author: Deen, Presiding Judge.

text:
    77287.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. COLE.
    (381 SE2d 60)
   Deen, Presiding Judge.

Edward W. Cole, Jr., was employed by Central of Georgia Railroad and injured his back on December 14, 1984, while guiding a thirty-nine-foot metal rail onto the back of a truck. The truck had a boom crane mounted on its back which raised the rails, and Cole was required to grab one end of the rails in order to help guide it to the side of the truck. As he was holding onto one of the rails between his chest and legs, it suddenly fell approximately three and one-half to four feet, and Cole experienced immediate back pain. The boom was operated by another railroad employee. An accident report of Cole’s injury was made, but he was' instructed to continue working by his foreman. He claims that neither his foreman nor the track supervisor wanted him to see a doctor. The next day, Cole told his supervisor that he wanted to see a doctor because he had experienced pain all night and was unable to sleep, but he was told to try to work first. Later in the day he was taken to a medical clinic, where he was examined by a doctor’s assistant and placed on light duty for one week. He returned to work and worked for the remainder of the day.

One week later, Cole returned to the clinic and was told by the doctor that he should not work for two weeks. After the track supervisor talked to the doctor, the doctor changed his orders to permit him to return to work on the condition that he perform only light duty. Despite this restriction and his complaints that his back was hurting, Cole’s foreman ordered him to carry fourteen track jacks which weighed 40 to 50 pounds each and load them on a truck. Cole returned to the doctor complaining of back pain. A brace was prescribed and the work restriction was continued. Cole’s complaints continued, and he was diagnosed as having chronic muscle strain because of long-standing back problems and the heavy work required at his job. He stopped working for the railroad approximately six months after his injury and operated a convenience store which he owned with a partner. In April of 1986, he went to the doctor complaining of leg pain extending down to his foot and was diagnosed as having a protruding or ruptured disc. Cole is presently employed by the railroad in Atlanta. This position pays $25 per day less than his former job as a laborer, and he continues to have problems with his back. He brought a FELA action against his employer seeking damages for his medical expenses, pain and suffering, loss of earnings, and loss of earning capacity. A jury verdict awarded him $170,833.33. The railroad appeals following the denial of its motion for a j.n.o.v. or, in the alternative, for a new trial.

1. Appellant first takes issue with the jury charge on res ipsa loquitur, contending that it was not authorized by the evidence because appellee failed to show that the boom did not malfunction because of slack in the cable coming off the boom.

The evidence is undisputed that a heavy metal rail dropped suddenly while being lifted by the boom. The three possible reasons for this occurrence are: slack in the cable, malfunction of the boom, and operator negligence. On cross-examination, Cole denied that the rail dropped because of slack in the cable, and a railroad witness suggested operator negligence. The defectiveness of the boom was shown by testimony that, prior to Cole’s injury, there were several complaints from employees to the railroad that it was malfunctioning by suddenly telescoping, and that it continued to malfunction periodically after he was injured. There was no testimony at trial that slack in the cable was a natural occurrence and would not have constituted negligence. Cole testified that the foreman was supposed to make a daily inspection of the crane and boom, but it was never done. All the evidence showed that Cole was required to work with a piece of equipment which his employer knew was malfunctioning, and that after his injury it continued to malfunction. Since it is undisputed that the boom dropped and the only evidence adduced at trial for this incident was circumstantial evidence of malfunction, the court below correctly charged on res ipsa loquitur.

Decisions of the federal courts determine whether res ipsa loquitur is to be applied in a FELA case. Dugas v. Kan. City Southern R. Lines, 473 F2d 821 (5th Cir. 1973). For the doctrine to apply the following conditions must be met: “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” Prosser, Law of Torts, § 39, p. 214 (4th ed. 1971). All that is necessary in a FELA action for a plaintiff to sustain his burden of proof is to show that his employer’s negligence played a role in producing harm. Gallick v. Baltimore &c. R. Co., 372 U. S. 108 (83 SC 659, 9 LE2d 618) (1963). In the instant case, the doctrine was properly charged to the jury.

2. The trial court did not admit prejudicial evidence or argument which tended to encourage an award of punitive damages. The record shows that punitive damages were neither sought nor recovered.

Evidence that Cole’s foreman ordered him to carry and load heavy railroad jacks after the accident was admissible and probative of the issue of causation. The treating physician testified that “heavy lifting on a protruding disc can push the herniation further out . . . [and] can cause pressure on the nerve roots . . . which causes pain to be felt in the leg.” The doctor further testified that he believed that Cole damaged the disc in his back in the accident and that the continued heavy lifting after that date might have also caused the protruded disc in his back. Evidence that the plaintiff was required to carry heavy jacks was properly admitted to show that the incident either caused or aggravated the disc injury to his back.

Introduction into evidence of testimony as to intentional acts of his supervisor’s verbally abusive behavior was also admissible to show aggravation of the plaintiff’s disc injury. He had been placed on light duty by his doctor, but was vilified by his supervisor for following the doctor’s instructions and ordered to lift heavy pieces of equipment. Such evidence shows that he did not injure his back by voluntarily disobeying his doctor’s orders, but rather that he was forced to do so by his supervisor.

3. Contrary to appellant’s assertion, counsel for the plaintiff did not argue or present inflammatory and prejudicial evidence as to the relative financial disparity between the railroad and Cole in his closing argument. Counsel quoted Clarence Darrow in closing argument: “I speak for the poor, for the weak, for the weary, for that long line of men who in darkness and despair, have borne the labors of the human race.” The railroad contends that this quotation emphasized and contrasted his poor client and the rich railroad. We do not agree with this interpretation of this quotation, which has been taken out of context. Cole’s counsel went on to speak of his pride in being a lawyer; that famous men such as Jefferson and Lincoln who were lawyers, and that, like Darrow, he was proud to represent laborers like his client. An examination of the entire argument reveals that it falls far short of that disapproved in Central of Ga. R. Co. v. Howard, 161 Ga. App. 560 (288 SE2d 347) (1982).

The trial court instructed the jurors that they were not to be governed by sympathy and prejudice, that statements made by the lawyers during closing argument were not evidence, that the case should be considered and decided as an action between persons of equal standing and worth, and that sympathy or prejudice could play no part in determining an award of damages. In ruling upon motions or objections to improper closing argument, the trial court is vested with a sound discretion, and this court will not grant a new trial unless there has been a manifest abuse of that discretion. Hartford Fire Ins. Co. v. Rowland, 181 Ga. App. 213, 218 (351 SE2d 650) (1986). We find no abuse of the court’s discretion in overruling appellant’s objections and motions for a mistrial. We also note that at one point appellant’s objection was sustained, but counsel did not seek any cautionary instruction to be given to the jury.

4. The evidence showed that appellee did not receive any income from a convenience store of which he was co-owner although his partner, with whom he lived, received $8,800 in income in 1985. Appellee testified that he had never received any income from the store while he owned it and that his work time from June 1985 until the store was sold in January of 1986 varied from 20 to 40 hours per week. He admitted that his partner furnished him with food, clothing and shelter while he was not working.

Collateral benefits, including charity and gifts, are not admissible into evidence in a FELA case. Eichel v. N. Y. Central R. Co., 375 U. S. 253 (84 SC 316, 11 LE2d 307) (1963). The transcript does not show that appellant ever asked the court to examine the documents it wished to tender into evidence, and the argument in its brief, as well as the transcript, is very confusing. It appears that appellant wanted to tender certain W-2 forms or tax records of appellee’s partner, although the record is by no means clear on this issue. The burden is upon the party alleging error to show it affirmatively by the record. Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 400 (339 SE2d 619) (1985).

5. Appellant contends that the trial court improperly permitted the plaintiff, in his closing argument, to argue facts not in evidence concerning damages.

Plaintiffs counsel used a chart which listed several items which he claimed constituted pain and suffering; e.g., “interference with enjoyment of life,” “impairment of bodily health and vigor,” “limitation of one’s activities,” etc. Appellant cites no authority that this action constitutes improper argument of the facts in the case, and, indeed, it did show at trial that appellee’s life had been limited in the ways listed. The trial court specifically charged the jury that pain and suffering included anguish, anxiety, shock, worry, discomfort, hardship, shame, humiliation and loss or impairment of the capacity to do work and labor. We do not believe that counsel’s argument caused the jury to consider matters outside the evidence and that they applied the charge in determining the amount of damages.

Any complaint by appellant that counsel’s argument encouraged the jury to base its award “upon a mathematical which they were to believe was required by law” is also without merit. The transcript shows that counsel repeatedly told the jurors that they were not required to use his figures, and the court charged the jury that statements made by the lawyers in closing argument were not evidence in the case. In ruling on the railroad’s motion in limine, the court ruled that an objection to improper argument had to be raised at the time the behavior occurred. No objection was made, and its was therefore waived. Errors not raised in the court below cannot be considered on appeal. Smith v. Mobley, 185 Ga. App. 462 (364 SE2d 597) (1988).

6. Appellant further claims that the court below erred in permitting the plaintiff to make arguments which encouraged the jury to apply “The Golden Rule” and to refuse to charge that it was not permissible to award damages based upon what they personally would take if they suffered a similar injury.

We have examined the transcript and find no argument as alleged by the railroad. The jury was instructed that damages must be reasonably proved to be recovered and that its award for pain and suffering would be determined by its fair and impartial enlightened conscience. We find no error.

7. The railroad finally claims that the plaintiff should not have been permitted to call fellow railroad employees for testimony by cross-examination during his case-in-chief.

OCGA § 24-9-81 permits either party in a civil case to call “the opposite party ... or any agent of said party” for purposes of cross-examination during its case-in-chief. According to the railroad the employees were favorable witnesses for the plaintiff and were eager to testify on his behalf, and under 45 USCA § 60, they would feel no pressure and fear of reprisals from their employer because they are protected for voluntarily furnishing information about an injury to a fellow employee. The railroad also argues that, as the scope of cross-examination is a matter of substance and not procedure, it falls within the scope of federal law. No authority is cited in support of this proposition. We find that this issue is purely a matter of procedure which determines no substantive issue in the case, and that Georgia law applies.

In Atlanta Joint Terminals v. Knight, 98 Ga. App. 482 (106 SE2d 417) (1958), a FELA case, the scope of examination under Ga. Code Ann. § 38-1801 (presently OCGA § 24-9-81) was at issue, and the court held that the agent of either party could be called for purposes of cross-examination. Employees of the defendant railroad were found to be subject to all the pressures and possible prejudices in favor of the defendant-employer which that relationship would tend to engender. See also Hendley v. Central of Ga. R. Co., 609 F2d 1146 (5th Cir. 1980), for a discussion of the pressure placed upon railroad employees if they testify against their employer.

Decided March 7, 1989

Rehearing denied March 28, 1989

Neely & Player, Edgar A. Neely, Jr., Miller, Simpson & Tatum, John M. Tatum, for appellant.

Billy E. Moore, John Wright Jones, Paul R. Bennett, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur in the judgment only.

       Speaking, as to the footnote, only for and as the author of the opinion, and since Darrow’s quote is an issue in this case, it is not inappropriate to observe that one of his most often cited and quoted quips was: “It is bigotry for public schools to teach only one view of origins.” (Scopes’ Trial quote by R. O’Bannon, Dayton Symposium on Tennessee’s Evolution Laws 5 (May 18, 1974).)


source: Caselaw Access Project

author: Pope, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    77426.
    DONNER v. THE STATE.
    (380 SE2d 732)
   Pope, Judge.

Defendant Donner appeals his conviction of the offense of trafficking in marijuana. The sole enumeration of error raises the denial of a motion to suppress evidence found during the search of an automobile occupied by defendant.

The record shows that in the early morning hours of November 26, 1987, Georgia State Patrol Trooper Ralston received a request to check the rest area on northbound Interstate 75 near Adairsville, Georgia for a vehicle unconnected with the case sub judice. The trooper drove through the rest area and did not find the vehicle he was looking for but did find defendant sleeping in the back seat of a 1984 Oldsmobile Delta 88. The trooper woke defendant and inspected defendant’s driver’s license and automobile registration. The automobile was registered to Roger Bonner. When defendant was questioned about the vehicle’s owner he became “very nervous” and gave conflicting answers, first identifying the owner as his friend and then stating that the owner was a friend of his brother. Defendant did not know how to contact the owner. In response to the trooper’s queries, defendant stated he was a truck driver working part time and that he had been to West Palm Beach, Florida to sell a “time share.”

Trooper Ralston first approached the vehicle in which defendant was sleeping at 2:06 a.m. At approximately 2:12 or 2:15 a.m. Trooper Ralston contacted a State Patrol radio operator to run a check on defendant’s driver’s license and the vehicle registration. He also instructed the radio operator to telephone defendant’s wife in Illinois.

The radio operator reached defendant’s wife by telephone, informed her he was with the Georgia State Patrol, that defendant had been stopped in a routine traffic stop, that defendant had not been in an accident and asked her to answer some questions about defendant. Trooper Ralston instructed the radio operator as to the questions to be asked and the operator put defendant’s wife on hold while he transmitted her answers to the trooper. Through this inquiry Trooper Ralston verified some of the information given to him by defendant and learned that defendant and his wife had been having marital problems, that she had not seen him for three days and that she did not know his whereabouts or what type of vehicle he was in.

Defendant’s wife was upset and crying by the end of her conversation with the radio operator. Following the radio exchange, Trooper Ralston returned to the vehicle occupied by defendant, gave defendant his driver’s license and automobile registration and issued defendant a warning for sleeping in the rest area. Although Trooper Ralston was under the impression that a regulation of the Georgia Department of Transportation prohibited sleeping in rest areas, no such regulation existed. The trooper then requested permission to search the vehicle. (The time was 2:26 a.m.) Defendant refused permission for a search and Trooper Ralston’s request to travel approximately 20 miles up the road to allow a drug dog to sniff around the automobile.

Trooper Ralston advised defendant that he would be detained until the trooper could make an attempt to contact the owner of the vehicle, Roger Bonner. (The time was 2:28 a.m.) The trooper instructed the radio operator to telephone Bonner but was advised that there was no answer at the telephone number listed for Bonner.

Finally, at 2:40 a.m., thirty-four minutes after the trooper first approached defendant, he was told he was free to go. Defendant got back in the automobile and the trooper got back in his vehicle and parked nearby. Approximately five minutes later defendant exited the automobile, walked over to the trooper’s vehicle and told the trooper: “Well, since you have called my wife, we have been having marital problems and she has been ill, I’m going to go make a telephone call to her.” Trooper Ralston advised defendant: “Whatever you wish to do, you are free to go.” The defendant then went to the concession area at the rest area and used the telephone.

Prior to telling defendant he was free to go (sometime in the interval between 2:28 a.m. and 2:40 a.m.), Trooper Ralston had requested, by radio, that a drug dog be brought to the rest area. Trooper Ralston testified that he remained at the rest area to see if the drug dog would arrive before defendant left. Defendant was still using the telephone when the drug dog arrived at 3:50 a.m. The drug dog was used to sniff twelve to fifteen other vehicles parked in the rest area before the dog “alerted” to the trunk of the automobile in defendant’s possession. A subsequent search revealed a large quantity of marijuana in the trunk of the automobile.

Defendant argues the contraband was found as the fruits of an illegal search because he was detained illegally and without probable cause. Even if the officer’s thirty-four minute detention of the defendant, while investigating the ownership of the automobile defendant was driving, was unreasonable, the defendant was advised he was free to leave one hour and ten minutes before the drug dog arrived to sniff his car. Defendant claims he was on the telephone with his wife during this period. The record shows the radio dispatcher, at the officer’s request, dialed the wife’s telephone number while defendant was on the rest area telephone and discovered that her line was not busy. Even if the defendant was on the telephone with his wife, this fact does not establish that defendant’s presence at the rest area at the time the dog arrived was in any way related to, much less a necessary result of, his earlier detention by the officer. The record shows defendant had not been in touch with his wife in three days. If defendant felt compelled to telephone his wife to explain the officer’s earlier telephone call, he was not required to telephone her from the rest area. He was expressly told he was free to go and could have traveled to any other public telephone or to a private place of business to contact his wife.

At the time the drug dog “alerted” to the trunk of the vehicle he was driving, defendant had been free from restraint or detention for one hour and ten minutes. Defendant was in control of his own movements and voluntarily chose to leave his vehicle parked in a public area subject to detection by any police authority of any scents or smells emanating from it without the necessity of a search warrant. See United States v. Dicesare, 765 F2d 890 (9th Cir. 1985), amended 777 F2d 543. The officer was merely practicing good police work to use the resource of a drug dog to investigate the vehicle defendant had voluntarily left in the parking area. Once the drug dog “alerted” to defendant’s car, probable cause was established to conduct the search. Thus, the trial court did not err in denying the motion to suppress evidence found during the search and the conviction is affirmed.

Judgment affirmed.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Benham and Beasley, JJ., concur. McMurray, P. J., and Sognier, J., dissent.

McMurray, Presiding Judge,

dissenting.

The trial court determined that there had been no invasion of defendant’s Fourth Amendment rights and denied defendant’s motion to suppress. As an alternative ground for denial of the motion to suppress, the trial court concluded that even if there had been an illegal seizure there were sufficient intervening circumstances between the seizure and the appearance of probable cause to attenuate any taint of such illegal seizure.

In its analysis of the circumstances at issue, the trial court recognized that the warning citation issued to defendant was illegal. Since there was no statutory or regulatory prohibition against defendant’s sleeping in the automobile, the trooper’s intent to issue the warning afforded no basis for a seizure of defendant. However, the trial court found an independent basis for the trooper’s conduct, to check the sleeping man for safety purposes. We should not accept this analysis. Any “safety” purpose in approaching defendant dissolved when the trooper tapped on the window of the automobile and defendant awakened. Thus, we should reach the question of whether defendant was seized illegally when the trooper requested defendant’s driver’s license and the vehicle registration.

“ ‘In determining whether a given contact between a police officer and a citizen violated a defendant’s Fourth Amendment rights, the court must first determine whether the encounter was a “seizure” within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U. S. 544, 553 (100 SC 1870, 1876, 64 LE2d 497) (1980) (Stewart, J.) (with Rehnquist, J., concurring). The Fourth Amendment’s proscription against unreasonable searches and seizures governs all seizures of the person, “including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (89 SC 1394, 22 LE2d 676) (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (88 SC 1868, 20 LE2d 889) (1968).” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (95 SC 2574, 45 LE2d 607): “The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ [Cit.]” United States v. Mendenhall, supra at 553-554. In distinguishing between an intrusion amounting to a “seizure” of the person and an encounter that intrudes upon no constitutionally protected interest, we adopt that standard proposed by Justice Stewart in United States v. Mendenhall, supra at 554: “(A) person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Moran v. State, 170 Ga. App. 837, 839 (1), 840 (318 SE2d 716).

“Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114), citing United States v. Berry, 670 F2d 583, 591 (5th Cir. 1982). ‘Factors determinative of whether or not an intrusion or “seizure” has occurred “include the lack of interference with the individual’s progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual . . . anxiety and fear . . .” McAdoo v. State, supra at 26, 27.’ Allen v. State, 172 Ga. App. 663, 665 (324 SE2d 521).” Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85).

I believe that the evidence permits only one conclusion, that defendant was seized when the trooper, after learning that defendant was physically well, continued his contact with defendant for investigatory purposes. It is incredulous to suggest that defendant, after being awakened in the middle of the night in an interstate highway rest stop by a uniformed (and thus presumably armed) state trooper could objectively perceive that he was free to drive away or otherwise ignore the trooper’s request for his driver’s license and the vehicle registration. Surrender of these documents was hardly consistent with any perception of freedom of movement. Here, the trooper could have, but did not, ascertain whether defendant was willing to cooperate before making further inquiries. In view of the trooper’s testimony that he understood defendant to be in violation of a prohibition against sleeping in the rest stop so as to afford the trooper authority to “seize” defendant, one cannot reasonably infer, from a record silent in this regard, that the encounter was conducted in an appropriately deferential manner. I view the evidence as demanding a conclusion that the defendant’s presentation of his driver’s license and the vehicle registration was acquiescence to a display of authority rather than a gesture of voluntary cooperation with police.

Having determined that a seizure of defendant had occurred when the trooper requested the display of documents, I would hold that the seizure was not authorized by the information within the knowledge of the trooper at that time. Thus, I would review the issue addressed by the trial court’s alternative reason for denying defendant’s motion to suppress evidence. That is, whether the appearance of probable cause via the “alert” of the drug dog was tainted by the illegal seizure of defendant.

The trial court concluded that the intervening circumstance of letting defendant go at 2:40 a.m. was sufficient to attenuate the taint. As originated in Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441), the inquiry is whether the appearance of probable cause was obtained by “exploitation” of the illegality. While the term “exploitation” is not defined in Wong Sun a number of relevant factors have gained géneral acceptance. Those factors which are meaningful in the context of the case sub judice are temporal proximity, intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514); Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63).

In the case sub judice, there was slightly more than one hour between the termination of the illegal seizure and the “alert” by the drug dog. Most of this interval of time was consumed by defendant in a telephone call home to his wife whom he knew had been contacted by the Georgia State Patrol during the period in which he had been illegally seized. (The wife’s telephone line had call-waiting service, therefore, no inference discrediting defendant’s evidence as to the telephone call to his wife should arise from the radio dispatcher’s failure to get a busy signal at her number during this interval. Additionally, the testimony presented by defendant as to the occurrence of his telephone call to his wife is corroborated by a telephone bill showing a 58 minute collect call from Adairsville during the appropriate period of time.) Whether the telephone call home was intended to relieve the emotional distress of defendant’s wife, or of defendant himself, the communication can only be viewed as the natural conclusion of a sequence of events set in motion during Trooper Ralston’s illegal seizure of defendant. Moreover, when viewed objectively the trooper’s seizure of defendant had no arguable legal basis and was plainly effectuated for the sole purpose of conducting an inquiry about drug smuggling. Thus, it cannot be said that the causal link between the illegal seizure and the events which followed was severed when the trooper finally told defendant he was free to go. The State failed to carry its burden of showing that there was no exploitation of the illegal seizure of defendant.

I am concerned that the majority may have applied an incorrect burden of proof on the exploitation issue. The majority states that defendant’s evidence “does not establish that defendant’s presence at the rest area at the time the dog arrived was in any way related to, much less a necessary result of, his earlier detention by the officer.” Since the burden of proof on the exploitation issue rests with the State, the correct inquiry is whether the State has proven that defendant’s presence at the rest area when the dog arrived was not in any way related to the illegal seizure of defendant. This question is left unanswered by the majority’s statement that defendant was not required to telephone his wife from the rest area and could have traveled to any other location to telephone his wife. The majority’s statement also avoids the underlying fact that defendant’s reasons for calling his wife were generated entirely by Trooper Ralston’s conduct in illegally seizing defendant and in precipitating the 2:00 a.m. telephone call to his wife. Apparently the majority views the causal link as broken when defendant was told he was free to go. Trooper Ralston did not resume his patrol, but waited nearby in the hope that the drug dog would arrive before defendant departed. Would Trooper Ralston have waited for or even have summoned the drug dog in the absence of the knowledge he gained during the illegal seizure of defendant? Again, I do not believe the State has carried its burden of proving that there was no exploitation of the illegal seizure of defendant.

Decided March 10, 1989

Rehearing denied March 28, 1989.

Maloy, Sadow & Jenkins, James K. Jenkins, Cook & Palmour, Bobby Lee Cook, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

The appearance of probable cause when the drug dog “alerted” was tainted by the illegality of the seizure of defendant. I would hold that the trial court erred in denying defendant’s motion to suppress. Brown v. State, 188 Ga. App. 184, supra. As I would reverse defendant’s conviction, I respectfully dissent.

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


author: Benham, Judge.

text:
    77544.
    LEDBETTER et al. v. DELIGHT WHOLESALE COMPANY.
    (380 SE2d 736)
   Benham, Judge.

As appellant Shala Ledbetter left an ice cream truck owned by appellee Delight Wholesale Company (Delight) and operated by defendant Kawan, she was struck and injured by a car driven by defendant Gray. Shala, through her parents, and her parents in their own right, filed a lawsuit against the above-named parties as well as others also allegedly responsible. This appeal was prompted by the grant of summary judgment to Delight.

Appellants alleged that Delight failed to train the ice cream truck driver adequately, and had provided the driver with a defective ice cream vending truck. Appellants also alleged that Delight was responsible under the theory of respondeat superior for the negligence of the driver. In its order granting summary judgment to Delight, the trial court ruled that Delight was relieved of liability under respondeat superior because the driver was an independent contractor, and that no genuine issue of material fact existed regarding the allegations of negligent training and negligent provision of a defectively designed truck.

1. The initial question for resolution is whether Delight, as defendant/movant for summary judgment, pierced the allegations of the complaint concerning respondeat superior and established as a matter of law that appellants could not recover under any theory fairly drawn from the pleadings and the evidence. See Reed v. Adventist Health Systems &c., 181 Ga. App. 750 (2) (353 SE2d 523) (1987). Stated another way, did Delight establish that there was no genuine issue as to the material fact of its relationship with Kawan, and that it was entitled to a judgment as a matter of law because Kawan was an independent contractor? See OCGA § 9-11-56 (c).

“An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. “ ‘In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract.’ [Cit.]” McGuire v. Ford Motor &c. Corp., 162 Ga. App. 312, 313 (290 SE2d 487) (1982).

Attached to Kawan’s deposition is the “License and Lease Agreement” he entered into with Delight two days before Shala was injured. It described Delight as “a corporation engaged in the wholesale ice cream novelties business” and Kawan as one “in the retail business of street vending ice cream products . . . [who] desire [d] to purchase ice cream novelties from [Delight] for resale. . . .” Through the agreement, Delight licensed Kawan as a street vending retailer entitled to sell Delight’s ice cream novelties. Delight agreed to sell the ice cream novelties at wholesale prices to Kawan for resale at prices Kawan established. As part of the agreement, Delight leased an ice cream street vending vehicle to Kawan. The truck was emblazoned with the name “Circus Delight,” a name associated with Delight, and Delight’s “Safety Clown.” Delight agreed to maintain, repair, and replace the vehicle and undertook to arrange for personal and property liability insurance coverage, to be paid for by Kawan. Kawan also agreed that part of his rental fee would be used to purchase personal accident insurance coverage through the Retail Ice Cream Vendors Insurance Group. The only two paragraphs of the license and lease agreements in boldface stated that the agreement “SHALL NOT BE CONSTRUED AS CONSTITUTING [KAWAN] AN AGENT . . . SERVANT, EMPLOYEE ... OF [DELIGHT] FOR ANY PURPOSE WHATSOEVER ...[;] [THAT KAWAN] SHALL BE FOR ALL PURPOSES AN INDEPENDENT CONTRACTOR AND COVENANTS AND AGREES TO OPERATE HIS BUSINESS AS AN INDEPENDENT CONTRACTOR. . . . [DELIGHT] WILL NOT EXERCISE CONTROL OVER THE MANNER IN WHICH SUCH ICE CREAM PRODUCTS AND CONFECTIONS ARE SOLD OR OTHER SUCH DETAILS OF [KAWAN’S] METHODS OF OPERATION, WHICH SHALL BE WITHIN THE CONTROL AND RESPONSIBILITY OF [KAWAN]. ... IT IS UNDERSTOOD AND AGREED THAT [KAWAN] WILL NOT BE TREATED AS AN EMPLOYEE . . . FOR FEDERAL TAX PURPOSES, STATE TAXES, OR ANY OTHER PURPOSES.”

“ ‘Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control. [Cit.]’ ” McGuire v. Ford Motor &c., supra. Other evidence in the record leads us to conclude that the issue is not as clear-cut as the trial court saw it.

A booklet entitled “Delight Wholesale Company presents How to Operate Your Own Ice Cream Vending Business” was identified by Delight’s branch manager as' containing “Delight Wholesale Company’s position as to the proper procedure for instructing an operator to run an ice cream business.” Reading the booklet by potential vendors was optional inasmuch as a Delight safety videotape, the viewing of which was mandatory, “basically covers the same points.”

The booklet reminded the reader that he/she would be operating the business as an independent contractor and contained “suggested operating and safety procedures that we have prepared based upon reported techniques and procedures of [successful Delight vendors].” The booklet instructed the operator to wash, clean, and check mechanically the vehicle on a daily basis; never speed or violate traffic regulations; never vend on highways or main thoroughfares or where the speed limit exceeded 30 miles per hour; never vend in heavy traffic; not to tailgate; slow down in intersections; always give the other driver the right-of-way; and never drink or use a controlled substance while operating as a vendor. Vendors were told to always activate the swing-out “SLOW” or “STOP” sign when making a sale; to always have flashers on when vending; to never make sales from the street side of the vehicle, but only from the curb side; to practice “Stop and Wait” selling, i.e., that the vendor will stop and wait for children to avoid having children dart into the street; to not give small children ice cream until the vendor has seen that the street is clear of traffic; to not allow passengers; and to not wear head phones or play a radio loudly. The booklet suggested that vendors be neat and clean at all times; to always wear a shirt and shoes, and to not wear T-shirts or hats with offensive messages. The booklet told the vendor that a geographic sales territory would be suggested to the vendor, but that how and when the territory was worked was up to the vendor. It suggested a complete day of operation (10 a.m. until after dark), and warned against neglecting deadend streets or commercial areas. The booklet also instructed the vendor how to handle customer complaints, and to report them as well as any accidents to the district manager. The booklet closed with a letter from Delight’s vice-president stating that correct use of the booklet greatly enhanced the vendor’s chances of success, and that all members of the Delight management team had previously been vendors.

Delight’s branch manager, McCarty, testified on deposition that the booklet presented Delight’s position as to the proper procedure for instructing an operator how to run an ice cream business; that each vendor received a territory and Delight “liked for them to stay in boundaries,” that ice cream could be picked up daily by vendors only between 8:00 a.m. - 1:00 p.m.; that the district manager checked the truck every day; and that the ice cream vending trucks had to be returned to Delight’s each night by one-half hour after dark. He stated that if complaints were received about a vendor, his lease (and licensing agreement) was cancelled if management could not solve the problem; if a vendor was habitually late in his daily return of the vending truck, his lease would probably be terminated; if a vendor complained of another vendor selling in his territory, the management intervened to resolve the problem. Delight management annually conducted approximately ten safety meetings with its vendors. While attendance was not mandatory, management would tell those vendors who could not attend what had been discussed.

Kawan, the vendor involved in the accident, testified on deposition that his initial contact with Delight occurred on April 17, 1985, when he responded to a “help wanted” sign. Kawan, an Iraqi student studying in the United States, and for whom English appeared to be difficult, characterized his actions as “applying for a regular job, just a job.” He viewed a videotape on safety and selling ice cream and read a brochure. He believed that, should a mistake occur due to his failure to follow the instructions given on the videotape, he “would pay for it.” Kawan testified that his ice cream vending career lasted two days, ending the evening Shala was struck. During his two-day relationship with Delight, he chose to work until sunset; he determined the amount of ice cream he procured from Delight; and he was not told to go to a specific area. He did, however, report back to Delight at the end of both days. He did not wear distinctive Delight clothing or a badge that identified him as a Delight employee.

In light of the evidence concerning the exercise by Delight of control over the time, method, and manner of work of the vendors, we cannot say, as a matter of law, that Delight carried its burden on motion for summary judgment. McGuire v. Ford Motor &c. Corp., supra; American &c. Life Ins. Co. v. Gray, 89 Ga. App. 672 (80 SE2d 832) (1954). Compare Allison v. Nat. Assn. for Self-Employed, 187 Ga. App. 592 (1) (370 SE2d 841) (1988). Delight restricted the hours of sale by having the product available for pickup during a limited time and by requiring nightly return of the vending trucks; and restricted the manner and method of work through contractual termination should the vendor cause unresolved customer complaints or habitually fail to return his vehicle daily. The mandatorily-written “suggestions” also were a means to control a vendor’s method and manner of work since the customer complaints that would arise due to a vendor’s failure to follow the “suggestions” would, in all likelihood, result in contractual termination should the vendor not agree to conduct business according to the “suggestions.” We are, therefore, compelled to reverse the grant of summary judgment to Delight that was based upon the trial court’s determination that Kawan was an independent contractor for whose negligence Delight was not responsible.

2. Appellants also take issue with the trial court’s conclusion that summary judgment on the allegation of negligent training was appropriate for appellee. Appellants’ complaint alleged that Delight was “negligent in giving improper, inadequate or misleading instructions and training to . . . Kawan, or giving no training at all, with regard to the fact that ... [the] swing-out stop sign [attached to the driver’s side of the ice cream vending truck] would return to a closed position when the engine was cut off, thereby failing to continue to give warning to oncoming traffic.” Gray, the driver whose pickup truck struck Shala, testified on deposition that no stop sign was extended from the truck and that she decided to pass the ice cream truck after she had ascertained that the children’s feet she had spotted on the curb side of the truck “didn’t move.” Had the ice cream truck had an extended stop sign, she testified, she would have remained stopped until the sign had been retracted.

Delight’s branch manager testified that Kawan was supplied with an ice cream truck that had a stop sign that swung out from the driver’s side of the truck. Kawan testified that he pulled the knob that activated the stop sign and later turned the truck engine off when he realized he would be at the location for a while. He later learned that turning the engine off caused the stop sign to retract, despite the fact that he had pulled out the activating knob. Kawan testified that someone from Delight had shown him how to activate the swing-out stop sign, but he was not able to recall whether he had been instructed about the effect turning the engine off had on the activated sign. After the accident, through experimentation, Kawan came to the realization that cutting the engine off deactivated the swing-out sign.

While he could not recall giving Kawan the safety orientation, Delight’s district manager admitted that his duties on April 17, the lay Kawan saw the video and read the booklet, included responsibility for conducting the safety activities. He stated there was “no stanlard procedure” for explaining the swing-out arm’s dependency on a running engine, and that it was “usually mentioned,” but he could not say whether the operation was explained to Kawan. Only four or five trucks in Delight’s fleet of twenty had this type of swing-out arm. The remainder had arms that could be activated even if the engine were cut off.

Delight maintains that Kawan was aware of the mechanics of the swing-out sign, and bases its position on a response Kawan made to a complex, compound question. When asked “Did anybody from Delight say to you that it was more important to leave that engine running so that the swing-arm would stay out than it is to worry about how much gas you use?” Kawan, whose lack of skill in the English language was demonstrated time and again throughout the deposition, replied that someone at Delight had told him. This testimony, if taken to be an admission that someone at Delight had told him that cutting off the engine would cause the sign to retract, is directly at odds with the rest of Kawan’s testimony concerning his limited I knowledge of the arm’s operation, and his discovery through experimentation of the arm’s dependency on a running engine. However, because it was never determined whether the Delight employee told him this information before or after the accident, it cannot be used as an unexplained contradiction and construed against Kawan (and thereby against appellants). See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (2) (343 SE2d 680) (1986). Therefore, there exists a question of fact concerning whether Delight management gave Kawan complete instructions concerning the operation of the swing-out stop sign. Summary judgment for Delight was not appropriate in light of the existence of a genuine issue of material fact. OCGA § 9-11-56.

3. Lastly, the trial court granted summary judgment to Delight on the ground that no genuine issue of material fact existed as to appellants’ allegation that Delight had been negligent in providing Kawan with a defectively designed truck, that being one in which the swing-out stop sign could not be used if the truck engine were off.

Appellee, as lessor of the truck, had a duty “[t]o warrant . . . that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.” OCGA § 44-12-63 (3). According to the evidence adduced, the inability to use the swing-out arm if the engine were off “neither rendered the [truck] unusable nor rendered the [truck] inherently unsafe for any use.” Fortner v. W. C. Cayne & Co., 184 Ga. App. 187 (2) (360 SE2d 920) (1987). The truck was “not rendered ‘defective’ by the patent absence of a specific safety device which would serve to guard against a common danger connected with the limited use of [the truck, selling ice cream with the engine off], which danger the ultimate user can himself recognize and otherwise guard against. [Cits.]” Id. at 191. The trial court die not err in granting summary judgment to appellee concerning the allegation that appellee negligently leased a defectively designed truck to Kawan.

Decided March 10, 1989

Rehearing denied March 28, 1989

Hill & Bleiberg, Robert P. Bleiberg, for appellants.

Greene, Buckley, DeRieux & Jones, Gregory J. Digel, Margaret L. Milroy, for appellee.

Judgment affirmed in part and reversed in part.

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


author: Beasley, Judge.

text:
    77715.
    DANIELS et al. v. JOHNSON et al.
    (381 SE2d 87)
   Beasley, Judge.

This appeal involves a broken real estate construction and sale contract. Defendant Johnson agreed to sell plaintiff Daniels a completed house including a lot for $275,000. As part of the consideration the contract provided: “$26,500 shall be advanced to Seller by Purchaser to be used in construction of the house and shall be non-refundable. Broker shall have no responsibilities for this advancement to Seller, which shall be credited by Seller to Purchaser at closing.” As a result of a dispute between the parties as to whether the house was being constructed in conformity to the contract, there was no closing, and the house was subsequently sold by Johnson to another purchaser.

Daniels sued to recover the $26,500 advanced to Johnson, as well as damages for unjust enrichment and for bad faith on Johnson’s part. Johnson answered and counterclaimed for damages, claiming that Daniels breached the contract and that she and one Brack conspired to slander the property title by causing a materialman’s lien to be placed on it. Brack sued Johnson on the lien and Johnson counterclaimed for slander of title against Brack.

The suits were consolidated for trial and the jury returned a verdict for defendant seller Johnson as to the $26,500 plus $5,000 damages for Johnson against Brack. Both plaintiffs filed a joint alternative motion requesting a judgment notwithstanding the verdict or a new trial. The motion was denied, and both plaintiffs appealed.

1. Daniels contends that the $26,500 was a penalty rather than liquidated damages as found by the jury. OCGA § 13-6-7 provides: “If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated, and unless the agreement violates some principle of law, the parties are bound thereby.” Daniels had the burden of showing that the provision was a penalty. Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989).

“[T]he enforceability of a liquidated-damages provision in a contract is a question of law for the court.” Liberty Life Ins. Co., supra. Construing the code section, formerly 1910 Civil Code § 4390, in National Mfg. &c. Corp. v. Dekle, 48 Ga. App 515, 522 (173 SE 408) (1933), this court observed: “The question as to whether an amount provided in a contract to be paid in case of its breach is liquidated damages or a penalty is often difficult of determination; but the cardinal tests are the intention of the parties and the reasonableness or unreasonableness of the amount fixed, according to the certainty and ease or the difficulty in ascertainment of the actual damages, and according to the similarity or disproportion between the amount provided and the actual or probable loss.” See Heard v. Dooly County, 101 Ga. 619, 626 (28 SE 986) (1897); Sanders & Ables v. Carter, 91 Ga. 450, 452 (17 SE 345) (1893).

A more recent decision by the Supreme Court, Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976), has crystallized a three-part measurement. “First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.” Liberty Life Co., supra, fn. 1; Gibson v. Sheriff, 155 Ga. App. 578 (271 SE2d 710) (1980). The provision in a contract will be treated as enforceable liquidated damages rather than an unenforceable penalty only if all three of the factors are present. Broadcast Corp. of Ga. v. Subscription Television of Greater Atlanta, 177 Ga. App. 199 (338 SE2d 775) (1985). “[I]n cases of doubt the courts favor the construction which holds the stipulated sum to be a penalty.” Mayor of Brunswick v. Aetna Indem. Co., 4 Ga. App. 722, 728 (62 SE 475) (1908). Accord Fortune Bridge Co. v. Dept. of Transp., 242 Ga. 531, 532 (250 SE2d 401) (1978); Thorne v. Lee Timber Prods., 158 Ga. App. 226, 227 (279 SE2d 521) (1981). And “[w]here a designated sum is inserted into a contract for the purpose of deterring one or both of the parties from breaching it, it is [a] penalty.” Florence Wagon Works v. Salmon, 8 Ga. App. 197 (2) (68 SE 866) (1910). Accord Fortune Bridge Co., supra; Broadcast Corp. of Ga., supra.

If the damages resulting from the agreement’s breach were evidently the subject of calculation and adjustment between the parties in advance, and a reasonable and certain sum was agreed on which was intended as compensation, it will be considered liquidated damages. Sanders & Ables, supra at 453. “[W]here the amount plainly has no reasonable relation to any probable actual damage which may follow a breach,” the contractual provision will be construed as an unenforceable penalty. Miazza v. Western Union Tel. Co., 50 Ga. App. 521, 522 (1) (178 SE 764) (1935); Prime Business Investments v. Peacock, 185 Ga. App. 396 (1) (364 SE2d 106) (1987).

Johnson contends that the contractual damages are hard to show and that the amount of $26,500 fairly closely corresponds with the actual costs he had in eventually selling the house. Be that as it may, the money was advanced to seller for the purpose of his construction costs and was so used, we assume, with a no-refund proviso. The designated figure was not shown to have a reasonable pre-determined relation to the contractual damages the seller might suffer in the event the sale did not close. It would be “ ‘in some instances, too large and in others too small a compensation for the injury . . . occasioned.’ ” Mayor of Brunswick, supra at 727. See Floding v. Floding, 137 Ga. 531, 536 (73 SE 729) (1911); Dekle, supra.

There is no language in the contract showing that the parties intended this amount to be liquidated damages rather than a penalty. Of course, while the words used in the provision are by no means conclusive, Sanders & Ables, supra at 453, they are a critical factor in determining the intent of the parties. Liberty Life Ins. Co., supra.

Defendant answered “no” to the question if the figure of $26,500 was “a pre-estimate by you of what your damages would be if she backed out of the contract?” He then attempted to explain that the figure was based on damages he would sustain by stating: “It’s based on what we ask is non-refundable monies to be paid to sign the contract and to take our house off the market. We couldn’t sell the house to anybody else.” The rule is well established that: “The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal .... And he ‘is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.’ ” Southern R. Co. v. Hobbs, 121 Ga. 428 (1) (49 SE 294) (1904). Johnson’s testimony negates the presence of any intent by the parties to liquidate the damages and any agreement as to what a reasonable sum would be. As held in ADP-Fin. Computer Svcs. v. First Nat. Bank, 703 F2d 1261 (11th Cir. 1983), there must be some manifestation of the parties’ intent to agree on liquidated damages.

It is clear that the parties did not make a bona fide effort “to liquidate in advance and agree upon the sum which should represent the damages which would be actually sustained in event of a breach.” Florence Wagon Works, supra at 197 (2). In Liberty Life Ins. Co., supra, there was undisputed testimony that the amount set aside as liquidated damages was an accepted pre-estimate of damages. Here, on the other hand, the amount chosen was not denominated or otherwise intended by the parties as liquidated damages and its was not shown that the parties intended the amount as a reasonable pre-estimate of the probable loss. Thus, Johnson as seller may not prevail under the tripartite test.

Because the money found by the jury is liquidated damages was a penalty, the judgment in favor of the seller against the buyer must be reversed. But since the trial court did not permit seller to establish his actual damages, see Southeastern Land Fund, supra at 232, a new trial must be afforded. OCGA § 9-11-50 (e); Greene v. Johnson, 170 Ga. App. 760, 762 (318 SE2d 205) (1984); Roland v. Byrd, 163 Ga. App. 408, 411 (294 SE2d 626) (1982).

2. “The owner of any estate in lands may maintain an action for libelous or slanderous words falsely and maliciously impugning his title, if any damage has accrued to him therefrom. Civil Code (1910), § 4479 [now OCGA § 51-9-11]. In order to sustain an action of this kind, the plaintiff must allege and prove the uttering and publishing of the slanderous words; that they were false; that they were malicious; that he sustained special damage thereby, and that he possessed an estate in the property slandered.” (Emphasis supplied.) Schoen v. Md. Cas. Co., 147 Ga. 151, 153 (93 SE 82) (1917); Copeland v. Carpenter, 203 Ga. 18, 19 (1) (45 SE2d 197) (1947). See Anno., 4 ALR4th 532. Filing a false lien constitutes impugning title to property. Lincoln Log &c. Marketing v. Holbrook, 163 Ga. App. 592, 594 (2) (295 SE2d 567) (1982).

Johnson testified that filing the lien “hurt us. It made us look bad with the banks and the closing attorneys and we had to pay for title policies and we had to bond over that. A lien to me is a bad thing and we are asking for damages on that of $5,000.” He answered that he did not think there were any other damages he was asking for. There is no stated basis for the $5,000 and Johnson has therefore failed to establish an essential element of his case. OCGA § 51-12-2 (b); Development Corp. of Ga. v. Berndt, 131 Ga. App. 277, 278 (205 SE2d 868) (1974); Studebaker Corp. v. Nail, 82 Ga. App. 779, 785 (2) (62 SE2d 198) (1950); National Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725 (1) (72 SE 191) (1911). Because of insufficient evidence of damages, Johnson’s judgment against Brack must also be reversed.

The judgment in favor of defendant as against both plaintiffs is reversed with direction that judgment be entered for Brack and that a new trial be granted as to the claim of Daniels.

Judgment reversed with direction.

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

Decided March 13, 1989

Rehearing denied March 28, 1989

William A. Wehunt', for appellants.

Dailey & Groover, Lewis M. Groover, Jr., for appellees.


text:
    77895.
    JORDAN v. SMOOT et al.
    (380 SE2d 714)
   Benham, Judge.

Appellant Jordan and appellee Smoot, while driving their respective automobiles, were involved in a collision on March 12, 1987. Appellant’s negligence action against Smoot culminated in a jury trial in which the trial court granted Smoot’s motion for a directed verdict. This appeal is from the judgment entered thereon.

Appellant’s case consisted of her testimony and that of the responding police officer, pictures of her damaged car, and her medical bill. Through her testimony, appellant established that she was involved in a collision with appellee; that later that same day she experienced pain and visited a chiropractor; that she continued to have pain from the back of her head through her neck and shoulders; that the chiropractic treatments gave her relief; that she stopped seeing the chiropractor four months after the collision; and that she had suffered from some backaches prior to the collision but had not been under medical care. Pursuant to OCGA § 24-7-9, appellant identified the medical bills for her chiropractic treatment from March 12 through July 20, 1987, totaling $2,245. Appellant then rested.

The trial court, relying on the holding in Eberhart v. Morris Brown College, 181 Ga. App. 516 (352 SE2d 832) (1987), granted Smoot’s motion for directed verdict on the ground that appellant had failed to prove a prima facie personal injury case because she had not introduced expert medical testimony to establish a relationship between the automobile collision that served as the basis of her complaint, and the injuries for which she was treated.

1. In Eberhart, this court affirmed the trial court’s grant of a directed verdict for the defendant/appellee on the ground that Eberhart had failed to prove through expert medical testimony a causal connection between the football injury he had sustained during his 1979-1982 collegiate football career and the physical condition which underlay the medical expenses he incurred several years later in 1985. We held that whether Eberhart’s physical condition in 1985 was caused by the injury he had received while playing collegiate football in 1979-1982 was “ ‘ “not one of those matters which jurors must be credited with knowing by reason of common knowledge.” [Cits.]’ ” Id. at 518.

Decided March 3, 1989

Rehearing denied March 28, 1989

Johnnie C. Wages, for appellant.

Michael L. Wetzel, for appellees.

The case at bar is factually distinguishable from Eberhart. There was in Eberhart, at minimum, a three-year period between the football injury and the physical condition for which Eberhart sought compensation. In the case before us, appellant sustained an injury on March 12 and sought compensation for the physical condition in which she found herself on that date. A causal connection, requiring expert medical testimony, must be established where the “potential continuance of a disease” is at issue. Id. However, where, as here, there is no significant lapse of time between the injury sustained and the onset of the physical condition for which the injured party seeks compensation, and the injury sustained is a matter which jurors must be credited with knowing by reason of common knowledge, expert medical testimony is not required in order for a plaintiff to establish a personal injury case sufficient to withstand a defendant’s motion for directed verdict.

2. Inasmuch as the judgment must be reversed, we need not address appellant’s remaining enumerations of error.

Judgment reversed.

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


text:
    A89A0255.
    POTTS v. THE STATE.
    (381 SE2d 99)
   Deen, Presiding Judge.

Robert Charles Potts appeals pro se from his conviction of driving under the influence of alcohol, asserting the general grounds.

1. The evidence showed that a DeKalb County police officer noted Potts’ automobile weaving in the lane in which he was driving and almost striking another vehicle while driving on 1-285. After the officer put on his siren he had to change its mode several times to get appellant’s attention. When he approached the vehicle, the officer noticed an odor of alcohol about Potts, that his speech was slurred, and that he fumbled for his wallet. Potts staggered and nearly fell down when he got out of his car and could barely stand up unaided. The officer performed two sobriety tests on appellant: a horizontal gaze nystagmus and a pupil dilation test. The officer testified as to his training and experience in performing the tests and based on these factors, he believed the appellant to be under the influence of alcohol. He radioed for another officer to transport the accused to the police station because his vehicle was not equipped with a security screen. The second officer read Potts the implied consent warnings, but he refused to sign the implied consent form. He also refused to take a police-administered blood test and stated that he would take a urine test. When asked to take this test he claimed that he did not need to urinate. He requested a breath test several times, but was advised that he had to submit to the test of the officer’s choice before he could receive the test of his choice. Potts claimed that he was afraid to take a blood test administered by the police station because of his fear of contracting AIDS. He never took the urine test. The second officer testified that on the basis of his experience and training he believed that appellant was under the influence of alcohol to the extent that he was a less safe driver.

Decided March 17, 1989

Rehearing denied March 28, 1989

William M. Warner, for appellant.

Ralph T. Bowden, Jr., Solicitor, Cliff Howard, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.

Appellant argues that the officer’s testimony that he was intoxicated usurped the function of the trier of fact. This argument is without merit because the evidence showed that the opinion was based upon the officer’s experience and observations. There was sufficient evidence for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Boose v. State, 185 Ga. App. 728 (365 SE2d 534) (1988). Refusal to take the State-requested test may be admitted into evidence against a person accused of DUI. OCGA § 40-6-392 (c). The evidence must be viewed in the light most favorable to the prosecution when the evidence is reviewed on appeal. Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

2. Appellant’s remaining enumerations of error are not supported by argument or citation to authority and are therefore deemed abandoned. Carey Canada v. Hinely, 181 Ga. App. 364, 373 (352 SE2d 398) (1986).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0404.
    BROWN v. THE STATE.
    (381 SE2d 101)
   Deen, Presiding Judge.

Winston Brown was indicted for violation of the Georgia RICO Act. The predicate offenses which were alleged to support the indictment were murder, aggravated assault, aggravated battery, and perjury. The trial court granted the defendant’s motion for a directed verdict as to the alleged predicate offenses of aggravated battery and perjury. Brown appeals.

1. Under Georgia’s RICO Act, OCGA § 16-14-1 et seq., OCGA § 16-14-3 requires proof that the accused has committed two or more offenses of the type included in the RICO statutes, and proof that two or more offenses have been committed as part of an enterprise engaging in a pattern of racketeering activity as it is defined in the Act. Martin v. State, 189 Ga. App. 483 (376 SE2d 888) (1988). Under OCGA § 16-14-3 (3) (A): “ ‘Racketeering activity’ means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment under the following laws of this State: (i) Article 2 of Chapter 13 of this title, relating to controlled substances; . . . (iv) Article 1 of Chapter 5 of this title, relating to homicide; (v) Article 2 of Chapter 5 of this title, relating to bodily injury and related offenses.” The indictment alleged that Brown unlawfully associated with an enterprise known as the “Miami Boys” or the “Macaroni Gang,” and on November 13, 1986, participated in this enterprise through a pattern of racketeering activity through two sales of cocaine to Officer G. Dawson, the sale of cocaine to twelve black males of unknown identity, the murder of Anthony Johnson, and the aggravated assault of Vincent Rainwater.

Brown’s contention that the trial court erred in charging the jury that the State is not required to prove that he committed all the predicate acts is without merit. OCGA § 16-14-3 (2) requires the State to prove that an accused “engag[ed] in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated . . .” and that the last incident occurred within four years of a prior activity. The court charged the jury that the State was alleging that the defendant engaged in five predicate acts and “[i]f you are satisfied beyond a reasonable doubt that the defendant engaged in two or more of the acts alleged or submitted to the jury and that those acts are not isolated incidents but are interrelated, you are authorized to find that a pattern of racketeering activity has been shown.” The court had earlier charged the provisions of OCGA § 16-14-3 (2) set forth above. Examining the charge as a whole we find no error. Rosenthal v. Hudson, 183 Ga. App. 712, 714 (360 SE2d 15) (1987). On review, the charge must be considered as a whole and each part in connection with every other part of the charge. Zayre of Ga. v. Ray, 117 Ga. App. 396, 398 (160 SE2d 648) (1968); Turner v. State, 178 Ga. App. 888 (345 SE2d 99) (1986).

2. Brown asserts as error the trial court’s ruling that in a RICO prosecution a defendant’s character is in issue. Counsel for the defendant objected to the indictment and sentence in a prior case being placed in evidence. (This was the indictment in the companion case, Brown v. State, 190 Ga. App. 818 (_ SE2d _) (1989).

The RICO statutory provisions provide for evidence under OCGA § 16-14-3 (2) of a carefully defined “[p]attern of racketeering activity” that the defendant has engaged in “within four years after the commission of a prior incident of racketeering activity” which comports with the provisions of OCGA § 16-14-2 (b), which specifically provides that RICO does not apply to isolated instances of criminal activity. The indictment and sentence were admissible, as the State was required to prove a series or pattern of illegal activities. This evidence, when combined with other evidence introduced at trial, shows the requisite pattern of racketeering activity. Two police officers testified as to sales of cocaine to themselves and witnessing the sales to others. Other witnesses testified as to the rivalry between two drug sales organizations: the “Miami Boys,” a/k/a “The Macaroni Gang,” and a rival group headed by Anthony Johnson; the shooting death of Johnson when Brown’s group invaded Johnson’s sales territory; and the wounding of one of the witnesses (apparently a purchaser) in the shoot-out.

A witness testified as to a discussion of the instant case with Brown, and the State elicited testimony that the conversation took place in jail. Considering the list of offenses with which Brown was charged, the jury would not be surprised to learn that he had been arrested and was in jail for an unspecified period of time. Assuming arguendo that such testimony was erroneously placed before the jury, we fail to see how he was prejudiced, as there is no reasonable possibility that this testimony contributed to his conviction. Williams v. State, 185 Ga. App. 780 (366 SE2d 200) (1988).

3. Appellant next contends that the trial court erred in failing to declare a mistrial because a newspaper article and radio information were improperly received by the jurors.

The transcript shows that when the court was presented with information that the jurors might have been exposed to prejudicial material disseminated by the news media, it held a hearing and questioned the jurors. Only one juror was found to have read a newspaper article about the “Miami Boys,” and he testified that he had not communicated the contents of the article to the other jurors. This juror was excused. When the other jurors were examined, several admitted that they were aware that there was an article in that day’s paper, but were unaware of its contents. Several jurors were also aware of news broadcasts but had not listened to any of them. After examining the jurors, the court permitted them to remain on the jury, but gave them strict cautionary instructions that they were not to read a newspaper, listen to the radio, or watch television while they were sitting on the jury. We find no error.

Decided March 17, 1989

Rehearing denied March 28, 1989

Kane & Anderson, Daniel B. Kane, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Assistant District Attorney, for appellee.

4. The trial court did not err in failing to charge the defendant’s request for charge numbers 30 and 31, which defined an “enterprise” and the distinction between an enterprise and an individual charged in a RICO prosecution and a RICO enterprise. The distinction sought to be made by the defendant is without merit. Under OCGA § 16-14-3 (1) “Enterprise” is defined as “any person, sole proprietorship,” etc. A charge which tracks the relevant codal provision is not error. Cook v. State, 179 Ga. App. 610 (347 SE2d 664) (1986).

Brown’s contention that the trial court erred in charging one of the State’s requests to charge cannot be considered because it was not enumerated as error. An appellant cannot expand his enumerations of error by brief to include issues not raised in the enumerations of error. Scott v. State, 177 Ga. App. 474 (339 SE2d 718) (1985).

5. In his remaining enumeration of error, Brown asserts the general grounds. We have examined the transcript of the trial and find that when the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Cain v. State, 178 Ga. App. 247 (342 SE2d 742) (1986).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    77338, 77572.
    VULCAN LIFE INSURANCE COMPANY v. DAVENPORT; and vice versa.
    (380 SE2d 751)
   Beasley, Judge.

These appeals arise from a suit brought by Davenport against his health insurance carrier, Vulcan Life Insurance Company. The complaint sought medical expenses incurred by Davenport when his vehicle collided with an ambulance, plus damages for nonpayment of the claims. Vulcan denied the claim on the strength of the following policy exclusion: “INTOXICANTS AND NARCOTICS: We will not be liable for any loss resulting from your being drunk (except in Oklahoma or Minnesota) or under the influence of any narcotic unless taken on the advice of a physician.” This is a departure from the language approved in OCGA § 33-29-4 (b) (9). See also subsection (a). The focal issues were whether Davenport was “drunk” and whether his injuries resulted from his being “drunk.”

The evidence showed that on the afternoon of August 19, 1983, Davenport bought a pint and a fifth of whiskey and began drinking it while driving his pickup truck from Dalton back to Ellijay, Georgia. When he encountered an emergency unit of the Gilmer County Ambulance Service with its siren on and lights flashing, he decided to follow it. He estimated his speed at 60 to 65 miles per hour over eight miles of mountain road. He ran into the ambulance on a stretch of road under construction around a bridge when it either slowed or stopped for a woman who stepped out from her driveway waving her arms. Davenport’s blood alcohol content was .19 percent. He subsequently pled guilty to driving under the influence of alcohol and other traffic violations. His suit against the driver of the ambulance and the agency which operated it was settled for $10,000.

Davenport submitted a medical bill to Vulcan for payment under the policy on September 19, 1983. Upon its receipt Vulcan wrote Davenport for a completed claim form and an attending physician’s diagnosis for treatment. Vulcan received a claim form on October 13 indicating that the injuries had resulted from an automobile accident. Vulcan mailed a second notice on November 2 informing Davenport that it was unable to complete the claim processing because it lacked information requested from his physician and the hospital of confinement; the notice itemized the information needed as medical records. Vulcan also requested a copy of the accident report from the Georgia Department of Public Safety, which it received in late November or early December. Upon learning that Davenport had been charged with DUI, and that a blood test had been given with the results pending, Vulcan obtained a copy of the blood test and the results of the traffic citation. After receiving this information on February 3, 1984, Vulcan notified Davenport by letter dated February 13 that his claim was rejected due to the policy exclusion.

Vulcan’s position at trial was that Davenport’s intoxication level of .19 percent, in conjunction with his admission that he had been drinking when the collision occurred and his plea of guilty to the DUI charge, established that when injured he was drunk as a matter of law and therefore excluded from coverage. By deposition in rebuttal Davenport introduced qualified expert testimony that alcohol consumption affects people differently as each person’s system is unique; that a person can build a tolerance to alcohol over time because his system acclimates to the presence of alcohol; and that a person who drinks infrequently has greater physical effects from alcohol at lower levels than a person who drinks regularly or habitually. The expert had determined through experiments and observation that there was a correlation between the quantity of alcohol consumed and observed physical impairment increasing, in which the individual rate of increase would be different but the general characteristics could always be seen. Generally, from .05 to .10 percent alcohol level there is “impairment of balance, inability to stand erect [and] swaying from side to side . . . By .20 percent their balance is so bad . . . they tend to try to steady themselves by hanging on to things. By .25 you’re reaching the area most people associate with the term ‘drunk.’ The person is so wobbly and staggering on their feet that they look drunk. And by .25 to .30 the person just wants to lie down and go to sleep or pass out. And by .30 most people have passed out.” However, it could not be determined what a person’s actual level of impairment would be at any given blood alcohol level without knowing his tolerance to alcohol.

Davenport was a regular weekend drinker; he admitted he had been drinking at the time of the collision, but he did not look drunk to witnesses nor was his speech slurred. He testified that his consumption of alcohol “probably had a little something to do with it,” but “it wasn’t the total cause” of the collision. When he was following the ambulance he was “not drunk,” could navigate the curves in the road and had no problems with his vision. A hospital report dictated three days after Davenport’s admission described him as complaining of severe abdominal pains and alert and oriented as to time and place. He suffered serious internal injuries. The investigating officer testified that it is entirely possible for alcohol to be involved in an accident but not in fact be the cause of it.

The evidence of a settlement in Davenport’s favor against the ambulance driver and service raised an inference of his lack of fault in causing the collision. This relates to that aspect of the policy exclusion which precludes coverage only for losses “resulting from” insured’s being drunk. In determining whether the exclusion applied in this case, the jury had to decide not only whether Davenport was drunk but also whether his injuries resulted from his being in such a condition.

Vulcan moved for directed verdict at the close of Davenport’s case and again after the presentation of all evidence. Both were denied. The jury found: 1) Davenport was not drunk at the time of the collision and his injuries did not result from his being drunk; 2) Davenport’s “state of intoxication” was not the proximate cause nor a contributing cause of his injuries; 3) Vulcan acted in bad faith; and 4) Davenport should be awarded additional bad faith damages in a maximum amount of 25 percent.

The remaining claims had been reserved by agreement of the parties for decision by the court without a jury. The court entered a judgment awarding Davenport $73,026.32 insurance benefits, $18,256.58 penalty, and $12,500 attorney fees pursuant to OCGA § 33-4-6. The court concluded that because the amount due was determinable at the time of the breach, prejudgment interest in the amount of $19,886.53 was due; that because insufficient notice was given under OCGA § 33-29-3 (b) (8) (C), Davenport was entitled to damages of only $51,137.75; and that he was not entitled to equitable relief as claimed.

Vulcan’s amended motion for new trial and motion for judgment notwithstanding the verdict were denied as to the claims under the insurance contract and for prejudgment interest. However, judgment n.o.v. was granted as to the statutory penalties, attorney fees and damages pursuant to OCGA §§ 33-4-6 and 33-29-3 (b) (8) (C). Davenport requested the court by motion to enter findings of fact and conclusions of laws in these regards, which was denied. The parties appeal these rulings.

Case No. 77338

1. The threshold issue is the meaning of the word “drunk” in Davenport’s hospital, medical, and surgical insurance policy. The policy does not define the word and thus it was left to the jury to determine whether Davenport’s injuries were the result of his being “drunk.” The insurer denied all claims where the blood alcohol content was .10; that is how it interpreted the word. But that is not the common meaning of this commonly used word, which describes the condition of a person who is under the influence of an intoxicant to a degree which varies depending on who is measuring it for what purpose. It is not a medical term. Nor is it a scientific term, which is how the insurer encapsulated it in practice. It is not a term with a specific legal meaning. Although the term “drunk” has been analyzed, no conclusive definition has been accepted as a matter of law in this state. Likewise, whether in our opinion the evidence showed that Davenport was “drunk” is irrelevant, unless he was “drunk” as a matter of law with respect to insurance coverage.

On several occasions during the trial the judge implored counsel to furnish a working meaning of drunkenness as a standard for the jury. None were offered, no objections were raised to the definition from Webster’s Dictionary proposed by the judge midway through the trial, and the jury was charged without objection that to be “drunk” was “to be overcome by alcoholic liquor to the point of losing control over one’s faculties; intoxicated.” Vulcan did not suggest that the word was a synonym for the statutory word “intoxicated.” OCGA § 33-29-4 (b) (9).

OCGA § 40-6-391, sometimes described as the “drunk driving law,” see State v. Golden, 171 Ga. App. 27(3) (318 SE2d 693) (1984); 9 EGL, Drunkenness, § 6, refers only to a person being under the influence of alcohol “to the extent that it is less safe for the person to drive.” Vulcan quotes from cases where our appellate courts have struggled with semantics in attempting to differentiate between the seemingly synonymous use of “intoxicated,” “drunk,” “drunken,” “under the influence of intoxicating liquors” and such in various contexts, but none of these terms of insobriety is definitive for this contract. See, e.g., Sapp v. State, 116 Ga. 182 (42 SE 410) (1902); O’Connell v. State, 5 Ga. App. 234 (62 SE 1007) (1908); Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157 (30 SE2d 411) (1944).

We are not inclined to accept Vulcan’s arguments that under Georgia case law, since Davenport’s blood alcohol intoxication level would support a conviction of DUI as defined by OCGA § 40-6-391, he was “drunk” as a matter of law and thereby excluded from coverage. See Smitherman v. State, 157 Ga. App. 526-527 (278 SE2d 107) (1981), where this court approved a charge stating that to prove such a violation, the State “ ‘need not show that the defendant was drunk, but only that he was under the influence of alcohol’ ” so as to be less safe to drive. Compare the statutory prohibition against furnishing an alcoholic beverage to a person “who is in a state of noticeable intoxication.” OCGA § 3-3-22; Whelchel v. Laing Properties, 190 Ga. App. 182 (378 SE2d 478) (1989).

When Vulcan drafted the policy, if it intended “drunk” to mean having a minimum .10 blood alcohol level, or being under the influence of an intoxicant in any amount whatsoever, or being in a condition as measured by some other objective criteria such as physical manifestations, it was bound to have so stated.

“ ‘Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.’ [Cit.]” St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (1) (358 SE2d 925) (1987). “[W]here the language contained in an insurance policy is susceptible to two or more constructions, the one most favorable to the insured will be adopted. [Cits.]” Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981). Accord MAG Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169 (1) (367 SE2d 63) (1988); First Ga. Ins. Co. v. Goodrum, 187 Ga. App. 314 (370 SE2d 162) (1988).

While it appears to be illogical that a person who pleads guilty to driving under the influence and has a blood alcohol level of .19 when injured in a collision is covered by medical insurance which excludes coverage when injuries result from being “drunk,” the terms of the policy differ from the driving prohibitions.

2. Vulcan asserts that even if Davenport was not drunk as a matter of law, the weight of the evidence showed him to be so. The evidence is to be construed on appeal to uphold the jury’s verdict, and the sole question for determination is whether there was any evidence to authorize it. Campbell v. Forsyth, 187 Ga. App. 352 (1) (370 SE2d 207) (1988) and cits. The evidence was sufficient to support the finding that Davenport was not “drunk” in the sense that term was used in the policy exclusion.

3. We reject Vulcan’s contention that the verdict and judgment are contrary to the public policy of this state, as expressed by the recent amendment to OCGA § 40-6-391 stiffening penalties for driving under the influence of alcohol. Proof of a violation of this statute does not establish that a driver was “drunk” as required by the policy drafted by Vulcan, which connotes a more substantial degree of impairment.

4. Vulcan questioned its claims manager at some length on direct examination in regard to the company policy of denying all claims for coverage under the “drunk” exclusion where the policyholder has tested .10 blood alcohol content or over. Davenport pursued the subject on cross-examination in an attempt to show that Vulcan had not complied with the fifteen-working-days time limit imposed by OCGA § 33-29-3 (b) (8) for processing claims in obtaining this information. Vulcan complains that Davenport misstated the law when he suggested to the court that the reasonableness of the claim investigation could authorize a finding of bad faith, and that the emphasis on this issue unfairly prejudiced the jury and fatally tainted the trial.

The subject was introduced on direct examination by Vulcan, no objections were made in regard to the cross-examination, and on redirect examination this witness testified that the claims’ investigation procedures were timely implemented. Although the jury did award bad faith penalties, the trial court eliminated them by judgment n.o.v.

Moreover, this line of questioning was material and relevant in determining the meaning of “drunk” as contemplated in the policy exclusion. Questions of relevance and materiality of evidence are for the trial court and in the absence of abuse of judicial discretion, which does not present itself here, this court will not interfere. Energy Contractors v. Ga. Metal Systems &c., 186 Ga. App. 475 (1) (367 SE2d 324) (1988); Kittles v. Kittles, 187 Ga. App. 537 (1), (2) and (3) (370 SE2d 803) (1988).

5. Vulcan’s enumeration of error that an award of prejudgment interest was precluded by OCGA § 7-4-15 because it was not a “liquidated demand” is without merit. The parties agreed that $73,026.32 was the amount Davenport was entitled to receive for medical expenses if he was covered by the policy, and the issue was not submitted to the jury. The trial court further found that the amount due was determinable at the time of the breach. This ruling was supported by the testimony of Vulcan’s claims manager as to what Davenport would have been entitled to under the policy terms. Thus, recovery of prejudgment interest was also authorized under OCGA § 13-6-13. See Braner v. Southern Trust Ins. Co., 255 Ga. 117 (1) (335 SE2d 547) (1985); Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576 (2) (373 SE2d 758) (1988).

6. Contrary to Vulcan’s assertions, Davenport’s authorization of payments to be made directly to medical providers on some of the proof of loss forms submitted did not constitute an assignment of his policy so as to preclude his seeking recovery of those benefits. “The contract of insurance contemplates that the plaintiff [Davenport] alone is the legal owner thereof, although others than himself are thereby insured. . . . The [complaint] alleges that there has been a breach of the contract between plaintiff and defendant. The measure of damages for this breach is alleged as the amounts which defendant by its contract binds itself to pay upon the happening of a certain event — an [injury] within the terms of the policy — plus other damages sought to be covered for bad faith. That which was assigned by the plaintiff to the [providers] was the same thing which the defendant agreed, when otherwise liable, and when authorized by the plaintiff, to pay direct to the [providers] — that is, reimbursement of plaintiff’s debt to the [providers] to the extent of its liability under the contract. The insurance contract [was] . . . still of force and effect. It [was] still a contract between the plaintiff and the defendant, and it [was] not assigned by the plaintiff to anyone. The cause of action, if one exists, is an action for damages under the contract, title to which is in the plaintiff. The proceeds of the policy, which are the equivalent of the measure of damages, have been allocated or assigned to the [providers] for the purpose of being applied to the plaintiff’s debt to [them]. . . . Accordingly, when under the terms of the policy he authorized the defendant, as he was entitled to do, to pay the proceeds direct to the [providers], the fact that this instrument ‘assigns’ all benefits under the policy does not make it such an assignment of legal title as to authorize the [providers] to sue on the policy in [their] own name and accordingly such a suit could not be maintained. [Cit.] Nevertheless, the [providers have] such a substantial interest in the proceeds as to make [them] a proper use for whose benefit the action may be maintained by the person having legal title to the contract. [Cit.]” Reserve Life Ins. Co. v. Peavy, 94 Ga. App. 31, 32-33 (1) (93 SE2d 580) (1956).

Case No. 77572

7. Davenport enumerates six errors, four of which are rendered moot by our affirmance because they were conditional upon our reversal of errors enumerated by Vulcan in the main appeal.

Davenport requests consideration of his contention that Vulcan violated the notification provisions of OCGA § 33-29-3 (b) (8) by making no response on any submitted claims for twelve weeks while it investigated, without his knowledge, the collision and the involvement of alcohol. By consent of the parties the claim for damages under this count of the complaint was withdrawn from the jury and submitted to the judge. Although the trial court initially ruled in Davenport’s favor on this count, it subsequently reversed this ruling by granting Vulcan’s motion for judgment n.o.v. thereon.

OCGA § 33-29-3 (b) (8) (A) provides: “All benefits payable under the policy . . . will be payable immediately upon receipt of due written proof of such loss. . . . When all of the listed documents or other information needed to process the claim have been received, the insurer shall then have 15 working days within which to process and either pay the claim or deny it, in whole or in part, giving the insured the reasons the insurer may have for denying such claim or any portion thereof.” (Emphasis supplied.)

The trial court correctly concluded that the separate medical bills submitted by Davenport constituted only one statutory claim which Vulcan was required to pay or notify otherwise upon receiving due written proof of loss. The first and second bills received by Vulcan were not such because they were not accompanied by a completed claim form. The third bill, received on October 13,1983, was attached to a completed claim form and thus triggered the pay or notify provisions. Within fifteen working days of receiving this proof of loss Vulcan twice wrote the doctor and hospital asking for medical records, and on November 2 timely notified Davenport that “[a]t this time we are still unable to complete the processing of your recent claim due to non-receipt of the information we have requested from either your physician or the hospital to which you were confined. We have made an additional request for the information we need and you may be assured that we will give immediate attention to your claim as soon as that information is received.”

During November, while Vulcan acquired the requested medical records and then sought to obtain copies of the accident report and blood alcohol test, no further notice was required as it was acting on information contained in the completed claim form received on October 13 for which notice had already been timely given. Within fifteen days of obtaining the blood alcohol test and traffic citation on February 6, 1984, Vulcan notified Davenport on February 13 that it was denying the claim based upon the “drunk” exclusion. It was Davenport, not Vulcan, who failed to comply with the statute by submitting medical bills which did not constitute a proper proof of loss. Cf. Blue Cross &c. of Ga. v. Merrell, 170 Ga. App. 86 (316 SE2d 548) (1984).

Decided March 15, 1989

Rehearing denied March 29, 1989

Swift, Currie, McGhee & Hiers, Donald T. Daugherty, James T. McDonald, Jr., James B. Hiers, Jr., for appellant.

Michael T. Bennett, Michael A. Paulk, David E. Ralston, for appellee.

8. Davenport also seeks reversal of the judgment n.o.v. favoring Vulcan on the jury award of bad faith damages pursuant to OCGA § 33-4-6. He contends that the evidence indicates that Vulcan’s primary defense was the unsupported, controverted inference that because his blood alcohol content was over .10 he was drunk, which defense was unfounded in fact. This was clearly not the case, as there was abundant evidence to authorize the jury, as the trial court recognized, to find that Davenport was legally intoxicated, or “drunk.” There was also sufficient evidence to support the verdict that while he had been drinking, he was not “drunk” and his injuries were not the result of his being “drunk.”

As was established in Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 706 (1) (302 SE2d 605) (1983): “ ‘If there [are] any reasonable grounds for an insurer to contest the claim, there is no bad faith. [Cits.]’ [Cit.] ‘Where the issue on ultimate liability is closely contested, a finding of bad faith is generally unjustified. [Cit.]’ [Cit.]” Vulcan had always denied claims where the blood alcohol level was .10 or over. Since as a matter of law and fact Vulcan had a reasonable defense which vindicated its good faith, judgment n.o.v. obviating the jury’s award was proper. Id. at 707. Accord Republic Ins. Co. v. Martin, 182 Ga. App. 390 (3) (355 SE2d 694) (1987); Southern Gen. Ins. Co. v. Kent, 187 Ga. App. 496 (2) (370 SE2d 663) (1988).

Judgment affirmed.

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