text:
    A89A0958.
    FORE v. PARNELL-MARTIN COMPANIES, INC.
    (386 SE2d 723)
   McMurray, Presiding Judge.

The Parnell-Martin Companies, Inc. (plaintiff) brought an action against Kenneth 0. Fore (defendant) and alleged that defendant was indebted to it as the guarantor of an open account for plumbing equipment and supplies furnished to Peachstate Contractors, Inc. (“Peachstate”) by plaintiff. It was further alleged that defendant Fore was president of Peachstate. Defendant answered and denied the material allegations of the complaint. The case was tried before the court without a jury and the evidence showed that defendant executed a general guaranty on February 9, 1987, insuring the payment “of all obligations. . . .’’of Peachstate to plaintiff. The evidence also showed that Peachstate is indebted to plaintiff in the principal sum of $13,150.32; that plaintiff requested payment from defendant under the terms of the guaranty; that defendant has failed to pay the debt and that the account remains unpaid. Whereupon, the trial court entered a judgment in plaintiff’s favor for the total amount of principal, interest and attorney fees due under the guaranty contract. This appeal followed the denial of defendant’s motion of new trial. Held:

1. In his first enumeration, defendant contends “[t]he trial court erred in sustaining a judgment against [him] individually, and in denying [his] Motion for New Trial on the basis of unilateral mistake and other special circumstances which include the prior practice and custom of the parties regarding an earlier personal guaranty.” More specifically, defendant contends that he should be relieved of liability under the guaranty agreement because at the time he executed the contract he was under the mistaken belief that it was a limited guaranty agreement, not a general guaranty covering Peachstate’s entire account with plaintiff. Defendant relies on evidence showing that he did not read the guaranty contract before he executed it because he assumed the contract was the same type of limited guaranty agreement he had given plaintiff on behalf of Peachstate in a prior business transaction.

“ Tt is the duty of contracting parties to inform themselves with reference to the subject matter about which they desire to contract; if they fail to do so and a mistake is made owing to their own ignorance and failure to inform themselves, then any injury results from their own conduct. (Cit.)’ Gulden v. Newberry Wrecker Service, 154 Ga. App. 130, 132 (267 SE2d 763) (1980). ‘Relief is not available on the basis of a unilateral mistake in the absence of fraud or inequitable conduct or other special circumstances. (Cit.)’ Sellers v. ALCO Finance, 130 Ga. App. 769, 770 (4) (204 SE2d 478) (1974).” Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109, 110 (3) (316 SE2d 554).

In the case sub judice, there is no question that the general guaranty agreement was unambiguous and explicit as to the material terms of the contract at the time defendant executed it. Further, the record indicates that defendant is able to read; that he was not prevented from reading the language of the guaranty contract; that defendant is a college graduate and an experienced businessman and that defendant was aware of the consequences of executing a guaranty agreement on behalf of a third party. This evidence was more than sufficient to authorize the trial court’s finding that defendant’s alleged “unilateral mistake” was not the result of fraud, inequitable conduct or “other special circumstances,” but that it was the result of defendant’s own lack of diligence in examining the guaranty contract. See McCullough v. Kirby, 204 Ga. 738, 744 (5) (51 SE2d 812). Consequently, the trial court did not err in entering judgment against defendant on the guaranty agreement and denying defendant’s motion for new trial.

Decided September 20, 1989.

Maddox, Starnes & Nix, John A. Nix, Jean C. McRae, for appellant.

J. Wayne Pierce, for appellee.

2. Next, defendant contends “[t]he trial court erred in entering a judgment against [him] individually, and in denying [his] Motion for New Trial on the basis that the guaranty was blank when executed, and that the subsequent completion of the guaranty did not exemplify the true and correct intentions of the parties.”

The record indicates that the general guaranty agreement is a form document and that the only pertinent portions of the document which were allegedly not completed when defendant executed it were blanks describing plaintiff as “the ‘Secured Party’ ” and Peachstate as “the ‘Debtor.’ ” The portion of the contract which described the liability of the guarantor clearly and explicitly bound defendant for “all obligations of the Debtor to the Secured Party . . . Consequently, since there is no question that defendant executed the guaranty contract as the guarantor of Peachstate to plaintiff and since there were no other material alterations of the guaranty contract after defendant executed the document, the trial court did not err in denying defendant’s motion for new trial on this ground. However, even assuming the terms of defendant’s liability as guarantor were set out in the form guaranty agreement after defendant executed the document, the trial court did not err in determining that defendant was bound by the terms of the contract. “If a writing is signed with blanks left to be filled in by the other party, the person signing is bound by it. State Hwy. Dept. v. Raines, 129 Ga. App. 123 (199 SE2d 96) (1973).” Butts v. Atlanta Fed. Savings &c. Assn., 152 Ga. App. 40, 42 (262 SE2d 230).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A1021.
    HAUGSETH v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (386 SE2d 725)
   McMurray, Presiding Judge.

On April 24, 1986, plaintiff Haugseth applied to defendant Cotton States Mutual Insurance Company for insurance coverage on her two automobiles (a Honda and a Porsche). The application for insurance signed by plaintiff contained a statement that she had not received a traffic citation within the five years immediately preceding the date of application. In fact, plaintiff had received two traffic citations within the five years preceding her application.

Separate insurance policies covering each of her automobiles were issued to plaintiff. The record contains evidence that as early as May 5, 1986, defendant received knowledge of plaintiff’s two traffic citations in the five years preceding her insurance application. On May 11,1986, one of plaintiff’s automobiles, a 1982 Porsche 924, was stolen from her residence. By a document dated May 23, 1986, defendant informed plaintiff of its decision to cancel the policy covering plaintiff’s Porsche. The effective date of the cancellation of the policy was June 4, 1986. By a letter dated October 28, 1986, defendant notified plaintiff of its decision to deny plaintiff’s claim for the loss of her stolen automobile.

Subsequently, plaintiff filed this action under the insurance policy to recover the value of her stolen automobile. Defendant defended on the grounds that the loss was not covered, that the claim was barred under the doctrine of equitable estoppel and on the basis of fraud in the procuring of the policy. Plaintiff appeals following the conditional grant of defendant’s motion for summary judgment. Held:

In cases where the application for insurance is attached to and becomes a part of the policy, in order to avoid the policy for a misrepresentation of the applicant made in the application, the insurer need only show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk. OCGA § 33-24-7 (b). This is true although the applicant may have acted in good faith, not knowing that a representation is untrue. United Family Life Ins. Co. v. Shirley, 242 Ga. 235 (248 SE2d 635). A material representation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance. Lee v. Metro. Life Ins. Co., 158 Ga. 517 (2) (123 SE 737). In the case sub judice, the uncon-troverted evidence shows that the misrepresentation as to plaintiff’s two traffic citations was material since it was defendant’s practice to decline to insure “sporty or performance” cars such as plaintiff’s Porsche, where the driver was a new policyholder who had even one accident or traffic citation in the preceding five years. While ordinarily the question as to the materiality of misrepresentations is for the jury, where the evidence, as in the case sub judice, excludes every other reasonable inference except that they were material, no issue is presented on that point for consideration. All American Life &c. Co. v. Saunders, 125 Ga. App. 7, 10 (186 SE2d 328); Southern Surety Co. of N.Y. v. Fortson, 44 Ga. App. 329, 339, 340 (161 SE 679).

A question remains, however, as to whether defendant might be prevented under a theory of waiver or estoppel from relying upon plaintiff’s material misrepresentation since it appears that after discovery of such misrepresentation defendant did not promptly move to rescind the insurance contract, but treated it as valid and binding (until terminated on June 4, 1986) and retained plaintiff’s premiums which it viewed as earned. Loeb v. Nationwide Mut. &c. Ins. Co., 162 Ga. App. 561 (292 SE2d 409). “In Loeb, this court held that the insurer could not rely on the defense that the insured’s fraud resulted in a void policy when the insurer retains premiums subsequent to the ‘cancellation’ of the policy.” State Farm Fire &c. Co. v. Jenkins, 167 Ga. App. 4, 6 (305 SE2d 801).

Decided September 20, 1989.

Ford & Ford, Michael C. Ford, for appellant.

The state court, in recognition of recent decisions holding that liability coverage in a policy which protects innocent third parties remains in effect irrespective of misrepresentations made to the insurer, concluded that in such circumstances the insurer earns a portion of the premium attributable to liability coverage thus deemed to exist. Nonetheless, in the case sub judice defendant did not show what particular portion of the premiums paid by plaintiff were attributable to the liability coverage on the Porsche.

The state court being unable to determine whether defendant properly returned all unearned premiums to plaintiff sought to avoid submitting the remaining issues of fact to a jury by conditioning the grant of summary judgment in favor of defendant upon defendant’s return to plaintiff of all premiums paid by plaintiff for the policy on the Porsche. Although the record suggests that the defendant has complied with the conditional aspect of the state court’s order by returning the balance of plaintiff’s payments for the Porsche policy, we do not view such an untimely gesture as sufficient to alter the posture of the parties involved in this litigation. “If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise, he can not avoid or rescind such contract.” Gibson v. Alford, 161 Ga. 672, 673 (5) (132 SE 442). See also Precision Label Indus. v. Jones, 185 Ga. App. 161, 162 (1) (363 SE2d 605); Corbitt v. Harris, 182 Ga. App. 81, 82 (354 SE2d 637). Therefore, genuine issues of material fact remain which must be resolved in order to determine whether the case sub judice falls within the principles stated in Loeb v. Nationwide Mut. &c. Ins. Co., 162 Ga. App. 561, supra, and its progeny.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.

McKenzie & McPhail, Pat Huddleston II, Jon B. McPhail, for appellee.


text:
    A89A1082.
    DYKES v. TOOMBS COUNTY et al.
    (386 SE2d 730)
   McMurray, Presiding Judge.

This is a slip and fall case. On February 5, 1986, plaintiff Dykes entered the Toombs County Courthouse and after she brushed her feet on the mat at the entrance, she stepped onto the floor of the courthouse and fell.

Plaintiff’s amended complaint seeks damages from Toombs County, the Toombs County Board of Commissioners and from O’Neal, a county employee responsible for the maintenance of the courthouse floors. Plaintiff appeals from the grant of defendant’s motion for summary judgment. Held:

The plaintiff testified that she did not see any foreign object on the floor. Although it was raining that day, plaintiff did not see any puddle of water on the floor. Plaintiff testified that it was the fresh wax on the floor that made her foot slide out from under her and that she knew it was fresh wax since that is what some of the witnesses told her. The testimony of the two individuals plaintiff named as witnesses to her fall did not substantiate her hearsay assertion that the floor had been waxed on the day of her fall. However, one of the witnesses named by plaintiff testified that the courthouse floor was slick because it was waxed so much, once or twice a week, at least. The other witness named by plaintiff testified that the courthouse floor was slick any time it rained and related a conversation he had with defendant O’Neal as follows: “Well, I came into the courthouse one rainy day. It was before [plaintiff] fell. I don’t recall the exact length of time before. And I almost slipped whenever I came in. And it tickled him, and he was telling me about another guy that had been in earlier that day, who, as he quoted, was ‘wearing some funny cowboy boots,’ and apparently had slipped and almost fell. As far as someone actually falling, he’s never talked to me about any of that.” Defendant O’Neal testified that he did not follow the manufacturer’s directions in the application of wax to the courthouse floor and had not stripped away the old wax on the floors since 1978, but applied his self designed buffing compound, consisting of fifty percent floor wax, to the floor as needed.

To prove that a slip and fall is due to the defendant’s negligence in maintaining the floor “ ‘the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.” [Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327)].” Martin v. Sears, Roebuck & Co., 253 Ga. 337, 338 (320 SE2d 174). See Artesiano v. K-Mart Corp., 184 Ga. App. 895, 897 (1) (363 SE2d 177). The plaintiff’s evidence in the case sub judice is sufficient to satisfy the above test since plaintiff’s evidence, including testimony that the floor was slick because it was waxed so much, offers some proof of negligent application of material used in treating the floor. Artesiano v. K-Mart Corp., 184 Ga. App. 895, 897 (1), supra. The superior court erred in granting defendants’ motion for summary judgment.

Decided September 20, 1989.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellant.

Wilson R. Smith, for appellees.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    A89A1812.
    WILLIAMSON v. WARD.
    (386 SE2d 727)
   Banke, Presiding Judge.

The appellee, Janice Ward, brought this action against the appellant, Bronnie Williamson, seeking a determination pursuant to OCGA § 19-7-40 et seq. that the appellant is the natural father of her minor child. This appeal follows a jury verdict declaring Williamson to be the child’s father.

The child was born on January 24, 1983, thus placing the date of conception around late April of 1982. The appellee testified that from January of 1982 until the time of trial, the appellant was the only person with whom she had had sexual relations. She further testified that the appellant had provided her with some financial support during her pregnancy and that, although he had refused to sign the child’s birth certificate, he had verbally acknowledged to her that he was the father. The appellant’s sister, similarly testified that the appellant had admitted paternity. Moreover, both she and the appellant’s brother, along with the appellee, testified that the child bore a physical resemblance to the appellant; and the child was present in the courtroom for the jurors to draw their own conclusions in this regard. Although the appellant denied being the child’s father, he conceded that he had had sexual relations with the appellee around the date of conception and that no methods of contraception had been utilized.

Prior to the initiation of the present action, the Child Support Recovery Unit of the Georgia Department of Human Resources filed a petition against the appellant seeking to recover approximately $5,000 in public assistance benefits which had ben paid to the appel-lee for the maintenance of the child. During the pendency of this earlier action, the appellant, the appellee, and the minor child all had submitted to human leucocyte antigen (HLA) testing; and the results of these tests had indicated that the appellant could not have been the child’s father. Based upon those test results, the state voluntarily dismissed the child support recovery action without prejudice. The blood test results, along with certain deposition testimony obtained in that action, were introduced as evidence during the trial of the present case; however, it was shown that the appellant had refused to be photographed or to present identification when having his blood drawn for the HLA test, resulting in a notation by the technician that “chain of custody [was] disputed.” Held:

1. The appellant contends that the verdict is strongly against the weight of the evidence. “The contention that the judgment is strongly and decidedly against the weight of the evidence addresses itself to the trial judge only.” Hembree v. Ideal Bldrs., 158 Ga. App. 574 (281 SE2d 328) (1981). The proper vehicle for asserting such a challenge is a motion for new trial, and no such motion was filed in this case. See Bell Bros. v. Aiken, 1 Ga. App. 36 (2) (57 SE 1001) (1907).

Construing this enumeration of error as a contention that there was no evidence to support the verdict, we conclude that it is without merit. The appellant argues that the results of a properly performed HLA test should be deemed conclusive where such results exclude the possibility of paternity. While recognizing that an identical contention was rejected by the Georgia Supreme Court in Jackson v. Jackson, 253 Ga. 576 (322 SE2d 725) (1984), accord Atkinson v. Ledbetter, 183 Ga. App. 739 (360 SE2d 66) (1987), the appellant argues that we should not follow that ruling but should rely on contrary decisions from several other states. This, of course, we are not at liberty to do, inasmuch as we are constitutionally bound by the decisions of our own Supreme Court. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. Moreover, there is at least some indication in the present case that the blood test may have been improperly performed.

OCGA § 19-7-49 (C) specifies that “[w]here the issue of parentage is to be decided by a jury, where the results of blood tests and comparisons are not shown to be inconsistent with the results of any other blood tests and comparisons, and where the results of those blood tests and comparisons indicate that the alleged parent cannot be the natural parent of the child, the jury shall be instructed that, if they believe that the witness presenting the results testified truthfully as to those results and if they believe that the tests and comparisons were conducted properly, it will be their duty to decide that the alleged parent is not the natural parent.” The jury in the present case was so instructed, and because there was at least some basis upon which the jurors could have discounted the results of the prior HLA testing as being unreliable, we hold that they were authorized to reject those test results and to rely instead on the other evidence tending to show that the appellant was the child’s father.

2. The appellee filed a pretrial motion in limine challenging the admissibility of certain photographs of her two older children, contending that, because the appellant was indisputably not the father of these children, their appearance was irrelevant and that, because they exhibited interracial characteristics, introduction of the photos could serve to prejudice the jury against her. The trial court initially denied the motion and allowed the photographs to be admitted into evidence for the purpose of comparing the facial characteristics of the older children with those of the child whose paternity was at issue; however, the court thereafter reversed itself and, over objection by the appellant, withdrew the photographs from the jury’s consideration based on a determination that their relevancy was outweighed by their potential for prejudice. The court then explained its ruling to the jury and instructed them that they were to disregard the photographs and any testimony concerning them. “If the [appellant] was dissatisfied with the court’s instructions, it was incumbent upon him to request further instructions, renew his objection, or request a mistrial. [Cits.]” Waddill v. Waddill, 143 Ga. App. 806, 808 (240 SE2d 129) (1977). As the appellant followed none of these options, this enumeration of error presents nothing for review.

3. The appellant contends that the dismissal of the prior child support recovery action barred further litigation of the issue of paternity pursuant to the doctrine of res judicata. “[I]n order for the doctrine [of res judicata] to apply there must be an identity of the parties, identity of the cause of action, and an adjudication by a court of competent jurisdiction. [Cit.]” Dixie Home Bldrs. v. Waldrip, 146 Ga. App. 464, 465 (246 SE2d 471) (1978). See OCGA § 9-2-44. Assuming arguendo that the first two elements of this test were satisfied, the third clearly was not, inasmuch as the child support action was dismissed without prejudice. Accordingly, this enumeration of error is without merit.

4. The appellee has requested this court to impose a penalty against the appellant pursuant to OCGA § 5-6-6 and Court of Appeals Rule 26 (b) for filing a frivolous appeal. Damages under OCGA § 5-6-6 are not authorized because the judgment is not for a sum certain. See Shepherd v. Epps, 242 Ga. 322 (2) (249 SE2d 33) (1978). The request for imposition of a penalty under Rule 26 (b) is denied because we do not consider all of the issues raised by the appeal to have been frivolous.

Decided September 20, 1989.

Jeffrey R. Sliz, for appellant.

Wendy J. Glasbrenner, Patricia D. Barron, Vicky O. Kimbrell, Phyllis J. Holmen, John L. Cromartie, Jr., for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1523.
    HARDY v. THE STATE.
    (386 SE2d 731)
   McMurray, Presiding Judge.

Following the issuance of two warrants charging appellant with trafficking in cocaine and selling cocaine, appellant was arrested and incarcerated. Thereupon, appellant moved for the setting of bond and, with the consent of the district attorney’s office, bond was set at $40,000. Upon his release, appellant was arrested again and charged with trafficking in cocaine on two other occasions. These charges pertained to incidents which occurred before appellant’s arrest. Appellant again moved for the setting of bond. This time, the motion was opposed by the district attorney’s office and bond was denied, the superior court ruling that there was a substantial likelihood appellant would commit additional crimes (i.e., sell cocaine) if he was released. This appeal followed. Held:

1. The denial of bond under these circumstances is directly ap-pealable. Foster v. State, 165 Ga. App. 137 (299 SE2d 420); Ga. L. 1988, pp. 358, 360.

2. In determining whether bond was denied properly in cases of this kind, we apply a “flagrant abuse” standard. Reed v. State, 134 Ga. App. 47, 48 (213 SE2d 147). In other words, the superior court’s discretion will not be controlled unless it was manifestly or flagrantly abused. Id.

The considerations to be employed by the superior court in granting or denying pre-trial bonds are the same as the considerations to be employed in granting or denying appeal bonds. Lane v. State, 247 Ga. 387, 388 (276 SE2d 644); Foster v. State, 165 Ga. App. 137, supra. One such consideration is whether the person incarcerated is likely to commit a serious crime, i.e., a felony, upon being released. Birge v. State, 238 Ga. 88, 90 (230 SE2d 895); Foster v. State, 165 Ga. App. 137, supra. Release is authorized if the superior court finds the person incarcerated “[p]oses no significant risk of committing any felony pending trial.” OCGA § 17-6-1 (e) (3).

In the case sub judice, the superior court concluded that there was a substantial likelihood appellant would commit a serious crime. Given the additional serious crimes with which appellant was charged following his initial release, we cannot say the superior court flagrantly abused its discretion in reaching this conclusion. “Whether we agree with these findings and conclusions is not controlling. There is some evidence to support at least part of the underlying basis for the [superior] court’s conclusion. Consequently, we do not find a flagrant abuse of the [superior] court’s discretion in denying bail.” Cooper v. State, 178 Ga. App. 709, 716 (11), 717 (345 SE2d 606). Accord Parrish v. State, 182 Ga. App. 247, 251 (355 SE2d 682).

Decided September 21, 1989.

Harrison & Harrison, Samuel H. Harrison, G. Hughel Harrison, for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Debra K. Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, J., concurs. Carley, C. J., concurs in the judgment only.


text:
    A89A1363.
    BURCH v. UOKUNI INTERNATIONAL, INC. et al.
    (386 SE2d 889)
   Banke, Presiding Judge.

On January 1, 1987, the appellant’s son and a companion, both 19 years of age at the time, became intoxicated while consuming alcoholic beverages at a tavern owned and operated by the appellees. While attempting to return home, they were involved in a motor vehicle accident, as a result of which the companion died and the appellant’s son suffered serious injuries. The son was driving at the time and was charged with DUI and vehicular homicide. He ultimately entered a negotiated plea to those charges.

The appellant brought the present action seeking, to recover damages from the appellees pursuant to OCGA § 51-1-18 (a), based on their alleged unlawful conduct in furnishing alcoholic beverages to his “underage” son. As special damages, he sought to recover the legal fees, towing fees, and medical expenses he had incurred on his son’s behalf as a result of the accident, as well as the expense of paying off certain bank loans owed by his son which he had personally guaranteed. In addition, he sought to recover damages for mental and emotional distress he had suffered as a result of his son’s injuries. This appeal is from the grant of the appellees’ motion for summary judgment. Held:

As it existed at the time of the accident, OCGA § 51-1-18 provided as follows: “(a) A father or, if the father is dead, a mother, shall have a right of action against any person who shall sell or furnish alcoholic beverages to his or her underage child for the child’s use without the permission of the child’s parent, (b) A parent shall have a right of action against any person who shall play and bet at any game of chance with his minor child for money or any other thing of value without the parent’s permission.” (Emphasis supplied.)

The appellant contends that because the term “minor child” is used in subsection (b) of this Code section, it logically follows that the use of the term “underage child” in subsection (a) reflects a legislative intention to refer to an age other than the legal age of majority, which is and has been at all times relevant to this action 18. See OCGA § 39-1-1 (a). The only other age the term could logically refer to, argues the appellant, is the legal drinking age, which is and has been at all times relevant to this action 21. See OCGA § 3-3-23.

We note that in 1988, after the occurrence of the alleged tort on which the present action is predicated, the words, “[a] father or, if the father is dead, a mother . . .,” which formerly appeared in subsection (a) of OCGA § 51-1-18 were replaced by the words, “[t]he custodial parent or parents. . . .” Ga. L. 1988, p. 363, § 1. (Emphasis supplied.) Because an individual who is over the legal age of majority obviously is no longer under the custody and control of either parent, see OCGA § 19-7-1 (a), it is clear that if the appellant’s claim against the appel-lees were governed by the present statute, he would have no right of action under the statute. For much the same reason, i.e., because a parent’s statutory obligation to support his or her child ends after the child has attained the legal age of majority, we hold that the former version of OCGA § 51-1-18 similarly cannot be construed as conferring a right of action upon the appellant to recover the legal, medical, and other expenses which he incurred on his son’s behalf. We reject the appellant’s argument that a different conclusion may be reached in the present case because his son was still living with him at the time of the accident under an implied agreement whereby he (the appellant) continued to provide “all the financial benefits associated with a child’s minority in exchange for the son’s granting to [him] all the rights of a parent.” As such an implied agreement would not have been enforceable by either of the parties thereto, it could not have affected the legal rights and obligations of others not parties to it.

Under the circumstances, to allow the appellant to recover the various expenses which he incurred on his son’s behalf as a result of the accident would be to undermine and circumvent the rule, announced by the Georgia Supreme Court in Sutter v. Hutchings, 254 Ga. 194, 200 (357 SE2d 716) (1985), that a provider of alcoholic beverages cannot be held liable to a consumer of alcoholic beverages for injuries sustained as a result of such consumption. That rule would also be circumvented by allowing the appellant to recover the expense of paying off his son’s loans. Indeed, we are aware of no circumstances in which the guarantor of a loan has been allowed to recover in tort for injuries to the primary obligor under the theory that, but for such injuries, recourse on the guaranty would not have been necessary.

Decided September 22, 1989.

Paul S. Liston, Linda R. Wells, for appellant.

Duncan & Mangiafico, George E. Duncan, for appellees.

The appellant’s claim for damages for the emotional loss and trauma which he sustained as a result of his son’s injuries similarly is not cognizable under present law. In Strickland v. Hodges, 134 Ga. App. 909 (216 SE2d 706) (1975), this court held that a parent may not recover for mental and emotional distress stemming from a tortious injury inflicted upon his or her child where the parent suffered no physical impact as a result of the defendant’s conduct. Accord Howard v. Bloodworth, 137 Ga. App. 478 (224 SE2d 122) (1976). It being apparent for the foregoing reasons that the appellant sustained no legally recoverable damages as a result of the appellees’ alleged breach of duty, we accordingly hold that the trial court did not err in granting the appellees’ motion for summary judgment.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1488.
    TRUSSELL SERVICES, INC. v. CITY OF MONTEZUMA.
    (386 SE2d 732)
   McMurray, Presiding Judge.

Plaintiff Trussell Services, Inc., filed this action for damages against defendant City of Montezuma, alleging that plaintiff’s building was damaged by flood waters coming from the public streets of the city due to the negligent manner in which defendant cleaned and maintained the paved street surfaces near plaintiff’s building. By amendment, plaintiff added a second basis for its claim, that the damages to its building resulted from a wrongful taking or damaging of private property for public purpose without just and adequate compensation being made as required by the Constitution of the State of Georgia of 1983, Art. I, Sec. Ill, Par. I.

Following discovery, defendant moved for summary judgment. Plaintiff appeals from the grant of defendant’s motion for summary judgment. Held:

Insofar as plaintiff’s action is predicated upon the alleged negligence of the defendant city in failing to maintain and provide an effective drainage system sufficient to divert the flow of rainwater from plaintiff’s property, the doctrine of sovereign immunity bars recovery, since the function of maintaining a drainage system is governmental. City Council of Augusta v. Williams, 81 Ga. App. 132 (58 SE2d 208). Likewise, any recovery predicated upon a contribution to plaintiff’s injury by the defendant’s negligent failure to remove trash is also barred, since removal of trash is also a governmental function. Ethridge v. City of Lavonia, 101 Ga. App. 190 (112 SE2d 822). Also, we note the absence of any evidence that a nuisance was created. A single isolated act of negligence not continuous or recurrent, is not sufficient to show a negligent trespass constituted a nuisance. City of LaGrange v. Whatley, 146 Ga. App. 174 (246 SE2d 5); City of East Point v. Terhune, 144 Ga. App. 865, 866, 867 (1) (242 SE2d 728).

Decided September 22, 1989.

G. Leonard Liggin, for appellant.

Hodges, Erwin, Hedrick & Kraselsky, William H. Hedrick, Gail | Singleton, for appellee.

Finally, we reject plaintiff’s contention that its property was “taken” for a public use. See Constitution of the State of Georgia of 1983, Art. I, Sec. Ill, Par. I; C. F. I. Constr. Co. v. Bd. of Regents &c. of Ga., 145 Ga. App. 471, 474 (4), 475, 477 (243 SE2d 700). Plaintiff argues that defendant, in effect, took its property and made it a part of the municipal' drainage system without plaintiff’s consent or the payment of just and adequate compensation. However, we must reject plaintiff’s argument as controlling precedent shows clearly that from this inadvertent event “ ‘no inference can be drawn that the damage to the plaintiff’s [building] was done in order that it be used for a ‘public purpose.’ ” Johnson v. City of Atlanta, 117 Ga. App. 586, 588 (161 SE2d 399). The superior court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A1547.
    BROWN v. THE STATE.
    (386 SE2d 734)
   Sognier, Judge.

Timothy Wayne Brown was found guilty of three counts of childl molestation and three counts of aggravated child molestation. He ap-| peals.

1. Appellant first challenges the sufficiency of the evidence. Con-| strued to support the verdict, the evidence adduced at trial reveals! that from 1981 until January 1988, the female victim resided with ap-l pellant and his wife, the victim’s aunt. Ola Paulson, the victim’s! cousin, testified that in January 1988, the victim, who was ten years old at the time, and her younger sister came to live with Paulson, and that she subsequently obtained legal custody of the girls with their mother’s consent. Paulson stated that shortly after the victim moved in, she (Paulson) noticed a discharge on the victim’s underwear which she considered unusual for a child of that age, and that after she questioned the victim several times, the child revealed that appellant had sexually molested her. The pediatrician who examined the victim in February 1988 at Paulson’s request testified that the victim’s vaginal opening appeared to be “typical of a sexually active adult female,” a condition that in his opinion was the result of “multiple” acts of sexual intercourse, and that she also had a vaginal infection. The victim testified that appellant fondled her breasts and performed oral sodomy and sexual intercourse with her at least six times during 1987. The sheriff’s detective and the case worker who investigated the matter both testified that the victim had made the same statements to them in February 1988. Appellant denied ever having touched or abused the victim sexually.

We find this evidence sufficient to enable a rational trier of fact to convict appellant of the charged violations of OCGA § 16-6-4 (a), (c). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although appellant questions the credibility of Paulson, the case worker, and the victim, “[t]he credibility of witnesses and the weight to be accorded their testimony is the sole province of the jury. [Cit.]” Herndon v. State, 187 Ga. App. 77, 78 (4) (369 SE2d 264) (1988).

2. Appellant also contends the trial court erred by granting the State’s oral motion in limine because such a motion constitutes a motion to suppress, which under OCGA § 17-5-30 (b) is required to be in writing. We do not agree, as by its terms OCGA § 17-5-30 applies only to motions to suppress evidence made by criminal defendants. Appellant has not cited any other authority for his contention that a motion in limine must be in writing, nor has our research disclosed any such rule. We have recognized that oral motions in limine may be made in civil cases at the time of trial, Walton v. Datry, 185 Ga. App. 88, 91 (363 SE2d 295) (1987), and use of such motions has been referenced in criminal cases without condemnation by our appellate courts. See, e.g., State v. Johnston, 249 Ga. 413, 415 (291 SE2d 543) (1982). As the purpose of a motion in limine is either to seek a ruling on the admissibility of evidence prior to its introduction or to preclude discussion of the challenged evidence by anyone until its admissibility may be determined outside the presence of the jury, id.; Walton, supra at 90-91 (2), we see no reason why such a motion should not be as applicable and available in criminal trials as it is in civil trials. Accordingly, we find no error in the trial court’s ruling.

Decided September 22, 1989.

Jack E. Carney, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0896.
    K’S COMPANY, INC. v. GALLERIA MALL ASSOCIATES et al.
    (386 SE2d 672)
   Banke, Presiding Judge.

The appellant, K’s Company, Inc., operated a delicatessen and sandwich shop in. a shopping mall owned by the appellee. It filed the present action to rescind its lease and to recover actual and punitive damages based on allegations of fraud. The appellee counterclaimed to recover past-due rent, to collect monies allegedly owed under a promissory note, and to recover damages for abusive litigation. The trial court granted partial summary judgment to the appellee with respect to the appellant’s fraud claim, and this appeal followed.

The appellant’s president, Kelecki, testified that representatives of the appellee approached him during the term of his original lease with the idea of acquiring additional space in the mall in which to expand his business. He stated that he informed the appellee’s representatives that he would not be interested in expanding unless the appellee agreed not to lease space in the mall to a competing restaurant and that the appellee’s representatives responded by telling him it was illegal to insert such a clause into a written lease contract in Georgia but that the appellee would agree to such an arrangement orally. Kelecki maintained that in reliance on this promise he executed a new 10-year lease on September 27, 1983, covering additional space in the mall.

While it is undisputed that Kelecki requested the placement of an “exclusive use” provision in the lease, the appellee denies that its agent ever agreed to such a provision, either orally or in writing. The appellee further denies that its agents ever told Kelecki that exclusive use agreements were illegal in Georgia.

The appellant operated an expanded restaurant in the mall at a steadily increasing profit for approximately I-V2 years after signing the new lease, at which time a new restaurant opened in the mall offering a menu similar to that offered by the appellant. Almost immediately thereafter, the appellant’s business declined to the point where it was operating at a loss. Kelecki discussed the situation with the appellee’s representative, who allegedly told him the appellee would make “every effort to work with” him and would make “certain rent concessions if necessary.” However, all efforts to save the business were unsuccessful; and in a letter dated July 7, 1986, the appellant notified the appellee that it was rescinding the lease agreement and vacating the premises. Held:

Decided September 5, 1989

Rehearing denied September 25, 1989

Richard J. Dreger, for appellant.

Holt, Ney, Zatcoff & Wasserman, Stephen C. Greenberg, David F. Cooper, for appellees.

1. The trial court correctly concluded that the appellee’s alleged representations did not constitute actionable fraud. “Although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place [cit.], fraud cannot be predicated on a promise which is unenforceable at the time it is made.” Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). See also Casgar v. C & S Nat. Bank, 188 Ga. App. 234 (1) (372 SE2d 815) (1988); Phillips v. Liberty T.V. Cable, 166 Ga. App. 411 (304 SE2d 516) (1983); OCGA § 13-5-5. Any agreement that is not to be performed within one year from the making thereof is, of course, required to be in writing pursuant to the Statute of Frauds. See OCGA § 13-5-30 (5). Thus, the alleged oral promise by the appel-lee which is the subject of this action was not one upon which the appellant was legally entitled to rely. Accord Ely v. Stratoflex, Inc., 132 Ga. App. 569, 572 (208 SE2d 583) (1974). It follows that the trial court did not err in granting partial summary judgment to the appel-lee with respect to the appellant’s claim for rescission and other relief based on fraud.

2. The appellant’s remaining contentions are rendered moot by the foregoing.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A1252.
    BROWN v. THE STATE.
    (386 SE2d 673)
   Deen, Presiding Judge.

Appellant Brown was convicted of aggravated assault and armed robbery for the shooting and stabbing of an elderly acquaintance, whose house he had entered on a pretext and had then proceeded to take a pistol and other items belonging to the victim. The victim positively identified appellant as the perpetrator, and physical evidence corroborating her account was recovered by police. Brown appeals, enumerating as error (1) the trial court’s omitting to charge the jury that the defendant’s failure to testify should not create a presumption against him, and (2) ineffective assistance of counsel. Held:

Decided September 5, 1989

Rehearings denied September 25, 1989.

Clayton Jones, Jr., for appellant.

Hobart M. Hind, District Attorney, L. Earl Jones, Assistant District Attorney, for appellee.

1. Scrutiny of the record indicates that no jury instruction on defendant/appellant’s failure to take the witness stand was requested. Georgia courts have held that, absent a timely written request, it is not error for the trial court to omit such a charge. Lay v. State, 242 Ga. 225 (248 SE2d 611) (1978); Mauldin v. State, 167 Ga. App. 789 (307 SE2d 689) (1983). Accordingly, we find this enumeration to be without merit.

2. Appellant alleges that his trial counsel was ineffective because, inter alia, he failed to request the jury instruction discussed in Division 1, supra, and did not attempt to establish an alibi for defendant by calling certain witnesses who purportedly would have given alibi evidence. Our review of the record indicates, however, that the evidence of appellant’s guilt was so clear-cut and overwhelming that none of the alleged instances of ineffectiveness of counsel could have prejudiced his defense. In Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988), this court cited Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), regarding the relevant two-pronged test: “(1) counsel’s performance was deficient; and (2) this deficiency prejudiced the defense . . . [Cit.] In Strickland . . . the court approved a ‘reasonably effective assistance’ standard which had already been adopted in Pitts v. Glass [Cit.] . . . Thus, ‘(t)he reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial . . . The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ [Cit.]” Applying this standard, we find no merit in appellant’s second enumeration.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A1261.
    In the Interest of R. L. L. et al., children.
    (386 SE2d 852)
   Deen, Presiding Judge.

This child custody case has a protracted history. See Harper v. Landers, 180 Ga. App. 154 (348 SE2d 698) (1986); In re R. L. L., 258 Ga. 628 (373 SE2d 363) (1988). The appellant father of the children was divorced in 1980 from the mother, who died in September 1984. For six years prior to the death of the mother the two children resided with their maternal grandparents, who were awarded temporary custody of the two children in November 1986. The appellant disobeyed that order and took the children to Florida, where he began a custody proceeding. The children were finally returned to the grandparents, and approximately one year later the trial court awarded custody to the grandparents for an additional two-year period. The Supreme Court, however, eventually remanded the case for a determination of the appellant’s present fitness as a parent, pursuant to Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). Following a hearing held on December 22, 1988, the trial court found the appellant unfit and continued custody with the maternal grandparents, and this discretionary appéal resulted. Held:

The evidence adduced at the December 1988 hearing, which primarily concerned the appellant’s situation since the last hearing in November 1986, showed that the appellant had married the woman with whom he had been living, and was step-father to her three children. The father of the three children had no complaint with the way the appellant served his role as step-parent. They lived in a recently-built house in Florida. He was self-employed as an electrician, and his wife was employed by a plumbing company. The appellant and his wife had joined a Catholic church, although the regularity of their church attendance was disputed. The appellant had developed an alcohol abuse problem and had admitted himself to a treatment program in April 1988. While no court order had been issued requiring the father to support the children, the Georgia statute nevertheless mandates parental support of one’s children. He had not contributed to their support during the past two years, and over a previous five-year period averaged only about $5 per week.

The task before the trial court was to determine whether clear and convincing evidence showed that the appellant is presently unfit as a parent and thus not entitled to custody. In re R. L. L., supra. In holding that clear and convincing evidence supported a finding of present unfitness, the trial court recalled the appellant’s past refusal to obey court orders, his imperfect relationship with his children, and “a highly charged atmosphere of alcoholism, violence and constant bickering. . . .” While appellant’s refusal to obey the trial court’s orders in 1986 is insufficient alone to support a present determination of unfitness, other evidence as- to present unfitness must also be considered. The evidence of parental unfitness adduced in regard to the temporary custody determination of November 1986 may very well have been clear and convincing, but it is primarily the evidence adduced at the December 1988 hearing that must demonstrate clearly and convincingly the present unfitness of the appellant as a parent.

While the out-of-wedlock mode of living, the fighting, and the bickering had improved for the better, we focus now mainly on two points: (a) drugs; and (b) nonsupport of the children, (a) Past involvement in marijuana and cocaine use and conviction for conspiracy to sell the latter may only be viewed now as a possible influence leading to the present acknowledgment of an addictive alcoholism atmosphere applicable to appellant. He testified: “I am an alcoholic. I have a disease of alcoholism.” (Some experts who regard it a disease claim that the addict has an inborn instinctive “genetic predisposition . . . The diseased individual undergoes molecular depletion of the endorphin-enkephalin metabolism with the ancient, reptilian-derived survival hypothalamic brain . . . derived for survival of the species.” Talbott, “Alcoholism & Other Drug Addictions: A Primary Disease Entity,” Recent Developments in Ga. Law, pp. 2a.l, 22a.4 (Dec. 1987). Our courts have rejected this speculative notion of its being a disease and have held that it is a product of the free will and it is the drinker’s choice to drink. Choice v. State, 31 Ga. 424, 473-474 (1860); Burger v. State, 118 Ga. App. 328 (163 SE2d 333) (1968); Dan River, Inc. v. Shinall, 186 Ga. App. 572 (367 SE2d 846) (1988). Drinking a six-pack of beer every day for almost six weeks is a substantial addiction. The children said that the appellant had a Coors Lite in his hand most of the time when they were with him. Appellant claims that, although he admits to being an alcoholic, his treatment may have caused abatement of the addiction, but this is an issue for determination by the factfinder on the basis of all the evidence, (b) Further, there has been a continued absence of financial support of the children on appellant’s part. We cannot say theré is no competent evidence to support the finding of the trial judge that it has been demonstrated by clear and convincing evidence that appellant is presently unfit as a parent, and also it is in the best interest of the children to place custody with the appellee grandmother. The latter view! is also the children’s preference. We cannot substitute our judgment] for that of the trial judge if he uses the correct standard of review andl if evidence supports his finding. I

Accordingly, the trial court did not err in awarding custody for el two-year period to the grandmother. We note that this holding affect! only the custody of J. M. L., since R. L. L. has reached the age of la during the pendency of this appeal. I

Judgment affirmed.

Birdsong, J., concurs. Benham, J., concur1 specially.

Decided September 5, 1989

Rehearing denied September 25, 1989

Charles L. Jurjevich, N. Lee Presson, for appellant.

Thomas J. Browning, for appellees.

Benham, Judge,

concurring specially.

While I am in agreement with the judgment, I am not in agreement with the main opinion’s reaffirmation of principles relating to alcoholism as evidenced by my joining the dissent in Dan River, Inc. v. Shinall, 186 Ga. App. 572 (367 SE2d 846) (1988). The issue of alcoholism is incidental and not determinative of the issue before us; therefore, I would not give it as much weight as the main opinion appears to do.


text:
    A89A1268.
    FAIRWAY TRANSPORTATION, INC. et al. v. BREWER.
    (386 SE2d 674)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case sustained a compensable neck injury on January 18, 1987, while employed as a truck driver. He received total disability benefits for the injury until April 25, 1987, when the payments were suspended by the employer for the stated reason that he had been “released to return to work 2/ 27/87 full duty.” Following a change-in-condition hearing held at the claimant’s request, an administrative law judge determined that the claimant’s current symptoms were attributable to a pre-existing condition rather than to his work-related injury and that the employer had accordingly been justified in suspending his disability benefits. These findings were adopted by the full board; however, the superior court reversed, finding insufficient competent evidence that the claimant had experienced a change in condition for the better. The case is before us pursuant to our grant of the employer’s application for a discretionary appeal. Held:

“The superior court was required to construe the evidence in the light most favorable to the employer as the party who prevailed before the Full Board. See generally OCGA § 34-9-105. [Cit.] The Full Board’s findings of fact, when supported by any evidence, are conclusive and binding. [Cit.] The superior court is not authorized to substitute its judgment for that of the Full Board. [Cit.]” Dept. of Public Safety v. Boatright, 188 Ga. App. 612, 613-614 (373 SE2d 770) (1988).

Decided September 5, 1989

Rehearing denied September 25, 1989

R. Chris Irwin & Associates, Edwin G. Russell, Jr., for appel| lants.

Ronald L. Hilley, for appellee.

The medical evidence in this case established without dispute that the claimant had been released to return to work both by his treating physician and by a consulting neurosurgeon prior to the suspension of benefits. Although he continued to complain of neck pain thereafter, a cervical myelogram and CT scan of his neck revealed no abnormality. While physical therapy was recommended, no work restrictions were indicated by any of the medical experts.

“In order for the board to terminate an employee’s eligibility for benefits, the evidence must prove an improved economic condition. See [OCGA § 34-9-104]. This is proved by evidence that the employee’s physical condition has improved to the point that he has either already returned to work or has the ability to return to work for the same or any other employer. [Cits.]” Spell v. Travelers Ins. Co., 147 Ga. App. 160, 162 (248 SE2d 292) (1978). “[W]hen the evidence demonstrates that the employee’s physical condition is so improved that no disability remains to prevent the employee from working without any restriction, the employee’s continued unemployment is no longer caused by the disability and the need for workers’ compensation benefits is at an end.” Pierce v. AAA Cabinet Co., 173 Ga. App. 463, 464 (326 SE2d 575) (1985).

We hold that the evidence in the present case authorized the board, as the finder of fact, to conclude that the employer had carried its burden of proving that the claimant was no longer suffering from any disability as a result of his work-related injury. See generally Cornell-Young v. Minter, 168 Ga. App. 325 (1) (309 SE2d 159) (1983). Under the “any evidence” rule, it follows that the superior court erred in reversing the board’s decision.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A1293.
    HUB MOTOR COMPANY, INC. v. BURDAKIN.
    (386 SE2d 854)
   Banke, Presiding Judge.

The appellee sued the appellant to recover actual and puniti\ damages for the latter’s alleged negligence in performing certain boc repair work on his 1978 General Motors “Jimmy” motor vehicle. jury returned a verdict in his favor, and this appeal followed.

The vehicle was damaged in a collision in December of 1983. It was thereafter taken to the appellant’s body shop, where the appellant undertook to repair the damage in accordance with an appraisal report prepared by the motor vehicle insurance carrier for the other driver involved in the collision. The appellant finished work on the vehicle in March or April of 1984; but, due to a delay in receiving full payment from the insurance company, the appellee did not retrieve the vehicle from the appellant’s premises until October of 1984. The appellee stated that he experienced difficulty in steering the vehicle on his way home and that he telephoned the appellant’s body shop manager the following business day to complain that the vehicle had “serious problems.” The manager testified that he told the appellee to bring the vehicle back. The appellee testified that he was afraid to drive the vehicle and that he insisted, without success, that the appellant send someone to pick it up.

Initially, the appellee asserted a claim for damages under the Georgia Fair Business Practices Act of 1975, OCGA § 10-1-390 et seq., as well as a claim for actual and punitive damages based on the appellant’s alleged negligence in performing the repairs. However, in a prior appearance of the case before this court, we affirmed a grant of partial summary judgment to the appellant with respect to the Fair Business Practices Act claim, concluding that “[t]he situation ... involved only a repair agreement between the parties and did not involve the introduction of any act or practice into the stream of commerce.” Burdakin v. Hub Motor Co., 183 Ga. App. 90, 91 (357 SE2d 839) (1987). The case then proceeded to trial on the negligence claim. , The jury returned a verdict in favor of the appellee for actual damages in the amount of $4,400 and punitive damages in the amount of $10,000. Held:

1. The appellant contends that it was entitled to a directed verdict on the issue of liability because “no evidence [was] presented . . . regarding the work to be performed or the work actually performed by the appellant.” This contention is without merit. Through [its vice president, the appellant acknowledged that it had agreed to [repair the vehicle in accordance with the appraisal report prepared by [the insurance company and that, in doing so, it had undertaken to fix [the vehicle in such a manner that it would be “suitable for use.” Similarly, the appellant’s body shop manager conceded that the appellant liad agreed to perform all of the repair work at issue. Yet, from the evidence presented by the appellee, which included expert opinion testimony from a structural engineer, it is evident that when the ap-pellee picked up the vehicle there were bushings and rivets missing ■rom the undercarriage, a stabilizer bar was loose, and the frame was leverely cracked. The jury was authorized to conclude from the testimony of the appellee and his expert that these defects rendered the vehicle unsuitable for driving. Accordingly, the appellant’s motion for directed verdict on the issue of liability was properly denied.

2. The appellant contends that even if the evidence was sufficient to support a finding that the repairs were not performed properly, there nevertheless existed no basis for an award of punitive damages. With this contention we must reluctantly agree.

“Generally, punitive damages are not recoverable for breach of contract, even though the breach may be in bad faith. OCGA § 13-6-10; Nestle’ Co. v. J. H. Ewing & Sons, 153 Ga. App. 328 (265 SE2d 61) (1980).” Parsells v. Orkin Exterminating Co., 172 Ga. App. 74, 76 (322 SE2d 91) (1984). Although a failure to discharge a contractual obligation in a skillful and workmanlike manner may give rise, under appropriate circumstances, to a cause of action for negligence as well as for breach of contract, “[generally, a mere breach of a valid contract amounting to no more than a failure to perform in accordance with its terms does not constitute a tort or authorize the aggrieved party to elect whether he will proceed ex contractu or ex delicto. [Cits.] Accordingly, ... if there is no liability except that arising out of a breach of the express terms of the contract, the action must be in contract, and an action in tort cannot be maintained.” Mauldin v. Sheffer, 113 Ga. App. 874, 877-8 (150 SE2d 150) (1966). Moreover, even if a tort action is maintainable, “ ‘[m]ere negligence, although gross, will not alone authorize the recovery of punitive damages.’ [Cits.]” BLI Constr. Co. v. Debari, 135 Ga. App. 299, 302 (217 SE2d 426) (1975). “To authorize the imposition of punitive damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter ex pression relates to an intentional disregard of the rights of another knowingly or wilfully disregarding such rights.” Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975).

Although the jury could have determined from the evidence in| this case that the repair work performed by the appellant was gross! deficient, the only damage which appellee suffered was his failure h receive a properly repaired vehicle. We are aware of no Georgia casi in which a mere failure to perform a repair contract according to iti terms, whether attributable to negligence or otherwise, has been he! sufficient in and of itself to support an award of punitive damages| The cases relied upon by the appellee do not constitute authority fo: such a ruling, inasmuch as they involved conduct which was tortiou: in its own right. See, e.g., Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855 (294 SE2d 533) (1982) (involving the fraudulent sale of motor vehicle); Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (355 SE2d 104) (1987) (involving personal injury resultin| from professional malpractice); Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188 (232 SE2d 62) (1977) (involving wilful interference with property rights). Because the present case does not involve such conduct and because the appellee suffered no additional injury to his person or property as a result of the appellant’s breach of duty, we are constrained to hold that the trial court erred in denying the appellant’s motion for directed verdict on the issue of punitive damages.

3. The appellant contends the trial court erred in allowing the appellee to introduce into evidence certain correspondence which he had sent to the appellant’s vice president, in which he asserted that he had been advised by several of the vice-president’s “peers” that his vehicle was not safe to drive and had been told by “three other auto dealer estimators” that the vehicle was not repairable. These statements clearly constituted hearsay, and we agree that the appellee failed to show how they could be considered relevant to explain any conduct legitimately at issue in the case, so as to render them admissible pursuant to OCGA § 24-3-2. However, we hold that the trial court’s error in admitting the statements was harmless inasmuch as the appellant’s liability for breach of the repair contract was established beyond dispute independently of these statements.

4. We reject the appellant’s contention that a proper foundation was not established to enable the appellee to give his opinion regarding the value of the vehicle immediately before and after the performance of the repairs by the appellant. See generally Dixon v. Williams, 177 Ga. App. 702, 704-5 (340 SE2d 286) (1986). While the appellant complains that, in seeking to recover as actual damages the $6,000 difference between these two figures, the appellee failed to recognize that the vehicle would have been worth less after the collision than before even had it been repaired in a skillful and workmanlike manner, we note that the jury evidently took this into account by award-ling the appellee actual damages in the amount of only $4,400. It has been held that “[a]utomobiles today are items well within the common knowledge of everyone including jurors.” Gwinnett Commercial Bank v. C & S Bank, 152 Ga. App. 137, 141 (262 SE2d 453) (1979). See also Bill Spreen Toyota v. Jenquin, supra, 163 Ga. App. at 860 1(4). Because the jury reduced the damages sought by the appellee in a [manner which may reasonably be deemed curative of the deficiency of [which the appellant complains, we hold that its award was supported the evidence.

Judgment affirmed in part and reversed in part.

Sognier and 'ope, JJ., concur.

Decided September 5, 1989

Rehearing denied September 25, 1989

Glenn S. Bass, for appellant.

Richard T. Taylor, Albert R. Sacks, for appellee.


text:
    A89A1315.
    HARRELL v. THE STATE.
    (386 SE2d 676)
   Deen, Presiding Judge.

The appellant, Theodore Harrell, was convicted of theft by deception, stemming from his purported purchase of a new motor vehi cle. On January 26, 1988, after negotiating a purchase price of $25,000, Harrell presented a draft for that amount to Carrollton Car Center, and drove the vehicle home. Harrell had typed the draft on a blank form which he had obtained from a local C & S National Bank in Carrollton, Georgia; this draft bore the C & S logo but not an account number, and indicated that the draft was payable through Harrell’s Quality Control Systems, Inc., in Lake Park, Georgia.

The following morning, the owner of the car dealership reviewec the paperwork for the sale and was alarmed when he noticed that the draft bore no account number. Contact with the local C & S bank revealed no bank account for either Harrell or the corporation. The dealership owner notified the police about the transaction, but late: that day recovered the vehicle when he and the salesman, while driv ing around trying to find Harrell, observed Harrell pull over to use ¿ pay telephone. Harrell and his wife then left the area, and he wa¡ subsequently arrested in south Georgia. Held:

1. Harrell contends that the trial court erred in denying his mo tion for directed verdict of acquittal because there was a fatal vari anee between the indictment and the evidence at trial. The indict! ment charged Harrell with theft by deception “in that he di< intentionally create the impression of another, Clarence Deese [th salesman], of an existing fact, to wit: that said accused had an a count at C & S Bank under the account name of Harrell’s Qualitj Control Systems, Inc., and presented a bank draft in the amount $25,000, with said account named, which was false and which the a cused knew to be false.” Although the salesman acted under a co: trary impression, the evidence was uncontroverted that the draft Ha: rell tendered as payment for the vehicle actually was not a ba: draft.

“ ‘The general rule that allegations and proof must correspond based upon the obvious requirements (1) that the accused shall definitely informed as to the charges against him, so that he may enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ [Cit.]” DePalma v. State, 225 Ga. 465, 469-70 (169 SE2d 801) (1969). Despite its mischaracter-ization of the instrument as a bank draft, the indictment adequately informed Harrell of the charge against him so that he could prepare a defense and so that he was protected against another prosecution.

Harrell also contends that a fatal variance existed inasmuch as the indictment did not inform him of the State’s intention to disprove the existence of the corporation indicated on the draft, thus surprising him and preventing him from being able to defend by obtaining evidence of the corporation’s existence. However, although the State’s attempt to disprove the corporation’s existence, adduced as proof of a deceitful intent, may have surprised Harrell, it did not create a variance between the allegation and the proof.

2. Harrell points out that in cases construing the old cheating and swindling laws from which OCGA § 16-8-3 descended, this court found proof of pecuniary loss by the person alleged to have been cheated to be essential to a conviction. See Wilson v. State, 84 Ga. App. 703 (6) (67 SE2d 164) (1951). OCGA § 16-8-3, however, provides that “[a] person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” The evidence showed that Harrell obtained the property of the dealership, albeit for less than one day, and this was sufficient under the statute; we find no requirement of proof of pecuniary loss.

3. Harrell next contends that the trial court erred in not striking as inadmissible hearsay testimony of the former vice-president and [branch manager of the local C & S bank about Harrell’s approaching the bank and discussing transferring funds from his account in another C & S bank in another county. However, immediately preceding this testimony, the bank employee who actually discussed this matter [with Harrell testified to essentially the same facts. “Proof of the same ¡facts by legally admissible evidence renders harmless any admission lof inadmissible evidence.” Crawford v. State, 178 Ga. App. 739, 739-740 (344 SE2d 533) (1986).

I 4. The evidence authorized a rational trier of fact to find Harrell builty beyond a reasonable doubt of theft by deception in violation of t)CGA § 16-8-3. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided September 5, 1989

Rehearing denied September 25, 1989

Ralph H. Witt, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.


text:
    A89A1339.
    TIMBERBANK, INC. et al. v. HAYNES.
    (386 SE2d 861)
   Banke, Presiding Judge.

Winfred N. Haynes sued TimberBank, Inc., his former employer, for breach of their written employment agreement. By separate complaint, he also sued Michael W. Catón, TimberBank’s principal officer and shareholder, seeking both to hold him personally liable on the contract on the theory that he had operated the corporation as his alter ego and to hold him liable in tort for malicious interference with his rights under the contract. TimberBank counterclaimed, alleging breach of contract and breach of fiduciary duty by Haynes. The two cases were consolidated for trial.

Based on the evidence presented during the trial of the case, the court determined that Catón could not be held personally liable for the corporation’s acts under the alter ego theory and accordingly directed a verdict in his favor on that claim. The jury thereafter returned a verdict in favor of Haynes on the remaining claims, assessing $5,000 in damages against TimberBank for breach of contract and assessing $60,000 in actual damages plus $5,000 in punitive damages against Catón for tortious interference. The jury additionally determined that the defendants were liable to Haynes for attorney fees; and, pursuant to a stipulation by the parties that the amount of such fees would be left to the court, attorney fees were subsequently assessed against them jointly in the amount of $60,000. This appeal is from the denial of the defendants’ motions for new trial or for judgment notwithstanding the verdict.

TimberBank was formed in 1985 for the purpose of marketing investment opportunities in timberland to institutional investors. The company did not itself own such properties but sought to earn fees from investors for managing properties thus marketed. Catón was TimberBank’s president and chief executive officer, as well as the owner of 98 percent of its voting stock. The company had two initiaM sources of income. The first was a contract to manage certain Missis-H sippi timber leases owned by McMahan & Company, a company foiM which Catón had formerly worked and which was owned in whole ol in part by his stepbrother, Bruce McMahan. The management feefl generated by this contract amounted to $275,000 per year. TimberBank’s second initial income source was the registered investment advisor through which it planned to market its services. That company had agreed to pay TimberBank $12,000 to $15,000 per month during the initial period of its existence to help sustain it until it could begin generating sufficient revenue from the sale of its management services to cover all of its expenses.

Early, in 1985, Catón offered Haynes, then a professor at the University of Georgia’s School of Forest Resources, a position with TimberBank in hopes that the latter’s contacts and technical expertise in the timber industry would help the company attract clients. Negotiations between the two men culminated in the execution of the written employment contract which is the subject of this action. Pursuant to the contract, Haynes was to begin work on July 1, 1985, as TimberBank’s Chairman of the Board and Chief Operating Officer, at an annual salary of $65,000. His duties were to include supervising and negotiating purchases and sales of “timber, timber leases and other property” and “such other responsibilities and duties consistent with his executive position and of such a nature as are usually associated with the office of Chairman of the Board and Chief Operating Officer of a substantial corporation as may be assigned to him from time to time by the Board of Directors of TimberBank.” The contract specified that Haynes would receive six months’ salary as severance pay in the event his employment were terminated “for cause,” 12 months’ salary in the event his employment were terminated “without cause,” and no severance pay in the event he resigned voluntarily.

At about the time Haynes commenced his employment with TimberBank, it became apparent that, due to the failure of certain anticipated revenue to materialize, the company would not have sufficient income initially to cover all of its projected operating expenses. Accordingly, Haynes agreed in writing to reduce his time commitment to 11 days per month and to accept a proportionate decrease in compensation from September 1, 1985, through December 31, 1985. Because TimberBank’s financial situation had not improved by January 1, 1986, this arrangement was later extended orally through June 30, 1986.

In the spring of 1986, Haynes notified TimberBank that he would not be willing to continue his employment on a reduced salary basis past June 30, 1986. In a telephone conversation which occurred on that date, Catón told Haynes that the timberland investment program would have to be terminated because of their lack of success in securing commitments from institutional investors. Haynes testified that when he asked about his severance pay, Catón told him there was no money available to pay it and that if he insisted upon receiving it, he would be assigned to Hazelhurst, Mississippi, to assume field responsibility for the management of the Mississippi timber leases. Haynes stated that he responded by informing Catón that he did not intend either to move to Mississippi or to abandon his claim for severance pay.

Acting in his capacity as president of the company, Catón sent Haynes a letter on July 7, 1986, informing him that TimberBank would not continue to pay him for his services unless he assumed the duties of the company’s forester in Hazelhurst, Mississippi. On July 28, 1986, Catón sent another letter to Haynes informing him that, by unanimous resolution of the Board of Directors, his employment with TimberBank had been terminated due to his failure to perform his assigned duties. This letter ended by stating: “The foregoing is without prejudice to the company’s claim that the agreement has been terminated by you prior hereto.”

In September of 1986, McMahan & Company gave notice to TimberBank, as it was evidently authorized to do under their contract, that its management services in connection with the Mississippi timber leases would no longer be required after December 31, 1986. Because TimberBank was by then no longer receiving any income from the registered investment advisor, this meant that as of December 31, 1986, TimberBank had no source of revenue whatever. The company ceased all business operations as of that date; and on January 1, 1987, responsibility for the management of the Mississippi leases was assumed by Catón & Company, a formerly inactive corporation owned by Caton’s wife. Catón thereafter received a salary of approximately $120,000 per year from that company. Held:

1. The trial court did not err in denying TimberBank’s motion for a directed verdict on the breach of contract claim. The jury was authorized to conclude from the evidence that the position in Hazelhurst, Mississippi, to which the company purportedly wished to assign Haynes did not involve duties “of such a nature as are usually associated with the offices of Chairman of the Board and Chief Operating Officer of a substantial corporation,” with the result that the purported assignment was inconsistent with the terms of the employment contract. Indeed, the jury could reasonably have concluded under the circumstance that the assignment was nothing more than a thinly disguised ruse designed to enable the company to adopt the position that Haynes had relinquished his right to severance pay by resigning voluntarily.

2. Nor did the trial court err in denying Caton’s motion for directed verdict on the tortious interference claim. The evidence established that, as the company’s chief executive officer and owner of 98: percent of its voting stock, Catón was in complete control of TimberBank; that he was paid a salary by the company of at least $120,000 per year until it ceased operations; that by the second half of 1986 the only source of revenue available to the company from which to pay this salary was its timber management contract with McMa-han & Company, which was owned wholly or in part by his stepbrother; that a shell corporation owned by Caton’s wife was substituted for TimberBank as the financial beneficiary of this contract within six months after the termination of Haynes’ employment; and that Catón thereafter continued to receive an annual salary of $120,000 as an employee of that corporation. The jury could reasonably have determined from these facts that, in attempting to defeat Haynes’ claim for severance pay, Catón was not merely discharging his duties as an officer and agent of the corporation, which was already insolvent and which ceased doing business altogether within six months after Haynes’ termination, but was using his control of the corporation to promote his own personal financial interests at Haynes’ expense. Under such circumstances, he could be held liable for tortious interference with Haynes’ rights under the employment contract. “One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action.” See Wrigley v. Nottingham, 111 Ga. App. 404 (141 SE2d 859) (1965), rev’d, in part, on other grounds. Nottingham v. Wrigley, 221 Ga. 386 (144 SE2d 749) (1965). Such cases as Lane v. K-Mart Corp., 190 Ga. App. 113 (2) (378 SE2d 136) (1989), Henson v. American Family Corp., 171 Ga. App. 724 (4) (321 SE2d 205) (1984); and Sacks v. McCrory, 160 Ga. App. 430 (287 SE2d 292) (1981), do not constitute authority for a contrary result, as there were no circumstances in those cases which suggested that the individual corporate officials named as defendants had utilized their corporate authority to further their own personal financial interests at the expense of a valid contractual claim asserted by the plaintiff.

3. The appellants assert that the trial court erred by excluding evidence that Haynes had adequate independent financial resources to support himself, arguing that such evidence would have advanced their position that Haynes had resigned voluntarily by establishing that he was in a financial position to survive without receiving any severance pay. This enumeration of error is patently without merit. Haynes made no suggestion to the jury that he was impecunious, and his need or lack thereof for the severance pay had nothing to do with his contractual entitlement to it. See generally Northwestern Univ. v. Crisp, 211 Ga. 636, 641 (2) (88 SE2d 26) (1955).

4. The appellants contend that the trial court erred in refusing to exclude evidence that Catón and his wife had fabricated certain “memoranda to file” purporting to memorialize various events and conversations leading up to Haynes’ departure. The appellants did not seek to exclude the content of these memoranda from evidence but only to exclude testimony tending to show that they had been prepared at a time subsequent to the events which they purported to memorialize. The appellants assert that the admission of this testimony violated the rule that a witness may not be impeached by evidence concerning collateral matters which are irrelevant to the issues being tried. See E. H. Siler Realty &c. v. Sanderlin, 158 Ga. App. 796, 798 (282 SE2d 381) (1981). Inasmuch as the content of the memos was before the jury and was relevant to the issues being tried, we find this enumeration of error to be without merit.

Decided September 6, 1989

Rehearing denied September 25, 1989

Alston & Bird, G. Conley Ingram, Robert D. McCallum, Jr., Susan B. Devitt, for appellants.

Sutherland, Asbill & Brennan, Kimberly L. Woodland, John H. Fleming, Jr., Rogers & Hardin, John J. Almond, for appellee.

5. The appellants contend that the trial court erred in refusing to allow Caton’s former secretary to be questioned regarding the substance of certain complaints she had heard Catón and another TimberBank official make regarding Haynes’ performance. While this witness was allowed to testify that she had overheard such complaints, she was not allowed to go into the details of their substance. We find no error. The secretary’s recollection of the content of these complaints clearly was not relevant to explain any aspect of her own conduct which was legitimately at issue in the case. See generally OCGA § 24-3-2. Moreover, both Catón and the other TimberBank official whom the witness had overheard making the complaints were available to testify regarding their substance, and there was no attack on their testimony in this regard which would have rendered the secretary’s recollection of the details of their conversations admissible either to bolster their testimony or to impeach the testimony of any other witness. Compare Edwards v. State, 255 Ga. 149, 151 (335 SE2d 869) (1985).

Judgment affirmed.

Sognier and Pope, JJ., concur.


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    A89A1387.
    MOORE v. BUTLER.
    (386 SE2d 678)
   Deen, Presiding Judge.

The appellant, Ronald Moore, and his ex-wife had a son who wasj born after their divorce. The divorce decree was silent as to custody or support of the child, but Moore’s ex-wife and her mother have had physical custody of the child at all times. For a year or two, the child resided with the maternal grandmother, and Moore visited him there, although according to the grandmother, Moore was usually drunk. During that time, Moore also made some minimal contributions to the support of the child. In 1985, Moore was convicted of two counts of aggravated rape in Tennessee, and was sentenced to 40 years in the Tennessee Penitentiary, where he currently resides. His projected early release date is July 25, 1992.

Since that incarceration, Moore has not provided any meaningful contribution to the support or care of the child, but he has made numerous attempts to contact his son through the maternal grandmother, who knew where the child was but would not tell Moore. Moore’s ex-wife never informed him of her address changes, so that Moore’s only way of contacting her and his son was through the grandmother. Moore claims that he is maintaining a bank account with a balance of $51.51 for his son, but the account is actually in Moore’s name. He also claims that the maternal grandmother had told him not to send money because his mail was just being thrown away. The grandmother denied instructing Moore not to send letters, but admitted that Moore wrote so much that she did not read them all and “just threw them in the trash.”

In 1984 Moore’s ex-wife married the appellee, Steve Butler, who brought this adoption petition. The evidence showed that the appel-lee is regularly employed and enjoys a good relationship with the child. The trial court found that Moore did not provide for the care and support of the child for a period of one year and over prior to the filing of the adoption petition, and that it was in the best interests of the child to be adopted. This direct appeal followed. Held:

1. The appellee has moved to dismiss this appeal on the basis that under Gainey v. Olivo, 258 Ga. 640 (373 SE2d 4) (1988), an appeal from an adoption proceeding is an appeal from a child custody proceeding, which requires the discretionary appeal procedure. However, the Supreme Court in Gainey v. Olivo, supra, held that for purposes of the Uniform Child Custody Jurisdiction Act, an adoption proceeding is included in the term custody proceeding. That case did not effect a construction of OCGA § 5-6-35 (a) (2). This court has previously held that appeals from adoption proceedings do not fall under OCGA § 5-6-35 (a) (2). In re J. S. J., 180 Ga. App. 873 (350 SE2d 843) (1986). The appellee’s motion to dismiss is denied.

2. OCGA § 19-8-6 (b) provides that “[surrender or termination of parental rights, as provided in Code Section 19-8-3, shall not be required as a prerequisite to the filing of a petition for adoption pursuant to paragraph (4) or (5) of subsection (a) of Code Section 19-8-3 in the case of a parent who has failed significantly, for a period of one year or longer immediately prior to the filing of the petition for adoption (1) to communicate or to make a bona fide attempt to communicate with the child, or (2) to provide for the care and support of the child as required by law or judicial decree, where the court is of the opinion that the adoption is for the best interests of the child.” Determination of “failed significantly” in a case may still involve the exercise of the trial court’s discretion, see Chandler v. Cochran, 247 Ga. 184 (5) (275 SE2d 23) (1981), but we find clear and convincing evidence to support the trial court’s determination in this case.

Decided September 5, 1989

Rehearing denied September 25, 1989

Gary M. Newberry, Vicky 0. Kimbrell, for appellant.

Leonard A. Baldwin, for appellee.

It was uncontroverted that Moore provided no care or support for the child during the one-year period preceding the filing of the adoption petition. The lack of a court order establishing a child support obligation did not excuse Moore’s legal obligation to support his child. OCGA § 19-7-2, generally; Pacella v. Sanchez, 191 Ga. App. 611 (382 SE2d 371) (1989). Moore’s incarceration likewise did not relieve him of his natural and statutory obligation to support his child. Curtis v. Jones, 160 Ga. App. 904 (1) (288 SE2d 615) (1982). Moore’s bank account, despite his claim that he was saving the money for the child, did not provide support for the child. In short, the evidence authorized the trial court to find that Moore had failed significantly for the year prior to the filing of the adoption petition to provide support for the child, and that the adoption was for the best interests of the child. In the Interest of C. D. B., 182 Ga. App. 263 (355 SE2d 759) (1987).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


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    A89A1431.
    K MART CORPORATION v. ADAMSON.
    (386 SE2d 680)
   Banke, Presiding Judge.

The appellee, Michele Adamson, brought this action against the appellant, K Mart Corporation, to recover damages for false arrest and/or false imprisonment resulting from her detention for suspected shoplifting in a K Mart department store. The case is before us on interlocutory appeal from the denial of K Mart’s motion for summary judgment.

Ms. Adamson entered the store with her young daughter for the purpose of having the child’s picture taken by a store photographer. She brought with her a new dress for the child to wear, still on its original store hanger and still bearing the original store tags. While waiting for the customers ahead of her to be served by the photographer, the appellee took the child to the shoe department and clothed her in the new dress, removing the store tags from it and placing them in her pocketbook as she did so. She and her daughter then returned to the photographer, completed their mission and exited the store. As they did so, they were confronted by a K Mart security officer who had observed their actions in the shoe department. At his request, Ms. Adamson accompanied the officer to a back room, where he questioned her about the dress. There is some dispute about how long this detention lasted and whether Ms. Adamson and her daughter were subjected to any indignities during the course of it. However, it is undisputed that, after discussing the matter with other K Mart employees and determining that the dress could not have come from the store because K Mart did not sell that brand, the security officer ultimately apologized to Ms. Adamson and allowed her to leave.

Relying on this court’s recent decision in K Mart Corp. v. Griffin, 189 Ga. App. 225 (375 SE2d 257) (1988), K Mart asserts that it had reasonable justification as a matter of law for suspecting Ms. Adam-son of shoplifting and that it is consequently insulated from liability by OCGA § 51-7-60, which reads as follows: “Whenever the owner or operator of a mercantile establishment or any agent or employee of the owner or operator detains, arrests, or causes to be detained or arrested any person reasonably thought to be engaged in shoplifting and, as a result of the detention or arrest, the person so detained or arrested brings an action for false arrest or false imprisonment against the owner, operator, agent, or employee, no recovery shall be had by the plaintiff in such action where it is established by competent evidence: (1) That the plaintiff had so conducted himself or behaved in such manner as to cause a man of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting, as defined by Code Section 16-8-14; or (2) That the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable.” (Emphasis supplied.) Ms. Adamson, on the other hand, contends that, notwithstanding the fact that the foregoing Code section is phrased in the disjunctive rather than the conjunctive, K Mart could not prevail on motion for summary judgment unless it established as a matter of law the reasonableness of both the initial decision to detain her and the manner and length of her subsequent detention. We granted this interlocutory appeal in order to address this issue. Held:

As originally enacted, the statute in question read, in pertinent part, as follows: “[N]o recovery shall be had by the plaintiff in such action where it is established by competent evidence that the plaintiff had so conducted himself, or behaved in such manner, as to cause a man of reasonable prudence to believe that such plaintiff was committing the offense of shoplifting, as defined by the Statute of this State, at or immediately prior to the time of such detention or arrest, or provided that the manner of such detention or arrest and the length of time during which such plaintiff was under all of the circumstances reasonable.” G¿. L. 1958, p. 693. (Emphasis supplied.)

It is evident that, in the context in which they appeared in the original statute, the words “or provided” were inconsistent with each other. The Code Revision Commission obviously recognized this in drafting the Official Code of Georgia of 1982 and chose to eliminate the word “provided” rather than the word “or.” However, that choice tends to give the statute a potentially irrational effect. One who has done nothing to give the impression that he or she is shoplifting should not be subject to any detention at all for that offense; and, conversely, one who has acted in such a way as to give the impression that he or she is shoplifting but who is in fact innocent of any such misconduct should not be subjected to continued detention beyond that which is reasonably necessary to ascertain the true facts, nor should such a person be subjected to gratuitous and unnecessary indignities during the course of such a detention.

We do not consider the choice of terminology made by the Code Revision Commission in this regard to be binding upon us, given the following statement of legislative intent which appears in OCGA § 1-1-2: “Except as otherwise specifically provided by particular provisions of this Code, the enactment of this Code by the General Assembly is not intended to alter the substantive law in existence on the effective date of this Code.” Looking, therefore, to the language of the original enactment, and construing that language in such a manner as to square with common sense and to avoid unreasonable consequences, see Wilkins v. Ga. Dept. of Human Resources, 255 Ga. 230, 233 (337 SE2d 20) (1985), we conclude that it was the intention of the Legislature that the provisions now codified as OCGA § 51-7-60 (1) & (2) be read in the conjunctive, notwithstanding the use of the disjunctive in the present Code section. Inasmuch as the evidence of record in this case does not establish as a matter of law that the length and circumstances of the appellee’s detention were reasonable, we accordingly hold that the trial court did not err in denying K Mart’s motion for summary judgment.

Judgment affirmed.

Sognier and Pope, JJ., concur.

Decided September 5, 1989

Rehearing denied September 25, 1989

Smith, Gilliam & Williams, Steven P. Gilliam, Donald T. Hunt, for appellant.

Whitmer & Law, James H. Whitmer, G. Hammond Law III, J. Douglas Parks, for appellee.


text:
    A89A1449.
    LEON DAWSON/CRAWFORD FOREST PRODUCTS et al. v. WALKER.
    (386 SE2d 690)
   McMurray, Presiding Judge.

This workers’ compensation case involves the construction of OCGA § 34-9-221 (h). Claimant Walker was injured on the job and employer Leon Dawson/Crawford Forest Products voluntarily commenced payment of temporary total disability weekly income benefits of $99.69, based on an average weekly wage of $149. Payments were begun on December 20, 1985, dating back to November 13, 1985, and benefits were paid for a period in excess of 60 days from the due date of first payment before controverting the payment of these benefits.

Compensation was terminated on June 2, 1986, based on a supposed change of condition that claimant had returned to work. Upon the change of condition hearing, the issues were expanded to include various additional matters including the question of average weekly wage. Following the change of condition hearing, the administrative law judge entered an award which, as amended, finds that there was no evidence supporting the employer’s contention that claimant had returned to work and ordered the payment of penalties for late payments. The award also sets forth a finding of fact that claimant’s average weekly wage was $100 and directs the employer to pay claimant the weekly sum of $66.66, beginning November 12, 1985, and until terminated in accordance with the law. The full board adopted the administrative law judge’s finding of fact as to the actual weekly wage, but relying upon Carpet Transport v. Pittman, 187 Ga. App. 463 (370 SE2d 651), held that the employer was estopped from reducing the amount of the weekly income benefit from $99.69 to $66.66. Accordingly, the board’s award provides for the payment of temporary total disability income benefits of $99.69 per week commencing November 13, 1985, and continuing until altered or terminated by operation of law. Following the superior court’s affirmance of the award of the full board, we granted the employer’s application for discretionary appeal. Held:

The employer contends that OCGA § 34-9-221 (h) and Carpet Transport v. Pittman, 187 Ga. App. 463, supra, relate only to the right to compensation that is the issue of liability, as opposed to the question of the correct amount of compensation. The employer concedes the claimant’s right to compensation, but insists that the issue of amount is separate and reconsideration thereof is not foreclosed by OCGA § 34-9-221 (h) and the decision in Carpet Transport v. Pittman, 187 Ga. App. 463, supra, which clarified the previously uncertain status and effect of the statutory provision.

Decided September 6, 1989

Rehearing denied September 25, 1989

Drew, Eckl & Farnham, Michael F. Antonowich, W. Bradford Searson, Richard C. Kissiah, for appellants.

Wayne B. Bradley, for appellee.

The distinction urged by employer between right to compensation and amount of compensation has been previously acknowledged by this court in Georgia Ins. Co. v. Brown, 179 Ga. App. 687, 688 (347 SE2d 290). See also Florida Plywood v. Boyette, 140 Ga. App. 383 (231 SE2d 79), a case involving similar facts decided prior to the enactment of OCGA § 34-9-221 (h). Furthermore, we note that there is nothing in the bellwether case of Carpet Transport v. Pittman, 187 Ga. App. 463, supra, which contradicts or even addresses the distinction between right to compensation and amount of compensation at issue in the case sub judice. Therefore, we find that OCGA § 34-9-221 (h) does not prohibit the employer contesting the correct amount of compensation in the case sub judice. The superior court erred in affirming the board’s award.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.