author: Pope, Presiding Judge.

text:
    A94A2078.
    DEPARTMENT OF TRANSPORTATION v. APAC-GEORGIA, INC.
    (456 SE2d 668)
   Pope, Presiding Judge.

On or about July 3, 1984, plaintiff APAC-Georgia, Inc. (APAC) contracted with the Department of Transportation (DOT) to reconstruct approximately three miles of roadway and walls on part of the Downtown Atlanta I-75/I-85 connector. The agreed upon price of the job was $49,050,459.62. On July 12, 1984, DOT gave APAC written notice to proceed with the reconstruction. Under APAC’s contract, the reconstruction project was to be completed by November 1, 1986. However, APAC did not substantially complete the project until September 26, 1988. It is undisputed that APAC received time extensions from DOT through the actual completion date, and no contractual liquidated damages were charged to APAC for failure to complete the project on time.

On July 11, 1990, APAC filed suit against DOT for breach of contract, and sought to recover damages in the amount of approximately $7,218,765 for delays, impacts and inefficiencies allegedly caused by DOT. DOT answered denying liability. On January 11, 1993, DOT filed a motion for partial summary judgment (Partial Summary Judgment Motion). After hearing oral argument on this motion, the trial court, by order dated October 5, 1993, denied all but one part of the motion. Subsequently, DOT filed a motion for summary judgment and, in the alternative, a second motion for partial summary judgment (Summary Judgment Motion). DOT also filed a motion to compel (Motion to Compel). DOT timely requested oral argument on these motions. Without holding oral argument, the trial court, in two separate orders dated February 15, 1994, partially denied DOT’s Motion to Compel, and denied DOT’s Summary Judgment Motion. The trial court entered a certificate of immediate review as to the denial of DOT’s Summary Judgment Motion, and we granted DOT’s application for interlocutory appeal.

DOT’s Partial Summary Judgment Motion.

DOT’s fourth, sixth, seventh and eighth designated enumerations of error relate to the trial court’s October 5, 1993 order denying DOT’s Partial Summary Judgment Motion. These enumerations will be addressed in the order in which their corresponding arguments were originally considered by the trial court.

1. In its eighth enumeration, DOT argues that the delay damages APAC seeks to recover in this case are barred as a matter of law by Standard Specification 105.07. We disagree. In Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 822 (1) (426 SE2d 905) (1992), we held that under Standard Specification 105.07, DOT could not be held vicariously liable for the untimely performance of its various contractors. However, as the trial court noted in its October 5, 1993 order, APAC does not argue that the damages it seeks to recover in this case were caused by the untimely performance of other contractors. Instead, APAC contends that its delay damages arose from DOT’s breach of its own duty to coordinate and control the work of other contractors.

We agree with the trial court that under Special Provision 105.07, which supplements Standard Specification 105.07, DOT did in fact have a duty to coordinate the project. Special Provision 105.07 states that in order “[t]o effect. . . cooperation and to coordinate all phases of the work, [DOT] will name one Engineer who, in effect, will be a Project Manager who will be given the authority to coordinate all phases of the construction. This Engineer shall be the sole judge of responsibility on this Project and shall make such rulings as necessary to control the work.” Consequently, because DOT had a contractual duty to coordinate the project, APAC’s claim for delay damages allegedly resulting from breach of that duty, rather than from the untimely performance of other contractors, is not barred by Standard Specification 105.07 or our holding in Fru-Con. Moreover, because a genuine issue of material fact exists as to whether DOT breached its duty to coordinate, we hold that the trial court did not err in denying that portion of DOT’s Partial Summary Judgment Motion relating to Standard Specification 105.07.

2. In its fourth enumeration, DOT argues that APAC’s claims for damages based on design errors and omissions and on breach of certain implied contractual obligations are ex delicto, and thus, barred by the doctrine of sovereign immunity. APAC contends that its claims are ex contractu. As the trial court stated in its order, “the nature of an action is to be determined ... by the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the kind of relief sought.” A.A.A. Parking v. Bigger, 113 Ga. App. 578, 580 (149 SE2d 255) (1966). “[W]here the breach complained of is simply the neglect of a duty such as is expressly provided by the contract itself, the action will be construed and treated as one brought ex contractu. [Cits.] This principle is also applicable where the breach complained of is simply the neglect of a duty provided by the contract by implication, either of law or of fact. [Cits.]” (Punctuation omitted.) Id. at 581.

In this case, APAC seeks to recover delay damages based on DOT’s alleged breach of its express duty to coordinate and its alleged breach of certain implied duties, including the duty of good faith and fair dealing. We reject the contention that under Fru-Con, supra, claims against the State based on implied contractual duties are ex delicto, and thus barred by the doctrine of sovereign immunity. In Fru-Con, we held that there cannot be an express and implied contract for the same thing existing at the same time. 206 Ga. App. at 825 (3). In that case, we did not hold that the State could not be sued for breach of an implied contractual obligation in a written contract. Consequently, we agree with the trial court that APAC’s claims are ex contractu. “The state’s defense of sovereign immunity is . . . waived as to any action ex contractu for the breach of any written contract . . . entered into by the state or its departments and agencies.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (c). Accordingly, the trial court did not err in denying that portion of DOT’s Partial Summary Judgment Motion relating to the issue of sovereign immunity.

3. In its seventh enumeration, DOT argues that Standard Specification 109.08.B bars APAC from recovering any prejudgment interest in this case. We disagree. “(E)xculpatory clauses must be clear and unambiguous, they must be specific in what they purport to cover, and any ambiguity will be construed against the drafter of the instrument.” Dept. of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (1) (349 SE2d 196) (1986), aff'd 257 Ga. 269 (357 SE2d 593) (1987). In this case, Standard Specification 109.08.B seeks to bar recovery of prejudgment interest “for any sum claimed by the Contractor under the Contract or for any extra or additional work. ...” The specification does not specifically bar the recovery of prejudgment interest on sums obtained for delay damages resulting from a breach of contract on the part of DOT. Moreover, it is unclear whether this specification was ever intended to apply to the type of damages sought by APAC in this case. It is well settled that exculpatory clauses “will not be applied to delays or their causes not contemplated by the parties.” See Arapaho Constr., 257 Ga. at 270. In this case, we cannot say as a matter of law that APAC and DOT ever contemplated that Standard Specification 109.08.B would be applicable to a breach of contract claim such as that advanced by APAC. Consequently, the trial court did not err in denying partial summary judgment to DOT on this issue.

4. In its sixth enumeration of error, DOT argues that six supplemental agreements executed by APAC and DOT, which specifically stated whether contract time would be extended for extra work provided for therein, and which compensated APAC for extra work, bar APAC from claiming damages resulting from that work. APAC argues that the supplemental agreements were limited to specific work activities and only apply to the extra labor, materials and work specifically described in each supplemental agreement. APAC also contends that the supplemental agreements do not cover damages for any delay, impact or inefficiency resulting from any extra work or arising from the original contract work. Furthermore, APAC contends that none of the supplemental agreements in question contain a waiver or release from liability for such alleged damages.

The term “supplemental agreement” is defined in Standard Specification 101.74 as: “[a] written agreement entered into by and between [DOT] and the Contractor, with the written assent of the Surety, covering modifications or alterations beyond the scope of the original Contract, and establishing any necessary new Contract Items, any other basis of payment, and any time adjustments for The Work affected by the changes. This Agreement becomes a part of the Contract when properly executed and approved.” (Emphasis supplied.) “The Work” is defined in Standard Specification 101.78 as: “the furnishing of all labor, materials, equipment, superintendence and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all the duties and obligations imposed by the Contract.” Upon review of the six supplemental agreements, we conclude that a genuine issue of material fact exists as to whether DOT or APAC ever intended said agreements to compensate APAC for anything except the specific work or work related activities stated in said agreements. There is nothing in the supplemental agreements specifically barring APAC from recovering the delay, impact and inefficiency damages it seeks from DOT in this case. Thus, the trial court did not err in denying that portion of the Partial Summary Judgment Motion based on the supplemental agreements.

DOT’s Summary Judgment Motion.

5. DOT filed its Summary Judgment Motion on November 24, 1993. At that time it also filed a written request for oral argument. In its ninth designated enumeration of error, DOT contends that the trial court erred in denying said motion without first hearing oral argument. We agree. Uniform Superior Court Rule 6.3 provides: “Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for [a] new trial and motions for judgment notwithstanding the verdict. However, oral argument on any motion for summary judgment shall be permitted upon written request. . . .” (Emphasis supplied.) Under this rule, “whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held.” (Citations and punctuation omitted.) Thomas v. Schouten, 210 Ga. App. 244, 245 (1) (435 SE2d 746) (1993). Moreover, the trial court’s failure to hold oral argument cannot be considered harmless error, because doing so “would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.” Dixon v. McClain, 204 Ga. App. 531 (1) (420 SE2d 66) (1992). Consequently, we reverse the trial court’s denial of DOT’s Summary Judgment Motion, and we remand this case to the trial court with instructions that oral argument be heard on said motion.

6. In light of our holding in Division 5 of this opinion, we need not consider DOT’s first, second, third and fifth designated enumerations of error because they each are premised upon the trial court’s denial of the Summary Judgment Motion.

Decided March 17, 1995

Reconsideration denied March 30, 1995

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, G. Thomas Davis, Alison H. Price, for appellant.

Smith, Currie & Hancock, Robert B. Ansley, Jr., Fredric W. Stearns, Joseph P. Henner, Greenfield, Bost & Kliros, John W. Greenfield, Sutherland, Asbill & Brennan, William R. Wildman, for appellee.

DOT’s Motion to Compel.

7. In its final enumeration of error, DOT contends that the trial court abused its discretion in failing to compel APAC to produce certain documents (Reasons For Low Production Reports) pursuant to DOT’s Motion to Compel. We disagree. “The trial court is vested with a broad discretion over the use of discovery procedures and unless there is a clear abuse of its discretion, appellate courts will not interfere in its rulings.” Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125 (1) (329 SE2d 208) (1985). Upon review of the record in this case we find no clear abuse of discretion. Therefore, this enumeration is without merit.

Judgment affirmed in part and reversed and remanded in part with instruction.

McMurray, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A94A2108.
    METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY v. WHITE.
    (456 SE2d 511)
   Ruffin, Judge.

Jeri White brought an action against William Stephens for personal injuries she sustained in an automobile accident. Since Stephens was an uninsured motorist, White sought uninsured motorist coverage under her stepfather, Dennis Watson’s automobile insurance policy with Metropolitan Property & Casualty Insurance Company (“Metropolitan”). Metropolitan denied coverage and moved for summary judgment on the ground that White was not a “relative” of Watson’s under the policy. We granted Metropolitan’s application for interlocutory appeal to determine whether the trial court erred in denying its motion for summary judgment.

Dennis Watson is the only named insured on the policy, and his address is listed as 332 River Oak Drive, Riverdale, Georgia. The uninsured motorist coverage section of the policy provides, in pertinent part, as follows: “We will pay bodily injury damages caused by an accident arising out of the ownership, maintenance, or use of an uninsured highway vehicle, which you or a relative are legally entitled to collect from the owner or driver of an uninsured highway vehicle.” (Emphasis supplied.)

The policy defines “relative” as follows: “[R]elative” means a person related to [the insured] by blood or marriage or adoption, and who also resides in [the insured’s] household. The insured’s unmarried unemancipated children, while away from [the insured’s] household attending school or in active military service, are considered residents of [the insured’s] household. Relative does not include any person or the spouse of any person who owns a private passenger automobile.” (Emphasis supplied.)

In her response to Metropolitan’s request for admissions, White admitted that she did not reside in Watson’s household at the time of the accident. She also admitted that she was the registered owner of the 1979 AMC Concord involved in the collision with Stephens. Based on these admissions and the fact that the 1979 AMC Concord was deleted from Watson’s policy four months prior to the accident, Metropolitan moved for summary judgment on the ground that White was not a “relative” under the policy because she did not reside in Watson’s household and because she owned her own private passenger automobile.

In opposition to Metropolitan’s motion, White contended that she was a 19-year-old student at American Beauty College in Riverdale, living with her stepsister in an apartment. She indicated that both sisters moved out of their parents’ home approximately 18 months before the accident; that she did not intend the apartment to be her fixed and permanent home; that the household of Dennis Watson was her fixed and permanent home; and that prior to the accident, she and her sister discussed moving back home to the Watson residence. White argued that she was, therefore, entitled to coverage under the policy because she was unemancipated, unmarried, and living away from the Watson household while a student.

Pretermitting a determination of whether White was a resident relative at the time of the accident, since it is undisputed that she owned her own private passenger automobile, she does not otherwise satisfy the policy definition of a relative and therefore is excluded from coverage.

Relying on Doe v. Rampley, 256 Ga. 575 (351 SE2d 205) (1987), White contends that the portion of the definition of “relative” which excludes persons who own private passenger automobiles is unenforceable because it denies coverage to otherwise qualified insureds contrary to the purposes of the uninsured motorist statute. We disagree and find to the contrary that the Metropolitan policy properly excludes from uninsured motorist coverage automobile owners who are required by Georgia’s compulsory automobile insurance coverage requirement to obtain their own insurance coverage. After White’s vehicle was deleted from the policy, she was required under OCGA § 33-34-4 to obtain motor vehicle insurance on her own vehicle. The uninsured motorist statute (OCGA § 33-7-11) did not relieve her of this responsibility. Thus, she cannot look to the uninsured motorist provision in Watson’s policy for coverage for an accident in which she was driving her own vehicle. Accordingly, the trial court erred in denying Metropolitan’s motion for summary judgment.

Decided March 15, 1995

Reconsideration denied March 30, 1995

Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Eric D. Miller, for appellant.

Van C. Wilks, for appellee.

Judgment reversed. Birdsong, P. J., concurs.

Blackburn, J., concurs in the judgment only.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A2414.
    GRIER v. KANON SERVICE CORPORATION.
    (456 SE2d 690)
   McMurray, Presiding Judge.

Joseph Grier brought suit against Kanon Service Corporation to recover damages for personal injuries. The trial court granted Kanon Service Corporation’s motion for summary judgment, and Grier appeals. Held:

Grier is a 34-year-old college graduate who was employed as team leader of a Delta Air Lines (“Delta”) cabin services crew. The cabin services staif is responsible for stocking airplanes with passenger amenities such as headsets, soft drinks, and snacks. Kanon Service Corporation is an independent cleaning service hired by Delta to clean the interiors of certain aircraft. On the night in issue, Grier drove his team out to a Delta L-1011 in a lift truck to perform cabin services. While his crew raised the platform to enter the plane through the mid-fuselage door, Grier walked around to enter the plane through the “jetway” (the accordion-like hallway commonly used by passengers). When he entered the plane, he observed a Kanon Service Corporation cleaning crew aboard. Because it was standard Delta policy not to service an airplane when a cleaning crew was at work, Grier decided to take his team on to another plane. He testified on his deposition that he attempted to find out from one of the Kanon Service Corporation’s personnel when the cleaning would be completed, but the person he questioned did not appear to understand English.

Grier then proceeded down the aisle to the mid-door, where his team waited outside on the lift platform. He disengaged the safety switch and opened the mid-door from the inside. He gave his team instructions, notified his supervisor that they were proceeding to another plane, and returned to the mid-door area to collect his team and move on. His team members all left through the mid-door and entered the lift truck. Grier engaged the lever inside the plane to arm it to close the mid-door, and prepared to leave. He intended to close the door using another switch outside the plane after he had exited. He was the last member of his team to leave, as was his practice. He then turned toward the truck to count heads on his team. He was wearing earplugs to protect his hearing from the noise of the airplanes, in accordance with Delta policy. The mid-door then began to close. Grier testified he assumed the door was closed by a Kanon Service Corporation employee inside the airplane because “[t]hey were the only ones there.” Although Grier tried to pull his foot out, he testified he was not able to do so before it came down on his foot, injuring his toes. He then used the door’s emergency handle to raise the door and release his foot.

Grier argues that genuine issues of material fact remain as to whether he exercised ordinary care to avoid the hazard in question. The L-1011 mid-door is a large cargo door over three feet wide and six feet tall, which closes vertically from top to bottom. It is electrically activated and contains mechanical locks. When operated from the open position to the closed position it takes approximately nine to eleven seconds to fully close, during which time it makes a loud and high-pitched noise. There was evidence that the door closing is “very” obvious and although Grier was wearing earplugs, his testimony indicates he communicated with the members of his team.

In addition, Grier was familiar with this airplane and knew that once armed, the door could be closed either from the inside or the outside. He had personally activated the mid-door enabling switch. Nevertheless, after arming the door he stood with his right foot over the threshold, and with his toes pointing toward the inside of the plane while his head turned away, toward the truck. He testified that he did not see the door coming down during the nine to eleven seconds it took to close because he “wasn’t looking.”

While the facts suggest some lack of care on the part of plaintiff for his own protection, this is inextricably intertwined with the negligence of the person who activated the door while plaintiff stood in its path. Negligence issues, including foreseeability and proximate cause, and the application of the defenses of contributory negligence and of assumption of the risk are normally jury matters that may be resolved as a matter of law only in clear and palpable cases. Taft v. Taft, 209 Ga. App. 499, 500 (1) (433 SE2d 667); Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810); Wade v. Polytech Indus., 202 Ga. App. 18, 22 (3) (413 SE2d 468). In the case sub judice, the degree to which plaintiff’s injury should be attributed to his own negligence is not so clear as to permit summary adjudication. The evidence as to the door’s size, closing speed, and noise level while closing raises questions as to just how great was the risk incurred and whether plaintiff fully appreciated that risk. A jury must determine whether it was reasonable for plaintiff to assume that the door would not be activated by another or that activation of the door would become apparent to him.

Judgment reversed.

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

Smith, Judge,

dissenting.

I must respectfully dissent. This case presents no new issues of law; the question presented, simply put, is whether the trial court correctly concluded that the evidence was so compelling as to merit summary adjudication. The trial court concluded that it was, and I believe that conclusion to be eminently correct.

“Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.” (Citations and punctuation omitted.) Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695, 696 (1) (409 SE2d 89) (1991).

The facts are undisputed, yet the majority apparently concludes that material questions of fact remain whether Grier had the best — and the last — chance to avoid the misfortune that befell him. The opposite is clear to me. Grier was 34 years old and a college graduate. He was not a stranger to the aircraft, but worked on such airplanes every day. He knew the door could be lowered by switches both inside and outside the craft; he knew a Kanon crew was present inside the aircraft. Yet despite all this knowledge, after arming this heavy door himself so it could be closed without his knowledge, Grier then placed himself in position to be injured. That position was so contorted that he stood with his body facing the door and his right foot over the threshold, but with his face turned almost 180 degrees backward, while the door descended heavily and loudly, over an interval of nine to eleven seconds, onto his toes.

Decided March 17, 1995

Reconsideration denied March 30, 1995

Gambrell & Stolz, Irwin W. Stolz, Jr., Charles N. Bowen, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning, for appellee.

It is certainly possible that the person who ultimately caused the door to close was negligent. However, even assuming the negligence of that person, Grier could have completely avoided any injury by removing his foot during the door’s downward descent, or by stopping the door using the outside switch. Although he was wearing earplugs that made it difficult to hear the door closing, he could have perceived the descent of the door had he been looking at the door. He admitted, however, that he “wasn’t looking.” In my opinion, this was not the exercise of ordinary care for his own safety.

Georgia law presumes that every adult possesses such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious danger. “At some point the danger and likelihood of self-injury becomes so obvious that actual knowledge by the plaintiff is unnecessary.” Union Carbide Corp. v. Holton, 136 Ga. App. 726, 732 (222 SE2d 105) (1975). “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7. In my view, Grier is not entitled to recover, and I would affirm the trial court’s grant of summary judgment to Kanon.

I am authorized to state that Chief Judge Beasley, Presiding Judge Birdsong and Judge Andrews join in this dissent.


author: Beasley, Chief Judge. Johnson, Judge,

text:
    A94A2449.
    CLARK v. THE STATE.
    (456 SE2d 672)
   Beasley, Chief Judge.

Dallas Clark was convicted of trafficking in cocaine. OCGA § 16-13-31 (a). He was found to be knowingly in possession of 64 times the statutory minimum of 28 grams. He appeals from the denial of his motion to suppress evidence found in his residence and in his grocery store.

1. Clark contends the affidavit upon which the warrant to search his home was based did not establish probable cause. We consider all of the evidence of record, including that in the trial transcript. Perry v. State, 204 Ga. App. 643 (1) (419 SE2d 922) (1992). In addition, we must accept the trial court’s findings, where there is evidence to support them. Biffle v. State, 214 Ga. App. 641, 642 (448 SE2d 749) (1994).

The Vidalia Police Department was engaged in an undercover drug operation and placed Ricky’s Car Wash under surveillance. A confidential informant (“Cl”) was employed to make a drug buy at the car wash. While the officers watched, the informant got into a white car with an unknown person and left the premises. This was not part of the plan and officers did not follow the informant. The informant returned thirty minutes later and reported to police that he had been taken to Clark’s home, where he remained in the car while the driver went inside and purchased over one-half ounce of cocaine. The informant told the officers that he did not enter the residence or witness the purchase. The driver, who was unknown to the police, left after depositing the informant at the car wash and was never apprehended.

Based on what had transpired and what had been related by the informant, Officer Bobby Young shortly swore out an affidavit for a search warrant, stating in relevant part: “The affiant is a police officer with the City of Vidalia and certified as such by the State of Ga. He has been employed with the City of Vidalia for the past six years. The affiant has worked drug related cases in the past as a patrolman and is now currently assigned to the criminal investigations department as a narcotics detective. The affiant has attended several specialized drug schools and seminars. He has been responsible for the arrest and convictions of numerous controlled substance offenders. He has also been responsible for the seizure of drugs, money, guns and property. The affiant begs the court for a search warrant for the address known as 629 East Grady St. Lyons Ga. The residence is under the control of Dallas Clark. The affiant had a confidential informant that made a controlled buy from this residence. Cl paid $750.00 cash for (Vfc) ounce of cocaine. This Cl has proved to be very reliable in the past and used by this officer and deputies of the Toombs Co. Sheriffs Dept. The Cl was searched before and after the transaction. The Vz ounce of cocaine was field tested and proved positive for cocaine. The money had the serial numbers pre-recorded. The affiant therefore has reason to believe that this residence is being concealed (sic) cocaine which is in violation of Ga. Controlled Substances Act.”

The trial judge who conducted the hearing on the motion to suppress evidence heard the witnesses, resolved the conflicts, and concluded that there was probable cause for the magistrate to issue the search warrant. Factwise, the question is whether the evidence before the magistrate supported her finding that probable cause existed to believe the premises contained contraband.

The magistrate had previously issued a search warrant for Ricky’s Car Wash based on information from the same CI. The officers had set in motion another controlled buy by the CI before they executed that warrant, and they were surveilling the car wash waiting for the transaction to transpire. The CI had been given $1,200 in $100 bills and had been searched beforehand for drugs. The buy did not occur as anticipated at the car wash; instead, a car with an unidentified driver came up, the CI got in, and it drove off. In about a half hour it returned, the CI exited and the car drove off, and the CI flicked his car lights to signal the police that the buy was complete and they should enter and execute the search warrant.

They did so and found one of the $100 bills in the car wash owner’s control, the CI explaining that he had to be paid to set up the purchase elsewhere. The owner was arrested. The CI gave what tested as cocaine to the officer and explained that he had been taken to the residence whose search is now at issue; he gave $750 to the driver, who went into the residence and came out with the cocaine which the CI delivered to the officers. The CI was made to wait in the car.

The magistrate testified that the officer, who was in a hurry to get the government’s money back, told her under oath the source of his information, i.e., the unnamed CI, that the CI “or someone” had just bought drugs at the location described by the CI, and that the sheriff was waiting at the house for the warrant. The officer explained to her how the need for this second search warrant stemmed from the execution of the first one she had issued. The officer did not tell her the name of the CI, but she knew that the prior information from the CI led to a successful search of the car wash.

The trial court found that the description of the buy as “controlled” was not misleading because it was “controlled” in the sense that it was pre-planned by the officers, it was accomplished with marked government money through a purchase by a CI, and the CI was searched both before and after to assure that the CI was not in possession of a drug otherwise or of the marked money. It just did not occur at the car wash, where the officers were located.

The trial court was in error about one fact; there is no evidence that the CI entered the residence sought to be searched. The affidavit does not state that the CI went into the residence, the magistrate did not testify that the officer told her the CI did so, and the officer testified that he did not tell the magistrate that the CI went into the house. He did testify that he did not explain that the CI did not go into the house when the Cl made the buy at the residence and answered “I — yes” to the question: “Did you make her believe that your informant is the one that made the hand to hand purchase in Lyons?”

The trial court found that the information from the Cl was corroborated by the Cl’s production of cocaine after the half-hour trip, the absence of the $750, and the before-and-after search. It was also corroborated by the successful search of Ricky’s and his arrest a short time before, based on information from the same CL The officers knew that the location described by the Cl was that of defendant; the sheriff knew defendant, and he was named in the search warrant as the person in control of the residence. The Cl would know that his own interests would be in great jeopardy if he identified the wrong location as the place from which the one-half ounce of cocaine had come and at which, consequently, the marked bills could be found.

Had the officer made clear to the magistrate that the Cl did not go in the residence and buy the cocaine directly from the person in control of the residence, there would still be present probable cause to believe that the cocaine came from that house and the pre-recorded funds and/or more cocaine would be there to evidence it as the source of the controlled substance. See Williams v. State, 232 Ga. 213, 214 (1) (205 SE2d 859) (1974).

The reliability of the car’s driver is immaterial, and there is no evidence of anything that person said which was relied on in issuing the warrant. It is reasonable to infer that the driver did in fact obtain the cocaine from the residence to which he drove with the buyer/CI and in which he went with the purchase money and from which he came with the cocaine delivered to the buyer/CI who was waiting in the car. Although it is possible that he went to the residence as a decoy and had the cocaine in his possession all along, it is not likely; no reason appears for such a scenario. In any event, the driver was not the purchaser but merely the go-between; he obtained funds for the transaction from the Cl and delivered the purchased item to the CI.

The affidavit itself should have reflected more of what was related to the magistrate so that there was a clear record instead of recalled and incomplete memory; or it should have been tape-recorded or memorialized in some other manner. The Supreme Court of Georgia has made this plain, stating at least twice that the attesting officers and magistrates should “make every effort to see that supporting affidavits reflect the maximum indication of reliability. ...” State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984); Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). Valid searches should not be set at risk because of the lack of a record. Those who are trained to seek warrants as part of their professional duties, and those who are authorized by law to issue or deny them, are responsible for making a record which will prove the legal validity of their actions with accuracy and completeness.

Nevertheless, considering all of the circumstances known to the magistrate, as well as the fact that the Cl did not go into the residence to witness the exchange of the money he provided for the drugs obtained, there was probable cause to believe that evidence of the sale (the money) if not both the money and additional drugs, would be found in the premises. Stephens, supra.

We cannot conclude that the trial judge erred as a matter of law in concluding that the affidavit and additional information, supplied to the magistrate or known to her by way of the prior warrant, passed federal constitutional muster. There was at least a “fair probability” that the items and persons being sought would be found there. Id. at 182.

2. Clark also challenges the search warrant on the ground that the issuing magistrate was not neutral because her son was a Vidalia police officer. The affiant was a narcotics detective with the same police department and had been such for about seven months at the time the warrant was issued. Defendant did not contest the State attorney’s statement that the magistrate’s son “was not involved in this particular case in any way whatsoever.”

It is fundamental that the adjudicator who determines whether probable cause exists to issue a search warrant must be “ ‘neutral and detached.’ ” Vaughn v. State, 160 Ga. App. 283 (287 SE2d 277) (1981), and cases cited therein. The fact presented by defendant does not, standing alone as it does, disqualify the magistrate either because of the family relationship or because of her consequent connection with the executive department of government. There is not shown a per se disqualification based on lack of disinterestedness or on violation of the separation of powers. Compare Vaughn v. State, supra.

3. The final challenge to the warrant is that it was insufficient because it failed to state with specificity the address of the premises to be searched. The State concedes that the address, “629 East Grady St. Lyons, Ga. and to include the curtilage,” was incorrect. The magistrate testified that although the address was not on the warrant at the time the officer presented it to her, “he told [her] where the house was located,. . . how to get to the house, . . . who was standing by at the house for the warrant to get there . . . where he received the information for this search. ... He knew where the house was located, but the person [who] had given him the information could not tell him the address of the house.” She understood that the location was obtained from the Cl who had just purchased cocaine at the premises, that the sheriff had gone to the residence described by the Cl and was waiting there, and that it was the residence of Dallas Clark.

The place authorized to be searched was sufficiently described.

4. Lastly, Clark contends that the court should have suppressed the items from his place of business because any consent to search the business was rendered involuntary by the fact that it was the result of an illegal arrest. He maintains that the sheriff’s detaining of him at his residence to await the search warrant constituted an arrest and was illegal because it lacked probable cause.

The trial court found that the sheriff’s detention of the residents of the premises until the search warrant was issued was but a “brief seizure” as defined in Mixon v. State, 184 Ga. App. 623 (362 SE2d 111) (1987). However, even if the detention was found to constitute an arrest, it was not without probable cause. “The basis for issuance of a warrant by a magistrate is almost identical to the basis for a warrantless arrest, i.e., ‘facts sufficient to show probable cause that a crime is being committed or has been committed. . . .’ OCGA § 17-5-21 (a). The U. S. Supreme Court [cit.] and this court [cit.] have held that they are the same.” State v. Banks, 185 Ga. App. 760, 762 (365 SE2d 855) (1988).

The probable cause that supported issuance of the search warrant for Clark’s home would likewise have supported his warrantless arrest. See Division 1, supra.

Judgment affirmed.

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

Johnson, Judge,

dissenting.

I do not agree that the affidavit upon which the warrant to search Clark’s home was based established probable cause. Officer Young’s affidavit omitted critical information and contained false statements. Young admitted on cross-examination that in obtaining the warrant he led the magistrate to believe that the informant made the “hand to hand” purchase at Clark’s residence when in reality the informant never went inside. Young gave no indication in the affidavit that only the unknown driver entered Clark’s home. Young also admitted at the suppression hearing that because officers did not continue their surveillance of the informant once he left the car wash, the buy in this case was not, contrary to his assertion in the affidavit, a controlled one. See, e.g., Sullivan v. State, 178 Ga. App. 769, 770 (344 SE2d 737) (1986). Under the authority of Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), the false testimony cannot be used to establish probable cause. Peters v. State, 213 Ga. App. 488, 489 (445 SE2d 290) (1994); see Daniels v. State, 183 Ga. App. 651, 652 (359 SE2d 735) (1987). Once a court determines an affidavit contains false statements or omissions as set out in Franks, the false statements must be deleted, the omitted truthful material included, and the affi-

davit reexamined to determine whether probable cause exists to issue a warrant. Peters, supra at 489-490. In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, all of the circumstances set forth in the reformed affidavit must be considered, including the veracity and basis of knowledge of persons supplying hearsay information. See Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992); Wood v. State, 214 Ga. App. 848 (449 SE2d 308) (1994). “The ‘totality of the circumstances’ analysis applies also in situations in which there are two informers.” Munson v. State, 211 Ga. App. 80, 81 (438 SE2d 123) (1993). In this case, the information that there was cocaine inside Clark’s residence could only have been provided by the unidentified driver. It is undisputed that his reliability is unknown. A deficiency created by the fact that the reliability of either source has not been established can be corrected by the corroboration of the information, thereby providing a substantial basis for finding probable cause. Id. at 82. Here, there was no corroboration of the claim that cocaine was being sold from Clark’s residence. “No matter how truthful or sincere the information from the reliable source, the crucial question is the unidentified third-party’s reliability, and that is simply not established in the affidavit.” Wood, supra at 849. In my opinion, with the affidavit’s false material set to one side and previously omitted material included, the affidavit’s remaining content is insufficient to establish probable cause. See Daniels, supra. Compare State v. Thomas, 203 Ga. App. 623, 624 (417 SE2d 328) (1992). Therefore, I believe the trial court erred in denying Clark’s motion to suppress evidence found in his residence. See Talley v. State, 200 Ga. App. 442, 445 (3) (d) (408 SE2d 463) (1991).

Similarly, I must dissent from the holding in Division 4.1 believe the trial court erred in denying Clark’s motion to suppress evidence found at his place of business because his consent stemmed from an illegal arrest and unauthorized search of his residence. Sheriff Charles Durst detained Clark in his residence for one-and-one-half hours while waiting for Officer Young to obtain the search warrant. Durst testified that Clark was not free to leave and would have been arrested had he attempted to do so. When Young did arrive with the warrant, Clark was asked if he would consent to a search of his place of business, which he did. However, consent is not valid if it is the product of an illegal detention. See generally VonLinsowe v. State, 213 Ga. App. 619, 622 (2) (445 SE2d 371) (1994). I realize that officers may detain occupants of a residence while the premises are being secured pursuant to a search warrant. Harrison v. State, 213 Ga. App. 174, 176 (444 SE2d 354) (1994). Here, however, I do not believe there was a valid search warrant. Moreover, the prolonged detention in this case amounted to an arrest and, to be lawful, must have been supported by probable cause. See State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992). Probable cause to arrest Clark did not exist prior to the search. Because the officers had no valid warrant authorizing a search of Clark’s home and no probable cause to arrest him, his detention was illegal and his consent to search the store tainted. In my opinion, the trial court erred in denying Clark’s motion to suppress evidence obtained in the search of his business.

Decided March 17, 1995

Reconsideration denied March 30, 1995

Solomon & Edgar, M. Theodore Solomon II, Alan P. Layne, for appellant.

Richard A. Malone, District Attorney, S. Hayward Altman, Assistant District Attorney, for appellee.

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


author: McMurray, Presiding Judge.

text:
    A94A2498.
    RAMIREZ v. THE STATE.
    (456 SE2d 657)
   McMurray, Presiding Judge.

On December 12, 1987, Guillermo Ramirez (defendant) and Jorge I. Moreno were arrested after police discovered over four pounds of a substance containing 79 percent pure cocaine and $55,000 in cash in an automobile defendant had been driving. Defendant was subsequently indicted along with co-defendant Moreno for trafficking in cocaine. The resulting prosecutions gave rise to four jury trials and six appeals, including the case sub judice. See Ramirez v. State, 190 Ga. App. 889 (380 SE2d 323) (1989); Ramirez v. State, 196 Ga. App. 11 (395 SE2d 315); Moreno v. State, 204 Ga. App. 463 (419 SE2d 735); Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3); Ramirez v. State, 211 Ga. App. 356 (439 SE2d 4).

Pursuant to an OCGA § 17-7-170 demand for trial, defendant and co-defendant Moreno were tried before a jury and convicted of trafficking in cocaine. After the Court of Appeals reversed defendant’s conviction in Ramirez v. State, 190 Ga. App. 889, 891 (2), supra (because of a flawed jury instruction), the trial court granted co-defendant Moreno’s motion for new trial. Moreno v. State, 204 Ga. App. 463, supra. When the case was called for trial during the term of court following the term in which the remittitur from the Court of Appeals was filed (and made the judgment of the trial court), defendant pressed a motion for discharge and acquittal pursuant to his statutory demand for trial because he was not brought to trial after his appeal within the number of days remaining during the term of court in which he was first tried. The trial court did not agree and the Court of Appeals affirmed the denial of defendant’s motion for discharge and acquittal in Ramirez v. State, 196 Ga. App. 11, supra, adopting guidance from Dennis v. Grimes, 216 Ga. 671, 672 (1) (118 SE2d 923), in holding “that the demand would run again in its entirety for retrial.” Id. at 11 (2), 12, supra.

After defendant’s case was called for trial in December 1990, a second jury trial was conducted and co-defendant Moreno was found guilty after several hours of deliberations. However, the jury was unable to reach a verdict as to defendant Ramirez so the trial court declared a mistrial and announced that defendant Ramirez would be retried during the next term of court. Defendant did not object nor did he assert a plea of former jeopardy when his case proceeded to a third jury trial in January 1991. Defendant was thereafter convicted, but, on appeal, this conviction was reversed in Ramirez v. State, 205 Ga. App. 217 (2), supra, because of noncompliance with the Supreme Court’s rulings in Williams v. State, 261 Ga. 640 (409 SE2d 649), and Stephens v. State, 261 Ga. 467 (405 SE2d 483). The case was called to trial again in February 1993, but the trial was delayed because defendant filed a motion for discharge and acquittal on the grounds that he was not tried within the two-term rule enunciated in Ramirez v. State, 196 Ga. App. 11 (2), 12, supra. The trial court denied this motion and the Court of Appeals affirmed in Ramirez v. State, 211 Ga. App. 356, supra, finding that the two-term rule does not begin to run until entry of judgment on the remittitur. The case was called for trial again on April 11, 1994, at which time defendant pressed a plea in bar, arguing that the trial court abused its discretion in declaring a mistrial after his second jury trial in December 1990. See OCGA § 16-1-8 (a) (2). The trial court denied this motion and the case proceeded to trial where the State introduced evidence reflecting essentially the same facts recited in Ramirez v. State, 190 Ga. App. 889 (1), supra. The State also presented proof of defendant’s commission of a prior similar crime, showing that huge quantities of illegal drugs (“twenty seven thousand quaalude tablets”) were found in defendant’s van in March 1980, after defendant was arrested for giving a small quantity of the contraband (three quaalude tablets) to an undercover law enforcement officer. In connection with this crime, the State introduced a certified copy of defendant’s plea of guilty for distribution of methaqualone in the United States District Court for the Southern District of Florida.

The jury found defendant guilty of violating Georgia’s Controlled Substances Act in that he did possess 400 or more grams of a mixture containing at least 10 percent cocaine. This appeal followed the denial of defendant’s motion for new trial. Held'.

1. Defendant contends the trial court erred in denying his plea in bar, arguing that further prosecution of him is barred pursuant to OCGA § 16-1-8 (a) (2) because the trial court abused its discretion in declaring a mistrial at the trial conducted in December 1990. This contention is without merit.

“A retrial following a mistrial caused by a failure of the jury to agree on a verdict is not a case of double jeopardy in this state. See in this connection Bush v. State, 117 Ga. App. 310 (160 SE2d 456); Harwell v. State, 230 Ga. 480 (197 SE2d 708). It was within the discretion of the trial court to discharge the jury when they were unable to agree on a verdict. Defendant [in the case sub judice argues] that the court failed to give the jury sufficient time to resolve its differences and to deliberate further, there being only a short period of deliberation. This alone is insufficient to show that the trial court abused its discretion by granting a mistrial. See Hyde v. State, 196 Ga. 475 (1), 479 (26 SE2d 744); Cameron v. Caldwell, 232 Ga. 611 (208 SE2d 441).” Hooks v. State, 138 Ga. App. 539 (2) (226 SE2d 765). See Murff v. State, 165 Ga. App. 808, 810 (1) (302 SE2d 697) rev’d on other grounds 251 Ga. 478 (306 SE2d 267). However, assuming the contrary, we find no basis for reversal.

“A plea of former jeopardy is a personal privilege and may be waived. See Key v. State, 84 Ga. App. 599, 600 (66 SE2d 773); Denson v. State, 209 Ga. 355 (72 SE2d 725); Phelps v. State, 130 Ga. App. 344 (203 SE2d 320).” Hooks v. State, 138 Ga. App. 539, 540 (3), supra. In the case sub judice, defendant failed to assert a plea of former jeopardy before retrial in January 1991. He waited until his case was called for trial on April 11, 1994, to press a plea in bar based on the trial court’s alleged abuse of discretion in declaring a mistrial during the trial conducted in December 1990. Under these circumstances, we find that defendant waived his right to assert a plea of former jeopardy based on any abuse of discretion in declaring a mistrial during the trial which was conducted in December 1990.

2. Next, defendant challenges the trial court’s decision to admit evidence of his prior criminal acts, arguing there is no “logical connection between [the prior criminal acts and the crime charged in the case sub judice] to indicate that proof of one tends to establish the other.”

“Before evidence of similar crimes is admissible, ‘ “ ‘two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.’ (Cit.)” (Cit.)’ Carter v. State, 192 Ga. App. 726, 729 (8) (386 SE2d 389) (1989). Further, ‘ “evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” ’ Id.” (Emphasis omitted.) Childs v. State, 202 Ga. App. 488 (1), 489 (414 SE2d 714).

In the case sub judice, the State was allowed to prove that defendant was arrested in March 1980 after giving an undercover officer “three . . . quaalude tablets as a sample of twenty five thousand tablets that [defendant] wanted [the undercover officer] to buy from him”; that “twenty seven thousand quaalude tablets” were found in defendant’s van after his arrest and that this incident led defendant to enter a plea of guilty in Florida for distribution of methaqualone. This evidence not only shows that defendant was the perpetrator of the prior criminal acts, it authorizes a finding that the prior criminal acts (underlying defendant’s conviction for distribution of methaqualone) are sufficiently similar to the crime charged so that proof of the former is relevant to show defendant’s plan, scheme, bent of mind and course of conduct in committing the crime charged in the case sub judice. In this regard, any prejudice which may have resulted from admission into evidence of defendant’s prior criminal acts was outweighed by its relevance. Consequently, since the trial court gave proper limiting instructions regarding the purpose of the similar transaction evidence (e.g., that evidence of any other crimes committed by defendant should be considered only as it may illustrate the mental state, identity or intent of defendant and for no other purpose), we find no error in admission of defendant’s prior criminal acts. Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739). See Obiozor v. State, 213 Ga. App. 523 (445 SE2d 553).

3. In his final enumeration of error, defendant contends the trial court erred in denying his motion for mistrial after one of the jurors discovered that he had a personal bias “as far as weighing testimony from one of the witnesses.” The problem came to light during the second day of jury deliberations when the trial court received the following note from the jury foreman: “Your Honor, ... In the course of our deliberations, we have discovered that one of our jurors has a bias that was not uncovered during the jury selection process. . . . We are all convinced, the concerned juror included, that this juror cannot cast an impartial vote in this case. ... We also are convinced that, as this jury is now constituted, we cannot reach a unanimous verdict. ... We respectfully request Your Honor to instruct us on how to proceed.”

While the trial court and counsel were discussing how to resolve this matter (out of the presence of the jury), the trial court was informed that the jury had reached a verdict. The trial court received the verdict and ordered it sealed. The court then identified the juror who conveyed a bias toward the testimony of one of the witnesses and questioned him outside the presence of the other jurors. The juror explained the sum of his concern as follows: “Your Honor, my bias surfaced with the display of evidence, in other words, testimony from one of the witnesses. . . . The fact that prior experiences that I had caused me to have a difference of opinion to weigh — a difference of opinion as far as weighing testimony from one of the witnesses. . . . Now, I was not aware that this was going — I did not at the time of selection realize that this incident would have an effect on my decision making ability on this jury, Your Honor.” Thereafter, the trial court questioned this juror regarding his bias and offered voir dire to the State’s attorney and defense counsel. The juror stated that the panel was able to reach a unanimous verdict, explaining that, “after sending the note to the Court, we took an alternative route of weighing evidence, and using this alternative route which I do not have to use the testimony that I am biased against, I do not have to use that, so therefore I feel I can come to a fair and unbiased decision on this trial, on this case.”

Contrary to defendant’s contention, the concern expressed by the above juror does not reveal an irregularity which raises a presumption of prejudice requiring proof, beyond a reasonable doubt, that no harm occurred. See Davis v. State, 192 Ga. App. 47, 48 (4) (383 SE2d 615). On the contrary, the above juror’s concern reveals only that he was prejudiced by the introduction of evidence at trial. “Jurors are not disqualified because they might be ‘influenced’ by the introduction of material evidence.” Pope v. State, 256 Ga. 195, 201 (7) (d) (345 SE2d 831). Under the circumstances, we find that the trial court did not err in denying defendant’s motion for a mistrial.

4. In a document entitled, “APPELLANT’S AMENDED ENUMERATION OF ERRORS,” defendant states that he “presents this amended enumeration of error based upon the Georgia Supreme Court overruling the previous ruling by this Court in Ramirez vs. The State, 211 Ga. App. 356 [, supra] in the October 14, 1994 ruling of the Georgia Supreme Court in Henry vs. The State, [264 Ga. 527, 528 (1b), 530, supra].” We do not reach this contention because defendant’s amended enumeration of error was filed more than 20 days after the docketing of the case sub judice. “Enumerations of error may not be amended after the original filing time has expired. Parham v. State, 166 Ga. App. 855, 856 (2) (305 SE2d 599) (1983).” Mikart, Inc. v. Marquez, 211 Ga. App. 209, 211 (3) (438 SE2d 633).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided March 17, 1995

Reconsideration denied March 30, 1995

John G. Cicala, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

       The Supreme Court overruled Ramirez v. State, 211 Ga. App. 356, supra, holding “that the filing of the remittitur in the lower court should be the point in time at which the demand clock should resume ticking.” Henry v. James, 264 Ga. 527, 528 (1) (b), 530 (449 SE2d 79).


text:
    A94A2753.
    FULLER v. HARRISON et al.
    (456 SE2d 684)
   Pope, Presiding Judge.

This case involves a dispute over the payment of life insurance proceeds.

In October 1989, Ronald C. Harrison (Harrison) purchased a life insurance policy (policy) from Security-Connecticut Life Insurance Company (Insurer). Harrison named his wife, Nancy, the sole primary beneficiary of the $1,000,000 policy proceeds payable at his death. The policy provided for ownership by the insured, unless another owner was specifically designated. The policy also provided that the owner could assign or give away his rights under the policy (transfer ownership), although notice of the transfer had to be provided to the Insurer. The owner of the policy also had the right to change the designated beneficiary, subject to approval by the Insurer.

In December 1991, Harrison executed a change of beneficiary form requesting the Insurer to pay the policy proceeds as follows: 25 percent to his daughter, appellee Roni M. Harrison; 25 percent to appellant Helen Fuller; and the remaining 50 percent to his estate. This change was approved by the Insurer, and pursuant to the policy provisions, became effective as of the date it was signed by Harrison.

In March 1992 Harrison, as Donor, and NationsBank of Georgia, N.A. (NationsBank), as Trustee, executed a trust agreement creating the Ronald C. Harrison Insurance Trust. In addition to NationsBank, the “corporate trustee,” two individual trustees, Bill Henderson and David Sherrard, were named. However, neither Henderson nor Sherrard signed the trust agreement. In section 1 of the agreement, Harrison conveyed ownership of the policy to the Trustee, and specified that the policy (along with any subsequent transfers of property) was to comprise the trust estate. The beneficiaries of the trust were Harrison’s estate and his daughter, Roni M. Harrison. Section 11 of the agreement provided the trust was irrevocable and that the Donor would not alter, amend, revoke or terminate the trust “or any provision thereof.”

It appears that change of ownership and change of beneficiary forms were signed by Harrison and a NationsBank representative on April 1 and April 9, 1992, but that only the April 9 forms were transmitted to and acknowledged by the Insurer. The record shows that the April 9 change of ownership form listed the “Roni M. Harrison Trust. — est. 3/2/92 — NationsBank — Trustee^] Ronald C. Harrison Grantor,” as both the “owner” and “new owner,” and Harrison as the Insured/Grantor. The form was signed by Harrison as the Insured and by NationsBank as Trustee/Owner. A change of beneficiary form was also executed by Harrison, as the Insured, and NationsBank, as the Trustee/Owner on that date. The April 9 change of beneficiary form provided for payment of the policy proceeds as follows: 35 percent to the Roni M. Harrison Trust, 15 percent to David G. Sherrard, 15 percent to William Higgins, 20 percent to Nancy J. Burger and 15 percent to Harrison’s estate. The Insurer acknowledged both the change of ownership and change of beneficiaries on April 14, 1992. A few days later, Harrison committed suicide.

This case was initiated when NationsBank filed a petition for equitable direction and removal of co-trustee (Sherrard). The Insurer paid the proceeds of the policy into the registry of the court, and all parties claiming against the proceeds except appellant Fuller agreed to a settlement of their claims. $750,000 of the proceeds was paid out of the registry of the court to the settling parties, and Fuller and the appellees filed cross-motions for summary judgment, asserting their entitlement to the remaining ($250,000) policy proceeds. The trial court granted appellees’ motion and Fuller filed the present appeal to this court.

Obviously, the parties’ entitlement to the remaining policy proceeds depends on the validity of the April beneficiary change. Fuller argues that as a beneficiary under a prior designation, she is entitled to insist on strict adherence to the policy provisions, see Rouse v. Crum, 169 Ga. App. 439, 441 (313 SE2d 140) (1984), including the provision of the policy allowing only the owner of the policy to change beneficiaries. Id. Thus, Fuller argues, because the April 9 change of beneficiary was executed by only one of the three owner/trustees named in the trust agreement, the April change is invalid and she is entitled to 25 percent of the proceeds under the December beneficiary designation. See OCGA § 53-12-172 (requiring unanimity of action by co-trustees). Appellees acknowledge Fuller’s right to insist on strict adherence to the policy’s terms, but argue that the undisputed evidence shows that at the time the April change of beneficiary was executed, the only trustee who had accepted the trust was NationsBank and therefore, the change was valid because it was executed by the sole accepting/acting trustee. See OCGA § 53-12-171.

Decided March 17, 1995

Reconsideration denied March 30, 1995

Byrne, Eldridge, Moore &■ Davis, Francis X. Moore, Scott D. Calhoun, for appellant.

Powell, Goldstein, Frazer & Murphy, David G. Ross, for appellees.

We find it unnecessary to reach the issue of acceptance by the trustees. The undisputed evidence in this case shows that the April change of beneficiary, although signed by a NationsBank representative, was actually made by Harrison, in violation of both the policy terms and the trust agreement. Under the clear terms of the policy, once Harrison transferred ownership of the policy (and we find no merit to appellees’ “fail-back” position that ownership of the policy was not transferred by Harrison), only the new owner had the right to change the prior designation of beneficiaries; Harrison, who was no longer owner of the policy, did not have that right. But the new owners did not change the beneficiaries, they merely signed a form wherein Harrison designated new beneficiaries. Indeed the record strongly suggests that the NationsBank representative who signed the April change of beneficiary form did not have any knowledge of either the terms of the policy or the terms of the trust, or indeed, of who the prior beneficiaries were under the policy. To say that the beneficiaries were changed by NationsBank is sheer sophistry, and would allow Harrison to do indirectly what he no longer had the power to do directly. It follows that the April beneficiary change, not having been made by the owner of the policy, was invalid, and that Fuller is entitled to the proceeds under the December designation. See Hunnicutt v. Southern Farm Bureau Life Ins. Co., 256 Ga. 611 (4) (351 SE2d 638) (1987); State Farm Life Ins. Co. v. Gutterman, 896 F2d 116, 119 (4) (5th Cir. 1990). It also follows that the trial court’s order granting summary judgment to appellees and denying summary judgment to Fuller must be reversed.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

       It appears undisputed that there is only one trust and that all references to the Roni M. Harrison Trust are misnomers and intended to refer to the Ronald C. Harrison Insurance Trust created on March 2, 1992.

       Appellees are Nancy Harrison, as executrix of the estate of Ronald C. Harrison, Roni M. Harrison, William Higgins and Nancy J. Burger.


text:
    A94A2755.
    WETTA v. THE STATE.
    (456 SE2d 696)
   Ruffin, Judge.

Gerald Broussard Wetta was convicted by a jury of simple battery and acquitted on charges of criminal trespass and battery. This appeal follows the denial of Wetta’s motion for new trial.

Viewed in the light to support the jury’s verdict, the evidence showed that Wetta and the victim were together at the victim’s apartment for dinner when they got into an argument. The victim testified that after Wetta threw bottles of beer onto the floor and verbally abused her, she asked him to leave. When he refused, she called the “911” operator for assistance. During the victim’s conversation with the dispatcher, Wetta agreed to go. However, after the victim hung up, Wetta began hitting and kicking her. He pinned her to the bed and thereafter unbuttoned and unzipped her jeans. As the victim managed to push Wetta away, the 911 emergency dispatcher telephoned the victim’s apartment and Wetta answered. The jury heard the 911 recording of the victim’s screams for help in the background. The victim testified that Wetta hung up the telephone and quickly left the apartment with a basket of his laundry. As Wetta was leaving, Officer Lewis of the Atlanta Police Department arrived to investigate the victim’s 911 call. He testified that the victim’s clothes were in disarray, her upper lip was red and swollen, and she was crying hysterically. The victim told Officer Lewis that Wetta had hit her in the face and rib cage with a closed fist. Officer Lewis observed that the victim’s apartment was also in disarray: a cordless telephone was in pieces on the kitchen floor, a planter was broken, and some living room furniture was stained with what appeared to be wine. In addition, Mary Galphin testified that after Wetta and Officer Lewis left the victim’s apartment, the victim called her. The victim was reportedly hysterical and told Galphin that Wetta had beaten her. The State also presented Wetta’s former girl friend who testified concerning similar arguments, violence, and abusive behavior during her relationship with Wetta.

1. Wetta contends the trial court’s charge to the jury on self-defense impermissibly shifted the burden of proof. We disagree.

Our review of the court’s charge reveals a thorough initial instruction on the State’s burden to prove every element of the charged offenses. Following its charge on the elements of the offense of battery, the court charged, “If you find the defendant’s conduct was justified, this is a defense to the prosecution for committing any crime based on that conduct. A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against the other’s imminent use of unlawful force. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. To establish a plea of self-defense, the defendant must show, if circumstances were such as to excite fears of a reasonable person, that his safety is in danger. A mere apprehension of suspicion of harm is insufficient.” The court later recharged the jury as to the elements of the offenses charged, and the defense of justification.

The charge “expressly placed the burden of proof on the State as to self-defense. Nevertheless, even assuming arguendo that a reasonable juror could potentially have interpreted some portion of the subject language as unconstitutionally burden-shifting, we find no prejudice to [Wetta’s] substantial rights,” given the court’s thorough charge on the burden of proof in a criminal case. (Citation and punctuation omitted.) McWhorter v. State, 198 Ga. App. 493, 494 (3) (402 SE2d 60) (1991). Taken as a whole, the charge in this case could not be considered burden-shifting. See Griffith v. State, 169 Ga. App. 957 (315 SE2d 490) (1984).

2. Wetta enumerates as error the admission of similar transaction evidence by a former girl friend.

At the similar transaction hearing prior to trial, the former girl friend testified that five years before the incident in this case, she ended a four-year relationship with Wetta. In addition, Wetta underwent direct and cross-examination. After the examination and argument of counsel, the trial court found the State had met its burden of showing sufficient similarities between Wetta’s prior violent conduct and the charged offenses and ruled the evidence admissible to show Wetta’s bent of mind and course of conduct. Prior to the former girl friend’s testimony at trial, the court fully instructed the jury to consider the evidence only for the limited purpose of establishing Wetta’s bent of mind and course of conduct. We find no error in the court’s determination that the State met its three-fold burden under Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991).

Wetta also argues in his brief that the former girl friend’s testimony that Wetta objected to her having Black or Jewish friends impermissibly placed his character into evidence. He also argues that the former girl friend’s mention of an unrelated incident of domestic violence inflamed the jury. We need not consider these claims because “ ‘enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.’ [Cit.]” Williams v. State, 213 Ga. App. 70, 71 (4) (443 SE2d 696) (1994). In any event, these contentions are without merit. The trial court sustained Wetta’s objections to the former girl friend’s testimony as irrelevant and Wetta neither asked for curative instructions nor moved for a mistrial. Having failed to ask the court to take additional corrective measures, Wetta cannot now claim the testimony was prejudicial to him. See Woods v. State, 212 Ga. App. 544 (1) (442 SE2d 22) (1994).

Decided March 17, 1995

Reconsideration denied March 30, 1995

Maloy & Jenkins, W. Bruce Maloy, for appellant.

Paul L. Howard, Jr., Solicitor, Michael S. Moody, Deborah W. Espy, Ingrid D. Hartman, Assistant Solicitors, for appellee.

3. Wetta next contends that the court’s exclusion of impeachment evidence concerning the victim’s prior behavior was error because Wetta was not allowed to show the victim’s motive to lie.

In a voir dire examination outside the presence of the jury, the trial court heard the testimony of Graham Greene who stated that he had an affair with the victim nine years before the incident in this case. He further stated that he gave the victim $10,000 because she threatened to tell his wife about their affair. However, he also testified that the victim subsequently repaid him $4,000 not long after she came to Atlanta. Greene’s wife testified on voir dire that she called the victim and informed her that she knew of the affair.

Wetta’s reliance on the Supreme Court’s decision in Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991), holding that “specific acts of violence by a victim against third persons shall be admissible where the defendant claims justification,” id. at 407, is misplaced. Greene’s testimony did not support Wetta’s defense of justification. Instead, Wetta sought to attack the victim’s credibility with evidence that she had an affair with a married man and then threatened to tell his wife unless he gave or loaned her money. “Although OCGA § 24-9-84 provides that a witness may be impeached by a showing of general bad character, specific acts of bad character are not admissible. [Cit.] The proffered testimony of [the Greenes] related solely to specific bad acts and not to the general bad character of the victim. Therefore, the testimony was not admissible.” Heaton v. State, 214 Ga. App. 460, 461 (2) (448 SE2d 49) (1994).

4. Finally, Wetta challenges on hearsay grounds the admission of Mary Galphin’s testimony concerning what the victim told her shortly after the incident. The court correctly admitted Galphin’s statements as part of the res gestae. Williams v. State, 202 Ga. App. 82, 84 (413 SE2d 256) (1991); see also Tucker v. State, 243 Ga. 683 (3) (256 SE2d 365) (1979) (outcry made by a rape victim to one she immediately sought out within one hour from the commission of the crime was sufficiently contemporaneous to be a part of the res gestae and was therefore admissible). Moreover, the victim testified as to what she told Galphin, and any error in admitting the testimony was therefore harmless.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Beasley, Chief Judge. Andrews, Judge,

text:
    A94A2784.
    BROWN v. WHO’S THREE, INC.
    (457 SE2d 186)
   Beasley, Chief Judge.

Brown journeyed to Atlanta on business. Before her arrival she asked the hotel at which she would be staying if it had a hair salon and was told it did. She had someone at the hotel arrange an appointment for a facial. After arrival, she found Who’s Who Hair Salon listed in the hotel’s brochure under “Special Services.” (Who’s Three conducted its hair salon business under the name Who’s Who.)

When Brown arrived at the salon, which was located in a matching building connected to the hotel by a covered courtyard or corridor, she was led to a room with a reclining table. A facial esthetician, Linda Al-Ansari, was in the room and instructed Brown to lie on the table. Sometime after Brown did so the reclining portion of the table gave way and she was rendered unconscious and injured. She sued the unknown builder of the table on a theory of products liability, and she alleged that the hotel and salon were liable on theories of premises liability (OCGA § 51-3-1), lack of due care in inspecting and maintaining the table, negligent supervision of Al-Ansari, and imputed negligence for any negligent acts of Al-Ansari under the doctrines of agency, respondeat superior, and apparent agency. The court granted the salon’s motion for summary judgment, specifically ruling that the undisputed facts precluded any liability under premises liability, negligent inspection and maintenance of the table, agency, respondeat superior, or apparent agency; the court did not expressly address the theory of negligent supervision. Brown asserts the evidence does not preclude the theories of liability rejected by the court.

1. She first contends that the salon is liable for any negligent acts of Al-Ansari by virtue of the relationship between the salon and AlAnsari. She argues that Al-Ansari held only an “apprentice” license to practice facial esthetics, see OCGA § 43-10-14, and that this status rendered the salon liable for any negligent acts on the apprentice’s part by operation of the doctrine of respondeat superior.

Although the term “apprentice” no longer holds some of its historical connotations, such as indentured service, see Comas v. Reddish, 35 Ga. 236 (1866), an apprentice has historically been considered to be a “species of servant[ ].” Lewis v. Fisher, 30 A 608, 609 (Md. 1894). The former Georgia statute providing for apprentices referred to the apprentice as a servant. Code Ann. § 66-207 (1966 Rev.) Over time, the use of the term has changed, see City of St. Louis v. Bender, 154 SW 88 (Mo. 1913); Heget v. Christ Hosp., 58 A2d 615, 616 (N. J. Ct. of C. P. 1948), but the term continues to indicate a relationship of master and servant, and an “apprentice” is usually treated as an employee for purposes of workers’ compensation. See OCGA § 34-9-1 (2); Ryles v. Durham County Hosp. Corp., 420 SE2d 487, 489-490 (N. C. App. 1992).

More modern arrangements whereby a person performs work under contract while learning a trade or occupation without being indentured have been likened to an apprentice relationship. City of St. Louis, supra at 90-91; Heget, supra at 616. This is so even where the student is unremunerated. Ryles, supra. The similarity between traditional apprenticeship and on-the-job student learning, suggests that one working “under” a certified esthetician or master cosmetologist while learning the trade, as contemplated by OCGA § 43-10-14, whether labeled a student or an apprentice, should be considered a servant for the purposes of respondeat superior.

“ ‘[T]he doctrine of respondeat superior . . . holds the master responsible for the negligent act of his servant, committed while the servant is acting within the general scope of his employment and engaged in his master’s business.’ [Cit.]” Stapleton v. Stapleton, 85 Ga. App. 728, 730 (70 SE2d 156) (1952). “The negligence of the master in such a case is entirely derivative from the servant’s negligence. [Cits.]” Id. at 731. The complaint alleged that Al-Ansari was negligent in using a table she should have known was not capable of supporting a customer. Having undertaken to perform facials using the table, Al-Ansari had the obligation to do so non-negligently. Atlanta Center, Ltd. v. Cox, 178 Ga. App. 184, 185 (341 SE2d 15) (1986). There is no dispute that Al-Ansari herself supplied the table at issue.

Brown asserts that the statute regulating cosmetologists, estheticians, and manicurists establishes the salon is liable by operation of respondeat superior. OCGA § 43-10-14 allows a person to learn the occupation of esthetics as a student or apprentice “under” a certified master cosmologist, certified esthetician, or certified instructor. The salon admits that Al-Ansari “had not obtained her full license from the State and was an ‘apprentice’ since 1987.” It argues, however, that the statute does not control the relationship between the learner and teacher, and points out that “learning . . . under” is not defined.

“ ‘It is elementary that “(i)n all interpretations of statutes, the courts shall look diligently for the intention of the (legislature).” OCGA § 1-3-1.’ [Cit.] The legislative intent is determined from a consideration of the entire statute.” Restina v. Crawford, 205 Ga. App. 887, 888 (424 SE2d 79) (1992). Chapter 10 of Title 43, of which OCGA § 43-10-14 is a part, regulates cosmetologists, estheticians, manicurists, and beauty salons. Although the chapter contains no explicit statement of legislative intent, it is clear that its intent is to protect the health and safety of the general public from unqualified practitioners and unsanitary practices. It provides that the State Board of Cosmetology may establish and enforce sanitary requirements for salons; unsanitary salons are declared a public nuisance. OCGA § 43-10-6. Persons wishing to be registered as cosmetologists, estheticians, or manicurists must have at least a ninth grade education, be 17 years of age, “of good moral character,” must complete a certain number of hours of specialized instruction, and pass a state examination. OCGA § 43-10-9 (a), (b) and (f). A student or apprentice must be 16 years of age and must be registered with the state board. OCGA § 43-10-14. The state board is authorized to prescribe the course of study for students in schools of cosmetology, esthetics, and nail care, and to require that an applicant for examination for state registration assure the board that the required courses and hours have been completed. OCGA § 43-10-13 (a). Practicing as a cosmetologist, esthetician, or manicurist without registration, or teaching or attempting to learn such occupation except as set forth in the chapter, is a misdemeanor. OCGA § 43-10-19 (a). Wilfully permitting an unlicensed person to learn such occupation can result in revocation of registration and a fine, as can any violation of a rule or regulation of the state board. OCGA § 43-10-15.

In sum, the chapter requires that salons be sanitary, that practitioners have a certain level of maturity and training, and that operations be subject to administrative regulation. Taken together, this shows the recognition that the human body is at risk when subjected to cosmetological practices and the intent to regulate the industry and its practitioners for the health and safety of the general public which uses it. The requirement of OCGA § 43-10-14 that a student or apprentice be “learning . . . under” a certificate holder or instructor must be construed in light of that purpose.

Apprenticeship by nature imposes upon the instructor a degree of control and supervision over the manner and method of the student’s work. Under the statutory scheme, it is whatever degree is necessary to protect the public; the use of suitable equipment is one aspect of the work reached by that duty of control and supervision. It is not disputed that the salon, through its employee and owner, allowed AlAnsari to work there with knowledge that she could only practice as an apprentice or student.

The usual test applied to determine if one is a “servant” for purposes of respondeat superior is “whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work. . . . The test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract.’ . . . [Cits.]” Hall v. Buck, 206 Ga. App. 754, 758-759 (6) (426 SE2d 586) (1992). One who accepts responsibility for teaching an apprentice or student the trade of cosmetology or esthetics under OCGA § 43-10-14 may be liable for the student’s negligence in performing the duties incident to the instructor/apprentice relationship. The fact that Al-Ansari received a percentage of the fees she generated for the salon does not diminish the duty.

The salon asserts that Al-Ansari was an independent contractor, placing her outside the doctrine of respondeat superior. See Hall, supra. OCGA § 43-10-14 does not require that the student/apprentice be an employee; no specific relationship is required and the student could be uncompensated.

“The original common law rule that an employer is not liable for the torts of an independent contractor is codified in Georgia in OCGA § 51-2-4 which provides: ‘An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.’ [Cit.] . . . ‘With (respect) to the “independent business” requirement set forth in the code section, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.’ . . . [Cit.]” Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746, 747 (449 SE2d 141) (1994). Under OCGA § 43-10-14, Al-Ansari could not have any such independent business existence as a matter of law; she was not a licensed esthetician and could only work while learning under a master cosmetologist or certified esthetician. The statute precludes, by public policy, the status of independent contractor for an apprentice.

Aside from the aspects of the relationship necessary to satisfy OCGA § 43-10-14, there is ample evidence that Al-Ansari was treated as an employee and not as an independent contractor. The salon not only had the right to control the “ ‘time, the manner, the methods, and the means of the execution of [the apprentice’s] work,’ ” Hall, supra, but actually exerted such control by approving Al-Ansari’s use of her self-provided table, after investigation of it, when she first began working there. An owner and employee of the salon, a holder of a master cosmetologist certificate and the person who satisfied the requirements of OCGA § 43-10-14 pertaining to Al-Ansari’s apprenticeship, had her perform several facials on him to ensure that she did “the manipulation during the facial correct (sic)” and observed “what products she[ used], her basic knowledge, whatever.” This testimony demonstrates not only his acceptance of his role as instructor of an apprentice, but his right to oversee and control the methods and manner of her work as an esthetician, and his right to insist upon adherence to certain standards and methods. The salon again exhibited such control by telling the student she could not use the table after Brown’s injury until it had been further investigated.

The salon contends that Al-Ansari signed a document which stated that she understood she was paid as an independent contractor and was responsible for her own tax payments. Such documentary labeling “is not determinative of the status of any such person and other factors may negate the label. [Cits.]” Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152, 162 (6) (a) (392 SE2d 897) (1990). Here, the “other factors” already stated negate the documentary label. As to control of Al-Ansari’s time of arrival and departure, “ ‘[t]he test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract.’ . . . [Cits.]” Hall, supra at 759 (6). The salon clearly had the right to control such.

By virtue of the relationship between the parties imposed by OCGA § 43-10-14 and the salon’s acceptance thereof, as well as the degree of control actually asserted by the salon, there was ample evidence to thwart a conclusion on summary judgment that the salon was not liable under respondeat superior for any negligent acts committed by Al-Ansari as apprentice and/or as employee.

2. Brown also asserts that there is evidence that Al-Ansari was an apparent agent of the salon so that her negligence should be imputed to it. This theory requires that Brown “present evidence that [the salon] represented or held out [Al-Ansari] as its apparent agent or servant and [that] justifiable reliance upon the representation led to the injury. [Cits.]” Keefe v. Carpet &c. Cleaning by Houndstooth, 213 Ga. App. 439, 440 (1) (444 SE2d 857) (1994). The theory depends not on the actual relationship but upon the reasonably perceived one.

The issue before us in this appeal does not include Brown’s allegations that the salon was an apparent agent of the hotel, and that Al-Ansari was an apparent agent of the hotel. The hotel was not a party to the salon’s motion for summary judgment, and the allegations of the hotel’s liability were not affected by the court’s order granting the salon’s motion.

Brown’s deposition prevents the establishment of the salon as the principal of an apparent agent here. She testified that she thought the salon was an operation of the hotel and that all who worked there were hotel employees. She formed the belief on the basis of the hotel’s affirmative response to her question of whether it had a salon, the fact that the salon was listed in the hotel’s guest services brochure under “Special Services,” the salon’s location in a joined building and, after the incident, the inclusion of the salon’s fee on her hotel bill. She stated that she relied upon the reputation of the hotel in deciding to go to the salon otherwise unknown to her, and that she would not have kept her appointment if the salon had not been listed in the hotel’s guest services brochure. Brown points to no representation on the part of the salon as to its principalship, upon which she relied. Summary judgment to the salon on the issue of apparent agency was proper.

3. Brown also contends that the salon is liable for her injuries because it failed to exercise ordinary care to keep its premises safe for invitees by allowing Al-Ansari to bring and use there a defectively designed and manufactured facial table. OCGA § 51-3-1. This theory of recovery relates to the salon’s own duty and is independent of any negligence on Al-Ansari’s part.

The occupier of a business premises “ ‘has a duty to exercise ordinary care in keeping the premises safe. (Cits.) This includes “a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.” (Cits.)’ [Cit.]” Strickland v. Howard, 214 Ga. App. 307, 308 (1) (447 SE2d 637) (1994). The salon occupied the premises on which the incident occurred pursuant to a rental agreement. Although Al-Ansari introduced the table to the premises, the occupier’s duty is nondelegable. Towles v. Cox, 181 Ga. App. 194, 196 (351 SE2d 718) (1986). An owner and employee of the salon testified that he had permitted Al-Ansari to use her own table instead of one of the salon’s, after sitting in it himself, receiving a facial, investigating the manner in which it worked, and visually inspecting it. Another owner testified she had also sat on the table.

The salon argues that there is no evidence the table was defective and that the only way Brown’s fall could have occurred was through misuse of the table by Al-Ansari. That is not the only inference supportable.

Brown produced evidence that the table was visibly deficient in that it had no spring-loaded safety mechanism on its supports and that this was a standard for such tables. She testified that she fell when “the table from the waist up let go.” The fall happened after Brown had gotten on the table, a cape had been placed over her clothes, her hair had been adjusted to facilitate the facial, Al-Ansari had placed a music tape into a tape player, and Brown had closed her eyes. Given the amount of time that apparently passed while Brown was on the table after whatever preliminary adjustments Al-Ansari made to it, it is a reasonable inference that the fall was due to the absence of a safety mechanism rather than to any negligent act of AlAnsari.

“[I]n ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.]” Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 91 (1) (427 SE2d 308) (1993). Whether the table was deficient and whether that deficiency caused Brown’s injuries is for a jury’s determination.

The salon also contends that the owner’s inspection satisfied its duty to exercise ordinary care for the safety of invitees. However, “issues of diligence, negligence, and contributory negligence are issues for jury determination except in plain and indisputable cases. [Cit.]” Strickland, supra. We cannot conclude as a matter of law that the inspection related by the owners was of sufficient diligence to satisfy the salon’s duty. One owner testified that he knew the table had been constructed by an individual who was not a normal supplier of salon equipment, and there was evidence that inspection by the salon would have revealed that this table lacked a safety mechanism.

The salon suggests that Brown should have exercised ordinary care for her own safety and have noticed any patent defect in the table. Putting aside the question whether Brown, as a customer instead of one in the business of operating a salon, should be expected to recognize the deficiency alleged, “ ‘ “ ‘an invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects.’ (Cit.) ‘ “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law. . . . (Cits.)” ’ (Cit.)” [Cit.]’ [Cit.]” Parker v. Johnson, 214 Ga. App. 875, 877 (449 SE2d 344) (1994). There is no evidence that the facial table placed on the premises was obviously perilous.

As to the salon’s superior knowledge of any latent defect and its responsibility to discover it, the record clearly reflects that the salon owner knew that the table was not built by a standard manufacturer but by an individual he did not know, and that his customers would be reclining on the table. In such circumstances we are unable to say that “ ‘ordinary diligence did not as a matter of law, under the facts (as shown), require an inspection (sufficient to reveal the defect).’ ” Lonard v. Cooper &c. Properties, 214 Ga. App. 862, 865 (449 SE2d 348) (1994). The issue of ordinary care must also be resolved by a jury.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Johnson and Blackburn, JJ., concur. Smith, J., concurs in the judgment only. Birdsong, P. J., Pope, P. J., Andrews and Ruffin, JJ., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent from Divisions 1 and 3.

With respect to Division 1, I disagree with the majority’s conclusion that an apprentice has the same status as an employee. Generally, treating an apprentice as an employee will lead to illogical and unintended results.

Apart from the general rule that an apprentice is not an employee, in this case the facts established that Al-Ansari was an independent contractor. First, she had a written contract which designated her as an independent contractor. That document, which AlAnsari signed on August 25, 1990, stated: “I, . . . understand that I am being paid as an independent contractor. Therefore, I also understand that I am responsible for my own self-employment taxes and federal and state income taxes.”

Additionally, Al-Ansari provided her own materials for working, including the chair which underlies the incident in this case. Who’s Three did not control the time Al-Ansari arrived or the time that she left. Additionally, Who’s Three did not pay social security or medicare amounts for her. She was an independent contractor. See generally Bartlett v. Northside Realty Assoc., 191 Ga. App. 10 (380 SE2d 744) (1989). Accordingly there was no error in the grant of summary judgment on this basis.

With respect to Division 3, I would again affirm the trial court’s grant of summary judgment. The evidence regarding the chair was that the back was held in a prone position by a saw-toothed edge. Who’s Three contends that the only possible negligence would be AlAnsari’s for not adequately securing the catch. If this was the case, this appears to be a case of Al-Ansari’s active negligence and not one of premises liability. See generally Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994).

Nonetheless, assuming arguendo that the claim stated here is one for premises liability, the grant of summary judgment was proper. “The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. If the invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Citations, punctuation, and emphasis omitted.) Huntley Jiffy Stores v. Grigsby, 208 Ga. App. 634, 635 (431 SE2d 435) (1993). If the danger here was a patent one and the hazard was apparent, then Brown had a duty to avoid such hazard and exercise ordinary care for her own safety. Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140, 142 (424 SE2d 85) (1992).

Decided March 17, 1995

Reconsideration denied March 30, 1995

Kidd & Vaughan, David N. Schaeffer, Jeffrey B. Kent, for appellant.

Tittsworth, Grabbe & Spillers, John C. Grabbe IV, Shivers, Johnson & Wilson, Wayne C. Wilson, for appellee.

If, on the other hand, the danger here was a latent one, then in order for Brown to recover there must be evidence that Who’s Three knew or, in the exercise of ordinary care, should have known, of the problem. “In other words, [Who’s Three’s] liability may be predicated on constructive as well as actual knowledge.” Lonard v. Cooper &c. Properties, 214 Ga. App. 862 (449 SE2d 348) (1994). The evidence showed that Merrihew, one of the salon owners, inspected the chair when Al-Ansari brought it in and that he sat on the chair while a facial was performed. Merrihew stated that the chair appeared sound and sturdy. Another owner of the salon stated that she sat on the chair and that it appeared safe. There is no evidence that there had been any prior problems with the table.

“[W]here, as here, there was no actual knowledge of the alleged dangerous and unsafe condition, and there is nothing in the record to show or indicate the propriety or necessity of making an inspection to ascertain the possible or probable existence of any defect, such as that other people had . . . fallen [off the same table], ordinary diligence did not as a matter of law, under the facts as shown, require an inspection sufficient to reveal the defect where the defendant had no reason to think such an inspection was necessary.” (Punctuation omitted.) Lonard, supra at 865. Who’s Three had no superior knowledge of the alleged defect and, accordingly, the trial court’s grant of summary judgment was proper.

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

       The salon contended below, and repeats the contention here, that the complaint should be dismissed for failure to comply with OCGA § 9-11-9.1 (a). That contention played no part in the decision below and the salon did not cross-appeal the court’s failure to address it. It does not appear that the negligence alleged on the part of the apprentice constitutes “professional malpractice” as contemplated by OCGA § 9-11-9.1 (a). See Harrell v. Lusk, 263 Ga. 895, 896 (439 SE2d 896) (1994); Lutz v. Foran, 262 Ga. 819, 820 (2) (427 SE2d 248) (1993).