author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A92A2079.
    JACKSON v. THE STATE.
    (430 SE2d 781)
   Andrews, Judge.

Sylvia Jackson brings this interlocutory appeal from the trial court’s denial of her motions to dismiss the indictment and to suppress evidence. The indictment charges Jackson with possession of cocaine in violation of OCGA § 16-13-30 (a). The trial court refused to suppress evidence supporting the State’s case that a blood specimen of her stillborn fetus tested positive for a metabolite of cocaine.

Jackson, who was 24 weeks pregnant, was attacked by her boyfriend. She was struck repeatedly in the face and stomach by her assailant, who knew she was pregnant, and told her that he was going “to make her lose it” Two days later she experienced heavy vaginal bleeding and went to the hospital emergency room. She was “found to have no fetal heart tones and fetal demise.” She related the beating to attending physicians and was admitted for further evaluation. The following day she delivered a stillborn fetus. The next day she was presented with and signed a form authorizing the hospital to dispose of the fetus rather than release it to a mortuary. On a different form, she was asked: “Would you like an autopsy done on the deceased?” She responded “no.”

The coroner notified the medical examiner of the death and authorized an autopsy for the reason that the stillbirth occurred several days after a reported beating of the mother, which was detailed in a police investigative report. The autopsy was performed “under the provisions of The Georgia Death Investigation Act” and it was concluded from the physical examination of the body that the cause of death was stillbirth. The medical examiner ordered laboratory procedures, submitting to the laboratory the body’s liver for toxicology and blood for toxicology and possible typing, pursuant to ascertaining the cause of death. The report of the forensic chemist and the chief toxicologist of the Division of Forensic Sciences of the GBI included the conclusion that the blood specimen was positive for a cocaine metabolite.

Based at least in part upon the evidence of cocaine found in the blood test performed on the stillborn fetus, the grand jury returned an indictment against Jackson, charging that “[she] did possess and have under her control, cocaine.”

1. It was not error to refuse to dismiss the indictment, regardless of whether or not the evidence should have been suppressed.

Assuming that the evidence was correctly not suppressed, Jackson contends that she cannot be convicted of possession of cocaine, which possession is based on evidence of a cocaine metabolite having been found in her stillborn fetus’ blood following an autopsy purportedly authorized by the Georgia Death Investigation Act and brought about when defendant was seeking maternal health care.

Her first argument is that this tenuous circumstantial evidence, found not even in her own body, could not constitute “possession” by her, citing Green v. State, 260 Ga. 625 (398 SE2d 360) (1990). That is to say, the evidence is insufficient. Her second argument is that the evidence here does not establish criminal “possession” by her, as contemplated by the General Assembly in OCGA § 16-13-30 (a).

The problem with these arguments is twofold. Number one, the indictment does not charge that she possessed cocaine by virtue of its metabolite’s presence in the blood of a stillborn fetus delivered of her. It merely charges her with possession of cocaine. The motion to dismiss is essentially a general demurrer, which “challenges the very validity of the indictment.” State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). The legal sufficiency of the pleading, not the evidence, is the issue. Id. The latter will not be inquired into. Buchanan v. State, 215 Ga. 791, 793 (113 SE2d 609) (1960); Brown v. State, 121 Ga. App. 228 (173 SE2d 470) (1970).

“The true test of the sufficiency of an indictment... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.” State v. Eubanks, supra at 485. Obviously, if defendant admits that she possessed cocaine at any time within the period alleged, she would be guilty of the crime.

Secondly, defendant is attempting to use the motion to dismiss as though it were a motion for summary judgment, which does not exist in criminal procedure because, for one thing, the parties cannot be compelled to reveal the evidence on which their positions are based. If by defendant’s argument she means that the grand jury could not have indicted her based on this evidence, the record does not disclose what was presented to the grand jury. Even assuming the fetus’ blood metabolite evidence was illegal, the burden is on a defendant seeking to quash an indictment to overcome the presumption that it was returned on legal evidence by showing that there was no other competent evidence upon which it could lawfully have been returned. Meriwether v. State, 63 Ga. App. 667 (11 SE2d 816) (1940); see also Brown v. State, supra.

2. As to Jackson’s claim that the blood test results from the stillborn fetus should have been suppressed, the state correctly asserts that no search warrant or consent from Jackson was required for the medical examiner to conduct the autopsy and blood test on the stillborn fetus. “[T]here is no constitutionally protected right in a decedent’s body. Rather, the courts have evolved the concept of quasi property in recognition of the interests of surviving relatives in the possession and control of decedents’ bodies. We do not find this common law concept to be of constitutional dimension.” (Emphasis in original.) Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 61 (335 SE2d 127) (1985). Jackson’s quasi-property interest in the stillborn fetus will not support a privacy claim sufficient to implicate the search and seizure provisions of the United States Constitution. A search within the meaning of the Fourth Amendment occurs when a reasonable expectation of privacy has been infringed by state action. Thomas v. State, 203 Ga. App. 529, 531 (417 SE2d 353) (1992). “The principal purpose of these constitutional provisions is to protect privacy not property interests. Warden v. Hayden, 387 U. S. 294 (87 SC 1642, 18 LE2d 782) (1967).” Lowe v. State, 203 Ga. App. 277, 280 (416 SE2d 750) (1992).

Moreover, in light of Jackson’s report that she had been severely beaten prior to the stillbirth, the state had a compelling interest in investigating the cause of death. See OCGA § 16-5-80 (offense of feticide). Under the Georgia Death Investigation Act (OCGA § 45-16-20 et seq.) “[w]hen any person dies in any county in this state ... [a]s a result of violence ... it shall be the duty of any law enforcement officer or other person having knowledge of such death to notify immediately the coroner or county medical examiner. ... A coroner or county medical examiner who is notified of [such death] shall order a medical examiner’s inquiry of that death.” OCGA § 45-16-24 (a) (1), (b). A medical examiner’s inquiry is an investigation into the circumstances surrounding such death, and may include an autopsy and other tests and examinations to determine the cause of death. OCGA §§ 45-16-21 (1), (10); 45-16-22 (c); 45-16-25 (c). The blood testing was done as part of the autopsy performed on the stillborn fetus to determine the cause of death. There is no evidence that the death investigation, autopsy, or testing pursuant thereto was a subterfuge to investigate Jackson for possession of cocaine.

Citing State v. Luster, 204 Ga. App. 156, 157 (419 SE2d 32) (1992), Jackson contends that the Death Investigation Act does not apply because it refers to the death of a “person” rather than a fetus. Luster, supra, Division 1 (physical precedent) held that “the word ‘person’ in a criminal statute may not be construed to include a fetus unless the legislature has expressly included it, since at common law a fetus was not considered a person.” This principle has no application here for two reasons. First, the Death Investigation Act is civil not criminal legislation, and an unborn fetus has been included within the definition of “person” in various types of civil actions. See Billingsley v. State, 183 Ga. App. 850, 851 (360 SE2d 451) (1987). Secondly, the Act was applied here to authorize the autopsy and blood test on the body of a stillborn fetus. Obviously, the Legislature intended for the Act to apply to a stillborn fetus to enable the state to fully investigate the cause of death, especially in cases which may result in a prosecution for feticide. An unborn fetus when stillborn becomes a deceased person within the meaning of the Death Investigation Act.

Assuming, without deciding, that Jackson had a privacy interest in the body of the stillborn fetus sufficient to invoke Fourth Amendment search and seizure protections, this would provide no basis to suppress the blood test results. The exclusionary rule used to suppress evidence seized in illegal search and seizures applies only to Fourth Amendment violations involving law enforcement officers. State v. Young, 234 Ga. 488, 489 (216 SE2d 586) (1975). The autopsy and testing done on the fetus, although performed at the state crime lab, was part of the medical examiner’s investigation under the Death Investigation Act. “[Although a coroner’s inquest [or a medical examiner’s investigation] may uncover facts that lead to the prosecution of a person for homicide, OCGA § 45-16-35, a coroner [or medical examiner] has no law enforcement authority such as that given to the Georgia Bureau of Investigation, see OCGA §§ 35-3-4 (b) and 35-3-8, and the Georgia State Patrol, see OCGA §§ 35-2-32 and 35-2-33. In this regard, the verdict of a corner’s inquest [or the result of a medical examiner’s investigation] is merely advisory to officers charged with the execution of public laws.” Kilgore v. R. W. Page Corp., 261 Ga. 410, 411-412 (405 SE2d 655) (1991) (concluding a coroner is not a law enforcement agency for purposes of the Open Meetings Act). Although medical examiners are state officers, whose actions may bring the Fourth Amendment into play where a privacy interest is involved, they are not law enforcement officers to whom the exclusionary rule is applied. See Young, supra at 494. In any event, in conducting the autopsy and testing, the medical examiner acted in good faith to carry out duties imposed under the Death Investigation Act to investigate the report of a violent death. Such action taken in reasonable compliance with the Death Investigation Act is a justifiable official intrusion, which does not unreasonably infringe upon any constitutionally protected privacy interest. See Young, supra at 494-496.

Moreover, there is no reason to apply the exclusionary rule merely because any law enforcement officer became aware of the blood test results produced in the course of the medical examiner’s investigation. The testing was done at the crime lab as part of the investigation undertaken by the medical examiner based on reports that the fetus may have suffered a violent death. As previously noted, there is no indication that the death investigation and testing was a subterfuge to investigate Jackson for possession of cocaine. Law enforcement officials, who are doing their job in a place where they are entitled to be, are not required to ignore evidence of a criminal offense which appears in the course of their lawful activity. There was no Fourth Amendment violation, since any law enforcement officer, who became aware of the blood test results under these circumstances, was authorized to seize this evidence under the “plain view” doctrine. See Merriman v. State, 201 Ga. App. 817, 819 (412 SE2d 598) (1991).

The evidence sought to be excluded was found during an autopsy and accompanying blood test authorized under the Death Investigation Act. There is no reason to exclude this evidence, and the trial court properly denied the motion to suppress.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Johnson and Blackburn, JJ., concur. Beasley, P. J., concurring in part and dissenting in part.

Beasley, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to the admissibility of the test results of the fetus’ blood. This evidence, considered in Division 2 of the majority opinion, should have been suppressed. I concur in Division 1.

Defendant advances several arguments against admissibility: the autopsy and subsequent blood testing were not authorized by her and thus were subject to the requirement of a search warrant on Fourth Amendment and state constitutional grounds; the Georgia Death Investigation Act did not authorize the procedure because the stillborn fetus, which weighed two pounds eight ounces and was described in the medical report as nonviable, was not a “person” within the meaning of OCGA § 45-16-24 (a).

1. I assume, for the purposes of this case, but do not decide, that the Act embraced “fetus” within the term “person” for purposes of death investigation under the Act. However, this assumption is problematic because of two indicators that it does not cover fetuses.

First, the word “person” is used, and that generally is understood in the law not to include unborn children, except for certain specified purposes. Billingsley v. State, 183 Ga. App. 850 (1) (360 SE2d 451) (1987), lists some of these instances, which are in the civil rather than in the criminal realm. Billingsley held that an unborn child was not a “person” in the criminal law of Georgia and thus could not be the victim of vehicular homicide under OCGA § 40-6-395.

The Death Investigation Act is not a criminal statute per se, although one of its purposes, and the purpose for which .it was used here, is to aid in the enforcement of penal laws. It would not be subject to the rule that “criminal statutes must be strictly construed against the state and liberally in favor of human liberty.” Knight v. State, 243 Ga. 770, 775 (2) (257 SE2d 182) (1979). The Act, however, was in derogation of the common law. “[A] statute ... in derogation of the common law . . . must be strictly construed.” Oviedo v. Connecticut Nat. Bank, 194 Ga. App. 626 (391 SE2d 417) (1990).

OCGA § 45-16-24 was rewritten in 1990, after the adoption of the criminal feticide statute in 1982. Ga. L. 1982, p. 2499, § 1; OCGA § 16-5-80. No accommodation was made for coverage of fetuses by indication of an intention to include them within the word “person” or by specific reference.

The purpose of such investigation would be to determine whether the crime of feticide had been committed. The feticide statute does not view the covered fetus, that is, a “quick” fetus, as a “person” but rather as an “unborn child.” Killing it is not homicide, which it would be if the fetus were regarded as a person. The authority for autopsy to aid in investigation of feticide should be coextensive with, and not broader than, the crime which purposes the autopsy. That is, if the criminal statute which gives rise to the need for autopsy does not regard the unborn child as a person, neither should the statute which enables the gathering of evidence to support its prosecution.

Secondly, the Act in three places indicates that the legislature contemplated that only the bodies of born persons would be subject to autopsy under it. In OCGA § 45-16-24 (a) (5), investigative autopsies are authorized when any person dies “In any suspicious or unusual manner, with particular attention to those persons 16 years of age and under.” Here would have been a natural place to include fetuses, because the young were being emphasized. Subsection (a) (6) covers any person who dies “After birth but before seven years of age if the death is unexpected or unexplained.” Here, it is exclusively the young who are being focused upon, and fetuses, or unborn children, are clearly excluded. The third place is in OCGA § 45-16-27.1, which again refers to the very young and covers only “any person after birth but before 7 years of age.” The words “after birth” must be taken as deliberately excluding “before birth,” for that is their plain meaning. “The courts must look to the purpose and intent of the legislature and construe law to implement that intent.” Wilson v. Board of Regents, 246 Ga. 649, 650 (272 SE2d 496) (1980).

2. Nevertheless, even if the rules of statutory construction allow a broadening of the word “person” in the Death Investigation Act to include “fetus” or even “quick fetus” (the latter being the only type subject to the crime of feticide), the search for the blood and its seizure violated the Fourth Amendment to the Constitution of the United States.

I note first that although appellant raised the state constitution below in a cursory way, she did not pursue this means of protection, did not separately address it, did not obtain a ruling on it, and has cited no cases or theory bottomed on any authority other than the Fourth Amendment. Thus we are constrained to bypass the state constitution as a source of relief. The statute on motions to suppress was not expressly invoked either. See OCGA § 17-5-30. Nevertheless, it controls the procedure, which puts the burden on the state to prove that the search and seizure was lawful. See subsection (b).

It is clear from the record that the autopsy in this case was undertaken to determine whether there was any evidence in or on the body of the fetus which would support a criminal charge that the mother’s boyfriend had caused its death by the violence he inflicted. She had told the hospital personnel of the attack on her, and the police had interviewed her about it. The autopsy report states that the “Reason for Performing An Examination” was that the fetus was “reportedly stillborn several days after the mother reports to have received a beating.” Note is made that additional details are contained in the police investigative report. The autopsy resulted in the medical examiner’s conclusion that “Cause of Death” was “Stillbirth” and that the “Manner of Death” was “Natural.” Thus the stated purpose of the autopsy was satisfied, and no evidence of trauma as a cause of death was uncovered. The authorization granted by the Death Investigation Act came to an end.

What, then, authorized the medical examiner to proceed further and submit blood to the State Crime Lab “for toxicology and possible typing” and liver “for toxicology?” There is no evidence, nor even any argument advanced, that the intrusion, extraction and testing were done for any authorized medical reason or to determine the cause of death.

The extraction of blood is a “search” and depends antecedently upon “seizure” within the meaning of the Fourth Amendment. Schmerber v. California, 384 U. S. 757, 767 (86 SC 1826, 16 LE2d 908) (1966). In reaching this conclusion, the court wrote: “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. . . . ‘[T]he security of one’s privacy against arbitrary intrusion by the police’ [is] ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ ” Schmerber, supra. “The ensuing chemical analysis of the [blood] sample to obtain physiological data is a further invasion of ... privacy interests.” Skinner v. R. Labor Executives’ Assn., 489 U. S. 602, 616 (109 SC 1402, 103 LE2d 639) (1989).

In this case there was a dead fetus, however, not a live person. The purpose of criminal investigation under OCGA § 45-16-24 having been satisfied, the further aspects of autopsy would have to be “consented to by the person assuming custody of the body for the purposes of burial.” OCGA § 45-16-28. In this case it would be the mother, appellant.

The mother was confronted with two choices with respect to the body, the day after the stillborn delivery. Her interest in it was acknowledged. She could either direct its release to a mortuary or she could instruct the hospital to “dispose of” it. On the Permit for Removal of Body, she expressly provided that the body was not to be a source of organs, and she answered “no” to the question: “Would you like an autopsy done on the deceased?”

This was a body which, unlike any other dead body, had been physically attached to her own and contained within her own until its delivery. Indeed, the state not only recognizes this but also depends upon it to support its charge that presence of the metabolites in the fetus’ body constitutes evidence of possession of the metabolites by the mother. In addition, unlike other physical objects in which appellant had a property interest, it could not be kept, and she had no third alternative as to its custody and control.

When she instructed the medical personnel at the hospital to dispose of the body, it could not have been reasonably understood that such authorization included releasing the body to the State Crime Lab for blood extraction and testing which could reveal whether she had possessed an illicit drug. Disposing of a fetus is one thing; conducting an autopsy and testing its blood is quite another. These consequences of the instruction offered and given would not reasonably have been understood by the average person. This is strengthened by the fact that she was given a choice about autopsy as well as about organ donation, and declined both. Having been given these choices, a reasonable person would expect that if other uses of the body were desired, she would have been given choices regarding them, too.

Nor did her instruction make the hospital her agent, clothed with authority to consent to the blood test portion of the autopsy for criminal investigative purposes, on some theory that the hospital stood in her place under OCGA § 45-16-28 since she chose no burial. This is especially true in light of her choice of no autopsy.

The dead body was “quasi property over which the [mother had] rights which the courts will protect.” Rivers v. Greenwood Cemetery, 194 Ga. 524, 525 (22 SE2d 134) (1942), quoted in Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 61 (335 SE2d 127) (1985). In this case, her rights were greater than would ordinarily exist in the body of a deceased relative, because she allegedly took into her own body and passed a substance through her own body into the searched body. She had an expectation of privacy which would not exist in the body of an independent person. She was not advised, when she instructed the hospital to dispose of the body, that this would open the door to invasions of that body and the withdrawal of its fluids in search of evidence of what she had had in her own body. Thus the testing required her consent (or some other authorization such as a search warrant) because it was only she who had a personal stake in its outcome. Cocaine metabolites in the stillborn’s blood would be, at best, circumstantial evidence of the mother’s possession of cocaine. Even where the substance is found in the urine of the person charged with possession, the evidence is only circumstantial. Green v. State, 260 Ga. 625 (1) (398 SE2d 360) (1990).

This case differs from Georgia Lions Eye Bank, supra, in the material difference that the statute challenged there authorized the medical action taken. Here the statute invoked by the state did not authorize the blood extraction and test, under the circumstances in which it was applied.

The mother’s consent in this case, and what was done pursuant thereto, differ from that in McCoy v. Ga. Baptist Hospital, 167 Ga. App. 495 (306 SE2d 746) (1983). There the parents of the stillborn child authorized the hospital “to dispose of this infant in any manner they deem advisable.” They also expressly “relinquish[ed] all claims on body of said infant.” Id. at 496. Appellant gave no such wholesale “clear and unambiguous” (in the words of McCoy) authorization but instead gave instructions to dispose of the body and to do so without autopsy, indicating the expectation that disposition would be accomplished and completed by the Hospital and it would be done without violating the body. The hospital had a legal duty “to handle the corpse . . . with utmost dignity.” Mayer v. Turner, 142 Ga. App. 63, 64 (234 SE2d 853) (1977).

McCoy also differs materially because it involved a claim for civil liability with respect to how the hospital treated the body in that it kept instead of properly disposing of it, whereas the instant case complains of criminal investigation conducted by an agency other than the one to which the mother gave custody for the express purpose of disposal.

Appellant, by signing the documents referred to above, did not contract away her right to require that, in the absence of a warrant based on probable cause, her consent be obtained before blood was extracted from the body of her stillborn child to determine if it contained an illegal drug for which she could be held criminally liable. Unlike garbage which is left for collection outside the curtilage of a house where it is open to the public, in which there is no Fourth Amendment protected expectation of privacy, see California v. Greenwood, 486 U. S. 35 (108 SC 1625, 100 LE2d 30) (1988), the body of a stillborn fetus which the mother entrusts to the hospital to dispose of carries with it the mother’s expectation of privacy in its being shielded from search without Death Investigation Act authorization, without probable cause, without exigent circumstances, and without her “ ‘freely and voluntarily given’ ” consent, “the product of an essentially free and unrestrained choice by [her].” Beasley v. State, 204 Ga. App. 214, 216 (1) (419 SE2d 92) (1992).

The choice appellant was given cannot reasonably be understood to have included the choice to allow the blood test or not. What might «be regarded as her “consent” for the hospital to dispose of the body did not contain within its scope the search and seizure conducted here; it expanded the parameters of the “consent” and extended it beyond what could reasonably have been understood. A consent is not necessarily wholesale. See Graves v. Beto, 424 F2d 524 (5th Cir. 1970) (blood test); State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989). See also State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).

A subjective expectation of privacy is reasonable if it is one that society is prepared to recognize as objectively reasonable. Greenwood, supra at 39; Rakas v. Illinois, 439 U. S. 128, 143-144 (99 SC 421, 58 LE2d 387) (1978); Skinner, supra at 616-617. If a person has a right to consent or not to a blood test which might yield evidence of driving under the influence of alcohol or drugs, see OCGA § 40-5-55, then surely a mother’s property and privacy interests in the body of her stillborn fetus include the right to consent or not to a test of its blood which might yield evidence of her intake of an illicit drug, which bears much more severe consequences than a conviction for drunk driving. OCGA § 16-13-30.

I therefore conclude that the search and seizure in this case “has infringed an interest. . . which the Fourth Amendment was designed to protect.” Rakas, supra at 140. Its basic tenet is “to protect personal privacy and dignity against unwarranted intrusion by the state.” Winston v. Lee, 470 U. S. 753, 760 (II) (105 SC 1611, 84 LE2d 662) (1985). In Winston, the Court followed the case-by-case approach taken in Schmerber and held that it would violate Lee’s Fourth Amendment rights to compel surgery to remove a bullet which could be evidence of his commission of robbery.

In this case, the extraction and testing of the fetus’ blood were a violation of the right of the mother to be secure in her “person” and “effects, against unreasonable searches and seizures.” U. S. Const., Amend. IV. Because of the nature of the crime charged, i.e., possession of a controlled substance, and the state’s theory of how appellant possessed it, the blood testing was indirectly a testing of appellant’s body and directly a testing of a body in which she had a property interest. It would be illogical to conclude that the mother had no privacy or property interest in the stillborn fetus which encompassed the right to consent or not to a test of its blood, but that the results of that test could constitute evidence of the possession of the blood’s contents by her. The right of privacy encompasses confidentiality — “the individual interest in avoiding disclosure of personal matters” — as well as autonomy, “the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U. S. 589, 599-600 (97 SC 869, 51 LE2d 64) (1977).

Decided March 19, 1993 —

Reconsideration denied April 2, 1993

Michael J. Classens, for appellant.

R. Joseph Martin III, District Attorney, for appellee.

Mary E. Wyckoff, Gerald R. Weber, Elizabeth J. Appley, Richard L. Greene, amici curiae.

The “reasonableness” standard requires “ ‘a careful balancing of governmental and private interests.’ ” Soldal v. Cook County, 506 U. S.__(113 SC 538, 121 LE2d 450, 465) (1992). The government’s interest in extracting and testing the blood hás not even been articulated, except after the fact when what was found was cocaine metabolites. The interests of the appellant, on the other hand, were at least those identified above.

       In Luster a pregnant woman was charged with both possession of cocaine (OCGA § 16-13-30 (a)), and with distributing or delivering cocaine to her unborn child by ingesting it during her pregnancy in violation of OCGA § 16-13-30 (b). We concluded that the distribution and delivery charge under OCGA § 16-13-30 (b) must be dismissed because the statute on its face and legislative intent indicated it did not apply to those facts. The possession charge under OCGA § 16-13-30 (a) remained.

       In Jackson v. State, 841 SW2d 38 (Tex. App. 1992), the conviction of defendant for possession of cocaine, which was reversed, was based on autopsy revelation that her stillborn infant’s liver contained cocaine.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A2138.
    DEPARTMENT OF TRANSPORTATION v. METTS et al.
    (430 SE2d 622)
   Carley, Presiding Judge.

Appellant-Condemnor filed a declaration of taking as to a portion of property owned by appellee-Condemnees. Condemnees filed a timely appeal to the superior court and the issue of just and adequate compensation was tried before a jury. Condemnor appeals from the judgment entered by the trial court on the jury’s verdict.

1. In the trial court and on appeal, Condemnees have placed heavy reliance upon an unreported opinion of this Court. We note at the outset that such reliance is misplaced. The unreported opinion “is lacking in value as precedent and is not binding on lower courts within the meaning of Ga. Const, of 1983, Art. VI, Sec. V, Par. III. . . . ‘No unreported opinion shall be cited as a physical or binding precedent of the Court.’ [Cit.]” Floyd v. First Union Nat. Bank of Ga., 203 Ga. App. 788, 790-791 (1) (417 SE2d 725) (1992).

2. The giving of charges on “uniqueness” is enumerated as error.

Evidence that the property was of sentimental significance to the Condemnees clearly would not support a charge on uniqueness. All property can be said to have sentimental value to one whose family has lived on it. However, “[a] merely aesthetic or sentimental value is not sufficient.” Housing Auth. of the City of Atlanta v. Troncalli, 111 Ga. App. 515, 520 (142 SE2d 93) (1965). “Value to the owner means pecuniary value and not sentimental value. Although the location of the property is a factor in determining its value, the fact that the [CJondemnee lives near [or lived on] the property is not relevant. Unique value is based on the characteristics of the land and the use of the land by the owner, but not the characteristics of the owner. [Cit.]” Taylor v. Jones County, 205 Ga. App. 628, 630 (3) (422 SE2d 890) (1992).

A business had formerly been operated on the property and there was evidence that, considering the property’s location and existing improvements, its highest and best use was for commercial redevelopment. This evidence was certainly “admissible in establishing ‘market value’ of realty, and any decrease [in its suitability for commercial use] following [the partial taking] would be a factor to be assessed by a jury in determining if there was any diminution in the value of the property — hence, to be included in computing consequential damages to the remainder; [but such evidence of the highest and best use of the property is not], as a matter of law,. . . sufficient to authorize a charge on, or a finding of, ‘unique[ness],’ or an existing use value which is ‘peculiar’ to the owner.” Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 354 (3) (299 SE2d 594) (1983).

“ ‘[U] ñique property is simply property which must be valued by something other than the fair market standard’ because there is no general market for such property. [Cit.]” Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 353 (3). Other than the irrelevant sentimental value, “[t]here was no showing . . . that the value to [Condemnees] of the land taken was other than its own intrinsic value for certain purposes.” State Hwy. Dept. v. Hood, 118 Ga. App. 720, 722 (2) (165 SE2d 601) (1968). Obviously, there is a general market for property with potential for commercial development. The market value of such property will be greater or lesser, depending upon the location, availability of similar parcels, and other market factors capable of quantification. “However, ‘(a)s long as there is an ascertainable market value, no consideration need be given to value peculiar to the owner. Sentimental value must be ignored. Condemnation proceedings are in rem and just compensation must be based upon the value of the rights taken, without regard to the personality of the owner or his personal relationship to the property taken. The value of the property for his personal purposes must be disregarded.’ [Cits.]” Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 353 (3). “[A]s a matter of law, there being no evidence of uniqueness or existing use with value peculiar to the [Condemnees], it was error to give a charge permitting computation of damages on a basis other than market value. [Cits.]” Macon-Bibb County Water &c. Auth. v. Reynolds, supra at 355 (3).

3. The trial court erred in failing to sustain an objection to testimony concerning the sentimental value of the property. Such testimony was irrelevant. Taylor v. Jones County, supra.

4. In a partial taking case, evidence as to the cost to cure may be admissible as a factor to be considered in determining the amount of recoverable consequential damages to the remainder. Dept. of Transp. v. Adams, 193 Ga. App. 866, 868 (2) (389 SE2d 343) (1989); State Hwy. Dept. v. Jackson, 100 Ga. App. 704, 706 (4) (112 SE2d 356) (1959). In the instant case, however, the trial court erred in allowing evidence as to the cost to cure at the time of trial rather than the cost to cure at the time of the taking. “The diminution in value of the remainder that is the measure of consequential damages should be measured as of the date of the taking. . . . The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking. [Cits.]” (Emphasis supplied.) Wright v. MARTA, 248 Ga. 372, 375-376 (283 SE2d 466) (1981). Testimony that the costs in the instant case had “risen just a little bit” between the time of the taking and the time of trial was not sufficient. Cf. MARTA v. Dendy, 250 Ga. 538, 541 (1a) (299 SE2d 876) (1983).

5. The Condemnees submitted a number of photographs. The Condemnor objected to these photographs, as a whole, contending that they were all inadmissible as showing temporary inconvenience during construction of the project. The trial court’s refusal to sustain this objection is enumerated as error.

A review of the photographs shows that, although the Condemnor’s objection was probably well taken as to at least some of them, it was not well taken as to all of them. “Under these circumstances there was no error in overruling the objection as made, the objectionable [photographs] in the group objected to not being pointed out with particularity and some of the evidence objected to being admissible. [Cits.]” Hudson v. Miller, 142 Ga. App. 331 (1) (235 SE2d 773) (1977).

6. The Condemnees introduced evidence of replacement costs of various improvements without any evidence of depreciation also being introduced. The Condemnor’s motion to strike this testimony was erroneously denied. MARTA v. Dendy, supra at 542 (1a); Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249, 251 (3) (361 SE2d 241) (1987). The Condemnees’ reliance upon Dept. of Transp. v. Brand, 149 Ga. App. 547 (254 SE2d 873) (1979) is misplaced. Brand was overruled in MARTA v. Dendy, supra at 542 (1a).

7. The trial court erred in allowing Condemnees to give their opinion of the value of their property. “There was no attempt to establish [their] knowledge, experience or familiarity with the value of [improvements] or real estate generally or of those values in the vicinity .. . in particular. ... It follows that the trial court erred in allowing such opinion evidence of value, even though by the owner [s] of the property in question.” Dept. of Transp. v. Kirk, 138 Ga. App. 180, 181 (1) (225 SE2d 781) (1976).

8. There was no evidence of a non-compensable change in traffic patterns. Accordingly, the Condemnor could not have been harmed by the trial court’s refusal to charge the jury that adverse changes in traffic patterns were non-compensable.

9. The Condemnor enumerates as error the giving of a charge on trees and shrubs. “[N]o error was committed. The charge as stated, although perhaps subject to improvement by rewording, is correct.” Gaines v. Dept. of Transp., 140 Ga. App. 741, 742 (2) (231 SE2d 829) (1976). See also Dawson v. Dept. of Transp., 203 Ga. App. 157 (1) (416 SE2d 163) (1992); Dept. of Transp. v. Willis, 165 Ga. App. 271, 272 (2) (299 SE2d 82) (1983).

10. The Condemnor’s request to charge on the issue of the Condemnees’ access to their remainder was a correct statement of the law and adjusted to the evidence and the trial court’s refusal to charge in accordance therewith was harmful error. Dept. of Transp. v. Pilgrim, 175 Ga. App. 576, 577 (1c) (333 SE2d 866) (1985).

11. The Condemnor requested a charge to the effect that the willingness or unwillingness of the Condemnees to sell their property was irrelevant. The refusal to give this requested charge is enumerated as error.

There is authority for the proposition that it is error to refuse to give such a charge. State Hwy. Dept. v. Casey, 123 Ga. App. 70 (2) (179 SE2d 541) (1970). However, that holding in Casey is in conflict with controlling Supreme Court authority. Bowers v. Fulton County, 221 Ga. 731, 742 (9) (146 SE2d 884) (1966). Accordingly, the holding in Casey, supra at 70 (2), must be overruled. It follows that the trial court did not err in refusing to give this requested charge.

12. The Condemnor’s remaining enumerations of error relate to the failure to give certain requested charges. There was no error, because the charge, as given by the trial court, “constituted a sufficient instruction on the principle[s] [contained in the refused requests].” Mathis v. Dept. of Transp., 185 Ga. App. 658, 660 (4) (365 SE2d 504) (1988). See also Housing Auth. of the City of Calhoun v. Spink, 91 Ga. App. 72, 75 (85 SE2d 80) (1954).

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, Cooper, Andrews, Johnson and Blackburn, JJ., concur.

Decided March 12, 1993 —

Reconsideration denied April 2, 1993

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Kopp & Conner, Neal L. Conner, Jr., Mary Jane Cardwell, for appellant.

Robert B. Sumner, Berrien L. Sutton, for appellees.


author: Pope, Chief Judge. Justice George H. Carley,

text:
    A92A2205.
    CARVER v. THE STATE.
    (430 SE2d 790)
   Pope, Chief Judge.

Defendant Daniel B. Carver, Jr. was tried before a jury in state court and convicted of speeding. He appeals.

1. We first address whether the defendant’s enumeration of error is sufficient to raise both the general grounds and the admissibility of the radar results in this case. Appearing pro se, defendant’s sole “Enumeration of Errors” provides: “This Appellant contends that there was insufficient evidence to support a conviction in this case, and further, this Appellant lists three separate reasons why this case should be reversed.” At the end of the heading “Enumeration of Errors” is a footnote which states: “While the Appellant lists only one enumeration of error, the Appellant, in fact, raises three issues, all of which arise out of the same issue — has the State complied with all of the requirements to obtain a conviction for a speeding case as set forth in Wiggins v. State, 249 Ga. 302 (1982).” While defendant’s “Enumeration of Errors” is not well pled, a liberal reading of defendant’s “Enumeration of Errors” and a review of his appellate brief makes it clear that defendant challenges on appeal the sufficiency of the evidence and the admissibility of the radar test results on the bases that the State failed to comply with the dictates of OCGA §§ 40-14-5; 40-14-7; and 40-14-9. See Thompson v. State, 186 Ga. App. 471 (2) (367 SE2d 320) (1988) (in which a majority of this court determined what enumerations of error were before this court from a liberal reading of the pro se defendant’s brief).

In this case, defendant posed a timely objection to the admissibility of the radar test results. This case, however, has given us reason to reconsider our decisions in Taylor v. State, 205 Ga. App. 84 (421 SE2d 104) (1992); Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992) and Johnson v. State, 189 Ga. App. 192 (375 SE2d 290) (1988) in which the defendant did not object to the admission of radar re-suits. In those cases, this court held the defendant could raise the admissibility of the results on appeal although he failed to object at trial. We now hold that a defendant must invoke an evidentiary ruling on the admissibility of radar evidence in order to preserve the adverse ruling on their objection for appeal. To the extent Taylor, Brown and Johnson are inconsistent with this holding, they are overruled in pertinent part.

2. Defendant first argues the radar results should not have been admitted into evidence because the radar used to determine he was speeding may have been inaccurate because the tuning forks used to test the accuracy of the radar could have been damaged or might not have been the proper tuning forks to check the radar in question. The evidence showed the tuning forks were checked and certified as accurate by a radar technician on January 6, 1992. Defendant was stopped for speeding on February 4, 1992. The police officer who stopped defendant for speeding testified that on February 4, 1992, he tested the radar in question to ensure it was working correctly both before and after his shift. The officer further testified that the proper tuning forks for the machine in question had been used. Although the officer admitted it was possible that the tuning forks could have been damaged after they were tested, there was no evidence the forks had been damaged.

Defendant also argues that just as a person who is stopped for speeding has a right, pursuant to OCGA § 40-14-5 (b), to request the officer to test the device for accuracy, such person should have a right to have the tuning forks tested for damage. First we note defendant did not request an independent test of the tuning forks, but simply sought at trial to challenge the accuracy of the test on the ground the tuning forks could have been damaged. Furthermore, defendant does not cite, and we are not aware of, authority entitling defendant to request a test of the tuning forks for the radar used to clock his speed. Although OCGA § 40-14-5 (b) requires a law enforcement officer using a radar device to notify each person against whom they intend to make a case that they have a right to request the officer to test the radar device for accuracy, the right does not extend to a test of the tuning forks or any other instrument used to test the radar device. Moreover, contrary to defendant’s contention otherwise, OCGA § 40-14-5 (b) does not entitle the defendant to observe the accuracy test performed on the radar device. For these reasons, we hold defendant’s arguments concerning the accuracy of the tuning forks and the officer’s refusal to allow him to observe the accuracy test of the radar must fail.

3. In regard to the conditions imposed by OCGA § 40-14-7, the State presented sufficient evidence from which the finder of fact could determine that the vehicle in which the radar was located was visible to approaching motorists for a distance of at least 500 feet.

4. Defendant also argues the radar evidence was improperly admitted because the evidence did not show it was obtained in compliance with OCGA § 40-14-9, which states: “No speed detection device shall be employed by county, municipal, or campus law enforcement officers on any portion of any highway which has a grade in excess of 7 percent.” The parties do not cite and our research does not reveal a case in which the appellate courts of this state have had occasion to decide whether the State must prove compliance with that provision of OCGA § 40-14-9 before evidence of speed determined by such a device is admissible. Cf. Carver v. State, 199 Ga. App. 842 (406 SE2d 236) (1991) (holding, inter alia, the defendant’s challenge to the admissibility of the radar results on the basis that the State had not made a showing that the radar was not used on a portion of highway with a grade in excess of seven percent was without merit because the defendant was ticketed for speeding by a state patrolman and thus OCGA § 40-14-9 was inapplicable). The language employed in the pertinent portion of OCGA § 40-14-9, prohibiting the employment of speed detection devices on any portion of a highway having a grade in excess of seven percent, mirrors the language of OCGA § 40-14-7, prohibiting the use of speed detection devices on a portion of highway where the vehicle in which the device is located is not visible to approaching motorists for a distance of at least 500 feet. It is well-settled that the State must prove the condition imposed by OCGA § 40-14-7 was met before evidence of speed gained by use of the speed detection device is admissible. Wiggins v. State, 249 Ga. 302, 304-305 (2) (a) (290 SE2d 427) (1982). Given the plain language of OCGA § 40-14-9 and applying the rationale followed by our Supreme Court in Wiggins, we are constrained to hold that proof that a speed detection device was not employed on a portion of highway having a grade in excess of seven percent is also a condition imposed by law for the results of the radar test to be admissible. “Failure of proof as to any one of the conditions imposed by law for the admissibility of evidence of speed gained from a speed detection device results in such evidence being inadmissible. [Cit.]” Taylor v. State, 205 Ga. App. 84 (421 SE2d 104) (1992).

In this case the officer first testified that the portion of the road on which he was using the radar was “flat.” However, during cross-examination, the officer testified the pertinent portion of the road was a “little more downhill,” although he had no way of knowing the grade of the hill or how to determine the grade of the hill. Photographs of the pertinent portion of the road on which defendant was stopped for speeding were submitted into evidence, but the State did not seek to use these photographs to prove the grade of the highway nor did the State present evidence from which the jury could determine the grade of the pertinent portion of highway by reviewing the photographs. We hold the evidence presented in this case was insufficient to show that the speed detection device used to determine the speed of defendant’s vehicle was not employed on a portion of highway having a grade in excess of seven percent. Thus, the State has failed to present the necessary foundation to support the admission of the radar test results and the trial court erred in denying defendant’s objection to the admissibility of the radar results. See generally Westee v. State, 201 Ga. App. 802 (413 SE2d 266) (1991); Johnson v. State, 189 Ga. App. 192 (375 SE2d 290) (1988).

5. Although the radar results in this case are inadmissible, we hold the evidence is still sufficient to authorize defendant’s conviction. The officer who issued the speeding citation to defendant testified that he observed the defendant driving and his observation of defendant’s car was consistent with the radar results. Consequently, as in Taylor, 205 Ga. App. 84, and Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992), the officer’s testimony was sufficient evidence from which a jury could conclude defendant was driving at a speed in excess of the speed limit. “Thus, even though the radar evidence was improperly admitted, the error does not require reversal because the evidence was otherwise sufficient to authorize defendant’s conviction.” Taylor, 205 Ga. App. at 84.

Judgment affirmed.

Birdsong, P. J., Cooper and Blackburn, JJ., concur. Beasley, P. J., concurs in judgment only. McMurray, P. J., Andrews, Johnson, JJ., and Justice George H. Carley concur specially.

Justice George H. Carley,

concurring specially.

I concur in the majority’s affirmance of appellant’s conviction. I cannot, however, concur in the majority’s rationale for doing so.

Construing appellant’s enumerations of error liberally, he raises both the general grounds and the trial court’s evidentiary ruling admitting the radar evidence. Under. these circumstances, it is the enumerations of error relating to the admission of the radar evidence which must be considered first, since a consideration of these enumerations may obviate any consideration of the general grounds. “[W]here an appellate court reverses a conviction on the basis that competent evidence was erroneously admitted, the appellate courts in Georgia will not and need not then review the remaining evidence on sufficiency grounds.” (Emphasis supplied.) Hall v. State, 244 Ga. 86, 94 (5) (259 SE2d 41) (1979). Accordingly, if the admission of the radar evidence was reversible error in the instant case, the general grounds need not be reached.

Relying upon Wiggins v. State, 249 Ga. 302, 306 (3) (290 SE2d 427) (1982), several cases of this court have held that the admission of radar evidence may be considered on appeal even though no objection was raised in the trial court. Taylor v. State, 205 Ga. App. 84 (1) (421 SE2d 104) (1992); Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992); Johnson v. State, 189 Ga. App. 192 (375 SE2d 290) (1988). In my opinion, this is erroneous. Wiggins was itself an interlocutory appeal from the denial of a motion to suppress. Thus, on its face, Wiggins was a case wherein an evidentiary ruling on the admissibility of radar evidence had been invoked in the trial court. Certainly, nothing in Wiggins purports to authorize consideration of an evidentiary ruling in an appeal wherein no objection to the admission of radar evidence has been raised and overruled in the trial court. Evidence which is seized from a defendant is certainly inadmissible unless the State has complied with the strictures of the law, but the admissibility of seized evidence is nevertheless an issue of no concern on appeal unless a ruling thereon has first been invoked in the trial court and an adverse ruling has then been properly enumerated as error on appeal. Gilmore v. State, 117 Ga. App. 67, 68 (2) (159 SE2d 474) (1967); Smith v. State, 120 Ga. App. 613 (1) (171 SE2d 755) (1969). Radar evidence is no different. Such evidence may be inadmissible but, if no objection is raised in the trial court and the admission of the evidence over objection is not raised on appeal, no issue as to admissibility is presented for appellate review. Accordingly, I agree with the majority that the Taylor, Brown and Johnson cases should be overruled insofar as they hold that the admissibility of radar evidence can be addressed on appeal without regard to a defendant’s invocation of a ruling on the admissibility of that evidence in the trial court. “[W]e can not consider any error alleged to have been made unless there is an enumeration of it as provided in [OCGA § 5-6-40], nor can we consider . .-. an error enumerated unless it is supported in the record and shown to have been ruled on by the trial judge.” Craig v. State, 130 Ga. App. 689, 693 (6) (204 SE2d 307) (1974).

In the trial court, appellant did object to the admission of the radar evidence on the grounds which he asserts on appeal. Accordingly, we are authorized to consider his enumerations of error which relate to the trial court’s evidentiary ruling. The majority finds that none of appellant’s objections has merit, except that which asserts that the State failed to prove that the highway grade was less than seven percent as required by OCGA § 40-14-9. I cannot agree. In my opinion, none of appellant’s objections has merit, including that which is based upon OCGA § 40-14-9.

The officer testified that the road was “flat” and numerous photographs of the road were introduced into evidence. The photographs may not have been admitted specifically to show compliance with OCGA § 40-14-9, but they were admissible as a fair and accurate representation of the roadway itself. From the officer’s opinion testimony that the road was “flat” and the photographs, I believe a finding was authorized that the radar had been employed in compliance with the requirement of OCGA § 40-14-9 that the grade not be in excess of seven percent. See generally Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 99 (1) (321 SE2d 820) (1984). The evidence in this regard may not have been conclusive, but, in my opinion, it was sufficient to authorize admission of the radar evidence for the jury’s consideration. “In respect to . . . opinion testimony as to speeds, time, and distance, it has been held many times that same is very unreliable, but, nevertheless, admissible. [Cits.]” Fuels, Inc. v. Rutland, 123 Ga. App. 23, 28 (5) (179 SE2d 290) (1970). The officer’s testimony that the road was “flat” is, in my opinion, no different than an opinion as to speed, time or distance and would authorize admission of the radar evidence.

Decided March 19, 1993 —

Reconsideration denied April 2, 1993.

Daniel B. Carver, Jr., pro se.

Jerry Rylee, Solicitor, Graham McKinnon IV, Assistant Solicitor, for appellee.

The majority holds that, notwithstanding the radar evidence which it finds to be inadmissible, the officer’s oral testimony was otherwise sufficient to authorize appellant’s conviction. The majority apparently holds that the erroneous admission of the radar evidence was harmless, because that evidence was merely cumulative of the officer’s testimony in the instant case. There is some question, however, whether scientific radar evidence can ever be considered as merely cumulative of an officer’s oral testimony, such that an erroneous evidentiary ruling admitting the former can be rendered harmless by the admission of the latter. See Brinson v. State, 201 Ga. App. 80, 81 (1) (410 SE2d 50) (1991); Dept. of Transp. v. Petkas, 189 Ga. App. 633, 636 (3) (377 SE2d 166) (1988). Because I find the radar evidence to be admissible, however, I express no opinion as to whether the officer’s testimony in the instant case was merely cumulative of the radar evidence. I would simply hold that the radar evidence was not erroneously admitted and that that radar evidence authorizes appellant’s conviction for speeding.

I am authorized to state that Presiding Judge McMurray, Judge Andrews and Judge Johnson join in this special concurrence.


author: Beasley, Presiding Judge. Birdsong, Presiding Judge,

text:
    A92A2218.
    McCLINTON v. SULLIVAN.
    (430 SE2d 794)
   Beasley, Presiding Judge.

This is a direct appeal from the order of the probate court in an estate administration, to the extent that it denied in part a motion for summary judgment. See OCGA §§ 15-9-120 to 15-9-123.

Appellant, Emory McClinton, the temporary administrator of the estate of his deceased daughter, Lita Sullivan, filed a petition seeking permanent letters of administration. The mother and two siblings of Lita Sullivan concurred in his appointment. Appellee, James Sullivan, the decedent’s widower, filed a caveat objecting to McClinton’s appointment and seeking his own appointment as administrator. McClinton moved for summary judgment.

The probate court granted that portion of McClinton’s motion seeking to prevent Sullivan’s appointment, denied that portion of the motion seeking McClinton’s appointment, and appointed the county administrator. It did so by applying OCGA § 53-6-24, which sets forth the rules to be observed in granting letters of administration. Factually, it is undisputed that Lita Sullivan died intestate, survived by her estranged husband, against whom she had filed a complaint for divorce, her father, mother, two siblings, and no children. Statutory construction is the key to resolution of this case.

1. The trial court ruled that Sullivan was not entitled to serve as administrator because OCGA § 53-6-24 (a) (1) provides: “The surviving spouse . . . shall be first entitled, unless an action for divorce or separate maintenance was pending between the deceased and the surviving spouse at the time of the death.” The exception was added in 1986. Ga. L. 1986, p. 200, § 1. This was done “to reflect the reality of broken domestic tranquility.” Simpson v. King, 259 Ga. 420, 422, fn. 2 (383 SE2d 120) (1989). Sullivan did not appeal from the partial grant of summary judgment against him. Moreover, as indicated in the Simpson footnote, he would not be entitled to serve.

2. McClinton asserts that he, his wife, and two children are the “next of kin” within the meaning of subsection (a) (2), and that his wife and children properly selected him as administrator under subsection (a) (3). We cannot agree with either contention. Subsections (a) (2) and (3) of the statute provide as follows: “(2) The next of kin, at the time of death, according to the law declaring relationship and distribution, shall be next entitled; (3) If there are several of the next of kin equally near in degree, the person selected in writing by a majority in interest of those interested as distributees of the estate, who are capable of expressing a choice, shall be appointed.”

(a) In all statutory interpretation, it is our obligation to seek the legislature’s intention, OCGA § 1-3-1 (a), and to attempt to effectuate the legislature’s purpose. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). It is clear from the overall scheme of OCGA § 53-6-24, and particularly from the language in subsection (a) (9), that the legislature favored the administration of estates by those having the right to inherit them. Subsection (a) (9) provides: “As a general rule, to cover all cases not specially provided for, the person having the right to the estate shall be appointed administrator; . . .” This was more completely explained in Simpson, supra at 422: “The general rule is: ‘ “Both by common law and by statute, the person entitled to the estate of a decedent is entitled to the administration.” The reason usually given for this rule is that the person having title to the estate is most interested and will take best care of it. The administrator holds the estate for the purpose of paying debts and distribution. . . . The rule that the administration should go to the person having the greatest interest in the estate is generally recognized.’ Roe v. Pitts, 82 Ga. App. 770, 773-774 (62 SE2d 387) (1950). See also Redfern, Wills and Administration in Georgia, § 261 (S. Love, 5th ed. 1988).”

This court has ruled that “construing [the predecessor subsections of (a) (2) and (a) (3)] together, it is obvious that the next of kin referred to [in (a) (2)] are ‘next of kin . . . interested as distributees of the estate.’ [Cit.]” Smith v. Goodwin, 84 Ga. App. 319, 322-323 (2) (a) (66 SE2d 169) (1951). Those portions of the predecessor subsections referred to are identical to the current ones, so the construction is still valid. This construction is explained by referring to subsection (a) (3), which applies when there is more than one next of kin and no qualified surviving spouse: “[A] majority in interest of those interested as distributees of the estate, who are capable of expressing a choice” are to select the administrator. It is reinforced by acknowledging that subsection (a) (2)’s reference is not to “next of kin” in a vacuum, but rather to “next of kin . . . according to the law declaring relationship and distribution.”

Although Sullivan is disqualified from serving as administrator under subsection (1) by reason of the divorce action pending at the time of his wife’s death, he nonetheless remains the sole heir and distributee of the estate under the rules of inheritance. OCGA § 53-4-2 (1). See generally Knowles v. Knowles, 125 Ga. App. 642, 648 (5) (188 SE2d 800) (1972). McClinton cites no applicable law to the contrary and we have found none, nor does the evidence show otherwise. The McClintons, not being interested as distributees of the estate, cannot be the “next of kin” referred to in subsections (a) (2) and (3), and they are not entitled to serve or choose. The 1986 amendment to subsection (a) (1) has created this anomaly, disqualifying all survivors whenever the married decedent is childless and divorce or separate maintenance is pending. Of course, if there are lineal descendants, the estranged surviving spouse would not be the sole heir, OCGA § 53-4-2 (1) and (2), and one of the children would be qualified to serve.

(b) Subsection (a) (6) provides that “ [t] he persons entitled to serve or select among themselves . . . may select a disinterested person as administrator and, if otherwise qualified, he shall be appointed.” Since none of the survivors was entitled to serve or select, this subsection did not apply.

Subsection (a) (4) provides: “If no such preference [as provided in subsection (a) (3)] is expressed, the judge of the probate court may exercise his discretion in selecting the one best qualified for the office.” This does not apply either, as no survivor was qualified to express preference and none of them could be selected by the court as “best qualified.”

At the hearing on the motion, Sullivan expressed his desire that a neutral third party such as the county administrator be appointed. Although the court took this into consideration, it is clear that the probate court’s appointment of the county administrator was based on its own discretion. This was authorized because the statutory scheme did not provide an express rule to cover the situation here, which was created by the 1986 amendment to subsection (a) (1). Yet it did, in the one instance where others who ordinarily would choose the administrator did not do so, authorize the court to appoint the administrator. Subsection (a) (4). Also, it provided that, in the instance where persons qualified to serve or select chose not to serve, “a disinterested person” be selected by them. Subsection (a) (6). Taking these two elements, i.e., court appointment and the necessity of “a disinterested person,” together, we perceive the intent of the legislature to be that the court appoint a disinterested, qualified person in the circumstances presented here. Otherwise, there could be no grant of letters of administration to anyone, despite the fact that it was desired by all survivors.

The rules require that the one appointed “be of sound mind” and “laboring under no disability.” They seek to have one appointed who has an interest in the estate either as distributor or creditor or as a disinterested person selected by the interested person or persons. The court appointed a qualified, disinterested person.

We find no error.

Judgment affirmed.

McMurray, P. J., Andrews and Johnson, JJ., concur. Justice George H. Carley concurs. Pope, C. J., Birdsong, P. J., Cooper and Blackburn, JJ., dissent.

Birdsong, Presiding Judge,

dissenting.

I respectfully dissent.

1. OCGA § 53-6-24, as amended, provides that in the granting of letters of administration, the following rules “shall be observed . . . (1) The surviving spouse . . . shall be first entitled, unless an action for divorce or separate maintenance was pending between the deceased and the surviving spouse at the time of the death; (2) The next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled. . . .”

The majority has concluded that Sullivan, as surviving spouse is, “according to the law declaring relationship and distribution” (id.), Mrs. Sullivan’s “next of kin” entitled to inherit even though he is disqualified from serving as administrator, and therefore that Mrs. Sullivan’s family, the McClintons, cannot be her next of kin entitled to inherit and “ ‘interested as distributees of the estate.’ ” See Smith v. Goodwin, 84 Ga. App. 319, 322-323 (66 SE2d 169).

In the majority’s view, the legislature, in amending OCGA § 53-6-24 to disqualify a surviving spouse as administrator when there is a divorce action pending, created a “glitch” in the statutory scheme, because under the law as to order of inheritance a surviving spouse is still entitled to inherit as the next of kin; and as “ ‘the person entitled to the estate of [the] decedent [he] is entitled to the administration.’ ” Roe v. Pitts, 82 Ga. App. 770, 773-774 (62 SE2d 387).

I think any conflict in the statute is illusory. While looking for the legislature’s intention in amending or enacting any law, we are not authorized to presume the legislature was unaware of co-existing laws. In amending OCGA § 53-6-24 to disqualify a divorcing spouse as administrator and to mandate that the “next entitled” shall be the “next of kin, at the time of death, according to the law declaring relationship and distributions,” the legislature was indisputably aware that until a divorce is final an intestate deceased’s surviving spouse is still a distributee of the estate and is entitled to inherit as the “next of kin.”

It is obvious, therefore, that by disqualifying the divorcing spouse from serving as administrator and then stating that “the next of kin . . . shall be next entitled,” the legislature was referring to the deceased’s “next of kin” after the surviving spouse.

Any other construction renders meaningless § 53-6-24 (a) (2). It works an unnatural and unreasonable result and leads to “ ‘absurd or wholly impracticable consequences.’ ” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430). If the majority’s reasoning were correct, subparagraph (a) (2) would never take effect: the divorcing spouse, though not entitled to be administrator under (a) (1), would still be the deceased’s “next of kin according to the law declaring relationship and distribution” and thus would be entitled to be administrator under subparagraph (a) (2), which is of course impossible because subparagraph (a) (1) disqualified him; and so the circle goes.

We cannot conclude such an absurd and impracticable “Catch 22” consequence was intended. Without doubt, the legislature intended that the “next of kin” which it referred to as entitled to be administrator in § 53-6-24 (a) (2) is the “next of kin according to the law declaring relationship and distribution” after the surviving spouse has been disqualified.

Smith v. Goodwin, supra at 323, is cited by the majority for the idea that the “next of kin” referred to in subparagraph (a) (2) are the “ ‘next of kin . . . interested as distributees of the estate,’ ” which the McClintons can never be so long as Sullivan is the surviving spouse. That case was written long before the legislature disqualified the next of kin who is a surviving spouse when there is a pending divorce, and so it does not address this question. Moreover, the persons seeking to be administrators of Mr. Tutt’s estate in that case were disqualified because they were not the next of kin of the deceased. They were the next of kin of the next of kin of the deceased; they were siblings of Mrs. Tutt, who died shortly after Mr. Tutt died, and they were opposed by the siblings of the deceased Mr. Tutt. They were “merely heirs of [Mr. Tutt’s] wife and as such [were] not heirs of the estate under consideration.” Id. at 323.

The entirety of § 53-6-24 is a list of priority as to the appointment of administrator and is not an attempt to change the laws of distribution, nor does the proper interpretation of it advocated herein change the laws of distribution. There is no conflict in it. When one entity is disqualified or not present, the next candidate steps forward. In this case, Sullivan being disqualified as administrator by § 53-6-24 (a) (1), the next “next of kin according to the law of relationship and distribution” are the McClintons.

Although appellee Sullivan indicates that McClinton is not suited to be administrator, the probate court may determine the validity of such argument only after it has applied the proper law entitling McClinton to the post according to the statute. Whether there is anything in the estate to “administer” is beside the point. If as Sullivan contends there is nothing in the estate, the less significant may be any alleged derelictions of McClinton while he served as temporary administrator.

2. The majority indicates in a footnote that Mr. and Mrs. Sullivan signed prenuptial and postnuptial agreements in which Sullivan renounced any interest in Mrs. Sullivan’s estate, and that these documents are in the record but are not properly “authenticated” and “never properly offered as evidence for the purpose of summary judgment.” However, OCGA § 9-11-56 (c) does not pose such requirements. Although Mr. McClinton proffered them, it does not appear their existence was disputed by Sullivan; that they were introduced by McClinton, rather than by the person who signed them, does not mean they were not properly authenticated or offered. They are in the record and it does not appear Mr. Sullivan has disavowed their existence or asserts the signatures on them are not his or his former wife’s. They are proper evidence of record which must be considered by the trial court when they are raised in issue. If this judgment against McClinton were reversed and the case were remanded for further proceedings, our law is clear that any issue touching on these prenuptial and postnuptial agreements may be properly raised, including their proper authentication or competence as evidence.

Sullivan argues that it is somehow “inconsistent” for the Mc-Clintons to contend these documents are valid so as to prove Sullivan has no claim, when their daughter had contended they were invalid in her divorce proceedings. I perceive this to be some sort of “equity” argument but I am not led astray. Assuming the validity of the agreements is a proper issue to be determined by the probate court in this proceeding, nothing prohibits McClinton from contending they are valid so as to prevent Sullivan from claiming that he is a distributee of the estate and is “next of kin” under § 53-6-24 (a) (2).

That his daughter once claimed their invalidity so as to enable her to share in the marital estate does not, in this administratorship dispute, force McClinton to concede the same, especially if this would enable Sullivan to claim that, although he is disqualified to serve as administrator, he is still the next of kin, thereby to prevent the deceased’s father from administratorship. The real irony here lies in Sullivan’s attempt to claim as invalid, so as to prevent Mrs. Sullivan’s next of kin from his statutory entitlement of administrator of her estate, what he claimed in the divorce proceedings were valid so as to prevent her from sharing in the marital proceeds.

3. Even assuming the majority’s interpretation of § 53-6-24 (a) (2) were correct, the case should be remanded for proper consideration of the validity of the prenuptial and postnuptial agreements insofar as Sullivan renounced in them any interest in Mrs. Sullivan’s estate, which would make McClinton her “next of kin” even under the majority’s view of § 53-6-24 (a) (2). There is no equity which would allow Sullivan to contend they are invalid so as to prevent McClinton’s administratorship, when Sullivan asserted their validity to prevent Mrs. Sullivan from sharing in the marital estate.

Accordingly, I respectfully dissent on three grounds. I am authorized to state that Chief Judge Pope, Judge Cooper and Judge Blackburn join in this dissent.

Decided March 19, 1993 —

Reconsideration denied April 2, 1993

Louis Levenson & Associates, Louis' Levenson, for appellant.

Vincent, Chorey, Taylor & Feil, John L. Taylor, Jr., Mildred A. Hankins, for appellee.

       Although the record contains copies of the alleged prenuptial and postnuptial agreements entered into by Lita and James Sullivan under the terms of which James Sullivan renounced his right under the laws of intestacy to inherit from his wife’s estate, the documents were never authenticated and never properly offered as evidence for the purpose of summary judgment. OCGA § 9-11-56 (c). Emory McClinton, not a party or subscribing witness to either of them, swore they were entered into. He was not a competent witness to authenticate them. OCGA § 24-7-4. The postnuptial document is not even dated or signed. Their validity and effect on the appointment of an administrator is therefore not drawn in question. OCGA § 9-11-56 (e).


author: Beasley, Presiding Judge. Andrews, Judge,

text:
    A92A2228.
    A92A2229.
    OTIS ELEVATOR COMPANY v. TANNER. PICKETT HOTEL COMPANY v. TANNER.
    (430 SE2d 663)
   Beasley, Presiding Judge.

The applications for interlocutory appeal of Otis Elevator Company and Pickett Hotel Company, defendants below, were granted to consider the denial of summary judgment to them based on a general release from plaintiff Tanner obtained by Pace Construction Corporation, originally a defendant below.

Tanner was an independent contractor for Bell-Mann, Inc., a carpet and tile installation firm. Pace, the prime contractor on the construction of a new Pickett Hotel, had subcontracted the carpet/tile work to Bell-Mann. On November 3, 1984, Tanner stepped into the fifth-floor elevator on the project on his way to get additional supplies for the job. The elevator had been manufactured by Esco Elevators and sold and installed by Otis. The elevator fell five stories, and Tanner was injured.

Tanner filed suit against Pickett, Otis, and Pace on June 22, 1985, eventually adding manufacturer Esco. On January 21, 1987, Tanner and his wife signed a General Release, which stated that, in consideration of the payment of $500, they “remised, released and forever discharged and by these presents, do . . . hereby remise, release, and forever discharge Pace Construction Corporation . . . and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily injuries, . . . resulting, and to result, from a certain accident which happened on or about the 3rd day of November 1984. ...” (Portions in bold type were typed onto the otherwise printed form.)

A dismissal with prejudice as to Pace was filed on February 10, 1987.

On April 8, 1987, Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987) was issued. “The issue reached [was] whether to continue to follow the principle that a general release given to one joint tortfeasor releases all joint tortfeasors. [The Supreme Court decided] . . . not to follow that principle any longer. ... A valid release of one tortfeasor from liability . . . does not discharge others for the same harm, unless it is agreed that it will discharge them. . . . One not a party to the release may not object to the external evidence [of intent] under the parol evidence rule.” Id. at 56, 59.

On October 9, 1991, Pickett and Otis filed their motions for summary judgment in response to which plaintiffs filed the affidavit of their attorney who had negotiated with Pace, stating that there was no intent to release the other joint tortfeasors.

We hold that the rule in Posey v. Med. Center-West, supra, applies. That being the case, the General Release given to Pace Construction Corporation did not entitle Otis Elevator Company and Pickett Hotel Company to discharge from liability as a matter of law. The parol evidence (attorney affidavit) and the fact that only Pace was dismissed with prejudice after the release was signed, are admissible under Posey to show that the intent was to release only Pace.

Although under Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992), not even the parol evidence would be needed to limit the reach of the release because on its face it did not name Otis or Pickett, that rule was expressly made only prospective by the Supreme Court. It ruled that the new “not named” rule “should eliminate the need to inquire as to the intent of the parties to releases executed after the date of this opinion.” Id. at 186. The contrasting absence of such an expression in Posey is an indication of the Court’s intention that the evidentiary rule of Posey apply retroactively, to releases signed before Posey was decided.

Moreover, the criteria for determining whether a court ruling is to be applied retroactively are met here. In general, court rulings apply retroactively. See General Motors Corp. v. Rasmussen, 255 Ga. 544, 545-546 (2) (340 SE2d 586) (1986). To ascertain whether a court decision applies, we must: “(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance . . . the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.” Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (3) (300 SE2d 673) (1983). See also James B. Beam Distilling Co. v. State of Ga., 259 Ga. 363, 364-366 (2) (382 SE2d 95) (1989).

The rule in Posey rectified a harsh rule of construction imposed by common law, which rule precluded an acknowledgment of the true facts as established by the intent of the parties to the contract. Otis and Pickett cannot be said to have relied on the preexisting law or regulated their conduct by it, because they were not parties to the release given to Pace, may not even have known about it at the time it was negotiated, and did not provide any consideration for it. In addition, Posey should have come as no surprise, for in Williams v. Physicians &c. Community Hosp., 249 Ga. 588, 590 (292 SE2d 705) (1982), the Court held that, “where a non-party to a general release claims coverage thereunder, parol evidence is admissible as an aid in explaining the intention of the parties to the release.” Williams involved successive tortfeasors.

Secondly, retroactive application would best serve to accomplish the purpose of Posey, which was to allow the legal effect of the release to be as it was intended to be by the parties to it. It allows parol evidence “ ‘to ascertain the true intention of the parties (to the release) with regard to those persons who were to be bound or covered by the release.’ (Cit.)” Williams, supra at 591.

Third, there is no inequity resulting to Otis and Pickett, for they placed no reliance on the release, such as altering their positions or taking any action based on it. Instead, they would simply be avoiding liability, not on the merits or on settlement with the injured party, but because of the injured party’s settlement with a third party as to its liability, the true meaning of which could not be inquired into.

“When no vested right will be adversely affected, we are required to apply the law prevailing at the time of our decision . . . .” Evans v. Belth, 193 Ga. App. 757, 759 (388 SE2d 914) (1989). Neither Otis nor Pickett had a vested right in the evidentiary bar. As said in Eig v. Savage, 177 Ga. App. 514, 516 (339 SE2d 752) (1986): “An individual can have no vested right in a current state of the law which is subject to change, either by the legislature or the courts, without some act in reliance upon that law. [Cits.]” When they raised the release as a bar, the bar no longer existed due to the holding in Posey, which was in keeping with the court’s then-best understanding of the law.

Kinsey v. Elrod, 206 Ga. App. 375 (425 SE2d 395) (1992), does not hold that the determinative time for rule application is when the release is signed. It involved a release signed after Posey but before Lackey, supra. The footnote merely states that “[b]ecause the release in this [Kinsey] case was executed prior to April 1992, we apply the law as it was before LackeyThat does not mean that, had the release been signed before Posey, the rule of Posey would not have applied.

The trial court correctly denied summary judgment to defendants Otis and Pickett.

Judgments affirmed.

Pope, C. J., McMurray, P. J., Cooper, Johnson and Blackburn, JJ., concur. Andrews, J., dissents. Birdsong, P. J., not participating.

Andrews, Judge,

dissenting.

Because I believe that the release is controlled by pre-Posey authority and effected the release of Otis and Pickett, I respectfully dissent.

Tanner filed suit against Pickett, Otis, and Pace on June 22, 1985, eventually adding manufacturer Esco. On January 21, 1987, Tanner and his wife signed a General Release, which stated that, in consideration of the payment of $500, they “remised, released and forever discharged and by these presents, do . . . hereby remise, release, and forever discharge Pace Construction Corporation . . . and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily injuries, . . . resulting, and to result, from a certain accident which happened on or about the 3rd day of November 1984. . . .” (Portions in bold type were typed onto the otherwise printed form.)

A dismissal with prejudice as to Pace was filed on February 10, 1987.

On April 8, 1987, Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987) was issued. “The issue reached [was] whether to continue to follow the principle that a general release given to one joint tortfeasor releases all joint tortfeasors. We decide . . . not to follow that principle any longer. ... A valid release of one tortfeasor from liability . . . does not discharge others for the same harm, unless it is agreed that it will discharge them. . . . One not a party to the release may not object to the external evidence [of intent] under the parol evidence rule.” Id. at 56, 59.

On October 9, 1991, Pickett and Otis filed their motions for summary judgment in response to which plaintiffs filed the affidavit of their attorney who had negotiated with Pace, stating that there was no intent to release the other joint tortfeasors. This affidavit was admissible under Posey on the issue of intent in a joint tortfeasor general release situation, but had not been admissible as to joint tortfeasors prior thereto. Compare Williams v. Physicians &c. Community Hosp., 249 Ga. 588, 590 (292 SE2d 705) (1982) (successive tortfeasors, parol evidence admissible) with Thomaston v. Fort Wayne Pools, 181 Ga. App. 541 (1) (352 SE2d 794) (issued January 5, 1987) (joint tortfeasors, parol evidence inadmissible). In Knight v. Lowery, 228 Ga. 452 (185 SE2d 915) (1971), successive tortfeasors were involved and the court reiterated the rule regarding joint tortfeasors: “This court long ago ruled that a release executed in favor of one joint tortfeasor, in full settlement of damages, acts also as a release in favor of all other joint tortfeasors. Donaldson v. Carmichael, 102 Ga. 40 (29 SE 135).” Knight at 455. The second division of Knight held that, with regard to successive tortfeasors only, “parol evidence may be admitted in favor of or against a stranger to a release to ascertain the true intention of the parties with regard to those persons who were to be bound or covered by the release.” That second division as to the admissibility of parol evidence was overruled in Maxey v. Hosp. Auth. of Gwinnett County, 245 Ga. 480 (265 SE2d 779) (1980), again specifically related only to successive tortfeasors. “We today overrule Knight v. Lowery, supra, insofar as it holds that parol evidence is admissible to explain a release ‘against all the world.’ The release here of ‘all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action . . . resulting, and to result, from a certain accident which happened on or about the 7th day of January, 1977, . . .’ is clear and unambiguous. With the overruling of Knight v. Lowery, supra, parol evidence is not admissible to vary the terms of the release.” (Emphasis supplied.) Maxey, supra at 482. As acknowledged in fn. 1 of Williams v. Physicians &c. Community Hosp., supra at 589, the rule prohibiting parol evidence so as to vary the terms of a general release in a joint tortfeasor situation remained viable in 1982 when Williams issued, even though Williams reversed that rule with regard to successive tortfeasors. Williams, 249 Ga. at 590.

On April 30, 1992, Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992), issued, modifying Posey “so as to provide a clearer rule: Only those parties named in the release will be discharged by that instrument, [fn. 3, By ‘named,’ we mean being identified either by proper name or such other description as leaves no question of the identity of the party released.] This should eliminate the need to inquire as to the intent of the parties to releases executed after the date of this opinion.” Lackey at 186.

The parol evidence rule, embodied in OCGA § 13-2-2 (1), in the context of unambiguous language within the four corners of the document, is again fully empowered. American Cyanamid Co. v. Ring, 248 Ga. 673, 674 (286 SE2d 1) (1982).

“[OCGA § 13-2-3] provides: ‘The cardinal rule of construction [of a contract] is to ascertain the intentions of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.’ If the intention of the parties as of the time of the executing of the agreement be clear, it should be enforced, even though the parties disagree as to its meaning as of the time of litigation.” (Emphasis supplied.) Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975); Tidwell v. Carroll Builders, 251 Ga. 415, 417 (1) (306 SE2d 279) (1983); Johnson v. Raatz, 200 Ga. App. 289, 291 (407 SE2d 489) (1991); see Kinsey v. Elrod, 206 Ga. App. 375, fn. 1 (425 SE2d 395) (1992).

Decided March 19, 1993 —

Reconsiderations denied April 2, 1993

Long, Weinberg, Ansley & Wheeler, M. Diane Owens, Carlton E. Joyce, for appellant (case no. A92A2228).

Carter & Ansley, Tommy T. Holland, Christopher N. Shuman, for appellant (case no. A92A2229).

Cobb & Walton, James B. Walton, for appellee.

What is clear is that, in January 1987, when the Tanners signed the release at issue here, a general release of one joint tortfeasor released all and parol evidence was not admissible to vary the terms of the written document. Therefore, I believe the court below erred in denying summary judgment to Otis and Pickett. Kahn v. Columbus Mills, 188 Ga. App. 90, 91 (1) (371 SE2d 908) (1988); Thomaston, supra.