text:
    73911.
    73912.
    EVANS v. THE STATE. JOINER v. THE STATE.
    (359 SE2d 174)
   Pope, Judge.

Bobby James Evans and Willie Terry Joiner bring these appeals from their convictions and sentences of burglary. Held:

Case No. 73911

1. Defendant Evans first enumerates as error the trial court’s denial of his motion to sever the trial of his case from that of his co-defendant Joiner. The basis of Evans’ claim for severance is that his defense was antagonistic to that of his co-defendant. See generally Murphy v. State, 246 Ga. 626 (2) (273 SE2d 2) (1980). This claim is based on the fact that each defendant denied knowledge of the garbage bag full of stolen cartons of cigarettes found in the car in which they were riding. Joiner (the driver) claimed he picked up hitchhiker Evans (the passenger) near the burglarized premises with the subject bag of loot, and Evans claimed that the bag of cigarettes found under his legs was already there when he got in the car.

“The grant or denial of a motion to sever is within the sound discretion of the trial court and the ruling thereon will not be disturbed unless there is an abuse of discretion. [Cits.] . . . The defendant seeking severance must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” Murphy, supra at 629. “The fact of antagonistic defenses does not of itself require severance, [cits.], and [Evans] has not demonstrated any clear prejudice and denial of due process which might have been avoided by severing the trials.” Kennedy v. State, 253 Ga. 132, 135 (317 SE2d 822) (1984); Everett v. State, 238 Ga. 80, 81 (230 SE2d 882) (1976); Kirby v. State, 174 Ga. App. 58 (2) (329 SE2d 228) (1985). Accordingly, we find no abuse of discretion in the trial court’s denial of Evans’ motion to sever.

2. Evans next cites as error the trial court’s denial of his motion to suppress evidence obtained as the result of the stop of the car in which he was a passenger. He contends that the police officer had no reason to stop the car.

The evidence showed that at approximately 12:45 a.m. on January 27, 1986 Officer Christian, while on patrol in northwest Atlanta, received notice that a tack alarm had been set off at a nearby convenience store. Due to past break-ins at this and other convenience stores in the area, the officer had checked the subject premises approximately 10 minutes earlier and had found everything in order. He then had proceeded to a gasoline station just up the street from the convenience store. Upon receipt of the alarm, the officer pulled out of the gasoline station, looked in all directions, and observed two occupants in a yellow 1969 Plymouth Satellite coming up the hill toward him, approximately 1,000 yards past the subject convenience store. There was no other person or car in sight. The officer proceeded to the convenience store and observed the glass in the front of the premises had been knocked out and cartons of cigarettes were laying in the parking lot. The officer immediately left the premises and began following the yellow Plymouth. When he obtained appropriate back-up assistance, he stopped the car. As he walked up to the driver’s side of the car, he observed in plain view passenger Evans with his legs over the top of a garbage bag; one cigarette carton was observed partially coming out from under Evans’ leg. Defendants were arrested and the bag of cigarettes seized.

Officer Christian offers the following reasons for stopping defendants’ car. Most burglaries of the type committed in this area happen extremely quickly, and the officer thought that his only chance to apprehend the perpetrators would be if they were in the immediate vicinity. At the time the officer received the alarm, he had a clear view of the area (“I could see a great distance”) and observed no persons or vehicles in the area except for defendants in the older model yellow Plymouth driving away from the burglarized premises. It was after midnight on a snowy evening and no businesses were open in the area. The yellow Plymouth was nearly identical to one described in a “lookout” the officer had received earlier from another officer regarding a possible suspect of other break-ins in which cigarettes were stolen.

“Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only ‘unpar-ticularized suspicion or “hunch,” ’ 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909).” United States v. Smith, 799 F2d 704, 707 (11th Cir. 1986). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Cits.]” United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).

“Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

“The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.

“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

“The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said that ‘(t)his demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.’ Id., at 21, n 18. . . .” (Citations and emphasis omitted.) Cortez, supra at 417-418.

The application of the above-stated legal principles to the facts of the case at bar clearly demonstrates that Officer Christian had sufficient “articulable suspicions” to authorize a brief investigative stop of defendants. See State v. Carter, 240 Ga. 518 (242 SE2d 28) (1978); Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986); State v. Turntime, 170 Ga. App. 740 (1) (318 SE2d 157) (1984); see also Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986). Accordingly, we find no error in the trial court’s denial of Evans’ motion to suppress.

3. Evans’ third enumeration cites as error the trial court’s ruling that there had been no systematic exclusion of blacks by the State during jury selection. The basis for this enumeration is the recent United States Supreme Court opinion in Batson v. Kentucky, 476 U. S. _ (106 SC 1712, 90 LE2d 69) (1986), holding that “[although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges ‘for any reason at all, as long as that reason is related to his view concerning the outcome’ of the case to be tried, [cit.], the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” 90 LE2d at 82-83. The record discloses that this issue was raised by the trial court sua sponte following voir dire and was based upon the fact that the State had peremptorily struck seven black veniremen. The court also noted that defendants (who are black) struck four black veniremen and that the jury empaneled was comprised fo five black jurors, seven white jurors and one black alternate juror. The court inquired of defendants if they had any challenge to the composition of the jury. Neither defendant raised any specific objection in this regard, but counsel for Evans “noticed that four or five of these seven blacks that were stricken by the State were in fact young or fairly young black males” and contended “that they were summarily stricken because they were young black males.”

Assuming arguendo that a proper objection was made in this regard, see Mincey v. State, 180 Ga. App. 263 (349 SE2d 1) (1986); cf. Ford v. State, 180 Ga. App. 807 (2) (350 SE2d 816) (1986), and also assuming arguendo that Evans made a prima facie showing of purposeful discrimination in selection of the jury, we turn to the issue of whether the State has countered that showing with a neutral explanation for challenging the black veniremen in this case.

The trial court found that the State struck the seven black veniremen “for legitimate reasons, peculiar to counsel and growing out of voir dire.” In summary, the State struck three veniremen on the basis of their employment (unemployed or recently employed) and the remaining four veniremen because they did not appear to be particularly interested in or responsive to the selection process. In light of these legitimate reasons presented by the State and giving “great deference” (90 LE2d at 89, n.21) to the trial court’s conclusion that the State’s peremptory challenges were not purposefully discriminatory, we cannot say that the trial court’s finding was clearly erroneous. See United States v. Mathews, 803 F2d 325 (7th Cir. 1986). Therefore, this enumeration provides no basis for reversal.

4. We find no merit in Evans’ assertion citing as error the trial court’s failure to grant a mistrial sua sponte in light of Officer Christian’s testimony referring to other “break-ins.” The record discloses no objection or motion for mistrial made contemporaneously with the alleged misconduct. Garner v. State, 180 Ga. App. 146 (1) (348 SE2d 690) (1986).

Decided June 15, 1987

Rehearing denied June 25, 1987.

Susan E. Teaster, for appellant (case no. 73911).

Drew Dubrin, for appellant (case no. 73912).

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Margaret Earls, Assistant District Attorneys, for appellee.

5. Finally, we find no abuse of discretion in the trial court’s giving the “Allen” or “dynamite” charge to the jury on the second day of their deliberations and after six and one-half hours of deliberation. Pittman v. State, 179 Ga. App. 760 (2a) (348 SE2d 107) (1986); Benton v. State, 178 Ga. App. 239 (5) (342 SE2d 722) (1986).

Case No. 73912

6. Defendant Joiner’s sole enumeration of error challenges the sufficiency of the evidence to support the verdict. Viewing the evidence presented in this case in a light most favorable to upholding the verdict, we find that any rational trier of fact could have found Joiner guilty of burglary beyond a reasonable doubt. See Dorsey v. State, 172 Ga. App. 39 (1) (321 SE2d 794) (1984); Miller v. State, 163 Ga. App. 406 (294 SE2d 614) (1982).

Judgment affirmed.

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

       The record discloses that a tack alarm “is basically ... a motion detector device that is put inside within so many feet of the front entrance of the store. It looks like an exaggerated microphone and it is pointed down at the front of the business on the inside and it scans the front area. Any movement that comes through that front area of a business, regardless of the type of business, when entrance is made the motion is detected by the device itself and it emits a radio signal. That radio signal is received by a receiving unit which is located . . . downtown in the [special operations] precinct which is manned ... 24 hours a day by a police officer. And when the signal goes off, he then dispatches to the appropriate zone wherever these tack alarms are located.”

       To establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial, “the defendant first must show that he is a member of a cognizable racial group, [cit.], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ [Cit.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury . . . raises the necessary inference of purposeful discrimination.” 90 LE2d at 87-88.

       “[T]he prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. [Cits.] But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. [Cits.] . . . Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive, or ‘affirming his good faith in individual selections.’ [Cit.]” 90 LE2d at 88.

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74132.
    METTER BANKING COMPANY v. FISHER FOODS, INC.
    (359 SE2d 145)
   Birdsong, Chief Judge.

This is an appeal from a grant of summary judgment to Fisher Foods, Inc., upon the trial court’s determination that Fisher Foods had a prior perfected security interest in “the crops, growing or to be grown,” (to wit, Vidalia Onions), of debtors He-Bo Farms, Inc. and James Bowen. The appellant, Metter Banking Company, contends that the trial court erred in the grant of summary judgment to Fisher Foods, and in denying summary judgment to Metter Banking Company for the contended reasons that the bank held a prior perfected security interest in He-Bo Farms’ onions, and that Fisher Farms was aware of such superior interest. Held:

We reverse, but not for the reasons assigned by appellant Metter Banking Company.

The bank advanced money to He-Bo Farms in 1981, obtaining, under a written security agreement, a security interest described in the December 28, 1981 financing statement, as follows: “All inventory of . . . He-Bo Farms, Inc. ... of every kind and description, whether now or hereafter existing or acquired, all accounts receivable, and all contract rights of business, whether now existing or hereafter acquired, evidencing any obligation to debtor for payment for goods sold or leased or services rendered, all interest of debtor, in any goods the sale or lease of which shall give or shall give rise to any of the foregoing, and all products and proceeds therefrom.” A box was checked on the financing statement indicating “Proceeds are also covered,” but a like box indicating “Crops are covered,” was not checked.

In December 1982, appellee Fisher Foods, Inc., an Ohio corporation, lent He-Bo Farms and Bowen $200,000. The president of Fisher Foods came to Metter to discuss this loan with He-Bo and with the Metter Banking Company. A written agreement arose from these negotiations, wherein Fisher Foods agreed to lend He-Bo $200,000; He-Bo and Bowen assigned to Fisher Foods one dollar for each and every bag of Vidalia Onions owned, processed or packaged and sold by or through He-Bo Farms and Bowen; He-Bo Farms and Bowen agreed to cause all invoices and payments for such onions to be made to Metter Banking Company and He-Bo or Bowen, and deposited in Metter Banking Company; the bank acknowledged He-Bo Farms’ assignment of $1.00 per bag to Fisher Foods, and agreed to segregate and remit to Fisher Foods $1.00 for each and every bag sold. The agreement also granted Fisher Foods “a security interest in the Vid-alia Onion crop, whether growing or harvested, and whether packaged, stored or in process,” to the extent of the unpaid balance of the loan. Metter Banking Company acknowledged this agreement in writing “solely for the purpose of acknowledging [He-Bo Farms’ assignment of $1.00 per bag to Fisher Foods] and [the bank’s] agreement to segregate and pay funds received to Fisher Foods, Inc.”

Fisher Foods then, on December 27, 1982, filed a financing statement covering “[t] he crops growing or to be grown as listed. . . .”

Matters proceeded as anticipated, until early 1984, when He-Bo Farms defaulted on Fisher Foods’ loan. In February 1984, Fisher Foods obtained a judgment against He-Bo Farms in the amount of $113,075.71 plus costs and interest. Thereafter, according to Fisher Foods, He-Bo Farms offered to ship portions of its onion crop to Fisher Foods in partial satisfaction of the judgment debt, and appel-lee Fisher Foods accepted this offer, “as it had a valid perfected security interest in the crop by virtue of the December 27, 1982 financing statement.” The appellant Metter Banking Company then sued Fisher Foods for the value of the onions, $54,475 as evidenced by the invoices representing those shipments. The trial court found that the bank did not, as it claimed, have a prior perfected security interest in He-Bo Farms’ onion crop, while Fisher Foods did, and granted judgment accordingly.

The appellant bank does not challenge the sufficiency of Fisher Foods’ stated interest in Fisher Foods’ financing statement or in its security agreement, but the bank earnestly contends its own prior financing statement, as to “inventory,” includes “crops,” and makes other arguments centered upon Fisher Foods’ knowledge of the bank’s interests. However, we agree with the trial court that clearly the bank did not have a perfected interest in “the crops.” See OCGA § 11-9-109 (3) and (4). Be that as it may, it is clear that what the bank did have was a prior perfected interest in all of He-Bo’s “accounts receivable and all contract rights of business, whether now existing or hereafter acquired, evidencing any obligation to debtor for payment of goods sold, [and] all interest of debtor in any goods the sale ... of which shall give rise to any of the foregoing, and all products and proceeds therefrom.” (Emphasis supplied.)

OCGA § 11-9-106 defines “account” in the sense of collateral, as “any right to payment for goods sold . . . whether or not it has been earned by performance(Emphasis supplied.) Formerly this code section included the designation of “contract rights” which meant the right to payment to be earned in the future. See former Ga. Code Ann. § 109A-9 — 106, Harrison ed., Ga. Revisers’ Comments; E. Turgeon Constr. Co. v. Elhatton Plumbing &c. Co., 292 A2d 230 (S. Ct. R. I. 1972). This distinction is now included in the definition of “accounts” in OCGA § 11-9-106, but the substance of the rights granted remains the same. He-Bo Farms had a right to payment for its onions, to be earned by sale, and did not have the right to give it up and thereby defeat the bank’s perfected security interest in He-Bo’s contract rights and accounts receivable “whether or not [they have] been earned by performance(Emphasis supplied.) OCGA § 11-9-106. It was certainly not intended that the debtor could defeat entirely the bank’s perfected interest in its accounts receivable by giving away its product to another creditor with an interest in the product which is inferior in point of perfection. “The entire thrust of [Article 9 of the UCC] is the protection of the innocent creditors from a secret transfer of substantial intangible assets upon which they relied.” E. Turgeon Constr. Co., supra, pp. 233-234.

Moreover, the security agreement between He-Bo Farms and the bank evidenced the intent to secure as collateral the substantial right of He-Bo Farms to sell its produce and be paid for it. The bank’s security agreement required precise accounting by He-Bo Farms of the disposition of its produce, its accounts, profit, loss, collections, discounts, and receivables actually charged off He-Bo Farms’ books. He-Bo Farms covenanted that “except for the sale or lease of Inventory in the ordinary course of its business, will not sell, lease, assign or create or permit to exist any lien on or security interest in any Collateral to or in favor of anyone other than the Bank. ...” OCGA § 11-9-306 (1) and (2) provide that “proceeds” include whatever is received upon the sale, exchange, or other disposition of collateral or proceeds; and that “a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds. . . .” (Emphasis supplied.) The security interest of the bank evidenced in its 1981 financing statement covered not only accounts receivables and contract rights of business, but “all interest of the debtor in any goods the sale or lease of which shall. . . give rise to any of the foregoing and all products and proceeds therefrom.” (Emphasis supplied.)

Furthermore, the bank’s right to collect and receive the payment for He-Bo’s onions was agreed to and acknowledged by Fisher Foods in its own security agreement, notwithstanding Fisher Foods’ security interest in He-Bo Farms’ “crops . . . growing or to be grown.” That agreement between Fisher Foods and He-Bo Farms also evidenced Fisher Foods’ intent to recoup its loan from the sale of the onions and the assignment to it of $1.00 per bag to be remitted by the bank out of the accounts received. It was intended by the bank in its security agreement that the “accounts received” would be all of the accounts receivable and contract rights of business. Even if Fisher Foods theoretically had had a right to the “crops” themselves in defeat of the bank’s prior perfected right to accounts receivable, it subordinated that right by agreeing to be paid out of the accounts received by the bank under the bank’s security agreement with He-Bo Farms. OCGA § 11-9-316. See First Security Bank of Utah v. Wright, 521 P2d 563 (S. Ct. Ut. 1974). This debtor was allowed to sell his onions but was obliged to bring his proceeds to the bank. See Moffat County State Bank v. Producers Livestock Mktg., 598 FSupp. 1562, 1564 (U. S. Dist. Ct. Colo. 1984). When he gave the onions to a creditor with an inferior perfected interest in the onions themselves, a creditor who moreover had agreed to be paid out of accounts received by the bank, the bank’s collateral was converted under OCGA § 11-9-306. See Trust Co. of Columbus v. Assoc. Grocers Co-Op, 152 Ga. App. 701, 702 (263 SE2d 676). See also First Nat. Bank v. Atchison County Auction Co., 699 P2d 1032 (10 Kan. App. 2d 382) (1985).

We note that the commercial code regards the sale of farm products on a higher level than most other sales, in that a security interest created by the seller of farm product follows even to a buyer in the ordinary course of business. OCGA § 11-9-307 (1); First Nat. Bank, supra; see Bank of Madison v. Tri-County &c. Co., 123 Ga. App. 768 (182 SE2d 687), rev’d on other grounds, 228 Ga. 325 (185 SE2d 393). See also OCGA § 11-9-312 (2), which is not in issue in this case. The object is, obviously, to give greater protection to the financiers of farm production. In this light, it is unreasonable to assume the debtor can defeat a perfected prior interest in the sale of his farm products by giving the products themselves to a creditor with a subsequently perfected interest in the products, particularly when that creditor by agreement acknowledges the bank’s security interest in the accounts receivable and takes the security interest in those products subject to that prior perfected interest in the sale, or accounts receivable.

The trial court erred in granting summary judgment to the appel-lee Fisher Foods on the basis of its perfected interest in the “crops.” The appellant bank’s perfected interest in the sale of the products, the accounts receivable, was prior and superior to, the appellee’s interest in the crops; and furthermore, this superiority was agreed to by the appellee. Summary judgment should have been granted to the ap-pellee bank.

Judgment reversed.

Deen, P. J., and Pope, J., concur.

On Motion for Rehearing.

The appellee Fisher Foods, Inc. contends we overlooked the obvious fact that these items were onions before they were accounts receivable. If we split the hair so fine, it becomes clear that Fisher Foods itself did not have a superior interest in the onions unless they were “growing or to be grown.” These onions do not fit that description. They were shipped to Fisher Foods after He-Bo asked it to “purchase certain onions.” They were bagged for sale and even bore sales invoices reflecting their sale price and expected remittance of the price to the Metter Banking Company. In this posture, they had long since left the state of “growing or to be grown.”

But as for the deep question whether the onions were onions before they were accounts, to pose the question is to admit the answer, which is, that if Fisher Foods’ interest could attach before the onions were sold, so could the bank’s interest in accounts and contract rights, “whether now or hereafter acquired” and whether the rights of sale were “earned by performance.” OCGA § 11-9-106. And if the line is so dim as to be discerned only with the most searching philosophical acuity, and even then not clearly, then at best we have conflicting security interests, in which case the bank takes priority in time of filing or perfection. OCGA § 11-9-312 (5) (a).

Motion for rehearing denied.

Decided May 20, 1987

Rehearing denied June 25, 1987

Carroll Van Reynolds, for appellant.

Gerald M. Edenfield, Michael J. Classens, for appellee.


author: Sognier, Judge. Beasley, Judge,

text:
    73672.
    RIGG v. NEW WORLD PICTURES, INC.
    (359 SE2d 207)
   Sognier, Judge.

New World Pictures, Inc. brought suit against John L. “Jack” Rigg seeking, inter alia, recovery of sums wrongfully converted by Rigg. Rigg counterclaimed asserting he was a partner of New World Pictures and thus was entitled to an accounting. The trial court directed a verdict in favor of New World Pictures on Rigg’s counterclaim and the jury returned a verdict in favor of New World Pictures awarding actual and exemplary damages and attorney fees. The trial court denied Rigg’s motion for a new trial and Rigg appeals.

Appellant and appellee signed an agreement in April 1975, backdated to January 1, 1975, whereby appellee engaged appellant to serve as Executive Director of appellee’s “Atlanta Exchange” branch for the purpose of distributing motion pictures. In 1978, an agreement similar to the 1975 agreement was signed by the parties. In September 1980, a surprise audit revealed appellant had falsified documents, paid personal expenses and obligations with funds provided by appel-lee for work-related obligations, and numerous other wrongful uses of appellee’s funds. Appellant’s employment with appellee was terminated.

1. Appellant contends the trial court erred by charging the jury on the construction to be given the uncorroborated testimony of a party who offers himself as a witness when his testimony is self-contradictory, vague or equivocal. Appellant does not assert his testimony was not vague, self-contradictory or equivocal; rather appellant argues such a charge was harmful error because (a) the charge applies only to parties plaintiff and was therefore not applicable to him or, alternatively, (b) the charge was not applicable in view of other testimony corroborating appellant’s testimony on two items of damages claimed by appellee.

(a) We find no merit in appellant’s argument that the trial court’s charge was inapplicable to him because he was a defendant. The trial court instructed the jury, “[i]f you find that [appellant] has appeared as a witness for himself and has given self contradictory, vague, or equivocal testimony, then that testimony is to be construed most strongly against him; and if the most unfavorable version of his testimony shows that the verdict should be against him, then you must find a verdict in favor of the plaintiff and against defendant.” In Weathers v. Cowan, 176 Ga. App. 19, 20 (2) (335 SE2d 392) (1985), the following charge was given as to all parties in that case: “ ‘Testimony of a party who offers himself or herself as a witness in his or her own behalf is to be construed most strongly against such party when it is self-contradictory, vague, or equivocal, and that party is not entitled to a finding in his or her favor if that version of testimony that is most unfavorable to that party shows that the verdict should be against that party.’ ” (Emphasis omitted.) While we approved this charge in Weathers, we reversed the judgment therein on the basis that this charge, insofar as the plaintiff was concerned, was inapplicable because of evidence corroborating the plaintiff’s testimony. Id. at 22. The trial court in the case sub judice corrected the possible error in the charge by specifying the only party as to whom the charge was applicable, i.e., appellant. We note that the trial court fully and properly charged the jury that the burden was on appellee to prove its case by a preponderance of the evidence.

(b) Appellant admits in his brief that “[w]ith the exception of two items of damages claimed by Appellee, [appellant’s] testimony was not corroborated by other witnesses.” Appellant has thus conceded that the instruction to the jury regarding his vague, self-contradictory, equivocal, and uncorroborated testimony was appropriate and applicable as to all but two of the items of damages sought by appellee. However, we need not address the argument whether the absence of any evidence to corroborate the majority of appellant’s vague, self-contradictory and equivocal testimony would in and of itself authorize the trial court’s charge since our review of the voluminous transcript reveals no evidence to support appellant’s arguments that his testimony was corroborated even on the two contested items of damages raised in this enumeration. While there was evidence by appellee’s expert witnesses that legitimate out-of-pocket expenses incurred as part of appellant’s employment would be paid, this evidence did not corroborate appellant’s testimony that he was entitled to be recompensed for personal expenses in view of the fact that there was no evidence to corroborate appellant’s assertion that these particular personal expenses were employment related. In regard to the second contested item of damages, producer’s share of film rentals, testimony by appellee’s expert witnesses that appellant would be entitled to the share money if appellant owned the film rights did not support appellant’s testimony which, elusive and evasive as it was, in essence revealed he did not own those film rights. Thus, in the absence of any evidence corroborating appellant’s- vague, self-contradictory and equivocal testimony, we find no error in the trial court’s instruction to the jury on this matter.

2. Appellant contends the trial court erred by granting appellee’s motion for a directed verdict against appellant on his counterclaim. In this regard appellant also contends the trial court erred by excluding evidence of his partnership with appellee, in the form of a letter allegedly written by an officer of appellee to another employee in the Atlanta Exchange branch office.

We find no error in the trial court’s grant of a directed verdict to appellee on appellant’s counterclaim or in the trial court’s exclusion of appellant’s exhibit. The agreements appellant signed in 1975 and 1978 unambiguously established an employment relationship between the parties. Appellant testified he read and signed both agreements; there is no evidence of fraud involving the employment agreements. Further, the employment agreements provided that they constituted the entire agreement between the parties and could not be modified except by a written document signed by both parties. No such written modifications were ever entered into by the parties. Thus, no question of fact exists that the relationship between appellant and appellee was an employment relationship, rather than a partnership, and the verdict was properly directed on this issue. OCGA § 9-11-50 (a); see Bass v. C & S Nat. Bank, 168 Ga. App. 668, 669 (1) (309 SE2d 850) (1983). Although appellant argues the letter he proffered as evidence constituted an admission by appellee to a third party that the Atlanta Exchange was a partnership prior to 1980, it is axiomatic that in the absence of any ambiguity, parol or extrinsic evidence is not admissible to add to, take from, or vary the terms of a written contract. OCGA § 13-2-2 (1); OCGA § 24-6-1. See also Bank Bldg. &c. Corp. v. Ga. State Bank, 132 Ga. App. 762, 765 (2) (209 SE2d 82) (1974). Accordingly, the trial court did not err by excluding this evidence. See generally Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 2.

The jury charge ruled on in Division 1 was not entirely correct. It is true that the principle applies to a defendant as well as a plaintiff. From early on, it has been stated and reiterated that the principle applies to “a party” rather than being limited to “a plaintiff.” See, e.g., Western & A. R. Co. v. Evans, 96 Ga. 481, 486 (23 SE 494) (1895), which states succinctly the reason for the rule which, when so considered, fits a defendant as well as a plaintiff. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), expressly refers to its applicability to the “defense.” Its use against a defendant has been approved. Goldstein v. GTE Prods. Corp., 160 Ga. App. 767, 768 (2) (287 SE2d 105) (1981).

Decided June 25, 1987.

Charles M. Kidd, Gwenn Dorb Holland, for appellant.

Donald A. Weissman, for appellee.

The problem with the charge as given is that it did not add the qualifier, “provided that plaintiff has proved its case.” Just because a defendant’s testimony does not measure up does not automatically mean that plaintiff is entitled to a verdict. The plaintiff is still required at least to prove the elements of its claim, making a prima facie case, in order to prevail. Also, if there are other defenses, plaintiff’s evidence must preponderate. The result of defendant’s deficient testimony is that he loses the defense it seeks to establish.

Where the defective testimony is plaintiff’s, no qualifier is needed, because the defective testimony, which is the sole evidence, ipso facto fails to establish a prima facie case, which is plaintiff’s burden. This premise as to plaintiff is stated in Clark v. Bandy, 196 Ga. 546, 561 (27 SE2d 17) (1943): “[W]hen the testimony of the plaintiff himself is being considered, there will be borne in mind the rule that if a plaintiff fails to establish the material allegations of his petition, or if his testimony is contradictory and uncertain as to such allegations, the court, on motion to nonsuit, should construe the evidence most strongly against him, and may, if no other testimony appears, be authorized to grant a nonsuit.” Notice the “ifs”.

Castile v. Burton, 200 Ga. 877, 882 (2) (38 SE2d 919) (1946) also illustrates the point. Goldstein, supra, the case applying the principle to a defendant’s testimony, also alludes to it: “As the appellant’s [vague, inconclusive, and uncertain] evidence was insufficient to support a verdict allowing him the credit [on the open account which was sued on], it was not error to direct a verdict .in favor of the [plaintiff] on the amount proved owed” (Emphasis supplied.) The emphasized portion imports the qualifier.

Considering the charge as a whole, and it containing a clear emphasis on the plaintiff’s burden of proof, I do not conclude the foreshortened charge on the effect of defendant’s testimony to be reversible error.


text:
    74462.
    BOOKER v. EDDINS et al.
    (359 SE2d 211)
   Birdsong, Chief Judge.

Summary Judgment — Malicious Prosecution. The facts in this record show that M. V. Booker, a member of the Georgia Bar, moved to Dublin and joined together in practice with an attorney already in practice in that city. Shortly after commencing practice, Ms. Booker received a letter notice from the city governing authorities that a local ordinance required the payment of an annual fee of $100 in order to practice in Dublin. This fee was labeled a “license” rather than a tax. Ms. Booker replied by mail that her associate in practice had already paid the required fee and accordingly declined to pay an extra $100. By return mail, Ms. Booker was informed the fee was required of all persons engaging in certain type activities in the City of Dublin, including the practice of law. Ms. Booker then complained that the “practice of law” was controlled by a license issued by the state and thus the City of Dublin could not limit her right to practice law by a local law. The authorities of the City considered the declination by Ms. Booker to pay the fee. Being aware that all others similarly situated had paid the fee without protest and relying on case law that a revenue raising “tax” could be imposed by local governments, the authorities pursuant to the requirements of the local ordinance, sought and obtained a summons requiring Ms. Booker to appear in the local city court and answer the failure to pay the fee while still practicing law. The city court took the case under advisement and ultimately determined that even though Ms. Booker was in clear violation of the local ordinance, the enforcement provisions of the ordinance were contrary to case law and dismissed the complaint filed by the City for failure to pay the fee. The ordinance in effect provided a criminal sanction whereas in the opinion of the city court the proper sanction was the civil imposition of penalties (see Gleason v. City Council of Augusta, 242 Ga. 796 (251 SE2d 536)).

After Ms. Booker received a favorable verdict, she brought the present complaint in the superior court against the governing authorities in both their corporate and personal capacities. After hearing arguments and considering the briefs and affidavits filed by the respective parties, the trial court found no evidence of malice nor absence of probable cause so as to support a conclusion of malicious action by any of the members of the City Council to support a malicious prosecution. Accordingly, the trial court granted summary judgment to each of the appellees. Ms. Booker now brings this appeal contending there were unanswered questions of fact that precluded the grant of summary judgment. Held:

OCGA § 51-7-40 provides a remedy for those who have been subjected to a criminal prosecution carried on without any probable cause and thus maliciously. This form of action however is not favored by the courts of this state. Public policy encourages bringing to justice those who are or apparently are guilty of disregard for the criminal law. See Day Realty Assoc. v. McMillan, 247 Ga. 561 (277 SE2d 663). Where the facts are undisputed and disclose that a complaint was filed in good faith with probable cause, and there is no sufficient issue of fact as to at least one element of the tort of malicious prosecution, such a factual posture warrants the grant of a summary judgment. See Fisher v. Kentucky Fried Chicken, 175 Ga. App. 542 (333 SE2d 877). In the recent case of Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23), the existing law was reaffirmed concluding again that citizens of this state have a duty to report a suspected crime. Who has such a duty is a matter for the courts and should be handled within the legal system. It constitutes no encouragement for the reporting of misconduct when a criminal victim can easily and at great hazard become a civil defendant.

Pertinent provisions of the ordinance in question required the appropriate authority to enforce the fee ordinance in that any person, firm or corporation violating the ordinance, upon conviction, was to be punished as prescribed by the Official Code of the City of Dublin. We must presume that a public official will carry out the duties imposed upon that official. See Bank of Clearwater v. Kimbrel, 240 Ga. 570, 572 (242 SE2d 16).

In a suit for malicious prosecution, the gravamen of the action is the want of probable cause on the part of the person or persons instituting the prosecution. Probable cause in this regard may be defined as the existence of such facts and circumstances in the mind of a reasonable person, the reaction of those facts and circumstances upon the mind of such reasonable person, and the reasonable acting on the facts within the mind of the prosecutor, so as to cause a belief the person was guilty of the crime for which the prosecution was being pursued. Where the facts are not in dispute and establish probable cause, the question is one for the court and not a jury. See Morgan v. Mize, 118 Ga. App. 534-535 (2a, b) (164 SE2d 565).

In this record, we can find no evidence of an effort to deny Ms. Booker the right or permission to practice her profession, that is to regulate the practice of law. The ordinance in question, as found by the city court, sought to impose a business license or fee, thus to raise revenue and not to regulate a profession or trade. The penalty, though inappropriately to be exercised as a criminal penalty, did not seek to prohibit the exercise of the business, but to impose a penalty for failure to pay the fee. Within the knowledge of the City Council was the fact that the business fee had been successfully imposed, without challenge, on all other attorneys in Dublin, including Ms. Booker’s own associate. Even when Ms. Booker challenged the right of the Council to impose the fee, she did so on the basis that her associate had already paid the necessary fee and later when the fee was made personal to her, she challenged the fee upon the basis that the local law attempted to regulate the practice of law, a power only to be exercised by the State.

Prior to the seeking of the summons by appellees, it is totally undisputed that Ms. Booker was in violation of the ordinance for she twice had refused to pay the business fee. The City Attorney (one of the defendants) had examined the existing law and concluded that the City of Dublin had an unquestioned right to require the payment of business fees. All these facts were within the knowledge of the City Council prior to the issuance of the summons requiring Ms. Booker to appear and answer for her failure to pay the demanded fee. In its order, the City Court of Dublin found as a matter of fact and law that Ms. Booker was in clear violation of the ordinance. It was the court’s ultimate opinion, however, that the only sanction could be in the nature of a civil penalty and not of a criminal. At no time did Ms. Booker protest the validity of the ordinance on the grounds the ordinance was void because it was a criminal statute rather than a civil one.

Ms. Booker has admitted the existence of the above facts because she did not file a response to the appellees’ statement of material facts as to which there is no dispute. See General GMC Trucks v. Mercury Freight Lines, 704 F2d 1237 (11th Cir. 1983). Opposed to the facts within the knowledge of the City Council as to a violation of the ordinance, Ms. Booker makes a general and conclusory allegation that all the appellees acted hastily and without appropriate research thus causing the prosecutors not to reach the same conclusion reached by the judge of the city court, a conclusion she admits was not based upon personal knowledge. It should be noted that it took the city court three months to reach its decision. The conclusion that was reached was never advanced by Ms. Booker until after the city court reached what it characterized as the solution to a complex legal question. The unsupported conclusions of Ms. Booker do not create an issue of fact on the question of probable cause. In order to show lack of probable cause or the existence of malice, Ms. Booker was obligated to show specific facts showing the probability of lack of probable cause and malice. Jones v. Walker, 167 Ga. App. 286 (306 SE2d 315). Our search of this record discloses no specific fact other than general arguments that may lead to inferences. Such generalized arguments (amounting to mere conclusions) have no probative value to pierce the facts presented by the City Council to establish its good faith and probable cause. See Withrow Timber Co. v. Blackburn, 244 Ga. 549 (261 SE2d 361). Where it is clear from the evidence that the prosecutors did have probable cause for the prosecution of Ms. Booker, a summary judgment for the appellee City Council was demanded. Wilson v. Home Depot, 180 Ga. App. 218, 220 (348 SE2d 588).

Parenthetically we note that the city’s action seeking the criminal sanction against Booker was instituted in June 1985, and dismissed in October 1985. Thus while we are cognizant of the desirability and necessity of bringing a compulsory counterclaim for a malicious prosecution along with the successful defense of the underlying proceedings (Yost v. Torok, 256 Ga. 92 (344 SE2d 414)), the merger of the malicious prosecution action with the underlying proceeding was not mandated until June 1986. Thus the question of failure to bring a compulsory counterclaim was not raised below and is not an issue in this appeal.

Decided June 26, 1987.

Floyd Mincey, for appellant.

Michael K. Jablonski, Charles M. Dalziel, Jr., Elmer Nash, for appellees.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    73718.
    MAZUR v. FOOD GIANT, INC.
    (359 SE2d 178)
   Pope, Judge.

Plaintiff appeals the trial court’s grant of summary judgment to defendant in a slip and fall case. Plaintiff’s complaint alleges he slipped on frozen vegetables which had fallen to the floor from a bag in a frozen food display case. Testimony of defendant’s employee established the vegetables had partially thawed and water, not ice, was found on the floor where plaintiff fell. Nevertheless, said employee and the manager of the store both walked past the display case only ten to fifteen minutes prior to plaintiff’s fall and saw no foreign matter on the floor.

1. If the only issue raised by plaintiff was defendant’s actual or constructive knowledge that the vegetables had fallen to the floor, we would uphold the grant of summary judgment. Plaintiff argues the circumstantial evidence that the vegetables had been on the floor long enough to thaw creates an issue of fact as to whether the vegetables had been on the floor for a length of time sufficient for knowledge of the presence of this debris to he imputed to defendant. However, the direct and undisputed testimony of defendant’s employees established the floor was free of debris some ten to fifteen minutes prior to the fall. It is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980); Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 (4) (226 SE2d 142) (1976). Where it appears a foreign object had “not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.” Jones v. West End Theatre Co., 94 Ga. App. 299, 303 (94 SE2d 135) (1956). The fact that slices and pieces of vegetables from a bag of frozen food had thawed on the floor is not inconsistent with testimony that they were not present on the floor ten to fifteen minutes earlier. Circumstantial evidence that the vegetables had thawed creates no issue for the jury since “[t]he rule is that a fact shown by direct, uncontradicted, reasonable and unimpeached evidence cannot be disproved by circumstantial evidence consistent with such direct evidence.” King v. Sharpe, 96 Ga. App. 71, 78 (99 SE2d 283) (1957); see also Lewis v. American Rd. Ins. Co., 119 Ga. App. 507 (2a) (167 SE2d 729) (1969); Neill v. Hill, 32 Ga. App. 381 (2b) (123 SE 30) (1924).

2. Plaintiff’s deposition, which is referred to in the lower court’s order, is not before us in the record of this case. However, plaintiff’s affidavit and the affidavit of plaintiff’s expert witness raise the issue of whether plaintiff’s fall was caused by a second hazardous condition, namely, a slippery “film” on the floor allegedly caused by condensation from the refrigeration unit. “Although [this] theory was not presented in the complaint, the pleadings are deemed amended to conform to the evidence presented, and we therefore deem it proper to consider this argument.” DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 125 (248 SE2d 193) (1978). The record now before us contains insufficient evidence to support a grant of summary judgment to defendant in regard to plaintiff’s allegations that the fall was caused by a negligently maintained floor or refrigeration unit.

We uphold the lower court’s grant of summary judgment on all other issues plaintiff attempted to raise in the affidavit of his expert witness. The record before us contains no allegation or testimony that plaintiff’s fall was in any way related to the design of the pushcart provided by defendant. Plaintiff admits in his complaint that his view of the floor was obstructed by groceries he had loaded in the pushcart. Defendant was under no duty to warn plaintiff of a fact of which plaintiff was already aware. Therefore, the opinion of plaintiff’s expert that the pushcart obstructed plaintiff’s view is irrelevant. Testimony that the display design drew attention away from the floor is also irrelevant since plaintiff has failed to show defendant had actual or constructive knowledge of the alleged hazard.

Consistent with the above, we reverse summary judgment on plaintiff’s allegation that he fell as a result of defendant’s negligence in allowing a slippery film to form on the floor. We uphold summary judgment in favor of defendant on all other issues raised by plaintiff.

Judgment affirmed in part; reversed in part.

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

Decided June 15, 1987

Rehearing denied June 29, 1987

Robert S. Windholz, for appellant.

James C. Gaulden, Jr., for appellee.


text:
    73772.
    LAMB v. R. L. MATHIS CERTIFIED DAIRY COMPANY.
    (359 SE2d 214)
   Pope, Judge.

An automobile owned by plaintiff Lamb and driven by plaintiffs wife was involved in a collision with a vehicle owned by defendant Mathis Certified Dairy Company and driven by its employee. Defendant admitted liability for the collision and agreed to pay plaintiff for damages to his automobile. Defendant reimbursed plaintiff for repairs made by the body shop and for a bill for one month’s rental of a replacement automobile. Defendant refused to pay for mechanical work performed on the engine or for automobile rental charges for an additional six weeks. Plaintiff brought this action to recover his additional claims. Plaintiff appeals from the directed verdict in favor of defendant.

1. We agree the trial court erred by directing a verdict in favor of defendant as to plaintiff’s claim of $90.74 for the replacement of a tire. No photographs of the automobile either before or after the collision were offered as evidence. However, it is undisputed that the “front side” of the plaintiff’s automobile was struck and damaged in the collision. Plaintiff was not an eyewitness to the accident but arrived at the scene before the automobile was removed. Thus, he had the opportunity to observe the physical damage sustained in the collision. Plaintiff testified one of the tires was damaged in the collision and he paid $90.74 to replace the tire. The trial court improperly excluded the invoice for the tire and erred in directing a verdict in defendant’s favor as to plaintiff’s claim for said damages. Plaintiff’s testimony concerning the damage he observed to the tire and its relation to the location of other physical damage to the vehicle was competent circumstantial evidence sufficient to create a jury issue as to plaintiff’s claims for damages to the tire. The testimony of an expert witness would not be required for physical damage plaintiff was able to observe for himself.

2. However, plaintiff’s testimony was insufficient to create an issue for the jury as to whether mechanical work performed on the engine of the vehicle was causally related to the collision. The vehicle in question was a 1976 BMW which was nine years old at the time of collision in 1985. Bills for mechanical work which the plaintiff sought to submit into evidence contained charges for replacement of numerous engine parts, including spark plugs, the back tail light, the radio antenna and the air flow meter. Plaintiff testified he personally examined the parts removed and replaced by the mechanic and that they were damaged. However, plaintiff admitted he was not an expert in the area of engine repairs. Testimony concerning the owner’s unqualified opinion as to causation of internal mechanical damage to an automobile is quite different from testimony concerning outwardly visible external damage which did not require the testimony of an expert, as discussed in Division 1. Plaintiff was admittedly unqualified to offer an opinion as to whether all or part of the work performed on the engine was necessitated by damage sustained in the collision. Since plaintiff’s unqualified testimony was the only evidence offered by him on the issue of mechanical damage, the trial court properly excluded copies of the mechanic’s bills from the record and properly directed a verdict to the defendant on this item of damage.

3. Plaintiff offered no expert testimony as to the permanent impairment of the value of the automobile. However, “[o]ne need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.” OCGA § 24-9-66. Plaintiff testified that the automobile was traded for $4,000 on another vehicle approximately six months after the collision. The amount received for trade of a vehicle after repairs have been made is admissible on the issue of depreciation in value. Appling Motors v. Todd, 143 Ga. App. 644 (2c) (239 SE2d 537) (1977). It was plaintiff’s opinion that the automobile was worth $8,500 prior to the collision. This opinion was based upon plaintiff’s survey of the sales price offered by dealers and in newspaper advertisements for automobiles of the same make and model in similar condition. Plaintiff also offered his description of the condition of the automobile before the collision and after repairs had been made. “This was sufficient foundation for him to testify as to the value of the car before the accident. . . . No expert witness was needed.” Rutledge v. Glass, 125 Ga. App. 549 (1) (188 SE2d 261) (1972). Plaintiff’s testimony created an issue for jury determination as to his claim for diminished value of the automobile. The trial court erred in directing a verdict in favor of defendant on this item of damage.

4. An issue was also created as to whether plaintiff was entitled to additional damages for rental of a replacement vehicle. As discussed in Division 2 of this opinion, plaintiff did not properly establish that the work performed by the mechanic was causally related to the collision. Therefore, plaintiff is not entitled to an award for rental of a replacement vehicle for the time required to make those repairs. However, defendant does not dispute liability for repairs made by the body shop. Therefore, plaintiff would be entitled to reasonable rental value of a comparable car for a reasonable length of time to have the body repairs completed. See Apostle v. Prince, 158 Ga. App. 56 (2) (279 SE2d 304) (1981).

The collision which forms the basis for plaintiff’s complaint occurred on October 1, 1985. While defendant admitted liability and agreed to reimburse plaintiff for his damages, defendant did not approve the estimate provided by the body shop chosen by plaintiff until October 24, 1985, at which time plaintiff notified the shop to commence repairs. Repairs were not complete until December 10, 1985. However, defendant refused to reimburse plaintiff for rental fees beyond October 31, 1985, merely one week after repairs were commenced. Where no evidence of the reasonableness of time for repairs is offered, this court has held as a matter of law that a plaintiff is not entitled to recover an amount for loss of use of a vehicle where it was alleged that the vehicle was out of service for six weeks. See Northern Freight Lines v. Turner, 93 Ga. App. 309 (2) (91 SE2d 372) (1956); Webb v. May, 91 Ga. App. 437 (2) (85 SE2d 641) (1955). Plaintiff presented no oral testimony as to why the repairs took over six weeks to perform. However, plaintiff submitted an itemized bill listing the labor charges and the parts repaired or replaced by the body shop. This list served as evidence sufficient to take the issue of reasonableness of repair time to the jury. We cannot find as a matter of law that it is unreasonable for a plaintiff to wait until after a defendant, who has admitted liability, has agreed to a repair estimate before authorizing a shop to commence repairs, or that it is unreasonable for repairs, once commenced, to take more than one week to complete. Neither can we find as a matter of law that the rental charges for a current model Ford are not reasonably related to the value of loss of use of a nine-year-old BMW. In this case, the reasonableness of additional rental charges after October 31, 1985 is rightly an issue for the jury. The lower court erred in directing a verdict in favor of defendant on plaintiff’s claim for loss of use of the vehicle.

5. The court did not err in excluding from evidence certain correspondence between plaintiff and attorney for defendant concerning negotiations on the disputed claim for legal fees and mechanical repairs. Discussions between the parties concerning disputed claims are not admissible in evidence. See generally Teasley v. Bradley, 110 Ga. 497 (6) (35 SE 782) (1900). It is true that certain letters among those excluded did not concern the disputed claim but simply acknowledged plaintiff’s admission of liability for the accident. However, the exclusion of these letters was not reversible error since defendant did not contest liability.

Decided June 29, 1987.

Patricia A. Hoin, T. Gordon Lamb, for appellant.

Sidney L. Moore, Jr., for appellee.

6. We find no merit in plaintiff’s argument that the letters admitting liability should have been admitted as evidence of defendant’s agreement to reimburse plaintiffs for all costs of repairs. Defendant’s admission of liability for the negligence of its employee does not establish an agreement or contract between parties. The issue of defendant’s liability for damages is uncontroverted; the only issue in this case is plaintiff’s damages.

7. Plaintiff’s complaint also prayed for an award of attorney fees and punitive damages by alleging that defendant had been stubbornly litigious and had acted in bad faith in denying certain of plaintiff’s claims after admitting liability for the collision. Plaintiff is not entitled to punitive damages. Additional damages for tortious conduct are allowed only where there are aggravating circumstances in the act or the intention. OCGA § 51-12-5. Plaintiff has presented no evidence of aggravated circumstances in the collision which forms the basis for his complaint. Despite the references in plaintiff’s complaint to defendant’s bad faith and fraudulent conduct, plaintiff’s complaint does not state a claim for fraud. Defendant’s admission of liability for the negligence of its employee does not establish a contract for an agreement to pay plaintiff’s bills. Therefore, plaintiff may not recover punitive damages under a theory of fraudulent breach of contract or fraudulent misrepresentation.

However, plaintiff may recover attorney fees and expenses of litigation if the facts show defendant acted in bad faith in denying plaintiff’s additional claims or was stubbornly litigious. Pursuant to Divisions 1, 3 and 4, issues of fact for the jury are presented in regard to certain of the plaintiff’s claims. Whether defendant has acted in bad faith or has been stubbornly litigious in denying those claims is an issue for jury determination. OCGA § 13-6-11. Therefore, the trial court erred in directing a verdict in favor of defendant in regard to plaintiff’s claim for expenses of litigation.

Judgment affirmed in part and reversed in part.

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


text:
    74372, 74373.
    In re G. M. N. & D. M. N. (two cases).
    (359 SE2d 217)
   Birdsong, Chief Judge.

This is an appeal of the termination of parental rights of Rebecca Nations and David B. Nations, mother and father of G. M. N. and D. M. N.

The older female child, G. M. N., was born in May 1981. In November 1982, when G. M. N. was 19 months old, the parents surrendered G. M. N. for adoption but when those plans failed the child was returned to them the following month. In January 1983, the younger male child, D. M. N., was born. Complaints were received by the Department of Family & Children Services about the parents’ alcohol and drug abuse in June 1984. In March 1985, the DFCS obtained temporary custody of G. M. N. and D. M. N. and placed them in foster care. G. M. N. was nearly four at that time; D. M. N. was slightly over two years. A panel review meeting was then held, at which goals were set for the parents to meet before regaining custody of G. M. N. and D. M. N. These were to: establish job stability and home stability, attend mental health counseling, make regular visits with the children, provide child support, and notify the DFCS of the changes in their lives. They were urged to make child support, if only $5 per month just to show a desire to contribute to G. M. N.’s and D. M. N.’s support. There is no evidence that throughout the children’s young lives — or indeed before — the parents had enjoyed any job stability (or any job) or any home stability (or any home).

After this March 1985 panel review, and at subsequent reviews each six months, neither parent paid any amount in support. At the time of the termination hearings in November 1986, the father had been incarcerated before March 1985, was released and incarcerated again in June 1985, in part, upon an arson charge.

When the father, David Nations, was not in prison, he drank so heavily, often a fifth of vodka each day, that the mother (who also drank heavily) testified their home, wherever it was, was not a fit place for the children. Both of them evidently were not in prison in May 1985, when there is evidence they held jobs at a bakery for a few days before they quit because David’s feet hurt. About that time, also, the mother Rebecca was hospitalized for having overdosed on tranquilizers. Then, she was in jail in June or July 1985, was released in March 1986, and then reincarcerated in August 1986. Originally she had been on probation for forgery, until it was revoked for DUI, “laying drag,” and driving with a suspended license. She was in prison at the time of the hearing, but stated that she doubted she would get parole soon.

While not in prison, from March 1986 to August 1986, Rebecca Nations lived with her mother until she was asked to leave because of her drinking, her comings and goings with men friends, and her fussing with other members of her family; she also had lived with a sister-in-law. During this time, her only job was at a mill for two or three weeks, until she was fired for “laying out.”

While all of this has been going on, with both parents in and out of jail, G. M. N. and D. M. N. have been in foster care since March 1985. When she was not in jail, the mother cancelled many of her planned visitations because of lack of transportation. The father did visit with the children 14 times in 18 months, in and out of prison. At each panel review it was determined neither parent had made any progress towards meeting the “goals.” The mother had failed substantially to attend mental health counseling.

At the termination hearing, both mother and father testified. Evidence was introduced that they loved the children and the children had bonds with the parents.

The mother admitted she drank heavily and that “stupidity” and “irresponsibility” had caused her to fail to establish job or home stability and meet other goals. However, her plans or intentions to improve her situation once she is out of prison, if her parental rights were not terminated, were vague, if it can be said she had any such plans or intentions. The father admitted that the only time he had been out of prison, March 1985 when the children were placed in a foster home until June 1985, he drank heavily, but stated he was attending Alcoholics Anonymous and Bible study in prison. He asked for six more months to improve his situation. Held:

Appeal No. 74372

The father, David Nations, submits one error, in that the trial court erred in terminating his parental rights. He argues that his incarcerations have prevented him from improving his situation, and that he should be allowed six months to prove he can make a stable home for his children.

The trial court did not err, however, in its determination that David Nations had for nearly the entire life of G. M. N. and the whole of D. M. N.’s life not made any progress whatsoever in rehabilitating himself and providing a home for G. M. N. and D. M. N. The excuse offered that he could not provide a home for them because he has been imprisoned most of their lives is not well taken. As for the request that he be allowed six months to improve his life and establish a home, the only plan he offered by which he might do so were vague references to stay with “the Lovells” and work with “the Lovells” until he got on his feet; he offered to get a job, stop drinking and go to counseling.

The trial court did not err, moreover, in finding that G. M. N. and D. M. N. were deprived children, that both father and mother had a history replete with evidence of substance abuse, “extended criminal activity and incarceration since the older child was born, complete instability of job and home, and that the cause of deprivation is likely to continue, in that both parents had had five years to rehabilitate themselves, had spent nearly the whole of the children’s lives in prison and while out of prison had heavily abused alcohol, failed to maintain steady employment, and failed to maintain a steady home environment for the children.

We agree with the trial court that the evidence in this case, despite the mild protestations of the father, suggests no prognosis of improvement, and that the continued deprivation of G. M. N. and D. M. N. is likely to cause serious physical, mental, emotional and moral harm to them. There is no evidence the father has ever maintained a stable home. In a case such as this, a plea of “six more months” to improve is without force to overcome the proof of unrelieved detriment already suffered by the children for their entire life, where there is no indication but the promise to suggest hope of improvement. See In the Interest of T. R. G., 162 Ga. App. 177, 179 (290 SE2d 523). The strictures of OCGA § 15-11-81 were met in this case and well supported by “clear and convincing evidence” of continued deprivation and parental unfitness; the finding of the trial court with regard to the father will not be set aside. In re B. G., 180 Ga. App. 502 (349 SE2d 509); see In re D. C. & J. T. C., 176 Ga. App. 30, 32 (335 SE2d 148).

Appeal No. 74373

1. In her appeal, the mother Rebecca Nations urges the trial court erred in considering the adoptability of the children, erred in applying the “best interest of the children” standard, and erred in terminating the mother’s parental rights.

The trial court did not erroneously consider the adoptability of the children. That issue is never a basis for the determination of unfitness of the parents inasmuch as the finding of unfitness must rest upon its own merit. The court is nevertheless authorized to consider, as an element in continued deprivation under § 15-11-81 (a) (4), and as a matter of the child’s best interest in its “need for a stable and secure home” under § 15-11-81 (a), the severe detrimental effects of prolonged stay in foster care under the ephemeral hope of change but without the real prospect of parental improvement that would justify such a prolonged stay in foster care; and the court may consider the danger of the child’s being “lost in foster care drift,” as the DHR puts it, as a factor in the determination of deprivation and continued deprivation. See In the Interest of T. R. G., supra.

2. The trial court did not err in considering the best interests of the children, following a determination of clear and convincing evidence of parental misconduct and inability. OCGA § 15-18-81 (a). Due regard was given to the rights of the parents. See In the Interest of W. J. J., 176 Ga. App. 824, 826 (338 SE2d 54).

Decided June 29, 1987.

William R. Oliver, for appellant (case no. 74372).

M. Keith York, for appellant (case no. 74373).

Edward H. Lindsey, Jr., for appellee.

3. The disquisition of the evidence with regard to the mother supports clearly and convincingly the trial court’s finding of unfitness, deprivation, and continued deprivation under § 15-11-81 and the cases cited therein.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    74443, 74444.
    ALLISTON v. THE STATE (two cases).
    (359 SE2d 220)
   Birdsong, Chief Judge.

Jay Alliston was charged with one count of burglary and two counts of aggravated assault. The trial court directed a verdict of acquittal to the burglary count and the jury returned a verdict of not guilty as to one of the aggravated assault counts. Alliston was convicted on Count I, aggravated assault, and sentenced to 20 years with ten to serve and as a part of the probated period required to pay restitution to the victim of $5,558.63 and $2,000 as a fine to pay for expenses of the trial. Alliston brings two appeals (arising out of this same case), enumerating the same three errors. We have consolidated the appeals and treat them as one. Held:

1. The first enumeration questions the sufficiency of the evidence to support the finding of guilty of aggravated assault. In considering this enumeration, we consider the evidence in the light best calculated to sustain the verdict. That evidence shows that on October 20, 1985, three friends were present in a mobile home owned by the victim, Duncan. They were preparing to grill steaks and shrimp. While making these preparations, Alliston drove up to the front of the mobile home, exited his car with a baseball bat held in his hand (and a loaded pistol in his back pocket). He was seen approaching by one of the three occupants and Duncan was warned. Duncan procured a gun from his room and placed it on top of the refrigerator. Alliston burst into the mobile home holding the bat and demanded some money he claimed Duncan owed. Without further words or provocation, Alliston started striking Duncan about the arms with the bat. Duncan retreated into a storage cubicle off the kitchen whereupon Alliston shifted his attention to one of the other occupants (Reese). Alliston struck Reese also with the bat but Reese grabbed the bat. Alliston broke away from Reese and turned his attention to Duncan in the cubicle. Duncan had retrieved his pistol from the top of the refrigerator as he retreated into the cubicle.

When Alliston once again directed the attack toward Duncan, Duncan fired his pistol striking Alliston in the hands and dislodging the bat from Alliston’s hands. Duncan then retreated down a hall from the kitchen to the back bedroom. The third of the friends had sought refuge in the bedroom and in an effort to present as little a target as possible, was lying prone on a water bed in the bedroom. Reese (the recipient of the bat attack) had retreated to the door of the bedroom but found it blocked by Duncan. Thus Reese ducked into the door of the adjacent bathroom and lay down in the tub. Allis-ton was seen in the kitchen brandishing the pistol he had been carrying in his back pocket. Reese testified that Alliston had pointed the pistol at his head, snapped the trigger but the gun did not discharge. That was the reason Reese had retreated to the bathroom and lain down in the bathtub. Duncan was holding his pistol in the doorway of the bedroom when Alliston commenced firing his pistol. After Alliston began firing one or more rounds toward Duncan and the bathroom, Duncan fired one round from his pistol but without effect. He apparently then retreated into the bedroom. Alliston continued to fire his pistol until approximately 12 rounds had been discharged. One of these projectiles passed through the wall of the bedroom and struck Duncan in the stomach. After emptying his pistol, Alliston exited the mobile home while exclaiming that he hoped he had killed them all. The trial court gave a charge upon self-defense and other appropriate legal principles.

The jury was presented with conflicting evidence as to who was the aggressor and who, if anyone, withdrew from the assaultive conduct. Viewing the evidence in the light designed to uphold the verdict of the jury, we conclude the jury was warranted in concluding beyond reasonable doubt that Alliston was engaged in an aggravated assault when he fired through the bedroom wall and struck Duncan in the stomach. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal we are bound to construe the evidence with every inference in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Where the testimony of the State and that of the defendant is in conflict, the jury is the final arbiter. Sims v. State, 137 Ga. App. 264 (223 SE2d 468). There is no merit to this enumeration.

2. In his second enumeration, Alliston complains the trial court erred in refusing to admit evidence that Duncan had pending against Alliston a civil complaint seeking personal injury damages. We con-elude Alliston has misconstrued the ruling of the trial court and presents no error for review. When the question was first raised during the defense’s opening statement, the trial court determined the subject was a proper matter to present to the jury and overruled the State’s objection. Subsequently when Alliston sought to introduce evidence of the civil complaint, the trial court limited Alliston to showing that the allegations in the civil complaint were inconsistent with the position taken in the criminal case or that a pecuniary interest in the civil case affected Duncan’s testimony in the criminal trial. Allis-ton reserved the right to call Duncan for further cross-examination of the subject but never exercised the right.

Decided June 29, 1987.

It is clear from the record the trial court did not preclude the evidence but simply required the defense to introduce the evidence in the proper procedural manner. Counsel for Alliston recognized the procedural constraint and voiced no objection to proceeding in the manner indicated by the court. We conclude the trial court may exercise the power to control, in the furtherance of justice, the conduct of the officers and all other persons connected with a judicial proceeding before it. If in the exercise of such control, the legal rights of the parties are not prejudiced or denied, this court will not interfere with the discretion of the trial court in matters of practice in the hearing and disposition of causes before it unless this discretionary power has been exercised in an illegal, unjust or arbitrary manner. Davis v. State, 127 Ga. App. 76 (3) (192 SE2d 538). There was no abuse of discretion in this matter.

3. In his last enumeration of error, Alliston urges his constitutional right to an unimpeded jury trial was impaired and chilled by the imposition of costs following his conviction. This enumeration patently is without merit. Generally, a defendant in a criminal case can be taxed with costs following conviction. Judgment may be entered against him for all costs accruing in the committing court. OCGA § 17-11-1; Carpenter v. State, 167 Ga. App. 634, 644 (307 SE2d 19). In addition, we note the assessment of costs was appurtenant to the conditions of probation. Alliston here is attacking a portion of the probated sentence when in fact the probated portion of his sentence certainly is in his favor. He is authorized to serve ten years of a 20-year sentence on probation outside the confines of a penitentiary. We find no abuse of discretion in requiring the payments of costs as a part of probation. Giddens v. State, 156 Ga. App. 258, 261-262 (4) (274 SE2d 595).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Milton F. Gardner, Jr., for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.


text:
    73930.
    73931.
    FOOD GIANT, INC. v. WITHERSPOON. ALTERMAN PROPERTIES, LTD. et al. v. WITHERSPOON.
    (359 SE2d 223)
   Pope, Judge.

Appellee Minnie L. Witherspoon brought suit to recover damages for injuries incurred when she tripped over a metal strip installed between two metal posts on a concrete sidewalk located between the premises occupied by appellant K-Mart and formerly occupied by appellant Food Giant, Inc., in a shopping center owned by appellant Al-terman Properties, Ltd. Upon denial of their motions for summary judgment and certification of immediate review by the trial court, appellants’ applications for interlocutory appeal were granted by this court.

Appellee’s affidavit and deposition submitted in opposition to appellants’ motions for summary judgment showed that between 5:30 and 5:45 p.m. on February 6, 1983, she left Food Giant without making a purchase to go to K-Mart to buy some hose. As was her custom, she walked through a pedestrian opening in the rails between the two stores designed to hold shopping carts, tripped over the metal strip and fell. She looked to see what she had fallen over and saw that the metal strip was loose. In her previous visits to the shopping center, which she thought was about twice a week for seventeen years since the stores had opened, she “couldn’t estimate the times” she had passed through this area. She had never noticed the metal strip to be broken before, and the first time she saw it was broken was after she fell. She did not know “if it was already up” when she tripped but “afterwards it was up.” The strip was slanting up about one inch on the broken corner. Although it was not dark at the time, the light was “dim.” She knew the metal strip was there, having seen it before, and nothing was different or peculiar that happened to her before she reached the area on the occasion of the fall, or which distracted her attention. She testified by deposition that nothing prevented her from stepping over the metal strip, nothing prevented her from looking down at it or blocked her view, and that she could have seen it prior to the time she tripped on it if she had looked down.

Immediately after her fall appellee reported the incident to the assistant manager of K-Mart, Lanier Stuckey, who accompanied her back to the area. Appellee testified that Stuckey attempted to mash the strip back down flat with his feet, and that she stated to him that he “ought to have this fixed before somebody gets hurt. And he said, ‘I told them and they’re not going to fix it.’ He said it’s been here for sometime, like this for sometime.” However, K-Mart’s general store manager submitted an affidavit swearing that he had held the position for the year preceding appellee’s fall and was aware of the metal strip in question, but that at no time prior to hearing about her fall did he “personally know of or hear about anyone tripping, stumbling or hurting themselves in any way” as a result thereof, nor did he “see, know of, or hear about the metal strip springing upward off the concrete, or have any reports made to him by anyone concerning any complaints, comments or problems with this metal strip springing upward or for any other reason.” While the affiant was manager of K-Mart, company procedure required that any defect or problem with the building premises brought to the attention of any of the approximately 100 employees under his supervision be reported to him. He was also required to report any such defect or problem to the regional office, which would apprise the owners, but having had no problems concerning the metal strip ever brought to his attention he made no such report.

Appellee presented the deposition of an expert witness with a background in mechanical engineering who examined the site of the fall in April of 1985. Based on his observations at that time he was of the opinion that the metal strip had never been welded properly to the vertical pipe rail, which permitted the strip to spring free and “created a potential” for someone to trip and fall over. The strip was originally V2 inch high and in April of 1985 was “about one inch high” on the broken side. From the visible surface condition it appeared to have been broken or corroded for some years, “certainly a year or more.” However, the witness could not set an exact date.

By later affidavit the expert witness swore that he subsequently visited the scene in order to determine the effect of artificial lights “under dimming conditions between dusky dark and darkness,” conditions verified by appellee as “approximately the same” as when she fell. He averred that “[t]he illumination clearly revealed the concrete walkway, metal pipes and rails between both places of business, the passageway between the two stores, the existence of hand carts being utilized and parked in front of both stores,” and that as a result of his observations and appellee’s statements as to the comparative lighting conditions it was his opinion that at the time she fell the illumination on the premises “was adequate for customers of either place of business to safely move along the walkway between the two stores.” It was his further opinion that these lighting conditions “would make it impossible for a pedestrian ... to see and appreciate any extension of the metal strip above the concrete walkway and to observe the separation of the weld previously described.” Based upon his reading of appellee’s affidavit and deposition testimony in regard to showing the “sprung up condition” of the metal strip after her fall, the statement of the K-Mart assistant manager to appellee concerning the condition of the strip prior to the date of appellee’s fall and additional information concerning the length of time the strip and posts had been in place, the expert witness opined “that the weld between the small vertical pipe and metal strip was defective at the time of installation; [and] that installation of the metal strip occurred when the steel pipe railings and posts were installed during or prior to 1973.” It was his further opinion “(1) that the metal strip had separated . . . several months and even years before February 6, 1986 [sic]; (2) that after the separation of the defective weld the metal strip would spring up from the concrete walkway thereby creating a hazard to passing pedestrians; (3) that all owners and occupiers of the premises who swept, cleaned and maintained the area at or near the passageway on a regular basis knew or should have known that the metal strip had separated, would spring up and create a hazard to persons using the passageway and should be removed or rewelded prior to February 1983; (4) that the condition of the metal strip which [he] observed and measured in April 1985 was a hazard at that time and would cause pedestrians to trip and fall; (5) that on the evening of February 6, 1986 [sic] the metal strip was extending as high or higher above the concrete surface than the height measured in April 1985 and that such condition was a hazard to persons walking in the area.”

Case No. 73930

1. We first consider appellant Food Giant’s argument that the trial court erred in denying its motion for summary judgment because, at the time of appellee’s fall, it no longer leased or occupied the premises on which appellee was injured. Whether Food Giant was an “owner or occupier of land” as provided in OCGA § 51-3-1 turns on whether Food Giant exercised control of the subject property as of the date of appellee’s injury. As to that issue, the record shows that on January 17, 1983, almost 3 weeks prior to appellee’s fall, appellant Food Giant terminated its lease to the subject premises and sold its inventory to J & J Park, Inc. who assumed operation of the grocery store. The record also shows, however, that Randy Giles, a former manager and employee of Food Giant, “continued to work at the store from January 17, 1983 for a period of no more than two (2) weeks . . . to assist Mr. Park following the sale of the store to Mr. Park.”

“ ‘Whether a particular appurtenance or instrumentality is under the control of an owner or occupant is usually a question of fact.’ [Cit.]” Scheer v. Cliatt, 133 Ga. App. 702, 704 (212 SE2d 29) (1975). In the case sub judice, however, there is no evidence that appellant Food Giant exercised any control over the subject premises at the time of appellee’s fall; indeed the only evidence which we find remotely probative of this issue is that one of Food Giant’s employees remained on the premises “for no more than two weeks” to assist the new owners. However, the record does not show that any Food Giant employee remained at the time of appellee’s injury or that the employee who remained to assist Mr. Park exercised any manner of control over the premises once J & J Park, Inc. assumed control of the grocery store. Accordingly, no genuine issue of material fact remained as to Food Giant’s control of the premises, and the trial court erred in denying appellant Food Giant’s motion for summary judgment. Cf. Gregory v. Trupp, 171 Ga. App. 299 (319 SE2d 122) (1984).

Case No. 73931

2. As to the remaining appellants, we agree with the trial court’s finding that summary adjudication was improper in the case sub judice. “The basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Citations and punctuation omitted.) Globe Oil Co. v. DeLong, 182 Ga. App. 395, 396 (356 SE2d 47) (1987). Appellants in the case sub judice argue, however, that appellee’s claim must fail because she has failed to show both “ ‘(1) fault on the part of [appellants], and (2) ignorance of the danger on the part of the [appellee.] (Cit.)’ Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981).” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 349 (349 SE2d 241) (1986).

Turning first to appellee’s knowledge of the danger presented by the improper weld between the metal strip and post, appellants rely on appellee’s unequivocal testimony that she had traversed the area many times before, that she was aware of the existence of the metal strip and that she could have seen the metal strip had she looked down, which appellee admitted she did not do until after she fell, in order to establish appellee’s equal knowledge of the metal strip. We agree with appellants that these facts establish that appellee knew there was a metal strip between the posts. However, in our opinion, the critical inquiry is not whether appellee had knowledge of the existence of the metal strip, which she clearly did, but whether she had knowledge of the existence of the danger created by the possibly defective weld between the metal strip and post. “ ‘Knowledge of defects’ should not be confused with ‘knowledge of danger.’ ” Firestone Svc. Stores v. Gillen, 58 Ga. App. 782 (1) (199 SE 853) (1938); Shackelford, supra at 351. “The crucial question is whether [appellee] should have had a full appreciation of the danger, and ... in the exercise of ordinary care she should have avoided the injury to herself.” (Citations and punctuation omitted.) Id.; see also Stouffer Corp. v. Henkel, 170 Ga. App. 383 (1) (317 SE2d 222) (1984). In this regard, we are persuaded by the opinion of appellee’s expert witness that under the lighting conditions present at the time of appellee’s fall, it would have been impossible for appellee, or in fact for anyone else, to appreciate the danger created by the improper weld, or even to detect the separation created between the weld and post, “except through close inspection such as the observer getting down on their [sic] knees to look at the metal strip. . . .” Under these circumstances, we believe the trial court correctly concluded that a question of fact existed as to whether “(appellee) should have had a full appreciation of the danger, and that in the exercise of ordinary care [s]he should have avoided the injury to [herjself.” Globe Oil, supra at 396; Shackelford, supra at 351; Stouffer, supra at 384.

However, we believe a somewhat more difficult question exists as to whether appellants’ knowledge of the danger was superior to appel-lee’s. Again, however, we are persuaded by the averments of appellee’s expert “that all owners and occupiers of the premises who swept, cleaned and maintained the area at or near the passageway on a regular basis knew or should have known that the metal strip had separated, would spring up and create a hazard to persons using the passageway and should be removed or rewelded prior to February 1983.” Appellants contend, however, that appellee’s expert’s opinion must be disregarded because it was based on inadmissible hearsay, to wit: K-Mart’s assistant manager’s statement to appellee that “I told them and they are not going to fix it [and] it’s been . . . like this for sometime.” However, we find “no merit in [appellants’] contention that the statement of [Lanier Stuckey] to the [appellee] was incompetent hearsay of no probative value. The statement followed [appellee’s] [trip] and . . . fall so closely as to be free of afterthought, was not of a self-serving nature and was admissible as part of the res gestae. [Cits.]” Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 220 (237 SE2d 685) (1977); accord Tenney v. Mobil Oil Corp., 133 Ga. App. 631 (1) (211 SE2d 900) (1974).

Decided June 30, 1987.

Donald R. Andersen, Deborah A. Finnerty, for appellant (case no. 73930).

David D. Rawlins, for appellants (case no. 73931).

C. James Jessee, Jr., for appellee.

Moreover, a review of appellee’s expert’s affidavit shows that he did not form his opinion solely on the basis of the assistant manager’s statement, but in addition thereto conducted his own independent examination, as well as relying on appellee’s affidavit and deposition. Thus, in addition to the statement of K-Mart’s assistant manager showing actual knowledge of the dangerous condition, we also find appellants had constructive knowledge of the dangerous instrumentality. Constructive knowledge may be established by showing that the dangerous condition had been there for such a time that ordinary diligence by the appellants should have effected its discovery. Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986). In the case at bar, “[t]here was evidence of [an improper weld between the metal strip and post,] and that this defective condition had existed for a considerable period of time. This evidence [presented a question of fact] that the [appellants] had been afforded a reasonable time within which to inspect and remove the hazard, and thus knowledge of the condition was imputable to the [appellants].” Great A & P Tea Co. v. Turner, 180 Ga. App. 533, 534 (349 SE2d 537) (1986).

3. We decline to order appellee to pay the costs of the supplemental record which she designated to be transmitted on appeal, as requested by Food Giant, since it was not unnecessary or superfluous to the issues involved.

Judgment affirmed in Case No. 73931 and reversed in Case No. 73930.

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

       In so finding, we expressly reject appellee’s contention that the fact that the Food Giant sign was displayed on the premises at the time of her fall is also pertinent to this issue. Rather, Mr. Park testified that he did not immediately change the sign because he had other, more pressing problems to contend with during the first few months after the change in ownership. Thus, appellee has failed to show, and we decline to find, this fact probative as to the issue of control.

       It is well established that summary judgment may be successfully contested by the use of opinion evidence. Morris v. Pulliam, 168 Ga. App. 442 (2) (309 SE2d 423) (1983).


author: Benham, Judge.

text:
    74188.
    DEPARTMENT OF TRANSPORTATION v. PILGRIM et al.
    (359 SE2d 227)
   Benham, Judge.

Appellant condemned access rights to a portion of a tract belonging to appellees and paid $29,200 into court as its estimate of just and adequate compensation. On appeal from a $110,800 judgment for ap-pellees, this court reversed because of the trial court’s failure to give a requested charge on an owner’s right to access. See Dept. of Transp. v. Pilgrim, 175 Ga. App. 576 (333 SE2d 866) (1985). On retrial, the jury returned a verdict awarding appellees $450,000. This appeal is from the judgment entered on that verdict.

1. In its first enumeration of error, appellant contends the trial court erred in denying its motions for a directed verdict and judgment n.o.v. The basis of appellant’s argument on this issue is its position that the remaining portion of the tract had sufficient road frontage affording access to the property that the limitation on access imposed by appellant’s taking was reasonable and, therefore, did not produce consequential damages. The flaw with that argument is that it has no validity at all unless the tract remains an undivided piece of property. Appellees’ contention is that the highest and best use of the land is to divide it into parcels for small commercial enterprises.

As we held in the first appearance of this case, the two theories (subdivision into smaller parcels and single-tract use) “clashed, and it became an evidentiary question to be determined by the jury as to which, in fact, was the valid one on which to base the proper measure of consequential damages to the remainder.” Id. at 579. The theories clashed again on retrial, and appellees supported their position with testimony that subdivision into small parcels for commercial use was the highest and best use of the property and that the condemnation of access to a portion of the property reduced the value of those smaller parcels to be carved from the restricted portion of the tract. Since the “any evidence” test is the appropriate standard for review of the denial of a directed verdict (Speir v. Williams, 146 Ga. App. 880 (1) (247 SE2d 549) (1978)), and appellees produced evidence in support of their position, the denial of appellant’s motions for directed verdict and judgment n.o.v. was proper.

2. Appellant’s second enumeration of error is that the trial court erred in failing to charge that “deprivation of access must be a substantial interference and/or unreasonable deprivation of ingress and egress to the remainder of Appellees’ property before the jury could award consequential damages.” Our review of the trial court’s charge does not reveal the asserted error. The trial court referred to “substantial interference” at least twice during its instructions. As to appellant’s insistence that a deprivation of access is not compensable unless it is “unreasonable,” it has cited no authority supporting that principle, and we have none. The trial court’s charge, as a whole, adequately presented the issues and the principles of law necessary for the jury to make its determination. We find no error.

3. Although the issues raised on appeal do not warrant reversal of the judgment of the trial court, we do not find them to be so specious as to warrant the conclusion that this appeal was brought for the purpose of delay only. Accordingly, appellee’s motion for the imposition of damages pursuant to OCGA § 5-6-6 is denied. Macon-Bibb County Hosp. Auth. v. Miller, 180 Ga. App. 231 (348 SE2d 752) (1986).

Decided June 30, 1987.

Michael J. Bowers, Attorney General, J. Thomas Welchel, for appellant.

Michael B. Perry, for appellees.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in the judgment only.