text:
    A94A0725.
    GAFFNEY et al. v. EQK REALTY INVESTORS et al.
    (445 SE2d 771)
   Beasley, Presiding Judge.

Patsy Gaffney and her husband Thomas filed a complaint against EQK Realty Investors, Investment Trust; Equitable Real Estate Investment Management, Inc. (d/b/a Compass Management & Leasing); and Schindler Elevator Corporation.

EQK is the owner of an office building. Compass is the managing agent. Schindler is the company retained by Compass to perform service and maintenance on the elevators in the building. Patsy Gaffney is employed by Equifax, Inc., a tenant in the building.

Before the building was opened one morning, a Compass maintenance engineer noticed that the doors on one of the elevators were standing open. He entered the elevator and attempted to engage it, but the doors would not close and the elevator would not move. He disengaged the elevator and reported the malfunction to the building security officer, who summoned Schindler service technicians. Later that morning, the engineer returned to the elevator and was assured by one of the technicians that the problem would be corrected. The technicians made repairs by replacing a defective armature and transferring a movable contact onto the new armature. Afterward, the technician reported to Compass personnel that the elevator had been repaired and placed back in service.

Several hours later, Patsy Gaffney entered the elevator on the third floor in order to go to the ground floor. The doors shut and the elevator plummeted and came to an abrupt stop below the first floor. She sustained injuries alleged to be totally and permanently disabling.

An engineer who inspected the elevator thereafter concluded that the elevator malfunctioned after it was placed back in service because the movable contact had not been properly seated. In his opinion, the drop was the result of simple human error.

EQK and Compass moved for summary judgment, pointing to Schindler as solely responsible for any negligence. Plaintiffs appeal the trial court’s grant of that motion.

The question presented is whether the owner of a leased office building has a non-delegable duty to maintain the building’s elevators in safe operating condition, so that where, as here, the owner (through its agent) discovers an elevator malfunction and dispatches an independent contractor to repair it, the owner is vicariously liable for the contractor’s negligence in making the repairs. “[T]he cases of ‘nondelegable’ duty . . . hold the employer liable for the negligence of the [independent] contractor, although he has himself done everything that could reasonably be required of him. They are thus cases of vicarious liability.” Prosser and Keeton, The Law of Torts, p. 511, § 71 (5th ed. 1984).

In Towles v. Cox, 181 Ga. App. 194, 196 (1) (351 SE2d 718) (1986), we recognized the principle that “ ‘[a] business invitor owes a nondelegable duty to protect (his) invitees from injury. . . .’ [Cit.]” However, our holding in Division 1 of that case was that defendants, the owners and manager of a shopping center, were liable to plaintiff, an employee/manager of a business at the shopping center, for negligence in failing to inspect the site of dangerous construction activity undertaken by an independent contractor and to require the contractor to take preventive measures to protect invitees from encroaching dangers. This mooted the issue of whether defendants were vicariously liable for the contractor’s negligent act. 181 Ga. App. at 199 (4).

Likewise in Parking Co. of America v. Sucan, 195 Ga. App. 616, 617 (1) (394 SE2d 411) (1990), we recognized the principle, stated in Towles, that a business invitor owes a non-delegable duty to protect its invitees from injury. Again, however, our holding was that the owner of a parking lot breached its duty to a patron by failing to advise him of a dangerous condition, created by a third party, of which the owner had constructive notice.

In this case, unlike Towles, Sucan, and Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (2) (388 SE2d 920) (1989), the property was inspected, the dangerous condition discovered, precautionary measures taken, and an independent contractor summoned to the scene to make repairs. There is evidence that the repairs were made negligently.

Generally under Georgia law, the owner of a leased office building delegating the duty of repair to an independent contractor would not be vicariously liable for the contractor’s negligence. OCGA § 44-7-2 (b) provides that “[i]n any . . . lease ... for the use or rental of real property as a dwelling place, a landlord or a tenant may not waive, assign, transfer, or otherwise avoid any of the rights, duties, or remedies contained in . . . (1) Code Section 44-7-13, relating to the duties of a landlord as to repairs and improvements; (2) Code Section 44-7-14, relating to the liability of a landlord for failure to repair. . . .” (Emphasis supplied.) “Conversely, it follows that a landlord may contract to avoid these statutory requirements when renting property which is not to be used as a dwelling-place.” (Emphasis in original.) Colonial Self Storage of the South East v. Concord Properties, 147 Ga. App. 493, 495 (1) (249 SE2d 310) (1978). If a landlord may contract to avoid these statutory requirements, a landlord may delegate the duty of repair to an independent contractor without being vicariously liable for the contractor’s negligence.

Nevertheless, a landlord is vicariously liable for a contractor’s negligence where the duty is to maintain an elevator in safe operating condition. “The owner of an office building, equipped with an elevator which is operated for conveying his tenants and their employees and patrons to and from the various floors, is not a common carrier in the sense that he is bound to serve all the public; yet his duty as to protecting passengers in the elevator is the same as that chargeable to carriers of passengers by other means. [Cits.] This duty requires him to exercise extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his passengers. [OCGA § 46-9-132.]” Grant v. Allen, 141 Ga. 106, 108 (1) (80 SE 279) (1913); see generally OCGA § 8-2-101 (b). “The liability of a carrier of passengers is not that of an insurer, but such carrier is bound by law to extraordinary diligence to protect the lives and persons of his passengers. This duty can not be waived or released even by an express contract. Being one in which the public has an interest, public policy forbids such a waiver or release.” Central of Ga. R. Co. v. Lippman, 110 Ga. 665, 680 (2) (36 SE 202) (1900). For the same reason that the duty cannot be avoided by contract with the passengers, this duty of extraordinary diligence cannot be delegated to a third party. The owner’s duty remains in place regardless of whether a third party acquires a duty by undertaking maintenance or repair. The owner is liable for slight negligence. OCGA § 51-1-3.

Consequently, in accordance with the abundant foreign authority and treatises cited by plaintiffs, we hold that the owner of an office building owes a duty of extraordinary diligence to elevator passengers and cannot delegate this duty to an independent contractor engaged to repair the elevator. See, e.g., Jones v. Otis Elevator Co., 861 F2d 655, 665 (19) (11th Cir. 1988) (citing White v. Milner Hotels, 518 P2d 631 (2) (Or. 1974)); Hafferman v. Westinghouse Elec. Corp., 653 FSupp. 423, 430 (10) (D.D.C. 1986); Restatement of Torts 2d, p. 412, § 425 (1965); 26 AmJur2d 488, Elevators and Escalators, § 11 (1966); compare Chapman v. Turnbull Elevator, 116 Ga. App. 661 (158 SE2d 438) (1967) (involving allegations that the owner and elevator repair company were each negligent).

We do not here address the duty of defendant Schindler towards plaintiffs. Even if its duty to plaintiffs is one of ordinary care, a breach thereof would subject the vicariously liable owner to liability for breach of its higher duty to exercise extraordinary diligence. Nor do we address any question of indemnity.

As to Compass, the managing agent, its liability is determined by the same rule as would obtain if the suit had been solely against the owner of the premises and there had been no agency involved. Ramey v. Pritchett, 90 Ga. App. 745, 752 (3) (84 SE2d 305) (1954). Compass does not argue otherwise.

Decided June 10, 1994

Reconsideration denied June 24, 1994

Wendell K. Willard, for appellants.

Goldner, Sommers, Scrudder & Bass, Alfred A. Quillian, Jr., Tammy S. Skinner, Schreeder, Wheeler & Flint, Alex J. Simmons, Jr., for appellees.

Judgment reversed.

Andrews and Johnson, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A0018.
    WILSON v. THURMAN et al.
    (445 SE2d 811)
   McMurray, Presiding Judge.

Lee Wilson (plaintiff) asserted claims against Jim Thurman, John Lodge, Hobart Hind and the City of Albany (defendants) for malicious prosecution and invasion of privacy, alleging defendants wrongfully prosecuted him for sodomy in 1986. Specifically, plaintiff alleged that defendants Thurman and Lodge, while acting in their capacities as law enforcement officers for the City of Albany, were informed by the subject of a criminal investigation (“the suspect”) that plaintiff sodomized the suspect on July 14, 1982; that defendants Thurman and Lodge had information discounting the suspect’s accusation; that the officers presented the results of their investigation to the Chief of Police of the City of Albany and that, “[d] espite having no probable cause to seek a criminal warrant, [the Police] Chief allowed the material to be presented to [the District Attorney of Dougherty County, defendant Hind].” Plaintiff alleged that defendant Hind prepared an indictment charging him for committing an act of sodomy in 1982; that this indictment was presented to the Dougherty County Grand Jury outside the four-year limitation period for prosecuting the alleged act of sodomy; that defendant Thurman testified before the grand jury but did not inform “the Grand Jury that the [suspect’s] statement incriminating [plaintiff] was inconsistent with other statements [the suspect] made” and that the grand jury indicted plaintiff for committing the 1982 sodomy on October 14, 1986. Plaintiff alleged that he was arrested for the crime charged in the indictment on October 15, 1986, and that, on “January 23, 1987, the Superior Court of Dougherty County ordered that [the indictment charging him with sodomy] be dismissed as a result of the failure of the District Attorney’s office to call the case for trial.”

After denying the material allegations of the complaint, defendant Hind filed a motion to dismiss based on “the applicable statute of limitations and prosecutorial immunity.” Defendants Thurman, Lodge and the City of Albany denied the material allegations of the complaint and filed a motion for summary judgment. The trial court granted defendant Hind’s motion to dismiss finding “that the action is barred by the applicable statute of limitations and that the claim against [defendant Hind] is barred by this Defendant’s protected status and the availability to him of the defense of prosecutorial immunity.” The trial court granted the motion for summary judgment filed by defendants Thurman, Lodge and the City of Albany, dismissing the action against the City of Albany “on the ground of municipal immunity” and finding that plaintiff “failed to come forward with specific facts tending to show that probable cause did not exist for [plaintiff’s] arrest and that the charges against him were motivated by malice. . . .” This appeal followed. Held:

1. Plaintiff contends the trial court erred in granting summary judgment in favor of defendants Thurman and Lodge, arguing that evidence of the law enforcement officers’ failure to disclose information (gleaned during their criminal investigation) to the district attorney or the grand jury diminishing the reliability of the suspect’s accusation raises genuine issues of material fact as to probable cause for his prosecution.

Pretermitting the existence of probable cause for the prosecution of plaintiff for sodomy, we observe that “[t]he existence of malice is a condition precedent to an action for malicious prosecution.” C & S Bank of Houston v. McDowell, 160 Ga. App. 69, 70 (286 SE2d 58). In the case sub judice, plaintiff affirmed during his deposition that he does not have “any evidence that [defendant] Thurman or [defendant] Lodge, at the time that this investigation was done, had any malice against [him].” Further, plaintiff fails to reference any convincing proof in the record that defendants Thurman and Lodge acted with malicious intent in referring their criminal investigation to the District Attorney of Dougherty County. On the contrary, the record indicates that defendants Thurman and Lodge referred their criminal investigation to the district attorney upon direction of a supervising law enforcement officer and that defendant Thurman testified before the grand jury upon direction and control of the District Attorney of Dougherty County. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

“ ‘Where, as in this case, there is no evidence whatever of any fraudulent conduct or improper motive on the part of [defendants Thurman and Lodge], and it appears from the uncontradicted evidence that [plaintiff] was . . . indicted by the grand jury investigating it, and that there were some slight circumstances pointing to his guilt, though not enough to exclude every other reasonable hypothesis, a finding that the prosecution was malicious is without any evidence to support it.’ Darnell v. Shirley, 31 Ga. App. 764 (9) (122 SE 252) (1924); Brown v. Scott, 151 Ga. App. 366, 369 (259 SE2d 642) (1979).” C & S Bank of Houston v. McDowell, 160 Ga. App. 69, 70, supra. Consequently, the trial court did not err in granting summary judgment in favor of defendants Thurman and Lodge on plaintiff’s claim of malicious prosecution.

2. Next, plaintiff contends the trial court erred in granting summary judgment on his claim of invasion of privacy, arguing that, “[b]y presenting an incomplete and managed set of facts to the District Attorney and Grand Jury, [defendants] caused the issuance of an indictment without probable cause, which placed [him] in a false light.” Plaintiff also argues that defendants wrongfully appropriated his likeness for public disclosure by releasing his photograph (apparently) to the media. These arguments are without merit.

“The right to recover under an invasion of privacy theory is restricted where matters of public interest are involved. ‘ “(W)here an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one’s legal right of privacy.” (Cit.)’ Meyer v. Ledford, 170 Ga. App. 245, 247 (316 SE2d 804) (1984). See also Waters v. Fleetwood, 212 Ga. 161 (91 SE2d 344) (1956).” Cox Communications v. Lowe, 173 Ga. App. 812, 813 (1) (328 SE2d 384). In the case sub judice, defendants Thurman and Lodge were acting in their official capacities as law enforcement officers in investigating a report that plaintiff (also a law enforcement officer) was engaged in criminal conduct. Consequently, any information released by defendants Thurman and Lodge relating to the prosecution of plaintiff (a public official) relates to a matter of public interest and therefore does not constitute an invasion of plaintiff’s right to privacy.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided June 24, 1994

Reconsideration denied September 7, 1994

Johnny B. Mostiler, for appellant.

Michael J. Bowers, Attorney General, William F. Amideo, Assistant Attorney General, Drew, Eckl & Farnham, Bruce A. Taylor, Jr., B. Holland Pritchard, for appellees.

       Plaintiff does not challenge the trial court’s order granting defendant Hind’s motion to dismiss based on “the applicable statute of limitations and prosecutorial immunity.” Nor does he challenge summary judgment in favor of the City of Albany “on the ground of municipal immunity.”

       Plaintiff relies primarily on the affidavit of a member of the grand jury that returned the indictment against plaintiff who deposed that she recalls some of the testimony supporting the indictment against plaintiff; that defendant Thurman “gave us the distinct impression that [the suspect] was a child [and that] we were reluctant to put a child through the agony of testifying before us.” This former grand juror also deposed that she does not recall defendant Thurman advising the grand jury that the State had a “poor case” against plaintiff; that the grand jury was “never told that Albany Police Department had agreed not to prosecute two child molestation cases in exchange for [the suspect’s] cooperation . . .” and that the grand jury was not advised of certain evidence which does not corroborate the suspect’s accusation against plaintiff.


text:
    A94A0569.
    LINDSEY v. J. H. HARVEY COMPANY.
    (445 SE2d 810)
   McMurray, Presiding Judge.

Plaintiff Lindsey sued defendant J. H. Harvey Company to recover for personal injuries she sustained on defendant’s business premises, alleging that she “suddenly and without warning, fell backwards violently to the floor in a pool of water that had collected from the employee’s moping [sic] the floor.” Defendant denied the material allegations of the complaint and moved for summary judgment. Viewed in the light most favorable to plaintiff as the non-movant, the record shows the following undisputed facts:

On September 13, 1990, plaintiff and her ex-husband entered defendant’s supermarket at 9:15 p.m. They progressed up and down the aisles. At the third aisle, plaintiff noticed that two store employees were mopping the floor, leaving “[a] bunch of water.” Plaintiff, who was wearing “flip-flops,” continued her shopping and reached the fifth aisle. She then returned to the third aisle. As she retraced her steps, plaintiff’s ex-husband warned her to “watch out for the water” because the floor was wet in that aisle. When she rounded the corner to the third aisle, plaintiff slipped and fell in water accumulated on the floor from the mopping. According to Robert A. Mulkey, the assistant manager, the cleaning procedures were to wet mop the floor with plain water and to let the floors dry by air. No warning signs had been placed in the aisles. In response to defendant’s motion, plaintiff submitted her affidavit, deposing that, at the time she rounded the aisle where she slipped, her eyes were focused on the shelves looking for the spices she was about to select.

The trial court granted defendant’s motion for summary judgment and this appeal followed. Held:

Plaintiff enumerates the grant of summary judgment, contending that genuine issues of material fact remain. Specifically, plaintiff argues that a jury should determine defendant’s tort liability to her because defendant never warned her about the water on the floor and because it is a jury question whether she exercised ordinary care for her own safety.

“The slip and fall cases involving foreign substances are inapplicable in an instance where the plaintiff alleges that [s]he fell because of the slippery wax, oil, or other finish that defendant [has] placed on the floor. Because the defendant applied or authorized the application of the floor treatment, he is presumed to have knowledge of its existence. See American National Bank v. Howard, 117 Ga. [App.] 834 (161 SE2d 838) (1968). In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. See, Hogg v. First National Bank, 82 Ga. App. 861 (62 SE2d 634) (1950).” Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327). Similarly, the proprietor’s “knowledge of the alleged wetness of the floor [due to mopping] is presumed and [defendant] would not be entitled to summary judgment unless the evidence shows that no genuine issue of material fact remains as to [plaintiff’s] equal knowledge of the wetness and whether, in the exercise of ordinary care, she could have avoided it. See Carlo v. Americana Healthcare Corp., 179 Ga. App. 678, 681 (2) (347 SE2d 282) (1986); Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985).” Broomberg v. Hudgens, 206 Ga. App. 797, 799 (3), 800 (426 SE2d 617). “ ‘The rules governing the land proprietor’s duty to his invitee presuppose that the possessor knows of the condition and “has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein.” Restatement (Second) of Torts, § 343. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.’ ” Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 SE2d 721). However, “ ‘[i]t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.’ Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (2) [(288 SE2d 846)].” (Emphasis in original.) Nicholson v. MARTA, 179. Ga. App. 173, 175 (345 SE2d 679).

In the case sub judice, plaintiff admitted that she had actual knowledge of the wet condition of the floor, specifically in aisle three, before she returned to that area of the store. Consequently, the failure of defendant to warn her does not show the existence of any jury question as to defendant’s liability. Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906, supra. Nor is there a jury question as to whether plaintiff exercised ordinary care for her own safety. In light of the warning from her ex-husband to “watch out for the water,” plaintiff must be deemed to have acted on her actual knowledge and to have assumed the obvious risks in traversing the wet floor. Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906, supra. “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” OCGA § 51-11-7. See also Bowman v. Richardson, 176 Ga. App. 864, 865 (338 SE2d 297). Consequently, the trial court did not err in granting defendant’s motion for summary judgment.

Decided June 24, 1994.

Carl A. Veline, Jr., for appellant.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Alan M. Maxwell, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0604.
    STATE OF GEORGIA v. GONZALES.
    (445 SE2d 808)
   McMurray, Presiding Judge.

The State of Georgia filed an in rem condemnation proceeding pursuant to OCGA § 16-13-49, alleging Virgilio Jesus Gonzales used certain property in furtherance of a violation of the . Georgia Controlled Substances Act. Gonzales denied that he violated the Georgia Controlled Substances Act and sought return of all property seized by the State. The State filed a motion to dismiss, pointing out that Gonzales neither verified his answer nor alleged therein the defense and disclosure elements required by OCGA § 16-13-49 (o) (3) (A) through (G). On September 2,1993, Gonzales filed an amended answer satisfying all of these deficiencies.

On September 20, 1993, the trial court entered the following order: “The State having timely set the above styled matter for hearing as required by [OCGA] Section 16-13-49 (o) (5), and [it appearing] to the Court that the investigative officer in said case is unable to attend on Wednesday, September 15, 1993 at 9:00 A.M., as scheduled, and it further appearing that the State has moved for a continuance, it is hereby [ordered] that the hearing ... is hereby continued for good cause upon motion of the State of Georgia. The hearing is to be reset by the State upon proper notice to all parties.”

The State’s attorney notified Gonzales that the hearing was reset for “Wednesday, October 6, 1993, at 9:00 A.M.” At the rescheduled hearing, the State’s attorney “moved for a second continuance; and [Gonzales] moved for a dismissal of said action pursuant to O.C.G.A. [§] 16-13-49 (o) (5). . . .” The trial court entered the following order: “[T]he complaint In Rem is dismissed for failure to prosecute said action within a reasonable period of time after service of said complaint. The Court specifically finds that the dismissal is authorized under the circumstances in that the State failed to show good cause as to why the hearing should be continued for a second time.” This appeal followed. Held:

The State contends the trial court erred in dismissing the forfeiture complaint on the grounds that no hearing was conducted within 60 days of service of the complaint as required by OCGA § 16-13-49 (o) (5). This contention is not supported by the record. Specifically, the trial court did not dismiss the complaint because of the State’s failure to conduct a hearing within the time prescribed by OCGA § 16-13-49 (o) (5); the trial court ruled “that the Complaint In Rem is dismissed for failure to prosecute said action within a reasonable period of time after service of said complaint [and] specifically [found] that the dismissal is authorized under the circumstances in that the State failed to show good cause as to why the hearing should be continued for a second time.”

“ ‘A motion for a continuance of the hearing ... is addressed to the sound discretion of the trial judge, and in the absence of a clear showing to the contrary, it will be presumed that such discretion was not abused. Boatright v. State, 91 Ga. 13 (16 SE 101); McKoy v. Hardy, 92 Ga. App. 525 (88 SE2d 708); Digsby v. Johnson, 82 Ga. App. 611 (61 SE2d 792).’ Whidby v. Feagins, 103 Ga. App. 797, 799 (120 SE2d 661).” Graham v. State, 107 Ga. App. 332, 333 (1) (130 SE2d 166). In the case sub judice, there is no evidence in the record refuting the trial court’s finding that “the State failed to show good cause as to why the hearing should be continued for a second time.” Thus, it cannot be said that the trial judge abused his discretion in denying the State’s second motion for continuance. Consequently, since the State failed to show good cause why the hearing should be continued, the trial court did not err in denying the State’s motion for continuance. See Graham v. State, 107 Ga. App. 332, 333 (1), supra. Further, since a hearing can no longer be conducted within 60 days after the filing of Gonzales’ amended answer, the trial court did not err in granting Gonzales’ motion to dismiss. See State of Ga. v. Alford, 264 Ga. 243 (444 SE2d 76); Henderson v. State of Ga., 205 Ga. App. 542 (422 SE2d 666), aff’d in 263 Ga. 508 (436 SE2d 209).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided June 24, 1994.

Michael H. Crawford, District Attorney, George Guest, Assistant District Attorney, for appellant.

■Timothy P. Healy, for appellee.


author: Johnson, Judge.

text:
    A94A0928.
    GRADY TRACTOR COMPANY, INC. v. FIRST NATIONAL BANK OF GRADY COUNTY.
    (446 SE2d 228)
   Johnson, Judge.

George Leonard Phillips pledged a tractor as security for loans from First National Bank of Grady County and apparently for a loan from the Cairo Banking Company. After Phillips defaulted on the loans, Grady Tractor Company, Inc., at the request of Cairo and unbeknownst to First National, seized and repaired the tractor. First National then informed Grady that it, not Cairo, had a properly recorded and perfected first lien on the tractor. First National filed the instant complaint against Grady for unlawful conversion of the tractor. Grady counterclaimed for the cost of repairing the tractor. The trial court granted summary judgment to First National on Grady’s counterclaim. The main claim proceeded to trial and the jury returned a verdict in favor of First National. The court entered judgment in the amount of $5,000 on the verdict. Grady appeals.

1. Grady contends that the trial court erred in refusing to strike for cause five prospective jurors who have accounts at First National, thereby forcing Grady to use five of its peremptory strikes against those jurors. “[A] person is not competent to serve as a juror in a cause when there exists any business relation between himself and one of the parties which may tend to influence the verdict. The reason for the rule is to eliminate those jurors whose impartiality may be called into question by the existence of a business relationship whereby the juror could be motivated by financial concerns, and to avoid forcing jurors into the position of choosing between adherence to an oath of impartiality and the pecuniary interests of a party with whom the juror has a business relation.” (Citations and punctuation omitted.) Walker v. State, 206 Ga. App. 81, 82 (3) (424 SE2d 364) (1992); see OCGA § 15-12-135. Contrary to Grady’s claim, the mere fact that a juror has an account at a bank which is a party to the action is not necessarily a business relationship that calls into question the juror’s impartiality. It is true that under some circumstances a banking relationship might cause a juror to be motivated by financial concerns. Those circumstances and that improper motivation, however, must be shown by the party seeking to disqualify the juror for cause. “A challenge to the poll or a motion to disqualify jurors must be supported by evidence if the presumption of their qualification and impartiality is to be rebutted.” (Citations and punctuation omitted.) Page v. Janko, 200 Ga. App. 547, 548 (1) (409 SE2d 48) (1991). Here, the court qualified all of the prospective jurors by determining that none of them are officers, directors, agents, employees or stockholders of First National. Grady was then allowed to question the prospective jurors about their accounts at First National. Because the record does not contain a transcript of that voir dire, it is impossible to determine whether the circumstances surrounding those accounts caused any of the prospective jurors to believe that they would benefit financially from a verdict in favor of the bank. The mere existence of the banking relationship, without more, is not a valid basis for striking a prospective juror for cause. Compare generally Daniel v. Bi-Lo, 178 Ga. App. 849 (344 SE2d 707) (1986). “The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial.” (Citations and punctuation omitted.) Poulnott v. Surgical Assoc. of Warner Robins, 179 Ga. App. 138, 139 (1) (345 SE2d 639) (1986). Grady has failed to show that the trial court manifestly abused its discretion and therefore a new trial is not required.

2. Grady argues that the court erred in granting summary judgment to First National on Grady’s counterclaim because the bank impliedly agreed to pay for the repairs to the tractor. “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” OCGA § 9-2-7. In the instant case, however, it is undisputed that Grady repaired the tractor solely at the request of Cairo, while First National had no knowledge of the requested repairs. “Where one without knowledge neither authorizes, consents to, nor ratifies another’s labor . . . there is no duty imposed upon the one so benefited to make restitution. The reason is that in the absence of knowledge or authorization it would be unduly harsh to require the recipient’s return of the value of . . . services when the . . . services cannot themselves be returned. [Cit.]” Beavers v. Weatherly, 250 Ga. 546, 548 (2) (299 SE2d 730) (1983). Since First National did not authorize, consent to, or ratify the repairs, it has no duty to pay Grady for them. Ginsberg v. Termotto, 175 Ga. App. 265, 266-267 (1) (333 SE2d 120) (1985). The trial court properly granted summary judgment to First National as to Grady’s counterclaim. Smith Dev. v. Flood, 198 Ga. App. 817, 819-821 (2), (3) (403 SE2d 249) (1991).

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.

Decided June 24, 1994.

Loftiss, Van Heiningen & Ward, J. Patrick Ward, for appellant.

Porter, Lehman & Chason, J. Kevin Chason, for appellee.


text:
    A94A1176.
    SOUTHERN GENERAL INSURANCE COMPANY v. EZEKIEL et al.
    (445 SE2d 807)
   Johnson, Judge.

Southern General Insurance Company, as subrogee of its insured, Michael Alan Dorrohn, brought this action against Foley Ezekiel and State Farm Mutual Automobile Insurance Company to recover benefits Southern had paid to Dorrohn.

The trial court granted summary judgment to Ezekiel and State Farm on the ground that the subrogation provision in Southern’s insurance policy constitutes an invalid assignment of a personal injury claim in contravention of OCGA § 44-12-24. Southern appeals that ruling.

Southern has provided us with a comprehensive history of subrogation in Georgia case law as well as a profusion of cases from other jurisdictions. It has failed to distinguish this case, however, in any meaningful way from the two cases most recently decided by this court, Gov’t Employees Ins. Co. v. Hardman, 212 Ga. App. 367 (444 SE2d 165) (1994) and Gov’t Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59) (1993). In Hirsh, supra, the clause in GEICO’s policy provided: “ ‘If we make a payment under this coverage, we have the right to sue or otherwise recover the loss from anyone else who may be responsible. The person to whom we make payment must execute and deliver to us all necessary papers, help us to enforce our recovery right and do nothing to prejudice such rights.’ ” The court concluded that this clause did not materially differ from the clause held to be void in Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga. App. 306 (147 SE2d 860) (1966). The subrogation language in Southern’s policy is as follows: “Part VI — General Provisions — Our Recovery Rights (Subrogation). In the event of any payment under this policy, we are entitled to all the rights of recovery which the person to whom payment was made may have against another person or organization. You and any insured person must sign and deliver to us any legal papers relating to that recovery, and do whatever else is necessary to help us exercise those rights and do nothing after a loss to prejudice our rights.” (Emphasis in original.) Southern’s attempts to distinguish “rights of recovery” from GEICO’s “right to sue or otherwise recover” or to transform the phrase into a right to reimbursement are no more than flights of semantic fancy.

Decided June 24, 1994.

Jenkins & Eells, Frank E. Jenkins III, for appellant.

Harper, Waldon & Craig, Thomas D. Harper, Hilliard V. Castilla, for appellees.

Southern’s assertion that the trial court erred because the subrogation provisions allow Southern to recover directly from Ezekiel and State Farm is likewise without merit. “[A]flowing [Southern] to proceed in its own name against an alleged tortfeasor in a personal injury claim to recover the amount of medical benefits paid to its insured would violate the common law and statutory prohibition against assignments of personal injury causes of action.” Hirsh, supra at 375. The trial court’s grant of summary judgment was proper and will not be disturbed.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A1273.
    MARTINI v. JEFFERSON et al.
    (445 SE2d 814)
    Decided June 24, 1994.

      Huey W. Spearman, Kathryn Hall, Vicky O. Kimbrell, Lisa J.

      Krisher, Phyllis J. Holmen, for appellant.
   Johnson, Judge.

Thomas and Linda Jefferson filed a complaint against Deborah Martini for custody of Martini’s children, who are the Jeffersons’ grandchildren. Following a hearing, the trial judge awarded custody to the Jeffersons. We granted Martini’s application for discretionary appeal.

Martini correctly contends that the trial court erred in awarding custody to a third party without having made a finding that she is unfit. In every case involving a custody dispute between a parent and a third party, the trial court must first make a determination as to whether the parent has lost his or her right pursuant to OCGA § 19-7-4, or is unfit pursuant to Georgia case law. Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471) (1981); Brooks v. Carson, 194 Ga. App. 365, 368 (2) (390 SE2d 859) (1990). Because no such determination was made and included in the custody order, the judgment of the trial court must be reversed and the case remanded to the trial court for findings, and, if necessary, further proceedings, on that issue.

Judgment reversed and case remanded.

Beasley, P. J., and Andrews, J., concur.

Keith H. Solomon, for appellees.


author: Beasley, Presiding Judge.

text:
    A93A1776.
    In re FARMER.
    (447 SE2d 344)
    Decided June 14, 1994
    Reconsideration denied June 27, 1994.

      Millard C. Farmer, Jr., pro se.

      Michael J. Bowers, Attorney General, Daryl A. Robinson, John C. Jones, Senior Assistant Attorneys General, Heyman & Sizemore, William H. Major, Ellis, Funk, Goldberg, Labovitz & Campbell, William C. Campbell, for appellee.
   Beasley, Presiding Judge.

The decision of the Court of Appeals in this case, In re Farmer, 212 Ga. App. 372 (442 SE2d 251) (1994), having been remanded with direction by the Supreme Court as to Emmit H. Stephens, Jr., this case is hereby remanded to the trial court for consideration of Stephens’ culpability in the preparation of the pleadings involved in the contempt citation. In the event the finding of contempt against Em-mitt H. Stephens is confirmed by the trial court, the court is to enter an order specifying the basis for that finding. In all other respects, the earlier decision of the Court of Appeals is unaffected.

Judgment reversed as to Stephens and case remanded with direction.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A94A0322.
    GONZALEZ v. THE STATE.
    (445 SE2d 769)
   Smith, Judge.

Amoldo Cieuentes Gonzalez was indicted with three others on one count of trafficking in cocaine, OCGA § 16-13-31. After a mistrial was declared in his first jury trial, Gonzalez was retried and convicted. His motion for new trial was denied, and he appeals.

1. Gonzalez enumerates as error the trial court’s admission of evidence of a similar transaction. The record shows that the trial court held a pretrial hearing pursuant to Uniform Superior Court Rule 31.3 (B) and Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). The trial court found that the State satisfied the three affirmative showings required under Williams. Gonzalez contends that the State failed to show a sufficient connection or similarity between the similar transaction and the crime charged.

The State presented evidence of Gonzalez’s earlier possession of cocaine in Sumter County, Florida. Both incidents involved the transportation of a kilogram of cocaine concealed in the rear passenger area of a vehicle. In both cases, Gonzalez and a companion were present when the cocaine was removed from the vehicle. The incidents occurred 11 months apart, and Gonzalez was confined to jail for a significant part of the intervening time.

Gonzalez contends that the two incidents are dissimilar because in the first the cocaine was discovered during a traffic stop on the highway, while in the second he was arrested during an attempted sale of the cocaine. Although the two arrests took place under differing circumstances, “[e]vidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct outweighs its prejudicial impact. . . . There is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” (Emphasis in original; citations and punctuation omitted.) Dobbs v. State, 204 Ga. App. 83, 85 (3) (418 SE2d 443) (1992). Two incidents in which Gonzalez possessed a kilogram of cocaine concealed in the rear seat of a motor vehicle are sufficiently similar for the earlier incident to be admissible as showing his identity, motive, intent, and knowledge. Cantrell v. State, 210 Ga. App. 218 (2) (435 SE2d 737) (1993). The earlier incident is not too remote in time, particularly in view of Gonzalez’s confinement during much of the intervening time. Brunson v. State, 207 Ga. App. 523, 525-526 (428 SE2d 428) (1993). The fact that he pled to the lesser offense of possession in the first case and was convicted of trafficking in the second case is not dispositive. Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992). The trial court did not err in admitting evidence of the similar transaction.

2. Gonzalez also contends the trial court erred in denying his motion in limine regarding evidence of his Colombian nationality. Even if we assume this fact was somehow incriminating or prejudiced the jury in some manner, Gonzalez’s Colombian passport was discovered during a search of his person incident to arrest. “Articles found in a defendant’s possession at the time of his arrest ‘are admissible as circumstances connected with the arrest. [Cit.]’ [Cit.] The mere fact that the evidence may have incidentally implicated defendant in the commission of an unrelated crime does not render the evidence inadmissible. [Cit.]” Burdette v. State, 197 Ga. App. 881, 882 (3) (399 SE2d 745) (1990).

Decided June 1, 1994

Reconsideration denied June 27, 1994.

Jack J. Menendez, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

3. Gonzalez also enumerates as error the trial court’s denial of his motion in limine seeking to exclude testimony of his co-defendant regarding conversations and actions that took place during the negotiations leading up to the cocaine transaction at issue here. During his account of these events, the co-defendant testified that Gonzalez mentioned other drug sales, and that Gonzalez and others used cocaine after meeting with undercover agents to arrange the transfer of the drugs and again while awaiting delivery of the money.

“It is well settled in this state that acts are pertinent as a part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it. . . . One of the exceptions to the rule that on prosecution for a particular crime evidence which tends to show that the defendant committed another crime wholly independent from that for which he is on trial is irrelevant and inadmissible, is where the other crime is a part of the res gestae. Therefore, a trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985). Evidence as to whether Gonzalez was under the influence of alcohol or drugs at the time in question was admissible as part of the res gestae. Latham v. State, 195 Ga. App. 355, 356 (2) (393 SE2d 498) (1990). Statements which present a defendant in the light of contemplating future crimes or mentioning past ones are also admissible when part of the res gestae. O’Kelly v. State, 196 Ga. App. 860, 861 (2) (397 SE2d 197) (1990). The trial court did not err in admitting evidence of Gonzalez’s statements and actions during the negotiations for the drug sale.

Judgment affirmed.

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

       All rulings on motions from the first jury trial were adopted on retrial of the case.


text:
    A94A0530.
    A94A0531.
    STREICHER et al. v. THE STATE. PIPPIN v. THE STATE.
    (445 SE2d 815)
   McMurray, Presiding Judge.

Defendant Streicher was charged, via accusation, with operating a motor vehicle with no insurance, no proof of insurance, driving with a suspended license, possession of less than one ounce of marijuana, and permitting the unlawful operation of a vehicle. Defendant Pippin was charged, via accusation, with driving with a suspended license, no proof of insurance, and possession of less than one ounce of marijuana. Defendants filed separate motions to suppress, arguing that they were subjects of an unlawful motor vehicle stop by a law enforcement officer. The State then amended the accusation against defendant Streicher charging him with improper parking or stopping in violation- of OCGA § 40-6-200, leaving a motor vehicle unattended in violation of OCGA § 40-6-201, improper stopping on a roadway in violation of OCGA § 40-6-202, and standing or parking in a prohibited place in violation of OCGA § 40-6-203 (a) (2) (D).

At the hearing on defendants’ motions to suppress, Officer Bruce M. Yenerall of the Gwinnett County Police Department testified that, at approximately 8:30 a.m. on September 23, 1992, “[a]s he pulled up to [a] stop sign[, he] observed a pick-up truck that was directly in front of [him] come to a stop[; that he then watched the] person that was driving[, defendant Streicher, slide] to the right side of the vehicle [and that he observed the] person that was in the passenger seat[, defendant Pippin, get] out of the vehicle and [walk] toward the back [of the truck].” Officer Yenerall testified that “when [defendant Pippin] saw me, [he] sort of had a surprised look on his face [and that he] walked on around the vehicle[,] got into the vehicle [and turned] right onto 29 Highway. . . .” Officer Yenerall testified that he then “initiated the traffic stop on them.” Officer Yenerall explained “that when [defendant Pippin] got out of the vehicle, shut the door [and] turned around, that’s when he [thought defendant Pippin] first saw [the officer and that he didn’t] think either [defendant Pippin or defendant Streicher] had [seen] it was an unmarked police car behind ‘em at that point [because defendant Pippin] had a very startled look on his face [when he looked up and saw the officer].” (Emphasis supplied.)

Officer Yenerall then gave confusing (and apparently conflicting) reasons for stopping defendants. However, the trial court clarified via the following examination: “THE COURT: When did you make the decision to issue the traffic stop? [OFFICER YENERALL]: As soon as the passenger stepped out of the vehicle, walked to the vehicle and put the vehicle in motion. When I saw them, Your Honor, change drivers, and the other driver got into the vehicle and took off. I knew then, that I was going to stop to find out why they stopped there in the middle of the road while they changed drivers. And it was my determination at that point, to not make the traffic stop in the middle of the intersection for my personal safety, for their personal safety, and not to create a road hazard. I made the traffic stop absolutely — as immediately — immediately upon clearing the intersection. THE COURT: The mere fact that they were changing drivers, you said you immediately made the decision that you were going [to] stop what? THE WITNESS: I wanted to find out why they picked that particular spot to change drivers. THE COURT: Did you suspect there was any criminal activity at that time? THE WITNESS: No, not at [that] point. In fact[,] my assumption was at that time, that the reason they changed drivers was, that they saw me, a law enforcement officer in a marked [sic] police car, right behind them. THE COURT: Was that suspicious to you? THE WITNESS: Yes, it was. THE COURT: Why was it suspicious? THE WITNESS: Because I’ve had certain things like that happen in my career and every time that it’s happened, and I’ve stopped the people for it, they haven’t had a driver’s license, they’ve been intoxicated, they’ve been wanted, any numerous amount of things.” (Emphasis supplied.)

The trial court denied defendants’ motions to suppress, reasoning as follows: “THE COURT: I think the issue in these cases is, whether or not the stop was pretextual. And the case law that I’m familiar with says that ... we must look at the totality of the circumstances to see whether or not a reasonable officer ... , in these same circumstances could make a particular — particularized or objective basis for making a brief investigatory stop. And I invited argument and I said it was [a] thorny issue because I do believe it’s a thorny issue.

“In the case at hand folks got out of the car and walked around the car and changed drivers in the roadway. Now whether or not they were at a stop sign, going down the middle of the roadway, they were in the roadway, and that in and of itself, does not exhibit criminal behavior always, maybe, but it is unusual behavior. It is behavior which would — which might tend to draw this officer’s attention. Therefore, based on the officer’s testimony, of his training as a police officer, that this drew his attention.

“It is a particularized, objective statement of what is happening that aroused his suspicions in the case. It differs from the cases where, when you cite in the brief where someone is going down the road and turns off on a dirt road and just keeps on going. There’s nothing strange to anybody about that. Where a car is sitting on the side of the road, a lot of cars just sit on the side of the road. But you don’t see a lot of cars stop in the roadway and drivers change places. Therefore, based on that, I’m going to deny the motion to suppress.”

Separate orders denying the motions to suppress were entered and certified for immediate review. Defendants’ duplicate joint applications for interlocutory appeal were granted. Defendant Streicher appealed in Case No. A94A0530 and defendant Pippin appealed in Case No. A94A0531. Held:

In identical enumerations, defendants contend the trial court erred in denying their motions to suppress, arguing that Officer Yenerall’s stop of the vehicle was invalid because the officer lacked probable cause and because he had no reasonable suspicion that a crime was occurring.

“ ‘ “We have repeatedly held that an authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has ‘reasonable grounds’ for such action — ‘a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ (Cit.)” (Cit.)’ Brooks v. State, 129 Ga. App. 109, 111 (198 SE2d 892) (1973).” Coley v. State, 177 Ga. App. 669 (1), 670 (341 SE2d 9). .....Although an officer may conduct a brief investigative stop of a vehicle, (cit.), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); (Cit.). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only ‘unparticularized suspicion or “hunch,” ’ 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909).” (Cit.) “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)” (Cit.)’ Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987). ‘(T)his suspicion need not meet the standard of probable cause, (but) must be more than mere caprice or a hunch or an inclination. (Cit.)’ State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975).” Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440).

In the case sub judice, Officer Yenerall saw a vehicle stop at a stop sign. He observed no moving violation but saw the driver switch places with the passenger. The suspect vehicle then moved off without committing any known violation.

Officer Yenerall simply explained that he stopped defendants’ vehicle “to find out why they stopped there in the middle of the road while they changed drivers.” We view this reason alone to be insufficient alone to give rise to a reasonable suspicion of criminal conduct so as to authorize a forcible stop of a vehicle.

“ ‘(E)xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.’ . . . Delaware v. Prouse, [440] U. S. [648] (99 SC 1391, 59 LE2d 660) (1979).” Bobo v. State, 153 Ga. App. 679 (266 SE2d 247). “ ‘[P]ersons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.’ Delaware v. Prouse, [supra].” Bobo v. State, 153 Ga. App. 679, supra. In the case sub judice, Officer Yenerall’s suspicions based upon the change of drivers and his informed law enforcement experience was not sufficient to authorize a forcible stop of defendants’ vehicle. See Johnson v. State, 197 Ga. App. 538, 539 (398 SE2d 826). Consequently, in the absence of additional outward indicia of criminal activity, we conclude that Officer Yenerall’s stop of defendants’ vehicle was based on “nothing more than ‘inarticulate hunches’ and thus insufficient to justify a seizure under the Fourth Amendment.” Tarwid v. State, 184 Ga. App. 853 (1), 856 (363 SE2d 63). Nonetheless, the State argues that the officer’s stop of defendant’s vehicle was justified because the change of drivers at the stop sign amounted to a series of parking violations committed in Officer Yenerall’s presence. We do not agree. Officer Yenerall did not stop defendants because of these alleged violations; he stopped them “to find out why they stopped there in the middle of the road while they changed drivers.” The State’s attorney added the minor traffic charges against defendant Streicher (which were not the basis of the traffic stop) after defendants filed motions to suppress.

Decided June 27, 1994.

C. Alan Mullinax, for appellants.

Gerald N. Blaney, Jr., Solicitor, Gary S. Vey, Richard E. Thomas, Assistant Solicitors, for appellee.

The trial court erred in denying defendants’ motion to suppress. See Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994).

Judgments reversed.

Pope, C. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A94A0399.
    A94A0400.
    KIRBY et al. v. NORTHWESTERN NATIONAL CASUALTY COMPANY. NORTHSIDE EQUITIES, INC. v. NORTHWESTERN NATIONAL CASUALTY COMPANY.
    (445 SE2d 791)
   Andrews, Judge.

This appeal involves a declaratory judgment action which arose from an automobile accident which occurred on May 24, 1991. The accident occurred when Clinton Hunter drove north in the southbound lane of Interstate 75 and collided with a vehicle driven by Michael Kirby, who was accompanied by his wife and children. Kirby was killed in the accident. At the time of the accident, Hunter’s blood-alcohol content was above the legal limit.

Kirby’s widow, Angela Kirby, filed suit against Northside Equities, Inc. d/b/a Ponytails on behalf of herself, and as guardian for her three minor children, for the wrongful death of Kirby and for personal injuries she and her children sustained. Mrs. Kirby claimed that Hunter spent the afternoon of the accident at Ponytails, an adult entertainment establishment, where he had become intoxicated. She alleged that the employees of Ponytails provided alcoholic beverages to Hunter when he was in a noticeable state of intoxication and that they should have known that he was going to leave Ponytails and drive on public roads. She alleged that the alcohol provided by Ponytails was the proximate cause of her husband’s death and of the injuries she and her three children received.

On March 11, 1992, Northwestern National Casualty Company filed a declaratory judgment action against the parties to the personal injury suit. In the action, Northwestern National sought a determination of its duty to defend and indemnify Ponytails under its insurance policy. Franklin Equities d/b/a Ponytails Lounge was later added to the case as a defendant.

The comprehensive general liability policy which Northwestern National issued Ponytails for the period in question contained the following language:

“Exclusions

“This insurance does not apply to:

“C. ‘Bodily injury’ or ‘property damage’ for which any insured may be held liable by reason of:

“(1) Causing or contributing to the intoxication of any person;

“(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or

“(3) Any statute, ordinance or regulations relating to the sale, gift, distribution or use of alcoholic beverages.

“This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.”

On September 4, 1992, Northwestern National filed a motion for summary judgment arguing that the above exclusion excluded the allegations of Kirby’s complaint from coverage. Attached to Northwestern National’s motion was a document from the Georgia Insurance Commissioner, which certified the commercial general liability coverage on file with the Georgia Insurance Department. That document contains an explanation, dated May 1985, of the changes in the general liability coverage after that year, which stated:

“Exclusions. There are no marked differences from the current Bodily Injury and Property Damage Exclusions except as specified below. . . .

“3. Exclusion c. is the alcoholic beverage exclusion. It is essentially the same as in the current contract except it affords previously excluded coverage to the owner or lessor of premises used in an alcoholic beverages business.”

Northside Equities responded to Northwestern National’s motion, claiming that several factual issues remained in the case. Attached to its response was the affidavit of Doug Lambert, secretary of Northside Equities, who avowed that he understood that the insurance coverage being written for Ponytails included liquor liability. Attached to his affidavit was the insurance proposal from James Mascho of Poe & Associates, which Lambert contended included liquor liability insurance. The proposal shows that although the proposal included coverage for “host liquor liability,” it specifically excluded liquor liability from the umbrella coverage.

Included with Northside Equities’ amended response to the motion was the affidavit of James Mascho of Poe & Associates. He stated that he negotiated the insurance package with Lambert with the intent to include liquor liability coverage as part of the total liability package for Ponytails. He stated that Poe & Associates was a Northwestern National agency and that if the policy contained exclusionary language regarding alcoholic beverages, it was in error.

On January 26, 1993, the trial court denied the motion for summary judgment, but then vacated that order. Additional briefs were then filed, the motion was orally argued and on July 15, 1993, the trial court granted the motion. In Case No. A94A0399, Kirby, individually and as the guardian for her minor children appeals; in Case No. A94A0400, Northside Equities appeals. The appeals will be addressed jointly.

1. In her first enumeration of error, Kirby argues that the trial court erred in granting summary judgment since the liquor liability exclusion is contrary to public policy. Kirby contends that most of the proceeds of Ponytails’ business were from alcohol sales and that public policy prohibits such an exclusion.

This contention was resolved adversely to Kirby in Safeco Ins. Co. of America v. Shawnee Mech. Contractors, 209 Ga. App. 165 (433 SE2d 66) (1993) and Hartford Ins. Co. &c. v. Franklin, 206 Ga. App. 193 (424 SE2d 803) (1992). The businesses in both Safeco, supra, and in Hartford, supra, sold alcohol and, contrary to Kirby’s argument here, the court determined that an alcohol exclusion was valid. “Although the General Assembly has imposed liability for the service of alcohol to a noticeably intoxicated person who then injures another as a result of the intoxication [OCGA § 51-1-40], no law or policy of this State requires insurance coverage for such a liability.” Hartford, supra at 195. This enumeration is without merit.

2. Both Kirby and Northside Equities enumerate as error the trial court’s determination that Ponytails did not purchase liquor liability insurance. They contend that Poe & Associates was an agent of Northwestern National and that Mascho intended to sell liquor liability coverage. They argue that an agency relationship may arise by implication as well as by express authority, and that agency may be proved by circumstantial evidence. See generally OCGA § 10-6-1. Accordingly, they argue that Mascho was a Northwestern National agent and that the policy issued evidenced a mutual mistake of fact.

In support of this argument, appellants rely upon Mascho’s affidavit in which he asserted that he was a Northwestern National agent and that he intended to include liquor liability coverage as part of the total liability package. Kirby and Northside Equities cite several other factors they deem significant to this determination. They argue that Poe & Associates were the soliciting agents for the policy sold; that Mascho and Poe & Associates prepared and issued binders on Northwestern National policies, which were also signed by employees of Poe; that in this case Mascho signed the binder issued under Northwestern National’s name; that the general managing agent of Northwestern National had authority to pass binding authority to Poe & Associates; that Poe & Associates delivered documents to the client on behalf of Northwestern National; that Poe & Associates was intimately involved in communications with the client on Northwestern National’s behalf; and that Northwestern National made no effort to communicate any limitation on Poe & Associates’ authority to customers. Kirby also contends that the filing with the insurance commissioner reflects the fact that liquor liability coverage was purchased and that the absence of such coverage was in error.

First, “[t]hat the insured was under a duty to examine its policy and ascertain for itself what coverage it had is well settled. The insured was not only free to examine the contract, it was under a duty to do so, and if it had done that it would have observed just what coverage it provided to it. If [the policy] was not what it wished to have it could have renegotiated . . . or . . . returned it as unacceptable and negotiated a contract with another company. ... If the policy issued was essentially different from the one that the insured desired, the remedy . . . would have been to reject, when tendered, the policy as written. ... If the applicant neglects to examine the policy delivered to it the contract is binding.” (Citation and punctuation omitted.) Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420, 422-423 (2) (376 SE2d 373) (1988); see also Hartford, supra.

Despite this rule, Ponytails’ failure to read the policy does not end our inquiry since “the failure of a party to read a contract which is not signed by that party, such as a policy of insurance, does not bar reformation as a matter of law,” and parol evidence is admissible to show mistake. Hearn v. Great Southwest Surplus Lines Ins. Co., 193 Ga. App. 31, 32 (386 SE2d 859) (1989). Thus, it is necessary to determine whether Mascho was an agent of Northwestern National.

Four parties were involved in the purchase and sale of the policy. Doug Lambert of Ponytails negotiated the account with Mascho of Poe & Associates. Nancy Smith, also of Poe & Associates, dealt with the Northwestern National general agency, The Lenox Agency, on the account. Steve Pehrson of The Lenox Agency was the person with whom she dealt.

In addition to his affidavit, Mascho’s deposition is included in the record. He stated that in placing coverage for Ponytails many companies were contacted. After a company gave him a quote, he had the authority to bind coverage. He stated that in order to obtain a quote, he had to submit information about the risk to the insurer, so that it could then make a determination of whether to authorize coverage. Mascho conceded that he did not have direct contact with Northwestern National or with The Lenox Agency. Mascho stated that Ponytails wanted to purchase liquor liability coverage and that he intended to purchase that coverage for Ponytails. He stated that he assumed that liquor liability coverage was purchased, but he did not read the policy to confirm that impression. He conceded that, despite his affidavit statements, he did not know the legal relationship between Poe & Associates and Northwestern National.

Northwestern National was represented in the contract by its general managing agent, The Lenox Agency. The president of The Lenox Agency, Steve Pehrson, gave a deposition in which he confirmed that he dealt with Nancy Smith of Poe & Associates regarding coverage for Ponytails. Pehrson stated that as a managing general agent, The Lenox Agency had the authority to bind certain risks for certain limits and the authority to collect premiums. He stated that he approved the issuance of coverage for Ponytails and that he communicated this to Smith. He stated that no liquor liability coverage was obtained and that the liquor liability exclusion was part of the policy issued. Pehrson stated that Poe & Associates was not an agent for Northwestern National.

Nancy Smith, a service representative for Poe & Associates, gave a deposition in which she testified that Poe & Associates did not directly represent Northwestern National and that it was necessary for Poe to bind coverage through a general agent, such as The Lenox Agency. She testified that Mascho signed the binder form in this case because he was the producer, or seller, of the insurance. She confirmed that she contacted Pehrson in connection with Ponytails’ insurance and that Ponytails did not purchase liquor liability coverage.

Doug Lambert, the secretary of Northside Equities, executed the affidavit discussed above, in which he stated that he received a proposal from Poe & Associates which included “Host Liquor Liability” and that he understood that the insurance coverage being written included liquor liability. He stated that Poe & Associates was aware of the fact that 90 percent of the revenue generated at Ponytails was from the sale of alcoholic beverages.

Citing WMH, Inc. v. Thomas, 195 Ga. App. 61, 63 (2) (392 SE2d 539) (1990) modified in 260 Ga. 654 (398 SE2d 196) (1990), appellants argue that Mascho was an agent of Northwestern National since he was allowed to bind coverage and his signature was on the binder. See also Alexander &c. v. Lovett, 177 Ga. App. 262 (2) (339 SE2d 368) (1985). Mascho’s authority to bind coverage was contingent upon approval from the insurer or from an agent. He had no independent authority to contract in the sense contemplated by WMH, Inc., and Alexander.

Independent agents or brokers are generally considered the agent of the insured, not the insurer. European Bakers, Ltd. v. Holman, 177 Ga. App. 172 (2) (338 SE2d 702) (1985). In the present case, we find that the evidence demanded the conclusion that Mascho was acting as an agent for Ponytails, and not for Northwestern National. According to Mascho’s testimony, Ponytails had procured insurance through him for years and kept him as their agent while the agency he worked for changed. Poe & Associates was an independent insurance agency which represented several insurance companies and in finding coverage for Ponytails, Nancy Smith contacted several insurers. Thus, despite Mascho’s initial representation that he was an agent of Northwestern National, we find no evidence to that effect.

Moreover, despite appellants’ claim to the contrary, we do not accept the argument that Mascho was an apparent agent of Northwestern National. “In order to impose liability pursuant to the doctrine of apparent or ostensible agency, the evidence must show: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury.” Whitaker v. Zirkle, 188 Ga. App. 706, 709 (2) (374 SE2d 106) (1988). There is no evidence that Northwestern National or The Lenox Agency held out Mascho as an agent; nor is there evidence that Ponytails justifiably relied upon such a representation. In the absence of both factors, we find this argument without merit.

Decided June 16, 1994

Reconsiderations denied June 28, 1994

Barnes, Browning, Tanksley & Casurella, Charles B. Tanksley, Roy E. Barnes, for Kirby.

Johnston, Brannen & Mikell, Sam L. Brannen, Gary L. Mikell, H. Lehman Franklin, Jr., for Northside Equities, Inc.

Drew, Eckl & Farnham, W. Wray Eckl, James M. Poe, Suzanne V. Sanders, for Northwestern National Casualty Company.

Similarly, we reject appellants’ argument that Mascho and Poe & Associates functioned as both agent for the insured and the insurer. Compare Byrne v. Reardon, 196 Ga. App. 735 (4) (397 SE2d 22) (1990).

We find this enumeration without merit.

3. Next, Kirby contends that the trial court erred in holding that Northwestern National is not estopped from denying liquor liability coverage because of its filing with the Insurance Commissioner of Georgia. This enumeration is without merit. The filing was an explanatory memorandum which was filed with the Commission and was not a part of the policy issued to Ponytails. Moreover, we are not convinced that the document filed creates an ambiguity.

Judgments affirmed.

Beasley, P. J., and Johnson, J., concur.

       Although the parties refer to the deposition of Lambert, it is not included in the record before us and the trial court apparently did not consider it. “[T]he scope of [our] review is limited to the scope of the ruling in the trial court. . . .” Robinson v. State, 208 Ga. App. 528, 530 (4) (430 SE2d 830) (1993).


text:
    A94A0510.
    ROWLAND v. TSAY.
    (445 SE2d 822)
   Smith, Judge.

Janet Rowland brought suit against Yeou Ren Tsay, seeking damages for personal injuries allegedly sustained in a fall in the rental trailer she occupied. Rowland appeals the trial court’s order granting Tsay’s motion to withdraw certain admissions and a second order granting summary judgment in favor of Tsay. We affirm.

1. Under OCGA § 9-11-36 (b), the trial court “may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” This determination is within the discretion of the trial court, and will be reversed only on a showing of abuse of that discretion. See Hamrick v. Greenway, 257 Ga. 287, 288 (1) (357 SE2d 580) (1987).

While no showing of “providential cause” or “excusable neglect” is required, Whitemarsh Contractors v. Wells, 249 Ga. 194 (288 SE2d 198) (1982), the circumstances of the admissions shed some light both on the merits of the action and the issue of potential prejudice to Rowland. Counsel for Tsay testified by affidavit that he was served by hand with a packet of documents in response to Tsay’s request for production. Included in that packet were requests for admission, which were identified on the third page of an enclosed cover letter dealing primarily with the discovery responses. Counsel was unaware that the requests were included in the packet of produced documents, and counsel received no contact from opposing counsel regarding discovery until after the motion to withdraw admissions was filed.

The requests for admission largely duplicate verbatim the allegations of Rowland’s complaint and include requests to admit allegations of liability and damages which Tsay had already denied in his answer. On his motion to withdraw, Tsay presented responses to the requests for admission, as well as evidence by affidavit and deposition to show that his responses were meritorious and not interposed purely for purposes of delay.

With respect to the first part of the test, the trial court did not err in holding that withdrawal of the admissions will subserve the merits of the case. Although not required to do so because he did not have the burden of proof on the matters admitted, Johnson v. City Wide Cab, 205 Ga. App. 502, 503 (1) (422 SE2d 912) (1992), Tsay produced evidence negating the admissions, including affidavits and depositions. “Preservation of the merits of the case is subserved by withdrawal of the admissions. In the face of [Tsay’s] sworn affidavit and other evidence, these admissions create more questions than answers. Admissions created by the failure of a timely denial do not automatically entitle a party to summary judgment because they do not necessarily resolve disputes created by sworn testimony. They do not stand on higher footing than other evidence and do not negate all other evidence in the case.” Bailey v. Chase &c. Leasing Co., 211 Ga. App. 60, 61 (1) (438 SE2d 172) (1993).

Nor did the trial court err in determining that Rowland will not be prejudiced in maintaining her action on the merits. “Merely being deprived of judgment or being forced to go to trial is not such prejudice as will prevent withdrawal of admissions. [Cit.] If matters ‘admitted’ are in fact false, and if [Tsay], having contradicted his admissions by sworn affidavit and other admissible evidence, can demonstrate the falseness of the admissions as he says he can do, the merits of the case are preserved by withdrawal of the admissions. [Rowland] has no right to a judgment based on false ‘admissions’ effected merely because [Tsay] was late in answering the requests for admission, for such false admissions do not subserve the merits.” (Emphasis in original.) Id. at 62.

Rowland, citing no authority, contends that this court should require separate written findings by the trial court with respect to each individual admission. Neither OCGA § 9-11-36 (b) nor the applicable decisions require this, and we decline to establish such a rule. The trial court outlined in its order the evidence considered in making its ruling and made the findings required by the Code section. Rowland, again citing no authority, also contends that Tsay’s responses to the request for admissions are a nullity because they were filed with the trial court before the order allowing withdrawal of admissions. This argument ignores the requirement that the trial court determine whether the merits of the action will be subserved under OCGA § 9-11-36 (b). Moreover, the trial court’s order does not direct the filing of a response; it allows withdrawal of Tsay’s earlier admissions. We find no abuse of discretion in the trial court’s granting of Tsay’s motion to withdraw admissions.

2. The trial court, in a comprehensive and detailed order, granted summary judgment to Tsay on the basis of Rowland’s equal knowledge of the condition of the trailer and failure to exercise ordinary care for her own safety. The facts, construed most strongly against the movant, show that Patrick Ingemi, Rowland’s boyfriend, rented a trailer from Tsay. Ingemi performed various repairs on the trailer for Tsay in lieu of rent, and signed a receipt for $150 for labor in repairing the trailer floor shortly before the incident. However, Rowland contended this repair never took place; Ingemi repaired other items instead and was told to go through Tsay before repairing anything else. Rowland testified she knew there was a hole or soft place in the trailer floor, and Ingemi had specifically warned her not to step on it. She also testified that she was aware of the specific hazard of falling. Rowland ordinarily took care to avoid the hole, because she could feel it sagging whenever she got close to it, “and most of the times I was real careful.” She agreed that she stepped into an area she previously had tried to avoid.

The facts of this case are almost identical to those in Hall v. Thompson, 193 Ga. App. 574 (388 SE2d 381) (1989). The plaintiff in Hall had known about a sagging plank in her mother’s front porch for years, and she avoided it on a daily basis because she knew it was hazardous. However, one day she forgot about the plank’s condition, stepped on it, and fell. This court observed: “[e]ven though the condition of the premises may be hazardous and the landlord negligent, he may not be liable for injury where plaintiff had equal or superior knowledge of the alleged defect. If plaintiff knows of a defect, she must make use of all her senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to her. There is no material issue of fact in the case that plaintiff had specific knowledge of the condition of the plank and of the particular danger of stepping on it. She simply forgot to be careful; this forgetfulness or inattention to a known specific danger does not make the defendant liable for her injury.” (Citations and punctuation omitted.) Id. at 574-575 (1). Even though in Hall the landlord was not notified of the sagging plank, this is not dispositive because the landlord’s knowledge of the defect must be superior to that of the tenant. Id. Even assuming, as we must, that Rowland suffered an injury from a fall through a defective floorboard, and that Tsay was notified of the condition of the floor, it is apparent that Rowland’s knowledge was at least equal to Tsay’s. By electing to walk over that area of the floor she assumed the risk of injury as a matter of law and is thus barred from recovery. Wells v. C & S Trust Co., 199 Ga. App. 31, 32 (403 SE2d 826) (1991).

Rowland contends that this case falls within the scope of Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989), citing several housing code provisions which she contends were violated. However, as the trial court observed, there is no evidence in the record that the trailer or the alleged defect was subject to those provisions, that the condition of the trailer violated any housing code provision, or that Tsay was ever cited for or notified of any housing or building code violations. “Moreover, Thompson involved an inherently dangerous defect which the tenants could hardly avoid, or at least there is a substantial jury question on that issue. It cannot easily be compared to a case like this involving [defective flooring] which the plaintiff has avoided in the past and clearly could have avoided on this occasion, with the exercise of ordinary care. Further, we find it imperative to note that . . . the classic rules of negligence still apply in this state. These rules impose liability only where the landlord has actual or constructive superior knowledge, and the plaintiff has a duty to exercise ordinary care for her own safety. To say otherwise would be to relieve tenants of any duty of care and impose absolute liability upon landlords for all defective conditions which could have been repaired before the injury. If it is crystal clear as it is in this case (but was not in Thompson) that the plaintiff is at least equally aware of the specific hazardous condition and could have avoided it but simply failed to exercise ordinary care, the case is clearly subject to summary adjudication. Nothing in Thompson imposed an absolute liability upon landlords, nor do we believe the Supreme Court intended to do so.” (Citations and punctuation omitted.) Hall, supra, 193 Ga. App. at 574. The trial court did not err in granting summary judgment in favor of Tsay.

Decided June 28, 1994.

Samuel G. Merritt, for appellant.

Sullivan, Hall, Booth & Smith, Roger S. Sumrall, David G. Goodchild, for appellee.

Judgment affirmed.

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

       We note that the purpose of requests for admission is to expedite trial and clarify the issues in a case, Hobbs v. New England Ins. Co., 212 Ga. 513, 517 (3) (93 SE2d 653) (1956), not to gain a tactical advantage over opposing counsel. While placing unrelated discovery requests in a packet of produced documents does not sink to the level of the conduct in A & D Barrel &c. Co. v. Fuqua, 132 Ga. App. 827 (209 SE2d 272) (1974), such conduct does not advance the merits of the litigation or encourage courteous relations among members of the bar.