author: Benham, Judge. Banke, Presiding Judge, Carley, Judge,

text:
    73648.
    SOUTHERN RAILWAY COMPANY v. GEORGIA KRAFT COMPANY.
    (360 SE2d 605)
   Benham, Judge.

This litigation arose from a collision between a train belonging to and operated by appellant and a truck driven by Westbrook, an employee of the Burtons, a father and son who operate a pulpwood business. Contending that the Burtons were agents of appellee, appellant brought suit against appellee and the Burtons for damages to its train. After both sides rested at trial, the case was sent to the jury by means of a special verdict form reading as follows: “I. We the jury find that MELVIN WESTBROOK was: A. An agent or employee of Georgia Kraft Company. () OR B. Not an agent or employee of Georgia Kraft Company. ( ) II. A. We the jury find that MELVIN WEST-BROOK was negligent in causing the collision in this case. ( ) OR B. We the jury find that the evidence does not demonstrate that MELVIN WESTBROOK was negligent in causing the collision in this case. ( ) III. A. We the jury find for the plaintiff and award damages of $_OR B. We the jury find for the defendant. ()” Using that form, the jury found that Westbrook was not an agent or employee of appellee and found for the defendant. This appeal is from the judgment on that verdict.

1. In appellant’s sixth enumeration of error, it complains of the use of the special verdict form on five grounds. Two of those grounds were not raised below and were, therefore, waived. C & W Land Dev. Corp. v. Kaminsky, 175 Ga. App. 774 (2) (334 SE2d 362) (1985).

The remaining complaints are that the special verdict form, as submitted, was incorrect, misleading, and unduly prejudicial to appellant. We do not find the form of the special verdict faulty.

As to the complaint that the special verdict form mentioned only Westbrook’s name and not the Burtons’, we note that the trial court charged the jury extensively on appellant’s theory of recovery and told them that Westbrook was an employee of the Burtons and that if the Burtons were agents of appellee, so was Westbrook. Since the jury may be presumed to consider the interrogatories in a special verdict form in light of the trial court’s instructions (E. I. DuPont &c. Co. v. Berkley & Co., 620 F2d 1247 (8th Cir. 1980)), and since there could be no question under the instructions given by the trial court that the jury need only find that the Burtons were agents of appellee in order to find that Westbrook was, we find no error in the form of the special verdict.

The basis of appellant’s remaining complaints regarding the special verdict form is that it did not focus entirely on the contract between appellee and the Burtons. We do not find the scope of the special verdict form inappropriate. The essential question in agency cases such as this one is not only whether a contract gives the alleged principal the right to control the agent, but also whether the alleged principal has assumed such a right to control. See Slater v. Canal Wood Corp., 178 Ga. App. 877 (1) (345 SE2d 71) (1986). In several cases involving the relationships between pulpwood producers and the dealers in or users of pulpwood, the courts have focused on a broader range of concerns than just the express terms of the contract. See, e.g., Slater, supra; Bowman v. C. L. McCord Land &c. Dealer, 174 Ga. App. 914 (331 SE2d 882) (1985); and Hampton v. McCord, 141 Ga. App. 97 (232 SE2d 582) (1977). Our review of the record convinces us that the special verdict form is not subject to the criticisms raised by appellant.

2. The seventh enumeration of error in this case is that the trial court refused to employ appellant’s suggested verdict form. Since that suggested form sought to focus the jury’s attention solely on the contract between appellee and the Burtons, we find, for the reasons expressed in the preceding division of this opinion, no error in the trial court’s refusal to adopt appellant’s suggestion.

3. In appellant’s enumerations of error numbered 8, 9, and 11, appellant takes issue with the charge to the jury as given and with the trial court’s refusal to give certain of appellant’s requested charges. The complaint that the trial court failed to give appellant’s requests to charge numbered 9 and 12 is patently without merit since the trial court gave charges substantially the same as those requested. Ponder v. Ponder, 251 Ga. 323 (3) (304 SE2d 61) (1983).

Appellant’s argument regarding the trial court’s giving in the charge certain instructions requested by appellee runs afoul of a venerable principle repeated recently in Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (351 SE2d 82) (1986): “On review the charge must be considered as a whole and each part in connection with every other part of the charge. [Cit.] A charge, torn to pieces and scattered in disjointed fragments may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall. [Cits.]” Appellant has, for example, taken portions of the charge concerning various factors to be considered on the issue of agency and contends that these portions, considered separately, overemphasize particular factors. Perhaps such a criticism would be valid if the portions selected had been given to the jury out of context as appellant would have us consider them. Viewing the charge as a whole, however, we find that the trial court gave a balanced and thorough charge on all the pertinent issues in this case.

4. Appellant’s tenth enumeration of error is directed first to remarks of the trial court which appellant characterizes as comments on the evidence. Since appellant did not object at trial to the purported expressions of opinion by the trial judge, it cannot complain about them on appeal. Walker v. Bishop, 169 Ga. App. 236 (9) (312 SE2d 349) (1983).

Appellant also contends in that enumeration of error that the trial court’s statement while giving one of appellant’s requested charges on agency that “this is where the big issue is,” improperly implied that there was considerable doubt in the court’s mind that agency had been or could be proved. That contention is not supported by the record. It is apparent from context that the trial court was merely alerting the jury to the importance of an issue on which the success of appellant’s case depended and on which appellant expended considerable effort at trial and on appeal. The tenth enumeration of error is without merit.

5. Appellant’s twelfth enumeration of error concerns the trial court’s charge on circumstantial evidence. Appellant argues that the trial court instructed the jury that circumstantial evidence was not sufficient unless it excluded every other reasonable hypothesis. If that were so, we would be inclined to agree that the charge was erroneous. Our review of the record, however, reveals that the trial court merely explained to the jury that the circumstantial evidence must be contrary to any other reasonable hypothesis. That instruction is in accord with the principles stated in Radcliffe v. Maddox, 45 Ga. App. 676 (2) (165 SE 841) (1932). We find no error in the charge as given.

6. Appellee called the younger Burton as a witness. Appellant’s counsel objected several times that appellee’s counsel was leading his own witness. After sustaining several of appellant’s objections to leading questions, the trial court undertook to explain to the jury that one was not normally permitted to ask leading questions of his own witnesses, but that the question of whether Burton was an employee of appellee was a contested issue in this case and, in order to avoid influencing the jury on that issue, the court was giving counsel more leeway than usual with regard to leading questions. “Permitting leading questions being a matter within the sound discretion of the judge, it will not constitute reversible error ‘unless palpably unfair and prejudicial to the complaining party.’ [Cits.]” Clary Appliance &c. Center v. Butler, 139 Ga. App. 233 (2) (228 SE2d 211) (1976). The trial court was merely exercising its discretion in this matter, and we find no abuse of that discretion.

7. Appellant’s argument in support of its fifteenth enumeration of error consists of no more than a restatement of the enumeration of error, a statement of the trial court’s action, and a contention that the action was “incorrect and invades the province of the jury and their deliberations.” That does not constitute an argument in support of .the enumeration of error. Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630) (1977). There being neither argument nor citation of authority offered in support of the enumeration of error, it is deemed abandoned. Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia.

8. Appellant’s final enumeration of error (No. 16) raises the general grounds. It is sufficient to state that the evidence at trial authorized the jury to find that the Burtons were independent contractors and that their employees, therefore, were not servants of appellee. See Slater v. Canal Wood Corp., supra; Bowman v. C. L. McCord Land &c. Dealer, supra; and Hampton v. McCord, supra.

9. The rest of appellant’s enumerations of error, all of which concern the issue of negligence, need not be addressed since the jury’s finding against appellant on the issue of agency obviated the necessity of a decision on negligence and moots all questions involving that issue.

Judgment affirmed.

Birdsong, C. J., concurs. Deen,. P. J., Sognier and Beasley, JJ., concur in Divisions 1, 2, 3, 4, 6, 7, 8, and 9, and in the judgment. McMurray, P. J., Banke, P. J., Carley and Pope, JJ., dissent.

Banke, Presiding Judge,

dissenting.

I concur in Judge Carley’s excellent dissent. I must confess that I do not understand the difference between a charge to the effect that the circumstantial evidence must exclude every other reasonable hypothesis and a charge that the circumstantial evidence must be contrary to any other reasonable hypothesis. Consequently, I must assume that the average juror would not be able to understand the difference, either.

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

Carley, Judge,

dissenting.

I must respectfully dissent to the majority’s determination that the trial court did not err in its charge on circumstantial evidence. In Division 5 of its opinion, the majority frames the issue by pointing out that plaintiff argues “that the trial court instructed the jury that circumstantial evidence was not sufficient unless it excluded every other reasonable hypothesis. If that were so, we would be inclined to agree that the charge was erroneous. Our review of the record, however, reveals that the trial court merely explained to the jury that the circumstantial evidence must be contrary to any other reasonable hypothesis. That instruction is in accord with the principles stated in Radcliffe v. Maddox, 45 Ga. App. 676 (2) (165 SE 841) (1932).” (Emphasis in majority opinion.) While I agree that the key to the resolution of this issue is found in Radcliffe and the cases cited therein, I do not agree that the validity or invalidity of the charge rests only upon the portion summarized by the majority as informing the jury that the circumstantial evidence must be contrary to any other reasonable hypothesis. It is when this summarized language is read in conjunction with other portions of the charge on circumstantial evidence, that the misleading and incorrect nature of the same becomes apparent.

In charging on the rule of circumstantial evidence, the trial court correctly and accurately stated that that rule “simply says where you rely on circumstantial evidence, all of the circumstances must tend to establish the theory relied upon and preponderate to that theory rather than to any other reasonable hypothesis.” However, immediately following this correct statement of the rule, the trial court stated as follows: “In other words, if there is another reasonable explanation of it, then the burden would not be carried. If there are two reasonable explanations of circumstantial evidence, reasonable explanations according to what you find to be reasonable, then, of course, the burden would not be carried. This is what this particular rule means. It does not take any greater degree of evidence, any greater weight of the evidence to prove a fact by circumstantial evidence. [It] simply says that all the circumstances must tend to prove that and must be contrary to any other reasonable hypothesis.” (Emphasis supplied.) In my opinion, this charge on circumstantial evidence is confusing and misleading with regard to the relationship of the carrying of the burden of proof to the rule on circumstantial evidence.

Initially, it is to be noted that, earlier in the charge, the trial court charged as to the burden of proof and the necessity of the plaintiff to carry the same by the preponderance of evidence. Further, the court correctly instructed the jury that “[i]f you find the evidence is evenly balanced on any issue in this case, then, in such event, it would be your duty to resolve that issue against the party having the burden of proof on that issue. In other words, since the plaintiff has the burden of proof on [its] claims in this case, that means [it has] to show [its] evidence has the greater weight to some extent. ... So if the evidence is evenly balanced on both sides, [the plaintiff] would not have carried that burden, and you will resolve that in favor of the party who did not have the burden of proof on that particular issue.” Thus, the jury had already been instructed that the plaintiff had to carry the burden of proof by a preponderance of evidence, and that if the jury found the evidence to be evenly balanced, the plaintiff would not have carried the burden. However, the challenged charge on circumstantial evidence specifically and unequivocally tells the jury that if there is another reasonable explanation of the circumstantial evidence than that postulated by the plaintiff, the plaintiff would not have carried the burden. This is inconsistent with the earlier correct statement that the circumstantial evidence must preponderate to the theory of the party having the burden of proof rather than to any other reasonable hypothesis. Instead of correctly telling the jury that the burden would not be carried if there was another equally reasonable explanation of the circumstantial evidence, the court in effect charged the jury that the evidence could never preponderate to the plaintiff’s theory if there was any other reasonable explanation, even if plaintiffs theory was more probable.

I disagree with the majority that Radcliffe v. Maddox, supra, authorizes the charge given by the trial court in this case. In Radcliffe, the defendant argued that the circumstantial evidence charge was erroneous “on the ground that the judge not only should have charged that the circumstances shown must tend in some appreciable degree to establish the conclusion claimed, and preponderate to that conclusion as against all other reasonable hypotheses, but should have charged also that they must exclude every other reasonable hypothesis.” Radcliffe v. Maddox, supra, 682. In holding that the trial court did not err in failing to charge as the defendant contended, this Court placed in proper perspective a circumstantial evidence charge as given to a trial jury by referring to and discussing the appellate review standard in a case based upon circumstantial evidence. This discussion, though lengthy, is very instructive to our analysis of the charge at issue here. The Radcliffe court held: “The excerpt from the charge is taken from Georgia Ry. & El. Co. v. Harris, 1 Ga. App. 714 (57 SE 1076), in which the court was dealing with what amount of circumstantial evidence would authorize this court to uphold the finding of a jury based thereon. In determining this question, that is, whether or not there is any evidence to support the verdict where the plaintiff in a civil action relies solely upon circumstantial evidence to establish his cause of action, the appellate court will look to the testimony; and before the verdict can be allowed to stand, it must appear that the circumstances shown tend in some appreciable degree to establish the conclusion claimed. It is for the jury to say whether or not they preponderate to that theory as against all other reasonable, but less probable, hypotheses. As stated in the Harris case, ‘the established fundamental rules applicable to circumstantial evidence are the same in civil cases as in criminal trials. In both cases it is required that the circumstances relied upon be not only consistent with the conclusion sought to be established, but also inconsistent with every other reasonable hypothesis. In civil cases this consistency with the one and inconsistency with the other is required to be established by a mere preponderance; in criminal cases to the exclusion of reasonable doubt.’ Where the circumstances shown do, as a matter of law, in some appreciable degree tend to establish the hypothesis claimed, and in the minds of the jury preponderate to that hypothesis rather than to any other reasonable hypothesis, this is the equivalent of excluding all such other less probable hypotheses. In other words, the jury could not find that circumstantial evidence of real probative value preponderated in favor of one theory as against all other reasonable but less probable theories, without excluding the theories thus rejected. In neither criminal nor civil cases is it required that the proved circumstances shall show consistency with the hypothesis claimed and inconsistency with all other reasonable theories to the point of logical demonstration. In civil cases all other reasonable theories are excluded when proved circumstances of real and actual probative value cause the jury to find that the preponderance of the evidence is in favor of the hypothesis claimed, as against all other reasonable but less probable theories. Where a decision is required between two or more antagonistic theories, an authorized finding that the evidence preponderates to one theory as against all the others necessarily carries with it a finding that the rejected theories are excluded.” (Emphasis supplied.) Radcliffe v. Maddox, supra, 682, 683.

Decided July 14, 1987

Rehearing denied July 31, 1987

Burt Derieux, Eileen M. Crowley, Keith J. Reisman, L. Hugh Kemp, for appellant.

W, Wray Eckl, Julia Anderson, for appellee.

I submit that, by its charge in this case, the trial court invaded the province of the jury to find that the preponderance of the evidence was in favor of one hypothesis as against all other “reasonable but less probable theories” by instructing the jury that if there was any other reasonable explanation save that of the plaintiff, the plaintiffs burden would not have been carried. I believe that the correct rule is that if there is more than one reasonable explanation of the circumstantial evidence, the jury can find that the plaintiff carried its burden of proof if it finds that the circumstantial evidence preponderates toward plaintiffs explanation rather than any other reasonable but less probable explanation. See also McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178 (2) (129 SE2d 408) (1962); Southeastern &c. Ins. Co. v. Stevens, 142 Ga. App. 562 (2) (236 SE2d 550) (1977).

Accordingly, I believe that the trial court’s charge on circumstantial evidence was error requiring the grant of a new trial. Therefore, I respectfully dissent.

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


source: Caselaw Access Project

author: Benham, Judge. Banke, Presiding Judge,

license: Public Domain

text:
    73650.
    EASTERN AIR LINES, INC. v. FULTON COUNTY.
    (360 SE2d 425)
   Benham, Judge.

Eastern Air Lines, Inc., filed this action to obtain a refund of ad valorem taxes collected by Fulton County on certain leasehold interests held by Eastern on property owned by the City of Atlanta and located at Hartsfield Atlanta International Airport. In addition, Eastern sought to collect prejudgment interest on the taxes, plus attorney fees based on the county’s alleged bad faith and stubborn litigiousness.

Admitting that the leasehold interests were not taxable, the county tendered the principal amount of the tax payments into the registry of the court; however, in a brief in support of its motion for summary judgment, it asserted sovereign immunity from liability for prejudgment interest or attorney fees. This appeal is from the grant of the county’s motion for summary judgment and the denial of Eastern’s motion for summary judgment with respect to these latter claims.

In September of 1981, Eastern was notified by the Joint City-County Board of Tax Assessors for the City of Atlanta and Fulton County that the leasehold interests in question were considered to be subject to ad valorem taxation at a value in excess of ten million dollars. Eastern appealed, taking the position that the interests were non-taxable usufructuary interests rather than taxable interests in real property. The assessments were sustained by an arbitration panel and by the Superior Court of Fulton County, but Eastern ultimately prevailed in the Georgia Supreme Court. See Eastern Air Lines v. Joint City-County &c. Tax Assessors, 253 Ga. 18 (315 SE2d 890) (1984).

During the pendency of the appeals arising from the 1981 assessment, Eastern paid to Fulton County, under protest, a total of $271,086.32 in ad valorem taxes assessed on the interests for the 1981, 1982, and 1983 tax years. On February 22, 1984, in a letter addressed to “The Governing Authority of Fulton County c/o Fulton County Board of County Commissioners,” Eastern demanded a full refund of those taxes, based on its continuing position that the leasehold interests were not taxable. On May 22, 1984, the Supreme Court handed down its decision sustaining Eastern’s position, and approximately a year later, on April 1, 1985, Eastern filed the present action. The county paid the taxes into the registry of the court on September 24, 1985. Eastern contends that, at the very least, it is entitled to recover prejudgment interest for the period between the date of its demand letter and the date of the refund.

1. Generally speaking, a claimant is entitled under Georgia law to recover prejudgment interest on a liquidated claim at the rate of 7 percent per annum from the date the claim becomes due until the date of recovery. See OCGA §§ 7-4-2; 7-4-15; Wheels & Brakes v. Capital Ford &c. Sales, 167 Ga. App. 532, 534 (307 SE2d 13) (1983). Where a due date is not fixed by agreement, a liquidated claim is deemed to be due upon demand. See Dell v. Kugel, 99 Ga. App. 551, 559 (109 SE2d 532) (1959). It is quite clear that Eastern’s refund claim is for a liquidated sum and that a demand was made for its payment. Compare Marathon Oil Co. v. Hollis, 167 Ga. App. 48 (3) (305 SE2d 864) (1983). The county, however, takes the position that, pursuant to OCGA § 36-1-4, it enjoys sovereign immunity from liability for prejudgment interest absent an express statutory waiver of such immunity.

While it is true that OCGA § 48-5-380, the statute governing the recovery of unlawfully collected municipal and county taxes, does not specifically authorize the recovery of prejudgment interest, we note that this Code section and its predecessors did not create the right to sue for such tax refunds but merely codified pre-existing common law authorizing such suits. See Hawes v. Smith, 120 Ga. App. 158 (169 SE2d 823) (1969).

While this court has impliedly held that a taxpayer may recover prejudgment interest in an action to recover a refund of wrongfully collected property taxes (see Webb v. Coweta County, 178 Ga. App. 170 (342 SE2d 345) (1986)), the courts of this state do not appear to have had occasion to address the issue squarely. Recovery of prejudgment interest has, however, been authorized in suits against the state and its subdivisions to collect on other types of liquidated claims, notwithstanding the absence of any specific statutory authorization for such recovery. In Marion County v. First Nat. Bank of Gainesville, 193 Ga. 263 (7) (18 SE2d 475) (1942), the Supreme Court, relying on the predecessors to OCGA §§ 7-4-2 and 7-4-15, upheld a recovery of prejudgment interest in a suit against a county to enforce certain warrants which the county had wrongfully refused to pay, even though the statute governing such suits authorized the recovery of such interest only if certain conditions, not met therein, were met. See also Undercofler v. Scott, 220 Ga. 406 (2) (139 SE2d 299) (1964); Hartley v. Nash, 157 Ga. 402 (121 SE 295) (1924).

To allow a taxpayer to recover prejudgment interest in an action for a refund of wrongfully collected taxes is not to sanction an additional claim against the taxing authority but is merely to afford the taxpayer full restitution of the benefit the taxing authority has received as a result of the overpayment. This is nothing more than the measure of recovery authorized in any action for money had and received, and to disallow it in tax refund cases on the basis of sovereign immunity would be to permit the taxing authority to commandeer with impunity the free use of the taxpayer’s money. This we decline to sanction. Consequently, we hold that Eastern was entitled to recover prejudgment interest in the present case. However, in accordance with the general law governing the recovery of prejudgment interest on liquidated claims, we further hold that such interest is owed only from the date of the demand for refund, not from the date the taxes were collected. See Dell v. Kugel, supra, Division 4.

2. We reject the county’s contention that Eastern’s demand letter was invalid because it was premature or otherwise technically defective. The county’s position in this regard is based on the following emphasized portions of OCGA § 48-5-380 (b): “In any case in which it is determined that an erroneous or illegal collection of any tax or license fee has been made by a county or municipality or that a taxpayer has voluntarily or involuntarily overpaid any tax or license fee, the taxpayer from whom the tax or license fee was collected may file a claim for a refund with the governing authority of the county or municipality at any time within one year or, in the case of taxes, three years after the date of the payment of the tax or license fee to the county or municipality. The claim for refund shall be in writing and shall be in the form and shall contain the information required by the appropriate governing authority. The claim shall include a summary statement of the grounds upon which the taxpayer relies. . . .” The county’s contention that Eastern’s demand letter was premature is based on its position that when the letter was submitted, February 22, 1984, Eastern was not yet entitled to demand a refund because it had not yet been “determined” by an appropriate authority that the collection of the tax was “erroneous or illegal.” The county asserts that the earliest date such a determination can be deemed to have been made was May 22, 1984, the date the Supreme Court issued its decision sustaining Eastern’s position with respect to the taxability of the leasehold interests, and that “a more likely date would be June 18, 1984, when the decision of the Supreme Court was made the order of the Fulton County Superior Court by remittitur.”

We find this position to be totally untenable. Obviously, the Legislature did not intend to make the taxpayer’s right to assert a claim for a tax refund contingent on a prior decision by the taxing authority or some unspecified appeals tribunal approving the as yet non-existent claim. Such an interpretation would render the statute totally meaningless and absurd. Rather, OCGA § 48-5-380 (b) clearly authorizes the taxpayer to assert a claim for a refund based on his own determination that such a refund is warranted. Cf. Webb v. Coweta County, supra at 171.

The county further contends that Eastern’s demand letter was ineffective because it was not in the proper form and did not contain certain information required by the county taxing authority to be contained therein. The contention that the form of the demand was improper is predicated on the county’s unsupported assertion in its brief that “[f]or many years, the Office of Fulton County Tax Commissioner has furnished a form for making refund claims” which all taxpayers are required to use.

OCGA § 48-5-380 (b) quite clearly does not require that a tax refund claim be made “on” a particular form supplied by the taxing authority but merely that it be made “in writing” and “in the form and [containing] the information required by” the authority. (Emphasis supplied.) The only pertinent information which the county contends was omitted from Eastern’s demand letter was the dollar amount of the refund sought. However, it does not appear from the record that the county ever intimated to Eastern that its demand letter was considered defective for this or any other reason. To the contrary, the record reflects that on September 28, 1984, counsel for the county sent a letter to counsel for Eastern indicating that Eastern’s refund claim was being processed and specifying the exact amount of the taxes at issue for each of the three tax years in question. Under such circumstances, the county will not be heard to assert an alleged technical defect in the demand letter as a defense to the present action.

3. Based on its contention that Eastern’s demand letter was defective, the county further contends the present action was filed prior to the expiration of one year after the date of a valid refund demand, in contravention of OCGA § 48-5-380 (c). Having rejected the county’s contention that the demand letter was untimely or otherwise ineffective, we find this contention also to be without merit.

4. In appellee’s motion for summary judgment, the only defensive grounds raised with regard to appellant’s claim for attorney fees were that appellant’s demand for a refund was not timely or proper and that the suit for a refund was premature. Its arguments in support of those grounds are adequately refuted in the preceding divisions of this opinion.

Where there is no bona fide dispute with regard to liability, a defendant’s action in forcing a plaintiff to bring suit in order to recover causes the plaintiff unnecessary trouble and expense within the meaning of that phrase in OCGA § 13-6-11. A. P. S. S., Inc. v. Clary & Assoc., 178 Ga. App. 131 (2) (342 SE2d 375) (1986). Our review of the record persuades us that there could be no doubt after the Supreme Court’s decision in May 1984 that appellee was liable to appellant for a refund of the taxes paid. That being so, a question is presented for jury resolution regarding the reasonableness of appel-lee’s refusal for some time after that decision to make the refund.

The dissent asserts that counties are protected from claims for attorney fees as expenses of litigation by the doctrine of sovereign immunity, suggesting, in effect, that a claim for expenses of litigation is an additional cause of action. Of course, as the author of the dissent noted in the case cited in the dissent on this point, Citibank v. Knowles, 168 Ga. App. 664 (310 SE2d 18) (1983), that is not so.

The dissent also seeks to draw a distinction between prejudgment interest and a claim for attorney fees, but the distinction is illusory: both of those elements of damage are based on conduct of the defendant with regard to the transaction which is the subject of the litigation, including the conduct of the litigation itself. Furthermore, the dissent’s position that counties enjoy sovereign immunity from claims for attorney fees as expenses of litigation because there is currently no statute specifically authorizing such a recovery is inconsistent with concurrence in the holding that prejudgment interest can be recovered against a county: as we noted in Division 1 of this opinion, there is no specific statutory provision for the recovery of prejudgment interest, either.

This court has previously affirmed an award of attorney fees as expenses of litigation against a county in DeKalb County v. Daniels, 174 Ga. App. 319 (6) (329 SE2d 620) (1985), the case the dissent would overrule. To do so would create judicially an expanded immunity which the legislature and the voting populace have not chosen to confer on governmental entities. In an era in which legislatures and courts are exerting efforts to curb abuses of the litigation process, that is a step which we should not take.

As may be seen from the statement of the case in this opinion, appellee’s conduct in the transaction here involved has been such that there is at least a question of fact with regard to appellant’s entitlement to an award of attorney fees. The grant of summary judgment to appellee on that issue was error.

Judgment reversed.

Birdsong, C. J., Deen, P. J., Carley, Sognier, and Pope, JJ., concur. Beasley, J., concurs in Divisions 1, 2, and 3, and in the judgment. McMurray, P. J., and Banke, P. J., concur in part and dissent in part.

Banke, Presiding Judge,

concurring in part and dissenting in part.

I wholeheartedly agree with the majority’s holding that Eastern is entitled to prejudgment interest on the wrongfully assessed taxes. However, as much as I sympathize with the majority’s desire to allow Eastern also to collect attorney fees pursuant to OCGA § 13-6-11 based on the county’s alleged bad faith and stubborn litigiousness, I am persuaded by constitutional and statutory law that the county enjoys sovereign immunity from that claim.

With certain specific exceptions set forth in the Georgia Constitution, “[a] county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. See Ga. Const, of 1983, Art. II, Sec. II, Par. IX; Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985); Ga. Const. of 1976, Art. VI, Sec. V, Par. I; Clark v. State, 240 Ga. 188 (240 SE2d 5) (1977). See also Wood v. Floyd County, 161 Ga. 743, 745-746 (131 SE 882) (1925); Miree v. United States, 242 Ga. 126 (249 SE2d 573) (1978).

Suits against counties and municipalities to recover refunds of erroneously or illegally collected taxes are, of course, specifically authorized by OCGA § 48-5-380. As pointed out by the majority, to allow recovery of prejudgment interest in such suits is not to sanction any additional “cause of action” against the taxing authority but is merely to afford the taxpayer full restitution of the benefit the taxing authority has received as a direct result of the overpayment. However, a claim for attorney fees based on the taxing authority’s alleged bad faith and stubborn litigiousness quite obviously is not an intrinsic element of a tax refund claim. Indeed, unlike a tax refund claim, such a claim is not even considered liquidated. See Wahnschaff Corp. v. O. E. Clark Paper Box Co., 166 Ga. App. 242, 244 (2) (304 SE2d 91) (1983); Brannon Enterprises v. Deaton, 159 Ga. App. 685, 687 (285 SE2d 58) (1981). Rather, an OCGA § 13-6-11 claim for attorney fees seeks an entirely separate and distinct type of recovery based on aggravating factors over and above those giving rise to the original claim against the defendant. Consequently, it in effect asserts a separate cause of action, albeit one which is not cognizable in its own right but must be asserted in conjunction with some other cause of action. See Citibank v. Knowles, 168 Ga. App. 664 (310 SE2d 18) (1983).

Because there is currently no statute specifically authorizing the recovery of attorney fees as expenses of litigation in a suit against a county, I am compelled to reach the conclusion that the county enjoys sovereign immunity from such claims. The Supreme Court’s holding in DeKalb County v. Trustees &c. Elks, 242 Ga. 707 (251 SE2d 243) (1978), upon which the majority relied in all but the final draft of its opinion in this case, provides not even remote support for a contrary view. In the first place, the issue there was whether attorney fees were recoverable not as a penalty for bad faith or stubborn litigiousness but as an element of just and adequate compensation in eminent domain proceedings. In the second place, the Court’s holding in that case was that attorney fees were not recoverable in such proceedings in the absence of specific legislative authorization. To the extent that this court’s decision in DeKalb County v. Daniels, 174 Ga. App. 319 (6) (329 SE2d 620) (1985), may be considered authority for the majority’s holding in Division 4 of the present case, it contravenes statutory and constitutional law and should be overruled rather than followed.

I am authorized to state Presiding Judge McMurray joins in this opinion.

Decided July 13, 1987

Rehearing denied July 31, 1987

Theodore M. Forbes, Jr., Frederick G. Boynton, Edward H. Was-muth, Jr., for appellant.

Harold T. Daniel, Jr., William C. Gentry, for appellee.


author: McMurray, Presiding Judge.

text:
    73723, 73724.
    GENERAL ELECTRIC CREDIT CORPORATION v. SMITH (two cases).
    (360 SE2d 443)
   McMurray, Presiding Judge.

General Electric Credit Corporation (GECC) filed an action against Spurgeon Smith seeking $1,726.06, plus interest, under a promissory note executed by Mr. Smith in favor of Glennville Acceptance Corporation (GAC). Simultaneously, GECC filed a separate action against Harriett Smith seeking $1,856.40, plus interest, under a promissory note executed by Ms. Smith in favor of GAC. GECC based its claims in both actions on the alleged assignments of the above-described notes by GAC to GECC.

Spurgeon Smith answered and admitted that he executed a promissory note in favor of GAC in the amount of $2,184. However, he denied that GAC lawfully assigned the promissory note to GECC and further denied that he was indebted to GECC in the amount of $1,726.06. In a separate answer, Harriett Smith admitted that she executed a promissory note in favor of GAC in the amount of $2,688. However, she denied that GAC lawfully assigned the promissory note to GECC and further denied that she was indebted to GECC in the amount of $1,856.40.

In their answers, the Smiths asserted identical counterclaims, alleging in Count 1 that GECC “together with Royce Sutton, [GAC] and Universal Finance Company conspired to defraud [them] by failing to enter the payments which [they] made on said [notes].” The Smiths further alleged that GECC, “Royce Sutton, [GAC] and Universal Finance Company fraudulently [concealed] the fact that Royce Sutton was not entering the payments on [their accounts] as they represented to [the Smiths] was being done.” In support of these allegations, the Smiths alleged that “Royce Sutton d/b/a [GAC] was the agent and representative for [GECC].”

In Count 2, the Smiths alleged that GECC “has been stubbornly litigious, has put [them] to unnecessary trouble and expense and has acted in bad faith.” More specifically, the Smiths alleged that they have “repeatedly advised [GECC] and their (sic) attorney and their (sic) agent for litigation that said indebtedness was paid and that [they] had set off claims far in excess of [these claims], however, [GECC] continued to litigate in a previous action and although [the Smiths] made three pre-trial appearances in said previous suit [GECC’s] agents and representatives failed to appear and although said suit was orally dismissed by the court, [GECC’s] agents persisted in trial and put [the Smiths] through a trial which resulted in a dismissal against [GECC’s] litigating agents for failure to present a valid claim against [the Smiths].”

Both actions were consolidated for a jury trial and the evidence adduced therefrom, construed most favorably to support the jury’s verdict, authorized the following pertinent facts: GECC is a “wholly-owned subsidiary” of General Electric Company that specializes “in providing credit lines — or loans to small-loan independent finance companies throughout the [United States].” Beginning in 1976, GECC provided operating capital to GAC, a Georgia corporation which was owned and operated by Royce and Marjorie Sutton and was doing business in Glennville, Georgia as an independent loan company. As collateral for its line of credit from GECC, GAC provided GECC security interests in various assets, including the consumer notes acquired by GAC. Pursuant to a “Loan Agreement” executed by GAC in 1970 and acquired by GECC through assignment in 1976, GECC perfected its security interest in GAC’s commercial paper by hypothecation. On March 1, 1977, GECC filed a “Financing Statement,” pursuant to OCGA § 11-9-401 et seq., listing the items pledged by GAC as collateral. (Upon notification by GAC of satisfaction of the underlying debt on a consumer note held by GECC, GECC would return the collateral note to GAC for satisfaction.)

On August 3, 1979, Royce and Marjorie Sutton, in their individual capacities, executed a promissory note in favor of Harriett and Spurgeon Smith in the principal amount of $19,000, bearing interest at a rate of 12 percent per annum. When this note became due, the Suttons were unable to satisfy the underlying debt. Harriett and Spurgeon Smith testified that after several demands for payment, the Suttons agreed to loan the Smiths funds from GAC, verbally assuring the Smiths that they would service their loans from GAC in partial satisfaction of the Suttons’ personal debt to the Smiths. Relying on this understanding, Harriett Smith executed a promissory note in favor of GAC on March 8, 1982, and received funds from GAC; similarly, Spurgeon Smith executed a promissory note in favor of GAC on August 30, 1982, and received funds from GAC.

Pursuant to its “Loan Agreement” with GECC, GAC endorsed and mailed the original notes executed by the Smiths to GECC. When GECC received the notes no payments were due under the terms of the notes; neither note displayed evidence of forgery; and, neither note had been dishonored. Further, Edward S. Smith, “an Account Manager with [GECC] in Allentown [, Pennsylvania],” testified that GECC was not aware of any claims or defenses against either note.

Although the Smiths testified that they made no payments under the notes, other undisputed evidence showed that GAC received payments on Harriett Smith’s account until April 5, 1983, at which time there remained a balance of $1,784. Further, the undisputed evidence showed that GAC received payments on Spurgeon Smith’s account until April 11, 1983, at which time there remained a balance of $1,768. No other payments were received by GAC on behalf of the Smiths and no other sums were credited to the Smiths’ accounts. (Although the Smiths did not dispute the balances remaining on their accounts, both Harriett and Spurgeon Smith testified that they were not responsible for the unpaid balances because the Suttons were to “take care” of their debts under the notes.)

During May 1983 GECC terminated GAC’s line of credit and foreclosed on its security, seizing all customer ledger cards maintained by GAC and assuming authority over GAC’s commercial paper, including the notes executed by the Smiths. Thereafter, GECC entered into an agreement with Universal Finance Company of Claxton (Universal) to service and collect the accounts acquired by GECC by foreclosure. Universal immediately notified Harriett and Spurgeon Smith that their accounts had been assigned to Universal and requested the Smiths to verify the remaining balances on their accounts. In response, the Smiths communicated with agents of Universal and GECC and denied liability under the notes explaining that Royce Sutton was to “take care” of the notes.

On January 10, 1984, Universal filed separate actions against the Smiths in the Magistrates Court of Tattnall County, Georgia to recover under the notes. (GECC was not a party to these lawsuits.) On March 13, 1984, Universal obtained judgments against the Smiths for the full amount due under the notes as was indicated on the ledger cards formerly maintained by GAC. On appeal to the Superior Court of Tattnall County, Georgia, the Superior Court directed a verdict for each of the Smiths in Universal’s actions against the Smiths as a proper showing had been made that there was never a proper assignment of the Smith notes to Universal.

At the conclusion of the evidence, GECC’s motion for directed verdict was denied. The cases were then submitted to the jury for consideration and identical verdicts were rendered in favor of Harriett and Spurgeon Smith on their counterclaims. On each counterclaim, the jury awarded actual damages, punitive damages and attorney fees. GECC’s motion for judgment notwithstanding the verdict and, in the alternative, motion for new trial, was denied. GECC appeals from the judgment entered in favor of Harriett Smith in Case No. 73723. GECC appeals from the judgment entered in favor of Spurgeon Smith in Case No. 73724. We now consider both appeals. Held:

1. GECC first contends the trial court erred in failing to grant its motion for directed verdict and its motion for judgment notwithstanding the verdict because “GECC was a holder-in-due course of the Smith notes and, therefore, took the instruments free from all defenses of any party to the instruments with whom GECC had not dealt.”

“The relevant statute with reference to the [Smiths’] promissory [notes], Code Ann. § 109A-3-302 (1) [now OCGA § 11-3-302 (1)], provides: ‘A holder in due course is a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonored or of any defense against it or claim to it on the part of any person.’ See generally Johnson v. C & S Bank, 144 Ga. App. 515 (241 SE2d 625) (1978).” Design Engineering &c. Inc. v. Cessna Fin. Corp., 164 Ga. App. 159, 160 (1) (296 SE2d 195). With the exception of five defenses enumerated in OCGA § 11-3-305 (2), “a holder in due course . . . takes the instrument free from . . . [a]ll claims to it on the part of any person; and . . . [a] 11 defenses of any party to the instrument with whom the holder has not dealt. . . .” OCGA § 11-3-305.

It is uncontroverted in the cases sub judice that when GECC perfected its security interests in the notes executed by the Smiths, GECC took the notes in good faith and for value, and without any notice of any claims or defenses asserted by the Smiths. Further, there was no evidence indicating that GECC was aware of any defenses against the notes executed by the Smiths until after the foreclosure by GECC and after Universal began verifying amounts remaining on GAC’s former accounts. However, the Smiths argue that GECC was placed on notice of the alleged fraud underlying the execution of the promissory notes because the Suttons were “agents” acting on behalf of GECC. Under the circumstances of the cases sub judice, this assertion is similar to the defense associated with the so-called “party-to-the-transaction rule.”

“The ‘party-to-the-transaction rule’ is a legal principle in the law of negotiable instruments and has been adopted in several jurisdictions. That legal principle establishes, in effect, a defense to the assertion of holder in due course status. As stated by the Supreme Court of New Jersey, the premise upon which the ‘rule’ is based is that ‘(i)n the field of negotiable instruments, good faith is a broad concept. The basic philosophy of the holder in due course status is to encourage free negotiability of commercial paper by removing certain anxieties of one who takes the paper as an innocent purchaser knowing no reason why the paper is not as sound as its face would indicate. It would seem to follow, therefore, that the more the holder knows about the underlying transaction, and particularly the more he controls or participates or becomes involved in it, the less he fits the role of a good faith purchaser for value; the closer his relationship to the underlying agreement which is the source of the note, the less need there is for giving him the tension-free rights considered necessary in a fast-moving, credit-extending commercial world.’ Unico v. Owen, 232 A2d 405, 410 (N. J. 1967).” Design Engineering &c. Inc. v. Cessna Fin. Corp., 164 Ga. App. 159 (1), 161, supra.

Before the “party-to-the-transaction rule” may be asserted as a defense against a holder in due course, there must be evidence showing that the assignee was an “original party” to the underlying transaction or that the assignee exercized sufficient “control” of the underlying transaction to authorize a finding that the assignee was, in reality, a party to the original transaction. See Design Engineering &c. Inc. v. Cessna Fin. Corp., 164 Ga. App. 159, 160 (1), supra.

The evidence presented at trial in the cases sub judice did not support a finding that GECC was an “original party” to the notes executed by the Smiths in favor of GAC. The evidence supporting this conclusion showed that GAC was a small finance company which had independently conducted business in Glennville, Georgia for over 20 years. (GECC did not begin providing credit to GAC until 1976.) GECC had no ownership interest in GAC and GECC did not prescribe the manner in which GAC conducted its business. Further, there was no evidence indicating the GECC was GAC’s only capital supporter. Most persuasively, however, there was no evidence showing that GECC participated in or controlled the manner in which GAC’s consumer loan customers were approved for credit. This determination was apparently left to the sole discretion of GAC’s officers and employees, Royce and Marjorie Sutton. The fact that GECC prescribed the manner in which GAC was to prepare, execute and maintain its commercial paper does not indicate that GECC was an “original party” to the Smiths’ loan transaction. Realistically, this evidence reveals only that GECC was a secured creditor seeking to protect its collateral. Accordingly, the Suttons were not “agents” of GECC, nor was GECC an “original party” to the Smiths’ loan transactions. GECC was, therefore, a holder in due course as contemplated by OCGA § 11-3-302.

“The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150). In reviewing grant of a directed verdict or a judgment notwithstanding the verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga. App. 442 (287 SE2d 238) (1981). A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the jury verdict. Id.” Pendley v. Pendley, 251 Ga. 30 (1), 31 (302 SE2d 554).

Decided July 15, 1987

Rehearing denied July 31, 1987

Thomas J. Gallo, B. Daniel Dubberly III, for appellant.

In the cases sub judice, since GECC was a holder in due course and since the Smiths did not assert any one of the five statutory defenses enumerated in OCGA § 11-3-305 (2), the trial court erred in failing to grant GECC’s motion for directed verdict and GECC’s motion for judgment notwithstanding the verdict with regard to the Smiths’ liability under the promissory notes. OCGA § 11-3-305. With regard to the impotence of the defense of “fraud by inducement,” as asserted by the Smiths, against a holder in due course, see Moore v. Southern Discount Co., 107 Ga. App. 868 (3), 869 (132 SE2d 101). The undisputed evidence authorized a verdict in favor of GECC against Harriet Smith for $1,784 and a verdict against Spurgeon Smith for $1,768.

2. Next, GECC contends the trial court erred in failing to grant its motion for directed verdict and motion for judgment notwithstanding the verdict with regard to the Smiths’ counterclaims.

(a) There was no evidence presented at trial showing that GECC “conspired to defraud” the Smiths by “failing to enter payments” on the Smiths’ accounts. Neither was there evidence showing that Universal, acting on behalf of GECC, “conspired to defraud” the Smiths. Further, as we held in Division 1 of this opinion, there was insufficient evidence to authorize a finding that GAC or Royce and Marjorie Sutton were agents acting on behalf of GECC. Consequently, the trial court erred in failing to direct a verdict in favor of GECC on Count 1 of the Smiths’ counterclaims. See also OCGA § 11-9-317.

(b) Since the trial court erred in failing to enter a verdict in favor of GECC on its claims under the promissory notes, the Smiths’ action for abusive litigation in Count 2 of their respective counterclaims must fail. See Smith v. Pierce, 179 Ga. App. 724, 725 (4) (347 SE2d 692). The trial court erred in failing to direct a verdict in favor of GECC in this regard.

3. In light of our holdings in Divisions 1 and 2 of this opinion, it is unnecessary to address GECC’s remaining enumerations of error.

Judgments reversed.

Sognier and Beasley, JJ., concur.

Richard D. Phillips, for appellee.


author: Carley, Judge. Banke, Presiding Judge,

text:
    73948.
    THE STATE v. CHANDLER.
    (360 SE2d 727)
   Carley, Judge.

In August of 1985, appellee was originally sentenced to 12 months probation for a misdemeanor offense. Subsequently, a probation revocation petition was filed. Following a hearing, the sentencing judge entered an order remanding appellee “to the custody of a Diversion Center as recommended by his probation officer and approved by the court.” In April of 1986, appellee was indicted for the offense of felonious escape, based on allegations that, “having been lawfully committed to the custody of the Athens Diversion Center, said accused did unlawfully and intentionally fail to return as instructed to the lawful custody of the Athens Diversion Center after having been released to seek employment on the condition that he would return to the Athens Diversion Center.” The trial court dismissed the indictment, holding that when a defendant, such as appellee, has been ordered to reside at a diversion center as a special condition of his probation, he does not commit the crime of “escape” if he leaves that facility without authority. The State appeals from the order dismissing appellee’s indictment.

The orders entered by the sentencing judge following the revocation proceedings had the effect of modifying the terms and conditions of appellee’s probation, not of revoking his probation. Had the sentencing judge intended to revoke appellee’s probation, it would have sentenced him to confinement pursuant to OCGA § 17-10-3 (a). However, a sentencing judge has wide authority and latitude to impose special conditions of probation pursuant to OCGA § 42-8-35, including a requirement that the defendant reside at a diversion center. See generally Gay v. State, 101 Ga. App. 225 (1) (113 SE2d 223) (1960). Accordingly, the issue presented for resolution is whether the failure of one, such as appellee, to abide by such a requirement will subject him to a prosecution for the felony offense of escape, and not merely to a revocation of his probation.

“A person commits the offense of escape when he: Intentionally fails to return as instructed to lawful custody or lawful confinement after having been released on the condition that he will so return. . . .” OCGA § 16-10-52 (a) (3). It is true that appellee was not in “lawful confinement” at the diversion center. Compare Hendrickson v. State, 159 Ga. App. 628 (284 SE2d 645) (1981); Hornsby v. State, 159 Ga. App. 672 (284 SE2d 630) (1981). However, there appears to be no reason in law or logic why appellee should not be considered as having been in the “lawful custody” of the diversion center. Appellee certainly was not a voluntary resident of the diversion center. He was sent there by the sentencing court because he had already violated his probation. Obviously, the sentencing court was of the belief that, although appellee did not warrant incarceration for the violation of his probation, he did require a more structured probational environment. The diversion center provided that environment in that appellee would not be free to come and go at will. More importantly, he would not be free to go and stay at will. Undoubtedly, it was for this very reason that the sentencing court’s order stated that appellee was to “be remanded to the custody of a diversion center. . . .” (Emphasis supplied.) Insofar as there were limits placed on appellee’s freedom of movement short of his actual incarceration, it is abundantly clear that he was within the “lawful custody” of the diversion center. “Custody” is a term which “is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession.” Black’s Law Dictionary (4th ed. 1951). Thus, “custody” does not require actual imprisonment and, if a sentencing court orders a defendant to serve his probation within the confines of a diversion center which purports to exercise the power to impose restrictions on his freedom to leave, he is within the “lawful custody” of that facility.

It is also true that appellee’s unauthorized departure from the diversion center was a violation of the conditions of his probation and could result in the revocation of his probation. However, probation revocation and criminal prosecutions are not mutually exclusive punishments. If appellee’s unauthorized departure were also to constitute the violation of a criminal statute, the possible revocation of his probation would not serve to insulate him from any additional responsibility for having violated that statute. At least a part of the legislative intent underlying enactment of subsection (a) (3) of OCGA § 16-10-52 was undoubtedly to criminalize a probationer’s act of intentionally failing to return to the diversion center in the lawful custody of which he had been placed by a sentencing judge. Penal statutes are to be construed strictly against the State and liberally in favor of human liberty. They are not, however, to be construed so as to reach illogical results. The trial court’s order dismissing the indictment on the basis that appellee bears no criminal responsibility for violating OCGA § 16-10-52 (a) (3) is reversed.

Decided July 16, 1987

Rehearing denied July 31, 1987

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellant.

John Martin, Timothy W. Floyd, Sara F. Miller, for appellee.

Judgment reversed.

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

Banke, Presiding Judge,

dissenting.

I respectfully dissent. While a sentencing judge has wide authority and latitude to impose special conditions of probation, including a requirement that the defendant reside at a diversion center, I do not believe that the failure of a defendant to abide by such a requirement subjects him to prosecution for the felony offense of escape, but merely to revocation of his probation under OCGA § 42-8-38. Many limitations placed on a probationer pursuant to a probation order necessarily result in the limitation of his freedom of movement. I cannot agree with the majority’s conclusion that because of the special condition of probation imposed on the appellee, “it is abundantly clear that he was within the ‘lawful custody’ of the diversion center,” and, therefore, subject to the escape statute. As the majority recognizes, “[p]enal statutes are always construed strictly against the state and liberally in favor of human liberty.” Curtis v. State, 102 Ga. App. 790, 801-802 (118 SE2d 264) (1960); Olson v. State, 166 Ga. App. 104 (5) (303 SE2d 309) (1983).

I am authorized to say that Chief Judge Birdsong, Judge Sognier, and Judge Benham join in this dissent.


author: McMurray, Presiding Judge. Sognier, Judge, Beasley, Judge,

text:
    73956.
    JONES v. THE STATE.
    (360 SE2d 599)
   McMurray, Presiding Judge.

Defendant was convicted of selling more than one ounce of marijuana and possessing a firearm during the commission of a crime. He appeals. Held:

1. Defendant contends the trial court erred by overruling his motion for a directed verdict of acquittal upon the possession of a firearm count. In this regard, he contends the evidence was insufficient to enable any rational trier of fact to find beyond a reasonable doubt that he had a firearm on his person when the marijuana was sold. OCGA § 16-11-106 (b); Beal v. State, 175 Ga. App. 234, 238 (4) (333 SE2d 103). We agree. Evidence that, shortly after the marijuana transaction, a pistol was found in a truck in which defendant was riding is insufficient, in and of itself, to support a finding that defendant had a pistol on his person when the marijuana transaction was consummated. Beal v. State, supra. Compare Teague v. State, 165 Ga. App. 470 (1) (301 SE2d 667). This is especially so since the truck was occupied by three persons and evidence of defendant’s proximity to the pistol was lacking.

The State’s contention that a recorded conversation between defendant and the buyer demonstrates that defendant did have a pistol on his person at the time in question is not supported by the record. A review of the transcript of the conversation makes it clear that the buyer’s allusion to a pistol concerned a previous meeting which took place between defendant and the buyer; it did not concern the marijuana transaction in question. Moreover, the transcript of the conversation was excluded from evidence by the trial court.

The trial court erred in denying defendant’s motion for a directed verdict of acquittal upon the possession of a firearm count.

2. Next, the defendant contends the trial court erred by failing to disqualify a juror, Ms. Driggers, for cause. Ms. Driggers is the daughter of deputy sheriff Ted Parkerson, one of the arresting officers in the case. Parkerson was listed as a potential witness for the State, but he was not called to the witness stand by the prosecution.

During voir dire, defense counsel asked Ms. Driggers whether she would be influenced by the fact that her father was interested in getting a conviction. She responded that she could “be open.” The voir dire continued as follows: “[DEFENSE COUNSEL]: But that wouldn’t influence you? It would influence you, wouldn’t it? MS. DRIGGERS: (nods affirmatively). [DEFENSE COUNSEL]: And if your daddy was interested in a conviction you would lean a little bit toward his side of the case, wouldn’t you? Honestly now. MS. DRIG-GERS: Yes.”

Thereupon, the assistant district attorney questioned Ms. Driggers: “[T]he bottom line is not which way you are leaning, it is whether you can be fair and listen to the evidence with an open mind. Do you think you would be able to do that? MS. DRIGGERS: Yes. [ASSISTANT DISTRICT ATTORNEY]: Now the Judge would give you an oath that you would have to swear, like you had to swear before, when everyone had to take the oath to answer these questions honestly, and that oath is that you would be a fair and impartial juror and that you would follow the instructions of the Court, and he would give you the instruction that you were to base your decision solely on the evidence, laying aside all the facts that you’ve heard, or the fact that your father may testify as a witness. With that in mind do you think you could be a fair and impartial juror and not lean one way or the other? MS. DRIGGERS: Yes.”

Ms. Driggers responded to further questioning by defense counsel as follows: “I would tend to lean towards my father, naturally, but I can — I don’t know anything of the case. He doesn’t discuss any of them with me. And I could give an honest and fair answer. [DEFENSE COUNSEL]: You would consider it honest and fair to return the verdict [your] father wanted, wouldn’t you? MS. DRIGGERS: Yes. [DEFENSE COUNSEL]: Tell me, do you understand the meaning of the word bias? What do you understand bias to mean? MS. DRIGGERS: That I will not go completely . . . [DEFENSE COUNSEL]: I don’t know what you mean by go completely. But let me explain, if I may. A bias is simply a leaning one way or the other. If it is not absolutely perpendicular, absolutely straight up and down in the middle, if it leans one way or the other, it is biased. See what I mean? MS. DRIGGERS: Yes. [DEFENSE COUNSEL]: Now if your father is Deputy Sheriff and if your father is a witness in the case, wouldn’t it honestly be true that there is some bias on your mind in favor of the State in the case? MS. DRIGGERS: Yes, sir.”

After a bench conference, the trial court questioned Ms. Driggers: “THE COURT: Ms. Driggers, let me take one last shot at you. I understand that Deputy Parkerson is your father. Notwithstanding that fact, if you are selected to serve on this jury, can you return a fair and impartial verdict based solely on the evidence produced before you and the law as given you in charge by the Judge? Yes or no. MS. DRIGGERS: Yes, sir.” Thereupon, the trial court concluded that Ms. Driggers was qualified.

Upon the conclusion of voir dire, the jury was selected. Defendant used all of his peremptory strikes. Nevertheless, Ms. Driggers was impaneled as a juror.

“Challenges are of two types, to the array and to the poll. Challenges to the poll, the individual juror, are either peremptory or for cause. Challenges for cause are made in one of two forms — for principal cause or for favor. Principal cause is disqualification based on the grounds enumerated in OCGA § 15-12-163, i.e., the juror is not a citizen, is under 18 years of age, is incompetent because of mental illness, retardation or intoxication, or is so near in kinship to the prosecutor or accused as to disqualify him. Jordan v. State, 247 Ga. 328, 338 (276 SE2d 224). Challenges for favor, in a criminal case, are based on admission by the juror that he is biased for or against one of the parties, in response to questions authorized by OCGA § 15-12-164, i.e., whether the juror has formed and expressed an opinion as to the guilt or innocence of the accused, has prejudice or bias for or against the accused, is perfectly impartial between the state and the accused, and in capital felony cases is not conscientiously opposed to capital punishment.” Harris v. State, 178 Ga. App. 735, 736 (344 SE2d 528).

Ms. Driggers was not subject to disqualification for principal cause. OCGA § 15-12-163 does not disqualify relatives of police officers, Adams v. State, 180 Ga. App. 546, 547 (2) (349 SE2d 789); nor does it disqualify relatives of State’s witnesses, Taylor v. State, 243 Ga. 222, 224 (2) (253 SE2d 191); Spence v. State, 238 Ga. 399 (233 SE2d 363). It is only the near kin of the prosecutor, defendant or victim who is disqualified by law from serving on the jury. OCGA § 15-12-163. “[0]ne who is merely heavily involved in the transaction out of which the prosecution flows is not a ‘prosecutor.’ E.g., Prysock v. State, 44 Ga. App. 229 (161 SE 153) (1931).” Spence v. State, 238 Ga. 399, supra at 400. Thus, the mere fact that Ms. Driggers’ father participated in the arrest of defendant and that he was a potential witness in the case (although he did not testify) does not mean that Ms. Driggers should have been disqualified. Spence v. State, supra. Compare McKee v. State, 168 Ga. App. 214 (1) (308 SE2d 574).

Defendant argues that, nevertheless, Ms. Driggers should have been excused for favor. We cannot find that the trial court erred by overruling defendant’s challenge for favor. “The conduct of the voir dire and whether to strike a juror for cause, are within the discretion of the trial court, and the court’s rulings are proper absent some manifest abuse of discretion. [Cits.]” Taylor v. State, 243 Ga. 222, 224 (2), supra. Ms. Driggers testified that she would lean toward her father’s side of the case if he was interested in a conviction. She also admitted that if her father testified she would have “some bias” in favor of the State. On the other hand, Ms. Driggers averred that she did not discuss the case with her father. And when all was said and done, she testified that she could be fair and impartial and that she could render a verdict based solely on the evidence and the law. Accordingly, “ [t]he trial court did not abuse its discretion in concluding that the juror exhibited no such bias as to fatally infect [her] verdict. Welch v. State, 237 Ga. 665, 671 (5) (229 SE2d 390).” Watkins v. State, 160 Ga. App. 9, 11 (4) (285 SE2d 758). “Although the juror’s first response to the questions put to [her] indicated a possible bias or prejudice on [her] part, the juror’s opinion was not shown to be so ‘ “fixed and definite that it would not be changed by the evidence or charge of the court upon the trial of the case. (Cit.)” ’ Sullens v. State, 239 Ga. 766 (1) (238 SE2d 864).” Copeland v. State, 162 Ga. App. 398 (1) (291 SE2d 560). See also Lovell v. State, 178 Ga. App. 366, 369-371 (343 SE2d 414).

3. In his next enumeration defendant contends the trial court erred by charging the jury: “It is your duty to reconcile conflicting evidence where that can be done so as to make all witnesses speak the truth, and so that perjury will be imputed to no witness. However, if there be evidence in the case in such irreconcilable conflict that this cannot be done, then you will accept that evidence which is most reasonable and credible to you.”

We find no error in the charge. See Cotton v. State, 81 Ga. App. 753, 755 (59 SE2d 741). In our view, it does not, as defendant contends, “invade the exclusive province of the jury” by instructing them how to determine the truth.

4. The remaining enumerations of error are not supported by argument or citation of authority. Accordingly, we deem them to be abandoned. Rule 15 (c) (2) of the Rules of the Court , of Appeals of the State of Georgia. Johnson v. State, 179 Ga. App. 467, 468 (6) (346 SE2d 903).

Judgment affirmed in part and reversed in part.

Sognier, Judge,

concurring specially.

I must concur in Division 2 of the majority opinion in light of the controlling precedent of Spence v. State, 238 Ga. 399 (233 SE2d 363) (1977). Having no doubt as to the truthfulness and the sincerity of the answers of the questioned juror sub judice, nevertheless, I must express my disagreement in principle with a practice that would allow the daughter or other close relative of the arresting officer to sit on the jury trying the arrestee. Courts are admonished not only to do justice but to give the appearance thereof.

Beasley, Judge,

concurring specially.

Considering the circumstances of this case, I agree that the refusal to strike Ms. Driggers is not reversible error, but I also agree with Judge Sognier’s disapproval of the practice. What saves it here are these combined facts: the juror stated with assurance that she could be fair and impartial, that she did not discuss the case with her father, and that she knew nothing about it prior to trial; the deputy sheriff played on a peripheral part in the case by assisting in the arrest, and he did not testify, so his credibility was not called in question; defendant does not suggest that the deputy sheriff would have been called as an adverse witness regarding what occurred during the arrest, had his daughter not been on the jury. Finally, the “ifs” and “supposes” hypothesized in the voir dire questions which brought out the potential of a biased consideration of the case were not present. That is, the juror’s father had not discussed the case with her or indicated any interest in it, and he did not testify so that any bias she might have towards his credibility was never called into play.

Decided April 29, 1987

Rehearing denied July 31, 1987

W. Washington Larsen, Jr., for appellant.

James L. Wiggins, District Attorney, Michael T. Solis, Assistant District Attorney, for appellee.

The trial court was able to observe this juror, and it carefully weighed the matter, even indicating that it pondered the challenge overnight.

In keeping with Judge Sognier’s statement, we should beware of approaching the fine line when it comes to assuring that the members of the jury are fair and impartial, as guaranteed by Ga. Const. 1983, Art. I, Sec. I, Par. XI, especially since that assurance is incapable of exactitude in the first place, given the constraints of communication and the ability to ascertain men’s minds.

Compare Bass v. State, 183 Ga. App. 349 (358 SE2d 837) (1987).


author: Pope, Judge.

text:
    73961.
    CITY OF ATLANTA v. GENTRY.
    (360 SE2d 611)
   Pope, Judge.

This is an appeal by the employer, City of Atlanta, from an order of the superior court which affirmed an award of the State Board of Workers’ Compensation. The employee, Gentry, sustained a compensable injury to his back on January 2, 1980. After temporary total disability benefits were suspended, he returned to work. On the first day he returned, June 23, 1983, the employee again strained his back and was awarded temporary partial disability benefits for the second injury. Prior to the second injury the employee’s physician granted him a ten percent disability rating to the body as a whole for the first injury. This appeal arises from the award of permanent partial disability benefits to the employee, pursuant to OCGA § 34-9-263, for injuries sustained in the first accident even though he is still receiving temporary partial disability benefits, pursuant to OCGA § 34-9-262, for the second accident.

Decided July 14, 1987

Rehearing denied July 31, 1987

Marva Jones Brooks, Jo Avery Crowder, Kendric E. Smith, for appellant.

H. Clifton Woodson, for appellee.

It is clearly established that an employee may simultaneously receive benefits for permanent partial disability from one injury and temporary disability for another, separate injury. Cedartown Nursing Home v. Dunn, 174 Ga. App. 720 (2) (330 SE2d 905) (1985). This is also the case where a single accident results in multiple injuries to different parts of the body, one injury resulting in a permanent partial loss of function and one injury resulting in temporary partial incapacity to work. Hartford Accident &c. Co. v. Brennan, 85 Ga. App. 163 (1) (68 SE2d 170) (1951). This appeal presents the novel issue of whether two separate injuries to the same part of the body may also entitle the employee to simultaneous benefits.

Where, as here, a second injury arising out of a specific job-related incident aggravates a pre-existing condition which resulted from a prior job-related accident, “the second accident ... is a new injury.” Central State Hosp. v. James, 147 Ga. App. 308, 309 (248 SE2d 678) (1978). “OCGA § 34-9-263 (b) (2) . . . merely [provides] that an employee who suffers a single compensable injury shall not be entitled to permanent partial disability benefits for that injury, so long as he would be entitled to receive temporary total disability or temporary partial disability benefits as the result of that same injury.” Cedartown Nursing Home v. Dunn, supra at 726-727. Here, there were two separate accidents resulting in two separate injuries, although to the same part of the body. As a result of the first injury the employee sustained a partial physical impairment from which he was released to return to work. As a result of the second injury the employee sustained an economic disability to work. “[A]n injured employee is not precluded from receipt of compensation for a permanent partial physical disability, while at the same time receiving compensation for a temporary total or partial economic disability which results from an entirely separate injury.” Id. at 727. We hold that the same rationale applies even though the separate injuries were to the same part of the body.

Judgment affirmed.

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


text:
    74025.
    74026.
    74027.
    GORLIN et al. v. HALPERN et al. BURGESS et al. v. GORLIN et al. FIRST GEORGIA BANK v. GORLIN et al.
    (360 SE2d 729)
   McMurray, Presiding Judge.

The cases sub judice involve events which occurred in 1972 and 1973. Although filed in 1975, the action from which these appeals emanate did not reach trial until 1986.

Plaintiffs Gorlin and Long allege that they were induced by the wilful misrepresentations of defendants to loan money, work and incur expenses, all to their detriment. The plaintiffs’ evidence presented at trial may be summarized as follows:

Plaintiffs learned of a proposed merger between defendant American Food Purveyors, Inc. (“AFP”) and defendant Amerdyne Industries, Inc. (“Amerdyne”). AFP had experienced a dramatic growth in revenues resulting in an urgent need for additional capital. Amerdyne was a publicly traded corporation and as such had greater access to financial markets. One of the purposes of the proposed merger was to cloak AFP with Amerdyne’s access to financial markets so that additional capital could be obtained for AFP. Plaintiffs became interested in participating in the proposed merger and a proposed public offering of stock. Plaintiffs met with the presidents of the two corporations. Defendant Halpern was president of AFP. After the initial meeting plaintiffs undertook an in depth examination and analysis of AFP, including review of financial statements and on-site visits. Plaintiffs’ request for references resulted in their introduction by defendant Halpern to defendants Burgess and Brown, both employed by defendant First Georgia Bank, Inc., d/b/a First Georgia Bank of Atlanta (“First Georgia Bank”). Defendant Burgess, vice-president and branch manager, and defendant Brown, commercial loan officer and assistant branch manager, advised plaintiffs that AFP was in sound financial condition, was held in high esteem by the bank, that the accounts were current, and the only problem AFP had involved AFP writing checks on uncollected funds. Plaintiffs were told that these uncollected funds were not a serious problem because they were from good accounts. Plaintiffs entered into an agreement to provide funds to Amerdyne for the use of AFP. In entering this agreement plaintiffs relied upon the representations made by defendants Burgess and Brown. Subsequently, plaintiffs provided Amerdyne with $135,000 which was placed in the account of AFP. Thereafter, plaintiffs were told by the banker defendants that the uncollected funds problem of AFP had ceased. A note was issued by Amerdyne evidencing the funds provided by plaintiffs. Subsequently, a check kiting scheme was exposed involving defendant Halpern and defendant AFP. The check kiting scheme was accomplished with the participation of defendants Burgess, Brown and First Georgia Bank. The funds in the account of AFP were applied by defendant First Georgia Bank to reduce an overdraft in the account. The merger of defendant Amerdyne and defendant AFP never occurred and both went out of business.

The action from which these appeals emanate was submitted to the jury on alternative theories of fraud and unjust enrichment (money had and received). The jury returned a verdict in favor of plaintiffs on their fraud claim against defendants Burgess, Brown and First Georgia Bank in the amount of $135,000, plus interest of $122,850, attorney fees of $133,000 and punitive damages of $175,000. The jury returned a verdict in favor of defendants Halpern, AFP and Amerdyne. In its consideration of defendant First Georgia Bank’s counterclaim the jury required the bank to return certain collateral on a note to plaintiff Gorlin contingent on his paying the bank $13,260.67 with no interest. The judgment followed the verdict except as to prejudgment interest. Defendants’ motion for a directed verdict as to prejudgment interest was granted so that the $122,850 in interest was not included in the judgment. Prejudgment interest of $50,600 was included in the judgment based upon a demand under OCGA § 51-12-14, the “Unliquidated Damages Interest Act.”

In Case No. 74025 plaintiffs appeal from that portion of the final judgment which granted defendants’ motion for directed verdict as to prejudgment interest so as to omit from the judgment the interest in the amount of $122,850 awarded by the jury. In Case No. 74026 Burgess and Brown appeal from the final judgment. Defendant First Georgia Bank appeals from the final judgment in Case No. 74027. Held:

1. In Case No. 74025 plaintiffs enumerate as error the trial court’s grant of defendants’ motion for a directed verdict (which we treat as a judgment notwithstanding the verdict. See Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 250 (1) (329 SE2d 918), rev’d in part on other grounds, 254 Ga. 734 (334 SE2d 308)) which resulted in the omission from the final judgment of the $122,850 pre-judgment interest awarded by the jury. OCGA § 7-4-15 provides in part: “All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them. . . .” Plaintiffs argue that their claim for the recovery of the money they loaned and lost is “fixed and certain” in that it is evidenced by their checks in an amount that cannot be altered. Thus, plaintiffs insist that their fraud claim for the $135,000 which was loaned and lost, was a liquidated claim so as to authorize the award of prejudgment interest.

Defendants contend that plaintiffs’ fraud action is neither factually nor legally one for liquidated damages. Defendants cite certain language from Georgia Ports Auth. v. Mitsubishi Intl. Corp., 156 Ga. App. 304, 306 (3) (274 SE2d 699), as authority that in any action ex delicto prejudgment interest may be recovered only by compliance with OCGA § 51-12-14, the “Unliquidated Damages Interest Act.” Thus, defendants argue that under Georgia law there is no ex delicto claim for liquidated damages.

Defendants’ reliance upon this language from Georgia Ports Auth. v. Mitsubishi Intl. Corp., 156 Ga. App. 304, 306, supra, is misplaced as it was not germane to the decision in that case. That case involved an action for negligence in shipping a cargo of plywood resulting in damage to the cargo when it shifted. In the division of that decision concerning prejudgment interest we held that the claim was for unliquidated damages as the mathematical calculation of the loss could be accomplished only after a jury determined from expert opinion testimony the original value of the goods and the extent of damage. Thereafter, followed the language at issue stating: “Indeed, damages in an action ex delicto must always be proven by evidence before they can be regarded as liquidated. See [OCGA § 9-11-55 (a)]: Tallman Pools of Ga., Inc. v. Napier, 137 Ga. App. 500 (2), 504 (224 SE2d 426) (1976); Dukes v. Burke, 139 Ga. App. 583 (3) (228 SE2d 729) (1976). Accord Republic Ins. Co. v. Cook, 129 Ga. App. 833 (2) (201 SE2d 668) (1973). Since this is an action ex delicto and the statutory notice [required for compliance with OCGA § 51-12-14] was not given, the award of interest cannot stand.” Georgia Ports Auth. v. Mitsubishi Intl. Corp., 156 Ga. App. 304, 306 (3), supra. The cases cited in this language from Georgia Ports Auth. v. Mitsubishi Intl. Corp., supra, are applications of that portion of OCGA § 9-11-55 (a) dealing with default judgments which permits entry of judgment by default without intervention of a jury, “unless the action is one ex delicto or involves unliquidated damages.” The conclusion stated in the referenced language is not required by the cases cited in support thereof.

Contrary to defendants’ position, in National Bank of Ga. v. Refrigerated Transport Co., 147 Ga. App. 240, 246 (III) (248 SE2d 496), an action for conversion of certain checks, we found no error where the trial court in granting a motion for judgment notwithstanding the verdict ruled that damages arising from the conversion of the checks were liquidated so as to authorize prejudgment interest. A liquidated demand is “an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; . . .” Nisbet v. Lawson, 1 Ga. 275, 287. As we cannot view the damages claimed in the action from which these appeals emanate as less fixed and certain than those in National Bank of Ga. v. Refrigerated Transport Co., 147 Ga. App. 240, 246 (III), supra, that is, in both actions the amounts may be determined from the checks, we conclude that the plaintiffs’ claim for damages of $135,000 was liquidated. Thus, under OCGA § 7-4-15 plaintiffs were entitled to the prejudgment interest awarded by the jury. Accord Anderson v. State, 2 Ga. 370; Allen v. Allen, 198 Ga. 269 (31 SE2d 483); Wheels & Brakes v. Capital Ford Truck Sales, 167 Ga. App. 532 (307 SE2d 13).

2. “The case of Pasley v. Freeman (1789) 3 TR 51, 100 Eng. Reprint 450,12 ERC 235, established at common law the actionability of misrepresentations as to the credit of another. A consequence of this decision was that actions in tort upon oral misrepresentations were frequently brought as a means of evading the statute of frauds prohibiting the bringing of an action to charge one upon an oral promise to answer for the debt of another. To meet this situation, Parliament passed what is known as Lord Tenterden’s Act providing that no action should be brought to charge any person upon or by reason of any representation or assurance concerning or relating to the ‘character, conduct, credit, ability, trade, or dealings’ of any other person, to the intent or purpose that such other person may obtain credit, money, or goods, unless such representation were in writing and signed by the party to be charged. Statutes of similar import have been enacted in several of the American jurisdictions.” 32 ALR2d 738, 744 § 1. In Georgia, our Supreme Court rejected the holding in Pasley v. Freeman in Savage v. Jackson, 19 Ga. 305. Thereafter, in 1863 the substance of Lord Tenterden’s Act was adopted by statute and is now found in OCGA § 51-6-3.

Defendants First Georgia Bank, Burgess and Brown each made several motions asserting OCGA § 51-6-3. These three defendants enumerate as error the denial of their motions for summary judgment and for directed verdict which was predicated at least in part on OCGA § 51-6-3. Defendant First Georgia Bank also enumerates as error the denial of its motion in limine, also predicated upon OCGA § 51-6-3, seeking to exclude “evidence of any credit references provided by First Georgia Bank, or its officers or agents, regarding a third party which is not in writing.”

First, we note that any issue as to the denial of motions for summary judgment has become moot following the jury’s verdict and entry of judgment thereon. Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61); Dedousis v. First Nat. Bank of Cobb County, 181 Ga. App. 425 (1) (352 SE2d 577).

Furthermore, insofar as OCGA § 51-6-3 relates to the defendants’ motions for directed verdict we note that even after any portion of the evidence arguably governed by OCGA § 51-6-3 is excluded from consideration, there is ample evidence of fraud and resulting detriment to plaintiffs which would authorize the award of general damages in at least a nominal amount. Therefore, assuming the broadest application of OCGA § 51-6-3 to the action from which these appeals emanate a denial of these motions for directed verdict was proper. Bradley v. Godwin, 152 Ga. App. 782, 784 (3) (264 SE2d 262); Spence v. Hilliard, 181 Ga. App. 767 (353 SE2d 634); Tilley v. Page, 181 Ga. App. 98 (1), 99 (351 SE2d 464).

Nor did the trial court err in denying the motion in limine of defendant First Georgia Bank. While the evidence sought to be excluded related to a portion of the fraud claim arguably barred under OCGA § 51-6-3, it is also relevant and admissible in regard to other portions of plaintiffs’ fraud claims for which general damages could be awarded.

3. Defendants First Georgia Bank, Burgess and Brown have submitted several additional enumerations of error raising further issues in support of their contentions that the trial court erred in denying their motions for directed verdict. None of these additional grounds require detailed discussion. It is sufficient that we refer to our recital of plaintiffs’ evidence and hold that ample evidence was presented on each of the elements of fraud sufficient to preclude the grant of these defendants’ motions for directed verdict. See generally Davi v. Shubert, 168 Ga. App. 420 (309 SE2d 415); Parsells v. Orkin Exterminating Co., 172 Ga. App. 74 (322 SE2d 91).

4. Defendants First Georgia Bank, Burgess and Brown contend that the verdict and judgment are inconsistent and repugnant in that the jury returned a verdict in favor of plaintiffs against these defendants while also returning a verdict in favor of defendants Amerdyne, AFP, and Halpern. “ ‘A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. (Cit.)’ Fleming v. Collins, 190 Ga. 210, 214 (9 SE2d 157) (1940).” Four Oaks Homes v. Smith, 153 Ga. App. 326, 328 (265 SE2d 76). However, considering the evidence presented at trial we do not find the verdict in the action from which these appeals emanate contradictory or repugnant. No specific inconsistency is noted nor are we cited to any case wherein a similar verdict is held void on this basis.

5. Defendant First Georgia Bank enumerates as error the admission into evidence of three documents, the minutes from its Board of Directors’ meetings of June 14, 1973, a letter from one of its employees to a vice president of the Federal Reserve Bank of Atlanta concerning the check kiting scheme, and a letter by its attorneys to Insurance Company of North America concerning the check kiting scheme. These documents were admitted against defendant First Georgia Bank only and the jury instructed accordingly. The documents were admitted partially on the basis of defendant First Georgia Bank’s response to requests for admission. While defendant First Georgia Bank argues that it never admitted that the subject documents were made in the regular course of its business or that it was the regular course of the business to make the subject documents, the opposite is shown by plaintiffs’ requests for admission and the response of defendant First Georgia Bank. Also, contrary to the implications of the argument of defendant First Georgia Bank, the trial court explicitly did not view the admissions as constituting a stipulation that the documents fell within the exception set forth in OCGA § 24-3-14. Indeed, while the parties have argued this enumeration as involving an application of OCGA § 24-3-14, we decide it on other grounds.

There was no error in admitting these documents into evidence as they each contained admissions against interest made on behalf of defendant First Georgia Bank concerning its knowledge of the check kiting scheme and the involvement therein of its employees, defendants Burgess and Brown. “ ‘A corporation can only make admissions through its agents, and the admissions of such agents acting within the scope of their powers and about the business of their agency are admissible’ Imboden v. Etowah &c. Co., 70 Ga. 86 (11). Timeplan Loan &c. Corp. v. Moorehead, 221 Ga. 648, 650 (146 SE2d 748). See [OCGA §§ 10-6-64 and 24-3-33.]” White v. Front Page, 133 Ga. App. 749, 750 (213 SE2d 32). Defendant First Georgia Bank’s contention that these documents should have been excluded because they were not admissible under the provisions of OCGA § 24-3-14 is without merit.

Defendants Burgess and Brown also enumerate as error the admission into evidence of these documents and the denial, following the admission of the documents into evidence, of their motion for severance. First, we repeat that the documents were admitted only against defendant First Georgia Bank and the jury instructed accordingly. However, defendants Burgess and Brown contend that due to the repeated references to them in the documents it would have been impossible for the jury to avoid applying this evidence to them, despite the trial court’s instructions. However, the presumption is that the jurors have understood and correctly applied the trial court’s instructions. Fallaw v. Hobbs, 113 Ga. App. 181, 185 (147 SE2d 517); Stanley v. Squadrito, 107 Ga. App. 651, 658 (8) (131 SE2d 227). See also Becker v. Donalson, 133 Ga. 864 (1) (67 SE 92); Miller v. Minhinnette, 185 Ga. 490 (2) (195 SE 425).

As a general rule, the question of severance is a matter of discretion for the trial court and there will be no reversal thereof absent a clear and manifest abuse of that discretion. Lansky v. Goldstein, 141 Ga. App. 345 (233 SE2d 437); Sollek v. Laseter, 124 Ga. App. 131 (183 SE2d 86). In the case sub judice the documents at issue were listed in the pre-trial order among those to be offered at trial. Thus, defendants Burgess and Brown had ample opportunity prior to trial to present the severance issue which was raised for the first time during the trial. Under these circumstances we find no abuse of discretion in the denial of their untimely motion. Also we note that there was ample evidence independent of the documents which could have been viewed by the jury as proving plaintiffs’ case against defendants Burgess and Brown.

6. Defendants First Georgia Bank, Burgess and Brown enumerate as error the trial court’s permitting plaintiffs to assert their claim for unjust enrichment. However, as the jury returned its verdict on the alternative theory of fraud and returned no verdict against defendants on the unjust enrichment claim, any error in submitting this claim to the jury was harmless. McDonald v. Rogers, 229 Ga. 369, 380 (9) (191 SE2d 844).

7. Plaintiffs agreed that they would share equally in the proceeds of any recovery and on this basis the form of the verdict provided for a joint verdict for the two plaintiffs. Defendant First Georgia Bank objected to this form of the verdict and now enumerates such as error. While defendant First Georgia Bank argues generally that the joint verdict may have had a material effect on the jury’s determination of liability, we cannot envision any circumstances in which this form of verdict if erroneous, would be harmful to this defendant.

While defendants Burgess and Brown enumerate as error the joint verdict for plaintiffs, we find no objection in this regard on behalf of these two defendants. As this issue was not raised at trial by these two defendants it may not be raised for the first time on appeal. Smith v. Pierce, 179 Ga. App. 724 (2) (347 SE2d 692); Dept. of Transp. v. Poole, 179 Ga. App. 638, 640 (3) (347 SE2d 625); Seibers v. Morris, 226 Ga. 813 (1) (177 SE2d 705); F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 823 (5) (354 SE2d 6).

8. Defendants First Georgia Bank, Burgess and Brown enumerate as error the trial court’s refusal to give a requested jury charge submitted by defendant First Georgia Bank on the issue of ratification. As the charge at issue was neither an accurate statement of the law nor adjusted to the evidence, the trial court did not err in declining to give this requested charge. Columbus, Ga. v. Smith, 170 Ga. App. 276, 282 (3) (316 SE2d 761); Macon-Bibb County Hosp. Auth. v. Ross, 176 Ga. App. 221, 224 (3) (335 SE2d 633); Formica Corp. v. Rouse, 176 Ga. App. 548 (2) (336 SE2d 383).

Judgment reversed in Case No. 74025.

Judgments affirmed in Case Nos. 74026 and 74027. Birdsong, C. J., concurs. Sognier, J., concurs in the judgments only. Beasley, J., disqualified.

Decided July 16, 1987

Rehearing denied July 31, 1987

Robert N. Meals, Larry H. Chesin, for First Ga. Bank.

Taylor W. Jones, Rickman P. Brown, for Gorlin and Long.

J. Wayne Moulton, for Burgess and Brown.

Joseph Lefkoff, for Halpern.