text:
    A89A2087.
    ANNIS v. TOMBERLIN & SHELNUTT ASSOCIATES, INC. et al.
    (392 SE2d 717)
   Beasley, Judge.

Following an adverse jury verdict and judgment, Annis appeals the denial of his amended motion for judgment notwithstanding the verdict or for new trial in this suit involving stock purchase and employment agreements surrounding the sale of Annis, Inc., a family-owned termite and pest control business.

The evidence is viewed so as to uphold the verdict. Wright v. Thompson, 236 Ga. 655, 659 (V) (225 SE2d 226) (1976). Annis began working part-time at Annis, Inc. in 1968, doing pest and termite control, selling, and managing employees and worked his way into “front-line management” of the business. Annis’ mother was in charge.

On September 27, 1985, there was 293 shares of outstanding common stock of the company. Annis’ mother owned 97.75 shares or 33 percent. Annis owned 44.5833 shares or 15.2 percent. Other relatives owned the remainder of the common shares. On that date, the Annis family members entered into a stock purchase agreement with Tomberlin & Shelnutt Associates, Inc., by which all of the family members, except Annis, sold all of their outstanding shares. In this agreement, Annis sold 15.2833 and retained 29.3 shares. The agreement provided, inter alia, that Tomberlin & Shelnutt would enter into an employment agreement with Annis and that Annis would enter into a stock purchase agreement with Annis, Inc., which they did. It also granted Annis an option to purchase 36.3 shares of the company’s common stock at any time between September 27, 1985, and September 30, 1987.

The initial stock purchase agreement contained the restrictive covenant: “The Sellers shall not directly or indirectly render services to or for any person or firm or engage in any activity competitive with or adverse to Company’s business, whether alone, as a partner or as an officer, director, employee or shareholder of any other corporation or as a trustee or other representative of any activity, within a fifty (50) mile radius from the Company’s principal place of business in Augusta, Georgia for a period of three (3) years from the date of this Agreement.” The second individual stock purchase agreement as well as the employment contract with Annis contained the same restrictive provision, triggered in the former upon the company’s purchase of Annis’ stock pursuant to the agreement and in the latter by Annis’ separation from employment with the company or non-renewal of the employment agreement.

The sale of Annis, Inc., to Tomberlin & Shelnutt was brought about in part by Annis’ actions and efforts. During Mr. Tomberlin’s tenure as regional sales director in Atlanta for another pest control company, Annis contacted the regional office for a job and interviewed with Tomberlin. During the interview, Annis explained that the family business was for sale and Tomberlin worked through Annis for a period of months to purchase the business. Annis was totally involved in the negotiations for the sale. Tomberlin & Shelnutt was formed solely to purchase Annis, Inc.

In the four years prior to the sale to Tomberlin & Shelnutt, Annis’ yearly salary from Annis, Inc., did not exceed $16,700. The first year after the sale, Annis received an annual salary of $30,000.

On September 1, 1987, Annis resigned employment with Annis, Inc., effective September 15, 1987. Prior to leaving Annis, Inc., Annis wrote a letter to a customer of competitor Wilcox Sales & Service, Inc., d/b/a Allstate Termite & Pest Control Company, regarding termite treatment and received a paycheck from that company. At trial, Annis admitted that by writing the letter, he had aided a competitor of Annis, Inc. Prior to leaving employment with Annis, Inc., Annis had prepared specifications for termite control work in schools for the county board of education. Shortly after leaving Annis, Inc., Annis assisted Wilcox, for whom he was then employed, in successfully submitting a bid for the county school termite control. Annis sought a bonus from his new employer for his assistance in securing the bid. When Annis left Annis, Inc., he took with him certain of the company’s property, including a manual of its marketing strategy.

Approximately one month after ending his employment with Annis, Inc., Annis filed a complaint for damages and declaratory judgment against Tomberlin & Shelnutt, Tomberlin and Shelnutt individually, and Annis, Inc., seeking the purchase price for the balance of his stock in Annis, Inc., under the stock purchase agreement wherein he had agreed to sell the stock upon termination of his employment. The suit also sought a declaration that the restrictive covenant contained in the employment agreement was void. Subsequently, the parties entered into an agreement settling the suit whereby defendants agreed to pay Annis a fixed sum for the balance of his Annis, Inc., stock, to be paid in installments, and whereby the restrictive covenant was shortened to a term of eighteen months, until March 1, 1989, or upon the sale of Annis, Inc., or a majority of its assets, whichever occurred first.

Installment payments for Annis’ stock were made pursuant to the settlement agreement. The payment due on December 20, 1987, was made on December 21 and accepted by Annis. The next payment was due on March 1, 1988. At that time, Tomberlin was out of town; the check was written on March 7, and put in Annis’ home mailbox. On March 8, Annis went to Tomberlin’s office and inquired about the payment. Tomberlin explained that the check had been delivered but offered to write a replacement. Annis agreed to wait and check his mailbox. On March 9, Annis wrote Tomberlin informing him that he was accelerating payment of the unpaid balance under the settlement agreement but that he would consider making a bargain if Tomberlin would fully release him from all covenants, specifically the one regarding noncompetition.

On March 17, Tomberlin & Shelnutt, Annis, Inc., and Tomberlin individually, filed suit in superior court against Annis alleging his violation of the restrictive covenants in the initial stock purchase agreement with the Annis family and in the employment agreement with Annis. They sought temporary and permanent injunction enjoining Annis from continuing to breach the covenants, $25,000 lost profits, damages for conversion of property valued at $25,000, punitive damages of $75,000, a declaration that they were not indebted to Annis in any amount pursuant to a promissory note or the agreement settling the prior lawsuit, and an award of reasonable attorney fees and expenses of litigation.

Just prior to the filing of that suit, Annis had filed an action against Tomberlin & Shelnutt and others in the state court seeking payment of $41,059 pursuant to the settlement agreement plus interest and attorney fees. By consent, the actions were consolidated in the superior court and the parties were realigned to reflect Tomberlin & Shelnutt and the others as defendants, with their claims as a counterclaim and Annis as plaintiff. Annis was also shown as third-party plaintiff inasmuch as Wilcox Sales & Service, Inc. d/b/a Allstate Termite & Pest Control Company was added as a third-party defendant. Defendants responded to the consolidated suit asserting a failure of consideration for the debt allegedly owed by them to Annis; that Annis reaffirmed and ratified the covenants not to compete in the settlement agreement, waiving an issue of validity, and Annis was estopped to contest the covenants; that Annis had breached the covenants, relieving them of any indebtedness to Annis; and that because of Annis’ breach, they were entitled to a set-off of any amounts owed to Annis.

The verdict on the counterclaim was for $7,500 actual damages, $10,000 punitive damages, and $5,000 attorney fees.

1. In his first and second enumerations of error, Annis contends the trial court erred in denying him a directed verdict against defendants for the requested $41,059 plus interest and in refusing to grant him j.n.o.v. or a new trial on the general grounds because it was undisputed that defendants obtained the balance of his stock in Annis, Inc., but did not pay the balance of the purchase price.

The evidence, however, supported findings that the purchase price paid by Tomberlin & Shelnutt for Annis, Inc., included the value of the covenants not to compete, that Annis breached such covenants, and that specific damage flowed from the breach. This authorized the jury to find in favor of defendant’s claim of failure of consideration and/or that defendants were entitled to a set-off of the balance owed. See statement of facts recited above.

2. In his third and fourth enumerations of error, Annis contends he was due a directed verdict or j.n.o.v. on defendants’ coimterclaim and that the court erred in overruling his motion for new trial because the covenant not to compete was overbroad and void as a matter of law as a covenant not to compete ancillary to an employment contract. He cites White v. Fletcher/Mayo/Assoc., 251 Ga. 203 (303 SE2d 746) (1983).

The permissible scope of restrictive covenants depends upon the context in which they are drafted; they are considered in light of the specific factual situation and the nature of the terms of the covenant. Farmer v. Airco, Inc., 231 Ga. 847, 850 (204 SE2d 580) (1974); Hood v. Legg, 160 Ga. 620, 632-633 (128 SE 891) (1925). Farmer provides that a covenant entered into as part of a sale of a business can generally be drafted more broadly than one which is entered into as part of an employment contract. The reason for the distinction is that the parties to a sale of a business are in a more equal bargaining position than those in an employment situation. However, even in the employment situation, covenants are analyzed in context and can be upheld and enforced if they are reasonably drafted. Edwards v. Howe Richardson Scale Co., 237 Ga. 818, 820 (229 SE2d 651) (1976). Determination of whether or not the covenant is reasonable involves an examination of the time limits, territorial limits, and the restricted scope of activity. Watson v. Waffle House, 253 Ga. 671, 673 (2) (324 SE2d 175) (1985).

It is unnecessary to categorize the covenant at issue as one ancillary to the sale of the business or to the employment contract because even under the narrower employment contract scope, the covenant is not overbroad. Watson, supra, involved a restrictive covenant ancillary to a lease/franchise agreement which prevented the lessors from competing with Waffle House by engaging in the restaurant or fast food business within a five-mile radius for a period of two years following termination of the lease. The Supreme Court rejected the argument that the covenant amounted to a prohibition against working “in any capacity.” In light of the role the Watsons played in the business, the covenant’s restriction against working at all in the same field in the restricted area was Waffle House’s only way of protecting its interests. The Watsons were involved in all areas of the business and the Waffle House had a stake in protecting its investment. The covenant ancillary to an employment contract was upheld. Id. at 673. See also Barry v. Stanco Communications, 243 Ga. 68, 71 (5) (252 SE2d 491) (1979); Coffee System of Atlanta v. Fox, 226 Ga. 593, 597 (4) (176 SE2d 71) (1970); Shirk v. Loftis Bros. & Co., 148 Ga. 500, 504 (1) (97 SE 66) (1918).

As in Waffle House, Annis was a front-line manager. He was the second largest stockholder and the only one who retained an interest in the corporation after the sale. He had worked in the family business for over fifteen years in every capacity. Tomberlin and Shelnutt had invested a substantial amount in their purchase of the business. In addition, they agreed to pay Annis a salary of almost double his pre-sale salary. While at Annis, Inc., Annis’ “participation involved every facet of the business and [he] gained knowledge which [Annis, Inc.] has a reasonable stake in protecting.” Watson, supra at 673 (2).

Given the nature of the pest control business, a covenant prohibiting Annis from engaging in competitive activities in a fifty-mile radius for three years “means simply that [Annis] shall not compete within the time and within that area. This restraint cannot be said to be unreasonable.” Id. Accordingly, the restrictive covenant in this case is not overbroad.

Even if the covenant were overbroad, it would be possible to blue pencil the agreement so as to make it enforceable. Appellant’s reliance on White is misplaced. The Supreme Court has recently determined that “if a contract for the sale of a business and an employment contract are part of the same transaction they may be construed together to supply missing elements and blue penciled to make over-broad terms valid.” Lyle v. Memar, 259 Ga. 209, 210 (378 SE2d 465) (1989). In this case, all three restrictive covenants were part of the same transaction and thus would be construed together to prohibit Annis from engaging in activities competitive with Annis, Inc.’s pest control business.

3. In the fifth enumeration of error, Annis contends the court erred in overruling his motion for new trial because there was no evidence to support the verdict for the breach of contract claims as there was no evidence that he violated the covenant not to compete and only mere speculation of damage to defendants’ business by any violation of the covenant.

There was evidence that while Annis worked for Annis, Inc., he prepared specifications for termite control for the county schools. Tomberlin testified that as a commercial salesman for Annis, Inc., it would have been Annis’ responsibility to submit the county school system termite control bid on behalf of Annis, Inc., and that Tomberlin thought Annis had placed the bid on behalf of Annis, Inc., and the bid had not won because it was too high. There was also evidence that Annis went directly to work for competitor Wilcox, accompanying him to some schools and assisting him in preparing the winning bid. There was only one other bidder and Annis admitted that if the same bid which won for Wilcox had been submitted on behalf of Annis, Inc., his former employer would have prevailed. It was defendants’ position that the bid submitted on behalf of Wilcox was actually Annis, Inc.’s bid. There was further evidence that Annis oversaw his new employer’s performance of the termite control in the schools and expected a bonus from Wilcox for his role in getting the bid.

There was ample evidence from which the jury could conclude that Annis violated the restrictive covenants. As to the issue of damages, Tomberlin testified without objection that at least $25,000 out of the $60,000 bid would have been profit.

“A party who has been injured by a breach of contract can recover profits that would have resulted from performance, when their amount and the fact that they have been prevented by the breach of the [party] can be proved with reasonable certainty. [Cits.]” Carter v. Greenville Svc. Co., 111 Ga. App. 651, 652 (1) (143 SE2d 1) (1965). “[T]he ability to ‘estimate damages to a reasonable certainty’ is all that is required, [cit.], and mere difficulty in fixing the exact amount will not be an obstacle to the award. [Cits.]” (Emphasis omitted.) Pottinger v. Cross, 170 Ga. App. 647, 648 (1) (317 SE2d 850) (1984).

Tomberlin was able to estimate the loss with reasonable certainty and the jury’s award of $7,500 was authorized by the evidence.

4. Next is whether there was any evidence to support the $7,500 verdict on defendants’ tort claims, specifically any evidence of the value of the personal property allegedly converted.

The evidence was undisputed that at the time Annis left his employment with Annis, Inc., he took company property with him including a marketing strategy manual. There was testimony that the manual represented approximately eight years and several hundred. hours of work by Tomberlin, that the marketing strategy it reflected increased the sales of Annis, Inc., by $300,000, and that there was nothing more valuable to the operation of Annis, Inc., than the strategy manual. This evidence allowed the jury to find that the converted information had a value of $7,500 or more. “ ‘We decline to substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses.’ [Cits.]” Cox v. Cantrell, 181 Ga. App. 722, 725 (7) (353 SE2d 582) (1987).

5. Was there any evidence of value of the alleged converted property and of wilful misconduct, fraud, or conscious indifference to the consequences of Annis’ actions, to support the award of punitive damages?

Contrary to Annis’ contention, there was evidence of conversion of personal property and of its value. There was evidence that this conversion was part and parcel of Annis’ unauthorized competition with his former employer.

“Additional or exemplary damages may be recovered under OCGA § 51-12-5 ‘(i)n a tort action in which there are aggravating circumstances, in either the act or the intention.’ ‘To authorize the imposition of punitive damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.’ [Cit.] While an award of punitive damages is authorized only where a tortfeasor’s conduct is of an aggravated nature, such an award may properly be based upon an aggravated tort involving only property rights. [Cits.]

“Neither direct personal contact nor specific malice between defendant and plaintiff is required to support a claim for additional damages under OCGA § 51-12-5. The malice required for the recovery of exemplary damages need not amount to ill-will, hatred, or vindictiveness of purpose. It is sufficient if the [offender’s] acts were wanton or were done with a reckless disregard for or a conscious indifference to the rights of the [party] to use ... his property. [Cit.] ‘Where, as here, there is some evidence to indicate that [Annis] proceeded in wilful disregard of the rights of [Tomberlin & Shelnutt and Annis, Inc.] . . . this constitutes wilful and tortious misconduct (which could authorize a jury to award) punitive damages. (Cit.)’ [Cit.]” Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984).

6. The eighth enumeration contends the trial court erred in overruling Annis’ motion to strike Tomberlin’s testimony to the effect that Tomberlin could pay the purchase price for appellant’s stock over a period of time, because such testimony varied, contradicted, and conflicted with the terms of the original stock purchase contract and made Annis “seem overreaching in demanding his money in a lump sum.”

Annis made no objection to the testimony when given and raised the propriety of testimony regarding installment payment only after completion of direct examination and the substantial cross-examination of Tomberlin. During this cross-examination, appellant’s own counsel elicited more of the now objected-to testimony.

Unless evidence is admissible when offered and later appears to be inadmissible, which is not the claim or situation here, “[a]n objection to evidence must be raised as soon as the ground for objection becomes apparent and generally this means that the objection must be made at the time the evidence is offered. [Cits.]” Brown v. Techdata Corp., 238 Ga. 622, 628 (234 SE2d 787) (1977). Moreover, “[i]t is well settled that when a party has himself induced what he subsequently assigns as error, he will not be heard to complain of it on appeal. [Cit.]” Price v. Hitchcock, 174 Ga. App. 606, 607 (2) (330 SE2d 807) (1985).

7. Next, Annis contends the trial court erred in failing to charge his 5th request, “that the covenant not to compete set out in this informal agreement is void and unenforceable as a matter of law and should not be considered by you,” because the undisputed facts showed that under White, supra, the covenant not to compete was void as a matter of law.

The covenant was not void as a matter of law. See Division 2. “ ‘ “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” [Cits.]’ [Cits.]” Fowler v. Gorrell, 148 Ga. App. 573, 576 (2) (a) (251 SE2d 819) (1978).

8. Enumerations ten and eleven find error in charging defendants’ requests six and seven dealing with the measure of damages, including nominal damages, for breach of the covenant not to compete. Although conceding that both statements are legally accurate, Annis argues they were improper because the covenant was void as a matter of law.

The covenant was not void. See Divisions 2 and 7. The court did not err on the basis urged.

9. Twelfthly, Annis contends that Tomberlin’s claim of lost profits was purely speculative, so the giving of defendants’ eighth request, which instructed that lost profits were recoverable when definitely ascertainable and directly traceable, was error.

Defendants’ claim of lost profits was supported by the evidence. See Division 3. The instruction does not succumb to the challenge asserted by Annis.

10. Defendants’ requests to charge numbers twelve through sixteen dealt with punitive damages. Annis’ attack (enumerations of error 13-17), that there was no evidence to authorize such an award, is without merit. See Division 5.

11. Defendants’ requests to charge numbers seventeen, eighteen, and nineteen, addressing failure of consideration, survive Annis’ claim (enumerations of error 18-20) that there was no failure of consideration for the purchase price balance for his stock. See Division 1.

Decided March 5, 1990

Rehearing denied March 20, 1990

Jay M. Sawilowsky, for appellant.

Broyles, Dunstan & Dunstan, J. Richard Dunstan, for appellees.

12. Defendants’ request to charge number twenty-one instructed that in mutual departure from a contract, before either party can recover for failure to pursue the letter of the agreement, the other party must be given reasonable notice of the intention to rely on the exact terms of the contract. The twenty-first enumeration of error maintains there was no factual basis to so instruct.

The evidence shows a mutual departure from the payment schedule under the parties’ settlement agreement and no notification by Annis that he was going to rely on the exact terms of the agreement. See statement of facts above.

13. The twenty-second and last enumeration of error points to error in the giving of defendants’ request to charge number twenty. It concerned recovery of the expenses of litigation. Annis argues there was a bona fide controversy and no evidence of bad faith, stubborn litigiousness, or causing defendants unnecessary trouble and expense.

“Under OCGA § 13-6-11 ‘expenses of litigation are generally not allowed as a part of damages, but if the defendant [or defendant in counterclaim] has acted in bad faith, has been stubbornly litigious or has caused the [plaintiff or plaintiff in counterclaim] unnecessary trouble and expenses the jury may allow them .... For the [plaintiff or plaintiff in counterclaim] to recover [he] need only show any one of the three conditions to exist.’ [Cit.] A judgment awarding such attorney fees should be affirmed if there is any evidence to support it, unless it can be said as a matter of law that there was a reasonable defense. [Cit.]” Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746, 747 (1) (365 SE2d 540) (1988).

There was evidence of Annis’ bad faith in failing to carry out the provisions of his contracts with defendants so as to support an award under the statute. See Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984), citing Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106 (115 SE2d 852) (1960). Moreover, it cannot be said as a matter of law that Annis had a reasonable defense to defendants’ separate and independent claims against him. Under these circumstances, the charge was proper.

Judgment affirmed.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A90A0318.
    ADAMS v. COLLINS et al.
    (392 SE2d 549)
   Sognier, Judge.

Evelyn Adams brought suit against the City of Marietta (“the City”) and its Police Chief, Claud Collins, seeking to recover damages for the wrongful death of her son, a Marietta police officer who, while on temporary assignment in the City of Hawkinsville, was shot and killed during a narcotics undercover operation. The trial court granted summary judgment in favor of the City and Collins, and Adams appeals.

The following facts are undisputed. Appellant’s son, Harvey J. Adams, Jr. (hereinafter Adams), was hired by appellee City’s Police Department in September 1985 and was working as a City police officer in August 1986 when his services were lent to the City of Hawkinsville to assist in an undercover drug investigation. The loan was under the auspices of a program known as Locals to Help Locals, which is administered by the Georgia Crime Prevention Council, and whose purpose is to provide agents who are unknown locally to law enforcement agencies conducting short term undercover investigations. The program’s policies and procedures are set forth in writing, and paragraph II (3) of that document provides that “[t]he lending agency in the program would continue to provide the salary of the officer and ... be responsible under Workmen’s Compensation for injuries received by the officer while on loan to the receiving agency.” While Adams was in Hawkinsville, appellee City continued to pay him and provide benefits. Appellee City also reserved the right to recall Adams from Hawkinsville at any time.

When Adams was shot and killed, the City’s workers’ compensation carrier paid Adams’ funeral expenses and, because Adams left no dependents as that term is defined under the Workers’ Compensation Act, OCGA § 34-9-1 et seq., (“the Act”) benefits were paid to the Georgia Subsequent Injury Trust Fund.

1. In several enumerations appellant contends the trial court erred by granting summary judgment to appellees on the basis that this suit was barred by the exclusive remedy provisions of OCGA § 34-9-11. Although appellant raises numerous arguments aimed at showing that the City was not Adams’ “employer” within the meaning of the Act, all of which we have examined carefully, we find that even if any or all of appellant’s arguments are correct, they cannot avail appellant given the City’s contractual undertaking to provide workers’ compensation coverage for Adams while he was working in Hawkinsville. OCGA § 34-9-11 specifically provides that workers’ compensation is the exclusive remedy against “any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits,” and consequently it is the exclusive remedy for appellant in this situation regardless of whether the City was Adams’ “employer” at the time of his death.

Decided March 5, 1990

Rehearing denied March 20, 1990

Michael J. Kramer, for appellant.

Downey, Cleveland, Parker & Williams, Joseph C. Parker, Rodney S. Shockley, Steven A. Westby, Randall H. Davis, Neely & Player, Andrew J. Hamilton, for appellees.

2. Appellant also contends the statute presents no bar to this tort action because Adams’ death was not compensable under the Act. Appellant argues that nothing Adams was doing at the time of his death benefited the City, and thus, Adams’ death did not arise out of or in the course of his employment. We find no merit in this contention. All participants in the Locals to Help Locals Program benefited from being able to borrow unfamiliar undercover agents from other participating jurisdictions when needed. In fact, shortly before the City was asked to provide an officer to Hawkinsville, it had borrowed a police officer from Augusta for the same purpose. Moreover, because of our holding in Division 1, even if Adams’ activities at the time of his death benefited only the City of Hawkinsville, workers’ compensation would be the exclusive remedy in this situation by virtue of the City’s contractual obligation to provide workers’ compensation coverage.

3. Because the trial court correctly granted summary judgment in favor of appellees based on the exclusive remedy provisions of OCGA § 34-9-11, we need not address appellant’s remaining contentions regarding the alternative bases for the grant of summary judgment.

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


author: Cooper, Judge.

text:
    A89A1638.
    BULLOCK et al. v. THE STATE.
    (392 SE2d 534)
   Cooper, Judge.

Appellants appeal their convictions for violations of the Georgia Controlled Substances Act. The controlling issue on appeal is the trial court’s denial of appellants’ motion to suppress the evidence seized during searches of their respective residences.

In the affidavit accompanying the application for a search warrant of appellant Bullock’s residence, the affiant/officer stated that within the past 72 hours he had been contacted by a concerned citizen who stated: that he had personal knowledge about a large quantity of marijuana which was being grown at a mobile home in Bartow County; that within the past 72 hours he had observed marijuana being grown at appellant’s residence with the use of artificial lighting; that numerous florescent lighting devices were being used at the residence; and that appellant had remarked to him about the high amount of appellant’s power bills.

In the affidavit accompanying the application for a search warrant of appellant Mohar’s residence, the affiant/officer stated that within the past 72 hours affiant had been contacted by a concerned citizen who stated that he had observed a quantity of marijuana being kept at a mobile home in Bartow County; that he observed marijuana plants being taken into the residence; that he knew the resident of the mobile home as “Tony.”

At the motion to suppress hearing, the officer testified that he verified the addresses provided by the concerned citizen; that he confirmed through the local power company that an excessive amount of power was being used at appellant Bullock’s residence; that he spoke with the concerned citizen twice by telephone and once in person; and that he did a background check on the concerned citizen and found that the concerned citizen had been truthful with him about his criminal background, his current state of unemployment, and the criminal charges pending against him in other counties. Notwithstanding its finding that the informant was not a concerned citizen, the court denied the motion to suppress based upon the “totality of the circumstances.”

1. Appellants’ first two enumerations of error challenge the legality of the search warrant. “In determining whether to issue a search warrant, ‘the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to insure that the magistrate had a substantial basis for . . . concluding that probable cause existed.’ [Cits.]” (Punctuation omitted.) Futch v. State, 178 Ga. App. 115 (342 SE2d 493) (1986). Although the informant’s veracity and reliability may have been diminished by the finding that he was not a concerned citizen, this does not end the inquiry into the legality of the search warrant. The additional information provided by the informant, including his detailed description of the premises, the lighting equipment, and his personal observation of the contraband, along with the corroboration by the officer of certain information, offset any deficiencies to the informant’s reliability. See Cichetti v. State, 181 Ga. App. 272 (1) (351 SE2d 707) (1986). We find that after deleting all references in the affidavit to the informant being a “concerned citizen,” its remaining content is more than sufficient to establish probable cause. See Kelly v. State, 184 Ga. App. 337 (1) (361 SE2d 659) (1987). Looking at the totality of the circumstances presented to the magistrate, we are satisfied that the magistrate had a substantial basis for concluding that probable cause existed and there was no error in the denial of the motion to suppress.

Decided February 9, 1990

Rehearing denied March 21, 1990

Jefferson L. Davis, Jr., for appellants.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Kimberly L. Schwartz, Assistant District Attorneys, for appellee.

2. Appellants contend that the search of appellant Mohar’s residence was invalid because the officer did not have the search warrant present at all times during the search. The record shows that the officer had the warrant in his possession when he entered onto the property of appellant Mohar. The officer gave his coat, with the warrant in it, to another officer, who left to go to court. Upon realizing that he did not have the warrant on his person, the officer ceased all attempts to enter the mobile home of appellant Mohar until the warrant was returned. Inasmuch as no search occurred while the warrant was not in the officer’s possession, we find appellants’ third enumeration of error to be without merit.

Judgment affirmed.

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


author: Carley, Chief Judge.

text:
    A89A1620.
    RHODES et al. v. INLAND-ROME, INC.
    (392 SE2d 270)
   Carley, Chief Judge.

In 1957, appellant-plaintiffs entered into a 65-year Timber Purchase Contract with appellee-defendant. In 1986, appellants notified appellee that they considered that the contract had been breached. Appellee responded by invoking the arbitration clause of the contract. Appellants then filed suit against appellee, seeking the following relief: the enjoining of cutting and removal of timber; the enjoining of any arbitration; a declaration that the contract was null and void; and, damages for breach of contract. Appellee answered, denying that the contract had been breached and asserting that appellants were required to arbitrate, and it also filed a counterclaim. The trial court granted a permanent injunction, finding that appellee’s breach of the contract gave appellants the right to terminate it and that, under these circumstances, the arbitration clause of the contract did not apply. On appeal, the Supreme Court affirmed the trial court’s grant of a permanent injunction. Georgia Kraft Co. v. Rhodes, 257 Ga. 469 (360 SE2d 595) (1987).

Thereafter, appellants amended their complaint to add additional claims against appellee. Appellee filed an amended answer, wherein it renewed its assertion that appellants were required to arbitrate. After a period of discovery, appellee moved for an order to compel arbitration and stay judicial proceedings, and appellants moved for summary judgment as to appellee’s counterclaims. The trial court granted appellee’s motion and denied appellants’ motion. The trial court certified for immediate review its order granting appellee’s motion. Pursuant to Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488 (299 SE2d 538) (1983), we granted appellants’ application for an interlocutory appeal from the trial court’s order.

1. The motion to transfer this appeal to the Supreme Court is denied.

2. Appellee asserts that arbitration is mandated by the Federal Arbitration Act because the timber purchase contract involves interstate commerce. In support of this assertion, appellee cites evidence showing that the timber, once it has been cut, is removed for processing in certain Georgia facilities and is subsequently shipped as lumber products to points throughout the country.

Clearly, the contract between appellee and appellants does not itself relate to the interstate shipment of any product. To the contrary, it relates solely to the sale of standing timber located exclusively in Georgia. Compare Brockett Pointe Shopping Center v. Dev. Contractors, 193 Ga. App. 854 (389 SE2d 374) (1989). Appellee’s evidence shows merely its own unilateral involvement in interstate commerce occurring only after its performance under the contract with appellants has long since been completed. Under appellee’s expansive construction of the scope of the Federal Arbitration Act, there would scarcely ever be occasion to apply state arbitration principles in a case involving a Georgia timber purchase contract since any timber that is sold and cut in Georgia can ultimately find its way, in some form or another, into another state. The Federal Arbitration Act obviously has not, as a matter of law, preempted application of state arbitration principles in each and every Georgia timber purchase contract case. See generally Pope v. Continental &c. Woodlands, 169 Ga. App. 874 (315 SE2d 307) (1984). There being no evidence to authorize a finding of the applicability of the Federal Arbitration Act in the instant case, the trial court erred in finding that arbitration was mandated thereunder.

3. The Supreme Court has previously held that the clause in this contract would not be enforceable as a binding arbitration agreement under applicable state arbitration principles. “ . . . Georgia law has historically authorized agreements to binding arbitration of existing disputes. [Cit.] However, it appears that the contractual imposition of the duty to arbitrate as an exclusive and binding remedy for disputes which arise in the future is limited to construction contracts. [Cit.]” Georgia Kraft Co. v. Rhodes, supra at 472 (2). Since the clause providing for arbitration of future disputes in this non-construction contract would not otherwise be enforceable as an exclusive and binding arbitration provision, the only issue to be resolved is “whether the money claims are subject to arbitration as a prerequisite to suit. . . .” (Emphasis supplied.) Georgia Kraft Co. v. Rhodes, supra at 472 (2).

“[U]nder state law an arbitration provision that limits its applicability to questions such as the amount of loss or damage and requires arbitration as a condition precedent to a right of action upon the contract itself will be enforced. [Cits.]” CCC Bldrs. v. City Council of Augusta, 237 Ga. 589, 591 (229 SE2d 349) (1976). Even assuming that the instant arbitration clause is otherwise properly limited in its scope, it nevertheless fails to provide that arbitration shall only constitute a condition precedent to initiation of suit. “In an early case the Supreme Court held: ‘It has often been held, that an agreement to refer matters in dispute, to arbitration, is not sufficient to oust the Courts of Law or Equity of their jurisdiction.’ [Cit.] Unless the agreement provides that the parties shall arbitrate their differences as a condition precedent to a right to sue, a party may resort to the courts to settle a dispute. [Cits.]” Millican Elec. Co. v. Fisher, 102 Ga. App. 309, 311 (3) (116 SE2d 311) (1960). It follows that the instant arbitration clause is not enforceable as a condition precedent to appellants’ initiation of suit on the contract, and that the trial court erred in granting appellee’s motion to compel arbitration and stay the judicial proceedings.

4. Appellants enumerate as error the denial of their motion for summary judgment on appellee’s counterclaims. Appellants’ contention is that the decision of the Supreme Court in Georgia Kraft Co. v. Rhodes, supra, establishes their entitlement to judgment as a matter of law on appellee’s counterclaims.

There is considerable doubt whether the Supreme Court’s decision establishes the law of the case as to any issue other than the validity of the grant of a permanent injunction on the evidence then before the trial court and whether it has any bearing whatsoever on the issues scheduled for trial before a jury. However, even accepting appellants’ broad interpretation of the principle of the law of the case, their motion for summary judgment was nevertheless properly denied. At most, the Supreme Court’s decision could be said to have established only appellants’ right to terminate the contract based upon appellee’s breach thereof. Appellee’s counterclaims are in no way inconsistent with appellants’ termination of the contract. To the contrary, appellee’s counterclaims are predicated upon appellants’ termination of the contract and seek a recovery for prepaid timber which was unharvested prior to that termination. “ [Recoupment and set-off lie for overpayments. . . .” Wiseberg v. Novelty Hat Mfg. Co., 3 Ga. App. 362 (2) (59 SE 1112) (1908). The trial court correctly denied summary judgment in favor of appellants as to appellee’s counterclaims.

Decided March 5, 1990

Rehearing denied March 22, 1990

Burnside, Wall & Daniel, Thomas R. Burnside, Jr., James B. Wall, for appellants.

E. R. Lambert, Jackson B. Harris, Kilpatrick & Cody, Stephen E. Hudson, A. Stephens Clay, Thomas C. Shelton, for appellee.

5. The grant of appellee’s motion to compel arbitration and stay judicial proceedings is reversed. The denial of appellants’ motion for summary judgment is affirmed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1636.
    COLLUM v. THE STATE.
    (392 SE2d 301)
   Carley, Chief Judge.

Appellant was tried before a jury on an indictment charging him with the commission of four counts of first degree vehicular homicide through his reckless driving. The jury found appellant guilty of all four counts. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. At the close of the evidence, appellant moved to strike certain language from the indictment. The contention was that the language constituted prejudicial surplusage. The denial of this motion to strike is enumerated as error.

The motion was untimely. “If [appellant] felt that [the] allegations were prejudicial, it was incumbent upon him to move to have them stricken from the indictment before the trial commenced. His failure to do so waived any objection he may have had to the form of the indictment. [Cits.]” Henderson v. State, 227 Ga. 68, 79 (4) (179 SE2d 76) (1970). Moreover, the motion was made orally rather than in writing. “It is essential that an exception to the form of an indictment or accusation be made in writing by demurrer or motion to quash, on or before pleading to the merits. [Cit.]” Sosebee v. State, 169 Ga. App. 370, 371-372 (5) (312 SE2d 853) (1983). The trial court did not err in denying the untimely oral motion.

2. At the time of appellant’s arrest, a test of his blood showed 0.04 percent alcohol. This evidence would be admissible as a circumstance of appellant’s arrest and it was admitted at appellant’s trial without objection. State v. Luke, 232 Ga. 815 (209 SE2d 165) (1974). Appellant did, however, request that the jury be instructed that it “would not be authorized to conclude or find from the evidence in this case that [he] was operating a motor vehicle under the influence of intoxicants.” The trial court’s refusal to give this instruction is enumerated as error.

Appellant urges that the giving of this requested charge was mandated by OCGA § 40-6-392 (b) (1), which provides in material part, that, “[u]pon the trial of any . . . criminal action . . . arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person’s blood at the time alleged, as shown by chemical analysis of the person’s blood, . . . shall give rise to the following presumptions: If there was at that time an alcohol concentration of 0.05 grams or less, it shall be presumed that the person was not under the influence of alcohol, as prohibited by paragraphs (1), (2), arid (3) of subsection (a) of Code Section 40-6-391. . . .” According to appellant, this statute creates a conclusive presumption that one whose blood-alcohol level is 0.05 or less, such as himself, is not guilty of driving under the influence.

Contrary to appellant’s assertions, OCGA § 40-6-392 has no applicability whatsoever to the instant case. As noted, the statute applies in criminal actions “arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391. . . .” this case is clearly not such a criminal proceeding. Appellant was not on trial for any offense wherein driving under the influence was alleged as an element. He was on trial for vehicular homicide through his reckless driving. Evidence of his blood-alcohol level was not admitted to show that he was driving under the influence. That evidence was admitted as a circumstance of his arrest for vehicular homicide through reckless driving. State v. Luke, supra.

Moreover, even assuming that OCGA § 40-6-392 were applicable in the instant case, subsection (b) (1) of that statute nevertheless does not create the irrebuttable presumption that appellant urges. If the legislature had intended that one having a blood-alcohol level of 0.05 or less is conclusively presumed not to be guilty of driving under the influence, it would not have created a presumption to be applied in criminal actions “arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391. . . .” Instead, the legislature would have provided that the act of driving while having a blood-alcohol level of 0.05 or less shall not be a violation of OCGA § 40-6-391. See OCGA § 40-6-392 (b) (4), which creates no presumption but merely proscribes the act of driving while having a blood-alcohol level of 0.12 or more. It is clear that OCGA § 40-6-392 (b) (1) creates a rebuttable negative presumption in criminal actions “arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391. . . .” In such cases, there is a presumption that the defendant was not under the influence of alcohol, which negative presumption must be rebutted by the State’s production of such other probative evidence as will authorize a finding that the defendant was nevertheless a less safe driver as the result of his alcohol consumption.

Decided March 12, 1990

Rehearing denied March 22, 1990

Cook & Palmour, Bobby Lee Cook, David N. Vaughan, Jr., Velma Tilley, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

It follows that appellant’s reliance upon OCGA § 40-6-392 as authority for the giving of the requested charge is misplaced and that the trial court correctly refused to give that charge.

3. Error is enumerated in connection with the trial court’s charge on appellant’s violation of OCGA § 40-6-48 as the predicate for finding him guilty of the lesser included offense of vehicular homicide in the second degree.

The record shows that the trial court’s charge did contain instructions that vehicular homicide in the second degree could be considered as a lesser included offense, that vehicular homicide in the second degree would consist of appellant’s causing the death of another through his violation of a Uniform Rule of the Road other than his alleged act of reckless driving, and that a violation of OCGA § 40-6-48 was such “another” traffic violation. Although it is possible, with the benefit of hindsight, to conclude that the trial court’s charge in this connection was somewhat disjointed and could have been more clearly stated, appellant did not himself request any charge on a violation of OCGA § 40-6-48 as the predicate for finding him guilty of the lesser included offense of vehicular homicide in the second degree. The charge that was given by the trial court was, in the absence of appellant’s offer of a more concise alternative, sufficient and there was no error.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1719.
    CONSOLIDATED EQUITIES CORPORATION et al. v. BIRD et al.
    (392 SE2d 276)
   Carley, Chief Judge.

Appellee-plaintiffs are two of the five individuals who, as limited partners, joined with appellant-defendant Consolidated Equities Corporation, as the general partner, in forming the Master Host Inn-East Limited Partnership (Partnership). The relevant facts concerning the formation of the Partnership in 1976 are as follows: Appellant conveyed to the limited partners an undivided one-half interest in the motel and the limited partners then conveyed their interest in the motel to the Partnership. In consideration for appellant’s conveyance to them, the limited partners paid appellant $75,000 in cash and also gave promissory notes payable to appellant. These notes, which specifically exculpated the makers from personal liability, were in the face amount of $225,000 and provided for a 5 percent interest rate. The notes also provided that the debts evidenced thereby would be payable from certain Partnership cash flow and residual distributions which were to be made to the limited partners and that any unpaid principal would be due on March 2, 1983. The notes were also expressly made subject to Article V (a) of the Partnership agreement. Under this provision of the Partnership agreement, if any principal remained unpaid as of March 2, 1983, then the limited partners’ interest in the Partnership and their percentage of partnership distributions would be automatically reduced by the fraction of the amount of the principal which then remained unpaid and “[a]ny reduction in the percentage of partnership interests or percentage of distribution of any limited partner shall be offset by an increase in the percentage of partnership interests or percentage of distribution of the general partner. Unless earlier satisfied, all cash flow notes shall on March 2, 1983, be deemed satisfied by the operation of this Paragraph 5 (a) 1.” (Emphasis supplied.) As of March 2, 1983, the Partnership payments to the limited partners had not been sufficient to pay off any of the $225,000 principal whatsoever. However, the Partnership did thereafter continue to make payments to the limited partners and these payments were applied against the notes. In 1986, after appellant notified the limited partners of a pending sale of the motel, it discovered that Article V (a) of the Partnership agreement had been overlooked. Appellant then informed the limited partners that, pursuant to the provisions of Article V (a), their interests in the Partnership had been automatically reduced to zero when, on March 2, 1983, the entirety of the principal remained unpaid. The Partnership property was sold, and the limited partners did not receive any share of profits from the sale which they would otherwise have been entitled to receive had their Partnership interests not been reduced to zero pursuant to appellant’s invocation of Article V (a) of the agreement.

Appellees brought this suit, seeking to recover a share of the sale proceeds. The trial court granted appellees’ motion for partial summary judgment and denied appellants’ cross-motion for summary judgment, finding that Article V (a) “is a security agreement to which the Georgia Commercial Code applies and is void as being in violation of Article 9 thereof.” It is from this order that appellants bring this appeal.

1. With certain exceptions not applicable here, Article 9 of the Uniform Commercial Code applies to “any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, or accounts. . . .” OCGA § 11-9-102 (1) (a). See also OCGA § 11-9-105 (1). Appellees urge that Article 9 applies to their transaction with appellant because it was intended that their Partnership interests serve as security for the payment of the notes given by them as part payment for the motel. They further urge that, insofar as Article V (a) of the Partnership agreement purports to evidence their pre-default waiver of reasonable notice from appellee regarding the sale, other intended disposition, or proposed retention of their Partnership interests, that provision is void as violative of OCGA §§ 11-9-504 (3) and 11-9-505 (2).

“ ‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation.” (Emphasis supplied.) OCGA § 11-1-201 (37). Article V (a) of the Partnership agreement in no way evidences an attempt to secure appellees’ payment of the notes. To the contrary, it purports merely to provide for a form of alternative payment should any principal remain unpaid as of March 2, 1983. Under the provisions of Article V (a), there could be no “default” on payment of the notes. In the event that principal remained unpaid on March 2, 1983, the automatic transfer of a proportional share of the limited partners’ Partnership interests effectuated an immediate satisfaction of the notes. Parties to a contract are free to agree to alternate methods of payment. See Smith v. Pope, 100 Ga. App. 369, 370 (5) (111 SE2d 155) (1959).

An agreement for an alternative form of payment does not allow for an indirect evasion by the creditor of the debtor protection provisions of Article 9. Since it is agreed that the alternate payment will serve to satisfy the debt in full, the debtor will not be liable for any deficiency and it is the creditor who will bear the commercial risk that he will not be made whole by the alternative form of payment. Thus, the debtor protection provisions of Article 9 are not indirectly evaded. They are simply inapplicable and irrelevant because the creditor forgoes his status and rights as a secured party and the debtor, in turn, forgoes his entitlement to invoke the provisions of Article 9 intended to protect a defaulting debtor. The alternative form of payment in the present case did ultimately redound to appellant’s financial benefit because the Partnership property was sold at a profit. If the Partnership had failed, however, it is appellees who would have benefited from the alternative form of payment. Appellant would then be holding 100 percent of the failed Partnership with no right of recourse against appellees because the indebtednesses evidenced by the notes would have been satisfied. Under such circumstances, it is appellees who would undoubtedly be urging that Article V (a) is a provision authorizing an alternate form of payment of their indebtedness rather than mere security therefore. Article V (a) cannot be construed to mean one thing if the Partnership proved successful and another if it had failed.

It follows that Article V (a) is a provision authorizing the absolute transfer of appellees’ Partnership rights as an alternative form of payment of their debts, rather than one which creates a security interest in their Partnership rights as collateral for their debts. See 1 Anderson, Uniform Commercial Code § 1-201:211, p. 294 (3d ed. 1981). “The [automatic] transfer was in payment of . . . that debt. From the moment of [transfer, appellees] had neither title to nor interest in the [Partnership beyond the amount of their initial cash contribution. Appellees] could not reclaim [such interest] by payment of the extinguished indebtedness. Conversely, if a sale . . . brought less than the [amount] of the debt extinguished by the transfer, [appellant] could not look to [appellees] for the balance. The [transfer] terminated [appellees’] interest in the [Partnership] and [appellant’s] interest in . . . the debt[,] which it had agreed to forbear from enforcing. Thus, it is clear that [appellant’s] interest in [appellees’ Partnership interests] was not to secure ‘payment or performance of an obligation.’ ” Art-Camera-Pix v. Cinecom Corp., 315 NYS2d 991, 993 (3) (1970).

2. Appellees urge that genuine issues of material fact remain as to two additional theories of recovery.

Appellees first contend that the evidence would authorize a finding that there was a mutual departure from the terms of the contract. The evidence does show that, after March 2, 1983, Partnership distributions continued to be paid to appellees and to be applied against the notes. However, ostensible application of those Partnership distributions as payments on the debts can no more serve to nullify a previous automatic transfer of Partnership interests as full payment of the debts than acceptance of later installment payments can serve to nullify a previous acceleration of a debt. See Adamson v. Trust Co. Bank, 155 Ga. App. 646, 648 (271 SE2d 899) (1980). Moreover, it is undisputed that any failure to have invoked Article V (a) when it took effect on March 2, 1983, was the result of oversight. “ ‘ “While a distinct stipulation in a contract may be waived by the conduct of the parties, it must appear that it was the intention of the parties to treat such stipulations as no longer binding. The mere fact that one party so intended would not bring about this result. It must appear that it was the mutual intention; that is, the circumstances must be such as, in law, to make practically a new agreement as to the stipulations in the original contract.”’ [Cit.]” Prudential Ins. Co. of America v. Nessmith, 174 Ga. App. 39 (329 SE2d 249) (1985). See also Eaves v. J. C. Bradford & Co., 173 Ga. App. 470 (326 SE2d 830) (1985).

Decided March 6, 1990

Rehearing denied March 22, 1990

Gambrell, Clarke, Anderson & Stolz, David H. Gambrell, for appellants.

Troutman, Sanders, Lockerman & Ashmore, William N. Withrow, Jr., Roger S. Reigner, Jr., for appellees.

It is also urged that, in violation of OCGA § 23-2-59, appellant breached its fiduciary duty by acquiring rights in the Partnership which were antagonistic to appellees’ rights therein. However, appellees’ Partnership rights were actually acquired by appellant with the agreement of all partners. As a result of the terms of an agreement reached in 1976 at the very outset of the formation of the Partnership and in which all partners concurred, appellees’ Partnership interests were automatically transferred to appellant seven years later. OCGA § 23-2-59, when construed in conjunction with OCGA § 14-8-21, applies only to partnership rights acquired by one partner without the consent of the other partners.

3. No genuine issue of material fact remains as to appellant’s liability to appellees under any theory of recovery. It follows that the trial court erred in granting appellees’ motion for partial summary judgment and in denying appellants’ cross-motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A89A1766.
    LLOYD v. TYSON.
    (392 SE2d 551)
   Pope, Judge.

Appellee Tyson sued appellant Lloyd for injuries received in an automobile accident. The jury returned a verdict in favor of Tyson in the amount of $103,591.69, of which $97,700 was for pain and suffering. Lloyd appeals and enumerates three errors.

1. Lloyd argues that the trial court erred in finding that Tyson exercised due diligence in perfecting service on Lloyd. The accident occurred on May 2, 1985. Suit was filed on October 25, 1985. However, service was not perfected on Lloyd until January 1988. The record shows that at the time of filing, Lloyd had left Sumter County leaving no forwarding address. Tyson’s attorney, who represented Lloyd’s mother on another matter, asked the mother if she knew Lloyd’s whereabouts and was told that Lloyd was somewhere in North Carolina. The attorney checked regularly approximately every two months with the mother to inquire if she knew of Lloyd’s address. He also asked the mother to notify him if Lloyd returned to Sumter County. In November 1987, the attorney got an address in Charleston, South Carolina. He attempted service there, but was unsuccessful because Lloyd had moved. The attorney learned that Lloyd was scheduled to be in Sumter County at Christmas 1987 and he personally attempted to serve her but missed her. However, he did get a new address and service was perfected in January 1988. After hearing all of the evidence, the trial court found that Tyson had exercised due diligence in effecting service.

“Whether defendant’s motion to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether the plaintiff has shown that he acted in a reasonable and diligent manner in attempting to assure that a proper service was made as quickly as possible. Plaintiff must carry the burden to show diligent service. Further, the trial court’s exercise of discretion in these matters will not be overturned on appeal, unless it has been actually abused and cannot be supported as a matter of law.” (Citations and punctuation omitted.) Walker v. Hoover, 191 Ga. App. 859, 860 (383 SE2d 208) (1989). See Siler v. Johns, 173 Ga. App. 692 (327 SE2d 810) (1985). We find no abuse of the trial court’s discretion in finding due diligence based upon the facts in the record.

2. Lloyd argues that the trial court erred in allowing Tyson to testify over objection regarding the reason he had not returned to see the doctor for treatment after 1985. Lloyd argues that Tyson’s answer that the doctors “told me that . . . this is all that they could do, [t] his was it, and I was just gonna have to just learn to live with it, live with the pain,” was hearsay expert testimony regarding the permanent nature of his injury. We find no error. The trial court permitted the testimony pursuant to OCGA § 24-3-2. Because Tyson’s conduct in ceasing to seek treatment for his injuries was relevant to an issue being tried, it was admissible as original evidence pursuant to that code section. Athena Prods. v. Geographics, 168 Ga. App. 828 (2) (310 SE2d 547) (1983); see also Highsmith v. Fillingim, 171 Ga. App. 548, 549 (320 SE2d 391) (1984).

Decided March 6, 1990

Rehearing denied March 22, 1990

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, for appellant.

Kenneth M. Henson, Jr., Fuller & McFarland, Thomas R. McFarland, Millard D. Fuller, for appellee.

3. Lloyd argues that the trial court erred in refusing to give her request to charge on mitigation of damages. Specifically, she argues that Tyson’s failure to get medical treatment the evening of the accident and his attempt to engage in activities which exacerbated the symptoms of his injury and his failure to seek treatment after 1985 is evidence that would support a charge on mitigation of damages. We do not agree.

“The argument . . . that the charge is applicable and authorized in any torts case is not persuasive. [Appellant’s] counsel has failed to cite any evidence which would have authorized a finding that [appellee] had failed to mitigate damages or that in fact it was possible to do so.” Jernigan v. Carmichael, 145 Ga. App. 560, 561 (3) (244 SE2d 92) (1978). Lloyd fails to point out any evidence in the record which would support her contention that Tyson’s failure to do or Tyson’s doing of the things complained of in any way would have mitigated his damages. The refusal to give the charge was not error. Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (6) (359 SE2d 351) (1987).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1951.
    POOL MARKETS SOUTH, INC. v. COGGINS.
    (392 SE2d 552)
   Cooper, Judge.

In June 1986, appellees contracted with appellant to construct a swimming pool at their residence within thirty working days. After a series of delays and disagreements, the appellant ceased work on the pool in March 1987 and appellees filed this breach of contract suit in May 1987. A jury awarded appellees $9,961 in damages and $3,300 for attorney fees and judgment was entered thereon. This appeal followed.

Appellant’s four enumerations of error all take issue with the damages awarded. The evidence showed that the contract price for construction of the pool and concrete decking was $13,475, and a separate contract for $3,050 represented the cost of a privacy fence and retaining wall. When appellant ceased work, appellees had paid approximately $12,800 of the pool contract, plus $240 for an excavator’s trip charge. They subsequently had another contractor complete the pool for $4,700; paid an additional $1,511 to complete the decking originally contracted for; and paid approximately $3,100 for the completion of the fence and retaining wall. The pool was completed in March 1988.

1. In the first enumeration, appellant contends that its motion for directed verdict should have been granted due to evidence of an improper measure of damages. In Georgia, “[w]here a building contract is breached or abandoned by the contractor without fault on the part of the other party, the measure of damages is ordinarily the reasonable cost of completion, that is, the difference between the contract price and the reasonable and necessary cost to the owner to have the [work done] in accordance with the terms of the original contract. [Cit.]” (Punctuation omitted.) Palmer v. Howse, 133 Ga. App. 619 (1) (212 SE2d 2) (1974). Also, a more general rule of damages is that stated in the charge given by the trial court: “[D]amages are given as compensation for injuries sustained. As a result of a breach of a contract, damages recoverable . . . are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated when the contracts were made as a probable result of such breach.” See OCGA § 13-6-2. At trial, appellee wife stated that she sought a return of a portion of the contract price in addition to the costs spent to complete the project. While this is not a recoverable element of damages, this testimony by a lay witness was not sufficient to take the issue of damages from the jury, especially when there was evidence which would allow a proper calculation of damages. Although we do feel that the trial court’s charge to the jury should have included the specific method to calculate damages, it is not evident to us that the testimony at trial influenced the jury to calculate damages pursuant to an improper standard. As opposed to the award considered in Ideal Pool v. Hipp, 187 Ga. App. 273 (370 SE2d 32) (1988), the verdict in the case sub judice was not in excess of the contract price.

2. Consequently, we also find appellant’s fourth enumeration that the verdict is so excessive as to evidence a gross mistake to be without merit. Pursuant to OCGA § 13-6-4, a jury’s award should stand absent an inference of undue bias or gross mistake. Although we do not know how the jury calculated the award, it is not so excessive as to warrant interference under the statute. Ayers Enterprises v. Adams, 131 Ga. App. 12 (205 SE2d 16) (1974). The award is less than the contract price and is not extremely in excess of the actual costs spent by appellees to complete the pool.

3. Appellant’s second enumeration contests the denial of a directed verdict on the claim of damages. Contrary to appellant’s assertion, the testimony on the claim of damages at the trial revealed that “proof of damages . . . was established with reasonable certainty and that the matter was properly submitted to the jury.” Kuhlke Constr. v. Mobley, 159 Ga. App. 777 (3) (285 SE2d 236) (1981). There was testimony by the appellee wife as to how she computed the extra money paid to complete that portion of the decking which was not a part of appellees’ contract with appellant. The jury was free to evaluate the credibility of this testimony, and “we do not view this testimony as so uncertain as to warrant the direction of a verdict .... Reasonable certainty is all that is required.” Crankshaw v. Stanley Homes, 131 Ga. App. 840 (2) (207 SE2d 241) (1974).

Decided March 6, 1990

Rehearing denied March 22, 1990.

David L. Miller, Joseph Pelt III, for appellant.

Michael E. McLaughlin, for appellees.

4. Similarly, we disagree with appellant’s third enumeration based on the insufficiency of the evidence to support the jury’s award. The appellees presented reasonably certain evidence on their damages from the breach and the cost to complete. As stated in Division 2, the award is not so excessive as to require a new trial.

Judgment affirmed.

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


text:
    A89A2079.
    MORGAN et al. v. THE STATE.
    (392 SE2d 715)
   Cooper, Judge.

William James Morgan and Alvin Cecil Mobley were convicted of the offense of cruelty to animals (OCGA § 16-12-4) and commercial gambling (OCGA § 16-12-22). They appeal, contending that the trial court erred in not granting their motions for directed verdict of acquittal or for new trial.

Viewing the evidence with every inference and presumption in favor of the verdict, Thomas v. State, 173 Ga. App. 810 (2) (328 SE2d 422) (1985), it shows that on March 12, 1988, officers and agents of the Brantley County Sheriff’s Department, the Georgia Department of Human Resources and the Georgia State Patrol raided a cockfight being held on Morgan’s property. An undercover GBI agent, F. L. Gillis, had been at the arena for over an hour before the raid occurred and had paid Mobley, the gateman, to gain entrance. While inside the barn where the fighting pit was located, Gillis observed several live gamecock fights as well as persons engaged in open gambling and placing of bets. When the rest of the law enforcement officers arrived, the persons attending and participating in the cockfights fled into the surrounding woods. The officers gave chase and captured over 150 persons all of whom were arrested and charged with cruelty to animals for their participation in the illegal cockfights. Appellants were also charged with commercial gambling for their active roles in staging and/or profiting from the event. The gamecocks and assorted cockfighting equipment, such as spurs and sharpening tools, were seized.

Seventeen of the defendants, including appellants, demanded jury trials, and were tried together. Two defendants won directed verdicts of acquittal because they were outside the gate to the arena when the raid began. The remaining defendants were convicted of cruelty to animals and appellants were additionally convicted of the commercial gambling charges. Only appellants have appealed their convictions and sentences.

Appellants contend that evidence of their presence at the scene, flight from the law enforcement officers, Morgan’s purported ownership of the gaming area and Mobley’s collection of money at the gate was insufficient to show that they had an active role or a monetary motive in the gaming enterprise so as to support the guilty verdict on either count. See Brackett v. State, 142 Ga. App. 601 (2) (236 SE2d 689) (1977). We do not agree. Not only was Mobley identified as the person who demanded a ten dollar admission fee from everyone who entered the fighting arena, when captured he still had $256 in cash in his pants pocket. This made him a direct participant in the criminal enterprise, and thus chargeable with both crimes under OCGA § 16-2-20. There was further evidence that Morgan had attempted to transfer title to his land to the Cherokee Confederacy and had inquired as to whether or not cockfighting was illegal on Cherokee Nation territory. The transfer was not accepted and the invalid deed, an aerial photograph of the property, and testimony of witnesses describing its location and giving directions to it were introduced in evidence. “ ‘ “Where there is a conflict in the testimony of witnesses,, their credibility is for the jury, and not this court to decide.” ’ [Cits.]” Harris v. State, 188 Ga. App. 795 (374 SE2d 565) (1988). “On appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant. [Cit.]” (Punctuation omitted.) Ross v. State, 192 Ga. App. 65, 66 (383 SE2d 627) (1989). The fight was staged on Morgan’s property on which the arena and bleachers were erected, Mobley was collecting the admission fees, and gamecocks with spurs and other fighting equipment were found on the premises. Thus, the evidence was sufficient to show that appellants were involved in the operation of organizing a cockfight, which is proscribed conduct under OCGA § 16-12-4. See Hargrove v. State, 253 Ga. 450 (4) (321 SE2d 104) (1984). Likewise, because there was eyewitness testimony of the placing of bets, and of odds being made and given and accepted on the bets, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellants were guilty of both cruelty to animals and commercial gambling. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 28, 1990

Rehearing denied March 22, 1990

Donald A. Starling, for appellants.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A89A2081.
    McCLURE et al. v. EQUITABLE REAL ESTATE INVESTMENT MANAGEMENT, INC.
    (392 SE2d 272)
   Pope, Judge.

Appellants William Dennis McClure and Jessie Alice McClure appeal from the grant of summary judgment to appellee Equitable Real Estate Investment Management, Inc. (Equitable) on their claims for negligence and loss of consortium, respectively. McClure was injured when he received an electrical shock as he installed a new heating, ventilation and air-conditioning (HVAC) unit in a building owned by Equitable. Held:

We affirm. The record on motion for summary judgment established that Equitable contracted with Natkin Service Company to be the general contractor to remove the old HVAC unit at its building and to install a new one. Natkin, in turn, subcontracted with George W. Rice Sheet Metal Company to install the duct work. Rice employed appellant McClure. A provision of the contract required Nat-kin to “take all reasonable precautions to protect persons and property.” Shortly before beginning work, George W. Rice went with Charles Booker, who worked for Natkin, to inspect the job site. While there, Rice removed some ceiling tile and as he took a measurement, he felt an electrical shock. He saw a junction box without a cover and uninsulated wires sticking out of the box. He informed Charles Booker of this but told no one else. Equitable denied any knowledge of any electrical hazard. The record also contains some speculation that the electrical shock to McClure resulted from a drill he was using.

Decided March 5, 1990

Rehearing denied March 22, 1990

Kyle Yancey, for appellants.

Joseph A. Roseborough, for appellee.

Although property owners owe a duty to their own invitees, they owe no such duty to employees of or others invited upon the premises by an independent contractor hired to do work on the premises if two conditions exist: 1) the owner has relinquished possession of the premises, in whole or in part and 2) the owner does not have the right and does not actually control or direct the work done. McDade v. West, 80 Ga. App. 481, 487 (56 SE2d 299) (1949). Accord Modlin v. Swift Textiles, 180 Ga. App. 726 (1) (350 SE2d 273) (1986). The evidence in the record shows that Equitable had relinquished that portion of the premises involved in the installation of the HVAC unit to the independent contractor, Natkin, and that Natkin, by contract, had assumed the duty of keeping the premises safe for the installation. Further, the record shows that McClure’s employer, Rice, and Natkin, through its agent, Booker, had actual knowledge of an electrical hazard but took no action to warn McClure or others. In contrast, there is no evidence in the record that Equitable had any knowledge of the electrical hazard.

“While the moving party on a motion for summary judgment has the burden of establishing the non-existence of any material fact and all doubts are resolved in favor of the party opposing the motion, the burden of proof can be shifted . . . when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time or suffer a judgment against him.” (Citations and punctuation omitted.) Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (380 SE2d 61) (1989).

McClure produced no evidence to support the necessary predicate of a negligence action, that a duty was owed to him by the party sued, Equitable. Having determined that Equitable owed no duty to McClure, we need not reach the issue of whether there was evidence to show proximate cause between the electrical hazard encountered by Rice at the junction box and McClure’s injury days later.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2100.
    MIZE v. CLEVELAND EXPRESS et al.
    (392 SE2d 275)
    Decided March 5, 1990
    Rehearing denied March 22, 1990

      Robert P. Wilson, for appellant.

      John P. Hines, Michael D. Usry, for appellees.
   Cooper, Judge.

Appellant, who was receiving workers’ compensation benefits for a temporary total disability, was adjudicated guilty of a felony and received a twenty-three year prison sentence. After appellant’s incarceration, the appellee insurance company’s request to suspend payment of benefits was denied by the administrative law judge on the basis that no offer of suitable employment was made by the employer to the employee. The denial was affirmed by the Workers’ Compensation Board and then reversed by the superior court.

We agree with the superior court that the case of Scott Housing Systems v. Howard, 256 Ga. 675 (353 SE2d 2) (1987), is controlling. The Supreme Court therein espoused the general principle that “[i]n workers’ compensation cases where the employee is charged with a crime while receiving benefits, . . . the proper time for termination of benefits is the date of adjudication of guilt.” Id. That decision was not limited, as argued by appellant, to the narrower issue in Howard v. Scott Housing Systems, 180 Ga. App. 690 (350 SE2d 27) (1986), and has since been more broadly applied. See Sargent v. Brown, 186 Ga. App. 890 (368 SE2d 826) (1988). Since the appellant in the instant case was receiving his benefits at the time he was charged with a crime, his benefits should terminate upon the date that guilt was positively adjudicated. Any offer of employment that may have been tendered to appellant would have been ineffectual since appellant could not meaningfully accept.

Judgment affirmed.

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


text:
    A90A0377.
    JOHNSON v. THE STATE.
    (392 SE2d 280)
   Sognier, Judge.

In a bench trial, Tommy Ray Johnson was convicted of armed robbery, robbery by intimidation, fleeing and eluding, improper lane usage, and driving without insurance. He appeals from the judgment entered on the court’s verdict.

1. In two enumerations of error appellant questions the sufficiency of the evidence to support his convictions for armed robbery and robbery by intimidation, contending that as to the armed robbery charge there was no weapon and no reasonable apprehension of same, and that as to the latter conviction there was no evidence of intimidation.

(a) The evidence adduced at trial established that on the night of October 23, 1988, Andrea Perry was working as a cashier at a service station and food mart in Savannah when she was approached by a man who told her he had no money and no place to go for the night. She talked with him briefly and suggested that he call a local relief organization for assistance. In response, the man said, “to keep me from shooting you, why don’t you open the register and give me the money?” whereupon she gave him the cash in the register. Perry testified that while she did not see a weapon, given his statement and the way he kept one hand, concealed, she assumed he had a gun. She identified appellant as the perpetrator in a photographic lineup and again at trial.

OCGA § 16-8-41 (a) provides that “[a] person commits the offeree of armed robbery when, with intent to commit theft, he takes property of another ... by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” The statute includes concealed offensive weapons provided there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred. Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). The question is whether the defendant’s acts created a “reasonable apprehension on the part of the victim that an offensive weapon [was] being used,” regardless of whether the victim actually saw the weapon. Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30) (1989). In the case at bar, the evidence authorized a finding that appellant robbed Perry using “ ‘a replica, article, or device having the appearance of (an offensive) weapon,’ regardless of what it was, [so] as to create a reasonable apprehension on the part of [Perry] that it was an offensive weapon.” Id.

(b) With regard to the robbery by intimidation charge, the evidence showed that Debra Smith was employed as a cashier at the same establishment on the night of November 8, 1988, when she observed someone drive slowly by the station twice and disappear around the corner. Smith testified that a man she identified as appellant then appeared at the outside window of the store and requested change for a dollar, and that when she opened the cash register he told her to give him all the money in the drawer. She stated that she was not certain that he actually had a gun, but that he had his hand in his jacket pocket and pointed at her as though he did have a weapon concealed in the pocket so that she thought he had one, and that she was “scared.” Appellant was apprehended a short time later, and a search of his person revealed no offensive weapon.

A conviction for robbery by intimidation, OCGA § 16-8-40 (a) (2), which is a lesser included offense of armed robbery, OCGA § 16-8-41 (a), requires proof that the theft was “ ‘attended with such circumstances of terror — such threatening by word or gesture, as in common experience, are likely to create an apprehension of danger, and induce a [person] to part with his property for the safety of his person.’ ” Jackson v. State, 175 Ga. App. 843, 844 (1) (334 SE2d 731) (1985). Here, as in Jackson, Smith’s testimony concerning appellant’s gestures and demands was sufficient to establish the element of intimidation. See id.; see also Ison v. State, 142 Ga. App. 783-784 (2) (237 SE2d 17) (1977). Accordingly, we find the evidence sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize appellant’s conviction on both charges.

2. Appellant next contends the trial court erred by allowing the admission into evidence of his custodial statement because the evidence showed that he was under the influence of drugs at the time he gave the statement. We do not agree. The detective to whom appellant gave his statement testified that although appellant “appeared to pass out” for a few minutes while he was in custody, the detective did not believe appellant was under the influence of drugs or alcohol at the time he gave the statement. Contrary to appellant’s contention, in his statement he admitted having taken drugs at the time of the robberies, but did not state that he was under the influence of drugs at the time he gave the statement. Further, even if appellant was under the influence of drugs while giving the statement it is nonetheless admissible if it was “the product of rational intellect and free will.” Mickens v. State, 177 Ga. App. 838, 839 (341 SE2d 316) (1986). The evidence adduced at the Jackson-Denno hearing (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)) authorized a finding that appellant was rational and coherent and that his statement was given knowingly and voluntarily. See Mickens, supra.

3. Appellant’s challenge to the admission of Perry’s identification of him from a photographic lineup is based on his contention that because the subjects’ names were written on the backs of the photographs, Perry could have gotten appellant’s name from Smith, who already had identified him as the person who robbed her, and then selected his photograph because of his name. This enumeration is without merit, as Perry testified unequivocally that she did not look at the backs of the photographs when making her identification of appellant and that no suggestive comments were made to her, and Smith testified that she did not discuss the robberies with Perry. Accordingly, we find no support for appellant’s argument that the photographic lineup was tainted. See Pope v. State, 176 Ga. App. 201-202 (1) (335 SE2d 478) (1985).

Decided March 7, 1990

Rehearing denied March 22, 1990

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

4. Appellant’s contention that Smith’s in-court identification of him was tainted by an impermissibly suggestive showup identification is similarly without merit. The record reveals that on the night Smith was robbed, she provided police with a description of the perpetrator and his car. Officer Michael Nichols, who knew appellant and recalled that he had a car which matched Smith’s description, went to appellant’s known hangouts in search of him. Appellant was located and apprehended shortly thereafter and was returned to the crime scene, where Smith identified him as the man who had robbed her.

Although “ ‘[a]s a general rule, the one-on-one confrontation between the (victim) and the suspect before a trial has been condemned, [cit.] . . . our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cits.)’ ” Bosworth v. State, 178 Ga. App. 86, 87 (1) (342 SE2d 22) (1986). Here, the showup was conducted at the crime scene the same night the offense occurred, and Smith’s testimony indicated she had sufficient time during the robbery to observe the perpetrator. See id. Accordingly, given the totality of the circumstances, Talley v. State, 137 Ga. App. 548, 551 (224 SE2d 455) (1976), we find there was little likelihood of misidentification, and thus find no error in the admission of the identification. See id.

Judgment affirmed.

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


text:
    A89A1670.
    LEWIS v. THE STATE.
    (392 SE2d 563)
   Pope, Judge.

Jerry Lewis was convicted of trafficking in cocaine and DUI. From the evidence presented below the jury was authorized to find the following: In the early morning hours of February 12, 1986, police stopped the car driven by the defendant because it had an improper truck tag affixed rather than a car license plate. When the officer asked the defendant for his license, he noticed a brown paper bag on the floorboard between defendant’s feet. The officer asked the defendant to step out of the car. As the defendant complied with the officer’s request, the officer noticed that defendant was unsteady on his feet, slurred his speech and that there was a strong odor of alcohol about him. After giving defendant a field sobriety test, the officer arrested defendant for DUI, handcuffed him and placed him in the patrol car. The officer then returned to defendant’s car, searched it and seized the brown paper bag. Inside the bag was a glass jar which contained a plastic bag filled with what turned out to be 64 grams of a cocaine mixture, 47.6 grams of which was pure cocaine. The passengét who was riding with the defendant was questioned and released. Police also found $4,100 in currency in defendant’s socks.

1. Defendant argues that the trial court erred in denying his motion to suppress. He contends that the warrantless search was an improper inventory search of an improperly impounded vehicle. However, we need not reach the issues of impoundment and inventory. As the trial court held, the search here was lawful pursuant to OCGA § 17-5-1 (a): “When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person’s immediate presence for the purpose of: . . . (4) Discovering or seizing any instruments, articles, or things which are being used or which may have been used in the commission of the crime for which the person has been arrested.” “It appears to be well settled under this code section that where a person is arrested for driving under the influence, ‘(a) search of the vehicle is proper for the purpose of obtaining evidence of the basis of a suspect’s intoxication.’ [Cits.]” State v. Holden, 162 Ga. App. 33 (290 SE2d 130) (1982). The officer in the present case observed defendant’s car leave the parking lot of a restaurant and bar. After stopping defendant’s car for having an improper tag, the officer determined that defendant appeared intoxicated and arrested him. The search of the car was proper. The brown paper bag containing the jar with cocaine was seized lawfully. It was not error to deny the motion to suppress.

2. The trial court charged the jury on the law of parties to a crime even though the State maintained that defendant alone was responsible for the cocaine. The State maintains that pursuant to Howard v. State, 251 Ga. 586 (6) (308 SE2d 167) (1983), the charge was proper because the defendant presented evidence that the crime actually was committed by Hobbs, the passenger in the car. Although defendant argues that Howard, supra, is factually distinguishable, we db not agree. Even if the charge here was error, it would be harmless in light of the strong evidence of possession of the cocaine by defendant.

3. We find that the evidence was sufficient to support defendant’s convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided March 13, 1990

Rehearing denied March 23, 1990

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.