author: Benham, Judge. Beasley, Judge,

text:
    72958.
    TAYLOR v. TAYLOR.
    (356 SE2d 236)
   Benham, Judge.

The parties to this case were divorced in 1981 and custody of their two children was awarded to Mrs. Taylor. In 1985, Mr. Taylor filed an action for a change of custody. The superior court transferred the case to the juvenile court for investigation and determination of all issues, and the juvenile court entered an order changing custody to Mr. Taylor. Although he had prayed for an award of child support in his petition, the juvenile court’s order was silent on that issue. No appeal was taken from that order. Early in 1986, Mr. Taylor filed a petition seeking an award of child support from Mrs. Taylor. He now appeals from the dismissal of that petition.

The trial court based its decision on OCGA § 19-6-18 (a), which imposes a two-year limitation on the filing of petitions for modification of child support; that is, a party who has sought a modification of child support must wait two years from the date of the order disposing of the petition in which the modification was sought before seeking another modification. We note that OCGA § 19-6-18 (a) applies to judgments entered prior to July 1, 1977, and is, therefore, inapplicable here since the divorce decree was entered in 1981. However, OCGA § 19-6-19 (a), which applies to judgments entered after July 1, 1977, and is applicable to the present case, contains the same limitation.

Appellant’s chief argument and the thrust of the dissent is that there has been no prior petition to which the two-year limitation could apply because the order of the juvenile court did not address his prayer for child support. As the trial court pointed out, however, the issue was presented to the juvenile court in the form of a petition seeking a modification of both custody and support. We have found no decisions on point, but we are of the opinion that it was incumbent on appellant, if he desired a ruling on his demand for child support, to invoke such a ruling. Having failed to do so, he has waived the right to complain, for two years, of a need for child support. This holding is consistent with the Supreme Court’s view of the purpose of § 19-6-19 (a) as expressed in Griffin v. Griffin, 248 Ga. 743, 744 (285 SE2d 710) (1982): “We deem at least one purpose of the two-year limitation of [the section] to be the protection of the parties from excessive litigation over the same issues within the two-year period.” That purpose would be subverted if serial litigation were encouraged by adopting appellant’s and the dissent’s view that the absence of an express denial or grant of child support in the previous order gives him the right to immediately file another action seeking the same relief that was part of the relief sought in the previous action.

Reliance on Wilde v. Wilde, 239 Ga. 750 (239 SE2d 3) (1977), by appellant and the dissent is misplaced. The Supreme Court held in that case that a petition for modification of custody would not bar a subsequent petition for modification of child support filed within two years. The essential distinction between that case and this one is that, unlike the first petition in that case, the first petition here was not simply a petition for a change of custody; it expressly sought an award of child support. Therefore, contrary to the dissent’s assertion in the course of citing Griffin, supra, appellant has had his day in court. That he did not make effective use of it is not a basis for reversal: this court is for the correction of errors of law committed by lower courts, not by litigants.

In this context, it should be noted that there is no support in the record for the dissent’s speculation that the lack of an award of child support was a matter of “keeping within the family the division of financial responsibility.” Nor is there any application to this case of the principles with which Collins v. Collins, 172 Ga. App. 748 (324 SE2d 475) (1984), and Dept. of Human Resources v. Brinson, 171 Ga. App. 905 (321 SE2d 763) (1984), are concerned. This is not a case, as those were, in which the government was obliged to step in and support a child because the non-custodial parent did not. There is no allegation here that appellant’s children are not being adequately supported, and the dissent’s statement that it is the children’s rights which are being litigated is incorrect: the issue being litigated here is whether appellant can repeatedly require appellee to defend against a claim for contribution to that support. Appellant made one claim for child support and, for reasons to which this court is not privy, did not succeed. This, then, is exactly the situation contemplated in Griffin, supra, in which the statute performs the function of “protection of the parties from excessive litigation over the same issues within the two-year period.” Id. at 744.

We hold, therefore, that the trial court was correct in ruling that appellant’s action for modification of child support will not lie until two years have passed since the entry of an order on the first petition in which he sought an award of child support.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

I respectfully dissent because the plain language of OCGA § 19-6-19 (a) limits its two-year repose requirement to cases in which there has been an adjudication of permanent alimony or child support. The legislature, taking into account that the passage of time increasingly diminishes the currency of the adjudication, recognized that financial circumstances and needs change in domestic situations. Thus it expressly provided a procedural mechanism for revision of the court-decreed alimony or child support. OCGA § 19-12-40 does not apply to these issues of continuing obligations insofar as future duties are concerned, but the two-year waiting period in OCGA § 19-6-19 (a) gives res judicata effect to the adjudication with respect to the obligations accruing in the interim.

When a petition for revision is brought, the focus of the inquiry is whether there has been “a change in the income and financial status of either former spouse or in the needs of the child or children” such as would warrant a modification and revision of the original adjudication. This is different from the thrust in the initial adjudication of the issue of child support, which is not concerned with changing for the future what has already been judicially ordered previously, but rather with judicially establishing the financial obligations of the noncustodial parent for the first time.

The latter has never been done with regard to the Taylors and their children. The original decree of divorce in 1981 awarded permanent custody of the two boys, now ages 18 and 11, to the mother with no mention of child support. In 1985 there was a change of custody effected by juvenile court order which stated that the issue before it was change of custody. Although the father who sought the change initially also requested a child support adjudication, he either tacitly withdrew or abandoned the effort for court intervention into this matter, thus keeping within the family the division of financial responsibility. In any event, there was no adjudication. That did not mean that the non-custodial parent no longer had a duty to support. See Collins v. Collins, 172 Ga. App. 748 (324 SE2d 475) (1984).

Decided March 19, 1987

Rehearing denied April 1, 1987

Charles A. Mullinax, for appellant.

J. Douglas Sexton, for appellee.

Thereafter the father found it advisable to obtain the court’s determination of the application of OCGA § 19-7-2 and instituted the present action. I do not find the two-year prohibition in OCGA § 19-6-19 (a) a bar to the father’s complaint. Where he, like the parent in Wilde v. Wilde, 239 Ga. 750 (239 SE2d 3) (1977), did not obtain a judicial determination as to the non-custodial parent’s financial obligations for the child, he is not foreclosed for two years from doing so. As said in Wilde, supra at 751: “Code Ann. § 30-220 (now substantially OCGA § 19-6-19) relates strictly to petitions for modification of alimony or child support... by the same party.” He is as much entitled to his day in court as was the petitioner in Griffin v. Griffin, 248 Ga. 743 (285 SE2d 710) (1982), where like here, there was no final order on the matter of support next preceding a two-year period.

There has been no court determination of support requirements, and the children, if not the father, are entitled to one. It is their rights which are being litigated, as recognized in Dept. of Human Resources v. Brinson, 171 Ga. App. 905, 906 (321 SE2d 763) (1984): “A custodial parent cannot waive a child’s right to support from the noncustodial parent. Crumb v. Gordon, 157 Ga. App. 839 (278 SE2d 725) (1981).”

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    72990.
    OVERSTREET v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (355 SE2d 744)
   McMurray, Presiding Judge.

Hazel Dean Overstreet (plaintiff) brought an action against her automobile insurance carrier, Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”), for loss of her automobile resulting from a collision with another vehicle. Additionally, plaintiff sought statutory damages under OCGA § 33-34-6 (b), (c) for Georgia Farm Bureau’s failure to timely pay her claim. Georgia Farm Bureau answered and admitted that plaintiff was insured under one of its insurance contracts on the date of the accident but denied liability for statutory damages because plaintiff refused to accept its timely offer to pay for her loss. (In a “Combined Pre-Trial Order” Georgia Farm Bureau denied liability to plaintiff for loss of her vehicle, alleging that plaintiff recovered for the loss from another insurance carrier.)

During the course of a jury trial, the parties stipulated that the loss to plaintiff’s vehicle was $5,300 and the deductible under the insurance policy was $100. It is undisputed that upon demand by plaintiff, Georgia Farm Bureau promptly offered plaintiff $5,200 for loss of her vehicle. Plaintiff refused to accept this amount, contending that she was entitled to the aggregate total of liability coverage offered in her insurance policy, regardless of her actual loss. Plaintiff testified that she was entitled to $41,000 because her insurance policy provided coverage of “ten, twenty, ten and one.” (An examination of plaintiff’s insurance policy shows that it provides liability limits of $10,000 for each person, $20,000 for each accident, $10,000 for property damage in each accident and $1,000 for medical payments.)

After Georgia Farm Bureau offered to pay plaintiff for her loss, a representative of Travelers Insurance Company, the insurer for the vehicle which struck plaintiff’s automobile, paid plaintiff $5,200 for the loss.

At the conclusion of plaintiff’s evidence, the parties made opposing motions for directed verdict. The trial court denied these motions and submitted to the jury the issues of whether plaintiff is entitled to recover under her insurance policy the value of loss to her vehicle and whether plaintiff is entitled to statutory damages, including attorney fees. The jury returned a verdict for Georgia Farm Bureau and this appeal followed. Held:

1. The pivotal issue in this appeal is whether plaintiff is entitled to recover under her policy of insurance after recovering the full amount due under said policy from the tortfeasor’s insurance carrier.

“A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.” OCGA § 9-2-4. In the case sub judice, following the collision, plaintiff had the option of seeking indemnification for her loss under her insurance contract or from the tortfeasor. Since it is undisputed that plaintiff accepted payment for her loss in an amount equal to the coverage provided in her insurance contract from the tortfeasor’s insurance carrier, she relinquished her right to recover under her insurance policy. “ ‘No matter what right the party wronged may have of electing between remedies or of pursuing different defendants for the same cause of action, when he once obtains full satisfaction from one source, his cause of action ends, and he can assert it no further. If the plaintiff in a suit brought upon a given cause of action accepts a sum of money in full settlement thereof, he can not thereafter set up the same cause of action against another whom he had the election of suing in the first instance.’ McLendon Bros. v. Finch, 2 Ga. App. 421, 422 (3 a, b) (58 SE 690) (1907). See also Bell v. Sigal, [129 Ga. App. 249 (199 SE2d 355)].” Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111, 114 (318 SE2d 89). In other words, in the case sub judice, plaintiff may not recover twice for the same loss. Consequently, notwithstanding the validity of submitting the issue of liability to the jury, we find the jury’s verdict appropriate as a matter of law. The trial court did not err in failing to direct a verdict in favor of plaintiff with regard to Georgia Farm Bureau’s liability to pay plaintiff’s claim under the insurance policy.

Decided March 17, 1987

Rehearing denied April 1, 1987

W. Douglas Adams, G. Brinson Williams, Jr., for appellant.

Denmark Groover, Jr., Birney 0. Bull, Morton G. Forbes, for appellee.

Ronald L. Reid, Nill V. Toulme, Ricky C. Silver, David Aufdenspring, Dean S. Daskal, James Thompson, John B. Long, amici curiae.

2. In light of our holding in Division 1 of this opinion and since it is undisputed that Georgia Farm Bureau offered to pay plaintiff’s claim for loss of her vehicle, less the deductible prescribed in the insurance policy, within 30 days after proof of loss, the trial court did not err in failing to direct a verdict in favor of plaintiff with regard to statutory damages. See OCGA § 33-34-6 (b), (c). The jury’s verdict in this regard was appropriate.

3. All other arguments asserted by plaintiff are moot in light of our holding in Divisions 1 and 2 of this opinion.

Judgment affirmed.

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

       Georgia Farm Bureau and plaintiff strenuously argue the effect of the subrogation provision of former OCGA § 33-34-3 (d) (1) (Ga. L. 1978, p. 2075) on plaintiffs right to recover under her insurance contract. These issues are not dispositive in this appeal since Georgia Farm Bureau has not exercised subrogation.


author: Benham, Judge.

text:
    72991.
    DESIGN SPECTRUM, INC. v. FIRST NATIONAL BANK OF ATLANTA.
    (355 SE2d 733)
   Benham, Judge.

Appellant Design Spectrum, Inc. sued appellee First National Bank of Atlanta (“Bank”), contending the bank had wilfully and wantonly converted funds deposited in Design Spectrum’s checking account with the bank. This appeal follows the grant of partial summary judgment to the bank.

In 1981, when Design Spectrum opened a checking account with the bank, appellant’s president signed a commercial checking account signature card contract. The signature card contract stated, in pertinent part: “The bank is hereby granted a security interest and a lien for the payment of all indebtedness at any time now or hereafter owing to it by the depositor ... in all property left with the bank, whether nor or heretofore or hereafter deposited in this account, . . . and the bank may at any time, without demand or notice, appropriate and apply any of such toward the payment of any obligation or liability owing to the bank, matured or unmatured.” Appellant became indebted on an open account to another corporation with which it did business. When that corporation defaulted on a promissory note held by appellee bank, the bank was assigned the corporation’s accounts receivable, including the account owed by appellant to the other corporation. Appellant made several payments on the account to appellee, but refused to pay the balance appellee stated was due. In response to appellant’s refusal to pay, the bank removed nearly $6,000 from appellant’s checking account to satisfy appellant’s outstanding obligation to the bank. Appellant contended appellee’s action amounted to conversion of appellant’s funds; appellee maintained that the checking account signature card contract authorized the bank to take the action. In granting partial summary judgment to the bank, the trial court ruled the signature card contract to be a conscionable and enforceable contract and that the bank had the contractual right to set off appellant’s checking account for appellant’s debt.

A bank may use a depositor’s funds on deposit with the bank to satisfy a matured debt the depositor owes the bank. Aiken v. Bank of Ga., 101 Ga. App. 200 (2) (113 SE2d 405) (1960). A bank and its depositor may contractually agree that the bank may use funds on deposit to pay unmatured obligations owed the bank by the depositor. First Nat. Bank of Gainesville v. Appalachian Indus., 146 Ga. App. 630 (4) (247 SE2d 422) (1978). It is not necessary that the bank be the original creditor of the outstanding debt to exercise its right of set-off, as long as it is the creditor at the time of exercise. See Greene v. C & S Bank of Cobb County, 134 Ga. App. 73 (213 SE2d 175) (1975).

Decided March 13, 1987

Rehearing dismissed April 1, 1987.

Andrew R. Kirschner, for appellant.

Leslie A. Dent, Richard M. Kirby, for appellee.

Appellant argues that the signature card contract creates a security interest and lien rather than the right of set-off, thereby requiring adherence to Article 9 of the Uniform Commercial Code, OCGA § 11-9-101 et seq. Appellant is correct in its assertion that a security interest differs from a right of set-off: “ ‘[a] right of set-off is not a security interest ... A bank’s right to set-off against a depositor’s account is often loosely referred to as a “banker’s lien,” but the “lien” usage has never led anyone to think that the bank held a security interest in the bank account.’ ” Continental American Life Ins. Co. v. Griffin, 251 Ga. 412, 413-14 (306 SE2d 285) (1983). However, the fact that appellee’s account signature card contract created a security interest in or a lien on appellant’s account instead of a right of set-off does not affect the ability of the bank to take the action it did. “OCGA § 11-9-104 (j) clearly provides that the secured transactions chapter [Article 9] does not apply to a transfer of an interest in any deposit account.” Willis v. Nat. Bank of Ga., 176 Ga. App. 15, 16 (334 SE2d 917) (1985). Inasmuch as appellant’s checking account is a “deposit account” as that term is defined in Article 9, OCGA § 11-9-105 (1) (e), the strictures of Article 9 were not applicable to appellee’s appropriation of appellant’s account. Appellant’s argument as well as its appeal must fail.

Judgment affirmed.

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


text:
    73100.
    73101.
    JONES v. GEORGIA CASUALTY & SURETY COMPANY. ROGERS v. GEORGIA CASUALTY & SURETY COMPANY.
    (356 SE2d 225)
   McMurray, Presiding Judge.

Eliza Jones (plaintiff Jones) and Maggie Rogers (plaintiff Rogers) were injured in an automobile collision on December 6,1978. Plaintiff Jones was the owner and operator of the vehicle and plaintiff Rogers was a passenger in the vehicle. At the time of the collision, plaintiffs were insured under an automobile insurance policy issued to plaintiff Jones by Georgia Casualty and Surety Company (Georgia Casualty). The policy included basic personal injury protection (PIP) coverage with an aggregate limit of $5,000 per person. (This coverage was selected by plaintiff Jones on a one-page supplemental application form entitled: “Georgia ‘No Fault’ ” and dated “12-9-74.”) Georgia Casualty paid plaintiffs’ personal injury claims up to the limits provided in the insurance policy. Plaintiffs demanded an additional $45,000 in optional PIP coverage pursuant to the rationale of Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 (274 SE2d 623), and Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673). Georgia Casualty refused to pay the additional amounts demanded and plaintiffs filed separate lawsuits seeking recovery of same. The trial court granted summary judgment in favor of Georgia Casuálty in both actions and plaintiffs now appeal separately. Held:

1. In symmetrical enumerations of errors and briefs, plaintiffs contend that Georgia Casualty’s offer of optional coverages failed to meet the statutory requirements of OCGA § 33-34-5, and that plaintiff Jones’ written rejection of the additional PIP coverage was therefore insufficient as a matter of law.

It is undisputed that plaintiff Jones’ insurance policy was in effect prior to March 1, 1975. Consequently, “[t]he legal sufficiency of [Georgia Casualty’s] offer of optional coverages must be determined in light of OCGA § 33-34-5 (c). Prior to its 1982 amendment, that statute required that named insureds who had not previously responded to an offer to accept or reject optional PIP coverages be given an opportunity to accept or reject such coverage in writing. ‘What is required to constitute an opportunity to accept or reject, in writing, the optional coverages: is not described in the statute ... We hold that a two-part requirement necessarily exists. The opportunity must include a document containing (1) written information clearly stating the optional no-fault PIP coverage and the optional no-fault vehicle damage coverage, and (2) a means for the insured to make a written acceptance or rejection of each. Signatures, though acceptable, are not required. Mere blocks to be checked are sufficient.’ Wiard v. Phoenix Ins. Co., 251 Ga. 698, 700 (310 SE2d 221) (1983).” Hodges v. Hartford Cas. Ins. Co., 176 Ga. App. 284, 285 (1) (335 SE2d 672).

In the cases sub judice, the supplemental application form executed by plaintiff Jones sets forth the optional coverages and provision is made for the selection of the optional coverages by checking appropriate blocks. As a preface to the selection of the optional coverages, the form provides: “Under the new Georgia ‘No Fault’ and other laws you have the option of choosing coverages you desire. The law requires that your insurance company offer you these coverages and that you select the ones you want. Please complete each section and return promptly.” At the bottom of the form, there is an acknowledgment of the applicant which provides as follows: “I accept options checked above and reject all not checked. I understand any changes will be effective March 1, 1975.” Below the acknowledgment is a signature space, which plaintiff Jones signed. (See Appendix I).

We find the application provided by Georgia Casualty and executed by plaintiff Jones sufficient to satisfy the two-part requirement set out in Wiard v. Phoenix Ins. Co., 251 Ga. 698, supra. See Hodges v. Hartford Cas. Ins. Co., 176 Ga. App. 284, 285 (1), supra, and cits.

2. Alternatively, plaintiffs contend that they are entitled to maximum PIP benefits because plaintiff Jones accepted a post-accident offer by Georgia Casualty for maximum PIP benefits. Georgia Casualty denies offering retroactively the optional benefits.

Although there is evidence that Georgia Casualty offered plaintiff Jones the opportunity to increase her optional coverages after the accident, we find nothing in the record to indicate that Georgia Casualty offered plaintiff Jones an opportunity to retroactively “accept or reject” the optional coverages required to be offered in OCGA § 33-34-5. Consequently, since plaintiff Jones effectively rejected the maximum optional coverages in the application dated “12-9-74,” the trial court did not err in granting summary judgment in favor of Georgia Casualty.

Judgments affirmed.

Carley and Pope, JJ., concur.

Decided March 17, 1987

Rehearing denied April 1, 1987

Richard Phillips, for appellants.

Stephen M. Worrall, Gary L. Seacrest, for appellee.


text:
    73136.
    ROBINSON v. THE STATE.
    (356 SE2d 55)
   McMurray, Presiding Judge.

Defendant was accused of two misdemeanor offenses, obstruction of a law enforcement officer and simple assault. A jury trial commenced on August 23, 1985, and the following evidence, construed most favorably to support the verdict, was adduced: On April 18, 1985, defendant entered the clerk’s office of the State Court of Chat-ham County, Georgia and began shouting obscenities after his demands in the clerk’s office were not fulfilled. Two law enforcement officers were summoned for assistance and, after failing to comply with the officer’s request to cease from causing a disturbance, the defendant was asked to leave the building. Defendant refused and the law enforcement officers began physically escorting defendant out of the building. Defendant resisted by dragging his feet. Upon entering the hall outside the clerk’s office, defendant “jerked” away and attempted to strike one of the officers. Defendant was arrested and taken to jail. From this and other evidence adduced at trial, the jury found defendant guilty of both charges. Defendant now appeals pro se enumerating some 26 instances of alleged error. Held:

1. In his first enumeration of error defendant asserts two arguments with regard to the preparation of the trial court record.

(a) First, defendant argues the trial court erred “in failing to order transcripts in their entirety” of several preliminary hearings. In this regard, the trial court ruled: “If there are any transcripts available, make them available to [defendant]. If there are no transcripts, then they’re not available ...” (There is nothing in the record to indicate that defendant requested a recording or transcription of the preliminary hearing before the hearings were conducted.) No transcripts of the preliminary hearings appear in the record on appeal. Consequently, we assume none are available. Under these circumstances, we turn to the question of whether defendant was entitled to a recording and transcription of the preliminary hearings.

“OCGA § 5-6-41 addresses the requirements for the reporting and preparation of transcripts of evidence in trial proceedings. OCGA § 5-6-41 (b) provides that ‘(i)n misdemeanor cases, the trial judge may, in his discretion, require the reporting and transcribing of the evidence and proceedings on terms prescribed by him.’ OCGA § 5-6-41 (j) provides, ‘(i)n all cases, civil or criminal, any party may have the case reported at his own expense.’ ” Williams v. State, 254 Ga. 690 (333 SE2d 613). These Code provisions apply to preparation of transcripts of preliminary hearings and arraignments.

In the case sub judice, since defendant was charged with two misdemeanor offenses and since there is nothing in the record to show defendant requested a recording and transcription of the preliminary hearings before the hearings were conducted, no recording and transcription was required. Consequently, the trial court did not err in failing to provide defendant with transcripts of the preliminary hearings. (See Harper v. State, 170 Ga. App. 601, 603 (4) (317 SE2d 567), where this court concluded that failure to provide defendant with “a transcript of the preliminary hearing in order for him to use same to attack the testimony given against him or for same to be used for impeachment purposes”; did not require reversal of his conviction of burglary.)

(b) Next, defendant argues that the trial court erred in failing to transmit “paperwork filed ... in the Magistrate’s Court.” This argument is not supported by the record.

The Clerk of the State Court of Chatham County, Georgia certified that a complete copy of the original 333-page record and the entire trial transcript were transmitted to this court. (The record includes documents filed with the Magistrate Court and the Recorder’s Court of Chatham County, Georgia.) There being no evidence showing an omission of documents, we find the clerk’s certificate conclusive evidence that the entire trial court record was included in this appeal. See OCGA § 5-6-43 (a).

2. In his second enumeration of error defendant contends “[t]he trial court and Magistrate Court erred in failing to prove jurisdiction over the person as well as the subject matter.” “State courts have jurisdiction to try misdemeanors. OCGA § 15-7-4.” Pfeiffer v. State, 173 Ga. App. 374 (1) (326 SE2d 562). In the case sub judice, it is not disputed that the crimes occurred in Chatham County, Georgia. Consequently, the Magistrate Court and the State Court of Chatham County had jurisdiction over defendant. OCGA § 17-2-1.

3. Defendant contends in his third enumeration of error that “[t]he trial court erred in failing to provide [him] a common law jury trial with a common law jury of 12 jurymen of [his] peers.” Defendant was tried by a six-member jury.

“A trial by jury shall consist of 12 persons; but the General Assembly may prescribe any number, not less than six, to constitute a trial jury in courts of limited jurisdiction and in superior courts in misdemeanor cases.” Ga. Const. 1983, Art. I, Sec. I, Par. XI (b). In OCGA § 15-12-125 the General Assembly provides for six-member juries in the trial of misdemeanors. This enumeration is without merit.

4. Next defendant contends he was not provided a public and speedy common law trial as required by OCGA § 17-7-170. Defendant argues that he filed a demand for trial on April 29, 1985. The record does not support this contention. However, pretermitting this factual dispute and assuming an appropriate demand for trial was filed on April 29, 1985, we find defendant was not entitled to an absolute discharge and acquittal under OCGA § 17-7-170.

It is undisputed that the accusations, charging defendant of the offenses, were filed on June 10, 1985. “[A] demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred. Fisher v. State, 143 Ga. App. 493 (238 SE2d 584) (1977).” Majia v. State, 174 Ga. App. 432, 433 (1) (330 SE2d 171), aff’d. in State v. Majia, 254 Ga. 660 (333 SE2d 834). Since defendant’s demand for trial was made prior to filing of the accusations, he was not entitled to invoke the mandate of OCGA § 17-7-170. See State v. Spence, 179 Ga. App. 750, 752-753 (347 SE2d 612).

5. In his fifth and ninth enumerations of error, the thrust of defendant’s arguments is that he was denied counsel of his own choosing during trial. “Although the sixth amendment of the United States Constitution, which [defendant] invokes, guarantees every defendant aid of an attorney, that attorney need not be counsel of defendant’s choosing. Kesler v. State, 249 Ga. 462, 474 (12) (291 SE2d 497) (1982).” Pfeiffer v. State, 173 Ga. App. 374, 375 (3), supra.

In the case sub judice, defendant was appointed an attorney according to his request. On the day of trial, defendant requested that his former wife, a non-attorney, represent him in lieu of his court-appointed attorney. The trial court denied this request and directed defendant’s court-appointed attorney to remain at trial. Under these circumstances, defendant argues that the trial court erred in refusing to allow his former wife to represent him at trial and in failing to dismiss his court-appointed attorney.

The trial court did not err in refusing to allow a non-lawyer to represent defendant at trial. Pfeiffer v. State, 173 Ga. App. 374, 375 (3), supra. Further, we find no error in the trial court directing defendant’s attorney to remain during trial as defendant did not request to proceed pro se and since defendant did not indicate that he intended to employ a licensed attorney to represent him at trial. See Williams v. State, 169 Ga. App. 812 (315 SE2d 42). Defense counsel did not adversely prejudice defendant’s case.

6. Defendant next contends that “[t]he Magistrate’s Court erred in failing to provide [him] with due process of law.” In this regard, defendant argues that he was denied due process because the clerk of the Magistrate Court failed to complete certain blanks on a form order issued by the magistrate’s court designating the amount of his bond pending arraignment. Defendant concedes that he was informed of the terms of his bond by the judge of the Magistrate Court at the bond hearing. Further, defendant does not challenge the terms of the bond. Under these circumstances, we find no violation of defendant’s right to due process. This enumeration of error is without merit.

7. In his seventh enumeration of error defendant contends he was arrested without probable cause.

“OCGA § 17-4-20 (Code Ann. § 27-207) provides that an arrest may be made by a law enforcement officer without a warrant if an offense is committed in his presence. The constitutional validity of an arrest without a warrant depends upon whether the arresting officer had probable cause to believe the defendant was committing, or had committed, an offense in the officer’s presence. Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142).” Brooks v. State, 166 Ga. App. 704, 705-706 (305 SE2d 436).

In the case sub judice, defendant’s warrantless arrest was based on the officers’ observation of defendant’s obscene and disruptive behavior in a public place followed by a violent outburst toward a law enforcement officer. Under these circumstances, we find sufficient probable cause to sustain defendant’s warrantless arrest.

8. In his eighth enumeration of error defendant contends “[t]he trial court erred by failing to provide [him] with a motion hearing at least 10 days prior to trial by denying [him] transcripts of pre-trial hearings.” In this regard, defendant argues that he was entitled to transcripts of the pre-trial hearings. This issue has been addressed in Division 1 (a) of this opinion.

An examination of the trial transcript reveals that the trial court conducted a protracted pre-trial hearing addressing each of defendant’s motions. Consequently, as defendant was afforded a pre-trial hearing on each of his motions and since defendant has failed to demonstrate how additional time before trial would have benefited him in presenting his pre-trial motions, the trial court did not err in failing to provide defendant a motions hearing 10 days prior to trial. This enumeration of error is without merit.

9. Defendant contends in his tenth enumeration of error that “[t]he trial court erred in failing to grant [his] demand to have all State witnesses individually sequestered in individual rooms and not just sequestered all together in one room.” “Application of the rule of sequestration is within the sound discretion of the trial court.” Wilson v. State, 158 Ga. App. 174, 176 (7) (279 SE2d 345). In the case sub judice, defendant has failed to show how the trial court’s failure to sequester the witnesses according to his demand was abusive. This enumeration of error is meritless.

10. In his eleventh enumeration of error defendant contends “[t]he trial court and Magistrate’s Court erred by holding [him] to answer for an otherwise infamous crime without indictment of a grand jury.” This argument is without merit. OCGA § 17-7-71 (a), (d).

11. Defendant argues in his twelfth enumeration of error that “the accusations and warrants do not substantially comply with the form required by Georgia Code.” We do not agree. The accusations substantially comply with the requirements of OCGA § 17-7-71 (d). Further, since defendant’s arrest was warrantless, his argument concerning the validity of the criminal warrants is without merit. (The record shows warrants were obtained after defendant’s arrest in an abundance of caution by one of the arresting law enforcement officers.)

12. In his thirteenth enumeration of error defendant contends “[t]he trial court and Magistrate’s Court erred by not releasing [him] of all charges based on [OCGA] § 17-4-26.”

“Notwithstanding the alleged wrong, the courts have ruled that [violation of OCGA § 17-4-26] in no way vitiates the indictment, trial, verdict, and judgment of conviction and sentence. Furman v. State, 225 Ga. 253 (5) (167 SE2d 628); Johnson v. Plunkett, 215 Ga. 353 [110 SE2d 745]; Dukes v. State, 109 Ga. App. 825 (1) (137 SE2d 532); Blake v. State, 109 Ga. App. 636 (2) (137 SE2d 49).” Heard v. State, 126 Ga. App. 62, 64 (1) (189 SE2d 895). This enumeration of error is without merit.

13. Next, the defendant contends “[t]he trial court erred by refusing to rule which list of witnesses was to be used as the list of witnesses during trial.” It is not disputed that defendant was informed before trial of the witnesses who were to testify for the State. Under these circumstances, we find no error which requires reversal of defendant’s conviction.

14. Next, defendant argues that the trial judge was not qualified to preside over his trial. This argument is without merit.

15. Defendant argues that he did not receive a fair trial in Chat-ham County, Georgia because of excessive press coverage. Georgia Constitution 1983, Art. VI, Sec. II, Par. VI provides for a change of venue in cases in superior courts only when the judge is satisfied that an impartial jury cannot be drawn. There has been no showing that defendant was not tried by an impartial jury. This argument is without merit. See OCGA § 17-2-2 (a).

16. Defendant argues that the trial court erred in denying his motion to suppress evidence. No physical evidence was produced at trial. Consequently, this issue is moot.

17. Defendant’s eighteenth and nineteenth enumerations of error wherein he contends “[t]he trial court erred by denying [him] his rights sua sponte” and “[t]he trial court erred by denying [him] his right to know if the court was at law or in equity” are without merit.

18. In enumeration of error twenty, defendant contends the trial court did not allow him to question the jurors individually on voir dire. This contention is not supported by the record. Upon voir dire, the trial court directed the defendant and the State to first ask general questions and, if necessary, conduct an independent examination of each juror. Defendant was afforded this opportunity.

19. In enumeration of error twenty-one, defendant contends “[t]he trial court erred by denying [him] the opportunity to argue his theory of the case to the jury.” This argument is not supported by the record. Defendant was afforded a full and fair opportunity to present his opening statement. The trial court properly limited defendant’s opening remarks to matters relevant to jury consideration.

20. Defendant argues the trial court erred in limiting his cross-examination of one of the State’s witnesses. In this regard, the trial court did not allow defendant to question one of the arresting officers concerning a conversation which transpired between the officer and an individual who did not witness the incident which gave rise to defendant’s arrest. The court found the testimony to be irrelevant.

“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. Since the third party did not witness the incident which gave rise to defendant’s arrest, the trial court did not err in excluding the conversation as irrelevant. This enumeration of error is not meritorious.

21. In his twenty-fourth enumeration of error defendant contends “[t]he trial court erred by denying [defendant’s] charge to the jury that he was already under arrest the moment he was in custody.” In support of this contention, defendant argues that the trial court erred by failing to charge the jury “from Black’s Law Dictionary (Fifth Edition) about the standard definition of arrest. . .” This request did not relate to any issue relevant to the jury’s consideration and was properly refused. “A request to charge which is irrelevant to all issues to be determined by the jury may be rejected.” [White v. State, 230 Ga. 327, 338 (7) (196 SE2d 849).] Daniel, Ga. Crim. Trial Prac. (1985 ed.), § 22-6.

22. In his twenty-fifth enumeration of error defendant contends “[t]he trial court erred by denying [defendant’s] charge to the jury concerning entrapment and circumstantial evidence.”

There was no evidence presented at trial indicating that defendant was entrapped. Further, neither the State nor defendant introduced circumstantial evidence to establish a critical element of their case. Consequently, the trial court did not err in refusing to charge on these principles. See citations in Division 21 of this opinion.

23. In his twenty-third and twenty-sixth enumerations of error defendant contends the evidence was not sufficient to sustain the verdiet. We do not agree. The overwhelming evidence presented at trial showed that defendant knowingly and wilfully refused to obey law enforcement officers while they were performing their official duties. See OCGA § 16-10-24. Further, the evidence showed that defendant attempted to strike one of the officers while he was being escorted out of the Clerk’s office of the State Court of Chatham County, Georgia. See OCGA § 16-5-20. The evidence was more than sufficient to meet the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Brooks v. State, 166 Ga. App. 704, supra.

Decided March 17, 1987

Rehearing denied April 1, 1987.

Gene K. Robinson, pro se.

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

Judgment affirmed.

Carley and Pope, JJ., concur.


text:
    73199.
    CRAFT v. PREBLE.
    (355 SE2d 746)
   McMurray, Presiding Judge.

This is a wrongful death action. Plaintiff’s decedent, Ida Mae Craft,> had been institutionalized off and on for 33 of her 45 years. She was mildly retarded and had some brain damage.

Defendant was an employee of the State of Georgia and was working for the Stephens County Board of Health through the Department of Human Resources in the Stephens County Mental Health Clinic. At all pertinent times, defendant was acting within the scope of her public employment. Defendant worked within the supportive living program, the goal of which was to make the individual clients, such as Ida Mae Craft, as independent as possible. The responsibilities of defendant were to encourage and work with those providing homes to the clients on problems that came up and to be liaison between the home provider and the clients’ primary therapist (a/k/a case manager). Defendant provided these services to approximately 35 clients including Ida Mae Craft.

For over a year prior to May 31,1983, Ida Mae Craft had lived in a supportive living home. On May 31, 1983, Ida Mae Craft left that home and refused to return. Defendant arranged for accommodations for Ida Mae Craft at the Trav-Air Motel. Ida Mae Craft remained at the Trav-Air Motel until she disappeared on or about June 7, 1983. On June 11, 1983, the body of Ida Mae Craft was found in Lake Hart-well, where she had drowned.

Decided March 17, 1987

Rehearing denied April 1, 1987.

James E. Cornwell, Jr., for appellant.

John A. Dickerson, for appellee.

Plaintiff’s amended complaint alleges that “the act of defendant in placing Ida Mae Craft in Trav-Air Motel, a facility not approved to house mentally ill people, was willful, wanton or malicious.” Following discovery defendant moved for summary judgment. Plaintiff appeals the grant of summary judgment in favor of defendant. Held:

Plaintiff’s action is predicated upon an alleged erroneous exercise of discretion by a governmental officer acting within the scope of the officer’s authority. Therefore, defendant is immune from liability unless her actions are willful, malicious or corrupt. Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878); Roberts v. Grigsby, 177 Ga. App. 377 (1) (339 SE2d 633).

Plaintiff places a great deal of reliance upon the fact that the Trav-Air Motel was not licensed as a personal care home. (The regulation governing personal care homes may be found in Rules and Regulations of the State of Georgia, Vol. IV, Chap. 290-5-35-.01 et seq.) However, defendant’s uncontroverted evidence is that during the pertinent time period there was no prohibition on placing supportive living program clients in facilities which were not licensed personal care homes.

Defendant had been placing clients in motels, on a temporary basis, including Trav-Air Motel with the approval of her supervisor and had previously placed Ida Mae Craft in a motel for three or four weeks during which “[s]he did pretty well.” When clients were placed in a motel there was no personal care home provider and the clients would have to take care of themselves. However, there is nothing in the record suggesting that such temporary placement was beyond the capability of the clients generally or of Ida Mae Craft individually.

In summation, we note that a thorough review of the record fails to reveal any evidence of that extreme misconduct which is characterized as willful, wanton, malicious or corrupt. See Arrington v. Trammell, 83 Ga. App. 107, 110 (62 SE2d 451); Carpenter v. Forshee, 103 Ga. App. 758, 773 (120 SE2d 786). Nor is there any evidence that the placement of Ida Mae Craft at the Trav-Air Motel was the proximate cause of her death. Consequently, the trial court did not err in granting summary judgment in favor of defendant.

Judgment affirmed.

Carley and Pope, JJ., concur.


text:
    73219.
    SIMPKINS v. THE STATE.
    (356 SE2d 566)
    Decided March 10, 1987
    Rehearing dismissed April 1, 1987.

      Sam B. Sibley, Jr., District Attorney, for appellee.
   Benham, Judge.

Appellant was convicted of kidnapping and sentenced to 20 years to serve. His attorney filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967). In accordance with Anders, counsel has filed a brief raising points of law which he considered could arguably support an appeal. We are in agreement with counsel that none of the points raised, though persuasively presented, has any merit. We have therefore granted the motion to withdraw. We have, however considered the points raised by appellant in two briefs filed pro se. First, we find no error in the charges of which appellant complains: they were adjusted to the evidence and were correct statements of the law. Second, the remaining issues present no question on appeal because they were not raised in the trial court (see Morris v. State, 179 Ga. App. 228 (3) (345 SE2d 686) (1986)), including a possible claim under Batson v. Kentucky, 476 U. S. - (106 SC 1712, 90 LE2d 69) (1986). Compare Sparks v. State, 180 Ga. App. 467 (349 SE2d 504) (1986); Mincey v. State, 180 Ga. App. 263 (349 SE2d 1) (1986); Wise v. State, 179 Ga. App. 115 (346 SE2d 393) (1986). In addition, we have fully examined the record and transcript to determine independently if there are any meritorious errors of law. We have found none. We are satisfied that the evidence produced at trial was sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

Judgment affirmed.

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


text:
    73226.
    THE STATE v. WATKINS.
    (356 SE2d 82)
   McMurray, Presiding Judge.

Defendant is charged by indictment with the offense of trafficking in cocaine. This is an appeal by the State from the grant of defendant’s motion to suppress evidence. Held:

On the morning of August 26, 1983, at approximately 10:45 a.m., Detective Mabe, responding to a suspicious person call, went to a shopping center parking lot. Officer Mabe found defendant and a female companion, both apparently asleep, in defendant’s legally parked automobile. After speaking to the merchants who had placed the call, Officer Mabe attempted to arouse defendant and his companion. Although at first unable to awaken either, after about 45 seconds the officer awoke defendant. In response to Officer Mabe’s inquiry, defendant told the officer that he and his girl friend had been riding around all night and they were tired and were going to sleep. In response to Officer Mabe’s request for identification, defendant pointed to a traffic citation issued in Florida. Based on this identification of defendant Officer Mabe ran a check and determined that there was an outstanding warrant for defendant’s arrest from the City of Atlanta. Officer Mabe placed defendant under arrest based on the warrant from the City of Atlanta and also for public drunkenness. Officer Mabe then attempted to awaken defendant’s female companion whom he also arrested for public drunkenness.

It was approximately at this juncture that Officer Vermilion arrived at the scene to assist Officer Mabe. The officers conferred and agreed that, to expedite the matter, Officer Vermilion would impound the defendant’s automobile while Officer Mabe transported the defendant and his female companion. Officer Mabe left the scene with defendant and his female companion and thereafter Officer Vermilion began the inventory of defendant’s automobile pursuant to the decision to impound it. In the course of his inventory Officer Vermilion found the cocaine upon which the charges against defendant are predicated in a small styrofoam cooler on the rear floorboard of the automobile. Officer Mabe testified that no search of defendant’s automobile incident to the arrest was done while he was present at the scene, that he never asked the defendant what he wanted done with his automobile and that defendant never gave any permission for a search of his automobile.

The State relies upon the rule established in New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768), that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. . . .” Our decision in State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529), involved the application of the New York v. Belton rule. In Hopkins, this court in applying the principles established by the United States Supreme Court in New York v. Belton, 453 U. S. 454, supra, held that a search is valid as an incident to a lawful custodial arrest where the defendant had been handcuffed and placed in a patrol car while the search was conducted. In Hopkins, we found that the teaching of Belton was “that a search of the passenger compartment of an automobile recently occupied by an arrestee is a valid search incident to an arrest, even if the arrestee had no ‘immediate control’ of the area at the time the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a ‘recent occupant’ of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search . . . Accordingly, it cannot be urged that the Supreme Court in Belton authorized a search of the passenger compartment of a vehicle which is no longer physically occupied by an arrestee only in a situation where the arrestee still retains possible access to the car and its contents.” State v. Hopkins, supra, 143, 144.

Decided March 19, 1987

Rehearing denied April 1, 1987.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Assistant District Attorney, for appellant.

C. Stephen Allen, B. Anderson Mitcham, for appellee.

The State argues that State v. Hopkins, 163 Ga. App. 141, supra, is indistinguishable factually from the case sub judice. Defendant argues that New York v. Belton, supra, and State v. Hopkins, supra, must be distinguished on the facts because he and his female companion were already being transported from the scene and were not present at the time of the search. The only factual difference between the instant case and State v. Hopkins, supra, is that here the defendant and his female companion were being transported to the police station while the search was conducted. Contrary to the defendant’s contention, we find this to be a distinction without a difference because in neither case was there any possibility that the detainee could reach anything in the vehicle, and in both cases, the search was incident to the lawful custodial arrest of a person or persons who had recently occupied the vehicle searched. Under the particular facts and circumstances of the case sub judice there was a valid search of defendant’s automobile. It was error for the trial court to grant defendant’s motion to suppress.

Judgment reversed.

Carley and Pope, JJ., concur.


text:
    73278.
    GENERAL WARRANTY CORPORATION INSURANCE AGENTS & ADMINISTRATORS v. CAMERON-HOGAN, INC. et al.
    (356 SE2d 83)
   McMurray, Presiding Judge.

Plaintiff General Warranty Corporation Insurance Agents and Administrators, a California Corporation (hereinafter “General Warranty”) is in the business of marketing and administering vehicle service contract programs (also referred to as extended warranty contracts) which provide for repairs to motor vehicles beyond the warranty period provided by a motor vehicle manufacturer. Defendant Cameron-Hogan, Inc. is a Georgia corporation which undertook the marketing and servicing of plaintiff’s vehicle service contracts in Georgia pursuant to a written contract dated October 15, 1982. Individual defendants Randall E. Cameron and Charles M. Hogan are the officers, directors and shareholders of Cameron-Hogan, Inc. (corporate defendant).

Defendant Cameron and defendant Hogan, along with a third individual Roseberry were also members of a partnership known as The Southeastern Agency. The Southeastern Agency was created by the three as the entity through which they would contract with plaintiff to serve as the “Master General Agent” for plaintiff in several southeastern states. The Southeastern Agency and plaintiff negotiated regarding the terms of the proposed “Master General Agent” agreement for a period of approximately 18 months (September 1982 to May 1984) and during this period of time The Southeastern Agency performed services for plaintiff and was compensated by plaintiff. However, there was never a final written contract between plaintiff and The Southeastern Agency.

The individual defendants, along with Roseberry, developed a relationship with a competitor of plaintiff in the course of which they contributed to the design and development of a competitive vehicle service contract. A new company, Southeastern Warranty Corporation, was created to market the competitive service contracts. The individual defendants hold options to purchase stock in Southeastern Warranty Corporation.

In May 1984 defendants began to market the competing product line of Southeastern Warranty Corporation in Georgia. The intention of the defendants was to continue marketing plaintiff’s product line while at the same time switching the business of certain “high volume” dealers to the vehicle service contracts of Southeastern Warranty Corporation (there was evidence that the design of the Southeastern contracts was specifically tailored for the high volume dealers).

Plaintiff became aware that defendants were involved in the sale of a competitor’s product and a series of meetings ensued between plaintiff, defendants and Roseberry on June 4-6, 1984. It was at these meetings that defendants first acknowledged to plaintiff their participation in the sale of competing products. These meetings failed to resolve the situation and on June 19, 1984, this action was filed, followed the next day by the formal termination by plaintiff of The Southeastern Agency and of defendant Cameron-Hogan, Inc.

Plaintiff’s complaint, as amended, in six counts seeks damages from one or more of the defendants on theories including breach of contract, breach of fiduciary duty and interference with contractual relationships. Plaintiff sought damages including certain previously paid and unpaid commissions and profits of defendant realized as a breach of contractual or fiduciary duties, and expenses of litigation. The defendants’ counterclaim seeks damages based on allegations including nonpayment of commissions due and a claim for expenses of litigation.

On the trial of the case, the jury’s verdict provided, as to the claims for unpaid commissions under the written contract between plaintiff and Cameron-Hogan, Inc., that plaintiff retain the amount of $18,003.67 and an award to defendant Cameron-Hogan, Inc. for commissions in the amount of $36,007.33. On the claims for commissions under the oral agreement between the plaintiff and The Southeastern Agency, the verdict was for defendant Cameron and defendant Hogan in the amount of $13,464. On plaintiff’s claim for profits earned on competing product sales the jury’s verdict was for plaintiff and against the corporate defendant in the amount of $6,300. On the claims for attorney fees and expenses of litigation the jury found that each party was to pay their own attorney fees and expenses of litigation. Judgment followed the verdict and plaintiff moved for judgment n.o.v. or in the alternative for new trial. This motion was denied and plaintiff appeals. Held:

1. Plaintiff contends the trial court erred in denying its motion for directed verdict and its motion for judgment n.o.v. or in the alternative for a new trial. In support of these contentions the plaintiff argues that the evidence demands a finding that the defendants were agents of plaintiff, breached their fiduciary duties to plaintiff and plaintiff is entitled to damages for that breach.

The issue presented by plaintiff’s motions is whether there is any evidence supporting the verdict. Georgia Farm &c. Ins. Co. v. Matthews, 149 Ga. App. 350, 351 (1) (254 SE2d 413); Williams v. Stankowitz, 149 Ga. App. 865 (256 SE2d 147). See also Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1) (256 SE2d 916); Mercer v. Woodard, 166 Ga. App. 119, 126 (10) (303 SE2d 475).

As to each of the defendants, there is some evidence showing that there was no principal-agent relationship with plaintiff. In regard to defendant Cameron-Hogan, Inc. one need only look to the terms of the written contract under which this defendant represented plaintiff. This “Administrative Representative Agreement” clearly provided that the corporate defendant represented plaintiff on a non-exclusive basis as an independent contractor, free to exercise its own judgment as to the time and manner in which its duties under the contract are. to be performed and lacking any authority to contractually bind plaintiff. Additionally, there was testimony that the corporate defendant did in fact function as an independent contractor as provided in the written contract.

As to the individual defendants, plaintiff’s evidence as to the existence of a principal-agent relationship is contradicted by testimony that there had been no agreement as to the terms of the proposed Master General Agent agreement, and that, while The Southeastern Agency undertook certain marketing responsibilities for plaintiff. The Southeastern Agency had no power to bind coverage, receive money, adjust a claim, contract a general agent, or extend credit for plaintiff. In this connection, we note that a denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties. Commercial Union Ins. Co. v. Taylor, 169 Ga. App. 177, 180 (312 SE2d 177). An essential characteristic of an agent is his ability to bind his principal. Lagerstrom v. Beers Constr. Co., 157 Ga. App. 396, 398 (277 SE2d 765). As there is some evidence regarding the absence of a principal-agent relationship between plaintiff and each of the defendants, the verdict was authorized by the evidence and the trial court did not err in denying plaintiff’s motions.

2. Additionally, we note that, insofar as the plaintiff contends the denial of his motion for new trial was error because “the verdict as returned by the jury is not supported by the evidence in the form in which it was returned,” such issue was expressly waived by plaintiff at trial. There is nothing preserved for review in regard to the form of the verdict.

3. Plaintiff contends that the trial court erred in refusing to allow plaintiff’s claim that it was entitled to recover the sum of $152,000 from defendant Cameron-Hogan, Inc., as previously paid, but unearned commissions. While plaintiff suggests that the trial court either granted a motion for directed verdict or on its own motion declined to allow this claim to go to the jury, we are unable to find such a ruling in the record. Plaintiff acknowledges that the transcript is unclear on this point and makes references only to a colloquy between court and counsel which reflects that this claim had previously ceased to be an issue in the case. Although under Rule 15 (c) (3) of the Rules of the Court of Appeals of the State of Georgia the duty rests with plaintiff to support its enumeration with specific reference to the record, we have attempted to find in the transcript some ruling by the trial court or even a motion by the parties in regard to this issue. Having failed to find anything of this nature in the lengthy transcript we hold that this enumeration being unsupported by the record may not be considered. Desai v. Safeco Ins. Co., 173 Ga. App. 815, 817 (328 SE2d 376); Continental Ins. Co. v. Carter, 171 Ga. App. 162, 163 (318 SE2d 770).

4. Plaintiff contends the trial court erred in granting defendants’ motion for directed verdict as to plaintiff’s claim for $17,932.17 for expenses incurred by plaintiff as a result of defendants’ breach of their fiduciary duties to plaintiff. The sum in question was expended during the period June 4, 1984, to August 23, 1984, by plaintiff’s sales department for its activities in Georgia. While some portion of the claimed sum may have been properly recoverable under OCGA § 13-6-1 such portion is not determinable from the lump sum evidence presented. The lump sum included amounts which were duplicitous of plaintiff’s recovery of profits earned on competing product sales and other portions were merely cost of continuing the sales of plaintiff’s products in this state following the termination of defendants. “An injured party can not be placed in a better position than he would have been in if the contract had not been breached.” Lastinger v. City of Adel, 69 Ga. App. 535, 536 (26 SE2d 158). A jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position where an allowance of loss is based on guesswork. See Roland v. Byrd, 163 Ga. App. 408, 410 (294 SE2d 626). As the plaintiff’s evidence fails to provide sufficient data to permit a reasonable determination of allowable damages the trial court did not err in directing a verdict on this issue.

5. Plaintiff’s eighth and tenth enumerations contend that instructions given the jury are erroneous. Plaintiff’s arguments in each instance are predicated on the supposition that a principal-agent relationship existed between it and defendant Cameron-Hogan, Inc. independent of the alleged Master General Agency agreement between plaintiff and The Southeastern Agency. However, as plaintiff’s contract with the corporate defendant clearly provided for an independent contractor relationship and as there was no evidence supporting plaintiff’s factual supposition, the charges at issue were properly adjusted to the evidence. Gurin v. Gen. Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830); Gaul v. Kennedy, 246 Ga. 290, 291 (2) (271 SE2d 196).

6. Plaintiff contends the trial court erred in charging the jury as follows: “I charge you that the Defendants were not agents of [plaintiff] General Warranty unless they were authorized and given discretion to bind [plaintiff] General Warranty to contracts with other parties. This is an essential characteristic of an agency.” Plaintiff argues that an agency is broader than stated in the contested charge and that as plaintiff’s counsel stated at trial, “you don’t have to be able to bind if you’re able to put your principal in contact with third parties out of which binding contracts arise.” We find no support for plaintiff’s argument. Lagerstrom v. Beers Constr. Co., 157 Ga. App. 396, 398, supra, the only Georgia case cited by plaintiff in regard to this enumeration states the rule contained in the contested charge (albeit in other words). This enumeration is without merit.

7. Plaintiff enumerates as error the charge to the jury which follows: “I charge you that before you may find the defendants owe any damages to the plaintiff you must find that [plaintiff] General Warranty performed its obligations to the defendants, that the sale of another product was a breach of defendants’ contract with [plaintiff] General Warranty and that [plaintiff] General Warranty’s damages, if any, were caused by the breach.” Plaintiff’s objection to this charge at trial was “that it implies that the sale of another warranty product must be a breach of a written contract. Although it does not specifically say that I think the implication of it is there.” We do not believe that a juror of ordinary capacity and understanding would find the implication suggested by plaintiff’s counsel. Nor would such an implication arise when considering the contested language together with the instructions given the jury on principles of contract law. “We will not impute such an inability to the jury to follow the plain and unambiguous instructions of the judge. ... A charge that is sufficiently clear to be understood by jurors of ordinary capacity and understanding is all that is required.” Green v. Trevena, 142 Ga. App. 621, 622 (1) (236 SE2d 775). This enumeration of error is without merit.

8. Plaintiff enumerates as error the following instruction to the jury: “I charge you that a party is excused from [the] failure to perform under its contract where the failure is caused by the act or fault of the other party. Thus, if you find that the defendants or any one of the defendants did not perform their contractual obligations, you must also find that this failure was not caused by the acts or fault of [plaintiff] General Warranty before you may find the defendants liable for a failure to perform.” Plaintiff’s objection at trial to this charge was “that it was a duplicative charge, given more than once.” The substance of this instruction was contained in two other segments of the charge (albeit in a somewhat different context in each instance). However, after our review of the charge we find no overemphasis of this issue. See Neloms v. Carmichael, 125 Ga. App. 331 (3) (187 SE2d 555); Richards v. Harpe, 42 Ga. App. 123, 126 (13) (155 SE85).

9. Plaintiff enumerates as error the failure of the trial court to include in its charge to the jury a requested charge (that an independent contractor may also be an agent) submitted by plaintiff at the close of the evidence. As there is no suggestion that the requested charge covers an unanticipated point which arose after the commencement of trial, the submission of the request to charge was not timely and the trial court did not err in refusing to give the requested charge. See Rule 10.3, Uniform Superior Court Rules (which provides for submission at the commencement of trial); OCGA § 5-5-24 (b); Hubacher v. Volkswagen Central, 164 Ga. App. 791, 796 (5) (298 SE2d 533).

Decided March 19, 1987

Rehearing denied April 1, 1987.

Paul R. Jordan, for appellant.

Peyton S. Hawes, Jr., for appellees.

Judgment affirmed.

Carley and Pope, JJ., concur.


author: Benham, Judge. Deen, Presiding Judge,

text:
    73355.
    LEVANGIE et al. v. DUNN.
    (356 SE2d 88)
   Benham, Judge.

This appeal arose out of a bizarre and tragic set of events which apparently left a 16-year-old boy with serious and possibly permanent spinal injuries. Claiming error in the trial court’s granting of summary judgment, appellants lay this controversy at our feet for determination.

Michael Levangie, a 16-year-old eleventh grader, suffered a disabling spinal injury on January 12, 1985, while attending a rock concert and dance at appellee’s sports pavilion in Spalding County, Georgia. During the first of two nights of the concert, one or more fights erupted and on both nights there was evidence of alcoholic beverages being consumed on the premises even though many of the concertgoers were minors. Music was furnished by the rock group, Phylon, and as part of the dance ritual Levangie donned a wolf’s head mask and simulated banging his head in an attempt to get the crowd involved in the show. Though Levangie was not a member of the band, he was a friend of the band and he took it upon himself to perform as mentioned above to heighten the frenzied atmosphere. On the night in question, Levangie was joined by members of the audience in simulating group head-banging. While this ritual was in progress and during the playing of “Born to be Wild,” Levangie was approached from behind by Mike York, nicknamed “York the Dork,” who was obviously intoxicated from guzzling “Jack Daniel’s” whiskey. York grabbed Levangie, supposedly to perform assisted simulated headbanging, and then shook him violently, allegedly causing a severe spinal cord injury. A suit followed against Robert Dunn, d/b/a The Math Field, owner of the sports pavilion, claiming, inter alia, violations of certain ordinances and statutes as to public gatherings and failure to supervise activities. The trial court granted summary judgment to Dunn and this appeal was taken.

1. The question presented by appellants’ third enumeration of error is whether the victim’s injuries were proximately caused by appellee’s alleged negligence. Appellants’ complaint alleged that appellee negligently allowed the dance to be held on his premises without having a dance hall permit; that he allowed patrons to consume alcoholic beverages on the premises without having an alcoholic beverages consumption permit; that he inadequately supervised the safety and well-being of the patrons; and that those omissions were the proximate cause of Levangie’s injuries. We disagree.

Encompassed within the concept of negligence is an element of foreseeability (Teppenpaw v. Blaylock, 126 Ga. App. 576, 578 (191 SE2d 466) (1972)), which need not be as to the specific injury suffered but as to some injury. Mixon v. Dobbs Houses, 149 Ga. App. 481, 483 (254 SE2d 864) (1979). However, the concept does not include foreseeability of remote or unusual events. Aretz v. United States, 503 FSupp. 260 (1977). “It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.” Union Carbide v. Holton, 136 Ga. App. 726 at 729 (222 SE2d 105) (1975).

Even if appellee could have foreseen Levangie’s injury, he had no supervisory control over how the patrons danced and, therefore, he would have been powerless to prevent such an injury, whether he had a dance permit or not. Appellee had no duty to protect Levangie against such an intervening cause as a fellow party-goer walking up to and shaking him. The record indicates that Levangie’s assailant, York, had been drinking whiskey straight from the bottle prior to arriving at the dance. That fact, coupled with the fact that appellee did not sell or otherwise offer alcohol to the patrons, also created a break in the chain of causation that culminated in Levangie’s injury. Even if appellee had obtained a liquor permit he could not have prevented York from consuming his liquor elsewhere and then attending the dance. There is nothing in the record to indicate appellee was aware of York’s presence or condition before the accident occurred. Therefore, appellee could not, as a matter of law, be held responsible for Levangie’s injury.

We have said repeatedly that foreseeability as an element of negligence is a jury question (Collins v. Altamaha &c. Corp., 151 Ga. App. 491, 492 (260 SE2d 540) (1979)), except where the evidence is plain, palpable and undisputable. Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986). The case before us being within the exception, the trial court did not err in granting summary judgment for appellee.

2. The holding in appellee’s favor in Division 1 of this opinion renders moot appellants’ remaining two enumerations of error regarding assumption of the risk.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Carley and Sognier, JJ., concur. Deen, P. J., McMurray, P. J., and Pope, J., dissent. Beasley, J., dissents in judgment only.

Deen, Presiding Judge,

dissenting.

In affirming the grant of summary judgment for the appellee, the majority opinion concludes that the evidence was plain, palpable, and undisputable that the appellant’s injury was not reasonably foreseeable. I cannot concur with that assessment of the evidence.

Even as summarized by the majority opinion, there was sufficient evidence to authorize a finding that the appellee actually promoted the rowdy and illegal social environment in which the appellant was injured. What began as an event to raise money for “Christmas” lights ended in chaotic crisis conditions. On the afternoon before the evening when the appellant was injured, supervisors of the appellee offered marijuana to the band members at the club. Although no alcoholic beverages were sold on the premises, the evidence demonstrated the appellee’s open policy of “brown-bagging,” i.e., allowing patrons to bring and consume their own alcoholic beverage on the premises, despite his awareness that more than fifty percent of the patrons were minors. After the appellant was injured, in fact, one of the appellee’s employees had the band members announce over the loud speaker system that the police probably would appear and that everyone needed to conceal their alcoholic beverages. The appellee allowed the dancing and billiard playing on the premises, despite lacking the required licensing for either activity. Pornographic pictures of naked women were also permitted to be displayed on the premises.

If the evidence was plain, palpable, and undisputable as to any conclusion, it was that the appellee openly disdained to operate his club in a lawful or wholesome manner. Moreover, notwithstanding his awareness of rhythmic, raucous and rowdy behavior which manifested itself during these punk rock concerts, including donning a wolfs head mask and simulating “group head-banging,” the appellee, rather than taking measures to control it, actually promoted the setting for such. The articulate appellate advocate argues in his brief that the event was a type of attractive nuisance or a “pied piper” attempt to attract children. Compare Howell v. State, 172 Ga. App. 805, 808 (324 SE2d 754) (1984).

Decided March 19, 1987

Rehearing denied April 1, 1987

John H. Watson, for appellants.

Larry K. Evans, John W. Winborne III, Charles M. Lokey, for appellee.

Under these circumstances, it should be left to the jury to decide (1) whether it was reasonably foreseeable that someone could be injured as a result of the wild, rowdy and illegal atmosphere that was promoted and maintained by the appellee for the sake of profit; (2) whether an intervening causation (“York the Dork”) insulated the appellee from liability; and (3) whether the appellant assumed the risk of injury by participating in the raucous activity. Herren v. Abba Cab Co., 155 Ga. App. 443 (271 SE2d 11) (1980). Accordingly, I must respectfully dissent.

I am authorized to state that Judge Pope joins in this dissent.


text:
    73371.
    BATTEN v. BATTEN.
    (356 SE2d 228)
   McMurray, Presiding Judge.

E. L. Batten died in 1984, survived by his widow and their seven adult children. An application for letters of administration of the estate of E. L. Batten was filed by Clinton Batten, one of the children. Aubrey Batten (Clinton’s brother) filed a caveat to the petition for appointment of Clinton Batten as administrator. The caveat was denied and Aubrey Batten appealed to the superior court where a trial de novo resulted in a verdict in favor of Clinton Batten as administrator of the E. L. Batten estate. Aubrey Batten appeals. Held:

1. An appeal from the probate court to the superior court places the matter in the superior court for a trial de novo. In such cases the superior court has the same jurisdiction as was possessed by the probate court, and only the matter presented to the probate court can be relitigated. Mathews v. Mathews, 136 Ga. App. 833, 837 (222 SE2d 609); Williams v. Calloway, 171 Ga. App. 286, 288 (2) (319 SE2d 500). See also Maloy v. Maloy, 134 Ga. 432, 433 (2) (68 SE 80); and Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800).

Appellant contends the superior court erred in denying his motion to enforce a purported settlement agreement and to make same the final order of the court. The purported settlement agreement provides for the division of and distribution of the estate, and thus extends to matters clearly beyond the limited jurisdiction of the superior court in this proceeding. This enumeration of error is without merit.

2. Appellant contends the superior court erred in striking his amendment to caveat and limiting the issues at trial to the issues set forth in appellant’s original caveat. OCGA § 15-9-89 provides: “The petition and caveat shall be amendable at all times and in every particular.” “When a case is [in superior court] on appeal [from probate court], any amendment, whether in matter of form or substance, may be made which could have been made while the case was in the primary court.” Robinson v. McAlpin, 130 Ga. 489, 491 (61 SE 115). See Wofford v. Vandiver, 72 Ga. App. 623, 627 (4) (34 SE2d 579).

Appellant’s original caveat opposed the appointment of Clinton Batten as permanent administrator for a number of reasons including the belief, of a majority of the distributees of the estate, that it would be in the best interest of all the distributees if a co-administrator was appointed, that appellant had been selected by the majority of distributees as the proposed co-administrator, and that the application for permanent letters of administration was defective in that the widow’s selection was not attached or proper notice given as to the hearing on the application.

The amended caveat added five additional grounds. Numbers one and five are predicated on the purported settlement agreement contending that such represents a full, complete and satisfactory discharge of the matter before the court and that “Clinton Batten is es-topped and has waived any right to contest this matter.” In view of the fact that the transcript of the purported settlement agreement indicates that therein it was agreed that Clinton Batten would be appointed permanent administrator of the estate, any opposition to the appointment of Clinton Batten predicated upon the settlement agreement is totally illogical and without merit. Therefore, the superior court did not err in striking grounds one and five.

Grounds 2, 3 and 4 of the amended caveat suggest that the widow’s consent to the appointment of Clinton Batten was the result of undue influence and was not freely and voluntarily executed, that Clinton Batten is unsuitable due to financial conflicts with the estate, and that Clinton Batten is not a fit or proper person to serve as administrator. Amended grounds 2, 3 and 4 address issues which could have been raised in the probate court and do not extend to matters beyond the scope of the proceeding (see Division 1). Therefore, we find that the trial court erred in striking grounds 2, 3 and 4 of appellant’s amended caveat. Payne v. Payne, 229 Ga. 822, 824 (1) (194 SE2d 458). Compare Echols v. Bridges, 239 Ga. 25, 27-28 (235 SE2d 535).

Decided March 17, 1987

Rehearings denied March 30, 1987 and April 1, 1987

James D. Hudson, for appellant.

Berrien L. Sutton, for appellee.

3. Appellant contends the superior court erred in permitting the widow of E. L. Batten to remain in the courtroom during the trial and sitting at appellee’s table. Appellant contends that her presence violated the rule of sequestration. See OCGA § 24-9-61. It is within the discretion of the trial court to make exceptions in regard to the sequestration of non-party witnesses, and unless that discretion is abused it will not be reversed. Horton v. Wayne County, 243 Ga. 789, 791 (3) (256 SE2d 775); Cooper v. Butler, 223 Ga. 797, 799 (2 (a)) (158 SE2d 244). The purpose of OCGA § 24-9-61 was served in that the excepted witness testified first. General Oglethorpe Hotel Co. v. Lanier, 99 Ga. App. 401, 402 (2) (108 SE2d 769). We find no abuse of discretion. Hall v. Hall, 220 Ga. 677 (1) (141 SE2d 400).

4. Appellant’s remaining enumerations of error are rendered moot by our reversal in Division 2.

Judgment reversed.

Carley and Pope, JJ., concur.