text:
    A92A0824.
    THE STATE v. DAVIS.
    (424 SE2d 878)
   Johnson, Judge.

Stallan Davis gave consent to be searched by a police officer. During the search, the officer saw Davis place suspected cocaine on a nearby wall. Davis was charged with possession of cocaine with intent to distribute. Davis filed a pre-trial motion to suppress admission of the cocaine into evidence. The trial court granted the motion, holding that Davis was unlawfully detained without reasonable suspicion, thereby tainting the consent search. The State appeals.

“Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

“A person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” (Citations and punctuation omitted.) State v. Jackson, 201 Ga. App. 810, 813-814 (2) (412 SE2d 593) (1991).

In the instant case, two police officers approached three males, including Davis, and one female as they stood on a street in a well-known drug area. One of the officers began speaking with Davis while the other officer spoke with one of the other males. The female walked away from the officers. The officer speaking with Davis explained that they were in the area “for street level drug enforcement.” Davis, in response to a question by the officer, stated that he was not in possession of any drugs. The officer then said, “Do you mind if I search you?” Davis replied, “No, I don’t mind.” Davis never attempted to terminate the conversation or walk away from the officer. The officer never threatened Davis or promised him any benefit for consenting to the search. There is no evidence in the record that either officer displayed a weapon, physically touched Davis or used language or tone of voice indicating that compliance with the officer’s request might be compelled.

Decided November 10, 1992.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellant.

John H. Jacobs, for appellee.

Based on this evidence, we are compelled to find, as a matter of law, that Davis was not seized within the meaning of the Fourth Amendment. Rather, the encounter was simply a communication between the police and Davis involving no coercion or detention and therefore without the compass of the Fourth Amendment. Because such an encounter need not be supported by reasonable suspicion, the trial court erred in holding that Davis’ consent to the search was tainted due to the lack of reasonable suspicion. The only evidence in the record affirmatively shows that Davis voluntarily agreed to allow the officer to search him. Compare State v. Jackson, supra at 815. Accordingly, the trial court erred in granting Davis’ motion to suppress.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A0882.
    RIGGINS v. THE STATE.
    (424 SE2d 879)
   Pope, Judge.

In 1990, defendant Richard Riggins pled guilty to the offense of burglary, was given first offender treatment and sentenced to serve 20 years on probation. On August 19, 1991 defendant was arrested for the burglary of a pawn shop. On August 23, 1991, the State filed a “Petition for Adjudication of Guilt and Disposition of Sentence in First Offender Case.” After conducting a hearing on the State’s petition, the trial court held the State had shown by a preponderance of the evidence that defendant had violated the terms of his probation by committing another felony, adjudicated the defendant guilty of the burglary offense for which he received first offender probation, and revoked ten years of his probationary sentence. We granted defendant’s application for discretionary appeal of the trial court’s order.

At the hearing, the State showed defendant was arrested on August 19, 1991, shortly after the burglary of a pawn shop, while sitting in the back of a truck at a restaurant close to the pawn shop. The State called two witnesses who testified they saw three men leave the pawn shop. One of these witnesses testified she saw two of the men go into the parking lot of a nearby store and a third man go to the parking lot of a nearby restaurant and climb into the back of a truck parked there. The second witness testified she saw three men exit the pawn shop but did not observe whether the third man climbed into a truck at a nearby restaurant, because she went inside another restaurant to call the police. However, she stated she observed a man wearing a light colored shirt and hat leave the pawn shop and later saw a person wearing similar clothing sitting in the back of a truck at a nearby restaurant. The third eyewitness testified he only observed two men leave the pawn shop but because he went inside a nearby business to call the police he did not have as much opportunity to observe the area around the pawn shop as did his girl friend, who was the witness who testified she saw defendant leave the pawn shop and walk to a nearby restaurant and sit in the back of a truck. The witnesses also testified they saw the other men they observed leave the pawn shop go to the same restaurant and saw one enter the same truck in which the defendant was sitting when he was apprehended.

One of the police officers who responded to the burglary call testified that the Albany police apprehended two suspects, Gary Peterson and Alphonzo Bentley, in the parking lot of a nearby business. That officer testified that Peterson told him a third person was involved in the burglary who was sitting in the back of the truck in the parking lot of the same restaurant where defendant was apprehended.

Defendant testified he was passing by the restaurant where he was apprehended on his bicycle when it began to rain. He said he approached the owner of the truck, whom he knew, asked if the owner would give him a ride, and climbed in the back of the truck when the truck owner agreed. Defendant also called Peterson and Bentley, both of whom testified defendant was not involved in the robbery. Peterson also denied telling the police officer another person was involved in the robbery.

1. We find no merit in defendant’s first enumeration of error in which he contends the evidence presented by the State was insufficient under the preponderance of the evidence standard to establish defendant violated his probation. See OCGA § 42-8-34.1. Although the eyewitnesses’ testimony was not completely consistent, sufficient evidence was presented from which the trial court could find by a preponderance of the evidence that the defendant participated in the burglary of the pawn shop on August 19, 1991. Accordingly, we hold the trial court did not err by revoking ten years of defendant’s probation, adjudicating defendant guilty of the prior burglary and sentencing him thereon. See Eubanks v. State, 197 Ga. App. 731, 732 (2) (399 SE2d 290) (1990).

2. Defendant also contends the trial court erred by failing to grant a continuance or delay its decision in the revocation proceeding based upon the failure of a subpoenaed witness to appear at the hearing. OCGA § 17-8-25 governs the issue of continuance based upon absence of a witness and provides: “In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.”

A motion for continuance based upon the absence of a witness is addressed to the sound discretion of the trial court, and absent a showing the trial court abused its discretion, the appellate courts will not interfere. Alderman v. State, 241 Ga. 496, 502 (2) (246 SE2d 642), cert. den., 439 U. S. 991 (99 SC 593, 58 LE2d 666) (1978); Grimes v. State, 168 Ga. App. 372, 377 (6) (308 SE2d 863) (1983). Defendant concedes in his brief he did not make a “formal motion for continuance.” It is undisputed that at the beginning of the hearing, defendant asked for a bench warrant for the absent witness. However, defendant’s counsel was not able to state exactly when the witness was subpoenaed, and the trial court refused to issue a bench warrant at that time. After defendant rested, defense counsel again moved for a bench warrant for the absent witness and also asked the trial court to delay its decision.

Assuming arguendo that defendant’s request for the trial court to delay its decision can be considered a motion for a continuance, we hold that the defendant failed to establish the requirements for a continuance under OCGA § 17-8-25. Defendant was unable to show what facts would be proved by the absent witness. Defendant’s only offering on this subject was the statement by his counsel that: “I want to prove that [the witness] was the person that was involved in this crime, not my client.” Defendant obviously did not know what testimony the witness would offer, although it is unlikely the witness would incriminate himself as defendant hoped. Furthermore, even if this witness testified defendant was not involved in this burglary, his testimony would be mérely cumulative of Peterson’s and Bentley’s testimony and thus does not warrant a continuance. See Stafford v. State, 187 Ga. App. 401, 402 (3) (370 SE2d 646) (1988).

Decided November 10, 1992.

Borough & Sizemore, W. James Sizemore, for appellant.

Britt R. Priddy, District Attorney, Stefanie D. Jones, L. Earl Jones, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1512.
    HORTON v. THE STATE.
    (424 SE2d 882)
   Pope, Judge.

Defendant Gerald T. Horton appeals his conviction for driving under the influence, improper driving on a roadway and driving without a driver’s license on his person. Construing the evidence in the light most favorable to support the verdict, the evidence showed that on September 13, 1991 at approximately 8:00 p.m., the defendant made a wide turn from Fairfield Circle onto the Atlanta Highway in Clarke County, Georgia. When defendant turned onto the Atlanta Highway, he pulled into the path of the arresting officer who had to apply his brakes quickly to avoid hitting defendant. Defendant quickly turned onto State Highway 78 and the officer pursued him after waiting for oncoming traffic to clear. While the officer pursued defendant he observed the defendant cross the inside lane and drive onto the dirt median. As the officer approached the defendant’s truck he realized the county line separating Clarke County and Oconee County was quickly approaching. The officer activated his emergency lights to signal defendant to stop within Clarke County. Defendant, however, did not immediately heed the officer’s signal to stop and finally stopped his vehicle approximately one mile inside Oconee County. After conducting field sobriety tests on defendant and obtaining a positive result on an Aleo-Sensor test, the officer arrested defendant for the offenses of which he was convicted.

1. Defendant argues the trial court erred in refusing to allow him to cross-examine the arresting officer regarding his admitted violation of OCGA § 40-6-6. That Code section authorizes emergency vehicles, inter alia, to exceed the maximum speed limits while in pursuit of a law violator but provides that the emergency vehicle must use an audible signal and flashing or revolving red light while exceeding the maximum speed limit. The defendant was allowed to question the arresting officer about exceeding the speed limit and failing to activate his emergency equipment while pursuing the defendant. The trial court, however, limited the defendant’s questioning of the officer about whether the officer’s conduct violated OCGA § 40-6-6.

Decided November 10, 1992.

David W. Griffeth, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

We hold the trial court properly exercised its discretion in limiting the defendant’s questioning of the arresting officer concerning whether the officer’s conduct violated OCGA § 40-6-6. “ ‘Every party has the right to a thorough and sifting cross-examination of the witnesses called against him. OCGA § 24-9-64. However, the trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused. [Cits.]’ [Cit.] Since the officer’s guilt or innocence of the offense of [violating OCGA § 40-6-6] was not an issue in the case sub judice, the trial court did not abuse its discretion in curtailing defendant’s cross-examination of the witness.” Banks v. State, 178 Ga. App. 54, 55 (2) (341 SE2d 859) (1986).

2. Defendant argues because his arrest occurred outside the jurisdiction of the arresting officer the arrest was unlawful. This issue is governed adversely to defendant by our decisions in DeLong v. State, 185 Ga. App. 314 (363 SE2d 811) (1987) and McLarty v. State, 176 Ga. App. 433 (3) (336 SE2d 273) (1985).

3. Contrary to defendant’s contention otherwise, venue was proper in Clarke County. See McLarty, 176 Ga. App. at 435 (3).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A92A0893.
    SOUTHERN GENERAL INSURANCE COMPANY v. AUTO TRANSFORMATION, INC.
    (424 SE2d 883)
   Cooper, Judge.

In June 1989, a car owned by Chandra Duplantis and insured by appellant was stolen and damaged. When the car was recovered, Duplantis contacted appellee to have the car towed to appellee’s place of business for an estimate of the cost of repairs. Appellee towed the car, prepared an estimate and has since stored the car at its place of business. In August 1989, appellant elected to pay Duplantis $3,841, representing the actual cash value of the car. On October 3, 1989, Duplantis transferred title to the car to appellant; and on October 9, 1989, appellee filed a mechanics’ lien pursuant to OCGA § 40-3-54 against the car, asserting that the car was owned by Duplantis and that appellee was entitled to fees for towing, providing an estimate and storage from July 1, 1989. When appellee refused to relinquish the car to appellant, appellant filed a suit against appellee for conversion, seeking compensatory and punitive damages as well as attorney fees. Appellee filed a third-party action against Duplantis to foreclose the mechanics’ lien and avoid the transfer of title to appellant. Appellant filed a motion for partial summary judgment on the issue of whether appellee could assert a mechanics’ lien for towing, the estimate and storage charges. The trial court granted appellant’s motion as to the storage charges. However, with respect to the towing and estimate charges, the trial court denied appellant’s motion and entered summary judgment in favor of appellee. We granted appellant’s discretionary appeal to consider whether a repair company can assert a lien under OCGA § 40-3-54 (a) for towing and estimate charges.

1. OCGA § 40-3-54 (a) provides in part that “[a]ll mechanics of every sort shall have a special lien on any vehicle ... for work done, or for work done and materials furnished, or for materials furnished in repairing or servicing such vehicle.” Appellant contends that a lien cannot be asserted pursuant to § 40-3-54 (a) because the car was never repaired or serviced by appellee.

It appears that the question of whether towing and estimate charges may be considered work done or materials furnished in “repairing or servicing” a vehicle is a question of first impression in this State. However, we note that several jurisdictions which have addressed whether towing charges are lienable items have not allowed a lien, recognizing that the common law lien for repairs was based on repairs which enhanced the value of the vehicle. See, e.g., West Allis Industrial Loan Co. v. Stark, 197 Wis. 363 (222 NW 310) (1928); Orr v. Jackson Jitney Car Co., 115 Miss. 140 (75 S 945) (1917). We also note that in Fox v. Smith, 143 Ga. 547 (85 SE 856) (1915), the Supreme Court held that a repair shop which furnished material for the repair of an automobile was entitled to a lien of the property “manufactured or improved.” (Emphasis supplied.)

“ ‘Lien laws are to be strictly construed, and one who claims a lien must bring himself clearly within the law. [Cits.]’ [Cits.]” Wilkinson v. Townsend, 96 Ga. App. 179, 181 (99 SE2d 539) (1957). Furthermore, “the law must by clear and explicit terms create the lien as it cannot exist by implication.” Id. It is apparent that the towing of the car and preparation of an estimate were merely prerequisites to any repair or service of the car and did not enhance the value of the car. Therefore, following a strict construction of the statute, as we are required to do, we conclude that towing and estimate charges are not included within the meaning of “repairing or servicing” a vehicle and the trial court erred in ruling that appellee could assert a lien for those charges.

Decided November 12, 1992.

Wetzel & Carroll, Michael L. Wetzel, for appellant.

Shuster, King & King, Cary S. King, for appellee.

2. Because of our decision in Division 1, it is unnecessary to consider appellant’s remaining enumerations of error concerning whether the notice of foreclosure was served on appellant and whether the foreclosure action was timely brought.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1086.
    HITE v. THE STATE.
    (424 SE2d 885)
   Cooper, Judge.

Appellant was convicted in a bench trial of trafficking in cocaine and appeals from the entry of judgment on the conviction.

At a hearing on appellant’s motion to suppress, Kennesaw Detective Dave Ratner testified that at approximately 10:00 p.m. on the evening of appellant’s arrest, he received a telephone call from a Marietta narcotics detective informing him that a female in the detective’s custody on a drug charge had just made a phone call to appellant and that appellant, identified as a white male, would soon leave his Kennesaw residence at 2006 Smith Drive driving a dark pick-up truck en route to a Marietta destination to deliver cocaine to the informant driving a dark pick-up truck. At 10:15, Ratner arrived at the residence and saw a dark pick-up truck in the driveway. Approximately 25 minutes later, a white male, later identified as appellant, got into the truck and drove in the direction of Marietta. Ratner followed the vehicle for a short while and with the assistance of another officer pulled appellant over to the side of the road. Appellant and Ratner exited their vehicles, and as Ratner approached appellant, appellant suddenly reached into the truck. Appellant was then ordered to move away from the truck. Ratner informed appellant that he was a police officer and that he had reason to believe that appellant was carrying cocaine. Ratner testified that appellant then dropped his head and admitted that cocaine was under the front passenger seat. Ratner discovered a brown medicine bottle under the front passenger seat containing a white powder which the crime lab later identified as cocaine.

1. Appellant enumerates as error the denial of his motion to suppress cocaine discovered in a warrantless search of his truck. Appellant contends that no evidence was offered to show the basis of the informant’s knowledge other than the phone call, that her reliability was not established, and that there was insufficient verification by Ratner of the informant’s information. “ ‘The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the “totality of the circumstances” surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).’ ” Rucker v. State, 199 Ga. App. 854, 855 (406 SE2d 277) (1991). We agree with appellant that the evidence before the court in the suppression hearing did not satisfy the “totality of the circumstances” test in demonstrating probable cause for the warrantless search of the truck. Details were meager regarding the basis of the informant’s knowledge, and Ratner testified that he had received information from the narcotics detective in the past but had no information regarding the informant’s reliability. However, while Ratner may not initially have had probable cause to perform a warrantless search of the truck, Ratner’s personal observations and “[t]he tip provided [Ratner] with sufficient articulable facts to make an investigatory stop of [appellant].” Id. at 856; Salter v. State, 198 Ga. App. 242 (1) (401 SE2d 541) (1990). Thereafter, when appellant admitted having cocaine in the truck, “[t]he subsequent arrest and search were proper because they were made only after reason for the arrest arose during the legal investigative stop. [Cits.]” Anthony v. State, 197 Ga. App. 297, 298 (1) (398 SE2d 580) (1990). Accordingly, the trial court did not err in denying appellant’s motion to suppress.

2. After the search of the truck, appellant also admitted having an additional quantity of cocaine in his bedroom closet. Appellant was then taken to his home where he signed a written consent authorizing the search of his house. Cocaine was discovered in appellant’s motorcycle jacket. The crime lab determined that the total quantity of cocaine seized from the truck and appellant’s home was 47.5 grams. Ratner testified that approximately half of the cocaine was discovered in the house. OCGA § 16-13-31 (a) (1) provides in pertinent part: “Any person . . . who is knowingly in possession of 28 grams or more of cocaine . . . commits the felony offense of trafficking in cocaine. . . .” Appellant argues that the two seizures cannot be combined and that since the testimony demonstrates that neither seizure met the statutory amount to constitute trafficking in cocaine, his indictment for trafficking should have been dismissed and he should have been charged with separate violations of possession of cocaine. We disagree. Appellant’s argument would enable persons to escape prosecution for trafficking by dividing cocaine into smaller quantities and storing the smaller quantities in different locations. “[Ejither actual or constructive possession would suffice to establish the element of possession necessary to support a conviction of trafficking. . . . [Cits.]” Williams v. State, 199 Ga. App. 566, 570 (4) (405 SE2d 716) (1991). Despite the fact that the quantities were discovered in two different locations, immediately prior to his arrest, appellant had “direct physical control” over the cocaine in the truck and was therefore in actual possession of it. Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991). At the same time, he “knowingly [had] both the power and intention ... to exercise dominion or control over the [cocaine discovered in his jacket pocket]” (id. at 422) and was thus in constructive possession of the latter quantity. In our view, this constitutes sufficient evidence of possession to support the charge of trafficking in cocaine, and the trial court did not err in denying appellant’s motion to dismiss the indictment.

Decided November 12, 1992.

Ralph W. Kearns, Jr., for appellant.

Thomas J. Charron, District Attorney, Russell J. Parker, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment 'affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1440.
    LOVELESS v. SUN STEEL, INC.
    (424 SE2d 887)
   Cooper, Judge.

In this action for payment of monies due an attorney for legal services provided pursuant to a written contract, we granted appellant-attorney’s petition for interlocutory appeal from the denial of his motion for summary judgment. In four enumerations of error, appellant contends that the trial court erred in concluding that questions of material fact remain as to the parties’ understanding regarding the time and manner of payment as well as the amount of fees to be paid.

It is undisputed that the parties executed a written agreement in October 1990, under which appellant was to provide legal services, primarily in relation to a dispute between appellee and Chrysler, and appellee was to pay appellant an hourly rate for his services. The contract further provided that it contained the entire agreement between the parties; that it could not be orally modified and could be amended only by mutual written consent of the parties; that appellant’s current hourly fee was $90; that appellant generally did not accept cases on a contingency basis and that if he did, the terms would be specified at the end of the contract; that appellee would be billed monthly and agreed to pay each bill within ten (10) days of receipt; that appellant was entitled to 1.5 percent interest per month plus 15 percent of the total balance due as attorney fees if any action on appellant’s part were required to collect the total balance due; and that appellee waived “the right to challenge the propriety of and/or the charges made for legal services and expenses on said statement/billing” if appellant did not receive a definitive written complaint within thirty (30) days from the date on the statement or billing. Although there was a section at the end of the contract for special provisions agreed to by the parties, this section was left blank. Beginning in October 1990, appellant provided legal services for appellee and billed for those services on a monthly basis. In January 1991, appellant’s negotiations resulted in a partial payment from Chrysler, and appellee paid appellant’s bills for October and November 1990 at that time. Appellant continued providing legal services for appellee through April 1991, but his bills for December 1990 through April 1991 were never paid. As a result, appellant brought this action to recover his fees as reflected in the monthly billings, 1.5 percent per month interest and 15 percent of the total balance as attorney fees for the collection action. Appellant charged $90 per hour for his services through February 1991. However, in March 1991, after sending a letter informing appellee that his hourly rate would increase to $120, appellant began billing appellee at this higher rate, and this higher rate for two months is reflected in the total balance due. Based on the contract and billings, appellant moved for summary judgment. In response to appellant’s motion for summary judgment, appellee submitted an affidavit of its president who stated therein that, notwithstanding the written contract, the parties had an understanding that appellee could not and would not pay appellant unless and until monies were collected from Chrysler; that he had voiced concerns to appellant about the amount of the legal fees appellee was being charged and the lack of results on numerous occasions; and that although the contract specified appellant’s current hourly rate was $90, appellee was billed $120 per hour for appellant’s time for March and April of 1991. Based on the affidavit submitted by appellee, the trial court denied appellant’s motion for summary judgment.

1. In his first three enumerations of error, appellant contends the trial court erred in considering parol evidence regarding the agreed upon time and manner of payment and allowing the parol evidence to create an issue of fact by contradicting the clear language of the contract. We agree. “Parol evidence is inadmissible to add to, take from, or vary a written contract.” OCGA § 13-2-2 (1). Even if consideration of circumstances surrounding the execution of the agreement creates an ambiguity, “[w]here the contract is complete on its face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, it should not be admitted. [Cits.]” American Cyanamid Co. v. Ring, 248 Ga. 673, 674 (286 SE2d 1) (1982). In this case, appellee’s president’s testimony that the parties understood appellee could not pay appellant unless and until it recovered from Chrysler, effectively transforming the arrangement into a contingency contract, flatly contradicts terms in the contract providing that appellee would be billed for appellant’s legal services on a monthly basis, that appellee agreed to pay within ten days of receipt of the bill and that the contract was not a contingent one. Moreover, where, as here, the parties have agreed that the written contract contains the entire agreement, “any understanding not embodied in the writing is irrelevant. [Cits.]” Kelson Cos. v. Feingold, 168 Ga. App. 391, 393 (309 SE2d 394) (1983). Thus, the trial court erred in considering appellee’s president’s testimony that the parties understood that appellee would not have to pay in the manner specified in the contract and in concluding that an issue of fact as to time and manner of payment exists.

Decided November 12, 1992.

Donald E. Loveless, pro se.

James E. Thompson, for appellee.

2. As urged in appellant’s fourth enumeration of error, the trial court also erred in concluding that an issue of fact remains regarding the proper amount of the outstanding balance. Appellee’s president testified that he voiced concerns to appellant about the amount of the legal fees and lack of results several times, and he also pointed out in his testimony that in March and April 1991, his company was billed at an hourly rate higher than that specified as the current hourly rate in the contract. The contract signed by appellee’s president states, however, that any complaint regarding the legal services provided or the amount charged therefor must be definitive, in writing and received by appellant within 30 days of billing or it is waived. The parties were free to agree to such a term, and it will be enforced as written. See Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 SE2d 67) (1984). Accordingly, appellee’s affidavit testimony regarding complaints about the services provided and the amounts charged does not create an issue of material fact with respect to the amount of fees to be paid.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1579.
    LUFBURROW v. THE STATE.
    (425 SE2d 368)
   Birdsong, Presiding Judge.

Lynn M. Lufburrow appeals her conviction for driving under the influence. She contends the trial court should have quashed the accusation because she was arrested without a warrant; that she was entitled to a dismissal on grounds that no officer had seen her commit the traffic violation alleged; that the finding of guilty cannot stand because police officers refused to administer a chemical test after advising her she had the right to such a test and when she had requested such test be given; and that the evidence does not prove beyond a reasonable doubt she was in actual custody of a moving vehicle while intoxicated.

The cashier at the convenience store where appellant was arrested testified she saw appellant drive into the parking lot, saw the headlights flash up and down and heard the car hit the curb and bounce back; the cashier thought appellant was going to drive over the curb. Appellant stayed in the car and the cashier saw her head hanging down; after a few minutes the cashier went outside and knocked on the car window. The car’s lights were on and the engine was “revving” high. When the police arrived, they shook appellant several times but could not awaken her, so they roused her with a •capsule of ammonia. She stumbled out of the car and was very unsteady; her eyes were bloodshot and her speech was slurred. A half-full bottle of vodka was in the passenger seat. She was arrested for DUI. The police tried to put her in the police car; she resisted and started flinging her arms. Finally she was handcuffed and placed in the police car. She was verbally and physically abusive. At the police department, appellant refused to go inside and began kicking the officer; after a violent struggle, she was taken to the jail. She was so hostile that the officers were not able to give her an intoximeter test. According to police, appellant did not request that she be given an independent chemical test. Held:

1. There was direct evidence that appellant was seen driving and in actual physical control of a moving vehicle while impaired and under the influence of alcohol, in violation of OCGA § 40-6-391. Under all the evidence, we find the evidence sufficient to enable a rational trier of fact to find appellant’s guilt of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant was not entitled to have the accusation quashed on grounds that the officer did not procure a warrant before arresting her. The officer plainly had authority under OCGA § 17-4-20 (a) to arrest appellant, either because the offense was committed within his immediate knowledge, or because there was likely to be a failure of justice otherwise. The officer need not see the act which constitutes the crime, if by any of his senses he has personal knowledge of its commission. King v. State, 161 Ga. App. 382, 383 (1) (288 SE2d 644). An offense is committed in the presence of an officer when his senses give him knowledge the offense was committed. Novak v. State, 130 Ga. App. 780, 781 (204 SE2d 491). The store cashier saw appellant driving the moving vehicle and so reported; the officers found appellant passed out at the wheel of her vehicle with its motor running and lights on, and it was apparently owing only to the fact that she was unconscious that she was not in fact driving or the vehicle was not in fact “moving.” See OCGA § 40-6-391 (a). It was not necessary that the arresting officer actually see appellant driving or in physical control of a moving vehicle since, in the circumstances of this case, she was too drunk to be actually “driving” a “moving” vehicle, and the police had probable cause to enable them reasonably to conclude she had committed the offense. See Watson v. State, 153 Ga. App. 545 (1) (265 SE2d 871). Obviously it would have been a “failure of justice” (OCGA § 17-4-20 (a)) if the police had left appellant in the car, perhaps to drive away, while they went looking for a magistrate.

3. For the reasons given in Division 2, appellant was not entitled to a dismissal of the accusation under OCGA § 17-4-23 (a), on grounds the officers did not actually see her drive the vehicle or have actual physical custody of a moving vehicle, or were not so informed by another law enforcement officer. OCGA § 17-4-23 does not prevent police from making an arrest merely on grounds they did not see the offense being committed, where they have probable cause under the law to believe the offense was committed. Police were informed that appellant was seen directly driving the vehicle; there was no one else in the car, nor was anyone else seen in the car, so it was obvious to the officers that she had driven the car while she was intoxicated. She was in actual control of the car though it was not “moving,” for the apparent reason that she was too drunk to make it move, and she had not relinquished control of the vehicle, but was still sitting at the wheel with the engine running and lights on.

4. The evidence shows appellant refused to permit any chemical tests to be administered to her and did not ask to be given an independent test. In any event, OCGA § 40-6-392 gives an accused the right to an independent chemical test when there has been a test administered at the request of law enforcement officers; appellant did not have the right to refuse the police-administered test and demand one of her own choosing.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Decided November 12, 1992.

Lynn Lufburrow, pro se.

Sidney J. Flowers, Solicitor, Jones, Osteen, Jones & Arnold, Jeffery L. Arnold, for appellee.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 4 but not entirely in what is said in Divisions 2 and 3.

Defendant was lawfully arrested because there was probable cause to believe that she had been “driving” or had been “in actual physical control of [a] moving vehicle” moments before the police came upon her, based on what they observed, even if the vehicle was not then moving and she was unconscious and not in actual physical control when they came upon her. This arrest was authorized by OCGA § 17-4-20 (a), because there would have been a failure of justice had the police delayed to get a warrant. She would have been free to drive off in her inebriated condition.

She was tried on a uniform traffic citation certified and issued by the arresting officer subsequent to her arrest, which is authorized by OCGA § 17-7-71 (b) (1).

There was thus no valid basis for quashing or dismissing the citation, which was a substitute for a formal accusation.


author: Sognier, Chief Judge.

text:
    A92A1124.
    BARTLETT et al. v. AMERICAN ALLIANCE INSURANCE COMPANY.
    (424 SE2d 825)
   Sognier, Chief Judge.

John and Diane Bartlett brought suit against Denise Joiner and another defendant seeking to recover damages for Mr. Bartlett’s personal injuries incurred in an automobile collision with Joiner and for Ms. Bartlett’s loss of consortium. American Alliance Insurance Company, Joiner’s automobile insurance carrier, settled Mr. Bartlett’s personal injury claim for $250,000 and sought a declaration of its obligation under the policy to pay Ms. Bartlett’s loss of consortium claim as a damage independent of her husband’s claim. The trial court granted American Alliance’s motion for summary judgment, and this appeal ensued.

Joiner’s policy with appellee provides “bodily injury liability” of $250,000 for each person for a total of $500,000 per accident as well as property damage liability coverage of $50,000 for each accident. Neither bodily injury nor property damage is defined in the policy for purposes of the general liability section in issue in this appeal. The policy sets forth that appellee “will pay damages for bodily injury or property damage for which any covered person becomes legálly responsible because of an auto accident” and provides that “[t]he limit of liability ... for ‘each person’ for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for ‘each person,’ the limit of liability ... for ‘each accident’ for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. The limit of liability ... for ‘each accident’ for Property Damage Liability is our maximum limit of liability for all damages to all property resulting from any one auto accident.” (Emphasis supplied.) The trial court granted appellee’s motion for summary judgment, finding that the policy language limited the Bartletts to the per person liability limit of $250,000 rather than the $500,000 per accident limit.

1. Appellants contend the above-cited language is ambiguous and, when construed most strongly against appellee, see generally Clark v. United Ins. Co., 199 Ga. App. 1, 5 (4) (404 SE2d 149) (1991), the policy entitles Ms. Bartlett to recover for her loss of consortium claim independent of her husband’s claim. Appellants present two arguments to support their contention.

First, appellants argue that because “bodily injury” is not defined in the policy, this court should not interpret the phrase “damages for bodily injury sustained” as limited to damages for “physical” injury but instead should construe it to encompass damages for a non-physical injury such as Ms. Bartlett’s loss of consortium claim. In support of this argument appellants cite Claussen v. Aetna Cas. &c. Co., 259 Ga. 333 (380 SE2d 686) (1989), in which the Supreme Court, in interpreting a word not otherwise defined in an insurance policy, held that the primary dictionary definition of the word did not control because the secondary dictionary definition was reasonable and commonly used and led to a construction advantageous to the insured as the party who did not draft the contract. Id. at 334-335 (1).

However, even construing “damages for bodily injury sustained by a person” most strongly against appellee, the party executing the instrument, OCGA § 13-2-2 (5), and looking to all reasonable definitions applicable to those words, Claussen, supra, we cannot agree with appellants that a loss of consortium injury sustained by a person constitutes a “bodily” injury. Webster’s Second New International Dictionary 300 (1959, unabridged) defines “bodily” as “[h]aving a body” and “[o]f or pertaining to the body.” See also The Random House Dictionary 232 (2nd ed. 1987, unabridged) (“bodily” defined as “of or pertaining to the body” and “corporeal or material”). Black’s Law Dictionary 159 (5th ed. 1979) likewise defines “bodily” as “[p]ertaining to or concerning the body; of or belonging to the body or the physical constitution; not mental but corporeal” and defines “bodily injury” as “[generally refer [ring] only to injury to the body, or to sickness or disease contracted by the injured as a result of injury.” Id. A loss of consortium claim is based not upon injury to the body of the claimant but instead solely upon the claimant’s property right arising out of the marriage relationship to the love, companionship, and conjugal affection of the spouse. See Arnac v. Wright, 163 Ga. App. 33, 34 (292 SE2d 440) (1982); Smith v. Tri-State Mfg. Co., 126 Ga. App. 508, 510 (191 SE2d 92) (1972). Therefore, we do not agree with appellants that damages for loss of consortium are encompassed within damages for “bodily injury” under the policy in issue.

Appellants, in their second argument, assert that Ms. Bartlett is entitled to recover on her own for her loss of consortium claim because the word “damages” in the policy language limiting liability to “all damages . . . sustained by any one person” is not limited to bodily injury damages but encompasses other distinct wrongs sustained as a result of the accident, such as loss of consortium. Hence, appellants argue, because Ms. Bartlett is a person who sustained damages (though not bodily injury damages) as a result of the accident, she is entitled to recover for those damages independent of her husband’s damages for personal injuries. We do not agree.

It is the function of the court to construe the contract as written and not to make a new contract for the parties. Serrmi Products v. Ins. Co. of Penn., 201 Ga. App. 414, 415 (411 SE2d 305) (1991). The ambiguity on which appellants’ claim for coverage is based can be created only by ignoring the “bodily injury” language that appears repeatedly throughout the relevant provisions. When the policy is construed as written, with the “bodily injury” phrase included, the language clearly and unambiguously fails to support appellants’ contention that coverage for “all damages for bodily injury sustained” encompasses claims for damages for non-bodily injuries sustained.

In the absence of an ambiguity, appellants’ reliance on the rule of construction requiring ambiguities to be construed against the insurer must give way to the rule “ ‘that an unambiguous policy requires no construction, and its plain terms must be given full effect even though they are beneficial to the insurer and detrimental to the insured. (Cits.)’ [Cit.]” Id. Because Ms. Bartlett did not sustain any bodily injuries in the auto accident with appellee’s insured, “when [the policy provisions] are given their ordinary meaning and viewed from the perspective of a lay person, [cit.],” Giles v. Nationwide Mut. Fire Ins. Co., 199 Ga. App. 483, 485 (1) (405 SE2d 112) (1991), the clear and unambiguous meaning of the policy provisions is that Ms. Bartlett is not entitled to recover from appellee her damages for loss of consortium independent of her husband’s claim under the “bodily injury liability” coverage in the policy. Therefore, the trial court did not err by granting appellee’s motion for summary judgment on this issue. See generally id. at 484-485 (1).

Decided October 30, 1992 —

Reconsideration denied November 13, 1992

Walter H. Beckham III, Fortson & White, Frederick W. Ajax, Jr., for appellants.

Samuel P. Pierce, Jr., for appellee.

2. Appellants also contend that because loss of consortium “is a property right growing out of the marriage relationship,” Hobbs v. Holliman, 74 Ga. App. 735, 739 (1) (41 SE2d 332) (1947), appellee’s liability coverage for “damages to all property resulting from any one auto accident” covers Ms. Bartlett’s claim. “ Tn construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney. [Cit.]’ [Cits.]” Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 672 (1) (320 SE2d 555) (1984).

Given this rule, we disagree with appellants that any reasonable person could have understood that the property damage coverage in the policy included claims like Ms. Bartlett’s for loss of consortium. The policy language clearly contemplated damages to inanimate physical objects, such as motor vehicles, rather than intangible contract claims arising out of interpersonal relationships. The trial court did not err by granting summary judgment in favor of appellee on this issue. See generally Giles, supra.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       Given the settlement of Mr. Bartlett’s personal injury claim at the policy’s maximum limit for bodily injury liability, no question is presented here whether Ms. Bartlett would have been entitled to recover for her loss of consortium as part of the “damages for bodily injury” sustained by Mr. Bartlett.


text:
    A92A1537.
    YOUMANS et al. v. ORMANDY.
    (424 SE2d 828)
   Sognier, Chief Judge.

Julie Bennett Ormandy brought an action against Homer Allan Bennett, Jr. and Alexis Bennett Youmans, individually and as administratrix of the estate of Homer Allan Bennett, Sr., alleging she is the illegitimate natural child of Bennett, Sr. and seeking to share in inheriting his estate. The jury returned an agreed upon special verdict form answering the questions posed in favor of Ormandy, and You-mans and Bennett appeal.

The right of illegitimate children to inherit from their natural fathers is controlled statutorily by OCGA § 53-4-4. At the time this case was tried, that statute prohibited such inheritance unless during the lifetime of the father and after the conception of the child a court of competent jurisdiction had entered an order declaring the child to be legitimate or establishing paternity, or unless the father had signed the child’s birth certificate or executed a signed and sworn statement that he was the child’s father. OCGA § 53-4-4 (c) (1). An additional exception created by the Supreme Court in Prince v. Black, 256 Ga. 79 (344 SE2d 411) (1986), provides that illegitimate children may also inherit from their fathers if they have been virtually legitimated although no court order of legitimation exists. See Simpson v. King, 259 Ga. 420, 421 (2) (383 SE2d 120) (1989). It is undisputed that the only basis for appellee’s claim upon her father’s estate is that of virtual legitimation.

1. A finding of virtual legitimation requires clear and convincing evidence of both paternity and the father’s intention that the child share in his intestate estate in the same manner as though legitimation had taken place. Prince, supra at 80. In two enumerations, appellants contend the trial court erred by denying their motions for a directed verdict and judgment n.o.v. because the evidence proffered by appellee was insufficient to meet the clear and convincing standard required on both these issues.

The evidence adduced at trial showed that the decedent and appellant Youmans were husband and wife, and that appellant Bennett, Jr. is their son and was born during the marriage. Members of the decedent’s family testified that appellee had been born after her mother had ended an intimate relationship with the decedent, and that although immediately after appellee’s birth the decedent had refused to acknowledge she was his child, he subsequently not only acknowledged her, but loved her and was proud of her. Appellee and Bennett, Jr. testified that although the decedent had never referred to them as sister and brother when speaking directly to them, they grew up believing they were siblings because virtually all members of the decedent’s family told them they were and treated them as such. Appellee and her mother and the decedent’s family testified that the decedent supported appellee both financially and emotionally and always celebrated her birthday and Christmas with gifts. The decedent’s co-workers testified that he carried photographs of appellee and her daughter on his person. Several witnesses testified that the decedent had expressed a desire that appellee live with him. Several times after the decedent and Youmans married, appellee stayed with them and enrolled in school, but appellee missed her mother and all those involved decided it would be better for appellee to remain with her mother. The decedent’s mother testified that her son told her before he died that he had two children under different circumstances, but he loved them both. Only appellant Youmans testified that in conversations with her, the decedent had denied appellee was his child, and that she, and not the decedent, had initiated all gifts to appellee and visits with her, and that she had been prompted by kindness and by sympathy regarding appellee’s situation, and not by the decedent’s alleged fatherhood.

We find no merit in appellants’ contention that this evidence demanded a verdict in their favor, for we do not find that as a matter of law it failed to meet the “clear and convincing” standard in appellee’s favor. See Respress v. Ellison, 184 Ga. App. 674 (362 SE2d 468) (1987). We conclude, rather, that the evidence preponderated in appellee’s favor, and whether it met the required standard was properly left for determination by the jury. Accordingly, the trial court did not err by denying appellants’ motions. See generally State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 379 (1) (364 SE2d 62) (1987).

In re R. L. Y., 181 Ga. App. 14 (351 SE2d 243) (1986), cited by appellants, is not applicable to the case at bar. R. L. Y. involved the termination of parental rights, which also requires a finding based on clear and convincing evidence. This court reversed the trial court’s termination of parental rights where the trial court, as the factfinder in that proceeding, failed to include in its order a recital that it had applied the required “clear and convincing” evidentiary standard. R. L. Y. is distinguishable from the instant case both because our holding there was inextricably dependent upon the grave consequences of a proceeding to terminate parental rights, and also because in the case at bar the agreed upon verdict form required the jury to indicate whether it found both elements required for virtual legitimation “by clear and convincing evidence.” The jury, in answering the questions on the special verdict form, indicated that it had.

2. Appellants also contend the trial court erred by denying their motion in limine to exclude hearsay evidence of statements made by the decedent. We do not agree.

Appellants’ reliance upon OCGA § 24-3-2 and cases setting forth the conditions under which hearsay is admissible to explain conduct is misplaced. Georgia law has long provided that the two underlying reasons for any exception to the hearsay rule are a necessity for the exception and a circumstantial guaranty of the trustworthiness of the offered evidence. Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224 (173 SE2d 691) (1970). In cases involving statements made by a person now deceased, the necessity for the hearsay testimony is obvious. The issue in such cases, therefore, turns on the statement’s trustworthiness, with self-serving statements generally being considered untrustworthy. Id. at 224-225. In Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423) (1988), the Supreme Court overruled Irby v. Brooks, 246 Ga. 794 (I) (273 SE2d 183) (1980), holding that in ascertaining the trustworthiness of a decedent’s statement, the interest of the declarant in the statement at the time it was made is the crucial consideration, and not the interest of the propounding witness in the statement. The propounder’s interest in having the statement admitted goes only to the propounder’s credibility, and not to the admissibility of the statement as an exception to the hearsay rule.

Decided October 30, 1992 —

Reconsideration denied November 13, 1992

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., for appellants.

Howard, Carswell & Bennett, Kenneth R. Carswell, R. Violet Bennett, for appellee.

Applying those principles to the case sub judice, we find that the decedent’s statements that he was appellee’s father were not self-serving, but rather were statements against his pecuniary interest. Moreover, the fact that more than one witness heard the decedent state that appellee was his daughter was a circumstance adding to the statements’ trustworthiness. See Turner v. Mikell, 195 Ga. App. 766, 767 (1) (395 SE2d 20) (1990). Accordingly, the trial court did not err by finding the hearsay statements trustworthy as well as necessary and admitting them into evidence. Id.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       OCGA § 53-4-4 (c) (1) was amended effective July 1, 1991 to add new subparagraph (E) incorporating the holding in Prince v. Black.


text:
    A92A1074.
    GUTHERIE et al. v. FORD EQUIPMENT LEASING COMPANY.
    (424 SE2d 889)
   Sognier, Chief Judge.

Ford Equipment Leasing Company conducted a nonjudicial foreclosure under a power of sale contained in a deed to secure debt executed by Thomas Gutherie to secure a loan made by Ford to Greensboro Lumber Company (GLC). Ford then instituted this confirmation proceeding. After a hearing, the superior court entered an order confirming the sale. Gutherie and GLC appeal.

The property at issue comprised a 300-acre farm and the residenee and outbuildings of appellant Gutherie. At the time of the foreclosure sale, appellants were indebted to appellee in the amount of $1,078,587. Darryl Gossett was the high bidder at the December 1991 sale, acquiring the property for his bid of $200,000. The sale was made subject to other nondischarged debts and delinquent taxes totalling $261,297.

At the confirmation hearing, appellants did not challenge the validity of the notices and advertisements made by appellee, but instead contended that the sale did not bring the true market value of the property as required for confirmation under OCGA § 44-14-161 (b). Appellee’s appraiser opined that the market value of the property was $919,450 if given two or more years to sell; however, he testified that he discounted this market value to $460,000 because he was instructed by appellee to calculate a “quick sale” value rather than a “market time sale” value. Appellants’ two appraisers arrived at valuations of $950,000 and $985,000. While they agreed with appellee that a sale of such a property ordinarily would take six months to three years, they disagreed with the “quick sale” approach. One appraiser opined that while the rapid timing of the foreclosure sale might justify some discounting of the valuation, a 50 percent reduction was excessive, while the other appraiser stated that a quick sale value was not the same as true market value. The trial court found the total value bid at auction, $461,297, equalled the true market value and confirmed the sale.

1. OCGA § 44-14-161 (b) provides that “[t]he court shall require evidence to show the true market value of the property sold under the powers [of sale contained in the deed to secure debt] and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” “True market value,” which is used interchangeably with “fair market value,” Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286 (1) (226 SE2d 96) (1976), is “the price which (the property) will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so.” (Citations, punctuation, and emphasis omitted.) Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (354 SE2d 694) (1987). Although as a general rule the price brought at a public sale is prima facie evidence of the market value (absent chilling of the bidding, fraud, or any other element adversely affecting the sale), id. at 113 (1), this general rule does not apply to confirmation of foreclosures under power of sale, for the confirmation statute requires separate analysis of the value independent of the sum bid at the public sale. Id. The lender bears the burden of proving that the foreclosure sale brought at least the true market value of the property. Id. at 114.

The question presented in the case sub judice is whether a “quick sale value” may constitute competent evidence of the “true market value” of real property within the meaning of OCGA § 44-14-161 (b). Our courts have held that in determining true market value, a trial court may consider market conditions in general at the time of the sale under power and the effect of depressed market conditions on the value of a subject property. Gunnells v. Crump, 172 Ga. App. 607, 608 (323 SE2d 903) (1984); see Wall v. Federal Land Bdnk, 240 Ga. 236, 238 (3) (240 SE2d 76) (1977). However, the parties have not cited, and our extensive research has not uncovered, any case that has condoned discounting the value of a foreclosed property on the basis that the sale was conducted in a shortened time frame. Accordingly, we will consider the view taken by our courts of the use of “quick sale” valuations in other contexts as well as authority in other jurisdictions.

In Parks v. Assoc. Commercial Corp., 181 Ga. App. 235-236, 237 (1) (351 SE2d 661) (1986), this court addressed the use of a “quick sale value” in the context of repossession and disposal of secured collateral under the UCC. The record in Parks established that the price paid for the collateral at the public sale was equal to its “quick sale value” but substantially less than the price at which the collateral subsequently was resold. Considering this discrepancy together with evidence that the creditor had known prior to the sale that other prospective buyers were willing to pay more for the collateral than the bid-in price, we held that “these facts raise a serious question concerning whether the sale of the collateral was conducted in a commercially reasonable manner as required by OCGA § 11-9-504 (3),” and accordingly found the debtors had properly raised that ground as a defense. Id. at 237 (1).

The definition of “fair market value” established by the Internal Revenue Service for use in valuation of real property for estate taxes is also instructive. “Fair market value” is defined as “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. The fair market value of a particular item of property ... is not to be determined by a forced sale price. Nor is the fair market value ... to be determined by the sale price of the item in a market other than that in which such item is most commonly sold to the public. . . .” Treas. Reg. § 20.2031-1 (b). The first sentence of this definition is consistent with the willing buyer, willing seller definition used in Georgia. See Wheeler, supra; see also Wright v. MARTA, 248 Ga. 372, 375 (283 SE2d 466) (1981). Upon reviewing Georgia law on the computation of fair market value and considering the language and purpose of the confirmation statute, we are persuaded that the entirety of the IRS definition of fair market value is consistent with Georgia law and should be used to resolve the issue sub judice.

First, Georgia law recognizes that the sale price obtained at a foreclosure sale is not a sufficient indicator of true market value. In Hubbard v. Farmers Bank, 155 Ga. App. 720 (272 SE2d 510) (1980), this court rejected a secured party’s argument that proof of the price obtained at a personal property foreclosure sale was sufficient to establish market value, reasoning that “ [foreclosure sales are forced sales and notoriously fail to bring the true market price of the [property].” Second, the confirmation statute, as interpreted by our courts, embodies the principle set forth in the IRS definition by requiring evidence of value other than the public sale price, see Wheeler, supra at 113 (1), thereby implicitly acknowledging that the conditions under which a foreclosure sale is conducted differ from the ordinary market for the property in question and that the price obtained in foreclosure does not necessarily equal true market value. Third, the General Assembly enacted OCGA § 44-14-161 for the purpose of providing debtor relief by limiting and abating deficiency judgments. First Nat. Bank v. Kunes, 230 Ga. 888, 890 (199 SE2d 776) (1973). Accordingly, we hold that OCGA § 44-14-161 (b) must be read to require proof of true market value under the usual market conditions for sales of such property. Otherwise, the legislative purpose of OCGA § 44-14-161 would be defeated. See OCGA § 1-3-1 (a) (in interpreting statutes, “courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy”).

Applying this interpretation of OCGA § 44-14-161 (b) to the facts of the instant case, we conclude the trial court improperly considered evidence of the “quick sale” value of the subject property because such a valuation does not reflect the price that would be obtained in a sale under the usual market conditions. Accord Parks, supra. Use of the “quick sale” valuation in confirmation proceedings is inconsistent with the legislative purpose of OCGA § 44-14-161 (b) because it presumes that “true market value” may be construed to mean “market value under quick sale conditions.” When the “quick sale” valuation is eliminated from the record, there remains no evidence to support the trial court’s determination that the sale under power brought at least the true market value of the property. Consequently, the trial court erred by confirming the sale. See Wheeler, supra at 114-115.

2. Appellants have contended below and on appeal that the trial court should have denied confirmation and ordered a resale of the property pursuant to OCGA § 44-14-161 (c), which authorizes the court to order a resale “for good cause shown.” Given that appellee did not prove that it sold the property for true market value but did obtain an appraisal (albeit a fatally flawed one) before the sale and did sell the property for an amount equal to that appraisal, a resale would be authorized. Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233 (230 SE2d 324) (1976), aff’d, 238 Ga. 722 (235 SE2d 476) (1977); see Davie v. Sheffield, 123 Ga. App. 228 (180 SE2d 263) (1971) (resale may be had for mere inadequacy of price). Accordingly, we reverse the order of confirmation and remand this proceeding to the trial court for further proceedings consistent with this opinion.

Decided November 13, 1992.

William F. Lozier, Lightmas & Delk, Frank A. Lightmas, Jr., for appellants.

W. Dan Greer, for appellee.

3. As a result of our rulings in Divisions 1 and 2, we need not consider appellants’ other enumerations of error.

Judgment reversed and remanded.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1500, A92A1501.
    JOHNSON v. RAY (two cases).
    (424 SE2d 892)
   Cooper, Judge.

Appellants, husband and wife, were passengers in a vehicle driven by Bob Johnson in search of the home of Johnson’s sister. Johnson missed the turn onto his sister’s street and proceeded to back his car up in the roadway to turn into the street. At the same time, appellee was traveling down the same street in the same direction. As appellee drove around a corner and crested a hill, he saw Johnson backing up in the roadway. Appellee applied his brakes and attempted to steer clear of the car, but he was unable to avoid colliding with Johnson’s car. It was dark and raining, and appellee estimated his speed at between 35 and 40 m.p.h. Appellants brought separate actions for personal injuries against appellee, and the cases were consolidated for trial before a jury which returned a verdict for appellee. The trial court denied appellants’ motions for new trial, and this appeal followed.

1. In their first enumeration of error, appellants contend the court’s charge on the emergency doctrine was not supported by the evidence. “The defense of emergency is not available unless the evidence shows that there has been a ‘ “sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.” ’ [Cits.]” Ray v. Anderson, 189 Ga. App. 80, 81 (2) (374 SE2d 819) (1988). Appellants argue that appellee contended that the accident was due to the negligence of others but he did not contend that he was confronted with an emergency choice. The evidence demonstrates that on a dark, rainy night, after cresting a hill, appellee was confronted with Johnson’s vehicle, backing up the road. Appellee applied his brakes and was unsuccessful in avoiding the collision with Johnson’s car. “Thus, ‘(i)t is apparent that (appellee) apprehended the danger or peril and attempted to avoid the collision by engaging the brakes of ([his] car) [and swerving away from Johnson’s car]. (Cits.) “(W)hether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury. (Cits.)” (Cits.) Under .the evidence presented at trial, we conclude that this issue was properly submitted to the jury. (Cits.) Accordingly, this enumeration of error is without merit.’ [Cits.]” Id. at 82 (2); Luke v. Spicer, 194 Ga. App. 183, 184 (3) (390 SE2d 267) (1990).

2. Appellants next contend the court erred in failing to charge on the last clear chance doctrine. “The last clear chance doctrine requires among other things that there be negligence on the part of the plaintiff. [Cit.] Although there was ample evidence that [Johnson] was negligent, there is no evidence that his negligence was imputed to appellants]. Therefore, the trial court correctly ruled that the last clear chance doctrine was inapplicable.” Hogan v. Pony Express Courier Corp., 195 Ga. App. 592, 593 (3) (394 SE2d 391) (1990).

3. Appellants argue that the court erred by refusing to give their requested charge that a prior inconsistent statement is admissible as substantive evidence. This enumeration is without merit. “ ‘Absent instructions to the contrary, the jury surely regarded substantively all the evidence presented to it.’ [Cit.]” Conway v. State, 183 Ga. App. 573, 574 (3) (359 SE2d 438) (1987).

4. Appellants contend the trial court erred in allowing the admission of a certified copy of a judgment entered on appellant husband’s convictions of embezzlement of mailbag by postal employee and unauthorized acquisition of food stamp coupons. Appellants also maintain that the court erred in permitting the judgment to go out with the jury and in failing to allow appellant husband to make a statement in explanation of the convictions.

“In Georgia, a witness in a civil case may always be impeached by proof of a conviction for a felony or other crime involving moral turpitude. [Cit.]” Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (1984). At trial, appellants objected to the admission of the document on the ground that it was not a Certified copy of the indictment, verdict and judgment. We can find no requirement, nor have appellants provided authority for their contention, that a certified copy of the indictment and verdict be introduced with the judgment of conviction for purposes of impeachment. This court has held on numerous occasions that “ ‘(w)hile a witness may be discredited by proof of general bad character or conviction of a crime involving moral turpitude, it is not competent to discredit him by showing that he has committed, been arrested for, confined for, or even indicted for such an offense. (Cits.)’ ” Richards v. State, 157 Ga. App. 601, 602-603 (2) (278 SE2d 63) (1981). “It is the fact of conviction of a crime involving moral turpitude which is impeaching, not the statute violated or the manner in which it was violated. The conviction itself stated the general nature of the offense[s] and the punishment given.” Belvin v. Houston Fertilizer &c., 169 Ga. App. 100, 101 (3) (311 SE2d 526) (1983). Appellants have not questioned the authenticity of the document tendered by appellee, and the record reveals that prior to the introduction of the convictions, appellant husband admitted entering guilty pleas on both offenses listed above. Accordingly, we find no error in the trial court’s admission of the convictions over appellants’ objection. In addition, contrary to appellants’ contention that the judgment of conviction should not have gone out with the jury because it was a “continuing witness,” we find that it was not improper to allow the judgment to be considered by the jury during its deliberations because the judgment was not the sort of “written testimony” which is excluded under that rule of law. See Tibbs v. Tibbs, 257 Ga. 370 (359 SE2d 674) (1987); Thomason v. Genuine Parts Co., 156 Ga. App. 599, 601 (275 SE2d 159) (1980).

However, as to appellants’ contention that the trial court erred in refusing to allow appellant husband to offer an explanation of the circumstances surrounding the conviction, we agree. In this state, prior convictions of witnesses offered for the purpose of impeachment are admissible subject to the witness having an opportunity to make a brief statement in explanation, mitigation or denial of guilt. Belvin, supra at 101; Tilley v. Page, 181 Ga. App. 98, 100 (4) (351 SE2d 464) (1986). Appellee contends that any failure of the court to allow an explanation was harmless error since appellant husband testified in response to appellee’s counsel’s question, “are you the same person described in that judgment and commitment order?” that he was a “totally changed man; I’ve got a wife and a baby, I go to church, I got a job. . . .” This response was not a comment on the conviction, and the failure of the trial court to allow an explanation of “the circumstances surrounding the conviction [s]” constitutes reversible error. Id. at 100.

5. Appellants contend the trial court erred in refusing to give their requested charge that evidence of prior offenses offered for impeachment can have no other purpose. Review of the full charge of the court reveals that the trial court gave a charge on the limited use of such evidence which embodied the same principles as in the requested charge; therefore, the failure of the court to charge in the exact language requested is not reversible error. Skipper v. Dept. of Transp., 197 Ga. App. 634, 638 (5) (399 SE2d 538) (1990).

Decided November 13, 1992.

Dozier, Akin, Lee & Graham, L. Zack Dozier, Jr., for appellants.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, for appellee.

6. In view of the reversible error committed by the trial court as discussed in Division 4, we need not consider appellants’ remaining enumerations of error that the court erred in failing to grant their motions for directed verdict and new trial based on the sufficiency of the evidence.

Judgments reversed.

Sognier, C. J., and McMurray, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0895.
    WADE et al. v. MITCHELL et al.
    (424 SE2d 810)
   Birdsong, Presiding Judge.

Appellants, James and Janice Wade, brought suit against appellees for personal injuries and loss of consortium, respectively. This is an appeal from the order of the state court granting summary judgment to appellees.

James Wade stopped at the TCB Truck Stop to inquire where he could find an open automobile parts store. As he was departing the premises, he apparently was injured when struck and rendered unconscious by a strong force of air or something from an exploding tubeless truck tire mounted on a single piece rim, which was being inflated or had just been inflated in an open area by a truck stop employee. Appellants enumerate nine errors, the last of which claims the trial court ignored at least eleven material genuine issues of fact in granting summary judgment. Held:

1. On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. When, as in the instant case, movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings. Demarest v. Moore, 201 Ga. App. 90, 91 (1) (410 SE2d 191). But, a movant/defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party is discharged by establishing by “evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Demarest, supra. Thus, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s, supra.

2. In granting summary judgment for appellees, the trial court found that (a) appellant James Wade had at least equal knowledge of any potential hazards regarding the tire and appellees eliminated an essential element of appellants/plaintiffs’ case by showing appellees did not have superior knowledge of any such danger, even after careful inspection; (b) there was a lack of foreseeability on the part of appellees; (c) there was an assumption of the risk by appellant James Wade; and, (d) thus, as a matter of law based upon the material facts, appellants’ failure to demonstrate any liability on the part of appellees gives rise to no genuine issue as to any material fact.

(a) Even assuming without deciding that at the time of his injury appellant James Wade was on the truck stop premises as a licensee and not as a business invitee, we find that the trial court erred in granting summary judgment to appellees. Compare Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (392 SE2d 535) (status on premises at issue). Hereinafter, all references to appellant James Wade, as having been on the premises in a licensee status is predicated upon the above assumption and is not intended to remove the issue as to appellants’ status from the hands of the jury. See generally Cook v. Southern R. Co., 53 Ga. App. 723, 725 (2a) (187 SE 274) (invitee-licensee test); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 492 (118 SE 697) (licensee definition).

(b) Appellant was not injured by any defect on the truck stop premises pre-existing his arrival thereon (compare Roth v. Wu, 199 Ga. App. 665 (405 SE2d 741)). Rather, appellant was injured in an incident arising from the active performance of acts and omissions occurring as he arrived on the premises and approached the danger zone.

In the recent case of Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445), comparing Georgia Power Co. v. Deese, 78 Ga. App. 704, 707 (51 SE2d 724), the Supreme Court reaffirmed the existence of a legal distinction, regarding tort claims arising on premises, between causes of action where the alleged negligence arises from static or passive conditions (such as, pre-existing defects unattended on the premises) and causes of action thereon averring active negligence by act or omission. See generally Holcomb v. Ideal Concrete Prods., 140 Ga. App. 857 (232 SE2d 272); Brooks v. Logan, 134 Ga. App. 226, 229 (2) (213 SE2d 916); Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643 (49 SE2d 143). The record establishes that the incident on which this cause is grounded arises not from a pre-existing defect in the premises but from a claim of active negligence arising from the mechanic’s alleged acts and omissions occurring at the time appellants were lawfully on the premises in licensee status. Accordingly, we find that all cases involving pre-existing premises defects or cases arising from other than active negligence are distinguishable and not controlling per se. Examples of distinguishable cases which have been cited by either the trial court or parties include: Howell v. Carter, 189 Ga. App. 832 (377 SE2d 880) (pre-existing defect of loose shingle on premises falling on workman); Pound v. Augusta National, 158 Ga. App. 166 (279 SE2d 342) (extra gravel spread one day prior to incident); and Smith v. Seawright, 33 Ga. App. 336 (126 SE 301) (unprotected hole on premises for over one year).

(c) In this instance, the evidence is uncontroverted that appellant James Wade was talking with the mechanic before the tire exploded. Thus, appellees are charged with the actual knowledge of appellant’s presence on the premises and in the vicinity of the tire before appellant was injured by its explosion. Even assuming appellant’s presence had not in fact been known, a truck service stop or gas station can be charged with reasonably anticipating that, throughout the period of its business operation, persons will frequently stop unannounced on the premises merely to seek directions.

A landowner is not an insurer of the safety of those who venture upon his land whether they are in trespasser, licensee or even invitee status. See Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546). And the owner of the premises owes only a slightly higher duty to a licensee than to a trespasser. “He must not wantonly or wilfully injure the licensee; and since the presence of the licensee as a result of his license is at all times probable, some care must be used to prevent injuring him after his presence is known or reasonably should be anticipated. The fundamental concept of this class of cases ... is of a liability only for wilful and wanton injury, but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises. . . . [Thus] as to a licensee . . . ‘ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated.’ . . . After the presence of the licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited.” (Emphasis supplied.) Cook, supra at 726-727 (3). Compare Trammell, supra at 125, citing Cook. This rule was basically adopted and restated in the active negligence case of Deese, supra. In Deese, supra at 707 (1), it was held, “it is unnecessary to decide whether the deceased was a trespasser or licensee, since the duty owed to both is the same, namely, to use ordinary care to avoid injuring him after his presence and danger are actually known or when the danger is known and his presence is reasonably to be anticipated, which ... is merely the duty not to injure him wantonly or wilfully.” In the Deese case, the court then explained: “ ‘It is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is actually kjiown to be, or reasonably expected to be, within the range of a dangerous act being done.’ ” (Emphasis supplied.) Id. at 708 (1); compare Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (pre-existing static condition case) and Barry v. Cantrell, 150 Ga. App. 439, 440-441 (258 SE2d 61) (pre-existing defective tree on premises) and Petree, supra at 494 (pre-existing defect case). Under this rule, not only must the act be found to be dangerous but the potential for danger must be actually known to the owner. See Fotopoulos v. Lamas, 123 Ga. App. 731, 732 (182 SE2d 326) (preexisting condition case), citing inter alia Deese, supra, and Cook, supra.

3. In addition, the record reflects the truck stop owner testified in her deposition that both tubeless and tube tires are “subject to explode or . . . blow up”; that a new tire can be defective and have a weak spot in it; that a 1022.5 tire creates an awful lot of force when it explodes and could be injurious to anyone standing around; and that the tire repair area and tire cage are located in the truck stop shop where only employees are allowed.

We find, based on all relevant evidence of record, there exists a question of fact for the jury whether the act of inflating the single rim, tubeless truck tire was a dangerous act within the meaning of Cook, supra, and Deese, supra. Compare Jacobs v. Tyson, 200 Ga. App. 123, 125 (407 SE2d 62) (loaded firearm inherently dangerous but butcher knife or golf club is not); see Community Gas Co. v. Williams, 87 Ga. App. 68, 80 (2) (73 SE2d 119) (petition presented a jury question whether defendant knew that the work was in its nature dangerous to others no matter how carefully performed).

4. Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury. See generally Thompson v. Crownover, 259 Ga. 126 (5) (381 SE2d 283); Wade v. Polytech Indus., 202 Ga. App. 18, 22 (3) (413 SE2d 468); Horney v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629); Abee v. Stone Mtn. Mem. Assn., 169 Ga. App. 167, 169 (1) (312 SE2d 142); Callaway v. Pickard, 68 Ga. App. 637, 641 (1) (23 SE2d 564); compare Wells v. C & S Trust Co., 199 Ga. App. 31, 32 (403 SE2d 826). For reasons hereinafter discussed, we find the existence of a genuine issue of material fact existing as to these issues precluding summary judgment for appellees.

(a) Regarding the issue of foreseeability, the record reflects that the mechanic admitted in his ..deposition that he believes the tire which exploded was one of the type which “the law says to put it in a cage,” (see generally promulgated OSHA safety standards, 29 CFR, Part 1910, Servicing of Single Piece and Multi-Piece Rim Wheels; Final Rule); that he has seen air pressure cut people before and that the little bit of pressure from a bicycle tire once “busted [his] face”; that, although he had never had a big tire explode, at the time he was filling this tire he knew tires could explode and he has read about tires exploding; that he just took it for granted the tire would not explode; that he did not realize how much danger there was in inflating a (truck) tire; that a tire is more likely to explode at maximum inflation if it has some defect or hazard; that he inspected the tire visually and by touch before inflating it and found no defect; that the tire blew up because it had a defect in the sidewall; that even if a tire has a “little air hole, it could have been a small pinhole,” factory-type or other defect, the air could escape to the outside of the tire where the rubber is thin causing pressure on the defect; and that “sometimes they [tires] do [have this type of-defect].”

The trial court stressed in its order that the National Safety Administration Reports reports evidence reflecting that only 91 accidents had been reported as occurring to such single-rim tires, during servicing, during the decade of 1970-1980. (Of those cases which had been reported 15 were fatalities.) Suffice it to say that even if there were no prior reported cases this alone would not preclude foreseeability. “ ‘ “ ‘The mere fact that a particular kind of an accident has not happened before does not . . . show that such accident is one which might not reasonably have been anticipated.’ ” ’ ” Gilbert v. CSX Transp., 197 Ga. App. 29, 31 (2) (397 SE2d 447).

“ ‘ “ ‘In order for a party to be liable ... for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.’ ” ’ ” Georgia Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 776 (9) (403 SE2d 235). We cannot conclude as a matter of law from the evidence of record that negligence has or has not occurred, or that any particular act, if negligent, was or was not a sole or concurring proximate cause of the injuries allegedly sustained. Whether there has been negligence and whether there was a causal relation and proximate cause to the alleged injuries are questions of fact for jury resolution, except where the circumstances are such that they will support but one result. Lewis v. Harry White Ford, 129 Ga. App. 318, 320 (3) (199 SE2d 599). Such was not the case here.

(b) Likewise, we find that a jury question exists regarding the issues of assumption of risk, contributory negligence, and diligence for one’s own safety. “ ‘[M]ere knowledge of the danger of doing a certain act, without a full appreciation of the risk involved, is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. It is still in most cases a question of fact whether, taking into account all the circumstances, including the knowledge and appreciation as well as every other material condition, the plaintiff is guilty of such negligence as to preclude recovery.’ ” Scott v. Rich’s, 47 Ga. App. 548, 551 (171 SE 201). Here, appellant James Wade was merely aware that tires can explode; the record fails to establish that he fully comprehended and appreciated the risk involved so as to sustain a motion for summary judgment. “It has repeatedly been held that ‘mere knowledge’ of the existence of a dangerous or defective condition does not necessarily constitute ‘full appreciation of the risk involved.’ ” Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477). Moreover, the record fails, for example, to demonstrate exactly when appellant first observed the tire, how far his body was from the tire when he first observed it, when (if ever) he recognized it as a truck tire, or how much time elapsed from his recognition of the tire as a truck tire (if ever) until the tire exploded. The record does, however, reflect that appellant was walking away from the area when the mechanic asked him what type of car he had, thereby contributing to appellant’s stopping to respond to the question immediately after which he was injured. Conversely, the record reflects that appellees were aware that the tire was a truck tire, and that truck tires can have pin-sized defects, which can explode and injure people. “ ‘ “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question.” ’ ” Oliver v. Complements, Ltd., 190 Ga. App. 30, 32 (378 SE2d 154); compare Moore v. Svc. Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480) (assumption of risk applies only when full appreciation of danger without restriction from freedom of choice).

(c) Whether inflating the truck tire was a dangerous act, and if so, whether and how appellees failed to prevent injury to the licensee (see Division 2c) are matters for the jury to decide. For example, was it negligence not to inflate the tire in the shop where only employees were allowed; was it negligence to allow a person near the truck tire while it was being inflated? The trial court’s conclusion that plaintiffs failed to create a genuine issue of “liability on the part of the defendants” is not supported by the record before us.

Decided October 28, 1992 —

Reconsideration denied November 17, 1992

J. Hugh Gordon, for appellants.

Fred W. Rigdon, Jr., Davis, Gregory & Christy, Gary C. Christy, for appellees.

(d) In view of the above, and applying the standards set forth in Division 1, we find that the trial court erred in granting summary judgment to appellees.

(e) As to the duty owed by a landowner to an invitee, see generally OCGA § 51-3-1; Begin v. Ga. Championship Wrestling, 172 Ga. App. 293 (322 SE2d 737); see also Georgia Farmers Mkt. Auth. v. Dabbs, 150 Ga. App. 15, 16 (2) (256 SE2d 613); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (1a) (179 SE 415).

Judgment reversed.

Beasley and Andrews, JJ., concur.


text:
    A92A1070.
    CRENSHAW et al. v. STATE OF GEORGIA.
    (425 SE2d 660)
   Pope, Judge.

On February 28, 1990, a sale of cocaine was made from a room at the Admiral Benbow Inn in Decatur, Georgia to a confidential informant working for the DeKalb County Police Department. A few minutes after the sale took place, uniformed officers entered the room and arrested the three men present for violations of the Georgia Controlled Substances Act. One of the men arrested, Jimmy Tucker, had $24,202 on his person at the time of the arrest. Another man who was arrested had $1,875 in his possession. Tucker pleaded guilty to possessing cocaine with intent to distribute.

The State filed a complaint for forfeiture of the money pursuant to OCGA § 16-13-49. Tucker and the intervenors/appellants Carmen Crenshaw, Beverly Earley and Nathaniel Cody claimed the money found on Tucker at the time of his arrest. Tucker later withdrew his claim of ownership of the money and testified at trial that the appellants loaned him the money to use for the purpose of investing in a gospel supper club.

During a jury trial in this case, the trial judge directed a verdict for the State on the basis that the appellants lack standing to assert a claim against the property because they have no legally cognizable interest in the property. Appellants appeal that ruling.

Decided September 8, 1992 —

Reconsideration denied November 17, 1992

Michael J. Trost, for appellants.

1. As we recognized in Chester v. State of Ga., 168 Ga. App. 618, 619 (309 SE2d 897) (1983), “[t]here is no plethora of appellate decisions in Georgia on this issue, but it is clear that to have standing to contest a forfeiture a party must have at least some property interest in the subject matter of the condemnation proceeding. [Cits.] That interest may be one of ownership, lease holder, or secured party, but there must be some substantial interest. . . .” Accord State v. Jackson, 197 Ga. App. 619 (1) (399 SE2d 88) (1990). We are presented with the issue of whether a general unsecured creditor has an interest sufficient to confer standing in a forfeiture case concerning money loaned to another. We hold that a general unsecured creditor does not have a legally cognizable interest sufficient to grant it standing to challenge a forfeiture action against seized currency. See Bloodworth v. State, 185 Ga. App. 880 (366 SE2d 324) (1988) (holding that all of the money found in the defendant’s purse, which was found in close proximity to controlled substances, was subject to forfeiture even though defendant presented evidence that most of the money was loaned to her for the legitimate purpose of repaying a debt). One who lends money to another retains no legal or equitable interest in the particular currency loaned. Generally, as in this case, even though the funds may be loaned only for a particular purpose, the creditor has no right to exercise dominion or control over the money once lent. United States v. $47,875.00 in United States Currency, 746 F2d 291, 293-294 (5th Cir. 1984) (parents who gave son money to. finance oil venture had no legally cognizable interest in the seized currency); accord United States v. Real Property Known as 36379 Little Mack &c., 1991 U. S. Dist. LEXIS 8586 (E. D. Mich. 1991) (parents who loaned son $20,000 to purchase property but took no secured interest in the property have no legally cognizable interest in the seized property). Accordingly, the trial court did not err by directing a verdict in favor of the State.

2. Our holding in Division 1 makes it unnecessary to address appellants’ remaining enumerations of error.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Robert E. Wilson, District Attorney, Gregory J. Lohmeier, Assistant District Attorney, for appellee.

       Appellants contend that the 1991 amendment to OCGA § 16-13-49 is applicable to this case. Pretermitting this question, we hold that appellants lack a legally cognizable interest in the seized currency to grant them standing under either the pre-amendment or post-amendment version of OCGA § 16-13-49.