author: Birdsong, Chief Judge.

text:
    77044, 77087.
    HENDERSON v. KMSYSTEMS, INC. et al.; and vice versa.
    (374 SE2d 550)
   Birdsong, Chief Judge.

This is an appeal from the order of the superior court partially granting appellee/cross-appellant’s motion for summary judgment as to the appellant/cross-appellee’s claims based on averred violations of the Georgia Securities Act of 1973 as amended, and as to claims based on averments of fraud in the inducement of appellant/cross-appellee to accept inadequate consideration for his sale of KMSystems’ (hereafter KMS) stock to appellee/cross-appellants. The cross-appeal asserts that the trial court erred in granting sua sponte an accounting to appellant/cross-appellee following the above grant of summary judgment as there exists no underlying basis of liability and as appellant/ cross-appellee has conducted full and adequate discovery.

Appellant/cross-appellee Timothy Henderson (hereinafter appellant or Henderson) was recruited to join the newly established and closely held KMS corporation, by its sole stockholders, Mr. Robert Moffa and Mrs. Katherine Moffa. Mr. and Mrs. Moffa, as a partial inducement to Mr. Henderson to join KMS, offered him the opportunity to purchase 25 percent of KMS stock, and allegedly offered salary and bonuses equal to that of Robert Moffa. The terms of Henderson’s initial contract of employment were never reduced to writing.

In September of 1985, the Moffas elected Henderson to the Board of Directors of KMS and appointed him vice-president. On October 1, 1985, Henderson officially commenced his employment with KMS, and thereafter attended certain Board of Directors meetings, and basically conducted himself as “an integral part of’ and as “an owner” of KMS. Henderson sold software, helped client companies address their problems, and developed “the interface that was a key difference between [KMS’s] Q-LINK Version One and Q-LINK Version Two ... a key ingredient in our company.”

On March 28, 1986, Henderson exercised his option to purchase 25 percent of the outstanding shares of KMS stock; contemporaneous to this purchase a written stockholders’ agreement was executed. The agreement in part contained certain conditions for the repurchase of the stock by KMS upon Henderson’s deáth, retirement or termination of employment. The certificates of stock knowingly purchased by and issued to Henderson contained an express written notice to the effect that the securities were not registered under the Federal or Georgia Securities Acts and could not be sold or otherwise transferred unless the securities were registered.

Between April and the end of June 1986, Henderson discovered that his salary and benefits were to be calculated differently than those of Robert Moffa. He protested this fact to no avail. Nevertheless, Henderson continued to serve as Vice-President and Director of KMS, and did not terminate his business relationship over this disagreement. Over a period of time, certain personality conflicts had developed between Henderson and Katherine Moffa. In September 1986, KMS was attempting to purchase an office building. Allegedly, after Henderson voiced his objection and stated his preference only to lease a building, the Moifas proceeded with building purchase negotiations and significantly excluded Henderson from this negotiating process. When Henderson learned that the lenders would require that all principals of KMS personally guarantee the building loan, it was agreed between the Moifas and himself that Henderson’s stock would be resold to KMS. Thus, Henderson would no longer be a corporate principal and would not be required personally to guarantee the loan. Henderson was assured that he would not be terminated as an employee and would continue to serve as vice-president. Henderson testified that he was promised that certain terms of the stockholders’ agreement would control the stock sale, particularly as to the requirement that the value of the stock would be calculated “using generally accepted accounting principles consistently applied.” Subsequently, Henderson accepted the KMS offer and stock value calculations of $63,266, sold his stock, and executed a stock repurchase agreement wherein he acknowledged receipt of $63,266 as consideration for the stock sale.

Appellant continued working for KMS; however, in the middle of November 1986, a disagreement arose between Katherine Moffa and Henderson. Thereafter, Henderson was orally notified, by Robert Moffa, that he would have to leave the company. On November 19, 1986, Henderson was sent a formal letter of termination signed by Katherine Moffa as Vice-President of KMS.

In December 1986, appellant Henderson sought the advice of an accountant regarding tax treatment of his KMS stock. Based upon information received from his accountant, Henderson requested certain financial information from KMS regarding the accounting methodology used in calculating the value of his KMS stock. Appellees advised Henderson that he had already been provided with the requested information, and Henderson brought the instant suit on February 17, 1987. Appellees moved for summary judgment, which was granted in part. Appellant then brought this appeal. Held'.

1. In ruling on a summary judgment motion, the movant bears the burden of showing “ ‘there is no genuine issue as to any material fact and that (he) is entitled to a judgment as a matter of law.’ [Cit.] When, as in the instant case, the movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint” (Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637)) and “the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Esco v. Jackson, 185 Ga. App. 901 (1) (366 SE2d 309). Nevertheless, the testimony of either party is to be construed most strongly against him, in accordance with the standards of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), where it is self-contradictory, vague or equivocal and without reasonable explanation for this deficiency. Thacker v. Matthews Tuxedo, 183 Ga. App. 474 (359 SE2d 231). We will apply these principles in the resolution of the summary judgment issues before us.

2. Appellant asserts that the trial court erred in finding that the stock repurchased by the appellees was not a “security” under the amended Georgia Securities Act of 1973. In essence it is urged that the trial court used an erroneous standard in applying discriminately selected language in the case of Tech Resources v. Estate of Hubbard, 246 Ga. 583 (272 SE2d 314), thereby giving undue emphasis to the third prong of the three-prong “investment contract” test of SEC v. W. J. Howey Co., 328 U. S. 293 (66 SC 1100, 90 LE 1244) to the exclusion of other applicable tests. Construing the trial judge’s order on its four corners, we are satisfied that he did apply all relevant test criteria contained in Tech Resources in his resolution of this issue. The problem thus becomes one of determining whether the Tech Resources test is a sufficient test to be applied in this case. Historically, Georgia decisions regarding the definition of a “security” have been “significantly influenced by the federal case law.” See generally Recent Decisions, 30 Emory Law Journal, Securities Regulation— Security Defined, 1217-1218.

In Landreth Timber Co. v. Landreth, 471 U. S. 681 (105 SC 2297, 85 LE2d 692), the Supreme Court addressed the issue whether federal securities laws apply when a business is sold by a transfer of 100 percent of its stock; the Supreme Court concluded that the stock at issue was a “security” within the definition of the Acts. In arriving at its decision, the Supreme Court in Landreth Timber used a stock-characterization test: First, it was deemed “axiomatic that ‘(t)he starting point in every case involving construction of a statute is the language itself.’ ” Id. at 685. The face of the statutory definition “shows that ‘stock’ is considered to be a ‘security’ within the meaning of the Acts.” Id. at 686. But first, it must be determined whether those purported stock instruments, in fact, “possess ‘some of the significant characteristics typically associated with’ stock, [cit.], recognizing that when an instrument is both called ‘stock’ and bears stock’s usual characteristics, ‘a purchaser justifiably (may) assume that the federal securities laws apply.’ ” (Emphasis supplied.) Id. Those identified characteristics usually associated with common stock are (i) the right to receive dividends contingent upon an apportionment of profits; (ii) negotiability; (iii) the ability to be pledged or hypothecated; (iv) the conferring of voting rights in proportion to the number of shares owned; and (v) the capacity to appreciate the value. Id. The Supreme Court applied the first step of its test and after considering the “context of the transaction involved” concluded that “[u]nder the circumstances of this case, the plain meaning of the statutory definition mandates that the stock be treated as ‘securities’ subject to the coverage of the Acts.” Id. at 687. In arriving at its conclusion, the Supreme Court distinguished its prior case of United Housing Foundation v. Forman, 421 U. S. 837 (95 SC 2051, 44 LE2d 621), by noting that the stock in Forman did not bear any of the usual characteristics of common stock above discussed and that under the circumstances of the case “there was no likelihood that the purchasers had been misled by use of the word ‘stock’ into thinking that the federal securities laws governed their purchases.” (Emphasis supplied.) Landreth, supra at 687.

Secondly, the Supreme Court reviewed certain of its prior cases, including Forman and SEC v. W. J. Howey Co., 328 U. S. 293, supra, and concluded that these cases applied to investment contract situations or transactions involving “unusual instruments” not easily characterized as “securities.” Id. at 690-691. The court noted that the “Howey economic reality test” originally was designed to determine whether a particular instrument was an “investment contract” not whether it fits within any of the examples listed in the statutory definition of “security”; however, the Howey economic reality test currently applies to general categories of cases where the label “stock” does not hold true, “investment contracts” situations and situations involving an “instrument . . . commonly known as a ‘security.’ ” Id. at 691, n. 5 and accompanying text.

We believe that Landreth Timber provides appropriate guidance in resolving issues of whether particular “stock” is a “security” under the amended Georgia Securities Act of 1973. In applying the Landreth stock-characterization test to the transaction in this case, we will use a balancing test. The appropriate test to be employed is whether the KMS stock bears such characteristics usually associated with common stock that a purchaser justifiably may assume that appropriate security laws apply. We find that the characteristics of the KMS stock do not justifiably give rise to such an assumption in this case. Particularly, the KMS stock contained a conspicuous notice that substantially impaired both the negotiability of the stock and its ability in the real world of business to be pledged or hypothecated effectively, and also expressly negated any assumption that the securities had been registered under either the Georgia or federal securities act. Accordingly, we find that the KMS stock does not meet the statutory definition of “stock” under either the Georgia or federal securities act.

Next, we must determine whether KMS stock otherwise qualifies as a security within the meaning of OCGA § 10-5-2 (16). The test appropriate for this determination is the Howey economic reality test, as that test has been tailored by Tech Resources for application under the Georgia Securities Act, to resolve issues concerning “investment contracts” and any “instrument commonly known as a ‘security.’ ”

Among those factors considered by our Supreme Court in Tech Resources were: “ ‘the touchstone [of a security] is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others’ ” (Tech Resources, supra at 584); “the doctrine that ‘form should be disregarded for substance and that emphasis should be on economic reality’ when making a determination as to whether or not an instrument is a security” (Tech Resources, supra at 585, citing Dunwoody Country Club v. Fortson, 243 Ga. 236 (253 SE2d 700)); and, “[i]n order ... to constitute a securities transaction under the law, there must be an investment, a reasonable expectation of profits, and a reliance on the management of another ... to bring about the profits” (Tech Resources, supra at 585). Applying the Howey-Tech Resources economic reality test in toto to the circumstances and context of the KMS transactions, we conclude that the KMS stock did not constitute a “security” under either OCGA § 10-5-2 (a) (16) or federal securities laws.

Moreover, assuming without deciding that the legislature wished to enact some form of the risk capital test, separate in application from the multi-factor Howey-Tech Resources economic reality test, we believe that even under such a test, this transaction did not involve the sale or purchase of a “security.” For example, in a comprehensive risk capital test, one of the existing requirements is that “ ‘at the time of the transaction, the buyer is not familiar with the operations of the enterprise or does not receive the right to participate in the management of the enterprise.’ ” W. J. Carney, Securities Practice—The Law in Ga., § 2-3, citing R. Coffey, The Economic Realities of a “Security”; Is There a More Meaningful Formula?, 18 Wes. Res. L. Rev. 367, 377. Clearly, at the time of the transaction, both the Moffas and Henderson were “familiar with the operations of” KMS, and both the Moffas and Henderson possessed and exercised “the right to participate in the management of” KMS.

It is well settled that “ ‘[a] correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ ” Tony v. Pollard, 248 Ga. 86, 88 (281 SE2d 557). Accordingly, we find appellant’s assertions to be without merit.

3. Appellant asserts, in essence, that a fiduciary relationship existed between Henderson, a minority stockholder, and the Moffas, the majority stockholders, and that consequently the trial court erred by finding that appellant Henderson failed to exercise ordinary diligence since Georgia law provides that even directors can rely upon the financial representations of other directors and employees of a corporation who are reasonably believed to be reliable and competent in the matters presented.

It is a settled general rule of law “that corporate officers and directors occupy a fiduciary relationship to the corporation and its shareholders, and are held to the standard of utmost good faith and loyalty.” Quinn v. Cardiovascular Physicians, 254 Ga. 216 (2) (326 SE2d 460); see Comolli v. Comolli, 241 Ga. 471, 474-475 (246 SE2d 278); General Info. &c. Systems v. Sweeney, 176 Ga. App. 315 (335 SE2d 722).

However in Lariscy v. Hill, 117 Ga. App. 152, 154 (159 SE2d 443), this court, citing King Mfg. Co. v. Clay, 216 Ga. 581, 586 (118 SE2d 581), opined that “ ‘[a] director in dealing with another stockholder for the purchase of his stock is under the same duties as partners, agents, and other fiduciaries to make a full disclosure of all material facts relative to the value of the corporate property under his control, known ito him and unknown to the selling stockholders.’ However, ‘[a] director in buying (or selling) stock is not under such duty to the corporation or the other directors.’ [Cit.]” The sale of stock in the case sub judice was between co-directors of the corporation. Compare with Nicholson v. Harris, 179 Ga. App. 35 (345 SE2d 63).

The cases of Lewis v. Lewis, 228 Ga. 703 (187 SE2d 872); Hogg v. Hogg, 206 Ga. 691 (58 SE2d 403); and Union &c. Co. v. Trust Co. Bank, 143 Ga. App. 715 (240 SE2d 100) are distinguishable. We find Lariscy to be controlling. In this case, no evidence or reasonable inferences exist that from the date of appellant Henderson’s assumption of KMS corporate duties in October 1985, until his termination therewith in November 1986 was he ever denied access to any corporate financial information which he affirmatively requested to see. In fact, there exists evidence establishing Henderson’s access to such information. In view of Lariscy, we are satisfied that the trial judge correctly concluded that appellant Henderson’s failure to exercise any ordinary diligence in making independent verification of the value of his KMS stock before selling it acts to bar an action based on fraud. As we have already said, “a judgment which is correct will not be reversed merely because the wrong reason is given for granting it.” Reese Realty Co. v. Pal Realty Co., 182 Ga. App. 215, 217 (355 SE2d 125); accord Tony v. Pollard, supra.

Accordingly, we find appellant’s assertion to be without merit. We have considered all of appellant’s other enumerations of error and related assertions and find them to be without merit and not warranting discussion.

4. Appellee/cross-appellants assert that it was error for the trial court to grant cross-appellee Henderson an accounting when there was no underlying basis or liability for same and Henderson had an opportunity to conduct full and adequate discovery.

Cross-appellants appear to be laboring under the mistaken belief that the trial judge granted summary judgment in their favor as to all claims contained in the cross-appellee Henderson’s complaint. However, the trial judge’s order was carefully worded to limit grant of summary judgment to certain claims for violations of the Securities Act, for attorney fees related thereto, and as to an action grounded in fraud.

When examining a complaint to determine whether the facts asserted therein state a claim for relief under which the plaintiff may recover, it is not necessary to find that the complaint is perfect in form or that it sets out all of the issues with particularity. It is only necessary that the complaint place the defendant on notice of the claim against him. Walton v. James & Dean, Inc., 177 Ga. App. 77 (1) (338 SE2d 516). If upon reading the complaint the defendant is uncertain as to the nature of the claim of which he has been placed on notice, “[t]he proper remedy for seeking more particularity is by motion for a more definite statement [OCGA § 9-11-12 (e)] at the pleading stage or by the rules of discovery thereafter.” Cochran v. McCollum, 233 Ga. 104, 105 (210 SE2d 13).

We need not determine precisely what claims in law or equity have been adequately asserted by notice pleading, as at this point that function is best left to be addressed by the trial judge. It is sufficient for resolution of the issue before us that the complaint adequately places cross-appellants on general notice of the assertion of a claim, for example, grounded on contract or quasi-contract and that the trial judge has not granted the cross-appellees summary judgment as to either of those types of claims.

Every court in this state has both inherent and statutory authority to control and tailor its orders “so as to make them conformable to law and justice.” See e.g., OCGA § 15-1-3 (6). Pursuant to OCGA § 15-6-8 (6), superior court judges also have statutory authority “[t]o exercise such other powers, not contrary to the Constitution, as are or may be given to such courts by law.” This grant of power is intentionally broad and clearly includes but is not limited by any means to the authority granted under OCGA § 15-6-3. Moreover, “it is always discretionary with the court in a case involving matters of account to refer it to an auditor.” Mendenhall v. Kingloff, 215 Ga. 726 (2) (113 SE2d 449). See, e.g., OCGA § 9-7-3.

Cross-appellants have failed to carry their burden of establishing that the trial judge breached her discretion in ordering an accounting. Accordingly, cross-appellants’ enumerated error is without merit.

Judgment affirmed.

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

Decided September 27, 1988

Rehearing denied October 24, 1988.

Jeffrey L. Sakas, for appellant.

Lynn E. Nardiello, Martin M. Pollock, for appellees.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    77141.
    DEYCH v. THE STATE.
    (374 SE2d 753)
   Deen, Presiding Judge.

The appellant, Mikhil Deych, was convicted of trafficking in cocaine, for which he was sentenced to 30 years’ imprisonment and a $500,000 fine. On appeal, he contends that the trial court erred (1) in denying his motion to suppress the evidence seized when Drug Enforcement Administration officers searched him and his luggage at the Atlanta Hartsfield International Airport, and (2) in charging the jury on constructive possession.

On July 17, 1986, DEA agent Paul Markonni approached Deych at the airport because Deych’s situation matched various aspects of the “drug courier profile.” At the suppression hearing, Markonni testified that Deych consented to the search of his person and a briefcase which they retrieved from the overhead compartment in the airplane. Markonni also observed a claim check in Deych’s wallet, but Deych claimed that the luggage was not his and gave Markonni the claim check. The officers then searched Deych and found a small vial containing cocaine in his pocket, and arrested him.

Markonni obtained the luggage with the claim check and asked Deych if it belonged to him, to which Deych replied that he had better talk with a lawyer. Markonni acknowledged Deych’s right, and Deych reiterated that the luggage was not his. Markonni inquired if Deych wanted to talk about it, and again Deych indicated that he thought that he should first talk with a lawyer. When Markonni then proceeded to make arrangements for the use of a narcotics-sniffing dog, Deych again disclaimed the luggage; he also indicated that he was merely delivering the bag to a person in Denver for someone he had met in Miami, and that he had no interest in the luggage except for some pants, cigarettes, and a pager he had placed in it. At that time, Deych told Markonni that he did not care if the bag were searched. The subsequent search of the bag uncovered approximately 500 grams of cocaine. Held-.

1. Concerning the search of Deych’s person, the only question presented by this appeal is the factual one of whether Deych consented to the search. This court must accept a trial court’s rulings on disputed facts and credibility at a suppression hearing, unless those findings are clearly erroneous. Smith v. State, 184 Ga. App. 304 (1) (361 SE2d 215) (1987). In the instant case, the evidence authorized the trial court’s finding that Deych had freely and voluntarily consented to the search of his person.

Decided October 3, 1988

Rehearing denied October 24, 1988

Brooks S. Franklin, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Concerning the search of the luggage, at all times, both before and after Deych was arrested, Deych denied any ownership interest in the bag. “[W]hen, as in the instant case, the accused disavows ownership of the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right. [Cit.]” Wade v. State, 184 Ga. App. 97, 97-98 (360 SE2d 647) (1987). Accordingly, the trial court properly denied Deych’s motion to suppress.

2. After defining actual and constructive possession, the trial court instructed the jury that “[y]ou would be authorized to convict only if you should find beyond a reasonable doubt that this defendant knowingly had actual or constructive possession of the cocaine described in the indictment or that he was knowingly bringing it into this state.” Deych contends that under Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), this jury instruction constituted reversible error because it authorized a jury to convict him based on a finding that he was in constructive possession of the cocaine, whereas the offense of trafficking in cocaine (OCGA § 16-13-31 (a)) requires actual possession. We are constrained to agree. Compare Raines v. State, 186 Ga. App. 239 (4) (366 SE2d 841) (1988). A new trial is required.

Judgment reversed.

Carley and Sognier, JJ., concur.


author: Banke, Presiding Judge.

text:
    77201.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. ALLEN.
    (374 SE2d 761)
   Banke, Presiding Judge.

At approximately 9:00 p.m. on December 21, 1984, the plaintiffappellee was raped at knifepoint in the parking lot of MARTA’s Hightower rail station in Atlanta, as she was returning to her car from the train. She filed the present action against MARTA to recover for her resulting injuries, alleging that the transit authority had failed to provide adequate security in the parking lot. A jury awarded her $250,000, and MARTA filed this appeal. Held:

1. MARTA enumerates as error the trial court’s refusal to exclude evidence showing that ten armed robberies had occurred in the same parking lot prior to December 21, 1984—six of them in 1984, two in 1983, and one each in 1982 and 1981. This evidence was offered by the plaintiff for the purpose of establishing that MARTA was on notice that patrons using the lot were exposed to an unreasonable risk of danger from criminal assault. MARTA contends that the evidence was not admissible for this purpose because the prior offenses were not shown to have occurred under conditions substantially similar to those attending the assault against the plaintiff. In particular, MARTA complains that although one of the plaintiff’s primary allegations of negligence concerned its failure to replace a floodlight which had burned out in the vicinity of her car, virtually all of the prior offenses in question had occurred during daylight hours.

“ ‘It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.’ (Cit.) Ordinarily, even where the proprietor’s negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. (Cit.) ‘However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.’ (Cits.)” McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592) (1980).

In actions to recover for injuries resulting from the criminal misconduct of third persons on business premises, evidence showing that criminal acts have occurred on the premises in the past is admissible to show that the proprietor had reasonable grounds for apprehending the occurrence of such acts in the future, but only if there is a “substantial similarity” between the prior criminal acts and the criminal act giving rise to the plaintiff’s claim. See McCoy v. Gay, 165 Ga. App. 590, 592 (302 SE2d 130) (1983); Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281) (1987). Whether a “substantial similarity” exists must be determined by the facts of each individual case. It is not required that the offenses be identical. “All that is required is that the prior [incident] be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated [incident].” Pembrook Mgt. v. Cossaboon, 157 Ga. App. 675, 677 (278 SE2d 100) (1981).

The prior offenses which were brought to the jury’s attention in the present case were similar to the offense which resulted in the plaintiff’s injuries in the obvious respect that each involved a criminal assault against a MARTA patron in the parking lot of the Hightower station. The major dissimilarities were that none of them had involved rape, and only one or two of them had occurred at night. On balance, however, we conclude that the prior offenses were admissible on the issue of whether MARTA knew or should have known that there was an unreasonable risk of danger from criminal assault at the location in question. Assuming arguendo that the occurrence of such criminal activity at night would not suggest the likelihood of such activity during the day, the occurrence of such activity in broad daylight certainly suggested the likelihood that patrons using the parking lot would be exposed to danger from criminal assault in the darkness. Although four of the prior offenses occurred prior to 1984, it does not follow that they were too remote in time to be relevant, since, taken in context, they could be viewed as establishing a pattern of increasing criminal activity at the location in question. Compare McCoy v. Gay, supra, 165 Ga. App. at 593.

The trial judge in this case specifically charged the jury that the burden was on the plaintiff to show that the prior incidents were “substantially similar,” and he defined this as meaning “that the prior incidents must not be too remote in time and must have occurred in similar conditions. . . .” Under all of the circumstances, we hold that the trial court did not err in allowing the jury to consider the prior offenses. Accord Bayshore Co. v. Pruitt, 175 Ga. App. 679 (334 SE2d 213) (1985).

The cases relied upon by MARTA are distinguishable on their facts and do not demand a contrary result. In McCoy v. Gay, supra, the plaintiff sought to recover for injuries received when he was robbed in the parking lot of the defendant’s motel. Two of the three prior offenses offered as evidence were adjudged insufficiently similar to have placed the proprietor on notice of the potential for such assaults because they had occurred “at or in close proximity to the actual guest facilities provided by the Inn” rather than in the parking lot, which was “on the periphery of the premises some distance from the actual Inn facility itself.” Id., 156 Ga. App. at 592. Although the third offense had occurred in the parking lot, it had taken place some ten years earlier; and the court held that under such circumstances it could not be considered evidence of a dangerous condition currently existing at that location in the absence of a showing that the condition of the lot with respect to lighting and security had been the same at that time. Id. at 593.

In Washington Road Prop. v. Stark, 178 Ga. App. 180 (342 SE2d 327) (1986), also relied upon by MARTA, the plaintiffs were assaulted as they were entering their room at the defendant’s motel. The occurrence of two prior robberies at the motel, some three and five years earlier respectively, was held insufficient to place the defendant on notice that its patrons were subject to a present danger from criminal assault in their rooms because both had occurred at the front desk. In Nalle v. Quality Inn, supra, the plaintiff was attacked and robbed as he was standing near the swimming pool on the premises of the defendant’s motel drinking a cup of coffee. Of the 25 prior offenses relied upon by the plaintiff to establish the defendant’s knowledge of the danger in question, only two had involved “personal confrontation,” and both of those had occurred at the front office. Id. at 122. Consequently, none was considered sufficiently similar to create a jury issue.

2. MARTA contends that even if the evidence concerning the robberies was admissible, the trial court erred in allowing the plaintiff to introduce, over its hearsay objection, the incident reports concerning the offenses which had been prepared by its security personnel. These reports were not offered to prove that the incidents had occurred (which does not appear to have been contested) but to show that the offenses had been reported to MARTA. Where evidence is offered “to establish the fact that something was said, not the veracity of its content, [it] is admissible to explain conduct and ascertain motives, not as hearsay, but as original evidence.” Edgeworth v. Edgeworth, 239 Ga. 811, 812 (239 SE2d 16) (1977). See generally OCGA § 24-3-2. This enumeration of error is consequently without merit.

3. The trial court did not err in admitting into evidence a copy of the emergency room report regarding the treatment received by the plaintiff immediately following the rape. “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.” OCGA § 24-3-4. See Sanders v. Southern Farm &c. Ins. Co., 174 Ga. App. 888, 889 (332 SE2d 33) (1985). Although MARTA contends in its brief on appeal that the emergency room report contained certain “extremely inflammatory” statements, the nature of those statements is not specified. From an examination of the report, much of which is illegible, it would appear that MARTA’s concern is with the plaintiff’s description of the rape, as recounted to hospital personnel. There is, however, no suggestion that this description was inaccurate; and if it was, the plaintiff was available in court for cross-examination on the issue. See Shelton v. Long, 177 Ga. App. 534, 535 (339 SE2d 788) (1986).

4. MARTA contends that the trial court erred in excluding evidence “concerning crime statistics throughout the MARTA system and within the general vicinity of the Hightower station.” The asserted relevance of this evidence was “to show the adequacy of [MARTA’s] security system as evidenced by the extremely low incidence of crime throughout the system, and at Hightower, even though the Hightower station sits in a very high crime area, [as well as to show] that MARTA provides better [police] coverage than the City of Atlanta could ever hope to achieve, [and] that they are extremely effective and totally non-negligent in their approach towards and their implementation of security measures.”

Initially, we observe that MARTA never made any offer of proof concerning the statistics in question. Generally speaking, “[f]ailure to make an offer of proof leaves nothing for this court to review.” Ellis v. Cameron & Barkley Co., 171 Ga. App. 211 (2), 212 (319 SE2d 38) (1984). Even assuming, however, that MARTA was in fact prepared to offer statistics tending to prove the general efficacy of its security system, such evidence clearly would not have been admissible on the issue of whether due diligence was exercised at the time and place in question. See generally Ga. Ports Auth. v. Mitsubishi &c. Corp., 156 Ga. App. 304 (4), 307 (274 SE2d 699) (1980), and cases cited therein. “ ‘The inquiry being what was proper to be done under given circumstances at a particular point, proof of what was usually done at a point nearby under different circumstances cannot illustrate the question.’” MARTA v. Tuck, 163 Ga. App. 132, 139 (292 SE2d 878) (1982), quoting from Atlanta Ice &c. Co. v. Mixon, 126 Ga. 457 (2) (55 SE 237) (1906). MARTA’s diligence on the occasion in question could no more be established by comparing the crime rate on its rail system with the crime rate in the surrounding community than could a driver’s exercise of diligence on a particular occasion be established by proof that he had a better than average driving record.

This court’s decision in R. O. H. Properties v. Westside Elec. Co., 151 Ga. App. 857 (261 SE2d 767) (1979), relied upon by MARTA, does not constitute authority for a contrary conclusion. There, an electrical contracting firm being sued for damages caused by a fire originating in one of its installations was permitted to show that it was unaware of any similar problems arising from previous such installations. In the case before us, the excluded evidence clearly was not offered to establish (and would not have established) that MARTA was unaware of any prior criminal assaults against patrons using the Hightower parking lot. Rather, it was offered to establish the general diligence of MARTA’s security forces.

5. MARTA contends that the following jury instruction concerning its duty to protect its patrons was erroneous because it was expressed in the disjunctive rather than the conjunctive: “I charge you that it is the duty of a proprietor ... to protect an invitee . . . from injury caused by the misconduct of third persons if there is any reasonable apprehension of danger from the conduct of said person or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.” (Emphasis supplied.)

The language in question has been used by this court repeatedly in delineating the duty of a proprietor to protect invitees from the misconduct of third persons present on the premises. See Hewett v. First Nat. Bank, 155 Ga. App. 773, 774 (272 SE2d 744) (1980); Bowling v. Janmar, 142 Ga. App. 53, 55 (234 SE2d 849) (1977); Ga. Bowling Enterprises v. Robbins, 103 Ga. App. 286, 288 (119 SE2d 52) (1961); Moone v. Smith, 6 Ga. App. 649 (1) (65 SE 712) (1909). Consequently, this enumeration of error is without merit.

6. MARTA contends that the trial court erred in charging that a proprietor is “under a duty to exercise ordinary care to discover dangers on its premises and either make the premises safe or warn invitees of the danger,” without also giving its requested charge that “there is no duty to warn a person of the existence of a condition when that person already knows the existence of such condition. . . .” This enumeration of error is also without merit. The trial court specifically instructed the jury that the plaintiff could not recover “if, by the exercise of ordinary care, [she] could have avoided the consequences of the defendant’s negligence, if any. . . .” Thus, in the context of the charge as a whole, the language complained of cannot reasonably be interpreted as having authorized the jury to award damages based on the appellant’s failure to warn of a danger which was already known or obvious to the plaintiff. See generally American Home Assur. Co. v. Stephens, 121 Ga. App. 306 (4), 310 (174 SE2d 186) (1970).

7. Asserting that the plaintiff “was well aware of the danger in being out alone in the City of Atlanta at night and yet voluntarily chose to undertake those risks,” MARTA contends that the court erred in failing to give its requested charges on comparative negligence, contributory negligence, and assumption of risk.

As previously indicated, the court did in fact charge that the plaintiff could not recover “if, by the exercise of ordinary care, [she] could have avoided the consequences of the defendant’s negligence, if any. . . .” With respect to its requested charges on comparative negligence and assumption of risk, MARTA does not suggest what reasonable precautions for her own safety the plaintiff failed to take under the circumstances. There certainly is no indication that she was aware a rapist was lurking near her car, and we presume that MARTA does not take the position that anyone who uses its rail system at night is presumptively lacking in care for his or her safety. The plaintiff had parked her car in the MARTA lot prior to taking the train to downtown Atlanta to go to work that morning, and the rape occurred as she was returning home. We cannot accept the proposition that her duty to exercise ordinary care for her own safety under the circumstances required her either to abandon the car in the lot overnight or to make other arrangements to retrieve it and return home. The charges requested by MARTA on assumption of risk and comparative negligence were in any event deficient in that they failed to specify that MARTA had the burden of proof with respect to these defenses. See Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 861 (360 SE2d 418) (1987). It follows that this enumeration of error also fails to establish any ground for reversal. See generally Slaughter v. Linder, 122 Ga. App. 144 (2b) (176 SE2d 450) (1970).

8. MARTA enumerates as error the trial court’s refusal to give its requested charge that “evidence of a custom or practice within a particular industry, group or organization may be considered by you as bearing upon the standard of care applicable in determining whether negligence exists.” It is asserted that this charge was supported by the following expert testimony, dealing with the absence of surveillance cameras in the parking lot: “I have never recommended the use of closed circuit television in a transit system parking lot because my experience of transit systems that I have observed with closed circuit television in that type of parking lot has essentially been negative.”

“In order to show negligence or the lack of it by conforming to a custom, it must be shown that the custom was universal among all persons or parties similarly situated.” City of Macon v. Yaughn, 83 Ga. App. 610, 614 (64 SE2d 369) (1951). The testimony in question clearly did not purport to show MARTA’s compliance with an industry-wide custom or practice. Consequently, this enumeration of error is also without merit.

9. In the context of the charge as given, which included unambiguous instructions that the plaintiff could recover only through proof that MARTA had been guilty of negligence and that such negligence was the proximate cause of her injuries, the judge was not required to give MARTA’s requested charge that a proprietor is not an insurer of the safety of invitees coming upon the premises, nor to charge that an owner may not be presumed negligent based upon a mere showing that an injury was sustained by one rightfully upon the premises. Accord Stouffer Corp. v. Henkel, 170 Ga. App. 383, 388 (9, 10) (317 SE2d 222) (1984).

10. The trial court did not err in denying MARTA’s motion for directed verdict.

11. The plaintiff’s contention that the trial court erred in excluding evidence of eight additional crimes which had previously occurred on the premises is rendered moot by the foregoing and could not, in any event, be addressed in the absence of a cross-appeal.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

Decided October 4, 1988

Rehearing denied October 24, 1988

Eve A. Appelbaum, for appellant.

D. Lake Rumsey, Jr., for appellee.


text:
    77235.
    DeKALB COUNTY v. GLAZE et al.
    (375 SE2d 66)
   Banke, Presiding Judge.

This is an inverse condemnation case arising from the redesign of an intersection by DeKalb County. At one corner of the intersection was a grocery store, or “superette,” operated by appellee James Glaze, Jr., upon land owned by appellees Ralph Glaze and James Glaze, Sr. Previously, there had been unlimited access from the public right-of-way to the front of the store, where parking space had existed for approximately five automobiles. However, in connection with the redesign of the intersection, concrete curbs were installed at the edge of the public right-of-way leaving only two points of ingress and egress to the front of the store, 28 feet and 24 feet wide respectively. There was testimony that the placement of these curbs made it very difficult if not impossible for more than one car to park in front of the store at a time and also made it impossible for large delivery trucks to access the front of the store without driving over the curbs.

A jury awarded Ralph Glaze and James Glaze, Sr., $50,000 as damages for the diminution in the value of the property caused by the improvements and awarded James, Jr., $65,000 as compensation for his business losses. The county appeals, enumerating ten separate rulings of the trial court as error. However, many of these enumerations of error are overlapping, and the issues raised by them boil down to (1) whether the installation of the curbs constituted merely an exercise of police power rather than a taking and (2) whether, for various asserted reasons, there was a failure of proof on the issue of business losses. Held:

1. “The distinction between use of eminent domain and use of the police power is that the former involves the taking of property [rights] because [they are] needed for public use while the latter involves the regulation of the property to prevent its use in a manner detrimental to the public interest.” Pope v. City of Atlanta, 242 Ga. 331, 334 (249 SE2d 16) (1978). The county contends that no taking occurred in this case because the curbs were placed entirely within the existing right-of-way to promote the safety and convenience of the traveling public by improving traffic flow and preventing accidents at the intersection. However, there has been no showing, nor any suggestion, that the county was seeking to enforce a general prohibition affecting all similarly situated property owners. Moreover, it is well settled that if the installation of such improvements results in a substantial impairment of the property owner’s “easement of access,” a taking has occurred for which compensation is required regardless of the importance of the public interests which are thereby promoted. See, e.g., Dougherty County v. Hornsby, 213 Ga. 114 (97 SE2d 300) (1957).

The “ ‘easement of access is a property right, of which the landowner cannot be deprived upon the ground that the safety of the public traveling upon the highway may be endangered by the exercise of this easement by the abutting landowner, without just and adequate compensation being first paid to the owner.’ ” Dougherty County v. Hornsby, supra at 116, quoting State Hwy. Bd. v. Baxter, 167 Ga. 124 (2) (144 SE 796) (1928). While the landowner is not entitled to access at all points on the boundary between his property and the public right-of-way, he is entitled to “convenient access,” and the existing means of ingress and egress may not be “substantially interfered with” without compensation. State Hwy. Bd. v. Baxter, supra at 133. “The measure of damages is any diminution in the market value of the property by reason of such interference.” Metro. Atlanta &c. Transit Auth. v. Datry, 235 Ga. 568, 577 (220 SE2d 905) (1975).

It is undisputed that there had been unlimited access to and from the store for many years before the curbs were installed. Whether the openings left in the curbs by the county provided reasonable access to the property under the circumstances and whether the existing access was “substantially interfered with” were questions of fact to be resolved by the jury. Accord Dougherty County v. Hornsby, supra; Clayton County v. Billups &c. Co., 104 Ga. App. 778 (123 SE2d 187) (1961). Compare Metro. Atlanta &c. Auth. v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987) (where there was no interference with access but merely with traffic flow on the roadway); Johnson v. Burke County, 101 Ga. App. 747 (115 SE2d 484) (1960) (where the installation of the curbing did not affect the existing access to the property but merely prevented use of the state’s right-of-way for the unauthorized purpose of parking and servicing vehicles). It follows that the trial court did not err in denying the county’s motion for directed verdict on the issue of whether a taking had occurred, nor in refusing to strike the appellees’ evidence concerning the resulting diminution in the value of the property.

2. The county contends that the evidence did not support the award of damages to James Glaze, Jr., for his business losses because (a) he did not have a lease; (b) it was not shown that the property was uniquely suited to the use in question; (c) there was no proof that the store had been profitable before the curbs were installed; (d) there was no showing that the damage to the business was permanent in the sense that the business could not have been duplicated at another location; and (e) the testimony purporting to establish the amount of the losses was speculative. We shall address these contentions seriatim.

(a) The county cites Alexander v. Rozetta, 110 Ga. App. 660, 661 (139 SE2d 451) (1964), and Hayes v. City of Atlanta, 1 Ga. App. 25 (57 SE 1087) (1907), for the proposition that a tenant at will cannot recover his business losses resulting from a taking of the owner’s property rights. In Alexander v. Rozetta, this court held that “the tenant at will of the property condemned is entitled to receive from the gross amount of the . . . award the actual value of the tenancy at will and no more.” However, that case did not involve a claim for business losses but merely the extent to which the tenant at will was entitled to share with the owner in the compensation awarded for the value of the property taken. There was thus no implication in the above-quoted language that a tenant at will would not be entitled to recover his business losses as a separate element of damages in a condemnation proceeding. In Hayes v. City of Atlanta, such a claim was in fact allowed. There, as in the case before us, a tenant at will was seeking to recover for the damage to his business allegedly caused by the obstruction of ingress and egress to the premises. The court held that such damages “must be ascertained ... by an impartial jury, in the light of all the proved facts and circumstances,” Id. at 31, including proof “not only that the property had an earning capacity, but also what that capacity was.” Id. at 32.

In the case before us, it was shown that the store was a family business which had been in existence for many years and that after the curbs were installed James, Jr., had been allowed to remain on the premises without paying rent. While the fact that he was a tenant at will certainly was a factor to be considered by the jury in assessing the extent to which his business losses were recoverable, we hold, on the basis of Hayes v. City of Atlanta, supra, that the nature of his tenancy operated neither to bar him from recovering such losses altogether nor to restrict such losses to a 60-day period — i.e., the length of time he was entitled to remain on the premises as a matter of right pursuant to OCGA § 44-7-7. Accord Almota Farmers Elevator &c. Co. v. United States, 409 U. S. 470, 474 (93 SC 791, 35 LE2d 1) (1973) (holding that “the possibility that the lease might be renewed as well as the possibility that it might not” were factors to be taken into consideration in assessing the value of a leasehold interest in a condemnation proceeding).

(b) Whether property is unique is a jury question, and only slight evidence of uniqueness is required to warrant the submission of the issue to the jury. Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 542 (1) (309 SE2d 816) (1983); Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287 (1) (342 SE2d 760) (1986); Simiway, Inc. v. Dept. of Transp., 178 Ga. App. 414 (5), 417 (343 SE2d 497) (1986); Dept. of Transp. v. Coley, 184 Ga. App. 206, 209 (4) (360 SE2d 924) (1987). Cf. Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249 (4) (361 SE2d 241) (1987).

The appellees presented expert testimony in this case to the effect that the property had been ideally suited for use as a convenience store prior to the installation of the curbs due to such factors as topography, frontage, traffic flow, and accessibility but that it had been rendered unsuitable for such use by the improvements in question. This testimony constituted at least “slight evidence” of uniqueness and was thus sufficient to authorize the submission of the issue to the jury.

(c) The county’s contention that the business was not shown to have been profitable prior to the taking is belied by examination of James, Jr.’s income tax returns for the years surrounding the taking, which were introduced as evidence. Cf. Brock v. Dept. of Transp., 151 Ga. App. 905 (2) (262 SE2d 156) (1979).

(d) The county’s contention that there was no proof that the injury to the business was permanent (in the sense that the business could not be duplicated elsewhere) is, in essence, merely a restatement of its contention that there was no proof of uniqueness. The cases relied upon by the county do not stand for the proposition that the mere possibility of duplicating a business elsewhere precludes any recovery for business losses. The holding in Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229 (264 SE2d 174) (1980), was that the condemnee could not recover both its lost profits and its relocation costs. No relocation costs were awarded in the present case. In Dept. of Transp. v. Dent, 142 Ga. App. 94, 95 (235 SE2d 610) (1977), we held that business losses caused by a partial taking were not a separate element of compensation “in the absence of a showing of a special or unique value to the owner. . . .” Such a showing was, of course, made in the present case.

Decided October 4, 1988 —

Rehearing denied October 24, 1988

Albert S. Johnson, Lisa A. Foster, for appellant.

Furman Smith, Jr., for appellees.

(e) Finally, we reject the county’s contention that the evidence concerning the amount of the business losses was speculative because it “allowed a range of values for business losses between $115,000 and $85,000 — a difference of $30,000.” The fact that the jury was presented with a range of values from which to arrive at an estimate of the compensable business losses did not render this evidence unduly speculative. Accord Housing Auth. of Atlanta v. Southern R. Co., supra, 245 Ga. at 231.

3. Having determined that the evidence presented at trial was not deficient for any of the reasons assigned, we hold that the trial court did not err in denying the county’s motion for new trial or, in the alternative, for judgment notwithstanding the verdict.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    76706.
    JONES v. KIM.
    (374 SE2d 820)
   Benham, Judge.

Appellee Kim sued appellant Jones on a promissory note and was granted judgment on the pleadings. Appellant contends it was error to grant judgment in favor of appellee and to deny appellant’s motion for summary judgment.

Attached to appellee’s complaint was a copy of the promissory note in which appellant allegedly promised to pay appellee $18,000 in specified monthly installments, bearing no interest. In his answer, appellant denied appellee’s allegations and asserted as a separate defense that appellee had loaned him $12,000 and that appellee’s demand for $18,000 made the note usurious. Appellant submitted an expert affidavit on the issue of the rate of interest being charged on a $12,000 debt, and appellee executed an affidavit in which he stated he had loaned appellant $18,000 at no interest. Concluding that it was undisputed that appellant had executed the promissory note in exchange for valuable consideration, and that no payments had been made on the note, the trial court granted appellee’s motion for judgment on the pleadings in the amount of $18,000, with legal interest from the date of demand.

Decided October 24, 1988.

Charles C. Carter, for appellant.

Jerry D. Sanders, for appellee.

1. Appellee’s motion to dismiss the appeal is denied. See OCGA § 5-6-48.

2. A plaintiff is not entitled to judgment on the pleadings where the answer raises issues of fact which, if proved, would defeat recovery. Kramer v. Johnson, 121 Ga. App. 848 (2) (176 SE2d 108) (1970). “ ‘ “For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” ’ ” Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489) (1978). Appellant’s general denial of the allegations contained in appellee’s complaint was sufficient to raise the defense of denial of the execution of the note, which, in turn, meant that appellant did not admit the signature within the meaning of OCGA § 11-3-307. Spurlock v. Commercial Banking Co., 151 Ga. App. 649 (3b) (260 SE2d 912) (1979). Thus, the introduction of the promissory note did not establish, as a matter of law, appellee’s right to the judgment sought. Compare Brooks v. McCorkle, 174 Ga. App. 132 (329 SE2d 214) (1985).

3. It does not follow that the erroneous grant of judgment on the pleadings to appellee should result in the grant of summary judgment to appellant. Appellant’s answer itself raised the material issue of execution of the promissory note (see Division 2), and appellant’s assertion of usury does not constitute a complete defense to appellee’s allegations.

Judgment reversed.

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


author: Sognier, Judge.

text:
    77246, 77292.
    STEPHENS v. OATES et al; and vice versa.
    (374 SE2d 821)
   Sognier, Judge.

Geneva Knight Stephens brought suit against Kenneth Oates, Jr., and TG&Y Stores, Inc. to recover damages for injuries she suffered when a forklift driven by Oates, a TG&Y employee, collided with a cart pulled by Stephens, an employee of Kelly Temporary Services, Inc. (Kelly) on assignment at a TG&Y warehouse pursuant to a contract between TG&Y and Kelly. Oates and TG&Y moved for summary judgment on the grounds that workers’ compensation benefits were Stephens’ exclusive remedy, both because Stephens was the borrowed servant of TG&Y and because TG&Y was her statutory employer. The trial court determined that Stephens was the borrowed servant of TG&Y and therefore granted summary judgment in favor of Oates and TG&Y, which is the subject of Stephens’ appeal in Case No. 77246. Oates and TG&Y filed a cross-appeal in Case No. 77292, contingent upon reversal in the main appeal, based on the denial of their motion on the alternate statutory employer ground.

1. In the main appeal, Stephens contends the trial court erred by granting summary judgment to Oates and TG&Y because the three-pronged test for establishing that she was TG&Y’s borrowed servant was not met. The definitive test for determining whether an employee is a “borrowed servant” was set forth in U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182, 183 (196 SE2d 133) (1973). The evidence must show that “(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.” Id. In Six Flags Over Ga. v. Hill, 247 Ga. 375, 377-378 (1) (276 SE2d 572) (1981), the Supreme Court further refined this test by indicating that all three prongs of the test must focus on “the occasion when the injury occurred” rather than the work relationship in general. We must apply this test to the facts in the case sub judice.

The record reveals that Kelly is a national corporation which supplies temporary personnel. All personnel supplied by Kelly were paid directly by Kelly. The approximately one dozen employees supplied by Kelly to work at TG&Y’s warehouse were supervised by TG&Y personnel. There were no distinctions between the work assignments given to the temporary (Kelly) employees and TG&Y’s own, permanent employees. They worked side by side, at the same tasks. Stephens testified by deposition that on her first day of work at TG&Y, she went to an orientation at which two TG&Y employees instructed the Kelly workers as to their duties. She further testified there were no differences between the TG&Y employees and the Kelly personnel regarding privileges, parking, dress code, or amount of hours worked. Stephens received her assignments from Carl, a TG&Y employee. Carl also assigned another TG&Y employee to show her how to perform her work, e.g., how to read orders, “pull” the orders, and retrieve the merchandise from the shelves to fill the orders. She was also instructed as to when she was to do certain tasks.

“[W]e are not concerned here with whether [Stephens] was always under the control and direction of [TG&Y] but whether [she] was on the occasion when the injury occurred. [Cits.]” Six Flags Over Ga., supra at 377 (1). TG&Y had “complete control and direction of the servant for the occasion,” U. S. Fidelity, supra at 183, and Kelly had none, satisfying the first two portions of the test. “The same is true of the rights of the special master to discharge the servant and to put another in his place. This applies only to the special matter or occasion,” Merry Bros. Brick &c. Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924) (1969), rendering meritless Stephens’ contention that because Kelly had the sole right to discharge her from its employ, the third prong of the test was not satisfied, as it would appear that TG&Y had the exclusive right to discharge Stephens from her assignment at TG&Y if it was dissatisfied with her performance.

Decided October 24, 1988.

Robert H. Malone III, for appellant.

Wallace Miller III, Dan Bullard IV, for appellees.

We thus find that all three prongs of the test were satisfied, that Stephens was the “borrowed servant” of TG&Y at the time she was injured, and that both TG&Y and Oates, its employee, were immune from suit. See generally Pulliam v. Richmond County Board &c., 184 Ga. App. 403 (361 SE2d 544) (1987). Accordingly, we affirm the trial court’s grant of summary judgment to both defendants on this ground. See id.

2. As TG&Y and Oates have conditioned their cross-appeal upon our reversal in the main appeal of the trial court’s grant of summary judgment in their favor, and we have affirmed the trial court’s grant of summary judgment in their favor in Division 1, it is unnecessary that we consider the issues raised in the cross-appeal and accordingly it is dismissed.

Judgment affirmed in Case No. 77246.

Appeal dismissed in Case No. 77292. Deen, P. J., and Carley, J., concur.


text:
    77339.
    QUINLAN v. BELL.
    (374 SE2d 823)
   Deen, Presiding Judge.

John Quinlan entered into a lease agreement with Ralph Bell, d/ b/a Southeastern Crane and Rigging, on December 27, 1983, under which a crane was leased to Bell. A typed provision in the agreement provided: “The rental period shall begin on date of shipment of the equipment by lessor and shall end on date of delivery of the equipment back to lessor’s yard.” The second page was printed and incorporated by reference into the typed portion and provides: “Title; Return of Equipment. Lessee shall pay rent as required herein until all of the equipment is re-delivered to lessor’s premises.”

On October 28, 1986, Bell notified Quinlan that the crane had been damaged when it tipped over while being operated. Bell claims that he attempted to repair the crane, but Quinlan came on his property on November 1, 1986, seized it, and removed it to his property. Quinlan filed suit against appellee to recover damages sustained by the crane and rent from November 1, 1986, to the present. Bell filed a motion for partial summary judgment, asserting that no rent was due after November 1, 1986, under the terms of the lease. Quinlan appeals from the grant of Bell’s motion. Held:

Decided October 24, 1988.

Jon Gary Branan, for appellant.

I. Gregory Hodges, Thomas A. Withers, for appellee.

“The construction of a contract is a question of law for the court.” OCGA § 13-2-1. Unless there are ambiguous terms or expressions in the contract, it is the trial court’s duty to construe it. Salvatori Corp. v. Rubin, 159 Ga. App. 369 (283 SE2d 326) (1981). The same rule applies to leases. Peachtree &c. Investors v. Reed Drug Co., 251 Ga. 692 (308 SE2d 825) (1983). The trial court’s findings will not be set aside unless they are clearly erroneous. Nodvin v. Krabe, 160 Ga. App. 310 (287 SE2d 236) (1981). The rules that the court must apply in construing a contract are found in OCGA § 13-2-2. In construing a contract, the fundamental rule is to ascertain the intent of the parties. McVay v. Anderson, 221 Ga. 381 (144 SE2d 741) (1965). A typewritten provision must govern over a conflicting printed one. Hodsdon v. Whitworth, 153 Ga. App. 783, 786 (266 SE2d 561) (1980); Aetna Life & Cas. Co. v. Charles S. Martin Distrib. Co., 120 Ga. App. 133 (169 SE2d 695) (1969).

The typewritten terms of the lease provide that the lease expires when the equipment is delivered to the lessor, and the printed portion requires the payment of rent until all the equipment is returned. Although appellant claims that all the equipment was not returned, the unreturned equipment is not identified anywhere in the record. Appellant’s argument that the appellee did not return the equipment as required under the lease, and therefore the provision does not apply in favor of the lessee because the lessee did not bear the delivery expense, is not meritorious. We find no error in the trial court’s ruling.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    77546.
    BRAMBLETT v. BASS.
    (375 SE2d 106)
   Deen, Presiding Judge.

Ronald Bramblett brought an action against Jim Bass alleging fraud and breach of contract. At the close of Bramblett’s evidence the court directed a verdict in favor of Bass, finding that the relationship between the parties was that of employee/employer and that the relationship was terminable at will.

1. “If 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.

Appellant contends that the court below erred in directing a verdict because the evidence showed that Bass breached their contract. The evidence showed that Bramblett approached Bass at Carpet City, his place of business, seeking a position as a carpet salesman. Bass had no openings, and the men got into a discussion about an empty room on one side of the building which housed Bass’ carpet business. Bramblett told Bass that he thought that this space was the ideal location for a video store. After some negotiations, the parties reached an agreement as to how such a business would be conducted, and Bramblett made notes as to the terms of their agreement. It was agreed that Bass would put up the money to start the business, to be known as Carpet City Video, and he would own the business in its entirety. Bass further agreed to advance Bramblett $150 per week until the business started turning a profit. After that time, the profits would be split 75/25 in favor of Bass until he recovered his investment. Thereafter, they would be split 50/50. Bramblett was to be responsible for running the business and the utilities, rent, phone, and insurance were to be shared by Carpet City and Carpet City Video on a pro rata basis. The agreement was not signed by the parties.

Bass invested $32,000 of his savings to start up the business, and Bramblett set up the store and began running it with the help of a clerk he hired. He was paid $150 per week as promised. Bass fired Bramblett two weeks after the store opened, and there were no profits during that period.

There was no evidence that Bass breached his contract with Bramblett. All the evidence showed that Bass was the owner of the business and Bramblett was an employee whose employment was terminable at will. Bramblett’s only complaint seems to be that he was not allowed to run the business in its entirety, as called for in Bass’ notes. The parties do not dispute that Bass’ notes constituted their entire agreement and that they are silent as to the duration of the agreement. Appellant admitted that the agreement had no termination date and that either party could leave or withdraw from the agreement at any time. There is no merit in this enumeration of error.

Decided October 24, 1988.

Robert M. Goldberg, E. LaVance Adams, for appellant.

2. Appellant also claims that Bass committed a fraud on him by representing that they would be partners in the business and that he would receive a share of the profits. He further claims that he was discharged when it appeared that the business would be successful. Bramblett claims that in reliance on Bass’ representations he worked hard and put in long hours to make the business a success.

The five essential elements required to prove fraud are: a false representation made by the defendant, scienter, an intention to induce the plaintiff to act or refrain from acting in reliance upon the defendant’s representation, justifiable reliance by the plaintiff, and damage to the plaintiff as a proximate result of the representation. Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 498 (277 SE2d 785) (1981).

While appellee did represent that appellant would share in the profits of the business, Bass was to be the sole owner, appellant’s compensation was set at $150 per week until the business showed a profit, and thereafter appellant was to share in the profits. Bramblett did not prove any of the five essential elements of fraud.

3. The trial court did not err in sustaining appellee’s objection to the testimony of a witness who helped Bass start a game room in another portion of the building and was later fired. Bramblett sought to introduce this testimony for a variety of reasons, but did not proffer any showing of fraud or deceit in Bass’ dealings with the witness.

“ Tn a controversy between two persons regarding a given subject-matter, evidence as to what occurred between one of them and a third person with reference to a similar, though entirely distinct, transaction, is irrelevant.’ Merchants Nat. Bank of Rome v. Greenwood, 113 Ga. 306 (38 SE 826).” Dennis v. Dennis, 227 Ga. 164, 166 (179 SE2d 238) (1971). Under OCGA § 24-2-2, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”

Bass’ dealings with the witness, which occurred several months after he fired Bramblett, did not involve fraud and could not be introduced in an effort to prove that he defrauded the appellant.

Judgment affirmed.

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

Harlan M. Starr, for appellee.


text:
    77653.
    SEXTON v. THE STATE.
    (374 SE2d 824)
   Deen, Presiding Judge.

The appellant, Tony Sexton, was convicted of aggravated child molestation of his five-year-old daughter. We affirm the conviction.

Several times over the course of the 1984-85 school year, the victim’s kindergarten teacher noticed an odor of semen about the victim, who frequently complained that she was dirty and needed to go wash herself. Because of cumulative concerns about the child, the teacher eventually informed a deputy with the Murray County Sheriff’s Department. An investigation ensued, following which both the appellant and his wife were arrested.

At trial, the child victim testified about three separate occasions where the appellant had intercourse with her and had placed his penis in her mouth. A physician who examined the child found no hymenal tissue, and a stricture, or narrowing caused by trauma, of the child’s vaginal tissue which was consistent with having intercourse at that age. The appellant’s wife also testified on behalf of the State, and in exchange for such testimony, the charges against her were nolle prossed. Held:

1. The appellant contends that the trial court erred in allowing the appellant’s wife to testify, because the State did not include her name on the list of witnesses. Conceding that no written demand for a list of witnesses was ever made, the appellant nevertheless asserts that nothing in OCGA § 17-7-110 or the applicable case law requires that a demand for a list of witnesses be in writing. This court, however, has held otherwise. Jackson v. State, 166 Ga. App. 252 (305 SE2d 4) (1983); Burns v. State, 147 Ga. App. 429 (249 SE2d 145) (1978). As there was no written demand for a list of witnesses, there was no error in allowing the appellant’s wife to testify.

2. The day after the jury was impanelled, counsel for the appellant orally objected to the jury list having been “rearranged” so that potential jurors who had not yet served on a jury would be more likely to be selected than potential jurors who had already served. Under OCGA § 15-12-162, a challenge to the jury array must be in writing. Smith v. State, 151 Ga. App. 697 (261 SE2d 439) (1979). The requisite written challenge not having been filed, we do not consider this issue on appeal.

3. The appellant also contends that the trial court erred in allowing the jury to rehear the testimony of the victim and the appellant. “ ‘Whether or not to grant the jury’s request to rehear portions of the evidence is within the discretion of the trial judge. [Cits.]’ Morris v. State, 254 Ga. 273 (2) (328 SE2d 547) (1985). On appeal, the burden is on appellant to show that ‘special circumstances which might work an injustice’ were present, making the trial court’s decision to replay the testimony an abuse of discretion. [Cit.]” Lumpkin v. State, 182 Ga. App. 505, 506 (356 SE2d 238) (1987). The fact that. the jury reheard the entire testimony of the victim and the appellant ' did not constitute a special circumstance that might work an injustice in this case.

Decided October 24, 1988.

S. Fenn Little, Jr., for appellant.

Jack O. Partain III, District Attorney, Kermit D. McManus, Assistant District Attorney, for appellee.

4. The evidence was sufficient to authorize a rational trier of fact to find the appellant guilty of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Beasley, Judge.

text:
    76851.
    S & S MACHINERY COMPANY v. INTERMAR STEAMSHIP CORPORATION et al.
    (374 SE2d 767)
   Beasley, Judge.

This appeal involves the “Carriage of Goods by Sea Act” (COGSA) 46 USCA § 1300 et seq. It arose out of an incident in which plaintiff S & S Machinery’s drilling machine was damaged while being off-loaded onto a dock by defendant Smith & Kelly, performing as"r a stevedore. Defendant Intermar, a non-vessel-owning common carrier, had contracted with S & S for transportation of the machine, which was separated into four packages for shipping.

Intermar issued a bill of lading to S & S and transportation was arranged on a vessel owned or operated by U. S. Lines, a water carrier. U. S. Lines also issued a bill of lading to Intermar. Both bills of lading contained the $500 per package limitation of carrier’s liability provided for in 46 USCA § 1304 (5).

The bill of lading issued by U. S. Lines had a “Himalaya” clause which made specific reference to stevedores while the one issued by Intermar did not. “Himalaya” clauses are the contractual means by which the carrier’s agents and independent contractors performing the services necessary to accomplish the shipping are provided with the protection of the COGSA $500 package limitation. See Brown & Root v. M/V Peisander, 648 F2d 415, 417 (5th Cir. 1981), which contains a history of the Himalaya clause.

Decided October 4, 1988 —

Rehearing denied October 25, 1988

Fred S. Clark, for appellant.

Lamar C. Walter, Edward T. Brannan, Mason White, for appellees.

After an action was brought against them for damages, both Intermar and Smith & Kelly filed motions for partial summary judgment contending that their liability to S & S, if any, should be limited to $500 per package. The principal issues on the trial level and on appeal are whether Intermar comes within the definition of a “carrier” under USCA § 46-1301 so as to fall within COGSA’s protection and whether Smith & Kelly was included within the terminology of the Himalaya clause found in the Intermar bill of lading. The trial court found in favor of both defendants but specifically excluded consideration of the U. S. Lines bill of lading and relied upon that of Intermar, which contained no specific reference to stevedores.

The trial court’s orders adequately explain the reasons for the decisions. See Court of Appeals Rule 36 (3). They are adopted with the addition of the following citations: as to carriers — Insurance Co. of North America u. S/S American Argosy, 732 F2d 299, 301 (2nd Cir. 1984), and Nitram v. Cretan Life, 599 F2d 1359, 1370 (5th Cir. 1979); as to those included within the framework of Himalaya clauses — Secrest Machine Corp. v. S. S. Tiber, 450 F2d 285 (5th Cir. 1971), Tessler Bros. v. Italpacific, 494 F2d 438 (9th Cir. 1974), and Generali v. D’Amico, 766 F2d 485 (11th Cir. 1985).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    76484.
    CONEJO v. THE STATE.
    (374 SE2d 826)
   McMurray, Presiding Judge.

Defendant, Mayolo Conejo, was indicted for the sexual exploitation of children (Counts 1 and 2) and for child molestation (Count 3). The indictment charged that defendant, together with a co-defendant, induced two children, A. C. (a nine-year-old girl), and G. S. (an eight-year-old girl), to engage in sexually explicit conduct by causing each of them “to remove her clothes and display her genitals in a lewd manner so that Mayolo Conejo and [co-defendant] could produce a photograph of [the child’s] genitals ...” The indictment also charged, in a third count, that defendant “did an immoral and indecent act to [A. C.], a child under fourteen years of age, with intent to arouse and satisfy the sexual desires of said accused; said acts being that Mayolo Conejo tried to place his finger in the vagina of [A. C.]

Defendant was tried together with his co-defendant. The jury found the co-defendant guilty upon each count of sexual exploitation of children. With regard to these counts, defendant was found guilty of “the lesser included offense of knowingly possessing or controlling any material which depicts a minor engaged in any sexually explicit conduct.” With regard to the child molestation charge, defendant was found guilty of “the lesser included offense of Simple Battery.”

Defendant was sentenced to serve 12 months for the simple battery conviction. He received two twelve-months probated sentences for the other convictions. The probated sentences were to run consecutively to each other and to the 12-months-to-serve sentence.

Defendant appeals and enumerates four errors. Held:

1. In his first enumeration of error, defendant contends the trial court erred in ruling that G. S., an eight-year-old child, was competent to testify. This enumeration is without merit.

“The competency of a child as a witness is within the sound discretion of the court and its ruling will not be disturbed unless there is a manifest abuse of discretion.” Adams v. State, 166 Ga. App. 807 (305 SE2d 651). Upon questioning before the trial judge, the child indicated it was wrong to tell a lie, that she would be punished if she did so and that she promised to tell the truth and only the truth. In view of her statements before the trial judge, and the trial judge’s opportunity to observe her demeanor, we find no manifest abuse of discretion. Adams v. State, supra; Williams v. State, 173 Ga. App. 523 (1) (327 SE2d 526).

“ ‘While on the cold record the testimony of the [child] does not inspire confidence, we are unable to see the child as did the trial court and we are unable to evaluate the child’s demeanor or candor. We will not substitute our judgment for that of the trial court nor do we find a manifest abuse of discretion.’ [Cit.]” Adams v. State, 166 Ga. App. 807, 808, supra. Any inconsistency in the child’s testimony went to her credibility, not her competency. Pendergrass v. State, 168 Ga. App. 190 (308 SE2d 585).

2. Defendant urges us to reverse the convictions for possession of material depicting a minor engaged in sexually explicit conduct on the general grounds. The evidence adduced at trial shows the following:

Three girls, G. C., age 12, A. C., age 9, and G. S., age 8, went to an apartment shared by defendant and his co-defendant to “take pictures.” While defendant was vacuuming the apartment, the girls went to a bedroom with the co-defendant. There, the co-defendant took two pictures of G. C. Defendant was not in the room at that time.

The co-defendant told A. C. and G. S. to take off their clothes. When they did so, the co-defendant took a picture of them.

Defendant entered the room while A. C. and G. S. were being photographed. He did not participate in the “photo session.” Rather, he continued to clean the apartment.

When A. C. and G. S. emerged from the bedroom, they entered the living room where defendant instructed A. C. to sit on his lap. (At this point, the girls were fully clothed.) A. C. sat on defendant’s lap and he placed his hand between her legs. He told G. S. that she was too young to be touched in that manner.

A. C. asked G. S. to “help me . . . [g]ive me your hand.” G. S. did so and the two girls left the apartment. They went to see G. S.’s aunt and told her what happened. Shortly thereafter, the police arrived. Following an investigation, defendant and his co-defendant were arrested.

OCGA § 16-12-100 (b) (8) provides: “It is unlawful for any person knowingly to possess or control any material which depicts a minor engaged in any sexually explicit conduct.” The violation of this subsection constitutes a misdemeanor. OCGA § 16-12-100 (g) (2).

In our view, the evidence was insufficient to authorize any rational trier of fact to find defendant guilty of possessing or controlling material which depicts a minor engaged in sexually explicit conduct beyond a reasonable doubt. There was no evidence whatsoever that defendant knowingly possessed or controlled the picture which the co-defendant took of A. C. and G. S. Moreover, the evidence fails to show that defendant intentionally aided or abetted his co-defendant in the taking of the picture or that he intentionally advised or encouraged him to do so. See OCGA § 16-2-20.

The evidence simply shows that defendant entered the room when the picture of A. C. and G. S. was being taken. This evidence is not enough to warrant a conviction under OCGA § 16-12-100 (b) (8). Parker v. State, 155 Ga. App. 617 (2) (271 SE2d 871).

“We held in Speights v. State, 163 Ga. App. 738, 740 (294 SE2d 650) (1982): ‘if the evidence supports a verdict of guilty in the more serious offense, and if there is slight evidence of the lesser included offense, a defendant who requests a charge on and is convicted of the lesser offense may not successfully urge the general grounds on appeal.’ See also State v. Clay, 249 Ga. 250, 251 (290 SE2d 84) (1982).” Neal v. State, 182 Ga. App. 325 (355 SE2d 469). Pointing out that defendant was charged with inducing a minor to engage in sexually explicit conduct (OCGA § 16-12-100 (b) (1) and that he himself requested the charge on the lesser offense, the State argues that defendant cannot now urge the general grounds successfully. Neal v. State, supra. We disagree.

Decided October 25, 1988.

John O. Ellis, Jr., for appellant.

Robert E. Wilson, District Attorney, J. Thomas Morgan III, Michael McDaniel, Nelly Withers, Assistant District Attorneys, for appellee.

Assuming there is slight evidence of the lesser offense, it is clear that the evidence does not support a verdict of guilty with regard to the more serious offense. It cannot be said that the evidence is sufficient to enable any rational trier of fact to find that defendant induced A. C. and G. S. to engage in sexually explicit conduct beyond a reasonable doubt. See OCGA § 16-12-100 (b) (1).

In sum, the evidence is insufficient to establish that defendant knowingly possessed or controlled material depicting a minor engaged in sexually explicit conduct. Accordingly, defendant’s convictions and sentences upon these charges (Counts 1 and 2) must be reversed.

3. The evidence was sufficient to authorize any rational trier of fact to find defendant guilty of simple battery beyond a reasonable doubt in that defendant intentionally made physical contact of an insulting nature with A. C. when he touched her between the legs. See OCGA § 16-5-23; Manus v. State, 180 Ga. App. 658, 660 (4) (350 SE2d 41). Defendant’s third enumeration of error is without merit.

4. In view of our ruling in Division 2, defendant’s fourth enumeration of error is moot.

Judgment affirmed as to conviction and sentence for simple battery; and reversed as to convictions and sentences on Counts 1 and 2.


text:
    76806.
    WELTON v. GEORGIA POWER COMPANY.
    (375 SE2d 108)
   Beasley, Judge.

Welton appeals the grant of summary judgment to defendant Georgia Power Company in his suit to recover damages for false imprisonment, slander, and emotional distress when alleged agents of the company, Merritt and Hartley, caused him to be detained as a robbery suspect. The determination below and the argument on appeal focus solely on the false imprisonment claims.

Merritt, a City of Atlanta police officer, worked part-time for Georgia Power doing general security work. Hartley was a senior security investigator for the company. The trial court granted summary and final judgment to Georgia Power, having concluded as a matter of law that Welton was acting pursuant to his authority as a police officer and was not at the time of or for the purpose of the detention acting within the scope of his duties for Georgia Power, and that Hartley did not “actively instigate or procure” Welton’s detention, citing Baggett v. Nat. Bank & Trust Co., 174 Ga. App. 346 (330 SE2d 108) (1985).

Construing the evidence in favor of Welton, the circumstances giving rise to the suit were the following: Welton, a financial and marketing consultant, accompanied a client to a branch of the C & S National Bank located in the Georgia Power Building. Welton waited outside while the client transacted her business, shortly after eleven o’clock in the morning. Welton noticed Hartley who was standing with the uniformed Merritt, pointing in his direction.

Merritt was aware that in the past several months there had been robberies of three Georgia Power Company offices, a C & S National Bank, and other businesses by a man whose description and dress fit those of Welton. The robberies had taken place around noon in crowded areas near a MARTA station.

Merritt had seen photographs of the robbery suspect and Welton appeared to be identical. Hartley agreed. Merritt asked Hartley if he had photographs of the suspect, and Hartley went to his car to get them.

Welton’s client returned outside and departed, and Welton started walking south on Peachtree Street. Merritt decided to follow him. Welton had taken twenty or twenty-five steps towards a MARTA station when Merritt walked in front of Welton and said he wanted to speak with him. Welton cooperated and they went over to the side. Merritt asked Welton for some identification. He produced an out-of-state driver’s license and offered additional identification. Merritt said that was not necessary and asked Welton about his residency and his business downtown. Welton asked Merritt why he had been stopped and Merritt answered that he was looking for someone downtown that looked like Welton. Merritt decided to let Welton go and Welton resumed his walk.

Shortly thereafter, Hartley brought Merritt the photographs and Merritt decided that Welton was the suspect and that he was going to stop him again. As Welton was about to enter the MARTA station, he heard his name called out. He turned around and saw Merritt and Hartley. Merritt told Welton that he had to detain him and take his portfolio, which they did. Hartley produced a photograph and told Welton to “take a look at yourself.” Though Welton said he could see a likeness, he stated that it was not a picture of himself. Hartley continued to question Welton. Welton asked Hartley who he was, and Hartley stated he was an investigator. He denied that he worked for Georgia Power. Welton assumed he was a detective with the Atlanta Police Department.

Merritt told Welton that he had to call the robbery squad and have the detective come to speak to Welton. Merritt radioed the Atlanta Police Department to request that Hall, the robberies detective, come to the scene.

Hall arrived and Hartley showed him the picture. Hall asked Welton for identification and questioned him about any arrest record. Hall told Welton he would have to come to the police station. Hartley indicated that he would meet them there, that he was “going to get my witness.” Hall and Merritt searched Welton, put him in the car, and took him to the station. On the way, Hall explained to Welton about the robberies and the positive identification from the photo.

At the station, Hall photographed Welton and several other men in the building to show to the witness from Georgia Power who had been brought to the station by Hartley. The witness stated that the person she saw was much shorter than Welton. Hall apologized to Welton and told him he was free to go.

As Welton was leaving, he heard Hartley say to Hall, “But you didn’t take the picture with his sunglasses on.” Hall responded, “We have to let this go now. This is finished.”

1. Appellant contends that the fact that Merritt was an off-duty police officer when the “false imprisonment” occurred does not preclude recovery from Georgia Power because at the time Merritt was acting as an agent and employee of the company, providing security for it. It urges that Georgia Power’s contention that Merritt was an independent contractor must fail.

Appellant relies on Colonial Stores v. Holt, 118 Ga. App. 826 (166 SE2d 30) (1968). While the case is not binding as precedent, the principles stated are sound: “ ‘[a] servant may also be a special officer of the law, and the latter fact does not relieve the master from liability for his acts within the scope of his authority as servant. If he commits a tort in the discharge of duties owing to the master, the latter will be liable for his servant’s tort. If the servant commits a tort as a police officer, the master will not be liable, unless it was done at his direction.’ [Cit.] However, even if a police officer was on duty with the city when the alleged tort occurred, it will not preclude a recovery if at the time he could have been acting as agent for and in behalf of his off-duty employer who is sought to be held liable. [Cit.]” Id. at 828 (1).

The question of Georgia Power’s liability via Merritt “comes down to one of looking into the capacity in which [Merritt] was acting when the alleged tort occurred.” Id. at 828-829 (2). See also Melton v. LaCalamito, 158 Ga. App. 820, 821 (1) (282 SE2d 393) (1981).

Merritt averred in affidavit that he was on duty as a police officer twenty-four hours a day and was at all times vested with the authority to make arrests by the City of Atlanta; he had no authority to make arrests on behalf of Georgia Power; his job with Georgia Power did not involve investigating offenses against the company or assisting in apprehending suspected criminals but rather to afford security to company employees, primarily going to and from parking areas to the company offices; he was never granted any authority by Georgia Power to detain or arrest Welton but did it pursuant to his duty and authority as an Atlanta policeman.

The averments regarding Merritt’s capacity at the time of Welton’s detainment were echoed in Merritt’s deposition testimony and were not contradicted by the shown circumstances construed favorably for Welton. Merritt successfully pierced the allegations that he was acting within his security capacity for Georgia Power during the incident. This situation contrasts with that in Colonial Stores, supra. There the defendant police officer’s security duties for the company included assisting another security officer in apprehending any employee attempting to take merchandise out of the warehouse.

2. Appellant also contends that Georgia Power is liable because there was evidence that Merritt acted under Hartley’s direction and control. He argues that Hartley fully participated in the “false imprisonment” by instigating, aiding in physical detention, conducting an independent interrogation, conferring with the police, providing a witness, and conferring with the witness at police headquarters.

“ ‘The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution (Cit.); in the latter case there is not. [Cit.]’ [Cit.] . . . “If the defendant . . . merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer’s decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable.” ’ [Cits.]” Baggett, supra at 347 (1).

Merritt’s affidavit stated: at no time did Hartley or any other employee of Georgia Power direct or request him to detain or arrest Welton or suggest his detention or try to persuade him to detain Welton; all that Hartley did was to furnish at Merritt’s request the suspect’s photographs; it was Merritt’s decision alone to detain Welton and to call Detective Hall; it was Hall’s decision alone to take Welton to the police station.

Decided October 25, 1988.

Osgood A. Williams, Irwin M. Ellerin, for appellant.

Robert L. Pennington, Thomas C. Taylor, Douglas D. Salyers, for appellee.

Appellant argues that certain of the circumstances as he portrays them at least raise a jury question as to Hartley’s active instigation or procuring of the detainment, such as that Hartley pointed him out to Merritt. In the absence of evidence of bad faith, there is no liability for reporting facts to a law enforcement officer. Id. Hartley’s questioning of Welton and showing him a photograph of the robbery suspect did not instigate, procure, or even prolong the detention inasmuch as the decision to call in the detective had already been made. Nor does the evidence support the contention that Hartley’s conversation with Hall furthered the detention. Likewise, Hartley’s transporting of the witness to the station or any alleged conversation with her did not render Hartley the procurer or instigator of Welton’s mishap. Lastly, Hartley’s alleged parting comments to Hall did not prolong the detention or show that Hartley had been the prime mover.

The trial court properly granted Georgia Power Company judgment as a matter of law on the bases urged.

Judgment affirmed.

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