author: Birdsong, Chief Judge.

text:
    76701.
    RAMSEY v. THE STATE.
    (375 SE2d 63)
   Birdsong, Chief Judge.

Appellant, Russell Lee Ramsey a/k/a Clayton Maxwell Ramsey, brings this appeal from his conviction in the Fulton County State Court for driving under the influence. Ramsey was arrested on May 5, 1986 for DUI and driving without a license, and identified himself to the officer as “Russell Ramsey.” He was issued two Uniform Traffic Citations (UTC) in the name he gave the officer and the UTCs directed him to appear in Fulton County State Court on June 4, 1986. On one UTC the date has been changed to July 9, 1986, with the notation of a $2,000 bond. Overprinted on the other UTC is: “H. V. served 6-13-84.” It was later determined that Ramsey had been served with a habitual violator notice on June 13, 1984. By agreement between counsel, the solicitor read into the record the pre-trial chronology of Ramsey’s two UTCs. He was arrested May 5, 1986. The Fulton County District Attorney’s office received the file on August 5, 1986. An indictment was returned on October 3, 1986, charging Clayton Maxwell Ramsey, alias Russell Lee Ramsey, with the offenses of DUI and driving after being notified that he was an habitual violator. On November 14, 1986, “Clayton Maxwell Ramsey” filed a demand for trial under OCGA § 17-7-170. On November 20, 1986, the habitual violator charge was dismissed and the file returned to the Fulton State Court. The State Court Solicitor’s office received the file December 10, 1986, and filed an accusation against Russell Ramsey alleging two counts of DUI and one count of driving without a license. A motion to discharge and acquit under OCGA § 17-7-170 was filed March 30, 1987 by “Russell Lee Ramsey a/k/a Clayton Maxwell Ramsey.” The motion was denied on May 1, 1987. Appellant was convicted of one count of DUI and the remaining two counts were dead docketed. This appeal followed. Held:

Appellant does not contest jurisdiction; and does not contend he is not the individual arrested, tried and convicted, and is not the same individual on appeal. Neither does he argue that the evidence is insufficient to sustain his conviction. The sole enumeration of error alleges the trial court erred in denying his motion for discharge and acquittal.

Ramsey’s basis for discharge is OCGA § 17-7-170, which requires trial at the term in which demand is made or the next succeeding term, provided juries were impaneled and qualified to try him, or he shall be discharged and acquitted. However, this section also requires the demand for trial be entered at the court term at which the indictment or accusation is “found” or the next succeeding term thereafter. The trial court held the motion “was not filed in a timely fashion” and denied appellant’s request for discharge and acquittal.

A uniform traffic citation (UTC) is, by statute (OCGA § 40-13-1), an accusation. All courts having jurisdiction of the offense shall proceed with adjudication of the offenses enumerated in the UTC “without the necessity of filing an indictment or other accusation in order to bring the accused to trial.” OCGA § 40-13-3. However, the UTC is an ill-suited vehicle for processing traffic offenders when a demand for trial is made under OCGA § 17-7-170. A traffic offender receiving a UTC returnable to traffic court is charged with a “traffic violation and shall not be considered as a misdemeanor.” OCGA § 40-13-60. Yet, if the accused fails to appear and has not posted a cash bond, the traffic bureau loses jurisdiction, the state court gains jurisdiction, “and the prosecuting attorney of the court shall have an accusation issued against such person,” and the case is docketed “as all other misdemeanors.” OCGA § 40-13-62. (Emphasis supplied.) In the instant case when the subterfuge as to the identity of the offender was discovered, the case was transferred to the district attorney’s office, the state court lost jurisdiction, and following the felony indictment as a habitual offender, the superior court gained jurisdiction. Thus, it is possible for a UTC offense to go through a metamorphosis of “traffic offense” in traffic court, a “misdemeanor” in state court, and a “felony” in superior court.

When this transmutation is considered in the context of a demand for speedy trial under OCGA § 17-7-170, the shortcomings of the UTC become apparent. Such demand for trial must be made “at the court term at which the indictment or accusation is found or at the next succeeding regular court term thereafter; or, by special permission of the court ... at any subsequent court term. . and if the accused “is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted. . . .” OCGA § 17-7-170 (a) (b). Implicit in the wording of this statute is that this demand is applicable only in courts which have terms and impanel juries; otherwise if the motion was filed in a court which has no terms (i.e., traffic court, mayor’s court, police court, recorder’s court, etc.) it would be impossible to determine if it was timely filed (i.e. at the “court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter”), or whether the statutory period in which the trial must be held has run (i.e. the term in which “the demand is made or at the next succeeding regular court term thereafter”). Likewise, the court in which the demand is made must also impanel juries, because the two term rule is applicable only in a term in which “there were juries impaneled and qualified to try him. ...”

The issue is further complicated by the requirement of the statutory demand for speedy trial that can be made only in the term, or next regularly succeeding terms, in which the accusation is “found.” This court has held that “an accusation embodied in an existing uniform traffic citation is ‘found’ within the meaning of OCGA § 17-7-170 (a) at the moment any court which is lawfully entitled to do so asserts its jurisdiction over the case.” State v. Spence, 179 Ga. App. 750, 752 (347 SE2d 612). This court has also held that where a UTC is transferred from a traffic court to a state court, “the accusation was not filed or ‘found’ as contemplated by OCGA § 17-7-170 until the traffic violation was docketed as a misdemeanor criminal case in the state court. . . .” Keller v. State, 183 Ga. App. 717, 719 (359 SE2d 714). The UTC forms have no place for entry of filing dates in the court in which filed and in the present case the record is devoid of evidence when the UTC was first filed in the state court.

We find that we need not attempt to decide when the present UTC was “found” because when the case was transferred to the office of the district attorney for presentation to a grand jury a felony indictment was returned. For all practical and legal purposes, the indictment superseded the UTC accusation, and the original UTC expired. No demand for trial had been made. Following the return of the indictment in superior court, appellant made a demand for trial in November 1986, on “said indictment.” Following dismissal of the habitual violator charge and the indictment, the file was returned to the state court and a formal accusation was filed on December 10, 1986. No demand for speedy trial has ever been made as to that accusation.

Although this court has held that “ ‘when a demand for speedy trial has been filed, and the case is transferred from one court to another, the demand is also transferred’ ” (State v. Bostwick, 181 Ga. App. 508, 509 (352 SE2d 824)), those cases dealt with the transfer of a UTC from a lower court to a higher court, and a demand for trial in which the accusation was embodied in the UTC. In the instant case, the UTC accusation expired when the case was transferred to the superior court for indictment and trial and the demand for speedy trial was made only as to the “indictment” and not on the accusation. We will not infer a demand for speedy trial as to an accusation under OCGA § 17-7-170 unless one is specifically made. See State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149). And here, the demand for speedy trial on the indictment did not transfer to the lower court as a demand for trial on the subsequent accusation.

Moreover, the record demonstrates the transferral of the UTC by the state court to the district attorney’s office for indictment was taken because Ramsey had falsely used his brother’s name when arrested and when a check of that name revealed that he had his license revoked for being a habitual offender this required the charge being changed from a misdemeanor to a felony and transfer to the district attorney’s office for prosecution. After the subterfuge was discovered the indictment was dismissed and returned to the state court for trial. The time lost in transmission between the courts and procuring an indictment was due solely to the deceit and attempted fraud on the court committed by appellant. See Myron v. State, 248 Ga. 120 (2) (281 SE2d 600).

Decided September 27, 1988 —

Rehearing denied November 2, 1988.

Daniel F. Byrne, for appellant.

James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellee.

Self-induced error is impermissible. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864). Additionally, one cannot complain of a result that his own conduct caused. Dodd v. Dodd, 244 Ga. 746, 747 (164 SE2d 726); see also McDaniel v. State, 248 Ga. 494, 495 (283 SE2d 862). Last, but by no means the least reason, the law will not permit an individual to profit from his own wrong. Fuller v. Fuller, 211 Ga. 201, 202 (84 SE2d 665).

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs in judgment only.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    76973.
    JAIN et al. v. CARLOAD DELIVERY SERVICE, INC.
    (375 SE2d 99)
   McMurray, Presiding Judge.

Plaintiff Carload Delivery Service, Inc., filed this action on a note and foreclosure of personal property against defendants Jain Enterprises, Inc., and Jain, individually. The complaint alleges that plaintiff sold to defendants its goodwill, trade names, trademarks, inventory, fixtures, motor vehicles and other equipment. In return, plaintiff allegedly received the promissory note at issue. As security for the payment of the note, the sales contract provided for the grant to plaintiff of liens on the motor vehicles, and security interest in defendant’s inventory, equipment and fixtures. Following the defendants’ alleged default on the note, plaintiff filed this action.

Defendants’ answer raised several defenses including fraud in the procurement of the contract. Defendants also counterclaimed, alleging that plaintiff and its agents breached a restrictive covenant of the sales contract by competing with defendants.

Insofar as plaintiff’s action sought foreclosure of personal property it was resolved by a consent order providing that plaintiff recover and defendants surrender certain equipment. However, defendants failed to voluntarily return these items and plaintiff had to levy on certain of these items.

Following discovery plaintiff filed its motion for summary judgment against defendants. Defendants appeal from the grant of plaintiff’s motion for summary judgment. Held:

The sale and promissory note were executed on September 28, 1984. Defendants made monthly payments under the terms of the promissory note through August 1985. Defendants failed to make the payment for September 1985. At the time the defendants ceased paying, the balance due on the note was $297,417.52. Following default, defendants received from plaintiff an acceleration notice on the unpaid balance together with statutory notice of 15 percent attorney fees (the note contained a provision for 15 percent attorney fees). Defendants failed to pay the outstanding principal within ten days from receipt of said notice.

“ ‘Where the purchaser of personal property has been injured by the false and fraudulent representations of the seller as to the subject matter thereof, he ordinarily has an election whether to rescind the contract, return the article, and sue in tort for fraud and deceit, or whether to affirm the contract, retain the article, and seek damages resulting from the fraudulent misrepresentation.’ Nichols v. Williams Pontiac, 95 Ga. App. 752 (98 SE2d 659). Thus, where a purchaser has been induced to enter a contract by the false and fraudulent representations of the seller, he can recover damages in tort if he rescinds the contract and returns (or offers to return) the goods purchased. City Dodge, Inc. v. Gardner, 130 Ga. App. 502 (203 SE2d 729), aff’d, 232 Ga. 766 (208 SE2d 794). On the other hand, where the purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased articles, he is estopped from asserting that he relied upon the seller’s misrepresentation and his action for fraud must fail. Brown v. Ragsdale Motors, 65 Ga. App. 727 (16 SE2d 176); Holbrook v. Capital Auto. Co., 111 Ga. App. 601 (142 SE2d 288); Rogers-Farmer Metro Chrysler-Plymouth, Inc. v. Barnett, 125 Ga. App. 494 (188 SE2d 122).” Kot v. Richard P. Rita Personnel System, 134 Ga. App. 438 (214 SE2d 690). See also Hart v. Trust Co. of Columbus, 154 Ga. App. 329, 330 (268 SE2d 384); Woodall v. Beauchamp, 142 Ga. App. 543, 545 (1) (236 SE2d 529); Wheeler v. Pioneer Investments, 217 Ga. 367 (122 SE2d 518); Puckett v. Reese, 203 Ga. 716 (48 SE2d 297); Nixon v. Sandy Springs &c. Center, 167 Ga. App. 272 (306 SE2d 362).

While defendants contend that they are not indebted in any sum due to fraud in the procurement of the sales contract, the alleged misrepresentations being in regard to the revenues and profits of the business which defendants purchased, defendants continued to own the business and use the assets purchased from plaintiff up to February 1986. Therefore, since the sales contract in the case sub judice contains a merger clause and defendants have retained the purchased items and operated the business in which they are used, for a period of time which was more than sufficient in length to afford defendants ample opportunity through the exercise of ordinary diligence to discover the alleged misrepresentations (defendants tardily sought to rescind only, and seek rescission after plaintiff’s complaint was filed), defendants’ failure to rescind the contract results in an estoppel or waiver, and the failure of the fraud defense. Kot v. Richard P. Rita Personnel System, 134 Ga. App. 438, supra.

Decided October 19, 1988 —

Rehearing denied November 2, 1988.

Albert B. Wallace, for appellants.

Walter W. Furlong, for appellee.

Finally, we address the valuation of the items returned to plaintiff pursuant to the consent order of June 24, 1986. The state court credited defendants with the value of these items, $17,800, as established by the only evidence on the subject, an opinion stated in the affidavit of plaintiff’s expert witness. Defendants contend that summary judgment predicated on this opinion evidence was not proper. The general rule is “that a summary judgment can never issue based solely upon opinion evidence.” Ginn v. Morgan, 225 Ga. 192, 193-194 (167 SE2d 393). An exception to the general rule is applicable where a contention of fact is capable of proof only by expert testimony. See Savannah Valley &c. Assn. v. Cheek, 248 Ga. 745, 747 (285 SE2d 689). The value of personal property may be established both by expert opinion evidence and otherwise. Therefore, the case does fall under the general rule rather than the exception thereto. It follows that a genuine issue of material fact remains as to the amount of the set-off to which defendants are entitled. Therefore, the state court erred in granting summary judgment in favor of plaintiff and against defendants.

Judgment reversed.

Pope and Benham, JJ., concur.


author:
McMurray, Presiding Judge.
      Judgment reversed.

text:
    76557.
    HOUSING AUTHORITY OF ATLANTA et al. v. PARKS.
    (374 SE2d 842)
   McMurray, Presiding Judge.

Plaintiff Parks filed an action for damages against the Housing Authority of the City of Atlanta and a number of its individual officers. The defendants answered and filed a counterclaim against plaintiff, plaintiff’s law firm and Jackson, an attorney in plaintiff’s law firm.

On September 3, 1986, plaintiff was served interrogatories and a request for production of documents to which plaintiff did not respond. Defendants moved for default judgment against plaintiff based on the failure to respond to interrogatories and the request for production of documents. Neither plaintiff nor his attorney appeared at the hearing on defendants’ motion for default judgment. Defendants’ motion was granted on December 12, 1986. The superior court entered a final judgment under OCGA § 9-11-54 (b) dismissing plaintiff’s complaint with prejudice.

Decided November 2, 1988.

Phears & Dailey, H. Wayne Phears, Michael A. Dailey, Victor L. Moldovan, for appellants.

Parks, Jackson & Howell, Bernard Parks, Alice F. Brown, Lenwood A. Jackson, Floyd, Howard, Jones & Ware, David R. Ware, for appellee.

On January 12, 1987, plaintiff submitted his “Motion for Reconsideration” of the order dismissing his complaint. The superior court granted plaintiff’s motion to reconsider and subsequently we granted defendants’ application for interlocutory appeal of the superior court’s ruling. Held:

In the Atlanta Judicial Circuit a term of court begins on the first Monday in January, March, May, July, September and November. See OCGA § 16-6-3 (3). Therefore, the January 12, 1987, filing of plaintiff’s motion for reconsideration was not within the term (November) of court in which the order dismissing plaintiff’s complaint with prejudice was filed. Since the superior court’s plenary power over its final judgment dismissing plaintiff’s complaint ended prior to the filing of the plaintiff’s motion such must be examined as a motion to set aside the judgment. Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583).

OCGA § 9-11-60 (d) (3) provides for setting aside a judgment based upon a nonamendable defect which appears upon the face of the record. The failure of counsel or a party acting pro se to receive notice of a hearing constitutes such a defect as will authorize the setting aside of the judgment under OCGA § 9-11-60 (d) (3). Beach’s Constr. Co. v. Moss, 168 Ga. App. 462 (1) (309 SE2d 382); Coker v. Coker, 251 Ga. 542 (307 SE2d 921).

In the case sub judice, plaintiff contends that neither he nor his counsel ever received a copy of defendants’ motion for default judgment or notice of the time the motion was set for hearing. However, plaintiff has failed to present any evidence in support of this contention. Thus, in view of the presumption in favor of the regularity and legality of all proceedings in superior court, and the failure of plaintiff to carry his burden of showing that he did not receive proper notice, we must conclude that the superior court abused its discretion in granting plaintiff’s “Motion for Reconsideration.” Murer v. Howard, 165 Ga. App. 230 (299 SE2d 151); Miller v. Grier, 175 Ga. App. 91 (332 SE2d 323).

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    76835.
    WAGES v. MOUNT HARMONY MEMORIAL GARDENS, INC. et al.
    (375 SE2d 57)
   McMurray, Presiding Judge.

Plaintiff Wages, d/b/a Atlanta Crematory, filed this action against defendant Mount Harmony Memorial Gardens, Inc., and defendant Smith. Plaintiff’s complaint alleged that he leased certain real property from the corporate defendant for use as a crematory and chapel; that the corporate defendant acting through its president, defendant Smith, did lock plaintiff from the premises and deprive plaintiff of all use and occupancy of the premises, and that all rent for a period of one year and 31 days had been paid in advance and accepted by defendants. Plaintiff sought damages of $11,730, the amount of the allegedly prepaid rent, additional damages for the alleged trespass, and punitive damages.

Defendants’ separate answers denied the substantial averments of plaintiff’s claims. The corporate defendant also filed its counterclaim seeking damages for plaintiff’s negligence and breach of contract while in possession of the premises. The corporate defendant’s counterclaim also sought attorney fees and expenses of litigation.

The evidence shows that plaintiff was in continuous possession of the premises from 1971 through August 25,1984, as a tenant of either the corporate defendant or its predecessor in title. Rent for 1980 (actually January 15, 1980, to January 15, 1981) was paid in January 1980 by plaintiff’s check to the corporate defendant for $6,000. On or about March 14, 1980, plaintiff and the corporate defendant executed a lease agreement for the premises. The lease provided in part that: “This Lease shall be for a term of One (1) Year commencing on January 14, 1981, and the LESSEE shall have two options to renew for Two (2) One Year periods after expiration of the initial One (1) Year term. The LESSEE shall give the LESSOR notice in writing Thirty (30) days prior to expiration of the Lease of his intention to exercise the option. Failure by the LESSEE to exercise the initial One (1) Year option shall operate to forfeit any rights under the second option period. . . . The LESSEE shall pay to the LESSOR the sum of Nine Thousand Nine Hundred ($9,900.00) Dollars payable Eight Hundred Twenty-Five ($825.00) Dollars per month, One (1) Year in advance for the term beginning January 14, 1981 through January 13, 1982. The LESSEE shall pay the LESSOR the sum of Ten Thousand Eight Hundred ($10,800.00) Dollars payable Nine Hundred ($900.00) Dollars per month, One (1) Year in advance for each option period, if the LESSEE elects to exercise the options contained herein. If the LESSEE does not exercise either of the herein contained options, the LESSOR shall refund immediately all advance rental payments made by the LESSEE.”

The first payment under the lease predated the execution of the lease. That first payment was made on February 15, 1980, from plaintiff to the corporate defendant in the amount of $825. Thereafter, at monthly intervals, plaintiff made payments to the corporate defendant of $825. In April 1981 the payments were increased to $900 per month through June of 1984. The last payment was made in July 1984 in the amount of $1,200.

The plaintiff’s claim for prepaid rent is based on evidence that the (year in advance) monthly lease payments were continued (beyond the period required under the lease and) through the entire time that plaintiff occupied the premises, so that at the termination of plaintiff’s tenancy a year’s rent was prepaid and should have been refunded. Defendants’ contention was that plaintiff was being permitted to pay for the three years duration of the lease (the initial year plus two optional periods of one year) over four years so that at the end of the third year of the lease there was no prepaid rent and subsequent rent payments were on a current basis.

Upon the trial of the case, the jury returned a verdict in favor of the corporate defendant and awarded the corporate defendant $2,500 as general damages and $7,500 as attorney fees and expenses of litigation. By stipulation, defendant Smith was to be included in the judgment as having received a general verdict (without damages) in his favor. The judgment followed the verdict and plaintiff appeals. Held:

1. Plaintiff enumerates as error the admission into evidence of testimony by defendant Smith which changed and altered the terms of the unambiguous written lease in violation of the parol evidence rule, OCGA § 24-6-1. Over plaintiff’s objection, defendant Smith was permitted to testify as to his understanding that under the terms of the lease plaintiff was to have paid $42,000 ($12,000 the first year and $15,000 for each of the two optional years). “While, generally, an ambiguity in a contract may be explained by parol evidence, ‘parol evidence is inadmissible to add to, take from or vary a written contract.’ [OCGA § 13-2-2 (1); OCGA §§ 24-6-1; and 24-6-2]. Where the contract is complete on its face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, it should not be admitted. See generally, Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423 (211 SE2d 720) (1975); Corbin, Contracts, Vol. 3, § 573 (1960).” American Cyanamid Co. v. Ring, 248 Ga. 673, 674 (286 SE2d 1). See also Tyson v. Henson, 159 Ga. App. 684 (1) (285 SE2d 27); Johnson v. Ford Motor Credit Co., 142 Ga. App. 547, 548 (236 SE2d 527); and Kellos v. Parker-Sharpe, 245 Ga. 130, 132 (1) (263 SE2d 138). In the case sub judice, the contract provided without ambiguity the amount to be paid as rental by plaintiff. (A maximum of $31,500, assuming exercise of both optional periods.) Thus, defendant Smith’s contradictory understanding was inadmissible and the trial court erred in admitting this testimony. Town of Decatur v. Jaudon, 136 Ga. 854 (2) (72 SE 351).

Decided September 21, 1988 —

Rehearing denied October 12, 1988

Casper Rich, for appellant.

Harold A. Lane, William O. Green, Jr., for appellees.

2. Plaintiff enumerates as error the trial court’s denial of his motion for directed verdict for $11,700, the amount which plaintiff contends defendant held as prepaid rent. However, we find no error since under no view of the evidence is an award for prepaid rent authorized in the amount claimed by plaintiff.

3. Plaintiff’s remaining enumerations of error complain that there is insufficient evidence to authorize the verdict for damages, attorney fees and expenses of litigation awarded defendant. These issues are rendered moot by our reversal of the trial court’s judgment pursuant to Division 1.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    76836.
    ARNOLD v. ARNOLD.
    (375 SE2d 225)
   Birdsong, Chief Judge.

This is an appeal from the order of the superior court granting summary judgment to the defendant.

The appellee, Marcia Lynn Arnold, then age 16 and now age 18, was driving her mother’s automobile in which her sister, appellant Glenetta Arnold and her friend, Coretta Harper, were riding. The appellee had dropped off two other passengers, had retrieved her makeup from a friend’s house, had gone to the grocery store for her mother, and had left the store, in that order, when she was involved in an automobile collision. There is no adequate evidence in the record before us as to how the collision occurred. See generally Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223). At the time of the accident, Glenetta Arnold was age 10 and was living with her mother. The appellee Marcia Lynn Arnold was living with her mother most of the time, but during the month of the accident, she was residing three or four days of the week at the home of her father. The parents of the appellant and the appellee are divorced, and neither child was emancipated on the date of the accident. Held:

The appellant has raised a question of first impression for our courts: specifically, has the doctrine of “parental immunity” precluded an unemancipated minor child from suing a sibling who also was unemancipated at the time the asserted cause of action arose but who attains majority before trial on the merits of the case commences?

Early cases decided by this court focused on the limited issue of whether a child could sue its parents, and it was concluded that parental immunity existed when an unemancipated minor child attempted to sue his parents. See, e.g., Bulloch v. Bulloch, 45 Ga. App. 1, 11 (163 SE 708). Certain later cases, however, when faced with the same basic issue or variations thereof, adopted broader language thereby giving birth in this state to a so-called family immunity doctrine. See, e.g., Clabough v. Rachwal, 176 Ga. App. 212, 213-215 (335 SE2d 648); Hollingsworth v. Hollingsworth, 165 Ga. App. 319, 320 (301 SE2d 56); Eschen v. Roney, 127 Ga. App. 719, 720 (194 SE2d 589). The exact parameters of this doctrine have not been determined by our court, although at least one attempt has been made to do so by use of legal model. See, e.g., Clabough, supra at 215 (concurring opinion). It is generally accepted that “infant[s] may sue and be sued,” 42 AmJur2d, Infants, § 150, and that siblings “are not immune from tort liability to one another by reason of that relationship.” Restatement of Torts, 2d ed., § 895H. “The reason generally given for denying members of the same family the right to sue each other, namely, that to permit such actions would disrupt family harmony and encourage fraud or collusion, has not been applied to cases where plaintiff and defendant are siblings, and members of the same household, living together under the same parental authority.” 74 AmJur2d, Torts, § 54. Nevertheless, “[t]he preservation of the family unit is of such utmost importance in this state that it has recently been given stature in our state constitution: ‘To . . . promote the interest and happiness of the citizen and of the family, ... we the people of Georgia ... do ordain and establish this Constitution.’ (Emphasis supplied.) 1983 Ga. Const., Preamble.” Clabough, supra at 213-214. In the resolution of the case at bar, however, we need not ascertain the exact parameters of our family immunity doctrine.

The evidence shows that appellee was an unemancipated minor both at the time of the accident and at the time when the complaint of Christine H. Allen was filed on behalf of her daughter, Coretta Harper. However, at the present time appellee is 18 years of age. The doctrine of family immunity provides a legal foundation for the promotion of the “paramount public policy” of “preservation of family tranquility,” and thus prevents an unemancipated child, for example, from suing a parent or person standing in loco parentis. Morris v. Brooks, 186 Ga. App. 177 (366 SE2d 777), a two-judge decision cited favorably in Trust Co. Bank v. Thornton, 186 Ga. App. 706, 709 (368 SE2d 158), see Eschen v. Roney, supra. However, this type of immunity doctrine is not without restricting boundaries. See, e.g., Nelson v. Spalding County, 249 Ga. 334, 339 (290 SE2d 915). Thus, it has long been recognized that “[a] child who has reached majority, or a minor who has been emancipated, may sue its parent.” (Emphasis supplied.) Wright v. Wright, 85 Ga. App. 721, 725 (70 SE2d 152). Otherwise stated, “the public policy doctrine of family immunity [will] not preclude [a ‘sui juris’ plaintiffs] suit against his [parent].” Hollingsworth v. Hollingsworth, supra at 320. Conversely, “a parent may also sue an adult child.” Davis v. Cox, 131 Ga. App. 611, 614 (206 SE2d 655). Moreover, a “child who continues to live in the home after arriving at majority occupies the same status as any other guest, and there is nothing in the policy of the law which forms a legal obstacle to a suit by the child against a parent for a tort.” Reese v. Reese, 142 Ga. App. 243, 247 (236 SE2d 20); Farrar v. Farrar, 41 Ga. App. 120 (3) (152 SE 278); 67A CJS, Parent & Child, § 128. Logic dictates that these legal principles would be equally applicable to suits brought by an unemancipated minor sibling against an adult sibling who is residing in the same parental household as the suing sibling.

Pursuant to OCGA § 39-1-1 (a) “[t]he age of legal majority in this state is 18 years; until that age all persons are minors.” Accordingly, appellee was a minor at the time of the accident and at the time the above-discussed complaint was filed, but has now attained the age of majority and was of the age of majority at the time of the trial judge’s order granting her summary judgment. The crucial issue in this case thus becomes at what point in the litigation time continuum shall the appellee/defendant’s status, either as an adult or as a minor, become fixed for purposes of determining the applicability of the family immunity doctrine. In Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338, 340 (183 SE 210), this court held that “an action is maintainable, if the child was emancipated at the time of the tort and the action.” The Supreme Court, however, declined to follow this narrow view in Nelson v. Spalding County, supra at 337-338 (3) (a), concluding that the interspousal immunity doctrine was applicable where, after the collision giving rise to the cause of action, the plaintiff married the defendant. Thereafter, this court held that in determining whether a defendant is immune from suit, we will not find controlling the status of the “relationship” at the time the cause of action accrued, rather we will look “to the status of the relationship at the filing of suit and thereafter.” (Emphasis supplied.) Clabough v. Rachwal, supra at 214; accord Morris v. Brooks, supra at 178. Clearly, under the precedent established by this authority, the appellee’s age at the time of the accident was not controlling. We need not determine at what maximum point beyond the date of the filing of suit a party’s status becomes fixed for these purposes; suffice it to say that the appellee had reached the age of majority before the trial court entered its order granting summary judgment, and at that point in time the appellee could be sued by another family member as she was by law an adult. Thus, summary judgment should not have been granted on the basis of the family immunity doctrine. This result is . compatible with the statutory provisions of OCGA § 51-1-9, which is but a declaration of a general common law principle, that “[e]very person may recover for torts committed to himself. . . .” See Collins v. Martin, 157 Ga. App. 45 (3) (276 SE2d 102).

Decided September 12, 1988 —

Rehearing denied October 12, 1988

Rosenzweig, Kam, Jones & MacNabb, Joseph P. MacNabb, for , appellant.

Jenkins, Bergman & Darroch, Frank E. Jenkins III, for appellee.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


text:
    76881.
    GRIFFITHS v. RUBLOFF, INC.
    (376 SE2d 423)
    Decided September 15, 1988 —
    Rehearing denied October 12, 1988.

      Hendricks & Boren, Curtis R. Boren, for appellant.

      Troutman, Sanders, Lockerman & Ashmore, H. Carol Saul, J. Kirk Quillian, for appellee.
   Birdsong, Chief Judge.

The issues in this case are controlled by our decision in its companion, Smith v. Rubloff, Inc., 187 Ga. App. 317 (370 SE2d 159). Accordingly, the judgment below is reversed as to Griffiths, as it is in Smith.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    77012.
    KING v. GREEN et al.
    (375 SE2d 53)
   Sognier, Judge.

Joe Green, Jr. b/n/f Susan Green, his wife and/or guardian, and other members of his family (hereinafter “Green”) brought suit against Cynthia King seeking damages derived from injuries Joe Green, Jr., incurred in an automobile accident. Service upon King, the driver of the vehicle in which Green was a passenger, was effectuated “by and through her next friend, husband and/or legal guardian,” Arthur King. Cynthia King subsequently died from the injuries she incurred in the accident, and the suggestion of death, filed by her attorneys on July 14, 1987, was served on all parties, including Arthur King as the administrator of Cynthia King’s estate. On January 19, 1988, a motion to dismiss Green’s suit pursuant to OCGA § 9-11-25 (a) was made on the basis that Green had failed to file a motion to substitute the proper party defendant for Cynthia King within the 180-day period set forth in the statute. Green did not respond to the January 19th motion to dismiss until February 26, 1988. See Uniform Rules for the Superior Courts, Rule 6.2 (253 Ga. 799, 816-817) (1985). No hearing was held on the motion nor was any evidence presented before the trial court. The court denied the motion, finding that Green’s failure to request substitution of Arthur King within 180 days of the filing of the suggestion of death was due to “excusable neglect.” We granted King’s application for interlocutory appeal from this order.

OCGA § 9-11-25 (a) (1) provides: “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party .... Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.” The procedure set forth in OCGA § 9-11-25 (a) (1) “is for the protection of the prospective respondent to the motion for substitution of parties [i.e., the administrator or executor of the decedent’s estate] and is for the purpose of enabling this prospective respondent to place a limitation upon the period of time during which the movant may seek substitution of parties.” Anderson v. Southeastern Capital Corp., 243 Ga. 498, 499 (255 SE2d 12) (1979).

The Supreme Court, in Jernigan v. Collier, 234 Ga. 837, 839-840 (1) and (2) (218 SE2d 556) (1975), held that where no motion for substitution is made 180 days after death is suggested of record, dismissal is not automatic under the statute but that it must be effected by entry of an order by the court, which thus “permit[s] the court some discretion in entering such an order. . . . This reasoning is required in this case by the Civil Practice Act itself. [OCGA § 9-11-6 (b)] provides that ‘[w]hen by this title or by a notice given thereunder ... an act is required or allowed to be done at or within a specified time . . . the court for cause shown may at any time in its discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.’ Construed together, [OCGA § 9-11-25 (a) (1)] and [OCGA § 9-11-6 (b) (2)] provide that when motion for substitution is made more than 180 days after death is suggested of record, the court may in its discretion permit the motion for substitution where the failure to file such motion was the result of excusable neglect.” Id. at 840(2).

However, while OCGA § 9-11-6 (b) gives the trial court wide discretionary authority to enlarge the time within which an act may be done, “ ‘ “the discretion to be exercised is a judicial discretion, not an unrestrained one.” ’ [Cits.]” Jones v. Howard, 153 Ga. App. 137, 140 (264 SE2d 587) (1980). The “excusable neglect” found by the trial court here was not factually based since the record reveals no hearing was held nor were affidavits or other evidence presented by appellees to explain their failure to move the trial court to substitute the administrator of King’s estate for the decedent. Viewing the record and parties’ arguments, see Berry v. Morton, 152 Ga. App. 117-118 (2) (262 SE2d 263) (1979), it is apparent that appellees do not claim excusable neglect because they were uncertain of King’s death, compare id., or because they were misled as to the identity of the administrator of her estate. Compare Harvey v. Oliver, 178 Ga. App. 63, 64-65 (2) (341 SE2d 917) (1986). Instead, the sole justification offered by appellees is their argument that they were confused as to the law in Georgia, asserting they thought that since appellant knew of their suit (having accepted service of process on behalf of King), it was not necessary, when King died and appellant became the administrator of her estate, for them to substitute appellant for the deceased defendant. Appellees argue it would be “hypertechnical” to dismiss the claims of a severely disabled automobile accident victim under these circumstances.

Appellant here, as administrator of his wife’s estate, “desired the protection of the 180-day limitation period,” Dubberly v. Nail, 166 Ga. App. 378, 380 (4) (304 SE2d 504) (1983), a right to which he is statutorily entitled. OCGA § 9-11-25 (a) (1). Appellees argue that their neglect in failing to seek timely substitution of parties is excusable because they believed the law of Georgia allowed them to continue litigation in a suit against a deceased person. “The justification advanced [by appellees here is that] counsel was confused as to the rule in Georgia [regarding substitution of the administrator of the estate in place of the deceased defendant.] But the law is plain. [OCGA § 9-11-25 (a) (1).] We cannot say this explanation constituted excusable neglect as a matter of law. ‘Excusable neglect’ means, among other things, ‘a reasonable excuse.’ [Cit.] The maxim that ‘ignorance of the law offers no legal excuse’ needs no citation.” Barone v. McRae & Holloway, P. C., 179 Ga. App. 812, 813-814 (1) (348 SE2d 320) (1986).

Decided September 15, 1988 —

Rehearing denied October 12, 1988

Downey, Cleveland, Parker & Williams, Lynn A. Downey, for appellant.

Robert A. Falanga, for appellees.

A reviewing court should not interfere with the trial court’s exercise of its discretion “unless it is made to appear that wrong or oppression results from its abuse, or the court in some manner takes away rights the parties have under the law. [Cits.]” Hopkins v. Allen, 123 Ga. App. 330-331 (180 SE2d 919) (1971). Since there was no evidence from which the trial court could find excusable neglect as a matter of fact and, as a matter of law, appellees’ explanation did not constitute excusable neglect, the trial court abused its discretion in denying appellant’s motion to dismiss appellees’ suit for their failure to seek substitution of parties within the 180-day limitation period in OCGA § 9-11-25 (a) (1). See generally Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 757 (240 SE2d 136) (1977).

Judgment reversed.

Deen, P. J., and Carley, J., concur.


text:
    76965.
    HALL v. THE STATE.
    (375 SE2d 50)
   Birdsong, Chief Judge.

Appellant Wayne Hall was convicted of one court of aggravated assault on a peace officer, OCGA § 16-5-21, and of one count of obstruction of a law enforcement officer, OCGA § 16-10-24. He appeals his conviction of aggravated assault on a police officer.

The State’s evidence reflects that the appellant entered a certain store and began to harass the cashier who subsequently called the police. Responding to the call, Officer Archie entered the store and peacefully attempted to escort appellant off the premises. While Officer Archie was attempting to obtain information concerning the appellant’s identification, the appellant started “acting up.” The appellant pushed Officer Archie and touched the grip on the pistol on the officer’s belt. The officer advised the appellant that the latter was under arrest for simple assault. The appellant resisted arrest and Officer Archie attempted to handcuff him. The appellant became “very violent.” He scratched, kicked, gouged the eyes of Officer Archie, and at some point, broke the officer’s radio. The appellant detached the officer’s side-handle baton from its belt, but Officer Archie knocked the baton away. The appellant repeatedly threatened to kill the officer, and was able to place his hands “on the grip” of Officer Archie’s gun. At this point Officer Archie was in fear of immediately receiving a violent injury as he knew that “most police officers are shot with their own guns.” The appellant attempted to pull the weapon out of its holster, but the strap on the holster prevented its removal. The appellant subsequently was subdued with the help of other officers. Held:

Decided September 14, 1988 —

Rehearings denied October 13, 1988.

Adams, Hemingway, Wilson & Baxter, T. Clifton Woody II, for appellant.

Willis B. Sparks III, District Attorney, Graham A. Thorpe, Thomas J. Matthews, Assistant District Attorneys, for appellee.

1. Appellant asserts that the trial court erred in failing to enter a directed verdict of acquittal as to the aggravated assault count. We disagree. Appellant contends that his actions in trying to remove Officer Archie’s weapon from its holster did not constitute use of a “deadly weapon” under the circumstances. The act of grasping a holstered gun was “arguably capable of inflicting the types of injuries which generally can be produced by [such a weapon], including death or great bodily injury.” Cf., Hambrick v. State, 174 Ga. App. 444, 445 (330 SE2d 383). Whether the appellant’s use of the weapon by placing his hand on it and trying to pull it from its holster constituted use of a deadly weapon under the circumstances was properly for the jury’s determination. Davis v. State, 184 Ga. App. 230 (1) (361 SE2d 229). Only when there is no evidence to support a verdict to the contrary is a directed verdict of acquittal authorized. Bradley v. State, 180 Ga. App. 386 (2) (349 SE2d 263). Under the operative facts of this case, there clearly was sufficient evidence from which a rational trier of fact could find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. We find appellant’s remaining enumeration of error also to be without merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76997.
    FIDELITY NATIONAL BANK et al. v. WOOD.
    (375 SE2d 228)
   McMurray, Presiding Judge.

This is the second appearance of the case sub judice before this court. Most of procedural and evidentiary facts relevant on this appeal are stated in our decision on the previous appeal. See Fidelity Nat. Bank v. Wood, 178 Ga. App. 171 (342 SE2d 350). Since the prior . appeal, plaintiff Wood has amended his complaint to add a claim for lost profits and summary judgment has been granted in favor of defendant Davis, who was sued individually and in his capacity as Chief Marshal of Fulton County, Georgia.

Upon the trial of the case, a jury returned a verdict in favor of plaintiff Wood and against defendant Fidelity National Bank and defendant Sanders, jointly and severally in the amount of $110,000 actual damages and $140,000 punitive damages. Defendants appeal from the judgment following this verdict. Held:

1. Eventually, defendant Fidelity National Bank sold the bus for $3,500. There is ample evidence authorizing the jury to determine that a breach of the peace occurred during repossession. Under these facts and circumstances of the case sub judice, the jury was authorized to return a verdict in favor of plaintiff on his claims for conversion and trespass. Consequently, the trial court did not err in denying defendants’ motion for directed verdict and motion for judgment notwithstanding the verdict with respect to these claims. See Bloomquist v. First Nat. Bank, 378 NW2d 81, 86 (4) (Minn. App. 1985); Deavers v. Standridge, 144 Ga. App. 673, 675 (1) (242 SE2d 331); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 818 (4) (168 SE2d 827).

2. Defendants’ remaining enumerations of error raise an issue as to whether plaintiff presented sufficient evidence authorizing an award of damages for lost profits. Generally, in tort actions a recovery for loss of profits is permitted, but only if the lost profits are ascertainable with reasonable certainty and are not too uncertain, speculative or remote to afford a reliable basis for computation. Groover v. Dickey, 173 Ga. App. 73, 75 (6) (325 SE2d 617); Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 738 (3) (320 SE2d 863); Stern’s Gallery of Gifts v. Corp. Property Investors, 176 Ga. App. 586, 592 (3) (337 SE2d 29).

In the case sub judice, the plaintiff relies upon evidence that: The fair market value of the bus was between $20,000 and $25,000. The gross revenue generated by the bus was at least $2,000 per week (other testimony by plaintiff stated a weekly revenue of $1,000 to $1,500) and that expenses for fuel, oil and the driver ranged from $400 to $600 per week.

While the evidence relied upon by plaintiff may support a finding that the bus provided net operating revenues of approximately $1,500 per week, this amount is not a profit as plaintiff contends. Profit is found by reducing revenues by the amount of all expenses.

Decided September 20, 1988 —

Rehearings denied October 13, 1988

Hurt, Richardson, Garner, Todd & Cadenhead, James J. Brissette, for appellants.

Louis Levenson, Mark A. Thompson, for appellee.

Plaintiff has testified that it is crucial to his business that a bus be dependable. In order to assure dependability, plaintiff testified that he “got the bus up to my standards what I call maintenance-wise where it would make it without breaking down ... I kept on top of it . . .” Yet, while professing great diligence in regard to maintenance and repair of the bus, plaintiff has failed to present and the record contains no evidence as to the expenses incurred in this regard. Nor does plaintiff acknowledge any expense arising from wear and tear on the bus, whether such be identified as depreciation or any other term. It is rudimentary that the lifespan of a capital asset such as a bus is not infinite, so that some expense must be attributed to use of the asset in order to reflect the expenditure of a portion of that lifespan.

It follows that since there was evidence of revenues and of certain but not all expenses, the profitability of the enterprise cannot be determined. In the absence of evidence as to the amount of those expenses which were shown to have been incurred, but in an unspecified amount, any award of lost profits must be predicated upon speculation or omission of that data.

Due to the absence of sufficient evidence from which plaintiff’s lost profits could be determined with reasonable certainty we must hold that the trial court erred in submitting the issue of lost profits to the jury and in denying defendants’ motion for new trial insofar as it was predicated on the lack of evidence authorizing an award for lost profits. Groover v. Dickey, 173 Ga. App. 73, 75 (6), supra. In so holding, we do not reach or offer any opinion on two further contentions of defendants, that the evidence of lost damages was insufficient because it fails to show the impact of the absence of the bus on plaintiff’s business, considered as a whole, and because plaintiff’s revenue data was based on a single high season period of the year so that the effect of seasonal fluctuations was not shown by plaintiff’s evidence.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    76515.
    HEAD v. THE STATE.
    (375 SE2d 46)
   Banke, Presiding Judge.

On May 3, 1987, the appellant was arrested and issued traffic citations charging him with driving under the influence of alcohol and improper lane changing. He contends that on June 24, 1987, he filed a demand for trial pursuant to OCGA § 17-7-170 and that he was thereby entitled either to be tried or acquitted within the next succeeding term of court. On August 28, 1987, accusations were returned charging the appellant with the offenses charged in the traffic citations. On September 30, 1987, the appellant moved to dismiss these accusations pursuant to OCGA § 17-7-170, on the ground that he had not been tried within the next succeeding term of court after making his demand for trial. However, the trial court found that the demand had not been properly filed and consequently denied the appellant’s motion. The appellant was subsequently convicted of the charges set forth in the two accusations, and this appeal followed. Held:

OCGA § 17-7-170 provides that, with certain qualifications, where a defendant makes a demand for trial, the state must try him during the term of court when the demand is made or at the next succeeding regular term. The appellant correctly contends that he was entitled to file a demand for trial pursuant to this Code section based solely on the issuance of the traffic citations. See State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986). However, the demand upon which the appellant relies bears no filing stamp; and the trial court made a specific determination, on the basis of the evidence presented at the dismissal hearing, that it had never actually been filed. The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute. See Matthews v. State, 181 Ga. App. 819, 820 (354 SE2d 175) (1987). Since the appellant in this case could not show that his demand was ever filed with the court, the trial judge did not err in refusing to discharge and acquit him of the offenses charged.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

While it is not explicitly shown on the demand that it was filed in the Roswell recorder’s court, it is implicitly shown, by the fact that the case was transferred to the State Court of Fulton County. Had the demand not been filed, the case would have remained in the recorder’s court. OCGA §§ 36-32-3; 15-10-41 (a); and 40-6-391 (d) (1). There is no evidence that the fact is otherwise.

This implicit evidence, derived from the face of the record, is corroborated by the affidavit of the attorney, who swears he handed the document to the clerk of the recorder’s court in open court and a copy to the solicitor for that court, on the day the arresting officer set for defendant to answer to the charges. There is no evidence to contravene this statement. It is corroborated also by the certificate of service of hand delivery to the opposing party, which is dated June 24. Although the copy of the demand which is in the original record does not bear a filing date, affixing one would be the responsibility of the recorder’s court clerk and not the defendant, who would be prohibited from affixing a court filing date. In addition to serving the solicitor (see OCGA § 17-1-1; Vondolteren v. State, 184 Ga. App. 344 (361 SE2d 833) (1987); and current OCGA § 17-7-170), all the defendant has to do is “enter” a demand. OCGA § 17-7-170 (a). Subsection (b) refers to this as “when the demand is made.” In Majia v. State, 174 Ga. App. 432 (330 SE2d 171) (1985), and in State v. Bostwick, 181 Ga. App. 508 (352 SE2d 824) (1987), the court repeatedly refers to effective demands simply as “filed.”

The case was transferred, as required by operation of law, because defendant also demanded a jury and the jury-choice portion of the demand could not be accommodated in the recorder’s court. Along with the case when it was transferred for this purpose went also the demand for a speedy trial. State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986); Majia v. State, supra. No additional service was required to be made on the solicitor of the state court, even if the 1987 amendment, effective July 1, 1987 (Ga. L. 1987, p. 841), applied and requires such, because defendant did not request the transfer. See Turner v. State, 188 Ga. App. 267 (372 SE2d 826) (1988). Moreover, the solicitor recognized the speedy trial demand, as is evidenced by the administrative documents used to log in a case and prepare the accusation and assign a calendar date.

The case sat until after two terms had passed from the filing on June 24. When it was called for arraignment, defendant filed what he titled a Motion to Dismiss which sought relief expressly pursuant to OCGA § 17-7-170 and the Sixth and Fourteenth Amendments of the United States Constitution, “for failure to grant a speedy trial as demanded by Defendant.” The statute invoked provides for acquittal, not merely dismissal of the accusations, and the court would be bound to grant such upon establishment of the State’s failure.

Defendant’s demand met the requirements for specificity and clarity required by law even though he should have termed it something like “Demand for Speedy Trial and Demand for Jury.” The nomenclature of the document title does not bind the trial court. State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982). See Holloway v. Frey, 130 Ga. App. 224, 227 (3) (202 SE2d 845) (1973).

Decided September 7, 1988 —

Rehearing denied October 14, 1988

Jones, King & King, Sharon L. Hopkins, David H. Jones, Timothy T. Herring, for appellant.

James L. Webb, Solicitor, Norman Miller, Assistant Solicitor, for appellee.

The substance of the demand, shown without ambiguity or equivocation in the body of the demand, controls, as defendant made his demand “pursuant to his rights under the 6th Amendment of the United States Constitution and OCGA § 17-7-170 there being jurors impanelled and qualified to try said case at this time.” What reader, be it solicitor or judge or clerk, could not understand this to be a demand for a speedy trial? Moreover, the record shows without dispute that the solicitor regarded the demand as such. It meets the qualification set out in State v. Prestia, 183 Ga. App. 24 (357 SE2d 829) (1987). It is not outside the bounds expressed in the physical precedent case of Kramer v. State, 185 Ga. App. 254 (363 SE2d 800) (1987).

The recorder’s failure to record should not nullify the defendant’s demand any more than did the clerk’s failure to forward the demand document in State v. Bostwick, supra.

I respectfully dissent.


text:
    76583.
    RICHARDSON v. THE STATE.
    (375 SE2d 59)
   McMurray, Presiding Judge.

Defendant appeals his conviction for armed robbery. Held:

Defendant contends that his trial counsel, who is different from his appellate counsel, rendered ineffective assistance of counsel. At the hearing on defendant’s motion for new trial which raised this issue, defendant testified that he notified trial counsel of two alibi witnesses; and that he requested trial counsel to talk to these individuals and to obtain their testimony at trial. The two alibi witnesses who were never contacted by trial counsel, testified on the motion for new trial that they were with defendant at the time of the armed robbery. Defendant’s trial counsel did not testify at the hearing on the motion for new trial.

Additionally, defendant’s trial counsel made no objection to the introduction into evidence of a State’s exhibit, a green toboggan mask seized from defendant’s home. The perpetrator of the armed robbery had been described as wearing such a mask. The seizure took place after the victim of the armed robbery identified defendant from a photograph. Thereupon, officers were dispatched to defendant’s home, where after receiving no response to their knock, they entered without the authority of a search warrant, a consent or an arrest warrant for defendant. Within defendant’s house an officer found the toboggan mask, and seized it. While the entry was ostensibly for the purpose of effecting an arrest of defendant, the absence of a warrant, consent or any issue of hot pursuit rendered the entry, search, and seizure of the mask illegal. Payton v. New York, 445 U. S. 573 (100 SC 1371, 63 LE2d 639). Evidence obtained through an illegal search and seizure is not admissible. Amiss v. State, 135 Ga. App. 784 (219 SE2d 28).

“ ‘The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ Strickland v. Washington, [466 U. S. 668] (104 SC 2052, 80 LE2d 674) (1984). In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) ‘that counsel’s performance was deficient,’ i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this ‘deficient performance prejudiced the defense,’ i.e., that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Id. at — ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Ibid.

“The complaining defendant must make both showings. His failure ‘to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.’ King v. Strickland, 748 F.2d 1462, 1463 (11th Cir. 1984). A reviewing court need not ‘address both components if the defendant makes an insufficient showing on one,’ Strickland v. Washington, supra at_, nor must the components be addressed in any particular order. Ibid.” Ford v. State, 255 Ga. 81, 85 (8) (335 SE2d 567).

Applying the criteria set forth above to the facts and circumstances of the case sub judice we are compelled to conclude that the performance of defendant’s trial counsel was deficient. Also, since the evidence against defendant was not overwhelming, resting largely upon the identification testimony of one witness, the victim, a reasonable probability exists that the presence of defendant’s alibi witness would have affected the result. Therefore, we conclude that the deficient performance of defendant’s trial counsel prejudiced the defense. The trial court erred in denying defendant’s motion for new trial.

Judgment reversed.

Pope and Benham, JJ., concur.

Decided September 22, 1988 —

Rehearing denied October 14, 1988.

Reinhardt & Whitley, John R. Reinhardt, for appellant.

David E. Perry, District Attorney, Diane L. Perry, Assistant District Attorney, for appellee.


text:
    76602.
    LEADER NATIONAL INSURANCE COMPANY v. KEMP & SON, INC.
    (375 SE2d 231)
   McMurray, Presiding Judge.

This is the third appearance of this case. In Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267 (339 SE2d 321), the procedural background was set forth as follows:

“This case is one of four lawsuits stemming from a 1977 accident in which Smith was killed when his truck collided with a tractor-trailer driven by Neal, an employee of Kemp & Son, Inc. (Kemp). Smith’s mother and the administrator of Smith’s estate filed separate wrongful death and negligence actions against Kemp and its employee (the driver Neal). Kemp’s insurer, Leader, initially entered a defense on behalf of Neal’s estate, Neal having died in the interim, but withdrew soon after and denied coverage. Another attorney represented Kemp. The cases were consolidated for trial and were tried without a jury in January 1980 against Neal’s administrator and Kemp. No one, and no counsel, appeared for either of these two defendants. The trial court noted that it was aware Kemp’s insurer had withdrawn its counsel due to its denial of coverage. The court proceeded, having concluded that all parties involved had sufficient time to protect their legal interests as the cases had been pending since December 1977. Judgments totalling over $667,000 were entered for Smith’s mother and the administrator. No appeals were taken.
“Kemp, the administrator, and Smith’s mother then filed the present action against Leader to recover the judgments and costs of defending the tort actions, contending there was coverage under Kemp’s policy.
“Prior to the entry of judgments in the tort actions, and so prior to the instant suits, Leader had petitioned for declaratory judgment alleging that the tractor-trailer involved was not covered under Kemp’s insurance policy because it was purchased individually by the company’s president. This court affirmed the denial of summary judgment to Leader, determining that a conflict remained for jury determination of the insurance coverage issue. Leader Nat. Ins. Co. v. Smith, 162 Ga. App. 612 (292 SE2d 456) (1982). Leader then voluntarily dismissed the declaratory judgment action, apparently because the same issue was pending in the present action, and filed a motion for summary judgment in it. The motion was denied, and we granted Leader’s application for review. This prompted a cross-appeal by Kemp against Leader and the insurance agent as the trial court had also dismissed certain of Kemp’s claims.” Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 268, supra. This court affirmed the denial of Leader’s motion for summary judgment and the dismissal of “certain of Kemp’s claims” and the case was returned to the trial court where a jury trial was conducted to determine the extent of Leader’s liability for allegedly breaching the insurance contract by failing to defend Kemp in the underlying tort actions. The evidence adduced at trial was essentially the same as the evidence set out in Leader Nat. Ins. Co. v. Smith, 162 Ga. App. 612, supra, and supplemented in Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, supra. Consequently, it is sufficient to relate the jury’s finding with regard to the following special interrogatories submitted for their consideration:
“Number One: Was the vehicle in question an insured vehicle under the policy of insurance on the day of the accident, April 25, 1977? Answer: Yes.
“[Two:] Were the judgments obtained by the Smiths as the result of a breach of contract of insurance by Leader National Insurance Company? Answer is Yes.
“Three: If Kemp and Son incurred damages, were such damages proximately caused as a result of breach of the contract by Leader National Insurance Company? The answer is yes.
“Number Four: Is Kemp and Son, Inc. entitled to recover bad faith damages against Leader National Insurance Company? The answer is yes.
“Number Five: Is Kemp and Son, Inc. entitled to recover attorney’s fees against Leader National Insurance Company? The answer is yes.” From these findings, the jury entered a $2,043,438.70 verdict against Leader, comprising the total amount of the judgments entered against Kemp in the underlying tort actions with interest, a 25% bad faith penalty, and attorney fees. This appeal followed. Held:

1. In its first enumeration of error, Leader contends “[t]he trial court erred in denying [its] motion for directed verdict on the issue of [its] liability for damages in excess of the policy limits.”

“ ‘A motion for a directed verdict shall state the specific grounds therefor.’ OCGA § 9-11-50 (a). ‘A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. Adams v. Smith, 129 Ga. App. 850 (1) (201 SE2d 639); J. C. Penney Co. v. Davis & Davis, Inc., 158 Ga. App. 169 (1) (279 SE2d 461).’ Fidelity &c. Ins. Co. v. Massey, 162 Ga. App. 249 (1) (291 SE2d 97) (1982); Omni Express v. Cleveland Express, 178 Ga. App. 42, 43 (3) (341 SE2d 911) (1986).” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185). In the case sub judice, Leader failed to raise this issue in its motions for directed verdicts brought after the close of the plaintiffs’ case and at the close of evidence. Consequently, this enumeration of error presents nothing for appellate review. ‘“The function of the requirement that the specific grounds be stated ‘is to assure that the trial court has an adequate basis for its decision.’ 5A Moore’s Fed. Practice Par. 50.04.” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2), 300, supra.

2. Defendant’s second enumeration of error challenges the trial court’s instruction that “[t]he positive obligations of the insurer created by its unjustified refusal to defend are, number one, liability for the amount of the judgment rendered against the insured-, . . . and two, liability for the expenses incurred by the insured in defending the suit; and three, liability for any additional damages that are traceable to its refusal to defend the action.” (Emphasis supplied.) Leader argues that the emphasized portion of this charge is contrary to this court’s decision in Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 277, supra. We do not agree.

The emphasized language of the above jury instruction follows this court’s holding in Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267 (2), supra, where it was stated that “ ‘[b]y an unjustified refusal to defend an action against the insured[,] the insurer becomes subject to . . . liability for the amount of the judgment rendered against the insured. 29A AmJur. 571, § 1460; 49 ALR2d 717.’ ” Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 278, supra. Moreover, the emphasized language of the above instructions was authorized as there was evidence presented at trial showing that Leader withdrew representation of its insured in the underlying tort actions, without insuring that Kemp’s defenses were preserved, at a time when Leader’s responsibility under the insurance policy remained in question. See Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 278, 279, supra. This enumeration of error is without merit.

3. Next, Leader contends the trial court erred in denying its motion for directed verdict on the issue of bad faith penalties and attorney fees because Kemp failed to comply with the 60-day notice requirement of OCGA § 33-4-6. This Code section provides, in pertinent part, as follows: “In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 25 percent of the liability of the insurer for the loss and all reasonable attorney’s fees for the prosecution of the action against the insurer.”

“The purpose of the [60-day] waiting period, which is to protect the insurer by giving it a reasonable time to investigate the claim, examine the facts, and determine its liability, is no longer served when the insurer files suit seeking to relieve itself of liability under the policy. Great American Reserve Insurance Co. v. Britton, 406 SW2d 901, 907 (Tex. 1966); 16 Couch on Insurance 2d § 58:208, p. 124. See also Continental [Insurance Company v. Wickham, 110 Ga. 129 (2), 135 (35 SE 287)]; Wilkins v. Allstate Insurance Co., 173 S2d 199, 202 (La. App. 1965); Sbisa v. American Equitable Assurance Co. of New York, 11 S2d 527, 534 (La. 1942) (on rehearing); Parisi v. Washington National Insurance Co., 501 SW2d 732, 733 (Tex. Civ. App. 1973); 145 ALR 343, 348.” Sawyer v. C & S Nat. Bank, 164 Ga. App. 177, 181 (2, d), 184 (296 SE2d 134). Consequently, since Leader filed a declaratory judgment action to determine its duty to defend its insured under the policy before initiation of the case sub judice, it waived the 60-day notice requirement of OCGA § 33-4-6.

4. Leader further contends in its third enumeration of error that the trial court erred in failing to grant its motion for directed verdict on the issue of bad faith penalties and attorney fees because its defense of non-coverage was reasonable as a matter of law. We do not agree.

Although virtually the same facts were adduced at trial as were adduced on summary judgment in Leader Nat. Ins. Co. v. Smith, 162 Ga. App. 612, supra, where we held that a material question of fact remained as to Leader’s duty to defend Kemp, we cannot conclude that Leader’s defense was reasonable as a matter of law. “The question of bad faith is for the jury unless it can be said that as a matter of law there was a reasonable defense which vindicates the insurer’s good faith. Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263, 265 (253 SE2d 745) (1979).” St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (2) (358 SE2d 925).

In addition to strong evidence in the case sub judice showing that Kemp was covered under the policy by virtue of its obtaining possession and use of the covered vehicle less than thirty days before the collision, evidence showing that Leader withdrew from defending Kemp in the underlying tort actions before final adjudication of the pending declaratory judgment action authorized the jury’s finding that Leader acted in bad faith in failing to defend Kemp. “ ‘By refusing to defend, [an insurance] company . . . exposes itself to a charge of and penalty for breach of contract. . . .’ LaSalle Nat. Ins. Co. v. Popham, 125 Ga. App. 724 [229 (188 SE2d 890)].” Richmond v. Ga. Farm Bureau &c. Ins. Co., 140 Ga. App. 215, 218 (231 SE2d 245). In fact, Leader’s withdrawal from defending Kemp in the underlying tort actions rendered moot the declaratory judgment action it had initiated to determine the parties’ duties under the policy and invited the action which is the subject of this appeal. See State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332, 334-335 (208 SE2d 170). Consequently, the trial court did not err in denying Leader’s motion for directed verdict.

Decided September 27, 1988 —

Rehearing denied October 14, 1988

Dickey, Whelchel, Brown & Readdick, Terry L. Readdick, John E. Bumgartner, E. Clayton Scofield III, Harold N. Hill, Jr., for appellant.

William H. Glover, Jr., Jack Hutto, for appellee.

5. In its final enumeration of error, Leader contends “[t]he evidence demanded a verdict that the subject insurance policy afforded no coverage to Kemp & Son, Inc., for the judgments rendered, and, therefore, the trial court erred in denying [its] motion for directed verdict on the issue of coverage.”

“The standard of review of the trial court’s denial of a motion for directed verdict in a civil case is the ‘any evidence’ standard. United Fed. Sav. &c. Assn. of Waycross v. Connell, 166 Ga. App. 329 (1) (304 SE2d 131) (1983). See also OCGA § 9-11-50 (a).” Honester v. Tinsley, 183 Ga. App. 146, 147 (2) 148 (358 SE2d 295). As was stated in Division 4 of this opinion, there was “strong evidence” which authorized a finding that Kemp was covered under the policy at the time of the collision. (It is unnecessary to restate the facts which support this conclusion inasmuch as the evidence adduced at trial was virtually the same as the evidence before this court in Leader Nat. Ins. Co. v. Smith, 162 Ga. App. 612, supra.) Consequently, the trial court properly denied Leader’s motion for directed verdict on the issue of coverage.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76637.
    JORDAN v. RABENSTEIN.
    (375 SE2d 55)
   McMurray, Presiding Judge.

Plaintiff Jordan leased an upstairs apartment in a building owned by defendant Rabenstein. Access to the attic of the building was obtained through a panel on the wall of plaintiff’s apartment. The furnace which supplied heat for plaintiff’s apartment was located in the attic. On January 21, 1984, plaintiff returned to her apartment to find that the furnace was not working. Plaintiff entered the attic area and while walking to a light switch, stepped on insulation which was supported only by sheetrock. The resulting fall to the floor of the apartment below caused substantial injuries to plaintiff.

Subsequently, plaintiff filed this negligence action alleging that her injuries resulted from the defective condition of the property and defendant’s failure to repair or warn her of the dangerous condition posed thereby. Defendant denied the material allegations of the complaint and moved for summary judgment. Plaintiff appeals the grant of defendant’s motion for summary judgment. Held:

First, we must examine plaintiff’s status upon the attic portion of the premises. Defendant contends that plaintiff’s entry into the attic constituted a trespass and contrary to the provisions of the lease for plaintiff’s apartment. Plaintiff contends that she was an invitee. The lease provision relied upon by defendant merely provides a requirement of written requests for repairs “except in an extreme emergency in which event such notice may initially be given by telephone and later confirmed in writing . . .” We find nothing in the contractual language regulating plaintiff’s access to the attic. Plaintiff’s evidence is that she had never been told by defendant not to enter the attic area, that she was authorized to enter into the attic or to let others, such as repairmen, enter, and that on a number of previous occasions she had entered the attic with defendant’s permission in order to flip a switch to turn the furnace on or off on a seasonal basis. Indeed, plaintiff’s testimony was that defendant’s agent had shown her how to enter the attic to turn the heat on or off. In view of the evidence of plaintiff’s authority to enter the attic, a jury could find that plaintiff was not a trespasser in the attic. Furthermore, since there is evidence that plaintiff’s purpose in entering the attic was to see if she could determine what was wrong with the fürnace in order to facilitate repairs, the jury was authorized to conclude that plaintiff was an invitee since the entry was in part for the benefit of defendant. Anderson v. Cooper, 214 Ga. 164 (104 SE2d 90); Dawson v. American Heritage &c. Ins. Co., 121 Ga. App. 266 (173 SE2d 424).

It follows that for purposes of review of the grant of defendant’s motion for summary judgment we must examine whether defendant had that superior knowledge of the hazard upon which liability may be predicated. “ ‘It has often been held that the true basis for a landlord’s liability to a tenant for injuries resulting from a defective or hazardous condition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it. (Cits.) This is merely a manifestation of the general rule regarding the liability of proprietors for injuries to invitees occurring on the premises. (Cits.)’ Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984).” Smith v. Collins, 182 Ga. App. 564 (356 SE2d 530).

In order for plaintiff to recover, two elements must be proven: “ ‘(1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee, (Cit.).’ ” White v. Fred F. French Mgt. Co., 177 Ga. App. 661 (340 SE2d 276). See also Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312 (352 SE2d 212); Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538).

Decided September 15, 1988 —

Rehearing denied October 14, 1988

Bruce Berger, for appellant.

Paul, Hastings, Janofsky & Walker, James A. Orr, Craig K. Pendergrast, Kathy R. Bess, for appellee.

In the case sub judice, a jury could find fault on the ipart of defendant if not in allowing plaintiff into the attic area, then certainly in the maintenance of the light switch for the attic at a place which could not be reached from the attic walkway. This arrangement apparently necessitated stepping from joist to joist in order to reach the light switch. Among the hazards thus created was the possibility that a person (such as plaintiff who had not used the light switch previously) unaware that the insulation between the ceiling joist was not sufficiently supported to bear the weight of a person would attempt to reach the light switch by stepping between rather than upon the ceiling joists.

While there is no duty to warn of the obvious (Gyles, Inc. v. Turner, 184 Ga. App. 376, 377, supra), there is evidence that the hazard in the case sub judice was concealed, in that it was not apparent to plaintiff that the insulation would not bear her weight. Expressed in other terms, if plaintiff could be viewed as having observed the hazard, there remains a question as to whether she should have had full appreciation of the danger. Food Giant v. Witherspoon, 183 Ga. App. 465, 467 (359 SE2d 223); Pippins v. Breman, 152 Ga. App. 226, 228 (262 SE2d 477). See also Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477). Additionally, we note that there is evidence of defendant’s knowledge of the hazard.

Since the record fails to negate by uncontroverted evidence any element of plaintiff’s claim, the state court erred in granting defendant’s motion for summary judgment.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    76683.
    DeKALB COUNTY v. ROCKDALE PIPELINE, INC.
    (375 SE2d 61)
   McMurray, Presiding Judge.

Appellant DeKalb County, Georgia (“DeKalb County”) entered into a contract under which appellee Rockdale Pipeline, Inc. (“Rockdale”) was to install underground pipes for a sewer project. The contract, which was drawn by DeKalb County, specified that Rockdale would be paid $30 per cubic yard for the excavation of an estimated 7,000 cubic yards of rock; and that the rock excavation “shall be measured for payment from centerline profile, down to a depth six (6) inches below the bottom of the pipe barrel . . .” The construction drawings entitled “Plan and Profile,” which were incorporated by reference in the contract, depicted a vertical measurement for excavation down from the current roadbed grade or ground surface. Before the contract was signed DeKalb County determined and so informed Rockdale, that when rock was encountered “it would be measured from the centerline profile of the ground or the street rather than the centerline profile of the rock.”

From the time of the execution of the contract on November 7, 1983, until late April of 1984, DeKalb County approved two pay requests by Rockdale for rock excavation measured from the ground or street profile. After submission of a third pay request, DeKalb County informed Rockdale that a third party to the contract, the Georgia Environmental Protection Division, sought to impose a different method of compensation, to be measured from the subterranean rock surface rather than the centerline profile or ground surface. Rockdale did not agree to this proposal and no change order was executed affecting the work in dispute. Rockdale excavated 6,352.10 cubic yards of rock (10 percent less than the quantity estimated by DeKalb County to be encountered), and sought payment at $30 a cubic yard for a total of $190,563. When DeKalb County paid Rockdale only $94,133.40, it brought this suit to recover the unpaid balance, plus interest.

At a pretrial hearing DeKalb County stipulated that the quantity of rock excavation claimed by Rockdale was accurate if it were measured from the ground profile or surface level. The only questions before the court were how “rock” was defined under the contract for purposes of excavation; and what method was contemplated in the contract to measure the amount of rock excavated. After oral argument both parties submitted motions for summary judgment. The trial court granted Rockdale’s motion, judgment was entered for full payment of the rock excavated from the ground surface profile, and this appeal ensued. Held:

1. DeKalb County contends that the trial court erroneously construed the clear and unambiguous provision of the contract defining the rock to be measured for compensation. Section 1.07 (f) of the contract provides, in pertinent part: “Solid rock shall consist of such materials in their original bed or well-defined ledges, which in the opinion of the Engineer, cannot be removed with pick and shovel, ditching machine, backhoe or other similar devices, and which require drilling and blasting, or use of jack-hammers or bullpoints.” DeKalb County insists that because this definition clearly excludes dirt or “overburden,” Rockdale is not entitled to compensation for removal of soil it encountered during the process of reaching solid rock below the surface of the ground.

We do not agree. This argument ignores the express terms of the contract drafted by DeKalb County providing for compensation for the excavation of rock “from the centerline profile, down to a depth of six (6) inches below the bottom of the pipe barrel. ...” The project drawings, incorporated as part of the terms and conditions of the contract and thus an essential part of the construction agreement, consistently depict in the plan and profile that the project is to be measured from the surface level down. As noted by the trial judge, “centerline profile” is a common engineering term used to indicate ground surface or street level. “Centerline” is defined by the U. S. Department of Interior as “[a] line marked on the roof of a roadway ...” A Dictionary of Mining, Mineral & Related Terms, 188 (P. Thrush ed. 1968). The meaning of “profile” is stated as “[a] drawing used in civil engineering to show a vertical section of the ground along a surveyed line or graded work.” Ibid at 867. Moreover, the engineering supervisor of the project, who was employed by DeKalb County, specifically identified the “centerline profile” in the contract as ground or street level. These definitions were considered by the trial court in construing the contract.

“ ‘Words generally bear their usual and common signification; but technical words, or words of art, or used in a particular trade or business, will be construed, generally, to be used in reference to this peculiar meaning . . .’ ‘Ambiguities in terms used in written contracts, and their meanings as understood in the trade and by the contracting parties, may be explained by parol proof of this trade usage and custom.’ [Cit.] Parol evidence is admissible to explain the meaning of technical terms employed in written contracts. [Cit.]” Pace Constr. Corp. v. Houdaille-Duval-Wright Div., 247 Ga. 367, 368 (276 SE2d 568) (1981). The clear and unambiguous terms of the contract, once the technical meanings are defined, demand the conclusion reached by the trial court: that compensation for rock excavation was to be calculated from the ground or surface profile above the solid rock which Rockdale had to drill and blast. OCGA § 13-2-2 (4).

2. The trial court further stated in its judgment that its construction of the contract was “also consistent with the parties’ intent as evidenced by the documents supporting the motions for summary judgment.” DeKalb County asserts that allowance of parol evidence to prove the parties’ intent was reversible error. However, OCGA § 13-2-3 declares that “[t]he cardinal rule of construction is to ascertain the intention of the parties.” “It is ordinarily the duty of the court to interpret a contract as a matter of law and, where necessary, to construe it by applying the rules of construction set forth in OCGA § 13-2-2. [Cits.] . . . Where the language of an instrument may fairly be understood in more than one way, it should be interpreted to reflect the sense in which the parties understood it at the time of execution, and extrinsic evidence is admissible to establish what that original understanding was. [Cit.] That meaning is to be preferred which will give effect to the contract as a whole. OCGA § 13-2-2 (4).” Gans v. Ga. Fed. Savings &c. Assn., 179 Ga. App. 660, 662 (1) (347 SE2d 615) (1986). Thus, the trial court did not err in considering affidavits and depositions “which sought to illuminate the intention of the parties at the time of the agreement.” Tidwell v. Carroll Bldrs., 251 Ga. 415, 417 (1) (306 SE2d 279) (1983). Accord Doyle v. Estes Heating &c., Inc., 173 Ga. App. 491 (2) (326 SE2d 846) (1985).

Decided September 22, 1988 —

Rehearing denied October 14, 1988

Albert Sidney Johnson, Herbert Adams, Jr., for appellant.

Smith, Currie & Hancock, James F. Butler III, Joseph C. Staak, for appellee.

This evidence showed that immediately prior to execution of the contract and at a meeting held nine days thereafter, DeKalb County informed Rockdale that it intended to pay for removal of rock measured from ground level to six inches below the pipe; and that two such payments were submitted and approved. Only after being questioned by representatives of the Georgia Environmental Protection Division did DeKalb County attempt to change this method of measurement, without the approval of Rockdale. There being no showing of any genuine issues of material fact, nor erroneous findings or errors of law in the judgment of the trial court, there are no grounds for reversal.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Pope, Judge.

text:
    76883.
    CLARK v. THE STATE.
    (375 SE2d 783)
   Pope, Judge.

Defendant Terrence Clark was convicted following a bench trial of violating the Georgia Controlled Substances Act by possessing cocaine. In his sole enumeration of error defendant contends the trial court erred by denying his motion to suppress.

The evidence adduced at the suppression hearing established the following: On December 29, 1985, Investigator Julius Stroud of the Monroe County Sheriff’s Department received a telephone call from a confidential informant who told Stroud that a Datsun automobile bearing license plate number DZU123, and occupied by two black males, was en route from a local club and would be traveling through the City of Forsyth; and that there was a shaving cream can with a false bottom in the car which contained cocaine. The confidential informant did not identify the occupants of the car by name.

The car was spotted by investigating officers approximately ten minutes later. The car was stopped and both defendant and the driver of the car, as well as the interior of the car, were searched. The officers found a shaving cream can with a threaded false bottom containing white powder, subsequently identified as cocaine, on the floorboard of the car. A small, round, green container, also containing cocaine, was taken from defendant’s back pocket.

Defendant argues that both the stop of the automobile and his subsequent arrest and search were without probable cause and hence unlawful.

The test for ascertaining the reliability of a confidential informant is “whether under the totality of the circumstances, 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. State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984), quoting Illinois v. Gates, [462] U. S. [213] (103 SC 2317, 2332, 76 LE2d 527) (1983). Williams v. State, 173 Ga. App. 207, 208 (325 SE2d 783) (1984). Further, (a)n automobile' search may be conducted without a warrant provided it is based on facts that would justify the issuance of a warrant. United States v. Ross, 465 U. S. 798, 809 (102 SC 2157, 72 LE2d 572) (1982). Love v. State, 173 Ga. App. 85 (1) (325 SE2d 449) (1984).” (Punctuation omitted.) Turner v. State, 173 Ga. App. 782, 783 (328 SE2d 368) (1985). See also McKinney v. State, 184 Ga. App. 607 (362 SE2d 65) (1987).

The record shows that the confidential informant in this case had provided information to the police leading to arrests and convictions on four previous occasions. The information provided was based on the confidential informant’s personal observation and “was of sufficient detail to show it to be more than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Butler v. State, 185 Ga. App. 478, 480 (1) (364 SE2d 612) (1988). Moreover, within minutes the police corroborated the information through their own independent investigation.

“The duty of a reviewing court is to ensure that a ‘substantial basis’ for probable cause existed.” Butler at 479. Under the totality of the circumstances in this case, we find a substantial basis for probable cause to have existed. Accord Butler, supra; McKinney, supra; Hall v. State, 176 Ga. App. 428 (2) (336 SE2d 291) (1985); Turner, supra.

Decided September 20, 1988 —

Rehearing denied October 14, 1988

Frank J. Petrella, for appellant.

E. Byron Smith, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

We also reject defendant’s argument concerning the illegality of the arrest and search of his person. “The probable cause which forms the basis for the arrest need not rise to the same level of proof required to prove guilt at trial. [Cits.] As the officer had probable cause to arrest [defendant], the search of his person was proper. (O)nce a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband. [Cits.] Thus, because the arrest of [defendant] was lawful, the subsequent search and resultant seizure made incident to that arrest were also lawful. It follows that [defendant’s] motion to suppress the contraband found on his person as a result of that search was properly denied. [Cit.]” (Punctuation omitted.) Anderson v. State, 177 Ga. App. 130, 131-32 (338 SE2d 716) (1985). Accord Harley v. State, 183 Ga. App. 253 (358 SE2d 653) (1987).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.