author: Sognier, Judge.

text:
    A90A1321.
    CHAMPION v. SOUTHERN GENERAL INSURANCE COMPANY.
    (401 SE2d 36)
   Sognier, Judge.

Southern General Insurance Company filed a declaratory judgment action seeking a determination of its obligation to pay A. J. Champion the available limits of property damage under an automobile insurance policy it had issued to its insured, Bobby Raymond Wood. The trial court granted Southern General’s motion for summary judgment, and Champion appeals.

Appellant and appellee’s insured, Wood, were involved in an automobile accident on May 21, 1985. It is uncontroverted that appellee was notified about the accident. On February 16, 1987, appellant filed suit against Wood to recover damages arising out of the accident. The judgment in that action, attached to the affidavit of appellee’s claims department manager, Joe Brakebill, established that 45 days after filing of the complaint, Wood had made no appearance, filed no answer, and made no response to appellant’s requests for admission. Brakebill averred that appellee was not notified by any party that appellant had brought suit against Wood and that appellee did not learn of the suit until after judgment had been entered against Wood.

1. Appellant contends that the trial court erred by granting summary judgment in favor of appellee. OCGA § 33-7-15 provides that “(a) [n]o motor vehicle liability insurance policy covering a motor vehicle principally garaged or principally used in this state shall be issued ... in this state unless such policy contains provisions or has an endorsement thereto which specifically requires the insured to send his insurer, as soon as practicable after the receipt thereof, a copy of every summons or other process relating to the coverage under the policy. . . . (b) Noncompliance by the insured with this required provision or endorsement shall constitute a breach of the insurance contract which, if prejudicial to the insurer, shall relieve the insurer of its obligation to defend its insureds under the policy and of any liability to pay any judgment or other sum on behalf of its insureds.”

Appellant argues that appellee was not entitled to summary judgment because it did not carry its burden of showing no questions of fact exist that it was prejudiced by the breach of the notice provision as set forth in OCGA § 33-7-15. There is no dispute that the burden was on appellee, the insurer, to prove that the noncompliance with the required notice provision in OCGA § 33-7-15 (a) was prejudicial to it so as to entitle it to claim relief from liability under the policy pursuant to OCGA § 33-7-15 (b), especially considering that appellee was the party moving for summary judgment. See generally Lynch v. Waters, 179 Ga. App. 222, 225 (345 SE2d 867) (1986). Furthermore, we are in agreement with appellant that prejudice under OCGA § 33-7-15 (b) is not established solely by proof that suit papers were not forwarded to the insurer. See Windt, Insurance Claims & Disputes, § 3.05, p. 109; Washington v. Fed. Kemper Ins., 482 A2d 503 (Md. App. 1984).

However, the evidence in the case sub judice established not only that appellee received no notification of the suit brought against Wood, but also that the action was in default and that appellee did not learn of the action until after final judgment had been entered on the default. See OCGA § 9-11-55 (b). Thus, appellee was deprived of all opportunity to engage in discovery, present evidence and cross-examine appellant’s witnesses at trial, and negotiate a pre-judgment settlement of appellant’s claims against its insured. Under similar circumstances other courts have held that where the insurer has been deprived of all opportunity to defend, the mere entry of the adverse judgment is affirmative evidence of actual prejudice to the insurer. See Washington v. Fed. Kemper Ins., supra at 507; Hallman v. Marquette Cas. Co., 149 S2d 131 (La. App. 1963). These cases are distinguishable from the opinions in Sinton v. Hartford Acc. &c. Co., 261 Cal. Rptr. 163, 167 (Cal. App. 5th Dist. 1989); Weaver Bros. v. Chappel, 684 P2d 123 (Alaska 1984); and Pulse v. Northwest Farm &c. Ins. Co., 566 P2d 577 (Wash. App. 1977), in which the actions brought against the insureds were litigated by the defendants rather than resolved by entry of default judgment.

Prejudice to the insurer where no notice has been received until after default judgment has been entered is clearly demonstrated by considering the insurer’s position under the Civil Practice Act: the judgment against the insured must first be challenged under OCGA § 9-11-60 for a nonamendable defect appearing on the face of the record or pleadings, see Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583) (1983), and should the judgment be set aside, the procedure for opening default, see OCGA § 9-11-55 (b), must then be followed and that statute’s requirements fulfilled. See generally P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328-329 (1) (329 SE2d 545) (1985). To construe OCGA § 33-7-15 (b) in the manner proposed by appellant would thus require the insurer to prove not only that it had defenses it could have asserted had it received notice of the suit before default, but that those defenses would not constitute nonamendable defects appearing on the face of the record or pleadings, since otherwise the insurer would not be “prejudiced” by the final judgment in that it could move to set it aside based on those defenses.

The language from Berryhill v. State Farm Fire &c. Co., 174 Ga. App. 97 (329 SE2d 189) (1985), relied upon by appellant, does not support a conclusion that, in addition to the entry of final judgment, an insurer must present evidence indicating precisely how its defense of the insured was prejudiced by the lack of notification before it is entitled to summary judgment based on OCGA § 33-7-15 (b). The decision in Berryhill, supra, was based primarily on a provision in an insurance policy which predated the enactment of OCGA § 33-7-15 but which required basically the same notification as that set forth in the statute. We noted that “[w]ithout such notice [of the institution of an action] the contract stipulates that the company will not be liable upon the policy. . . . The purpose of the notice requirement is to give the company an opportunity to investigate and marshall defenses at a time when events are fresh in the witnesses’ recollections. [Cit.] The harm that can be done by lack of notice is obvious in the present case. Suit was not filed until two years and two days from the date of the accident. Immediately apparent is a statute of limitation defense which the lack of notice of the suit to the company prevented the company from asserting on behalf of the insured.” Id. at 99.

It is “immediately apparent” that the court in Berryhill was not addressing what an insurer must show to prove prejudice under OCGA § 33-7-15 (b), but rather was commenting on one harmful consequence of the insured’s breach of the notice provision in the insurance policy. To interpret Berryhill as proposed by appellant would stretch the true holding in that case, which, as we have recently stated, is “that OCGA § 33-7-15 operate[s] to insulate an insurer from liability on a default judgment obtained against its insured by a third party where the insurer had received no notice of the pendency of the action prior to the entry of the judgment.” Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320, 322 (1) (390 SE2d 419) (1990).

Therefore, we reject appellant’s argument that an insurer must prove it has no grounds to set aside a final judgment in a default situation before it carries its burden of showing prejudice under OCGA § 33-7-15 (b). Rather, we hold that the insurer’s introduction of sworn testimony establishing that the insurer received no notification of a suit brought against its insured until after final judgment had been entered in a default situation is sufficient to carry the insurer’s burden of showing prejudice under OCGA § 33-7-15 (b) so as to relieve the insurer of its obligations under the policy to defend the suit and pay any judgment entered against its insured. In the case sub judice, the affidavit of Brakebill constituted the evidence necessary to carry the burden placed on appellee in that it contained the averments, uncontroverted by any evidence adduced by appellant, not only that appellee received no notification of the suit, but also that appellee was not aware of appellant’s suit until after judgment had been entered by default.

2. Although appellee carried its burden of showing prejudice by proving that default judgment had been entered against its insured before it received any notification of the suit, that does not conclude our consideration of the issue. “When the defendant-movant for summary judgment presents evidence apparently destroying the plaintiff’s cause of action, the movant has met [its] burden, and the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain.” (Punctuation and citations omitted.) West End Investments &c. v. Hills, 188 Ga. App. 274, 277 (372 SE2d 665) (1988). While appellant filed no affidavits to rebut appellee’s motion for summary judgment, our review of the record discloses that in appellee’s complaint for declaratory judgment, appellee admitted that the attorney for appellant had notified appellee that “he intends to take action to ‘re-open the default judgment [appellant] received against [Wood].’ ” Appellee has adduced no evidence to rebut the inference that acceptance of appellant’s offer to set aside the default judgment and to litigate de novo the issue of appellee’s insured’s liability would cancel the prejudice appellee experienced by the earlier failure to receive notification of the suit appellant brought against Wood. In this regard we are persuaded by the holding in Home Indem. Co. v. Walker, 273 A2d 429, 430-431 (CA Md. 1971), see also North River Ins. Co. v. Gourdine, 135 SE2d 120, 124-125 (Va. 1964), to the effect that an offer by the party injured by the insured to vacate the default judgment obtained against the insured, thereby providing the insurer with the opportunity to defend the suit, cross examine the witnesses, and present evidence on its insured’s liability and the damages incurred, constitutes some evidence to rebut the insurer’s claim that it was prejudiced by the earlier entry of default judgment.

Accordingly, since appellee’s own evidence established that appellant has offered to open the default judgment, a genuine issue of material fact remains whether the prejudice appellee experienced as a result of its failure to receive notification of appellant’s suit against Wood until after default judgment had been entered may be eliminated by appellant’s offer. Therefore, the trial court erred by granting summary judgment in favor of appellee.

Decided December 4, 1990

Rehearing denied December 19, 1990

Berlin & Hodges, Robert A. Berlin, for appellant.

Jones, Cork & Miller, Brandon A. Oren, Rufus D. Sams III, for appellee.

3. Our holding in Division 2 renders it unnecessary to address appellant’s remaining enumeration of error.

Judgment reversed.

Carley, C. J., and McMurray, P. J., concur in the judgment only.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A1365.
    DEAN v. THE STATE.
    (401 SE2d 40)
   Pope, Judge.

Defendant was convicted by a jury of the offense of aggravated child molestation. He appeals from the denial of his motion for new trial. We affirm.

Construed so as to support the verdict, the evidence at trial showed the following: The defendant and his wife were divorced in early November 1987. At that time the victim, defendant’s natural son, was approximately three-and-one-half years old. The defendant picked up the victim on Friday evening, November 6, 1987, for a weekend visit. Over the course of the weekend the victim spent time with several members of the defendant’s family, the defendant’s girl friend’s family and the defendant. The victim’s grandfather returned the victim to his mother’s home on Sunday evening. The victim was asleep so the grandfather carried the victim into the house and placed him on the sofa. The victim’s mother testified that the victim slept for approximately 30 minutes to an hour. Upon awakening, the victim stepped outside for approximately three to four minutes. When he stepped back inside he had wet his pants. While the mother was changing the victim’s clothes she noticed a very red circle around his anus. She asked the victim how he had been injured and he responded “my daddy did it with his tee-tee.” The mother called the father and questioned him about the injury. He initially stated he did not know the child had been injured, but when the mother stated she was going to have the child examined, the defendant remembered the child fell on a bicycle. That night the mother had the victim examined by a physician. The physician testified at trial that he found both external and internal injuries consisting of abrasions, bruising, tears (fissures) and swelling and enlargement and engorgement of the hemorrhoidal veins in the child’s rectum. The doctor testified that the type of injury he observed could only be caused by a “blunt trauma” involving a round object and caused by a repetitive in and out motion. The doctor testified the injuries were consistent with an adult penis having been inserted into the child’s rectum.

1. (a) Defendant first argues the trial court erred in allowing the physician who examined the victim to testify about the victim’s out-of-court statements identifying his father as the person who committed the act of molestation. Here, the three-and-one-half-year-old victim was not presented as a witness because of the conclusion of the prosecutor, based on his experience with the child, that he would not be found competent to testify under the competency standards existing at the time of this trial. Because the victim was not found competent to testify then, under the law applicable at the time of this trial, he was not “available” to testify at trial and the out-of-court statements made to the physician were not admissible under the Child Hearsay Statute, OCGA § 24-3-16. Neither was that portion of the out-of-court statement of the victim to the examining physician concerning the identity of the perpetrator admissible under the medical history exception to the hearsay rule, OCGA § 24-3-4. See State v. Butler, 256 Ga. 448, 449, n. 1 (349 SE2d 684) (1986); Johnson v. State, 149 Ga. App. 544 (5) (254 SE2d 757) (1979).

The record shows, however, that this testimony was admitted without objection at trial. Thus, “[w]hile we find the admission of this testimony, over proper objection, would demand reversal, there was no contemporaneous objection. Hence, we do not reverse on this ground.” Allison v. State, 256 Ga. 851, 853 (7) (353 SE2d 805) (1987). Although defendant argues the trial court indicated prior to the witness’ testifying that such testimony would be inadmissible, this did not obviate the need for an objection or motion for mistrial at the time the testimony was offered. See, e.g., Spencer v. State, 180 Ga. App. 498, 500 (2) (349 SE2d 513) (1986) and Robinson v. State, 173 Ga. App. 260, 261 (3) (325 SE2d 882) (1985) (in which this court held that the fact that the trial court previously granted a motion in limine as to certain evidence does not obviate the need for objection at trial in order to preserve the issue of the admissibility of the complained of evidence for appellate review). “A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later. Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221) (1951).” (Punctuation omitted.) Sprayberry v. State, 174 Ga. App. 574, 575 (330 SE2d 731) (1985). Accord Hollis v. State, 191 Ga. App. 525 (5) (382 SE2d 145) (1989). Moreover, the evidence was cumulative (see Division 2, infra) and therefore its admission is insufficient to warrant reversal. See Ward v. State, 186 Ga. App. 503 (2) (368 SE2d 139) (1988); Johnson, supra at (5).

(b) Defendant also objects to the admission of testimony by the doctor concerning his opinion that the victim had been sexually molested. Again, however, defendant failed to object to this testimony at trial and hence cannot be heard to complain on appeal. Consequently, this enumeration of error is without merit.

2. Defendant next contends that the trial court erred in allowing the victim’s mother to testify as to statements the child made to her concerning the molestation by defendant as part of the res gestae. Under OCGA § 24-3-3 “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” “The admissibility of declarations as part of the res gestae is left to the sound discretion of the trial court, considering the time, circumstances, and statements in question. Wallace v. State, 151 Ga. App. 171 (259 SE2d 172) (1979). It is a determination in which very often no precise time when the res gestae ends may be fixed. Kilgore v. State, 177 Ga. App. 656 (2) (340 SE2d 640) (1986); Millwood v. State, 174 Ga. App. 113 (329 SE2d 273) (1985).” Ward v. State, 186 Ga. App. 503-504 (1) (368 SE2d 139) (1988).

In this case the victim was with either his father or a relative of his father from Friday evening until Sunday night when he was returned home by his grandfather. At that time he was sleeping. Upon awakening, he stepped outside for approximately three to four minutes, during which time he wet his pants. While the mother was changing his clothes she noticed the injuries around his anus and questioned the child. The child responded “my daddy did it with his tee-tee.” This was apparently the first conversation the victim had with his mother upon returning home, and the first opportunity the child had to talk with someone outside his father’s family. The mother immediately had the . child examined by a physician, who opined that the molestation had occurred within the past 24 hours. “Considering the spontaneity of and circumstances around the remark, we are unable to conclude that the trial court abused its discretion in finding, despite the fact that the child’s statement was made [approximately a day] after the molestation, that the statement was so nearly connected in time with the act of molestation as to be free of device and afterthought. See Kilgore v. State, supra, and Millwood v. State, supra.” Ward v. State, supra at 504. See also Shortes v. State, 193 Ga. App. 859 (1) (389 SE2d 354) (1989).

Decided December 4, 1990

Rehearing denied December 19, 1990.

Lynch & Powell, David A. Powell, Michael Mears, for appellant. Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

3. For the reasons stated in Divisions 1 and 2, supra, the trial court did not err in denying defendant’s motion for new trial.

4. Defendant also complains of the trial court’s refusal to answer a written question from the jury concerning the name used by the victim to address his paternal grandfather. However, the transcript reveals the trial court discussed the question with defense counsel (and the prosecutor) and that counsel indicated his agreement with the court’s refusal to answer the question. Consequently, this enumeration is without merit.

5. Lastly, defendant challenges the sufficiency of the evidence. We have examined the evidence and find it sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs in judgment only as to Divisions 1(a) and 5.

       We note this offense occurred prior to the effective date of the 1989 amendment to OCGA § 24-9-5 declaring a child victim competent to testify in a child molestation case notwithstanding his inability to understand the nature of an oath. See Ga. L. 1989, p. 1639, § 1 (adding subsection (b) to the statute).


author: McMurray, Presiding Judge.

text:
    A90A1965.
    DANZIS v. THE STATE.
    (400 SE2d 671)
   McMurray, Presiding Judge.

Defendant was convicted of the offenses of battery and simple battery. He was sentenced to confinement for a period of 12 months (of which all but 14 days were probated) and fined $500 on the battery count. After conviction, a nolle prosequi order was entered by the trial court on the simple battery count inasmuch as the offenses arose out of the same conduct. Following the denial of his motion for a new trial, defendant appeals. Held:

1. During cross-examination of the victim (defendant’s ex-wife), defense counsel asked if she had sworn out a warrant on the night in question. The victim replied that she did not, that the investigating officer obtained a warrant for defendant’s arrest. Defense counsel persisted: “Q. You never have sworn out a warrant, you never have signed anything to say I want to swear out a warrant against my former husband? A. Yes, I have. Q. When was that? A. I can’t remember the date, but I’ve done it on several occasions. Q. In this case? A. Not in this case, in other cases. Q. In this case? A. Oh, in this case, no. They did it for me that night.” Thereupon, defense counsel pursued another line of questioning.

On redirect examination, the victim was asked: “Q. Okay. You said under examination that you had sworn out warrants on other occasions, is that correct?” The victim responded with a simple “yes” and, outside the presence of the jury, defendant moved for a mistrial. The motion was denied; but the trial court instructed the prosecutor to drop the line of questioning about other warrants. Defense counsel asked the trial court to instruct the jury to disregard any questions about other warrants; the trial court refused to do so. Thereupon, defendant renewed his motion for a mistrial.

In his first enumeration of error, defendant contends the trial court erred in failing to grant his motion for a mistrial or, at the very least, in failing to give curative instructions to the jury. We find no error.

The granting of a motion for mistrial or the need for a curative instruction are matters which lie within the trial court’s discretion. We find no abuse of discretion inasmuch as the line of questioning about previous warrants was elicited first by defense counsel without objection. “It is the introduction of facts not in evidence that requires the application of such remedies.” Patterson v. State, 124 Ga. 408, 409 (52 SE 534). Accord Thompson v. State, 150 Ga. App. 567 (2), 568 (258 SE2d 180).

2. Photographs depicting the nature and extent of the injuries sustained by the victim were offered in evidence. Defendant objected to the photographs on the ground that they were taken ten days after the victim was injured and did not depict her condition at the earlier time. Defendant assigns error upon the admission of the photographs in evidence. We find no error. Johnston v. State, 232 Ga. 268, 270 (1) (206 SE2d 468).

3. Defendant’s assertion that the trial court erred in restricting the jury’s consideration of the defense of provocation to the simple battery count is without merit. The trial court charged the language of OCGA § 16-5-25 pursuant to defendant’s request to charge. By its clear terms, the defense is limited to the offense of simple battery; it does not apply to the offense of battery. OCGA § 16-5-25. Besides, it is apparent that the jury rejected the provocation defense (with regard to the simple battery count). Thus, it cannot be said that defendant was harmed by the jury’s failure to consider the provocation defense with regard to the battery count.

4. The investigating officer observed red scuff marks on the victim’s head, arms and legs. The scuff marks turned into substantial bruises — as evidenced by photographs of the victim taken ten days after she was beaten and kicked. Thus, the evidence demonstrated that defendant inflicted visible bodily harm upon the victim. See OCGA § 16-5-23.1 (offense of battery). The evidence was sufficient to enable the jury to find defendant guilty of the offense of battery beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided December 4, 1990

Rehearing denied December 19, 1990

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A2146.
    PIEDMONT HOSPITAL, INC. v. HALL et al.
    (401 SE2d 51)
   Beasley, Judge.

Defendant Piedmont Hospital, Inc., appeals the judgment entered on the jury’s verdict in favor of plaintiffs, the Halls, as co-executors of the estate of their deceased mother. This is a negligence action for injuries sustained by the late Mrs. Hall when she tripped on a telephone cord and fell in defendant’s Coronary Care Unit (CCU) waiting room.

1. The hospital contends that the trial court erred in failing to grant its motion for a directed verdict at the close of plaintiffs’ case based on plaintiffs’ failure to show that the hospital had superior knowledge of the alleged dangerous condition created by the telephone cord. See Garnett v. Mathison, 179 Ga. App. 242 (2) (345 SE2d 919) (1986).

The relevant evidence construed in favor of the verdict was the following. The CCU waiting room was for the use of family and friends of patients in the CCU and was open at all times. It contained a hand-held telephone, a table and other furniture which was periodically rearranged to accommodate the needs of the waiting room occupants. An intercom built into the wall was the means by which visitors in the waiting room contacted personnel in the CCU to gain access to the restricted CCU or to inquire about a CCU patient. At the time of Mrs. Hall’s fall, a telephone sat on a table beneath the intercom, with the phone’s standard length gray cord going down to the brown-carpeted floor in front of the table.

By the day of the fall, Mrs. Hall’s husband had been hospitalized in the CCU for approximately a week. Prior to that day, Mrs. Hall had visited her husband numerous times and was familiar enough with the waiting room procedure of using the intercom that she was able to explain it to her sons. She had used the telephone without problem. The morning of the incident, Mrs. Hall had been in the waiting room and attempted to use the intercom. She left the hospital and had lunch and a glass of wine with relatives. After lunch she returned to the hospital, entered the CCU waiting room, and attempted to use the intercom. It was not fully operational and had not been so for some time. As Mrs. Hall walked away from the intercom and the table, her foot or feet became entangled in the telephone cord and she fell, fracturing her hip.

Approximately 1,000 to 1,500 people a year visited the CCU waiting room. For approximately ten years prior to Mrs. Hall’s fall, no visitor had ever fallen there. The waiting room was lighted enough for occupants to read without strain. No visitor had complained about any safety problem in the room, nor about the situation of the telephone.

Inasmuch as the evidence showed that Mrs. Hall was thoroughly familiar with the waiting room and the use and relative positions of the intercom and telephone, her knowledge was equal to or superior to the defendant’s, and therefore, she would be barred from recovery. Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Even if the telephone cord was assumed to be a dangerous condition, “[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]” Id. at 612 (3). Mrs. Hall had previously used the malfunctioning intercom and movable telephone on numerous occasions and had not tripped, fallen, or sustained any injury.

At trial, plaintiffs attempted to circumvent Mrs. Hall’s prior actual knowledge of the allegedly defective condition by relying on the distraction theory to excuse her from her duty of care. “ ‘The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. From this stems the rule that a lesser degree of prudence may be sufficient to constitute ordinary care where there are circumstances causing stress or excitement. (Cit.) The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.’ [Cits.]” Magee v. Federated Dept. Stores, 187 Ga. App. 620 (371 SE2d 99) (1988).

Decided December 5, 1990

Rehearing denied December 19, 1990

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Arnold E. Gardner, for appellant.

Freeman & Hawkins, Alan F. Herman, William G. Scoggin, for appellees.

The claimed distraction consisted of the malfunctioning intercom, the table, the telephone and its cord, and the stress caused by the hospitalization of Mrs. Hall’s husband. Even if such circumstances could properly be found to be a distraction, this situation was shown to be no different than Mrs. Hall had experienced and successfully handled on her prior visits, including her initial visit on the day of the fall. Compare Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 350 (2) (349 SE2d 241) (1986), where there was no evidence that the plaintiff had ever had prior occasion to attempt to negotiate the alleged dangerous condition.

Moreover, there was no evidence that Mrs. Hall was in fact distracted at the time of her. mishap. Mrs. Hall had died before the time of trial and her version of the event was not presented to the jury by deposition testimony or otherwise. The only evidence of her belief as to the cause of her fall came from a treating physician who testified on cross-examination that Mrs. Hall stated that she thought the cause of her fall was her own clumsiness.

There being no evidence of the hospital’s superior knowledge of the alleged dangerous condition or any evidence of any circumstances at the time of the fall which would have relieved Mrs. Hall of her duty of ordinary care, the defendant hospital was entitled as a matter of law to a verdict directed in its favor.

2. Our decision in Division 1 makes it unnecessary to address the remaining enumerations about the court’s charge to the jury.

Judgment reversed.

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


author: Deen, Presiding Judge.

text:
    A90A2189.
    CHROSTOWSKI v. G & MSS TRUCKING, INC. et al.
    (401 SE2d 53)
   Deen, Presiding Judge.

Loretta Stowe Chrostowski, as administratrix of the estate of Robert Gene Stowe and as guardian of Sara Renee Stowe and Robert Adam Stowe, filed suit against G & MSS Trucking, Inc., Billy Wayne Milam, and Royal Indemnity Company (Royal), to recover damages for the death of Robert Gene Stowe. Stowe was killed when the chicken truck that he was driving was struck and crushed by a log truck carrying a load of logs and driven by Milam. Milam was charged with reckless driving, homicide by vehicle in the first degree, driving under the influence of intoxicating drugs, driving on the left side of the road, and speeding.

The cab of the log truck had G. D. K. Trucking, Inc., printed on it, and Brownlow, the president of both G. D. K. and G & MSS, claims that G & MSS did not own and was not operating the log truck. Brownlow operated G & M Trucking, which was not incorporated, until 1986 when it was incorporated as G & MSS. In 1988 he formed a second corporation known as G. D. K. G & MSS was to be an interstate carrier and G. D. K. was to operate only within Georgia. Brownlow claims that G & MSS sold the truck to G. D. K. some four months prior to the accident. Appellant’s lawsuit alleged that the truck was owned and operated by both companies, that Milam was employed by both trucking companies, and that Stowe was killed as a result of the reckless and negligent actions of the driver, Milam. G & MSS denied that Milam was one of its employees.

The documentary evidence showed that title to the truck was not transferred from G & MSS to G. D. K. until more than seven months after the wreck, and the tag receipt for the trailer was issued to G & M Trucking, the unincorporated predecessor of G & MSS. Maintenance records are also in the name of G & M Trucking. South Carolina fuel tax records show that shortly before the accident, G & MSS represented that it owned the truck in question and fuel tax decals were issued which would not become effective until three months before the accident. While Milam testified that G. D. K. trucks do not travel out of state, photographic evidence shows that the truck that he drove on the date of the accident had fuel tax decals from many states affixed to its bumper. Milam worked for G & M until it was incorporated as G & MSS in 1986, and allegedly went to work for G. D. K. when it was incorporated in 1988. His work driving trucks for Brownlow’s corporations was rather sporadic because he was frequently “on restriction” at the insurance companies’ request because his driving record included many speeding tickets and other violations. Records for Milam’s hospital admission for treatment for his alcohol and drug problems approximately six weeks before the accident indicate that he claimed that he was employed by G & M although his deposition testimony was that he worked for G. D. K. after its incorporation date. His payroll records indicate that his work starting date was during the period that Brownlow was operating G & M Trucking.

G & MSS and Royal Indemnity Company moved for summary judgment contending that they should not be defendants in the lawsuit because G & MSS did not own the truck in question, and Milam was not employed by G & MSS. The trial court granted summary judgment in favor of G & MSS and Royal Indemnity holding that title alone was insufficient to establish liability, that there was no evidence that Milam was an agent of G & MSS, that G. D. K. and G & MSS were separate entities, and that there was no evidence that Royal was the insurer of the truck at the time of the accident.

1. On summary judgment the movant bears the burden of establishing lack of a genuine issue of fact, and a right to a judgment as a matter of law. Any doubts are to be resolved against him. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442) (1962). The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence in determining whether a genuine issue of fact exists. Eiberger v. West, 247 Ga. 767, 768 (281 SE2d 148) (1981); Malcom v. Malcom, 112 Ga. App. 151 (144 SE2d 188) (1965). “ ‘Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.’ [Cits.]” Bragg v. Missroon, 186 Ga. App. 803, 806 (368 SE2d 564) (1988). Applying these rules to the instant case we find that there was sufficient evidence presented to raise a jury question as to whether G & MSS owned the vehicle involved in the fatal accident: title to the log truck was not transferred to G. D. K. until many months after the accident; the tag receipt to the trailer was issued to G & MSS’s predecessor; a vehicle condition report which was given by the party maintaining the repairs on the vehicle was given to “G & M Trucking” one month prior to the accident; South Carolina fuel tax records indicate that G & MSS claimed that it owned the vehicle; and other states’ fuel tax decals were affixed to its bumper. A material question of fact as to the vehicle’s ownership existed and required resolution by a jury.

2. While the trial court held that mere ownership of a vehicle is not sufficient to establish liability because proof of Milam’s agency must be established, we believe that the court erred in holding that the plaintiff produced no evidence to support the theory that Milam was an agent or employee of G & MSS. Milam’s deposition testimony that he was an employee only of G. D. K. conflicts with his hospital admission records made approximately one month prior to the accident which indicate that he listed his employer as G & M Trucking. Brownlow claims that Milam was employed only by G. D. K., but payroll records indicate that he began his employment at a time when only G & M Trucking was in existence. From this evidence a jury could find that Milam was acting as the agent of G & MSS when the accident occurred, or that he was a dual agent acting within the scope of the business of both and furthering the business interests of both corporations because the truck cab indicated that it was owned by G. D. K. and the trailer’s tag receipt was made out to G & MSS. See Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 876 (311 SE2d 193) (1983). While proof of agency by declarations of an agent alone is inadmissible as hearsay, it can be established by corroborating evidence which tends to prove the agency. De la Gonzales v. Krystal Co., 173 Ga. App. 574, 576 (327 SE2d 546) (1985); Bell v. Washam, 82 Ga. App. 63 (60 SE2d 408) (1950). Agency can be determined by “proof of circumstances, apparent relations, and the conduct of the parties. De la Gonzales v. Krystal Co., [supra]; Fordham v. Garrett-Schwartz Mtr. Co., 121 Ga. App. 237 (173 SE2d 450) (1970).” Shirley v. Couch, 177 Ga. App. 436 (339 SE2d 648) (1986).

3. If the jury should find that Milam was the employee of only G. D. K. and the vehicle in question was owned by G & MSS, the plaintiff could recover under the theory of negligent entrustment. There is deposition evidence that Brownlow was in charge of safety for both corporations, that he was aware of Milam’s driving record (Milam told him of every violation), that Brownlow admits that he was not concerned about drivers who received speeding violations, and that he was aware of Milam’s hospitalization for alcohol and drug abuse.

Liability for negligent entrustment may occur where the owner admits ownership of a vehicle or ownership is a jury question, but when the owner denies that a master-servant relationship exists, he can still be liable for negligent entrustment. Saunders v. Vikers, 116 Ga. App. 733, 735 (158 SE2d 324) (1967); Thomason v. Harper, 162 Ga. App. 441, 442 (289 SE2d 773) (1982). The liability flows from the negligent act of the owner permitting another to drive his vehicle when the owner knows the driver to be either incompetent or habitually reckless, and the driver’s behavior is the proximate cause of the plaintiff’s injuries. Pague v. Pendley, 177 Ga. App. 573, 575 (340 SE2d 190) (1986); Saunders v. Vikers, supra.

4. The trial court declined to address the issue of whether or not G & MSS was governed by the rules of the Public Service Commission (PSC) because G & MSS was released from the lawsuit on summary judgment. As we are reversing the trial court’s grant of summary judgment on the issues of ownership of the vehicles and agency, this issue must be addressed because Royal’s presence in this case requires such a determination.

Royal was named a defendant under the provisions of OCGA § 46-7-12 (e). See Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987). There is no dispute that G & MSS is a PSC carrier, but appellees claim that PSC rules would not apply when a carrier is hauling logs because it is the nature of the haul, not ownership of the vehicle, that triggers jurisdiction under the Code and allows special venue against a PSC carrier in the county where the accident occurs.

Decided December 5, 1990

Rehearing denied December 19, 1990

Stephens & Shuler, Charles W. Stephens, Ann A. Shuler, for appellant.

Neely & Player, Richard K. Hines V, Lisa M. Radtke, for appellees.

OCGA § 46-1-1 (8) (C) excludes: “Motor vehicles engaged exclusively in the transportation of agricultural. . . products . . . between farm, market, gin, warehouse, or mill, where the weight of the load does not exceed 18,850 pounds, whéther such motor vehicle is owned by the owner or producer of such agricultural. . . products or not, so long as the title remains in the producer. . . . [T]he term ‘agricultural products’ includes . . . wood, lumber, . . . timber or logs being hauled by the owner thereof or his agents or employees between forest and mill or primary place of manufacture.” See Georgia Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 873 (305 SE2d 611) (1983).

As the trial court has not considered whether appellee falls within the scope of the exemption as a matter of law or whether it is an issue to be resolved by a jury, we must remand this issue to the trial court.

Judgment reversed in part and case remanded with direction.

Pope, J., concurs. Beasley, J., concurs in the judgment only.


text:
    A90A2198.
    SHEPARD v. ALLSTATE INSURANCE COMPANY.
    (400 SE2d 682)
   Deen, Presiding Judge.

Appellant’s uninsured motorist carrier, Allstate Insurance Company, was dismissed by the trial court because appellant failed to serve Allstate under OCGA § 33-7-11 (d) within the statute of limitation applicable in the tort action. Shepard appeals from the order granting dismissal.

On October 29, 1986, Shepard was a pedestrian when he was struck by a taxicab driven by Byrd. In October 1987, Shepard brought suit for personal injuries against Byrd and Rapid Taxi Company, which was believed to be Byrd’s employer. Rapid Taxi was dismissed from the action on March 28, 1988, upon determination that Byrd was not its employee or agent. It was determined that Byrd was also insured by Cabco Trust Group, Inc., and in a separate suit brought by Shepard in October 1987 against Cabco for bad faith refusal to pay no-fault benefits, Cabco filed sworn answers to interrogatories affirming that it insured Byrd. Thereafter, on July 7, 1989, counsel for Shepard first received information that Cabco might become insolvent, and on August 22, 1989, Shepard’s counsel was further notified that Cabco in fact appeared to be insolvent. On August 28, 1989, Shepard served Allstate with the pleadings in the tort action pursuant to OCGA § 33-7-11 (d). Allstate filed its answer on September 27, 1989, and moved for dismissal under OCGA § 9-11-12 (b) on grounds that the applicable two-year statute of limitation had expired before it was served. On June 22, 1990, the trial court granted the motion dismissing Allstate. Held:

Decided December 5, 1990

Rehearing denied December 19, 1990

James G. Stewart, for appellant.

Ike E. Duru, W. Ray Persons, for appellee.

1. Shepard contends that the facts in this case distinguish it from Bohannon v. J. C. Penney &c. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989), which held that “the uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. [Cit.]” See State Auto Ins. Co. v. Reese, 191 Ga. App. 818, 819 (383 SE2d 157) (1989). We cannot see how this case differs. It is undisputed that Allstate was not served until after the applicable two-year statute of limitation for personal injuries had expired. OCGA § 9-3-33. Although Bohannon raised the possibility of creating an exception for cases like the present one, where insurance coverage unexpectedly evaporates after the statue of limitation has run, the court deferred to the legislature for any such action.

2. Shepard also contends that the trial court erred by failing to give effect to certain requests for admissions served on Allstate and by failing to properly apply OCGA § 33-7-11 (h). The requests for admissions, if taken as admitted, simply set out portions of Allstate’s insurance policy. As to OCGA § 33-7-11 (h), it requires that the uninsured motorist carrier be given notice within a reasonable time. Neither of these enumerations warrants reversal of the trial court’s order of dismissal.

The face of the pleadings shows that the statute of limitation expired before Allstate was served. Accordingly, the trial court did not err by granting the motion to dismiss. Bohannon v. J. C. Penney &c. Ins. Co., supra; Harris v. Allstate Ins. Co., 179 Ga. App. 343 (347 SE2d 368) (1986); Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A2230.
    CARVER v. SAYE.
    (400 SE2d 683)
   Deen, Presiding Judge.

The sole issue in this appeal from a medical malpractice action is whether the trial court erred in prohibiting plaintiff/appellant from cross-examining defendant/appellee on his answer unless appellant agreed to offer the pleadings into evidence. Plaintiff/appellant declined to offer the pleadings into evidence because they contained allusions to a prior action, with appellant’s former husband as a plaintiff, against a different defendant. Although appellant’s counsel stated these reasons to the judge, the latter adhered to his ruling and would not permit cross-examination. Plaintiff has appealed to this court, alleging that the trial court’s refusal to allow cross-examination on defendant/appellee’s pleadings, and alleged interference with such cross-examination, deprived her of a fair trial. Held:

1. Plaintiff alleges that appellee, an obstetrician with whom she had a physician-patient relationship, negligently caused injury to her perineum during childbirth, with the result that her anal sphincter muscle was severed and she became permanently incontinent. She alleged in her complaint that the physician, despite repeated telephone calls from her and from hospital personnel, had delayed coming to the hospital for several hours. In his answer defendant denied all the allegations without expanding or explaining his bare denials. In contending that she had the right to cross-examine on the answer, appellant relies on OCGA § 24-3-30, which provides: “Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” Appellee contends that the statute’s provision pretermitting the admission of the pleadings as a prerequisite to cross-examination is inapplicable in the instant case because the matter in the pleadings on which appellant wished to cross-examine consists only of denials, not of allegations or admissions, as named in the statutory language.

We cannot agree with appellee’s reasoning here, or with the ruling of the trial court. A formal denial by the defendant of the allegations of the plaintiff is an allegation that the facts are otherwise than as alleged in the complaint. Such an allegation is simply an abstract negative and, as such, should be subject to a requirement that, in order that defendant be deemed to have carried his burden, the abstract negative be fleshed out by the presentation of concrete facts purporting to represent the true factual situation. The plaintiff is already barred by the allegations of his complaint; there is no reason that the defendant should not also be bound by the allegations in his answer; and reducing the abstract or generalized statement to the concrete and specific, by whatever means is most expeditious, is necessary in order for this to be possible. Cross-examination would seem to be the most obvious and convenient means of doing this.

Decided December 5, 1990

Rehearing denied December 19, 1990

Orr & Oliver, E. Wycliffe Orr, Joe B. Sartain, Jr., for appellant.

Allen & Ballard, William L. Ballard, Amy L. Teets, for appellee.

The purpose of OCGA § 24-3-30, as set forth in East Tenn. &c. R. Co. v. Kane, 92 Ga. 187 (18 SE 18) (1893), is judicial economy: “saving the courts much time, vexation and trouble.” Id. at 192. With this purpose in view, the Kane court reasoned: “[C]ertainly a party should be relieved from proving that which his adversary distinctly alleges.” Id. “[T]his he may do ‘without formally tendering the (pleading) in evidence.’ ” Greene v. Gulf Oil Corp., 119 Ga. App. 87, 89 (166 SE2d 626) (1969).

2. As to appellee’s contention that cross-examination on his answer should in any case be prohibited because the pre-trial order specifies that the order “supersedes the pleadings,” we find nothing in that statement which signifies that the pleadings are thereby totally eliminated from the case in the evidentiary sense, but only in the limited sense of the relationship of the pleadings to the pre-trial order, the latter being a sort of skeleton or outline for the trial. Appellee cites no authority for his contention, and we find none. To the contrary see, e.g., Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601 (385 SE2d 677) (1989); Lawson v. Duke Oil Co., 155 Ga. App. 363 (270 SE2d 898) (1980).

We find that the trial court committed reversible error in refusing to allow plaintiff/appellant to cross-examine on defendant/appellee’s pleadings without their first being admitted into evidence.

Judgment reversed.

Pope, J., concurs. Beasley, J., concurs in the judgment only.


author: Cooper, Judge. Birdsong, Judge,

text:
    A90A0719.
    YORK RITE BODIES OF FREEMASONRY OF SAVANNAH et al. v. BOARD OF EQUALIZATION.
    (401 SE2d 30)
   Cooper, Judge.

This is a consolidated appeal of two cases involving two Masonic lodges, Thunderbolt Lodge No. 693 and York Rite Bodies of Savannah, Georgia (“appellants”). Appellants had been afforded an ad valorem tax exemption on their properties until 1985, when this exemption was revoked by the local taxing authorities. In December 1985 and January 1986, appellants filed appeals to the superior court from the adverse decisions of the taxing authorities. The next pleading was filed by appellants in April 1988, and in November 1988, the Thunderbolt case was dismissed for lack of prosecution as no request for trial had been made by the appellant in that case. In May 1989, appellants filed a motion for declaratory judgment and therein asserted that the properties of appellants were exempt from taxation because appellants are “purely public charities” under OCGA § 48-5-41 (a) (4). Also in May 1989, despite the earlier dismissal of the Thunderbolt case, the two cases were consolidated. By order entered in October 1989, the superior court ruled that the Thunderbolt case was properly dismissed and that the dismissal constituted an adjudication on the merits which prevented the issues from being raised again. As to the York Rite Bodies case, the court, after a lengthy discussion of the controlling authority, determined that the property at issue was not used in such a manner as to qualify it for tax exemption and denied the declaratory judgment. This appeal followed.

1. Upon a review of the record, we determine that the trial court erred by allowing the dismissal of the Thunderbolt case to act as an adjudication of the merits. Contrary to the trial court’s ruling, OCGA § 9-11-41 (b) states “[a] dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits. ...” Consequently, appellants were not barred by the doctrine of res judicata from reasserting the claims in the Thunderbolt case. Idowu v. Lester, 176 Ga. App. 713 (la) (337 SE2d 386) (1985). See Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1984). The trial court should have considered the merits of the Thunderbolt case. Since the issues presented by both cases are identical, we will consider herein appellants’ enumeration of errors as to both cases.

2. In their first and fifth enumerations of error, appellants assert that the trial court erred in its interpretation of the “purely public charity” doctrine. The two properties at issue are Masonic lodges, used exclusively as meeting places for Masonic and Masonic-related activities, and no part of either is used for commercial purposes. Unquestionably, the Masonic organization devotes a substantial amount of time and money for charitable purposes. At issue here, however, is whether the use of the properties meets the tests established by Georgia law to qualify them for a property tax exemption. “The test is whether the property itself is ‘dedicated to charity and used exclusively’ as an institution of purely public charity, not whether the [appellant] is an organization of purely public charity.” Tharpe v. Central Ga. Council &c. of America, 185 Ga. 810, 813 (196 SE 762) (1938). “If exempt, it is only because it is property used exclusively as an institution of purely public charity.” Mu Beta Chapter &c. Corp. v. Davison, 192 Ga. 124, 126 (14 SE2d 744) (1941). “Property owned by a charitable institution is not exempt from taxation unless it is used for the purposes for which that institution was established. Mere latent ownership of property by an institution of public charity will not entitle it to an exemption in the absence of the required application of the property to the charitable goals of the owner.” Thomas v. Northeast Ga. Council, 241 Ga. 291, 293 (244 SE2d 842) (1978). That an organization is non-profit, non-commercial, that it serves a benevolent purpose, and that its charter declares it to be a charitable and benevolent institution, do not automatically qualify it for a tax exemption as a charitable institution. Historic House Museum Corp. v. Camp, 223 Ga. 510, 511 (156 SE2d 361) (1967). Further, the use of the property sought to be exempted must not only be purely charitable, but must also be devoted to a public charity. Georgia Congress of Parents &c. v. Boynton, 239 Ga. 472, 473 (238 SE2d 113) (1977).

Based upon the exemption tests above enunciated by the Georgia courts, we hold that the properties at issue do not qualify for an ad valorem tax exemption pursuant to OCGA § 48-5-41 (a) (4). The properties are used as meeting places, and are not used for the actual charitable purposes for which the Masons were established. Also, the properties are used only by members of the respective lodges and are therefore not open to the “public.” We agree with the trial court that the case of Massenburg v. Grand Lodge F & AM &c., 81 Ga. 212 (7 SE 636) (1888) is not controlling because the issue decided in that case was the taxability of productive property when the income was used for charitable purposes. Any implication in that case that Masonic lodges, used exclusively for Masonic fraternal activities, are tax exempt is not binding as the controlling usage tests were not applied to those factual circumstances. Appellants’ first and fifth enumerations are without merit.

3. Appellants’ second and third enumerations of error, asserting that the trial court erred in failing to require appellee to file responsive pleadings and in failing to place the burden of proof on appellee, are both without merit. An appeal to the superior court from a county tax assessment is not a complaint as contemplated by the Civil Practice Act. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726 (1) (279 SE2d 223) (1981). Therefore, an answer is not required in response to such appeal, and a default judgment will not lie for failure to answer. Id. The court did not err in failing to require a responsive pleading, and such failure did not deprive appellants of any of their constitutional rights. “The burden of proof in the superior court was on the taxpayers, as the parties who initiated the appeal to that court. [Cit.]” Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 (3) (350 SE2d 790) (1986). The court was not authorized to shift that burden, and no error occurred.

4. Appellants finally assert that the court erred in not considering the act of the Georgia legislature that incorporated the Grand Lodge of Georgia in 1796, and in not considering a cited Alabama case. Although the act referenced states that the principles of the Masons are “charity and universal benevolence,” as stated in Division 2, the wording of a corporate charter is not determinative; the property usage tests must nevertheless be satisfied. Boynton, supra at 473. Further, it was not error for the trial court to fail to consider an Alabama case cited by appellants in the face of controlling Georgia authority.

Judgment affirmed.

Beasley, Daniel M. Coursey, Jr., Dawson Jackson, Robert G. Walther, and Thomas D. Wilcox, Jr., JJ., concur. Birdsong, Arnold Shulman, and William J. Smith, JJ., dissent. Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Sognier and Pope, JJ., disqualified.

Birdsong, Judge,

dissenting.

I am compelled to dissent as to Division 2 of the majority opinion and accordingly, I would reverse the holding of the trial court as to the issue of whether it erred in its interpretation of the “purely public charity” doctrine.

In my view, the position taken by the majority is too broad and threatens to destroy the property tax exemption status of many charitable organizations in this state, including perhaps that of the Red Cross and Salvation Army who maintain and operate non-profit headquarters or administrative buildings necessary for the perpetuation of their charitable entities and the planning of their organizational goals, including the accomplishment and coordination therein of public relations and publicity activities and the preparation of diverse charitable campaign strategies not directly connected to the disbursement of existing charitable funds.

Currently, OCGA § 48-5-41 (a) (4) provides that among the property exempt from ad valorem property taxation is that of “[a]ll institutions of purely public charity.” OCGA § 48-5-41 (a) (5) (A) and (B) provides: “All property of nonprofit hospitals used in connection with their operation when the hospitals have no stockholders, have no income or profit which is distributed to or for the benefit of any private person, and are subject to the laws of this state regulating nonprofit or charitable corporations . . . (B) Property exempted pursuant to this paragraph shall not include property of a nonprofit hospital held primarily for investment purposes or used for purposes unrelated to . . . (i) Providing of patient care . . . (ii) Providing and delivery of health care services; or . . . (iii) Training and education of physicians, nurses and other health care personnel.”

The Masonic lodges in the instant case may be referred to as the brain of the creature. It is undisputed no income is derived from the lodges. The function of the lodge is for the meeting place of its members and for the decisions which the members make. All decisions regarding how the lodge supports its charities emanates from its headquarters; without the brains, its lodges, the creature is nothing. Surely this use qualifies the lodges for their exemption which they ask for and deserve. This Code section on its face applies to all institutions, both public and private, which are institutions of “purely public charity.” In Massenburg v. Grand Lodge, 81 Ga. 212, 217 (7 SE 636), the Supreme Court did “concede the purely public character of the charity which the Grand Lodge of Georgia administers. . . .’’It has never been held that masonic bodies do not support a wide variety of charitable institutions and activities ministering to the needs of the whole of classes for whose relief the charities are intended or adapted, including as commonly known to the public at large: children’s hospitals, burn centers, eye foundations and orphanages. For a definition of “charity” as used in tax exemption statutes, see generally Peachtree on Peachtree Inn v. Camp, 120 Ga. App. 403, 409-410 (170 SE2d 709).

However, the majority in essence observes that in Tharpe v. Central Ga. Council, B. S. A., 185 Ga. 810, 813 (196 SE 762), it was recently held that a test to determine whether property shall be exempt from taxation “is whether the property itself is ‘dedicated to charity and used exclusively’ as an institution of purely public charity.” Moreover, in Mu Beta Chapter &c. Corp. v. Davison, 192 Ga 124, 126 (14 SE2d 744), the Supreme Court held that “[i]t is the use to which the property is put, rather than the declaration of purpose found in its owner’s charter, that determines the question of exemption from taxation.” Compare Atlanta Masonic Temple Co. v. City of Atlanta, 162 Ga. 244 (133 SE 864).

However, while mere latent ownership of property by an institution of public charity will not entitle it to tax exemption per se (Thomas v. Northeast Ga. Council, B. S. A., 241 Ga. 291, 293 (244 SE2d 842)), neither should the mere ownership and operation by a charitable institution of an organizational headquarters deprive such property per se of its tax exemption, regardless of the nomenclature given to such administrative building and whether they be called headquarters, administrative wings, operations buildings, lodges, or meeting halls. In fact, the Supreme Court has held that “[i]n so far as such organizations are administrators and disbursers of purely public charity, their property permanently in use for that purpose is exempt from taxation.” (Emphasis supplied.) Richardson v. Executive Comm. &c. Convention, 176 Ga. 705, 708 (169 SE 18).

In Elder v. Henrietta Egleston Hosp., 205 Ga. 489 (53 SE2d 751), the City of Atlanta assessed that property of the corporation, including lands, buildings, and hospital equipment which the hospital used exclusively for the purpose of operating and maintaining its institutions. Id. at 490. The court noted that the precedent found in a number of earlier cases was no longer binding, in view of the new wording adopted in the Constitution of 1945 concerning the tax exemption of property of purely public charity institutions. The 1945 constitutional provision provided, inter alia, that the General Assembly may exempt from taxation “ ‘all institutions of purely public charity;. . . provided the property so exempted be not used for the purpose of private or corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining and operating such institution.” (Emphasis supplied.) Id. at 492. The Court stated that in 1946, the General Assembly had passed an act exempting from taxation all of the property enumerated in the above-stated clause using the identical language there employed. Id. at 492. Then the Court observed “[b]ut in the present case no contention is made, nor could the same be successfully made, that the General Assembly has not exempted from taxation all of the property which it had constitutional authority to exempt. . . .” (Emphasis supplied.) Id. at 492. Thereafter, the Court concluded “the property sought to be taxed has been exempted by statute,” and in doing so first opined that “as shown by our statement of facts, all of its income from all sources is used exclusively for maintenance, operation, enlarging its charitable facilities, and for furtherance of its charitable purposes, with no part of the same distributable to any one having an interest therein.” (Emphasis supplied.) Id. at 492-493. OCGA § 48-5-41 (c) today contains virtually the same verbiage as the above provisions cited in Elder. And in determining the use to which the property is placed using the test of Tharpe and Mu Beta, supra, due consideration must also be given to the statutory provisions of OCGA § 48-5-41 (c), and the holding of our Supreme Court in Elder. Viewing Elder and OCGA § 48-5-41 (c) in their entirety and in light of prior cases recognizing the need for charitable institutions to maintain and operate their organizations, it appears that a permissible use of tax exempt charitable property clearly would include such uses as for the purposes of administering, maintaining and operating their own charitable institutions, and that unless the property was used to generate an income or profit not exempted from taxation under OCGA § 48-5-41 (c), the property itself would remain tax exempt.

A Masonic “lodge” serves as the cornerstone of the organization. Within the “lodge” is conducted the business of the lodge, including the voting for dispensing of charitable funds, the coordination of current charitable activities, and the planning of future charitable fund raising events. Even in Massenburg, under the then existing more stringent state rules of charitable property exemption, the Supreme Court recognized “the temple or lodge-building of the charitable order or society — [as being] the domicile, habitation, seat, and external symbol of the organization. . . .” Massenburg, supra at 216. Moreover, in Division 2 of its opinion in Massenburg, the court tacitly reaches the conclusion that the portion of the lodge property not being operated as a money making rental activity “could rightfully claim” tax exemption through application of the “rule of apportionment.” (Emphasis supplied.) Massenburg, supra at 220 (2). In the case sub judice, the board of tax assessors does not assert in its brief that the “lodge” buildings were ever used or rented in the commercial sense or that any profit has ever been made or attempted through the use of this property. Compare OCGA § 48-5-41 (c). Today, under OCGA § 48-5-41 (c) and Elder, even the making of income or profit by the charitable institutions property would not per se destroy its tax exemption. Rather, the use to which such profit or income is put and the manner in which it ultimately is distributed would appear to be controlling under the plain language of OCGA § 48-5-41 (c).

Decided November 27, 1990

Rehearing denied December 20, 1990

J. Walter Cowart, Gordon B. Smith, for appellants.

Brennan, Harris & Rominger, Richard J. Harris, M. Carol Branham, for appellee.

Accordingly, I would reverse the trial court’s judgment and remand the case for an application of the rule for tax exemption of the property of charitable institutions, above discussed, in a manner consistent with the legislative intent clearly reflected by OCGA § 48-5-41 (c) and the holding of the Supreme Court in Elder, supra.

I respectfully dissent. I am authorized to state that Judge Shulman and Judge Smith join in this dissent.


author: Cooper, Judge.

text:
    A90A0763.
    NATIONWIDE MUTUAL INSURANCE COMPANY v. KERSHAW MANUFACTURING COMPANY, INC.
    (401 SE2d 23)
   Cooper, Judge.

This appeal arises from a suit for reimbursement of a sum paid by appellant to its insured, Sawnee Electric Membership Corporation (“Sawnee”), when a piece of equipment was destroyed by fire. Appellant brought the instant action against appellee, the manufacturer and seller of the equipment, alleging negligence, breach of warranty and strict liability, pursuant to a subrogation provision in its policy with Sawnee which provided as follows: “OUR RIGHT TO RECOVER FROM OTHERS. In the event of any payment under this policy, Nationwide shall be entitled to all the insured’s rights of recovery against any person or organization. An insured shall do nothing after the loss to prejudice such rights, but the insured may waive his rights in writing to others prior to loss.” Appellee moved for summary judgment, basing its motion on the lack of contractual privity, no valid assignment of breach of warranty claims and the contention that appellant was not entitled to subrogation because its payment to Sawnee was voluntary. The trial court granted the motion for summary judgment, and this appeal followed.

1. Appellant enumerates as error the trial court’s grant of summary judgment as to its claim for breach of express and implied warranties. Appellant contends the subrogation clause was a valid assignment of all Sawnee’s claims and that as Sawnee’s insurer, appellant was in privity with appellee. We disagree. “ ‘In a sale of personal property the warranty is not negotiable or assignable, and does not run with the article sold.’ [Cit.]” Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752 (206 SE2d 857) (1974). Warranties made in connection with the sale of goods are controlled by the Uniform Commercial Code, OCGA § 11-1-101 et seq. “By statute, the UCC warranties can only be made by a seller of goods and those warranties can only be extended either to the buyer or to those who have a specified relationship with the buyer. [Cit.] . . . [F]or purposes of imposing liability for a breach of the UCC warranties, it is the applicable specific statutory provisions of the UCC and not general legal principles that are controlling as to the privity requirement and any exceptions thereto.” Decatur North Assoc., Ltd. v. Builders Glass, 180 Ga. App. 862, 864 (1) (350 SE2d 795) (1986). Appellant was not the buyer and is not in privity with appellee. Nonetheless, while a warranty cannot be assigned, the UCC does authorize the assignment of a purchaser’s claim for “an existing breach of the warranty.” Irvin v. Lowe’s of Gainesville, 165 Ga. App. 828, 829 (2) (302 SE2d 734) (1983). However, contrary to appellant’s contentions, the language of the subrogation provision was not a valid assignment of an existing breach of warranty.

“ ‘Any language, however informal, will be sufficient to constitute a legal assignment, if it shows the intention of the owner of the right to transfer it instantly, so that it will be the property of the transferee. [Cit.]”’ First State Bank v. Hall Flooring Co., 103 Ga. App. 270, 271 (118 SE2d 856) (1961). The language in question entitles appellant to Sawnee’s rights of recovery against any person or organization but not Sawnee’s right of action. Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31 (2) (299 SE2d 76) (1983). An assignment of a right of action would have vested title in appellant allowing appellant to sue directly. Shook v. Pilot Life Ins. Co., 188 Ga. App. 714 (1) (373 SE2d 813) (1988). Moreover, because the purported assignment predated the claim, it cannot be interpreted as conveying an existing claim. Under the circumstances in this case, the subrogation provision is, at best, an assignment of an entitlement to the proceeds for breach of warranty at some time in the future. Accordingly, the trial court did not err in granting summary judgment as to the breach of warranty claim.

Decided November 6, 1990

Rehearing denied December 20, 1990

Murray, Temple & Dinges, William D. Strickland, John C. Mc-Caffery, for appellant.

Goldner, Sommers & Scrudder, Glenn S. Bass, C. G. Jester, Jr., for appellee.

2. Appellant also contends the trial court erred in granting summary judgment on the claims for strict liability and negligence in the design, manufacture, installation and construction of the equipment. In its motion for summary judgment, appellee argued that appellant was not entitled to subrogation because its payment to Sawnee was voluntary in view of an exclusion in the policy for damages caused by “faulty, inadequate or defective: . . . design, specifications, workmanship, repair, construction. . . .” Appellee maintained that because the allegations of negligence were defective design, manufacture and construction, appellant was not obliged to indemnify Sawnee for the loss. “ ‘ “Subrogation ‘is never applied for the benefit of a mere volunteer who pays the debt of another without any assignment or agreement for subrogation, and who is under no legal obligation to make the payment, and is not compelled to do so for the preservation of any rights or property of his own.’ ” ’ [Cits.]” Transport Ins. Co. v. Maryland Cas. Co., 187 Ga. App. 361, 364 (3) (370 SE2d 188) (1988). We conclude that the trial court was correct in finding that appellant did not acquire a right of subrogation because of the exclusions in the policy and in granting summary judgment.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge. Birdsong, Judge,

text:
    A90A0887.
    CLAY et al. v. DEPARTMENT OF TRANSPORTATION.
    (400 SE2d 684)
   Banke, Presiding Judge.

The appellants, consisting of Robert N. Clay and the Citizens & Southern Trust Company (“the bank”), acting as trustees under the will of Clyde H. Clay, are the owners of eight commercial properties located along a highway which the Department of Transportation determined to widen. This litigation concerns the DOT’s negotiated purchase from the appellants of the additional right-of-way needed for this project along two of the properties in question. The parties were unable to reach an agreement as to compensation on the other six properties, which consequently became the subject of condemnation proceedings which are not involved in this appeal.

After the road-widening project commenced, it became evident to the appellants that the DOT intended not only to widen the highway but also to raise its grade level by approximately four feet on the side adjacent to their property, in order to create a “super-elevated curve.” The appellants filed the present action to enjoin the project or, in the alternative, to recover additional compensation for the property rights which they sold to the DOT, alleging that the DOT’s failure to notify them of its intention to elevate the road in this manner constituted the intentional and fraudulent concealment of a material fact materially affecting the value of their remaining property.

It is apparent without dispute that before the improvements were undertaken, the properties in question were at grade level and were fully accessible at all points along the highway. The appellants allege in their complaint that as a result of the improvements, vehicles attempting to exit their shopping center will now be required to travel “almost straight up a four-foot embankment into a four-lane highway, with unreasonable problems of visibility.” The trial court denied the appellants’ request for injunctive relief on the ground that construction of the improvements in question was already completed, and that ruling has not been appealed. The trial court subsequently granted summary judgment to the DOT on the appellants’ remaining damage claim, concluding that in the absence of any evidence or allegation that the DOT had made an affirmative misrepresentation to them that the road would not be elevated, there had been no showing of fraud sufficient to authorize the setting aside of the right-of-way deeds. Held:

1. Although the issue has not been raised by the parties, there is disagreement among the members of this court over whether this is an equity case, such that appellate jurisdiction would be in the Supreme Court pursuant to Art. VI, Sec. VI, Par. Ill (2) of the Ga. Const, of 1983.

“The rule is that ‘to make a case one for equity jurisdiction it must contain allegations and prayers for equitable relief.’ (Cit.)” Jones v. Van Vleck, 224 Ga. 796, 797 (164 SE2d 724) (1968). Accord Reynolds v. Hyers, 190 Ga. 200, 202 (9 SE2d 78) (1940); Atlantic States Constr. v. Beavers, 250 Ga. 828, 829 (301 SE2d 635) (1983). The only request for equitable relief made by the appellants in their complaint was for an injunction to halt construction of the road improvements. As the denial of that request was not appealed, it follows that there is not currently any claim for equitable relief pending in the case. We accordingly hold that jurisdiction over the present appeal is in this court rather than the Supreme Court. See Johnson v. Mut. Fed. &c. of Atlanta, 225 Ga. 245 (167 SE2d 653) (1969).

2. “ ‘Fraud may exist as much in intentional concealment of material facts, as in false statements in regard to facts. One is as fraudulent as the other, if it is used as a means of deceiving the opposite party.’ ” Friedman v. Goodman, 222 Ga. 613, 623 (151 SE2d 455) (1966), quoting from Jordan v. Harber, 172 Ga. 139 (4) (157 SE 652) (1931). “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” (Emphasis supplied.) OCGA § 23-2-53. See also OCGA § 51-6-2.

It is apparent without dispute from the record that during its negotiations with the appellants the DOT already had in its possession plans showing the proposed grade-change elevations. However, according to all of those involved in those negotiations on behalf of the appellants (who included, in addition to Mr. Clay, an officer of the bank which was acting as co-trustee of the property and an appraiser hired by him), none of the plans showed to them by the DOT representatives showed any grade elevations. While one of the DOT’s agents submitted an affidavit in which he averred that it was his belief that the appraiser had reviewed such plans during a visit to the DOT office, this affidavit clearly is not, as suggested by the dissent, dispositive of whether such plans were actually shown to the appellants but at most creates a factual dispute on the issue.

While the appellants and their appraiser have quite candidly acknowledged that it never occurred to them during the negotiations to ask whether a change in the existing grade level was being contemplated, they assert that the circumstances did not suggest the existence of any reason for such a change; and, in view of their collective expertise and experience in dealing with real estate, it is certainly conceivable that a jury might agree with them on this point and conclude that their failure to ask the DOT about its intentions in this regard did not constitute a failure to exercise due diligence. While the appellants have further acknowledged their awareness that an increase in elevation of up to a foot would necessarily result from the project (which, of course, called for the addition of new pavement to the existing road), such an awareness obviously would not have alerted them to the possibility that the DOT was planning a “super-elevated curve.” Furthermore, Mr. Clay testified that he affirmatively stated during the negotiations that it was his understanding that “this property is not going to be hurt”; and he stated that by “their silence” the DOT representatives “indicated to me that my statement was true.”

The dissent would excuse the DOT’s failure to respond to this comment for the stated reason that “it is not so clear that the change in elevation ‘hurt’ the property to the extent that [the] DOT should have immediately appreciated that Mr. Clay’s comment was incorrect. . . .” However, this is clearly a point on which reasonable minds could disagree. According to the appellants, the change in elevation has in effect dropped their property from grade level to the bottom of a four-foot embankment, and there is evidence that, whereas their parking lot was previously accessible at all points along the highway, it is now accessible only through ramps constructed by the DOT for that purpose. It is difficult to imagine how this could have anything other than a materially negative effect on the desirability and value of the property for shopping center purposes. While the appellants have not yet offered proof of the extent to which the value of their remaining property was diminished, the burden was not on them to do so at this juncture. Rather, they were entitled, as respondents on motion for summary judgment, to the benefit of any doubt on this as well as all other disputed issues in the case. See generally Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973); First of Ga. Ins. Co. v. Josey, 129 Ga. App. 14, 15 (198 SE2d 381) (1973).

The DOT relies on the Supreme Court’s decision in White County v. Wooten, 219 Ga. 236 (132 SE2d 653) (1963), as authority for the proposition that an affirmative misrepresentation is required to set aside a right-of-way deed. In that case, the alleged misrepresentation was a statement by the county commissioner to the property owner to the effect that “if a paved road at the grade level would be constructed on the right-of-way that it would enhance the value of the plaintiff’s property and thereby compensate him over and above the amount of money actually paid to plaintiff for his lands. . . .’” (Emphasis from original.) Id. at 240. In the present case, a paved road already existed at grade level, and no reference whatever was made by the condemnor to the possibility that its elevation might be substantially changed. The present case is also distinguishable from such cases as Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989), and Kirven v. Blackett, 208 Ga. 178 (65 SE2d 791) (1951), in that the alleged concealment at issue here did not concern an existing characteristic of the property which the plaintiffs could have discovered independently by such means as obtaining a survey or analyzing a soil sample. Rather, it concerned a plan for future improvements known only to the DOT and which the DOT alone was in a position to disclose or verify. Based on the evidence that the DOT’s representatives not only failed to share with the appellants its plans for a “super-elevated curve” but remained silent in the face of Mr. Clay’s affirmative disclosure to them during the negotiations that he was operating under the assumption and belief that the improvements would not “hurt” his remaining property, we hold that the trial court erred in granting the DOT’s motion for summary judgment.

3. The appellants’ remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

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

Birdsong, Judge,

dissenting.

1. As the central issue in this appeal is whether the trial court correctly denied the equitable relief of setting aside the right-of-way deed, an issue in the general appellate jurisdiction of our Supreme Court (Art. VI, Sec. VI, Par. Ill (2)), I must respectfully dissent. The record shows that the trial court granted DOT’s motion for summary judgment on the appellants’ claims for damages after it found that the appellants were not entitled to set aside the right-of-way deed. Although the majority notes that the appellants did not seek equitable relief, the equitable relief of setting aside the right-of-way deed is essential to recovering the damages sought. See Whipple v. County of Houston, 214 Ga. 532, 535 (105 SE2d 898): “Therefore, it is imperative that the prayer for cancellation and setting aside of the award and judgment of condemnation be sustained if the petitioners are to be allowed to recover for alleged damages resulting from the manner of construction, which is making a fill in heights from 25 to 40 feet in front of the owner’s remaining lands.” Further, the enumerations of error concern whether there was sufficient evidence of fraud to warrant the trial court’s refusal to set aside the right-of-way deed and the burden which should be on the DOT in such cases, and the majority opinion plainly relies on equitable authorities in reaching its holding. Therefore, as the issue is whether the trial court properly denied the equitable relief of setting aside of the right-of-way deed, it is my view that this court lacks jurisdiction over this appeal and the case should be transferred to the Supreme Court.

2. Since this court has reached the merits of the appellants’ claims, I also must dissent from the majority’s conclusion that Mr. Clay’s statement “that we are not going to be hurt on this piece of property” creates a jury issue on whether the sale of the right-of-way was induced by fraudulent concealment. In the first instance, whether the deed should be set aside as an equity issue is to be determined by the trial court without jury (see Golston v. Garigan, 245 Ga. 450, 451 (265 SE2d 590)), and this case merely underscores the concern noted in Beaulieu of America v. L. T. Dennard & Co., 253 Ga. 21, 22 (315 SE2d 889) about granting summary judgment on an equity issue. In this appeal, although the trial court specifically made findings of fact and reached the conclusions of law that the right-of-way deed could not be set aside, it apparently did so under the summary judgment procedure.

Secondly, under all the evidence in this case the failure of DOT to respond to Mr. Clay’s statement is insufficient to create any issue on whether the right-of-way deed was procured by fraud.

The elements of damage in a condemnation proceeding include the value of the property and consequential damage that will naturally and proximately arise to the remainder (State Hwy. Dept. v. Kaylor, 110 Ga. App. 46, 47 (137 SE2d 664)), and the award for the property covers all damages, foreseen and unforeseen, resulting from proper construction of the project. City of Atlanta v. Airways Parking Co., 225 Ga. 173, 181 (167 SE2d 145). Therefore, the right-of-way deed in this case must be set aside if the appellants are to recover damages. See Charles v. Cobb County, 231 Ga. 696, 698 (203 SE2d 503); Whipple v. County of Houston, 214 Ga. 532, 535 (105 SE2d 898).

Central to resolution of this appeal is the nature of the representation required before a right-of-way deed may be set aside. Our Supreme Court considered this question in White County v. Wooten, 219 Ga. 236, 240 (132 SE2d 653), and found that a misrepresentation of the actual facts was required: “The absence of any averment that the commissioner represented that the road would in reality be constructed at grade level is the very point at which the plaintiff’s allegations are distinguished from those of the plaintiffs in Whipple v. County of Houston. . . .” In Whipple v. County of Houston, supra at 538, a right-of-way deed was set aside because of either a mutual mistake of fact or a mistake resulting from the misrepresentation that the road would be built at the present level. In this appeal, of course, there is no allegation of mutual mistake and accordingly, for the appellants to prevail, there must have been an actual misrepresentation.

Nowhere do the appellants represent that DOT wilfully misrepresented that the road would be built at the existing grade and the exhibits filed by the appellants show that slopes would be constructed. Although the appellants contend DOT misled them by not responding to Mr. Clay’s statement that “we are not going to be hurt on this piece of property” and that they relied on DOT’s silence to mean there would be no change in elevation, the record does not support their contention. The C & S property manager’s deposition clearly states that they relied on their professional appraiser in the negotiations and that they “negotiated” on the value of the property. In any event, since the appellants’ affidavits in response to DOT’s motion for summary judgment stated that there was no discussion about any changes in elevation, there is no basis for anyone to conclude that there was a connection between changes in elevation and Mr. Clay’s statement. Indeed, even Mr. Clay does not contend that his statement was directed toward changes in elevation.

Moreover, Mr. Clay’s deposition makes clear that his comment was not a question, but a statement. Therefore, there is no evidence showing that DOT would know that a reply was expected, much less a reply concerning the grade of the new road. Under the circumstances, DOT’s agents could not be expected to know, that Mr. Clay’s statement concerned elevation any more than any of the other matters negotiated.

Additionally, this record shows that eight pieces of properties were originally involved in the negotiations, that the appellants and DOT were unable to agree on compensation for six, and that on the two properties involved in this appeal the settlement was not reached until the compensation was increased on one property from $43,835 to $46,500 and on the other from $36,700 to $49,485. Therefore, it is obvious that the appellants .understood that this was a negotiation process and that they did not blindly accept DOT’s offers on these properties. Indeed, Mr. Clay’s deposition further demonstrates that his understanding was that these negotiations were an arm’s length transaction because he recognized that he reached a settlement on one of the properties because of “bad advice.”

This record also shows that the appellants failed to ask about possible changes in the elevation of the road. While the appellants now assert that this was because they “assumed” that the road would be widened at the existing grade, this assertion is inconsistent with their interrogatory answers admitting that they knew there would be a grade change. The record shows that the appellants unilaterally misjudged the extent of the changes in elevation, without verifying their conclusion with DOT. Therefore, our Supreme Court’s decision in White County v. Wooten, supra, that a unilateral mistake is not sufficient, is controlling.

Additionally, nothing in this record shows or suggests that DOT was aware of the appellants’ erroneous assumptions or had any reason to believe that the appellants did not understand that the elevation would be changed. While our summary judgment procedures require us to construe the evidence in the appellants’ favor and give them the benefit of any reasonable doubts (see McNish v. Gilbert, 184 Ga. App. 234 (361 SE2d 231)), we cannot ignore the record.

The majority relies on authority that intentional concealment or suppression of material facts which one is obligated to communicate can constitute fraud. While these concepts are valid generally, they have no application to this appeal. Nothing in this record shows or warrants the conclusion that DOT intentionally concealed or suppressed material facts.

Instead the record shows that the appellants, at best, failed to look at all the plans and failed to question DOT about elevation changes. Although they now contend this topic was vitally important, in the negotiations they did not address it despite their admission that they asked every question they could conceive of about the project.

Further, the appellants present no evidence supporting their belief that DOT should have known intuitively that Mr. Clay’s statement referred to changes in elevation, and there is none in the record. The records show that DOT knew that the plans showed information that slopes would be constructed and also knew that the appellants’ professional appraiser visited DOT’s office and had access to all of the plans, including the cross-sections showing elevation changes. Therefore, DOT had no reason to assume that Mr. Clay’s statement was based on his unilateral misconception about the grade of the road. Moreover, since the plans showed how much the road would be elevated, there was no reason for DOT to assume that the absence of questions about the elevation meant that the appellants incorrectly assumed the road would be widened at the existing grade.

Moreover, Mr. Clay’s statement obviously cannot be taken literally to mean that the property was not being hurt. His statement is contrary to the fact that the appellants hired an appraiser to arrive at the consequential damages and the fact that the compensation for consequential damages was raised on both tracts. This increase in compensation was made pursuant to the appellants’ counteroffer which necessitated scrutinization of the plans to arrive at the damages.

In addition, it is not so clear that the change in elevation “hurt” the property to the extent that DOT should have immediately appreciated that Mr. Clay’s comment was incorrect for even after this litigation was initiated, the appellants could not estimate accurately the damage to the property. For example, one property manager testified at his deposition that only one tenant had departed since the road was widened but he could not recall the reason given for leaving, and many of the appellants’ complaints focus on noncompensable problems with access to the property during the construction project or mere inconvenience in access. See, e.g., Department of Transp. v. Dent, 142 Ga. App. 94 (235 SE2d 610); R. E. Adams Properties v. City of Gainesville, 125 Ga. App. 800 (189 SE2d 114). Without some evidence that the damage caused by the project was clear and obvious, there is no reason to conclude that DOT would immediately comprehend that Mr. Clay’s statement was based on an incorrect assumption rather than review of the plans.

Moreover, the professional real estate appraiser’s affidavit does not state that his opinion about the damage to the property changed to any degree after he learned that his assumption about the level of the road was wrong. The appraiser stated earlier there were no consequential damages, and his affidavit merely stated that his estimate was based upon an incorrect assumption. He did not state, however, that DOT caused him to reach this assumption, that he attempted to verify his assumption with DOT, or that DOT withheld information or provided incorrect information. Therefore, there is no basis for holding DOT responsible for the appraiser’s unilateral incorrect assumption. It can be presumed that professional real estate appraisers are competent to read plans as presented by DOT.

Under the facts of this case in which the appellants freely admit they did nothing to verify their assumptions about the road, the majority’s conclusion that the appellants could not verify their assumption is misplaced and would play havoc with our concept of diligence. In this case, the appellants could have asked DOT or looked at the plans. According to them, they did neither. Further, the majority’s conclusion that DOT should be held to a higher standard is contrary to the Supreme Court’s decisions in Wooten and Whipple.

There is simply no evidence in this case from which one can conclude that DOT intentionally concealed or suppressed information about the elevation of the road. Further, this is not a case in which the appellants made a direct inquiry and DOT evaded the truth. See Denny v. D. J. D., Inc., 186 Ga. App. 727, 728 (368 SE2d 329). The plans the appellants admittedly received in the appellants’ own words “clearly showed” there would be a change in elevation and the appellants’ discovery response admits that they simply misjudged the extent of the change. The record shows that the appellants failed to exercise reasonable diligence since by their admission they failed to verify whether their assumption was correct, and that DOT did not misrepresent the change in elevation.

The majority’s holding that the DOT representative’s belief that the appellants’ appraiser reviewed all the plans for the project available in the office merely created a factual dispute since the appellants stated that none of the plans presented to them showed grade elevations is wrong on several counts. Most significantly, the appraiser’s affidavit did not state that none of the plans had grade elevation on them. Secondly, the appellants’ complaint and discovery responses admitted the plans they received showed that the elevation would be changed, but they mistakenly concluded there would be a one-foot rather than four-foot change in elevation.

Thirdly, the effect of the DOT representative’s uncontradicted statement is to show that DOT did not conceal or suppress the change in elevation because the plans showing those changes were made available to the appellants’ appraiser when he came to examine those plans. Finally, the appraiser does not contend that all plans were not available to him. Instead, he merely asserts that he did not “recall” examining the other plans. Such convenient affidavit testimony does not contradict DOT’s positive statement that the plans were there for him to examine. See Cohen v. Hartlage, 179 Ga. App. 847, 850-851 (348 SE2d 331). As DOT never denied that these plans were not in its possession and available to the appellants, it is difficult to comprehend how this statement supports the appellants’ case. This is especially so since the appellants have never contended that they so much as asked about the elevation or that they asked and were denied access to the plans.

Decided December 5, 1990

Rehearing denied December 20, 1990

Chamberlain, Hrdlicka, White & Johnson, Richard N. Hubert, for appellants.

Evans & Flournoy, Charles A. Evans, Michael J. Bowers, Attorney General, for appellee.

Further, the majority’s conclusion that the appellants could have reasonably determined from the pláns that there would be no change in grade level is directly contradicted by the appellants’ answer to DOT’s interrogatories which admitted that they expected a change in grade level but assumed that it would be one foot rather than four. Under these circumstances, it is hard to credit a conclusion they never reached.

Because of the total absence of evidence in the record that DOT concealed or suppressed material facts, the appellants’ response to the motion for summary judgment was insufficient as a matter of law. “Fraud may not be presumed. ...” OCGA § 23-2-57. Therefore, the appellants may not rely only on DOT’s silence to prove that they are entitled to set aside the right-of-way deed.

Under the record of this case, the appellants failed to respond to DOT’s motion for summary judgment with any specific facts showing that there was a genuine issue for trial. Instead they responded with after the fact arguments that contradict earlier positions taken by them and which do not rebut DOT’s position that the plans were available for inspection and that, the appellants unilaterally misjudged the extent of the proposed grade change.

Therefore, I cannot conclude that the trial court erred by granting summary judgment, and accordingly I must respectfully dissent.

I am authorized to state that Chief Judge Car ley and Presiding Judge McMurray join in this dissent.