before delivery of the motor vehicle to the dealer, Chrysler disconnected the odometer and test drove the car at one of its assembly plants for the purpose of detecting and correcting any defects in its product. Morgan, who purchased the car on October 21, 1986, was notified by Chrysler in July 1987 that the vehicle he purchased may have been so tested. Morgan immediately demanded rescission of the sales contract, return of the purchase price, and acceptance of the return of the vehicle; he commenced this action when Chrysler declined to do so. In his complaint, Morgan charged that “the ‘new’ automobile which he purchased was not, in fact, new and had been driven an unknown but substantial number of miles” pursuant to Chrysler’s quality evaluation program.

OCGA § 40-8-5 (d) provides that “the disconnection of the odometer used for registering the mileage or use of new motor vehicles being tested by the manufacturer prior to delivery to a franchised dealer” is lawful. OCGA § 40-8-5 is designed to protect consumers against fraud in its general prohibition against odometer tampering. One legal effect of Subsection (d) is that a manufacturer’s disconnection of a new vehicle’s odometer and testing of that vehicle does not alter the status of that vehicle. It is still a new vehicle.

Since under OCGA § 40-8-5 (d) the car purchased by Morgan was still a new car, his fraud and breach of contract claims asserting that Chrysler and the dealer had falsely represented and sold the vehicle as a new vehicle must fail as a matter of law. Chrysler and the dealer were thus entitled to complete summary judgment.

Judgment in Case No. A89A1501 reversed; judgment in Case No. A89A1516 affirmed.

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

Benham, Judge,

dissenting.

The majority concludes that the legal effect of OCGA § 40-8-5 (d) is that the manufacturer’s testing of a new vehicle with the odometer disconnected does not alter the vehicle’s status as a new vehicle, and that therefore appellee’s fraud and breach of contract claims must fail as a matter of law. Because I am of the opinion that the question of whether appellee’s car is still a new car after the manufacturer’s testing is a question of fact, I must dissent.

It is undisputed that appellee’s automobile was tested as part of appellants’ OEP, which allows designated Chrysler employees to drive randomly selected vehicles from work to their homes and return them the following work day. Although there is evidence in the record that OEP vehicles are driven an average of 40 miles, there is nothing in the record to indicate how many miles appellee’s automobile was driven before he purchased it. In Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497) (1982), we noted that “an intrinsic quality of a car sold as new [is] that it has neither been damaged nor used to any significant extent.” Moreover, we held in Century Dodge v. Mobley, 155 Ga. App. 712 (2) (272 SE2d 502) (1980), that the question of whether a car is new is one of fact and must be submitted to the jury. Therefore, I cannot agree that appellee’s claims fail as a matter of law.

I agree with the majority’s assertion that OCGA § 40-8-5 is designed to protect the consumer against fraud. However, the statute is silent on whether the seller of a new vehicle must disclose to the consumer that the vehicle has been driven an unknown number of miles with the odometer disconnected, and it is exactly this nondisclosure that forms the basis for the fraud count of appellee’s complaint. Since appellee’s action, which relates to his rights as a consumer and appellants’ obligations as sellers of new cars, is one for which no remedy is provided in OCGA § 40-8-5, the action is not precluded by that statute. See First Ga. Bank v. Webster, 168 Ga. App. 307 (1) (308 SE2d 579) (1983).

Because I believe the trial court properly allowed the fraud question to go to the jury, I would reverse that part of the trial court’s order granting summary judgment to appellants on the punitive damages issue and allowing damages under OCGA § 40-8-5 (g). See Champion v. Martin, 124 Ga. App. 275 (2) (183 SE2d 571) (1971).

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

Decided December 4, 1989

Rehearing denied December 19, 1989

Fleissner, Cooper, Marcus & Steger, Christopher H. Steger, for appellants.

James A. Meaney III, Clifton M. Patty, Jr., for appellee.

Word & Flinn, T. Michael Flinn, amicus curiae.


author: Beasley, Judge.

text:
    A89A1538.
    OGLETREE v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.
    (390 SE2d 61)
   Beasley, Judge.

Plaintiff Jackie Conley Ogletree, individually and as administratrix of the estate of her late husband, Frank Richard Ogletree, appeals the grant of summary judgment to defendant Navistar International Transportation Corporation d/b/a International Harvester Company and the denial of partial summary judgment to her in this products liability case.

The following is undisputed. On March 10, 1984, Campbell, who ran a fertilizer business and spreader service, drove his fertilizer spreader truck to Colbert Seed Company to pick up a load of ammonia nitrate. The fertilizer was located in a compartmentalized bulk-transport trailer called a “Killebrew” which required off-loading from the side. The Killebrew was equipped with a hydraulic motor to transfer its contained material to the transport vehicle. The motor could be quite loud, depending on whether or not it had a muffler and was operated from the end of the trailer while the operator was facing it.

Ogletree, an agricultural supply company salesman, had told his friend and customer Campbell about the fertilizer. Ogletree was in the office at Colbert Seed when Campbell arrived in his truck. Campbell and Ogletree had known each other for at least ten years during which time Ogletree was in the business of fertilizer or chemical sales. Campbell pulled his truck up to the office and stopped, waiting to get on the scales and be weighed in. Ogletree had seen Campbell’s truck, had been around him when Campbell was operating it and was familiar with it. Ogletree came out of the office and weighed Campbell’s truck. After weighing, Campbell backed his truck off the scales and into the street as was the custom at Colbert Seed. Ogletree got onto the running board of the truck and accompanied Campbell to the top of the hill where the Killebrew with the fertilizer was parked.

Ogletree located the correct Killebrew, told Campbell, and disappeared from Campbell’s view. Campbell pulled up and, aided by his rear-view mirrors, began to back around to come up alongside the Killebrew; most people backed up to get close to the Killebrews because of their tapered sides. There were two Killebrews of the same shape and size located next to each other in the storage yard. The Killebrew that Campbell had in sight was not the one to be unloaded and the one that Ogletree had indicated but rather was the one immediately adjacent to it and, from Campbell’s perspective, to the right of the appropriate one. Ogletree was standing at the presenting end of the correct Killebrew; its engine was running. Unable to see Ogletree, Campbell struck and killed him 'as Campbell mistakenly backed his truck up to the adjacent Killebrew.

Campbell’s truck originated as a cab and chassis manufactured in February 1978 by International Harvester Company, the corporate predecessor of Navistar International Transportation Corporation. International Harvester sold the cab and chassis without a body to Penske Leasing, a renter of moving vans, in April 1978. At that time, audible back-up alarms were available as optional equipment on the cab and chassis but Penske did not request such a device and one was not installed.

Campbell bought the vehicle from a dealership in 1982. The van body was removed prior to delivery to Campbell. Campbell had the chassis shortened and then took the vehicle to Newton Crouch, Inc., a manufacturer and installer of material spreaders, to have a fertilizer spreader body reworked and mounted on the chassis. No back-up alarm was added at that time and the vehicle did not have an alarm when it struck Ogletree. In approximately twenty years of being in the fertilizer business, Campbell had never seen a fertilizer spreader with a back-up alarm.

Mrs. Ogletree, individually and as administratrix, sued Navistar and Newton Crouch, Inc., for wrongful death, pain and suffering, and funeral, medical, and necessary expenses of her deceased husband. The claim for funeral, medical, and necessary expenses was later withdrawn.

The amended complaint alleged that Navistar was under a duty, to those reasonably forseeably affected thereby, to design and manufacture the subject truck with due care for the safety of persons in the path of the rearward movement of the vehicle, who are outside the foreseeable field of vision of the operator of the vehicle, or who reasonably fail to see or hear or otherwise sense the approach of the vehicle under such conditions; the deceased was engaged in such reasonably foreseeable activities under such conditions in that he was standing in the path of the rearward movement of the vehicle, he was outside the foreseeable field of vision of the operator of the vehicle, and he reasonably failed to see, hear, or otherwise sense the approach of the vehicle; Navistar breached its duty to the deceased by failing to incorporate into its design and manufacture of the vehicle an audible warning device reasonably likely to warn the deceased of the approach of the vehicle under the stated conditions.

The suit also alleged that Newton Crouch in connection with its manufacture of the material spreader was under a duty to design, manufacture, and install it with due care under the same circumstances contended as to Navistar and that Newton Crouch breached its duty to the deceased by failing to incorporate into the design, manufacture, and installation of the spreader an audible warning device.

Navistar moved for summary judgment on the basis that it had no duty as a matter of law to install a back-up alarm on the complete cab and chassis as demonstrated by considerations of trade custom, relative expertise, and practicality. Alternatively, it argued that the cab and chassis were not negligently designed or manufactured because the absence of a back-up alarm was open and obvious to any user or bystander.

It submitted an affidavit from an engineer in its “Product Integrity Group” which in essence stated that Navistar had no knowledge of the sale of the cab and chassis to Campbell; it did not participate in the decision to mount a fertilizer spreader; at the time of sale to Penske, the operator had an unobstructed view of the rear of the chassis and the cab and chassis satisfied applicable state and federal safety standards; the cab and chassis were suitable for a large variety of body types; it was neither the trade custom nor the industry practice to install a back-up alarm on a cab and chassis.

Mrs. Ogletree moved for partial summary judgment on the issue of the International Harvester’s, i.e., Navistar’s liability on these bases: (1) the industry trade or custom was flatly contrary to the standard of care as to such trucks at the time the subject truck was sold, incomplete; (2) the particular modification made by Newton Crouch was foreseeable to International Harvester at the time of initial sale of the incomplete truck; (3) the particular use to which the truck, as modified, was put at the time the deceased was killed was foreseeable to International Harvester at the time it sold the incomplete truck; and (4) the failure to install such a back-up alarm device was the proximate cause of the death.

She submitted the lengthy affidavit of a licensed professional engineer who in essence stated that the trade custom of not installing back-up alarms on such cabs and chassis was in violation of the standard of care in the industry as given by the Society of Automotive Engineers, Inc., and not in compliance with certain regulations of the Occupational Safety & Health Administration; in his opinion the circumstances of the fatal event were precisely the sort that were foreseeable to a manufacturer such as International Harvester at the time of the sale of the truck.

Navistar filed a second affidavit by its expert stating that it was not foreseeable that the cab and chassis would be used in an agricultural setting; at the time of sale there was no blind spot; the installation of a back-up alarm in every incomplete cab and chassis was not practical, useful, desirable, or legally required in view of the numerous types of completed vehicles for which the cab and chassis might be appropriate.

After a hearing on the motions and consideration of the briefs, evidence, and arguments, the trial court determined that Navistar had no duty as a matter of law to install a back-up alarm on the vehicle, granted the company summary judgment, denied partial summary judgment to plaintiff, and entered final judgment in favor of Navistar pursuant to OCGA § 9-11-54. Plaintiff Ogletree appealed.

1. An action in products liability may proceed on one or a combination of theories of negligence, strict liability, or breach of warranty. See Coast Catamaran Corp. v. Mann, 171 Ga. App. 844 (321 SE2d 353) (1984), aff’d 254 Ga. 201 (326 SE2d 436) (1985) (negligence and strict liability); Fortner v. W. C. Cayne & Co., 184 Ga. App. 187 (360 SE2d 920) (1987). Even though the parties’ contentions arguably raise issues in strict liability, appellant maintained below and insists on appeal that her cause of action is solely in negligence.

The key issue is whether or not Navistar showed as a matter of law that it had no duty to install the alarm or that Ogletree’s injuries and death resulted solely from his own negligence in that he assumed the risk of injury.

We must address the latter because, although the trial court did not resolve that issue one way or the other, if Navistar would be entitled to summary judgment on this ground we would affirm the trial court on the “right for any reason” rule. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2) (c) (307 SE2d 914) (1983).

This latter issue is easily disposed of. Navistar’s defense in this regard is that the absence of an alarm and the dangers attendant thereto were “open and obvious” to Ogletree, who nevertheless stood to the rear of the truck with his back to it so he could not watch its movement and with the Killebrew’s loud noise overcoming the sound of the truck, unenhanced by an alarm, as it approached.

However, it is not conclusively shown as fact that Ogletree knew that Campbell could not see him due to a blind spot, or that Campbell had made a mistake and the truck was coming towards him and would strike him if he did not move. That is, it is not established that Ogletree knew of the immediate hazard or appreciated the danger he was in as the truck backed up, even though it was obvious that it was backing up without an audible alarm. See Deere & Co. v. Brooks, 250 Ga. 517 (299 SE2d 704) (1983). Actual knowledge of the risk on the part of the injured party must be shown for assumption of the risk to govern. Restatement 2d, Torts, § 496D, and Comment (c); see Dorsey Trailers Southeast v. Brackett, 185 Ga. App. 172, 175 (363 SE2d 779) (1987); Barnes v. Harley-Davidson Motor Co., 182 Ga. App. 778 (357 SE2d 127) (1987); Trailmobile v. Smith, 181 Ga. App. 134 (1) (351 SE2d 528) (1986); Giordano v. Ford Motor Co., 165 Ga. App. 644 (299 SE2d 897) (1983).

The state of the evidence in this case does not as a matter of law inject an intervening cause via the act of the injured party so as to block Navistar’s negligence, assuming there is such, from making it liable. See Union Carbide Corp. v. Holton, 136 Ga. App. 726, 729 (1) (222 SE2d 105) (1975).

Whether or not a duty existed to add an audible back-up alarm when International Harvester manufactured and sold the cab and chassis, an incomplete truck, in 1978 requires a more detailed analysis.

In this state a cause of action for negligence requires “ ‘(1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ Lee Street Auto Sales v. Warren, 102 Ga. App. 345 (1) (116 SE2d 243) (1960).” Bradley Center v. Wessner, 161 Ga. App. 576, 580 (287 SE2d 716) (1982), aff’d 250 Ga. 199 (1982).

The quarrel here is whether or not there was a duty in the first place. The trial court held there was not, as a matter of law, so for the purpose of this appeal we assume that plaintiff has shown some evidence of breach of the duty she says can be found to exist, plus proximate cause and damages. The element of breach is met by the proof that International Harvester did not install an alarm, and the element of damage is not in dispute insofar as Mr. Ogletree’s death is concerned. The element of proximate cause is more problematical, although there is evidence of it.

The essence of negligence “consists of exposing another to whom one owes a duty, or exposing oneself, to a foreseeable unreasonable probability of harm. Reasonable foresight does not require of a plaintiff or a defendant that he anticipate exactly what will happen and exercise perfect judgment to prevent injury. ‘Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.’ [Cit.] ‘Negligence is predicated on faulty or defective foresight rather than on hindsight which reveals a mistake.’ [Cits.]” Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (3) (227 SE2d 336) (1976). If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence. Washington v. Combustion Engineering, 159 Ga. App. 555, 557 (284 SE2d 61) (1981).

“[W]hat duty a defendant owed a plaintiff is ... a policy problem — a matter of law.” Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512 (317 SE2d 853) (1984). There is no law in this state, nor was there such in 1978, requiring a manufacturer of a truck or the cab and chassis part of a truck to affix a safety device for back-ups. Georgia has regulated the use of horns and warning devices on motor vehicles, see OCGA § 40-8-70, but there is no affirmative legislative pronouncement requiring the installation of audible back-up alarms on truck rigs like the subject one.

Thus the matter is thrown into the common law, which does not specifically set this particular requirement either. If such a duty exists, it is because it arises under the statute which provides that: “In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances . . . . The absence of such diligence is termed ordinary negligence.” OCGA § 51-1-2. Thus the fact that the truck was patently incomplete when it left International Harvester does not immunize Navistar from liability but relates only to three inquiries: 1) whether at this stage it was reasonably foreseeable that a person such as Ogletree would be injured if an alarm was not installed by International Harvester; 2) whether it was reasonably foreseeable that a finisher or modifier of the product would install the device; 3) whether installation by International Harvester was practical, economically feasible, and technically feasible. See Dorsey Trailers Southeast v. Brackett, 185 Ga. App. 172, supra. Talley v. City Tank Corp., 158 Ga. App. 130 (279 SE2d 264) (1981); Verge v. Ford Motor Co., 581 F2d 384 (3rd Cir. 1978).

The parties argue about the relevancy of OSHA regulations and the standards of the Society of Automotive Engineers. OSHA’s federal regulations govern employers and not manufacturers, but they are some evidence of the significance and availability of the alarm and International Harvester’s knowledge thereof. On the other side of the coin, it could be argued that they are evidence that International Harvester reasonably relied on the ultimate employer’s installing an alarm because federal regulations cast such a duty on it.

As to the Society standards, although they do not set the legal standard, they are some evidence of the standard in the industry and thus are relevant to whether or not an ordinarily prudent manufacturer would install the alarm. Smith v. Godfrey, 155 Ga. App. 113 (1) (270 SE2d 322) (1980); Restatement 2d, Torts, comments §§ 295A and 288C.

“In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 699 (1) (294 SE2d 541) (1982). Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design, Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 46 (4) (248 SE2d 15) (1978), . . . The manufacturer is under no obligation to make a machine ‘accident proof or foolproof,’ Fortner v. W. C. Cayne Co., supra at 190 (2) and Poppell v. Waters, 126 Ga. App. 385, 387 (1) (190 SE2d 815) (1972), or even ‘more safe.’ Stovall & Co. v. Tate, 124 Ga. App. 605, 611 (1) (184 SE2d 834) (1971).” Honda Motor Co. v. Kimbrel, 189 Ga. App. 414, 418 (2) (376 SE2d 379) (1988).

“ ‘Generally, ‘ “ ‘if a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. . . Furthermore, while a product may be defective because the manufacturer has failed to warn the user of a latent danger arising from a reasonable use of the product ([Cit.]), “(i)t is well-established that there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known, or of which the person who claims to be entitled to the warning has actual knowledge. . . . [Cit.]” [Cit.]’ ” Coast Catamaran Corp. v. Mann, supra at 847 (2). See also Greenway, supra; Poppel, supra; Hunt, supra; Trailmobile v. Smith, supra; and Stodghill v. Fiat-Allis &c. Machinery, 163 Ga. App. 811 (295 SE2d 183) (1982).

The manufacturer may be liable for omission of a safety device as well as for a defect which affects the operation of a product, if due care requires the installation of a safety device in the first place. Honda, supra. Ogletree’s case goes one step farther. The injured person was not the user but rather a pedestrian who was crushed by the product’s use without an alarm. The alarm would be for the safety of this bystander and not for the safety of the user. Compare Honda, supra.

The duty would extend to such a person if harm to him was reasonably foreseeable. There is evidence that it was reasonably foreseeable to the cab and chassis manufacturer that in normal operation, the completed product would be backed up and there would be people behind it who were unaware of its rearward movement towards them. Thus, the fact that it was “open and obvious” that the cab and chassis did not have an alarm when International Harvester manufactured and sold it does not foreclose its liability, since the alarm was not made for the safety of the purchaser or user but for third parties who may only learn of the absence after not being warned. Restatement 2d, Torts, § 389; J. C. Lewis Motor Co. v. Williams, 85 Ga. App. 538 (69 SE2d 816) (1952); Moody v. Martin Motor Co., 76 Ga. App. 456 (46 SE2d 197) (1948); Maytag Co. v. Arbogast, 42 Ga. App. 666 (157 SE 350) (1930). The nature and purpose of the device is what extended the duty to a non-user of the truck itself.

Because International Harvester had alarm mechanisms in its plant and made them optional to purchasers, there is evidence that it knew of the need for and availability of such safety devices.

Because International Harvester sold this rig without an alarm, there is evidence that it could reasonably foresee that an alarm would not be affixed when the truck was completed or thereafter, and there was evidence that it would be completed so as to present a blind spot to an operator, creating a danger to persons behind the truck. See Restatement 2d, Torts, § 389; see also Lewis, supra; Moody, supra; Maytag, supra. Thus, the two intervening cause factors which Navistar claims shield it from liability, i.e., the failure of a purchaser to add the safety device and the failure of the pedestrian to observe an open and obvious absence, were arguably foreseeable so as to cast a duty on Navistar and satisfy the first element of the cause of action. Of course, both Navistar and the purchaser or modifier could be liable. See Giordano, supra at 644-645.

Thus there was evidence that International Harvester could reasonably foresee the damages which did in fact occur.

Foreseeability itself does not allow the imposition of a duty. The failure which is complained of must relate to action which an ordinarily prudent manufacturer would take under the circumstances. International Harvester did not show as a matter of law that an ordinarily prudent manufacturer would not install the alarm. Rather the evidence was that the alarm was available for about $40, the cost could be passed on to the purchaser, and International Harvester knew how to install the alarm. Thus there was evidence of economic feasibility, technological feasibility, and practicability. See Verge, supra.

The experts’ testimony is in dispute regarding the following factors:

a. whether it was reasonably foreseeable the truck would be completed without the device and with the creation of a blind zone;

b. the trade custom and industry practice, which relates to the standard of due care to be exercised by an ordinarily prudent person;

c. whether reasonable prudence required International Harvester to install the device, considering economic feasibility, cost relative to benefit, practicality (as to who should install, assuming it should be installed), necessity for the device (crucial versus good to have versus unnecessary), technical feasibility, all of which involve a balancing process; see Verge, supra;

Decided November 28, 1989

Rehearings denied December 19, 1989

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellant.

Neely & Player, Edgar A. Neely III, Richard B. North, Jr., Long, Weinberg, Ansley & Wheeler, Charles B. Marsh, for appellee.

Bell & Bell, John Bell, Beltran & Buckley, Frank J. Beltran, William Q. Bird, Devine & Morris, Foy Devine, amici curiae.

d. degree of foreseeability of this particular use, i.e., backing operation where there is a pedestrian whom driver cannot see (on scale of remote to certainty). Restatement 2d, Torts, §§ 395 and 291; Dorsey Trailers Southeast, supra at 172; Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (319 SE2d 470) (1984); Pepper v. Selig Chem. Indus., 161 Ga. App. 548 (288 SE2d 693) (1982).

This nonresolution by undisputed evidence of the two primary areas in the element of duty in this case, foreseeability and reasonableness, precludes summary judgment to defendant Navistar.

Questions of negligence are ordinarily left for juries, except in plain, palpable, and indisputable cases. Brooks v. Coliseum Park Hosp., 187 Ga. App. 29, 34 (1) (369 SE2d 319) (1988); Beck v. Blackerby, 156 Ga. App. 15 (274 SE2d 68) (1980).

2. We have examined the material evidence which is in dispute, and we cannot say that plaintiff has shown Navistar’s liability as a matter of law. Thus the trial court was correct in denying partial summary judgment to her.

Judgment affirmed in part and reversed in part.

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


author: Deen, Presiding Judge,

text:
    A89A0937.
    WHALEY v. THE STATE.
    (390 SE2d 677)
   Order of Court.

This court having held that the issue of whether municipal courts have jurisdiction over state traffic offenses is one which requires a construction of the Georgia Constitution (Kolker v. State, 193 Ga. App. 306 (387 SE2d 597) (1989)), and the Supreme Court having exclusive jurisdiction over cases requiring construction of constitutional provisions (id.), it is hereby ordered that our decision in this case, dated November 8, 1989, is vacated and this case is transferred to the Supreme Court.

Decided December 19, 1989

Rehearing denied December 19, 1989.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, for appellant.

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

Deen, Presiding Judge,

dissenting.

I dissent from the transferral of this case to the Supreme Court, for basically the same reasons I dissented in Kolker v. State, 193 Ga. App. 306 (387 SE2d 597) (1989). Moreover, the fact that the Supreme Court actually transferred this case to us in the first place should foreclose our conclusion that the issue to be resolved involves construction of the Constitution. Regardless of the eventual outcome of Kolker, the instant case is properly before this court.

Concerning the merits of the State’s motion for rehearing, I believe we correctly determined that under the Constitution and OCGA § 40-13-21, municipal courts have jurisdiction over misdemeanor traffic offenses. Accordingly, the motion for rehearing should be denied.

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


author: Banke, Presiding Judge.

text:
    A89A0842.
    BANKS COUNTY SCHOOL DISTRICT v. BLACKWELL et al.
    (389 SE2d 782)
   Banke, Presiding Judge.

Ruby Mae Blackwell brought this action against Irma Griffin Payne and the Banks County School District to recover for personal injuries sustained when her car was struck by a school bus being driven by Ms. Payne. The collision occurred as the bus was entering the highway from the school grounds. Prior to the collision, a flagman stationed at the entrance to the school had stopped Ms. Blackwell’s progress on the highway to permit several other buses to depart the premises. When it appeared to this flagman that the last bus had departed, he directed Ms. Blackwell to proceed. As she was doing so the bus being driven by Ms. Payne came around the corner of one of the school buildings and struck the rear portion of her vehicle.

A jury returned a verdict against both defendants, and the Banks County School District appealed to this court. In Banks County School District v. Blackwell, 191 Ga. App. 790 (383 SE2d 159) (1989), we held that the claim against the school district should have been dismissed pursuant to OCGA § 36-11-1 based on the plaintiff’s failure to submit written notice of her claim to the school board within 12 months after the accident. However, the Supreme Court reversed that decision on certiorari, ruling that a claim against a county school district does not constitute a claim against the county within the contemplation of OCGA § 36-11-1. We now address certain additional issues raised by appellant school district which were pretermitted by our prior decision in the case. Held:

Decided December 5, 1989

Rehearing denied December 20, 1989.

Husby, Myers & Stroberg, W. Allan Myers, for appellant.

1. The appellant contends that the trial court erred in submitting the issue of the flagman’s alleged negligence to the jury because that issue was not raised by the pleadings and because counsel for the plaintiff asserted during his opening statement that the sole proximate cause of the accident had been the failure of Ms. Payne, the driver of the school bus, to yield the right-of-way. This enumeration of error does not address itself to any ruling made by the trial court and consequently presents nothing for review. In particular, no objection was made to any of the court’s charges on the ground that they allowed the jury to return a verdict against the school district based on the flagman’s negligence, nor was any objection made during the trial to any of the evidence which was presented on this issue. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” OCGA § 9-11-15 (b). See Atlanta Fire Systems v. Alexander Underwriters &c., 185 Ga. App. 873, 874 (366 SE2d 197) (1988).

2. The appellant contends that the evidence did not support a finding of fault on the part of the flagman because, like the plaintiff, he did not realize the bus was coming until after he had already directed the plaintiff to proceed, and because “[tjhere was no evidence which indicated that [he] had any superior knowledge from which he could have foreseen the possibility of this incident.” This contention is without merit. A second flagman who was present at the scene at the time of the accident testified that, although his view was no less obstructed than that of the first flagman, he had been able to see the oncoming bus in time to prevent the cars which he was directing from proceeding; and the jury was clearly entitled to conclude under the circumstances that the plaintiff had acted reasonably in relying on the directions given to her.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Deal & Jarrard, J. Nathan Deal, Robert J. Reed, Mary J. Carden, for appellees.


author: Sognier, Judge. Deen, Presiding Judge, Pope, Judge,

text:
    A89A0981.
    KLINETOB v. THE STATE.
    (389 SE2d 551)
   Sognier, Judge.

Hugh B. Klinetob appeals from the trial court’s denial of his motion for discharge and acquittal filed pursuant to OCGA § 17-7-170 (b).

Appellant was arrested on August 30, 1987 and issued two Uniform Traffic Citation, Summons, Accusation/Warnings (UTCs) charging him with the offenses of DUI and improper U-turn and directing him to appear in the Recorder’s Court of Gwinnett County on September 23, 1987. On that date appellant appeared and requested that his case be bound over to state court for a jury trial. Several days later the UTCs and other documents related to his case were forwarded to the state court clerk’s office, where they remained until an employee of the Gwinnett County Solicitor picked them up on November 5, 1987. Appellant filed a demand for trial pursuant to OCGA § 17-7-170 (a) in state court on December 15th and served a copy on the solicitor. Thereafter, on August 22, 1988 the solicitor filed accusations in state court charging appellant with DUI and improper U-turn. The state court judge denied appellant’s subsequent motion for discharge and acquittal on the ground that his demand for trial had been premature because it was filed before the solicitor filed the accusations against him.

OCGA § 17-7-170 (a) provides that “[a]ny person against whom ... an accusation is filed with the clerk . . . may enter a demand for trial.” Although under the instant circumstances the UTC itself contained the necessary accusation, Majia v. State, 174 Ga. App. 432 (330 SE2d 171) (1985), here the trial court has found that no accusation was filed until August 22, 1988, as the UTC forwarded from recorder’s court was only held by the state court clerk until retrieved by the solicitor five weeks later. However, the trial court failed to consider whether there devolved on the court a duty to file the accusation when it was received from recorder’s court. Uniform State Court Rule 36.13 provides that “[a]U . . . accusations presented to the clerk shall be filed.” (Emphasis supplied.) The dissent cites Uniform State Court Rule 26.2 (8), which provides that when a case is bound over for trial after a preliminary probable cause hearing, “all. . . papers pertaining to the case shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for delivery to the district attorney,” as authorizing the procedure followed by the clerk and prosecutor. Pretermitting the question of whether Rule 26.2 applies when a case is bound over from recorder’s court for jury trial pursuant to OCGA § 40-13-23 (a), the dissent’s conclusion ignores the question of whether “holding” a file until the prosecutor retrieves it, regardless of the length of time that elapses, discharges the clerk’s duty to “deliver” the case to the prosecuting attorney, and also disregards Rule 36.13. However, we need not decide the question of which court official failed to carry out the obligation to file the accusation because the duty to bring the defendant to trial following arrest and accusation “rests upon the court, the prosecutor, and the clerk of court,” not the defendant. Perry v. Mitchell, 253 Ga. 593, 596 (322 SE2d 273) (1984). Thus, whether the duty to file the accusation rested with the prosecutor or with the clerk, neither was entitled to withhold filing of the accusation except for a reasonable time as compelled by the volume of the court’s business. This court has recognized that clerical errors may not affect a defendant’s statutory right to a speedy trial. O’Neal v. State, 188 Ga. App. 270, 271 (372 SE2d 833) (1988). We find the eleven month delay in the filing of the accusation was unreasonable, and as the failure to file the accusation in a timely manner after it was transferred to the state court was attributable to a clerical error by a court official, not to any failure of appellant to follow the requirements set forth in OCGA § 17-7-170, appellant’s motion for discharge and acquittal should have been granted. See Turner v. State, 188 Ga. App. 267 (372 SE2d 826) (1988); State v. Bostick, 181 Ga. App. 508 (352 SE2d 824) (1987). State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989), cited by Judge Deen, does not require a different result, as there we merely held that after a DUI case is bound over to another court, the accusation must be filed before the statutory trial demand. Unlike the case at bar, in Lipsky there was no question of either an unreasonable delay in filing or a clerical error.

To hold otherwise would allow the court clerk or the solicitor to frustrate an accused’s rights under OCGA § 17-7-170 by delaying the filing of the accusation previously issued by a law enforcement officer. State v. Spence, 179 Ga. App. 750, 752 (347 SE2d 612) (1986). As the statute was enacted to implement the constitutional right to a speedy trial, Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985), it should not be construed to preclude a defendant’s motion for discharge and acquittal where, as here, any lack of compliance with the statutory prerequisites was due to the error of either the clerk or the prosecutor. “Since the purpose of [OCGA § 17-7-170] is to secure to defendants in criminal cases their rights guaranteed by Article 1, Section 1, Paragraph [11] of our Constitution to a speedy and public trial, the courts should seek to uphold rather than whittle away by judicial construction this and other provisions of our Bill of Rights, which secure to us the guarantees of freedom upon which this country is founded.” Rider v. State, 103 Ga. App. 184, 185 (118 SE2d 749) (1961).

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

It would appear that this case is controlled by State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989), and the follow-up case of State v. Lipsky, 193 Ga. App. 696 (_SE2d —) (1989).

In the former cited case defendant’s demand for trial was filed on February 22, 1988. This court reversed the trial court’s discharge and acquittal as there was no evidence that an accusation had been filed on the date of demand. In the latter cited case we affirmed the trial court’s grant of the motion to dismiss upon renewal of the motion for discharge and acquittal, as the trial court determined at the hearing that the uniform traffic citation was included when the case was received and filed on February 8, 1988. The accusation did exist at the time of the demand. The same does not appear to obtain in the instant case under consideration.

Pope, Judge,

dissenting.

I dissent. At issue in this case is whether defendant was entitled to file his demand for speedy trial on the basis of the Georgia Uniform Traffic Citation, Summons, Accusation/Warning which was never filed with the clerk of the court where the demand was made. OCGA § 17-7-170, as amended, provides in pertinent part that “[a]ny person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial. ...” (Emphasis supplied.) Although it is well settled in this State that in cases involving traffic related offenses the citation itself contains the necessary accusation, OCGA § 17-7-170, as amended, clearly provides that such accusation or indictment must be “filed” with the clerk. In my opinion, when a uniform traffic citation is transferred from a traffic court to a state court, the accusation is not filed as mandated by OCGA § 17-7-170 until the solicitor has presented the traffic citation or accusation to the clerk and the case is then docketed as a misdemeanor criminal case in the state court. See Keller v. State, 183 Ga. App. 717, 719 (359 SE2d 714) (1987). Here the traffic citation, which was filed with the Clerk of the Recorder’s Court, was never filed with the Clerk of the State Court’s office, and hence the case was not docketed or filed in that court until the accusation was returned on August 22, 1988. Consequently, I agree with the trial court that defendant’s demand for trial pursuant to OCGA § 17-7-170 was premature, and that defendant’s motion for discharge and acquittal should be denied.

Decided December 5, 1989

Rehearing denied December 20, 1989

Winship E. Rees, for appellant.

Gerald N. Blaney, Solicitor, David Fuller, Assistant Solicitor, for appellee.

The majority holds that it was the State’s duty to file the accusation and hence the denial of defendant’s motion for discharge and acquittal would punish defendant for a clerical error by a court official. Although Rule 36.13, cited by the majority, does provide that “[a] 11. . . accusations presented to the clerk shall be filed . . .” (emphasis supplied) the question then becomes whether the mere receipt of the documents from the Recorder’s Court constitutes a “presentment” of the accusation to the clerk for filing. In this regard, Uniform State Court Rule 26.2 (8) provides that “[o]n each case which is bound over, . . . [t]he warrant, bail bond, and all other papers pertaining to the case shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for delivery to the prosecuting attorney.” (Emphasis supplied.) Hence, it appears that the clerk here did in fact follow the proper procedure in “holding” the case for delivery to the prosecuting attorney, who was then charged with “presenting” the accusation, whether embodied in the traffic citation or drawn separately, to the clerk for filing. Thus, unlike the cases relied on by the majority this is not a situation in which a clerical error resulted in the denial of defendant’s right to pursue his demand for speedy trial. Consequently, I would affirm the judgment of the trial court.

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


text:
    A89A0993.
    FIDELITY NATIONAL BANK v. KNELLER.
    (390 SE2d 55)
   Beasley, Judge.

Defendant Fidelity National Bank appeals from the denial of its motion for judgment n.o.v. and for new trial after a jury returned a verdict for plaintiff Jeffrey M. Kneller, P.C.

Kneller, a lawyer involved in closing real estate transactions and operating as a professional corporation, brought an action against Fidelity because of its alleged mishandling of the corporation’s real estate trust account. He alleged that Fidelity: 1) failed to send timely monthly account statements; 2) negligently paid a check for $19,193.52 over a written stop payment order; 3) wrongfully paid $70,899.97 on four checks that were forged and refused to credit Kneller’s account for that amount; 4) after assuring plaintiff that its checks would be honored, wrongfully dishonored checks drawn on the account; 5) summarily closed the account without notice, marked checks with the notation “account closed” and returned them unpaid to the parties who had received them from closing transactions conducted by plaintiff. Plaintiff asserted that because of these actions its real estate closing practice was destroyed.

The court entered judgment on the jury’s verdict for plaintiff: on count one, breach of contract and UCC, the face amount of the four forged checks plus $15,178.59 prejudgment interest, and $7,253.75 costs, including interest and fees plaintiff incurred in borrowing $60,000 replacement funds for the account; on count three, wrongful dishonor of checks, $100,000 consequential damages and $30,000 punitive damages; on count five, Fidelity’s bad faith in the transaction, $60,000 attorney fees and expenses of litigation; for defendant on counts two (fraud and misrepresentation by Fidelity in its dealings with plaintiff after discovery of the forgeries); and four (conversion of the funds paid out on the forged checks).

The evidence is construed in favor of the verdict. Perfect Image v. M & M Elec. Constructors, 191 Ga. App. 605, 607 (3) (382 SE2d 405) (1989). In 1978, Kneller incorporated his real estate closing practice into a professional corporation, plaintiff in this action. It opened an account with defendant in 1982. During 1983 plaintiff moved its office location and immediately experienced troubles as defendant continued to send statements to the old address despite written notification of change of address and repeated follow-ups by plaintiff to have the address corrected by defendant. Because of the importance of the account, Kneller had an understanding with the former branch managers of the bank that any overdrafts would be paid and if necessary covered by plaintiff. When a new manager, Tutt, came to the bank Kneller met with him in June 1984 to reiterate the problem of late statements because of the incorrect address which the defendant continued to use and with regard to assuring that overdrafts would be paid.

In August plaintiff received six overdrafts which had however been honored. Concerned, Kneller requested his bookkeeper, who was behind in reconciling the late statements, to review all the recent statements for errors. Kneller and his closing secretary began a time-consuming review of the closing files. On September 18 a party to a recent closing notified Kneller that a check he received at closing had been dishonored. Kneller also learned that a check to Bank South Mortgage had been returned by defendant for insufficient funds, but he was not notified by defendant until September 24.

Kneller met with Tutt seeking an explanation as to why the checks had not been honored and he had not been notified. Kneller stated plaintiff would cover any overdrafts, emphasized that it was imperative because of plaintiff’s closing practice that checks not be returned and inquired about the August statement which had not been received. According to Kneller, Tutt was apologetic and explained he was not aware of the checks’ return and would take steps to resolve matters and insure against the recurrence of the overdraft problem.

Kneller now arranged with the bookkeeper to conduct a thorough audit of plaintiff’s files, which process took about a week. During this time plaintiff received a notice that the trust account was overdrawn by $58,000. To meet this crisis, Kneller arranged a loan for plaintiff in the amount of $60,000 and secured it with personal real estate holdings. Through the time of trial this ultimately resulted in $32,750 in interest and costs. The audit uncovered a discrepancy of $19,193.52. A check in that amount had been issued to Georgia Federal as part of a closing. When Georgia Federal informed plaintiff it had never received the check, plaintiff issued a stop payment order to defendant and sent another check to Georgia Federal. Contrary to the stop payment order defendant paid that check as well as the replacement check. On October 5, Kneller presented this information to defendant requesting a credit for the amount paid on the check with the stop payment order. Although defendant investigated and Tutt admitted it had made an error defendant would not credit plaintiff’s account. Plaintiff had to obtain reimbursement from Georgia Federal.

On October 9, while Kneller was at the bank, his secretary discovered two checks on the September statement, one for $2,299.99 and the other for $35,500, which were executed with a stamp facsimile signature of Kneller. Such signature was not authorized under the signature card of the account agreement. Later that same day two additional checks with the same facsimile signature were discovered. They were in the amount of $29,999.99 and $3,099.99. According to Kneller, when Tutt was shown three of the checks he remarked that he could not understand how defendant accepted the checks and conceded it was without authority to do so. Ms. Godwin, introduced as head of security, explained that bank policy forbade honoring facsimile signatures without a resolution from its customer and she agreed defendant had no authority to pay the checks because plaintiff had never given it permission to honor a facsimile signature. Kneller was informed the bank would investigate and as soon as the investigation was completed would credit plaintiff’s account. According to witnesses for defendant, Kneller was told defendant would advise him whether the account would be credited only after an investigation. From Kneller’s version, assurances were made that plaintiff’s checks would be honored and not returned during the investigation. Kneller signed three forgery affidavits at that time.

The following day, the door to plaintiff’s office was found ajar and Kneller called the Decatur Police to investigate. He told Detective Morris about the forgeries and delivered the fourth check to him. At that point, defendant had not notified the police and never did complete the forgery affidavits. It did eventually notify the FBI, and Tutt met with Morris on at least two occasions. Morris endeavored to ascertain who had endorsed and uttered the checks and sought Kneller’s aid. Kneller cooperated in several instances but balked at sending his picture to a suspected “middleman” who had indicated he would identify the party who had given him one of the checks. This individual when subsequently shown pictures including one of Kneller obtained by the police from his driver’s license, stated that none of them was the individual but added he would say so even if that were not true. The Decatur Police dropped the investigation because the checks were apparently negotiated outside its jurisdiction.

The record shows no independent investigation by defendant of the alleged forgeries, but for a period of time when Kneller inquired as to the progress of the investigation and when the account would be credited he was told that it was still ongoing. Tutt met with his superiors including the president of defendant and it was determined not to credit plaintiff’s account because Kneller was a possible suspect. However, the reason articulated was that Kneller refused to cooperate with the police investigation so that it was terminated.

Plaintiff opened a trust account with another bank but there still remained checks generated from closings which were outstanding on the account with defendant. On November 1, Kneller was informed by a client that a check delivered to him had been returned by defendant. When Kneller demanded an explanation from Tutt he was told that defendant had decided to close the account. Kneller entreated with Tutt not to do this because of the damage to plaintiff’s business reputation and offered to deposit funds to compensate for any overdrafts. Tutt spoke with his superiors and then told Kneller defendant would not cooperate with him because he had not cooperated with the police. Detective Morris testified that he had not told Tutt that Kneller had not cooperated because he had. He also related that Tutt admitted to him that Tutt believed defendant was liable for the amount of the forged checks.

As a result of defendant’s action a series of checks issued by plaintiff were returned marked “account closed.” Plaintiff introduced evidence which indicated that firms stopped doing business with closing attorneys who experienced problems with their finances and demonstrated a sharp decline in plaintiff’s closing activities beginning in the third and fourth quarters of 1984 and continuing through 1985 and 1986, when there was virtually no business done by plaintiff corporation. An expert witness projected the amount of business lost and resulting loss of profits based upon a five-year period at over $440,000.

1. Defendant introduced five affidavits by jurors who served on the jury that one of their members was biased against banks and had failed to communicate that information when queried on voir dire. Defendant contends that it was denied a fair trial due to the juror’s undisclosed partiality and that the trial court should have granted it a new trial on that ground.

The public policy of this State is to keep jury trials free from suspicion of irregularity or impropriety of conduct. A method for assuring such, and an expression of the policy as a right, is provided in OCGA § 15-12-133. To implement the voir dire and its purpose, counsel are entitled to have truthful answers given to questions propounded to jurors. Pierce v. Altman, 147 Ga. App. 22, 24 (248 SE2d 34) (1978). For this reason, defendant’s entitlements to the information and to make a choice with regard to it are scrupulously enforced. Glover v. Maddox, 100 Ga. App. 262, 266 (5) (111 SE2d 164) (1959).

Nevertheless, a rule restricting an attack on the integrity of the jury is mandated in OCGA § 9-10-9. It permits affidavits of jurors to sustain but not to impeach their verdict. The cases interpreting this code section have strictly adhered to its precepts. “As a matter of public policy, a juror cannot be heard to impeach his verdict, either by way of disclosing the incompetency or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause.” Bowden v. State, 126 Ga. 578 (1) (55 SE 499) (1906). Watkins v. State, 237 Ga. 678, 683 (229 SE2d 465) (1976) contains a concise statement of the policy considerations.

“The rule of [OCGA § 9-10-9] has a valid and salutary application in disallowing jurors to impeach their verdicts on the basis of statements made to one another in the jury room and the effect of those statements upon the minds of the individual jurors.” Central of Ga. R. Co. v. Nash, 150 Ga. App. 68, 73 (3) (256 SE2d 619) (1979). While allegations that a juror gave untruthful answers to questions propounded on voir dire furnish a valid basis for reversal, such averments must be supported by evidence of probative value. Nash, supra at 72 (3). Affidavits by fellow jurors do not meet this requirement. Pie Nationwide v. Prickett, 189 Ga. App. 77 (374 SE2d 837) (1988) [physical precedent], and cases therein cited; Lozynsky v. Hairston, 168 Ga. App. 276 (308 SE2d 605) (1983); Swift v. S. S. Kresge Co., 159 Ga. App. 571, 572 (1) (284 SE2d 74) (1981); Pinkston v. Hagin, 157 Ga. App. 2 (1) (276 SE2d 67) (1981). Defendant failed to prove its allegation of juror misconduct.

2. Defendant has asserted no error as to the jury’s assessment of damages under count one of the complaint (breach of contract and UCC). However, it has set forth several errors alleged to have been committed with regards to count three, which is based on OCGA § 11-4-402, wrongful dishonor of checks.

(a) Defendant insists the evidence failed to show its actions were the cause of plaintiff’s business decline. Granted there was evidence tending to show plaintiff’s closing activities were lessening prior to the incidents averred in the complaint. There was also evidence Kneller may have phased out real estate closings to devote more time to other interests. There was no direct evidence that any particular concern would not continue to utilize Kneller’s services because of the bank’s actions. Nevertheless, the evidence of record does not compel a finding for defendant.

Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232 (367 SE2d 539) (1988), cited with approval Radcliffe v. Maddox, 45 Ga. App. 676 (2) (165 SE 841) (1932), and held that “the question as to the sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is a question for the jury.” On appellate review the issue is whether there is any evidence to sustain the finding. In determining if that standard has been met, “The circumstances shown must, in some appreciable degree, tend to establish the conclusion claimed.” Id. at 233. As held in Radcliffe, supra at 683 (2): “In civil cases all other reasonable theories are excluded when proved circumstances of real and actual probative value cause the jury to find that the preponderance of the evidence is in favor of the hypothesis claimed, as against all other reasonable but less probable theories.”

There was evidence that because of the competitive nature of the real estate closing business, firms dealing with closing attorneys quickly learned “through the grapevine” derogatory information about them and as a matter of policy ceased doing business with them, normally without any type of formal notification. Firms which had customarily dealt with plaintiff knew about its “bad check” problems and stopped thereafter. The history of plaintiff’s business was one of steady increase, until the third quarter of 1984, with the exception of 1982, a year when real estate sales were off. Although plaintiff’s closings may have begun to slide before the check problem surfaced, the jury was authorized to find that defendant’s actions were a major cause, even if not the sole cause, of the losses experienced by plaintiff. The evidence did not demand a result contrary to the jury’s findings.

(b) Defendant asserts that the evidence of plaintiff’s alleged loss of prospective profits was too remote, speculative or uncertain to warrant recovery. It challenges the methodology in the economic analysis for arriving at the figures and specifically points out that the salary Kneller drew from the corporation is relevant in computing its profits; that in compiling a statistical study of plaintiff’s business its expert ignored this factor and did not deduct salary in the computations. Defendant cites Southern Bell Tel. &c. Co. v. Kaminester, 400 S2d 804, 807 (Fla. App. 1981), as authority for the proposition that in the computation of net profits of a professional corporation the failure to deduct salary rendered proof of damages inadequate as a matter of law.

Plaintiff counters with Bettius & Sanderson v. Nat. Union Fire Ins. Co., 839 F2d 1009, 1012 (4th Cir. 1988), where the Kaminester rationale was rejected and profits were found to include salary paid to the sole owner of the professional corporation. It exposits a sounder rationale. Besides, the jurors were aware of the salary paid to Kneller and the issue involved was brought to their attention by cross-examination. Moreover, since the expert testified that plaintiff suffered a projected loss of $440,612, and the jury returned a verdict for $100,000, it may be assumed that the factors argued by defendant were taken into account by the “doctors of doubt.” See Central R. Co. v. Ferguson & Melson, 63 Ga. 84, 85 (2) (1879).

The consequential damages were not unsustainable as a matter of law.

(c) Defendant contends that in an action for wrongful dishonor under OCGA § 11-4-402 punitive damages may not be recovered because the action is contractual. See OCGA § 13-6-10; Pelletier v. Schultz, 157 Ga. App. 64 (276 SE2d 118) (1981). It also relies on the Uniform Commercial Code provision that “neither consequential or special nor penal damages may be had except as specifically provided in this title or by other rule of law.” OCGA § 11-1-106 (1).

OCGA § 11-4-402 limits compensation to actual damages for wrongful dishonor “when” it is due to mistake, but says nothing about punitive damages for dishonor arising from wilful or intentional conduct. Unless displaced by particular provisions of the UCC, the law existing prior to its enactment is still extant. Pre-UCC case law permitted the recovery of “temperate” damages for wrongful dishonor, without proof of special damages. Atlanta Nat. Bank v. Davis, 96 Ga. 334, 337 (23 SE 190) (1895); Milledgeville Banking Co. v. Carr, 104 Ga. App. 610 (3) (122 SE2d 284) (1961). “Temperate” damages invoked reasonable compensation for the injury sustained. Recognition was given to the fact that wrongful dishonor was in the nature of a tort, “analogized to an action of libel or slander.” Hilton v. Jesup Banking Co., 128 Ga. 30, 32 (1 & 2) (57 SE 78) (1907).

Although the code section does not describe the action for wrongful dishonor as being either contractual or tortious, the vast majority of jurisdictions has found the cause of action to be in tort. See cases cited in 7 Anderson, Uniform Commercial Code, p. 150, § 4-402.3; Anno., 18 ALR3d 1376, 1396. See, e.g., Shaw v. Union Bank & Trust Co., 640 P2d 953 (Okla. 1981); Northshore Bank v. Palmer, 525 SW2d 718 (Tex. Civ. App. 1975). Hawkland, in Vol. 6, Uniform Commercial Code Series, p. 215, § 4-402:05, questions whether the UCC leaves the theory of recovery to the traditional remedy of the jurisdiction, concluding “that the issue before the court will determine the theory,” while recognizing the defamatory nature of wrongful dishonor. See Official Code Comment, UCC, 1-201 (44). Compare Official Code Comment, UCC, 4-402 (2). Nevertheless, the precedential history of this court’s decisions indicates that wrongful dishonor may be considered a tort.

Defendant offers Bank South v. Harrell, 181 Ga. App. 64 (2) (351 SE2d 263) (1986), as support for its position that punitive damages may not be imposed. Harrell failed to show a breach of duty imposed by law and only showed a breach of contract, so punitive damages were not permitted. Here there is a breach of duty imposed by law; we perceive no sound reason for prohibiting punitive damages.

(d) Defendant’s request for the following instruction, was refused: “I charge you that a bank has no obligation to honor a check after an account has been closed.” The language was taken from Weber v. Western Bank, 336 NW2d 652 (S.D. S.Ct. 1983), which differs materially on the facts.

The precise question has not been decided by Georgia’s appellate courts. Defendant insists that Andrews v. Citizens Bank, 139 Ga. App. 763 (229 SE2d 501) (1976), and McMichen v. Ga. State Bank, 148 Ga. App. 680 (252 SE2d 198) (1979), are persuasive regarding its contention that a bank in Georgia is not liable for wrongful dishonor when the account has been closed. Both cases involved insufficient funds in the account; in neither of these cases nor in Weber was it shown that the reason for the insufficiency was the negligent or wrongful act of the bank.

As to plaintiff’s account, there was proof not only that the wrongful action of defendant was the cause of the insufficient funds but also that defendant’s summarily closing the account was not justified. The language of the request which contains no qualification was not adjusted to the facts and was properly refused.

(e) Defendant enumerates as error the failure to give its written request to charge in the language of OCGA § 51-12-8, which concerns damages too remote to be the basis of recovery. The trial court instructed the jury on the principles found in the code section although not in the exact language requested. This was sufficient. Hardwick v. Price 114 Ga. App. 817, 821 (3) (152 SE2d 905) (1966); Biggers v. Biggers, 250 Ga. 248, 249 (1) (297 SE2d 257) (1982).

3. Did the trial court err in failing to grant defendant’s motion for judgment n.o.v. as to expenses of litigation and attorney fees, awarded by the jury in plaintiff’s count five under OCGA § 13-6-11? Defendant contends there was a bona fide dispute as to the issues involved in counts one and three, the other counts in which defendant was found liable for damages.

Decided November 22, 1989

Rehearing denied December 20, 1989

Glass, McCullough, Sherrill & Harrold, R. Philip Shinall III, L. James Weil, Jr., for appellant.

Johnson & Montgomery, Harmon W. Caldwell, Jr., Wade H. Watson III, for appellee.

A plaintiff may recover for bad faith concerning the transactions and dealings out of which the cause of action arose. OCGA § 13-6-11; Computer Communications Specialists v. Hall, 188 Ga. App. 545, 547 (3) (373 SE2d 630) (1988); Cade v. Roberts, 175 Ga. App. 800, 801 (334 SE2d 379) (1985). A bona fide controversy within the contemplation of the code section pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant “acted in the most atrocious bad faith in his dealing with the plaintiff.” Powell v. Watson, 190 Ga. App. 375, 376 (378 SE2d 867) (1989). See also Ga.-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747, 750 (2) (B) (266 SE2d 531) (1980).

There was evidence authorizing the jury to determine that defendant acted in bad faith in the transactions which form the basis for recovery under counts one and three.

4. Defendant’s last enumeration of error complains of a statement by the trial court in its recharge to the jury. No objection was interposed and therefore we do not consider the argument made here. OCGA § 5-5-24 (a). Pittman v. Peebles, 148 Ga. App. 64, 65 (2) (251 SE2d 30) (1978). It is not urged that the asserted error in the charge rises to the level of OCGA § 5-5-24 (c). See Hamrick v. Wood, 175 Ga. App. 67, 68 (2) (332 SE2d 367) (1985).

Judgment affirmed.

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


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A1018.
    BORG-WARNER ACCEPTANCE CORPORATION v. BOAT TRADING, INC.
    (389 SE2d 555)
   Carley, Chief Judge.

Appellee-plaintiff Boat Trading, Inc. (Boat Trading) brought suit for conversion against appellant-defendant Borg-Warner Acceptance Corporation (Borg-Warner). The case was tried before a jury and a verdict for compensatory damages, punitive damages and attorney’s fees was returned for Boat Trading. Borg-Warner appeals from the judgment entered by the trial court on the jury’s verdict. The facts are set forth in the prior appeals of this case and will be repeated here only insofar as is necessary. See Dixon v. Borg-Warner Acceptance Corp., 186 Ga. App. 843 (368 SE2d 800) (1988); Credithrift of America v. Borg-Warner Acceptance Corp., 187 Ga. App. 534 (370 SE2d 801) (1988).

1. Borg-Warner enumerates as error the denial of its motion for a directed verdict on the issue of Boat Trading’s status as a “buyer in the ordinary course of business” under OCGA §§ 11-9-307 (1) and 11-1-201 (9).

Suffice it to say that here, as in Credithrift of America v. Borg-Warner Acceptance Corp., supra, the evidence as to Boat Trading’s status as a “buyer in the ordinary course of business” was conflicting and a directed verdict was not authorized. The jury’s verdict finding that Boat Trading was a “buyer in the ordinary course of business” is supported by sufficient evidence and the trial court did not err in denying Borg-Warner’s motion for a directed verdict.

2. Borg-Warner enumerates as error the trial court’s giving of jury instructions on the recoverability of attorney’s fees over objection that the evidence would not authorize such a recovery.

The only evidence cited by Boat Trading as authorizing its recovery of attorney’s fees is evidence that Borg-Warner was repeatedly told that Boat Trading had paid full value for the boats and that, despite this knowledge, Borg-Warner chose to proceed without making further inquiry and without responding to every communication relating thereto. However, the mere fact that Borg-Warner was apprised that Boat Trading had paid full value for the boats would show only that Borg-Warner was on notice that Boat Trading was the purchaser of the boats. As discussed in Division 1, Boat Trading’s status as a purchaser of the boats is not the material factor in this case. It is Boat Trading’s status as a purchaser in the ordinary course of business that is crucial. There is nothing in the record to authorize a finding that Borg-Warner knew or should have known that Boat Trading, although a purchaser of the boats, had unquestionably bought them in good faith and without knowledge that the sale was in violation of Borg-Warner’s security interest and that Boat Trading was, as a matter of law, a purchaser in the ordinary course of business. To the contrary, the record shows that Borg-Warner had viable evidence that, under the existing circumstances, Boat Trading was not a purchaser in the ordinary course of business because of its intimate connection with Norcross Marine, Inc.

As we held in a prior appeal of this case: “[T]here was evidence to authorize a finding that Boat Trading was not a buyer in [the] ordinary course [of business]. [Cits.]” Credithrift of America v. Borg-Warner Acceptance Corp., supra at 536. Boat Trading does not suggest what further efforts Borg-Warner could possibly have undertaken, short of litigation before a trior of fact, to determine the legal sufficiency of its evidence that, despite Boat Trading’s status as a purchaser, Boat Trading was nevertheless not a purchaser in the ordinary course of business because of its intimate connection with Nor-cross Marine, Inc. As noted in Division 1, the question of whether Boat Trading was a purchaser in the ordinary course of business was vigorously disputed. Borg-Warner was entitled to litigate that vigorously disputed question without being subjected to the imposition of attorney’s fees simply because its efforts were ultimately unsuccessful. There being a bona fide controversy as to Boat Trading’s status as a purchaser in the ordinary course of business, an award of attorney’s fees is not authorized. “Although this court has held that an award of attorney fees may be made under OCGA § 13-6-11 despite a bona fide controversy between the parties where attorney fees are sought on the ground that the party has acted in bad faith, [cit.], the ‘bad faith’ alleged here was the same conduct showing stubborn litigiousness. ... In these circumstances, ‘(s)uch bad faith damages are not recoverable where there exists a bona fide controversy. (Cit.)’ [Cit.]” General Hosps. of Humana v. Jenkins, 188 Ga. App. 825, 828-829 (2) (374 SE2d 739) (1988).

There was no evidence authorizing Boat Trading to recover attorney’s fees. It follows that the trial court erred in instructing the jury on this element of damages.

3. Borg-Warner enumerates as error the denial of its motion for a directed verdict on the issue of its liability for punitive damages.

Since this action arose prior to July 1, 1987, OCGA § 51-12-5 is applicable. The only evidence cited by Boat Trading as authorizing its recovery of punitive damages under OCGA § 51-12-5 is the evidence that Borg-Warner, having been put on notice of Boat Trading’s status as a purchaser, made no further inquiry. As discussed in Division 1, however, this evidence is essentially irrelevant. What is material is that the record shows that Borg-Warner did have viable evidence of Boat Trading’s lack of status as a purchaser in the ordinary course of business. There was, therefore, no evidence of any wilful misconduct in Borg-Warner’s refusal to accede to Boat Trading’s demands for the return of the boats. See generally Allmond v. Walker, 172 Ga. App. 870, 871 (2) (324 SE2d 812) (1984). The trial court erred in denying Borg-Warner’s motion for a directed verdict on the issue of its liability for punitive damages.

4. Borg-Warner enumerates as error the trial court’s refusal to give several written requests to charge. We have considered each of the requests and find that none of them was erroneously refused over the objections which were raised by Borg-Warner in the trial court.

5. Borg-Warner enumerates the general grounds as to its third-party claim. Our review of the record shows, however, that the evidence did not demand a verdict in favor of Borg-Warner on its third-party claim and the trial court did not err in entering judgment on the jury’s verdict on that claim.

Judgment affirmed with direction that punitive damages and attorney’s fees be stricken.

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

Beasley, Judge,

concurring in part and dissenting in part.

1. I concur in the holding that Borg-Warner was not entitled to a directed verdict.

2. The submission to the jury of the issue of punitive damages was appropriate. Borg-Warner lost its motion for directed verdict on this issue, and it excepted to charges on punitive damages having been given over objection. The charges themselves were full and fair and there is no claim that they were not accurate statements of the law.

The jury awarded $40,000 in this regard, and its verdict is to be given the benefit of every presumption and inference arising therefrom. American Appraisal Co. v. Whitley Constr. Co., 126 Ga. App. 398, 399 (190 SE2d 838) (1972).

Since this action arose prior to July 1, 1987, OCGA § 51-12-5 applies. “ ‘A jury may award additional damages in a tort action where there are “aggravating circumstances, either in the act or the intention.” [OCGA § 51-12-5] [Cit.] “[T]o authorize the imposition of exemplary damages, or punitive damages as they are commonly called, . . . there must be evidence of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” ’ [Cit.]” Melton v. LaCalamito, 158 Ga. App. 820, 825 (2b) (282 SE2d 393) (1981). Conversion will support these damages if done wilfully or in conscious disregard of the consequences. Investment Securities Corp. v. Cole, 57 Ga. App. 97, 102 (4) (194 SE 411) (1937), aff’d 186 Ga. 809.

Boat Trading’s cause of action was conversion by way of wrongful repossession of the five boats. There was evidence of a total lack of concern on the part of Borg-Warner over Boat Trading’s claim of ownership and a complete unwillingness to investigate it despite Boat Trading’s notices and documents. See Mr. Transmission v. Thompson, 173 Ga. App. 773, 775 (2) (328 SE2d 397) (1985). The verdict is not to be disturbed “unless it is insupportable as a matter of law,” Morgan v. Hawkins, 155 Ga. App. 836, 837 (1) (273 SE2d 221) (1980), which is not the case.

3. The jury’s consideration of an award of litigation expenses as compensatory damages under OCGA § 13-6-11 should also be affirmed. The majority concludes that there was no evidence of conduct on Borg-Warner’s part which would support them and therefore the jury should not have been charged on this issue. The court gave the essentials of OCGA § 13-6-11, and the jury awarded $25,000.

Even if there developed a bona fide controversy so as to justify resort to a court for its final resolution, attorney fees are recoverable when the party has acted in bad faith in its dealings with the claimant. Jackson v. Brinegar, Inc., 165 Ga. App. 432, 436 (301 SE2d 493) (1983); Formica Corp. v. Rouse, 176 Ga. App. 548, 549 (3) (336 SE2d 383) (1985) (physical precedent); Georgia-Carolina Brick &c. v. Brown, 153 Ga. App. 747, 749 (2) (266 SE2d 531) (1980). Here there was such, in connection with the original repossession and the additional refusal to return the boats to Boat Trading.

The evidence was that, when Boat Trading purchased the boats from Lanier Harbor, no mention was made of Borg-Warner’s financing.

After Borg-Warner decided to seize Norcross Marine’s inventory, Buddin, one of its representatives, told Jordan of Boat Trading on August 28 that Borg-Warner intended to seize Boat Trading’s boats even though Borg-Warner knew Boat Trading had paid for them and that Norcross Marine operated out of Lanier Harbor and sold boats there.

The boats were seized over the Labor Day weekend. Jordan provided Borg-Warner’s Harberson with copies of Boat Trading’s ownership and financing documents.

Before these five boats were returned to the out-of-state manufacturer under Borg-Warner’s buy-back agreement, Jordan had Boat Trading’s attorney contact Borg-Warner’s attorney and advise him of Boat Trading’s situation. Further, on September 11, Boat Trading sent its telegram demanding return of the boats; no response was received.

Before the boats were seized, Lackey, of Credithrift, Boat Trading’s finance company, also notified Harberson of its interest in the boats. He was told that Borg-Warner would check on this and call him back, although no one ever did.

Credithrift’s attorney also contacted Borg-Warner’s attorney by letters of September 25 and November 8 concerning the matter. After the last letter, Borg-Warner’s attorney advised Credithrift’s attorney to go ahead and sue, “I need the money.”

There was sufficient evidence of bad faith to merit the jury’s consideration of attorney fees. Jackson, supra; Formica Corp., supra; Georgia-Carolina Brick &c., supra.

Decided December 5, 1989

Rehearing denied December 20, 1989

Gurley & Fowler, James B. Gurley, Terry R. Drugan, for appellant.

Donald W. Gettle, Patricia L. Gordon, Linda W. Gettle, for appellee.

Therefore, I respectfully dissent from Divisions 2 and 3.

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this opinion.