text:
    76661.
    HALL v. THE STATE.
    (375 SE2d 50)
   Benham, Judge.

Appellant was convicted of rape, burglary, and aggravated assault. On appeal, he claims that the evidence was not sufficient to convict him; that the offense of burglary merged with the aggravated assault; and that the jury was not correctly instructed on his defense of consent. We disagree with appellant’s contentions and affirm the judgment.

1. The evidence showed that appellant, the victim’s former husband, met her after work on June 20, 1987, engaged her in conversation, and convinced her to let him into her car so they could continue talking. Once inside the victim’s car, appellant made physical advances toward her, which she rejected by hitting, scratching, and kicking him. When she kneed him in the groin, he pulled out a knife, held it to her throat, removed her hosiery and underwear, and had sexual intercourse with her against her will. Two days later, appellant gained entry to the victim’s home without her permission by smashing the glass window of the back door of the home the victim shared with her parents. The victim, who was upstairs preparing to leave the house to register the handgun she had purchased the previous day, heard the glass breaking and got the bag in which she had stored both the gun and a knife she had gotten from her father. When she saw appellant coming up the stairs, she screamed and told him to stop. He lunged at her, she got the gun and tried to fire it but it would not fire. Appellant told her he would probably have to leave town soon, but he wanted to have sex with her one last time before he did. The victim threw away the gun and went for the knife, and when appellant grabbed at her and ripped her dress, she stabbed him and ran from him. He chased her through the house, and they struggled again, with the victim stabbing appellant several more times before she escaped to a neighbor’s home. Although appellant’s version of what occurred on the days in question differed from the evidence the State presented, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of rape, burglary, and aggravated assault with intent to rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 176 Ga. App. 692 (1) (337 SE2d 446) (1985); Gilbert v. State, 176 Ga. App. 561 (1) (336 SE2d 828) (1985).

2. Appellant takes the position that the offenses of aggravated assault and burglary as charged in counts two and three of the indictment merged as a matter of law and fact because they had the same common element, the intent to rape. However, we find no merit in appellant’s contention. Not only did appellant fail to raise the merger issue at trial after the evidence was presented, but he asked the court to charge the jury on the separate nature of the three crimes charged in the indictment; that the supporting evidence for those crimes should be considered separately; and that the accused’s guilt or innocence as to one of the offenses charged should not control the verdict as to the other offenses charged. The trial court charged the jury as appellant requested, and the jury found appellant guilty on all three counts. Appellant cannot ignore at trial what he thinks is an injustice, take his chances on a favorable verdict, and complain later, nor can he complain on appeal of error that he induced. Scott v. State, 243 Ga. 233 (2) (253 SE2d 698) (1979); Cole v. State, 156 Ga. App. 6 (5) (274 SE2d 64) (1980).

Decided September 19, 1988 —

Rehearing denied November 15, 1988

J. M. Raffauf, Dwight L. Thomas, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Assistant District Attorneys, for appellee.

3. The last enumeration of error is the trial court’s alleged failure to correctly charge the jury on the issue of consent. Appellant sought to have the trial court charge the jury that in order for sexual intercourse to constitute rape, the victim must have resisted “with all her power and kept up that resistance as long as she had strength.” The trial court refused to give the requested charge. We find no error in the trial court’s refusal, the Supreme Court having expressly disapproved of that language in Curtis v. State, 236 Ga. 362 (1) (223 SE2d 721) (1976).

Judgment affirmed.

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


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    76725.
    THOMAS et al. v. SHAPIRO.
    (375 SE2d 282)
   Benham, Judge.

Appellants were tenants in an apartment complex owned by appellee. When appellee filed a dispossessory action against them, they counterclaimed for injuries suffered by Mr. Thomas in a fall on the stairs leading to their apartment. In this appeal from the grant of summary judgment to appellee on both claims, appellants contend that appellee did not prove that he lacked actual or constructive knowledge of the defect in the stairs and that they are entitled to set-off against the rent they owe the amount of their damages from the fall.

1. A party seeking summary judgment has the burden of negating at least one of the essential elements of the opposing party’s case. Progressive Ins. Co. v. Kelly, 181 Ga. App. 181 (351 SE2d 544) (1986). In appellee’s motion for summary judgment with regard to appellants’ counterclaim, he chose as the sole ground of attack the element of his knowledge of the alleged defect in the stairs which Mr. Thomas contended was the cause of his fall and injuries. See Professional Bldg. v. Reagen, 129 Ga. App. 183,184 (199 SE2d 266) (1973). Appellants contended in their counterclaim that the immediate cause of Mr. Thomas’s fall was that one step in the stairs came loose from its support. While there is no question that appellee did not have actual knowledge of the defect in the stairs, the record contains evidence that appellee’s agents were aware of a continuing problem with the stairs in appellee’s apartment complex. The person employed by appellee to perform maintenance at the complex testified that the outdoor stairs, which were the same at all the apartment buildings in the complex, were made of wood, and that seasonal temperature changes and cycles of wetting and drying by rain and sun would cause the nails to back out of the wood over a period of six months or so. He also testified that he inspected the stairs at regular intervals, but admitted that he could not be sure that the particular stairs on which Mr. Thomas fell had been inspected during the month preceding Mr. Thomas’s fall, and that he did not always inspect both approaches to every set of stairs. Additional evidence that appellee was aware of the problem was the testimony of the resident manager that another tenant was injured in a similar fall some months prior to Mr. Thomas’s fall, and the testimony of the maintenance man that he had found another stair loose and that someone had knocked it all the way down before he could return to repair it. See Bayshore Co. v. Pruitt, 175 Ga. App. 679 (1) (334 SE2d 213) (1985). Under those circumstances, we cannot agree with appellee and the trial court that appellee showed such a lack of constructive knowledge of the defective maintenance of the stairs that he was entitled to judgment as a matter of law. Accordingly, the grant of summary judgment to appellee on appellant’s counterclaim must be reversed.

2. Appellants’ attempt to use a tort claim as a set-off to a contract claim is foreclosed by Gillespie v. Georgian Fin. &c. Corp., 113 Ga. App. 134 (147 SE2d 465) (1966): “ ‘Generally a cause of action ex delicto cannot be set off against an action ex contractu, and vice versa. [Cits.] The only exception to this rule is where equitable principles such as insolvency or nonresidence of the plaintiff are involved. [Cits.]’ ” This case not coming within the exception stated, the grant of summary judgment to appellee on his original claim was correct.

Judgment affirmed in part and reversed in part.

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

Decided November 3, 1988 —

Rehearing denied November 15, 1988.

Gibson & Jackson, Douglas L. Gibson, for appellants.

Dennis J. Strickland, Sr., Bryant H. Bower, Jr., Daniell S. Landers, for appellee.


author: Birdsong, Chief Judge. Beasley, Judge, Banke, Presiding Judge, Carley, Judge,

text:
    76801.
    JOHNSTON v. GRAND UNION COMPANY.
    (375 SE2d 249)
   Birdsong, Chief Judge.

The appellant Katherine Johnston sued Grand Union Co., d/b/a Big Star, for personal injuries received when the store’s automatic doors, which operated by electronic beam, unexpectedly closed upon her as she was entering the store. The trial court granted summary judgment to the defendant, and Johnston appeals.

The essentially undisputed facts are that on two occasions, three weeks before and nearly four months before this incident, Grand Union had had these doors inspected and repaired; but these repairs were not for the defect described by the plaintiff, i.e., that the doors closed unexpectedly, but rather the doors had malfunctioned in a near-opposite manner, i.e., they failed to close entirely. There are no identified witnesses to this incident. The plaintiff testified that after her injury, a female store employee who had red hair and was neither a large person nor a small person, but a medium person, remarked to plaintiff that “there was something wrong with the door, and she had made the statement that if the door wasn’t fixed, someone was going to get hurt. . . She didn’t say [to whom she had made that statement].” Immediately after the incident, the store manager tested the functioning of the doors by stepping through the electronic beam, hesitating, and then stepping out, and the doors functioned properly. Held:

1. The trial court did not err in granting summary judgment to the defendant in this case. No evidence has been pointed out to us that Grand Union had actual or constructive superior knowledge of a defect in the doors. The solitary fact that they closed unexpectedly on the plaintiff on one occasion, for no reason that has been ascertained, does not constitute any evidence from which it can be inferred the store knew or should have known the doors might close unexpectedly. There is no evidence the doors had ever previously malfunctioned in this manner or in a proven related manner. The store had recently had the doors inspected, and had had other defects repaired. There is no evidence the store was negligent by any failure to inspect the doors or keep them in repair. There is, in short, no evidence at all from which to conclude the store had superior knowledge of a defect or dangerous condition.

The imputed statement of the red-haired, medium-sized but otherwise unidentified store employee that “[t]here was something wrong with the door, and she had made the statement that if the door wasn’t fixed, someone was going to get hurt,” is hearsay. Clearly an admission against interest by an employee-agent is admissible (§§ 24-3-33; 24-3-34), but only so long as it is not hearsay. The statement is inadmissible, because its utterer cannot be identified, located, summoned and cross-examined. It is hearsay of the worst sort, for it seeks to prove the essential fact of superior knowledge by allowing the witness, the plaintiff, to say what an unknown person said she said to another. See OCGA § 24-3-1. Testimony of this sort is only rumor, asserted to prove the truth of what this unknown person said. See Plemons v. State, 155 Ga. App. 447 (270 SE2d 836). The nature of the evidence shows its weakness; the alleged person who made the alleged remark is not before the court and cannot be questioned. Mills v. Bing, 181 Ga. App. 475 (352 SE2d 798). Its defectiveness is not cured by the fact that it is allegedly an “admission” by an “agent.” 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.” [Cit.]’ ” Gentile v. Miller, Stevenson & Steinichen, 182 Ga. App. 690, 692 (356 SE2d 666). These elements are completely lacking in this evidence. Some cases which have held that such evidence offered of the sayings of an employee are inadmissible, have done so on grounds that it was not shown the utterer was in fact an agent (Seaboard Coast Line R. Co. v. Carter, 226 Ga. 825, 827 (2) (177 SE2d 683); Gordon v. Athens Convalescent Center, 146 Ga. App. 134, 135 (245 SE2d 484)) and wherever this is the case, as here, there is certainly no authority for its entry into evidence as an admission against interest by an employee under §§ 24-3-33 and 24-3-34.

Certainly the sayings of the unknown red-haired person were not part of the res gestae, since the alleged utterer is unknown, it cannot be shown that they qualify as being “free from all suspicion of device or afterthought. . . .” (OCGA § 24-3-3); and the trial court was right to so conclude. In Allen v. State, 174 Ga. App. 206, 207 (329 SE2d 586), this court had the following to say: “Each case concerning the application of the res gestae exception to the hearsay rule must turn on its own circumstances, and the admissibility of such testimony is left to the sound discretion of the trial judge.” The trial judge in this case did not abuse its discretion.

It might be that if it were shown positively that the red-haired, medium-sized woman was an employee of defendant and was identified, so that she could be cross-examined at trial, the plaintiff’s presentation of this evidence might enable her to survive summary judgment. But we have held that the putting forward of some unidentified, unspecific person as an “employee,” who allegedly made certain remarks that would bind or incriminate the employer, and as to whom there is no showing the person can be brought forth at trial or even located, or in fact exists, is not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that there was no defect of which it had actual or constructive superior knowledge. Blessing v. Doctors Mem. Hosp., 184 Ga. App. 737, 738-739 (362 SE2d 394); see Collins v. S. H. Kress & Co., 114 Ga. App. 159 (150 SE2d 373). The reason for this is obvious: evidence imputing superior knowledge only at the suggestion of a statement allegedly made by a mystery person is completely unreliable. It is the very essence of hearsay.

2. Appellant contends these defective doors constituted a dangerous instrumentality and therefore defendant’s superior knowledge is not required for imposition of liability. Asserting that this is not a mere “slip and fall” case, or premises liability case, appellant cites Higdon v. Ga. Winn-Dixie, 112 Ga. App. 500 (145 SE2d 808) to prove it involves a dangerous instrumentality. But, at bottom, the plaintiff has not even shown the door was defective, and certainly not that the same alleged defect which injured this plaintiff, had “habitually recurred.” The defendant having shown there was no defect, the plaintiff has not raised an issue of fact by setting forth a specific fact showing that the doors were an instrumentality “so defectively constructed as to be imminently dangerous.”

The order of the trial court finding no basis for liability on the part of the defendant, that is, finding no negligence and no superior knowledge of a defect, is correct.

Judgment affirmed.

Deen, P. J., and Pope, J., concur. Beasley, J., concurs specially. Sognier, J., concurs in judgment only. McMurray, P. J., Banke, P. J., Carley, and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I agree with Division 1 of the dissent but not with Division 2. Thus I agree with the result of the ruling in Division 1 of the majority opinion. I concur in Division 2.

Banke, Presiding Judge,

concurring in part and dissenting in part.

1. I cannot agree with the majority’s statement that “an admission against interest by an employee-agent is admissible . . . only so long as it is not hearsay.” Pursuant to OCGA § 24-3-33, an out-of-court declaration made by an agent “during the existence and in the pursuance of his agency,” is admissible against the principal as an exception to the rule against hearsay. In the case before us, the red-haired woman’s purported declaration that “there was something wrong with the door” failed to qualify as an admission by an agent against the principal’s interest within the contemplation of OCGA § 24-3-33 not because it was hearsay but because, even assuming that the woman was a store employee, she was not shown to have made the statement “while ‘acting within the scope of [her] authority during the existence and pursuance of [her] agency. . . .’ (Cit.)” Gordon v. Athens Convalescent Center, 146 Ga. App. 134, 135 (245 SE2d 484) (1978). Accord Swift & Co. v. Lawson, 95 Ga. App. 35, 53 (97 SE2d 168) (1957); Royal Oil Co. v. Hooks, 111 Ga. App. 779 (2) (143 SE2d 441) (1965).

The statement also failed to qualify for admission under the res gestae exception to the hearsay rule. As pointed out by the majority, to be admissible under the res gestae exception it is not enough that the statement have been made contemporaneously with the occurrence to which it relates, it must also have been made under circumstances indicating that it was “free of all suggestion of device or afterthought.” OCGA § 24-3-3. See Augusta &c. R. Co. v. Randall, 79 Ga. 304, 311-12 (4 SE 674) (1887). Generally speaking, this means that' the statement must be a “spontaneous” or “excited” utterance arising from the incident. See Glens Falls Indem. Co. v. Gottlieb, 80 Ga. App. 634, 636 (56 SE2d 799) (1949). The remark in question did not purport to be a spontaneous or excited utterance stemming from the accident itself but rather an expression of knowledge acquired in the past concerning the condition of the doors. Thus, it was properly excluded. Accord Nordmann v. Intl. Follies, 148 Ga. App. 77, 79 (5) (250 SE2d 794) (1978).

2. Nevertheless, I cannot agree the appellee was entitled to summary judgment. The appellant was not required to come forward with evidence supporting the allegations of her complaint until the appellee, as movant, produced evidence which rebutted those allegations or otherwise controverted the appellant’s claim. See generally Henderson v. Atlanta Transit System, 133 Ga. App. 354, 356 (210 SE2d 845) (1974). In a premises liability case such as this one, the defendant may establish its entitlement to summary judgment through uncontroverted evidence showing that it had no actual knowledge of the alleged defective or dangerous condition which gave rise to the plaintiff’s injury and that its lack of such knowledge was reasonable under the circumstances. Accord Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987); Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178) (1987). While this case is concededly a very close one, I do not believe the record currently before us contains such evidence.

In support of its motion for summary judgment, the appellee relied upon the affidavit of its store manager to the effect that, prior to the incident in question, he was without actual knowledge of any previous incident in which the electronic sliding doors had closed unexpectedly upon someone entering or leaving the store. Assuming that the doors had been in regular use for some period of time prior to the incident, I am willing to accept the proposition that their continuous operation, free from any malfunctions posing a danger to persons using them, would have obviated the need for further inspection or testing in this regard. However, the manager’s affidavit does not, strictly speaking, indicate that no such malfunctions had previously occurred or that none had been reported but merely that he himself had no actual knowledge of any such incidents. This may mean simply that he himself had not seen any. Construing his testimony most strongly in favor of the appellant and against the appellee as the moving party, I am thus led somewhat reluctantly to the conclusion that the appellee failed to establish its entitlement to summary judgment in this case. See generally Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971). Cf. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29 (343 SE2d 680) (1986).

I am authorized to state that Presiding Judge McMurray and Judge Benham join in this opinion.

Carley, Judge,

dissenting.

I agree with Division 2 of the dissent and its conclusion that the trial court erred in granting summary judgment in this case. I also agree with that portion of Division 1 of the dissent which points out that the majority incorrectly limits the admissibility of an admission against interest to statements which are not hearsay. As the dissent makes clear, such statements are admissible as an exception to the hearsay rule.

However, I do not agree with the dissent’s unqualified conclusion that the statement here involved “failed to qualify for admission under the res gestae exception to the hearsay rule.” In this case, I agree that the statement was inadmissible because the trial court determined it not to be within the res gestae, and that ruling “will not be disturbed on appeal unless that determination is clearly erroneous.” Andrews v. State, 249 Ga. 223, 228 (290 SE2d 71) (1982). Compare Stouffer Corp. v. Henkel, 170 Ga. App. 383, 385 (317 SE2d 222) (1984) where the trial court found the statement there involved to be admissible under the res gestae exception, and this Court could not say that the trial court’s ruling was clearly erroneous.

Decided October 18, 1988 —

Rehearing denied November 15, 1988

Robert A. Falanga, Jesse E. Barrow III, for appellant.

Hart & Sullivan, Terrance C. Sullivan, Alexander H. Booth, Brynda S. Rodriguez, for appellee.


text:
    77003.
    BRAGGS v. THE STATE.
    (375 SE2d 464)
   Benham, Judge.

Appellant was convicted of one count of child molestation and one count of aggravated child molestation. His appeal contests the sufficiency of the evidence and two other rulings that the trial court made in the course of the trial. Finding no error, we affirm the conviction.

1. The victim, who was nine years old at the time of trial, recounted several times over a period of months when appellant, a friend of the victim’s grandmother, had touched her private parts through her clothing; had told her to take her clothing and undergarments down; had attempted to sodomize her after lubricating himself with hair gel; and had inserted his fingers and his penis into her vagina. The victim testified that she did not immediately relate the incidents to her grandmother, with whom she was living at the time, because appellant had said that if she told, she would get into trouble and he would go to jail for life. She also said that she did not tell her grandmother for a long time because she was scared. When appellant did something to make the victim angry, she finally told her grandmother that he was “messing around” with her. However, she did not go into more detail because her grandmother did not ask her any questions about it. Soon afterwards, the victim told her aunt about appellant’s behavior, and the aunt subsequently notified the proper authorities. The grandmother testified and corroborated the victim’s version of their conversation about appellant, saying she had asked the child if appellant had laid on top of her or anything like that, and the child had said yes. She said she did not question the child further because she was in shock and unsure about how to address the problem. The grandmother also said that, to her knowledge, the child had never lied to her.

The pediatrician who examined the victim several weeks after the last incident testified that he had found signs of sexual abuse, including the abnormal widening of the child’s hymenal ring. He said that his findings were consistent with the insertion of one or two adult male fingers in the child’s vagina, and that that finding was not consistent with a trauma of any other type. The doctor said that the child’s mother had brought her to the emergency room for examination because after she had returned from her grandmother’s house, the child’s behavior had changed; she had been having nightmares, sleeping with the lights on, and talking excessively about AIDS.

Appellant testified, denying that he had committed the alleged acts against the child. However, the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of child molestation and aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Luckey v. State, 185 Ga. App. 262 (1) (363 SE2d 791) (1987).

2. During the redirect examination of the pediatrician, he described, over appellant’s objection, the “syndrome of delayed disclosure.” In essence, a child victim of sexual abuse will display the syndrome by feeling that the abuse is his or her own fault; by being afraid to tell people what has happened for fear of being blamed; and by disclosing the events gradually based on what the child thinks the adult could initially accept hearing and on the reactions of the adult when the child reports the abuse. Appellant claims the trial court erred in admitting this testimony because the witness was not shown to be an expert on the subject. We disagree.

It is within the trial court’s discretion whether or not a witness is entitled to be designated as an expert. Merrill v. State, 130 Ga. App. 745 (5) (204 SE2d 632) (1974). The doctor had previously testified that his education and experience included training in the specialty of pediatrics; that he was a clinical instructor of pediatrics and adolescent medicine; that he had examined several hundred female children, and over two dozen sexually abused children. He also testified that he was familiar with the disclosure syndrome regarding children, both through observation in his own practice and his knowledge of the studies regarding the syndrome. Given this testimony, we do not find that the trial court abused its discretion in allowing the witness to explain the syndrome as an expert. See Keri v. State, 179 Ga. App. 664 (1) (347 SE2d 236) (1986).

3. During closing arguments, appellant’s counsel attempted to argue that appellant must not have been as bad a person as the State’s character witness portrayed him, since the State did not offer any witness to show that appellant had previously committed offenses similar to the one for which he was being tried. The State objected to that argument, and the trial court sustained the objection. Appellant cites that ruling as reversible error. We do not agree. As a general rule, “the defendant is not permitted to comment on the State’s failure to produce certain witnesses.” Wilson v. Zant, 249 Ga. 373, 384 (290 SE2d 442) (1982). Appellant has failed to demonstrate why that general rule should not be applied in his case. Therefore, we find no error. Roper v. State, 251 Ga. 95 (6) (303 SE2d 103) (1983).

Decided October 14, 1988 —

Rehearing denied November 15, 1988

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan III, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77020.
    SANDNER, INC. v. CENTENNIAL INSURANCE COMPANY. CENTENNIAL INSURANCE COMPANY v. SANDNER, INC. et al.
    77021.
    (375 SE2d 611)
   Sognier, Judge.

Sandner, Inc. brought suit against Bayley, Martin and Fay (BMF), its insurance agency, alleging breach of fiduciary duty and breach of contract, and negligence in failing to procure workers’ compensation insurance for the company. BMF answered denying liability, and filed a third-party complaint against Centennial Insurance Company (Centennial). Sandner’s motion to add Centennial as a defendant was then granted, and Sandner alleged theories of recovery against Centennial based on negligence and breach of an alleged oral contract to provide retroactive workers’ compensation insurance. The motion for summary judgment made by BMF against Sandner was not ruled on because Sandner dismissed its claims against BMF. Centennial’s motion for summary judgment against Sandner was granted as to the contract claim but denied as to the negligence claim. The trial court also denied both Centennial’s motion for summary judgment against BMF and its motion to dismiss BMF’s third-party complaint. These appeals ensued.

The record reveals that BMF is an independent insurance broker with an agency agreement with Centennial. In 1981, Centennial, through BMF as broker, issued several policies of insurance to Brill, Inc. (Brill), a wholly owned subsidiary of Carpro, Inc. These policies, including a workers’ compensation policy which was subsequently renewed for one-year periods, showed the named insureds to be Brill and Stone Mountain Assets, Inc. In 1982, Sandner was incorporated as another subsidiary of Carpro, Inc. and BMF assumed the role of insurance adviser to Sandner, as it had done with Brill. Victor H. Ho-berg was the BMF account representative who dealt with Brill and Sandner. At the time of Sandner’s incorporation, Hoberg obtained for it property and liability insurance, but workers’ compensation insurance was rejected at that time by Sandner because it had no employees of its own but was using Brill employees. Hoberg advised that workers’ compensation insurance would be required when Sandner acquired three or more employees. Hoberg wrote to Peggy Deter, an underwriter at Centennial, that “we expect to add other coverages, [a]uto and [workers’] [compensation, as these exposures develop.”

In 1983 three accidents occurred involving Sandner employees. BMF submitted claims for the 1983 accidents to Centennial for payment under the Brill workers’ compensation policy and Centennial paid these claims, although it contends it did so with the understanding that Sandner was still using Brill employees. In September 1984, while investigating a second claim for workers’ compensation benefits by Patrick Burton, one of the Sandner employees involved in the 1983 accidents, Centennial discovered that the employees whose 1983 claims had been paid actually had been employed by Sandner rather than Brill. Centennial therefore controverted the claim, informing Sandner that no workers’ compensation coverage existed for Sandner employees. Sandner then obtained a separate workers’ compensation policy which provided prospective coverage for its employees. However, believing coverage already existed for Sandner employees under the Brill policy, Hoberg sought to have Sandner added to the Brill policy by endorsement as an additional named insured. In deposition testimony, Hoberg stated that he confirmed with Deter at Centennial that the endorsement adding Sandner as a named insured would be accepted. Hoberg testified he did not specifically discuss with Deter the issue of whether the coverage would be retroactive. However, Sandner subsequently submitted an affidavit by Hoberg which was considered by the trial court before denying Sandner’s motion for reconsideration, after summary judgment had been granted against it on the contract issue. In the affidavit, Hoberg stated it was clear to him that retroactive coverage would result from the endorsement. Ho-berg informed Sandner in a letter dated September 20, 1984 that Centennial’s underwriter had agreed to process an endorsement, which should eliminate coverage questions, but Hoberg was later informed by Deter that her superiors had not agreed to add Sandner by endorsement to the Brill policy. As a result of Centennial’s denial of coverage under the Brill policy, Sandner instituted this suit.

1. In the main appeal Sandner contends the trial court erred by granting partial summary judgment to Centennial on the contract issue. The trial court based its grant of partial summary judgment in favor of Centennial on its determination that the language of the Brill policy itself “prohibited] oral amendments (i.e. Brill’s workers’ compensation policy in effect in September 1984 states that ‘[t]he terms of this policy may not be change [d] or waived except by endorsement issued by us to be part of this policy,’[)] and there is no meeting of the minds as far as essential elements of the alleged oral agreement to add Sandner as an additional insured to the Brill workers’ compensation policy.”

Sandner contends the language in the Brill policy does not bar the agreement here, because Hoberg promised Sandner in writing that such coverage would be provided. However, we find the trial court’s ruling correct even if Hoberg’s September 20, 1984 letter is viewed as a promise in writing, as urged by Sandner. The Brill policy prohibited not only oral agreements, as pointed out by the trial court, but any change or waiver of any terms of the policy except by endorsement issued by Centennial to be a part of the policy. This language in the policy is clear and unambiguous, and “ ‘(n)o construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation.’ [Cit.]” Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 421 (364 SE2d 65) (1987). It is uncontroverted that Centennial never issued an endorsement to the Brill policy retroactively adding Sandner as an additional named insured. Further, it is clear, despite Sandner’s argument to the contrary, that the letter from Hoberg to Sandner is not an “endorsement issued by [Centennial] to be part of” the Brill policy. Accordingly, even if the letter from Hoberg is a promise in writing to provide retroactive insurance, it is not such a change in the policy which is permitted by the clear and unambiguous policy language itself.

We need not consider Sandner’s argument that the trial court incorrectly found there was no meeting of the minds as to an agreement to add Sandner to the Brill policy as a named insured, because even assuming there was such a meeting of the minds, the Brill policy language prohibited changing its terms except by endorsement issued by Centennial, as discussed above.

The issue, raised by Sandner, of whether Hoberg had apparent authority, as an agent of Centennial, to bind Centennial by promising Sandner that coverage would be retroactive, is irrelevant under the circumstances presented here, where the record reveals that Hoberg’s September 20, 1984 letter to Sandner made no such promise. In that letter, Hoberg merely stated that “[t]he underwriter [at Centennial] has agreed to process an endorsement adding Sandner as additional named insured to your Workers’ Compensation policy.” (Emphasis supplied.) A statement that the carrier had agreed to process the endorsement after new information was submitted cannot be construed as tantamount to a promise that the endorsement would be approved.

Finally, contrary to Sandner’s argument, Centennial may not be held to have waived its right to deny coverage for Burton’s 1984 injury because it mistakenly paid the three previous claims for Sandner employees. Although waiver or estoppel has been applied to create a jury question as to an insurer’s liability to an insured in some situations, see, e.g., National Fire Ins. Co. v. Thompson, 51 Ga. App. 625 (181 SE 101) (1935) (insurer had knowledge of foreclosure at time of issuance of policy); Adams v. Wash. Fid. Nat. Ins. Co., 48 Ga. App. 753 (173 SE 247) (1934) (insurer accepted late payments and policy language regarding same was vague); Sargent v. Allstate Ins. Co., 165 Ga. App. 863 (303 SE2d 43) (1983) (insurer knew all the facts concerning an exclusion and paid claim with such knowledge), neither waiver nor estoppel has been found concerning such basic elements of the policy as who is insured. “ ‘ “(N)either waiver nor estoppel can be used to create a liability not created by the contract and never assumed by the insurer under the terms of the policy.” (Cits.)’ [Cit.]” Southeastern Fidelity Ins. Co. v. Timmons, 172 Ga. App. 366, 367 (323 SE2d 183) (1984).

The trial court did not err by granting summary judgment to Centennial on Sandner’s contract claim.

2. In the cross-appeal, Centennial appeals from the denial of its motions for total summary judgment against Sandner and BMF, and from the denial of its motion to dismiss the third-party complaint. Centennial first contends the trial court erred by failing to grant summary judgment in its favor against Sandner on the negligence claim. We agree and reverse.

Even assuming, without deciding, that Centennial had a duty toward Sandner in this regard, and that Centennial’s acts or omissions constituted a breach of that duty, it is well established that, except in cases where there is fraud or misrepresentation or reliance by the insured on the advice of an agent who held himself out as an expert in determining the type and/or amount of coverage needed, an insured’s duty is to examine its policies and determine whether proper or desired coverage is provided. King v. Brasington, 252 Ga. 109, 110 (1) (312 SE2d 111) (1984); Wright Body Works v. Columbus &c. Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974). Hoberg’s letter cannot be the basis of a claim of fraud or misrepresentation because the 1984 Burton injury had already occurred at the time the letter was written and, thus, it was impossible for Sandner to claim detrimental reliance on the letter. Moreover, the record shows that Hoberg advised Sandner that workers’ compensation coverage would be required once Sandner acquired three employees. Accordingly, here, as in Ethridge v. Assoc. Mutuals, 160 Ga. App. 687, 689 (288 SE2d 58) (1981), the insured had a duty to ascertain whether the policies in existence afforded it the coverage it needed and desired. Here, as in Ethridge, “[t]o hold otherwise would allow a damaged insured to make a ‘fully covered’ allegation against an [insurer] each time an insurance policy did not cover a particular type of loss.” Id.

3. In the remainder of the cross-appeal, Centennial enumerates as error the trial court’s denial of its motion for summary judgment against BMF and the denial of its motion to dismiss BMF’s third-party complaint. Our examination of the third-party complaint discloses that it did not include a claim that BMF was damaged directly by Centennial, but rather was solely a traditional “attempt to pass on to [Centennial] all or part of the liability asserted against [BMF]. . . . [Cits.]” Cohen v. McLaughlin, 250 Ga. 661, 662 (1) (301 SE2d 37) (1983). However, while the rule is well established in such cases that “ ‘ “[t]he absolute requirement of every third-party proceeding is that its purpose must be to impose upon the third-party defendant a liability for part or all of the liability asserted by the original plaintiff against the third-party plaintiff . . .” ’ [cits.],” id., we need not address the question of whether BMF’s third-party complaint was no longer proper once Sandner’s underlying claims against BMF were voluntarily dismissed, as BMF is not an appellant in this case. “Since a cross-appeal cannot be made against a party who is not an appellant,” Glennville Wood &c. Co. v. Riddlespur, 156 Ga. App. 578 (1) (276 SE2d 248) (1980), Centennial’s appeal against BMF was not timely filed. Although OCGA § 5-6-38 (a) provides that an “appellee may institute cross-appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross-appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right,” “[a]n appellee becomes such when an appeal is taken against him by the appellant. An appellee is ‘(t)he party in a cause against whom an appeal is taken.’ [Cit.] By definition a party cannot cross-appeal, if the party he wishes to complain against is not an appellant. He can take a direct appeal if he files within the prescribed statutory time limits.” Glennville Wood, supra at 579 (1). Accord All American Assur. Co. v. Brown, 177 Ga. App. 402, 405 (339 SE2d 611) (1985). Accordingly, we dismiss the cross-appeal against BMF.

Judgment affirmed in Case No. 77020. Judgment reversed in

part and dismissed in part in Case No. 77021.

Birdsong, C. J., Banke, P. J., Pope, Benham, and Beasley, JJ., concur. Carley, J., concurs in the judgment only. Deen, P. J., and McMurray, P. J., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

While concurring fully with Division 3 of the majority opinion and with the judgment of Division 2,1 cannot concur with the holding in Division 1 that the insurer was entitled to summary judgment on Sandner’s contract claim.

Decided October 19, 1988 —

Rehearings denied November 15, 1988

Kilpatrick & Cody, Robert E. Shields, Thomas H. Christopher, David P. Phippen, for appellant.

Neely & Player, John W. Winborne III, for appellee.

In concluding that no justiciable contract claim existed, the majority opinion holds Sandner to the requirement in the Brill insurance policy that “[t]he terms of this policy may not be change[d] or waived except by endorsement issued by us to be part of this policy. . .” The problem with that disposition, of course, is in holding Sandner to the terms of an insurance contract to which it was not a party.

Sandner’s contract claim, as I understand it, is that Sandner and Hoberg, as an agent with authority to bind Centennial, reached an agreement for insurance coverage. In a letter to Brill and Sandner, Hoberg confirmed that “[t]he underwriter has agreed to process an endorsement adding Sandner as additional named insured to your workers’ compensation policy. This endorsement should eliminate coverage questions involving Patrick Burton and workers’ compensation for Sandner.” Construing this letter in the light most favorable to Sandner as respondent to Centennial’s motion for summary judgment, it indicates that the insurer had definitely agreed to the endorsement. (Processing the endorsement presumably would entail physical preparation of the endorsement, and no doubt an adjustment on premiums.) The fact that the agreement was to be effectuated by adding Sandner as an insured under the Brill policy, rather than issuance of a new and separate policy, should provide no basis for defeating Sandner’s contract claim.

There was evidence that could support a finding that Centennial reneged on a binding agreement for insurance. Accordingly, I must respectfully dissent from the affirmance of the trial court’s grant of summary judgment for Centennial on this issue.

I am authorized to state that Presiding Judge McMurray joins in this opinion.


author: Banke, Presiding Judge.

text:
    77372.
    MIOLEN v. EDD KIRBY CHEVROLET, INC.
    (375 SE2d 266)
   Banke, Presiding Judge.

The appellant sued to recover for injuries allegedly sustained as the result of a fall which occurred on the premises of an automobile dealership owned by the appellee. He appeals the grant of the appellee’s motion for summary judgment.

Decided October 31, 1988 —

Rehearing denied November 15, 1988

Claire Chason, F. Gregory Melton, for appellant.

Leitner, Warner, Owens, Moffitt, Williams & Dooley, George W. Carpenter, G. David Allen, Jr., for appellee.

The appellant was present upon the premises for the purpose of renting an automobile. While in the process of completing that transaction, he was told by one of the appellee’s employees to see another employee whose office was located at the top of a flight of stairs. The appellant ascended the stairs without incident but slipped and fell upon descending them several minutes later, allegedly because they were not adequately illuminated. The stairway was equipped with an overhead lighting fixture, but according to appellant, it was not turned on at the time. The appellant concedes that the lighting conditions had not changed between the time he climbed the stairs and the time he fell. He does not allege any defect in the design or structure of the staircase itself. Held:

“ ‘The true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. . . . (N)ot only must the plaintiff show that the defendant had knowledge of the presence [of the hazard], but the plaintiff must also show that he was without knowledge of its presence.’ Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980). (Emphasis supplied.) Thus, recovery is allowed only when the peril is known to the owner and not to the person injured. [Cits.]” Mewborn v. Winn-Dixie Stores, 179 Ga. App. 284 (346 SE2d 95) (1986).

Because the appellant was concededly aware of the lighting conditions existing on the stairway and because there is no allegation that there was any other factor which contributed to his fall, we affirm the trial court’s grant of summary judgment to the appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    76966.
    STIRLING v. THE STATE.
    (375 SE2d 302)
   Pope, Judge.

Appellant Alan Douglas Stirling was arrested and indicted for the offenses of aggravated assault, theft by taking and criminal trespass. He originally appealed to this court from the denial of his motion for acquittal; however, during the pendency of that appeal he filed a motion to set bond and this court remanded the case to the trial court for a hearing and order pursuant to Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976). See Lane v. State, 247 Ga. 387 (276 SE2d 644) (1981) and Foster v. State, 165 Ga. App. 137 (299 SE2d 420) (1983). The trial court conducted a hearing and entered an order denying bail on the ground that there was a substantial risk that the defendant would attempt to flee the jurisdiction of the court. In so finding the trial court also noted that the defendant had no significant ties to the community, that he had previously failed to appear in court when so ordered and that the defendant had to be extradited from California after his last failure to appear in court. Having carefully reviewed the record, we conclude that the trial court did not abuse its discretion in denying defendant’s motion for bail under the facts of this case. See OCGA § 17-6-1; Lane v. State, supra; Parrish v. State, 182 Ga. App. 247 (8) (355 SE2d 682) (1987); Mosley v. State, 171 Ga. App. 219 (3) (319 SE2d 77) (1984); Merritt v. State, 169 Ga. App. 523 (313 SE2d 780) (1984).

Decided November 15, 1988.

Alan Stirling, pro se.

Thomas J. Charron, District Attorney, Debra H. Bernes, Thomas A. Cole, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Birdsong, Chief Judge.

text:
    77342.
    THE STATE v. TEMPLE.
    (375 SE2d 300)
   Birdsong, Chief Judge.

The State brings this appeal from the sentence imposed by the trial court upon Horace Temple. Temple entered pleas of guilty to indictments charging armed robbery, robbery by intimidation (two counts), burglary (two counts), and forgery. The State agreed to dismiss four other indictments but there was no recommendation as to a sentence. An additional count alleged Temple was a recidivist, based upon a prior conviction for “possession of tools for commission of crime. . . .” For that prior offense, appellant had been sentenced to twelve months confinement, which was probated. In the case at bar, Temple was sentenced to five years on the forgery, five years on each burglary — to be served concurrently with the forgery sentence, five years on one robbery by intimidation — to be served consecutively to the first five years, ten years on the second robbery by intimidation — to be served concurrently with prior sentences, and twenty years on the armed robbery — ten years to serve concurrently with the other sentences, and ten years probated. The court then addressed the recidivist count. The State contended a life sentence was mandatory. The appellee argued that in the prior offense appellant was sentenced as a misdemeanant and he was never committed to prison and “in order to qualify as a recidivist he had to have previously been confined to a penal institution.” Argument was heard as to whether the prior offense was a felony or a misdemeanor. The court ruled: “Well, I’m going to treat it as if the charge were a misdemeanor and that leaves me to have to sentence him under these things with which he’s charged.” The State brings this appeal. Held:

1. The offense of “possession of tools for the commission of crime” is punishable with confinement for “not less than one nor more than five years.” OCGA § 16-7-20. An offense is properly classified as a felony if it is “punishable by death, by imprisonment for life, or by imprisonment for more than 12 months.” OCGA § 16-1-3 (5). Since this crime is “punishable” for confinement by up to five years, it is a felony.

The recidivist statute, OCGA § 17-10-7 (a), provides, inter alia: “Any person convicted of a felony offense in this state and sentenced to confinement in a penal institution, who shall afterwards commit a crime punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his discretion, probate or suspend the maximum sentence prescribed for the offense.” Temple was “sentenced to confinement for a period of 12 months in the State Penal System . . .” but the confinement was probated.

The appellant now stands convicted of armed robbery which is punishable by imprisonment for life “or by imprisonment for not less than five nor more than 20 years. . . .” OCGA § 16-8-41 (b), as amended. The net effect of appellant’s present sentence is 20 years confinement, ten to serve.

Although the prior offense upon which the recidivist count is based was a felony, the trial court imposed a misdemeanor sentence. Hence, does the prior offense qualify to invoke the recidivist statute? The Supreme Court has faced this issue before. In Ramsey v. Powell, 244 Ga. 745, 746 (262 SE2d 61), it was held “ ‘it is not the punishment imposed in a given case but the punishment that may be imposed that characterizes the crime.’ ” Accord Lewis v. State, 243 Ga. 443, 445 (254 SE2d 830). The imposable sentence for possession of tools for commission of crime makes it a felony. The prior offense being a felony and the present offenses involving felonies, the maximum sentence is mandatory. Hammond v. State, 139 Ga. App. 820 (229 SE2d 685). The maximum sentence is life imprisonment. Although the recidivist statute permits the trial judge, “in his discretion [to] probate or suspend the maximum sentence prescribed,” it also adds the proviso that this is discretionary “unless otherwise provided by law.” OCGA § 17-10-7 (a). Probation may not be imposed upon a sentence to life imprisonment. OCGA § 17-10-1 (a); State v. Baldwin, 167 Ga. App. 737 (4) (307 SE2d 679). The trial court erred in imposition of sentence. Accordingly, the judgment must be reversed and the case remanded for resentencing in accordance with the foregoing.

Decided November 15, 1988.

Spencer Lawton, Jr., District Attorney; John T. Garcia, Assistant District Attorney, for appellant.

Barry R. Brown, for appellee.

2. The State has filed a motion to delete and dismiss all portions of the record to which the enumerated error does not pertain. We find no useful purpose in granting such motion. The material referred to neither helps nor hinders our resolution of the enumerated error. Because of the result we reach, i.e., returning the record to the trial court, the State may pursue its remedy in that court, if it so desires. The motion is denied.

Judgment reversed and case remanded with direction.

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


author: Carley, Judge. Deen, Presiding Judge,

text:
    77386.
    COOPER v. THE STATE.
    (375 SE2d 505)
   Carley, Judge.

After a bench trial, appellant was found guilty of the offenses of impersonating an officer, obstruction of an officer, and operating a vehicle without proof of insurance. He filed a motion for new trial and appeals from the denial of that motion.

1. Appellant enumerates as error the trial court’s failure to grant a new trial on the general grounds. A review of the record shows the following: Appellant was stopped for failure to dim the headlights of his vehicle when approaching an officer’s vehicle. The officer asked to see appellant’s driver’s license and proof of insurance. Appellant gave his license to the officer but could not produce proof of insurance. The officer noted that appellant smelled of alcohol and asked if he had been drinking. Appellant admitted that he had been drinking and the officer performed an alco-sensor test. Upon being informed that he was under arrest for the offense of driving under the influence of alcohol, appellant stated that he was a corrections officer with the Clarke County Correctional Institution, and produced a card identifying him as such. On several occasions, the officer asked appellant to get into the police car but appellant refused. It was eventually necessary that the officer physically place appellant in the police car. It is undisputed that the officer was wearing a standard police uniform and was driving a marked police car at the time of the arrest. The officer took appellant to jail and called the Clarke County Correctional Institution to determine whether appellant was a correctional officer there. The officer was later informed that appellant was not employed at the facility. Appellant testified that he had been employed as a corrections officer at the facility in early 1980, some six years prior to the date of his arrest.

After a review of the entire record, we find that a rational trier of fact could reasonably have found, from the evidence adduced at trial, proof of the guilt of appellant beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Echols v. State, 187 Ga. App. 870 (371 SE2d 682) (1988); Williams v. State, 178 Ga. App. 80 (342 SE2d 18) (1986).

2. Appellant enumerates as error the failure to grant a new trial on the ground that there was no knowing and intelligent waiver of his right to a jury trial.

A review of the trial transcript shows that, although the trial court was informed that appellant’s right to a jury trial had been waived, it made no direct inquiry of appellant concerning the waiver of his right to a jury trial. “[Wjhile ‘ “ ‘the defendant must personally and intelligently participate in the waiver’ ” ’ of the right to trial by jury, there is no legal precedent which requires that the waiver be done in court, [(cit).] However, when an appellant questions the purported waiver of his right, it is up to the [S]tate to show that the waiver was intelligently made with the accused’s consent. [Cit.] . . . [T]he Supreme Court enunciated two post-trial methods by which the [S]tate could successfully carry its burden of proof: (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filing a silent [or incomplete] record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. ... In the case at bar, ... a [post-trial] hearing [on the issue of appellant’s waiver] was held and . . . [appellant’s trial counsel testified] that he and appellant discussed the advantages and disadvantages of trial by jury and trial by the court, and appellant decided to proceed without a jury for tactical reasons. This [testimony] was sufficient evidence that appellant had ‘personally, knowingly, voluntarily and intelligently participated in such waiver.’ [Cit.] The trial court did not err when it denied appellant’s motion for new trial based on this ground.” (Emphasis in original.) Sims v. State, 167 Ga. App. 479-480 (1) (306 SE2d 732) (1983).

Decided November 15, 1988.

John W. Timmons, Jr., for appellant.

Lindsay A. Tise, Jr., District Attorney, for appellee.

3. Appellant enumerates as error the failure to grant his motion for new trial on the ground of ineffective assistance of trial counsel. In specific, appellant urges that he was denied his Sixth Amendment rights because his trial counsel failed to assert a double jeopardy defense.

“Because of the presumption that a lawyer is competent, ‘the burden rests on the accused to demonstrate a constitutional violation.’ [Cit.]” Kornegay v. State, 174 Ga. App. 279, 280-281 (329 SE2d 601) (1985). In order to prevail on his ineffectiveness of counsel claim, appellant “must show that counsel’s performance was deficient, and . . . that the deficient performance prejudiced the defense. [Cit.]” Parisie v. State, 178 Ga. App. 857, 858 (344 SE2d 727) (1986). A review of the transcript of the post-trial hearing reveals that appellant introduced no probative evidence which would show that a viable double jeopardy defense even existed in the case. Moreover, even assuming that such evidence had been introduced, a review of the transcript would also show that any failure to assert a double jeopardy defense was caused by appellant’s own failure to apprise his trial counsel of the facts of the case. Accordingly, that ground of appellant’s motion for new trial alleging ineffective assistance of counsel is without merit.

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

It is acknowledged that Kornegay v. State, 174 Ga. App. 279 (329 SE2d 601) cited in the majority opinion, is an extremely important case and one which involved all judges on our court; however, it is without binding precedential value. Four judges voted with the majority (two of the four also concurring specially for additional reasons); one judge concurred in the judgment only, and four judges dissented. The vote “in the judgment only” snuffed out the binding value of this case, and it is now of doubtful authority in the instant case. Otherwise, I concur fully with the majority opinion.


author: Carley, Judge.

text:
    77198, 77199.
    CHRISTENSEN v. ROBERDS OF ATLANTA, INC.; and vice versa.
    (375 SE2d 267)
   Carley, Judge.

In January of 1984, appellant-plaintiff accepted an oral offer of employment with appellee-defendant. Thereafter, appellant was paid a salary but no bonuses. In July of 1984, appellant’s wife had a baby. Because the pregnancy was considered a “pre-existing condition” as of the time of appellant’s hiring, the insurance coverage that was provided to appellee’s employees did not cover any of the expenses incurred in connection with the delivery of the baby. In 1986, appellant resigned from his employment. After his resignation, appellant filed this contract action against appellee. Appellant’s complaint alleged, in material part, that he had been induced “to accept employment based upon the promise of [appellee] to [him] that bonuses of $7,000 to $8,000 per year would be paid and that all maternity expenses of [his] wife would be paid by [appellee] or its insurance. . . .” Based upon these allegations, appellant sought to recover unpaid annual bonuses for 1984 and 1985 and the unpaid medical expenses incurred in connection with his wife’s pregnancy.

Appellee answered and, after a period of discovery, moved for summary judgment. With regard to appellant’s claims for his wife’s medical expenses, the trial court granted summary judgment in favor of appellee. With regard to appellant’s claim for unpaid annual bonuses, however, the trial court denied appellee’s motion. In Case No. 77198, appellant appeals from the partial grant of appellee’s motion for summary judgment. In Case No. 77199, appellee cross-appeals from the partial denial of its motion.

Case No. 77198

1. Appellant enumerates the partial grant of appellee’s motion for summary judgment as error, urging that a genuine issue of material fact remains as to whether appellee had made a binding oral contract to pay the medical expenses incurred as the result of his wife’s pregnancy.

As evidentiary support for this contention, appellant relies upon his own affidavit which was filed in response to appellee’s motion for summary judgment. In that affidavit, appellant averred that, in his interview for employment, appellee’s president had “assured [him] that the cost of the pregnancy would be covered under the company’s policy or paid by [appellee].” (Emphasis supplied.) In his earlier deposition, however, appellant had been asked if appellee’s president had “ever [said] to [him] who would pay the medical expenses?” Appellant responded that appellee’s president had not done so. Appellant was then asked: “So [appellee’s president] never explicitly said, ‘[appellee] is going to pay the expenses’ or ‘this insurance company is going to pay the expenses,’ or he didn’t make mention or tie it down to who it was that was going to pay the expenses?” Appellant’s answer was: “As far as out-of-pocket, he didn’t say. He just said that the insurance — it would be taken care of under the policy.” Accordingly, there is a contradiction between appellant’s earlier deposition and his later affidavit. In his deposition, appellant indicated that appellee’s president had made only representations relating to the existence of coverage for the expenses of his wife’s pregnancy under its employees’ insurance plan. In his affidavit, however, appellant indicated the existence of an entirely different promise, whereby appellee would itself be an independent alternative source of payment of his wife’s medical expenses.

“In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony. To say that testimony is directly contradictory adds nothing to the statement that it is contradictory. Neither does the issue turn on whether the party-witness’ second statement intentionally contradicts his first. There are situations in which an honest mistake has been made in the first statement; the proper approach is to intentionally contradict the first statement by way of explanation. We point out that even where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. [Cits.] On the other hand, a careless and untruthful witness may have simply forgotten what was said in the first statement, and tailored his second statement to meet the needs of the occasion without regard to the truth. He may have no intent to contradict the first statement, but surely the law will construe this contradiction against him.” (Emphasis in original.) Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). “[T]he record in the present case suggests no explanation whatever for [appellant’s] contradictory testimony. . . .” Georgia Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28, 29 (348 SE2d 554) (1986). Accordingly, the contradiction will be construed most strongly against appellant even though he is the non-moving party. Appellant’s deposition shows that appellee made no promise that, in consideration of accepting the offer of employment, it would itself pay the medical expenses. If that is so, then appellant clearly has no contractual claim against appellee for those expenses. “A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1. Appellant’s deposition indicates that, rather than making a promise to bind itself, appellee only represented that its employees’ insurance plan would cover the expenses of the pregnancy. The making of such a representation might be a material fact had appellant alleged a tort claim against appellee for those expenses. See Minter v. Ga. Piggly-Wiggly Co., 185 Ga. 116 (194 SE 176) (1937). However, appellant has asserted no tort claim for the allegedly false representation concerning insurance coverage. Appellant has alleged only a contract claim based on appellee’s alleged oral promise to pay for his wife’s medical expenses. Construing the evidence of record as must be done on summary judgment, appellee did not make a binding promise that it would assume independent financial responsibility for those expenses. It follows that the trial court correctly granted partial summary judgment in favor of appellee as to this contractual claim.

Case No. 77199

2. In this cross-appeal, appellee enumerates the partial denial of its motion for summary judgment as error, urging that no genuine issue of material fact remains as to appellant’s recovery on the alleged oral agreement that he would be paid a yearly bonus in addition to his salary.

In his affidavit, as well as in his deposition, appellant stated that appellee’s president “also told [him] prior to [his] acceptance of employment with [appellee] that bonuses would be paid to [him] by [appellee] in addition to [his] salary and that the amount of these bonuses would be $7,000 to $8,000 per year.” “ ‘In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference. Until all understand alike, there can be no assent, and therefore, no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode is agreed on by which it may be settled, there is no agreement.’ [Cit.]” Aero Constr. Co. v. Grizzard, 76 Ga. App. 649, 652 (2) (46 SE2d 767) (1948). “ ‘In a contract of employment the compensation to be paid is a material part, and until the parties have agreed upon a definite amount to be paid the contract is incomplete; and until each party has assented to the material parts of the contract either party has a right to withdraw therefrom.’ [Cit.]” (Emphasis supplied.) Weill v. Brown, 197 Ga. 328, 333 (29 SE2d 54) (1944).

Construing the evidence of record most favorably for appellant, there was no agreement between the parties as to the exact amount that appellant was to receive as a bonus and there was no formula or method for determining the exact amount of the bonus. Compare Harrell v. Deariso, 82 Ga. App. 774 (62 SE2d 434) (1950); Cary v. Neel, 54 Ga. App. 860 (189 SE 575) (1936). “The fact that [appellee] never at any time promised to pay any definite sum for the performance of any services by [appellant] is itself sufficient to defeat any right in [appellant] to recover on any promise by [appellee]. . . .” (Emphasis supplied.) Mosteller v. Mashburn, 64 Ga. App. 92, 99 (12 SE2d 142) (1940). Since the oral contract relied upon by appellant was legally unenforceable, the trial court erred in failing to grant appellee’s motion for partial summary judgment as to appellant’s contract claim for unpaid bonuses. See generally King v. State Farm &c. Ins. Co., 117 Ga. App. 192 (2) (160 SE2d 230) (1968); Parks u. Atlanta News Agency, 115 Ga. App. 842 (156 SE2d 137) (1967).

Decided October 31, 1988 —

Rehearings denied November 16, 1988.

Arnold S. Kaye, J. Robert Thompson, for appellant.

Scoggins, Ivy & Goodman, Luke A. Kill, Joseph C. Chancey, for appellee.

Judgment affirmed in Case No. 77198; reversed in Case No. 77199.

Sognier, J., concurs. Deen, P. J., concurs in the judgment only.


text:
    77233.
    HOWARD v. BRIDGER et al.
    (375 SE2d 270)
   Carley, Judge.

Appellant, as the natural mother of a minor child, surrendered her parental rights to appellees and acknowledged her surrender in accordance with OCGA § 19-8-4. When appellant did not withdraw the surrender within the ten-day period thereafter, appellees petitioned for adoption of the child. Appellant filed an objection to the adoption. The trial court, after conducting an evidentiary hearing, granted appellees’ petition for adoption, finding that appellant’s surrender of her parental rights had been freely and voluntarily given and that the adoption by appellees was in the best interest of the minor child. Appellant appeals from the trial court’s order of adoption.

1. The trial court’s finding that appellant’s surrender of her parental rights was freely and voluntarily given is enumerated as erroneous.

“It is the duty of the trial judge at the [adoption] hearing to inquire into whether the parent . . . [has] given [her] free and voluntary consent to the adoption. [Cit.]. . . . [T]he trial court’s discretion in the matter will not be disturbed unless as a matter of law it can be shown that the court has abused its discretion. [Cit.]” Ritchie v. Dillon, 103 Ga. App. 7, 10 (2) (118 SE2d 115) (1961). A review of the record shows that, prior to signing the surrender and the acknowledgment thereof, appellant had discussed her decision with members of her family and was fully aware of the legal consequences of her actions. “Considering . . . the above evidence, we cannot say that the trial judge abused his discretion in finding that the appellant had freely and voluntarily consented to the adoption. [Cits.]” McGowan v. Wilkinson, 145 Ga. App. 691, 692 (244 SE2d 626) (1978). See also Ridgley v. Helms, 168 Ga. App. 435, 437 (1) (309 SE2d 375) (1983).

2. Appellant enumerates as error the failure of the trial court to consider, in making its determination of whether the adoption was in the best interest of the child, that appellant retained custody of the minor child while the adoption petition was pending.

Assuming without deciding that, notwithstanding our holding in Division 1, appellant has standing to raise any further objections to the merits of the order of adoption (see Young v. Foster, 148 Ga. App. 737, 739 (5) (252 SE2d 680) (1979)), the trial court’s failure to give any consideration to circumstances occurring subsequent to the filing of the adoption petition was correct. See generally Kirkland v. Lee, 160 Ga. App. 446, 451 (2) (287 SE2d 365) (1981). The relevant evidence of record supports the trial court’s grant of appellee’s adoption petition. “ ‘(T)he trial judge, who has the opportunity to observe the adults and children involved in a proceeding for adoption, and to listen to their testimony, has a wide discretion in determining whether the petition should be granted, and if the judgment is supported by any substantial evidence it should be affirmed by this court. [Cit.]’ [Cit.] There being substantial evidence to support the trial court’s determination that granting the adoption is in the best interest of the child, we will not interfere.” Davey v. Evans, 156 Ga. App. 698, 701 (3) (275 SE2d 769) (1980).

3. Although appellant enumerates as error the trial court’s purported failure to conduct a hearing on the adoption petition as required by OCGA § 19-8-13, a review of the record shows that the trial court did, in fact, conduct a full and complete hearing. Appellant’s argument is based on the fact that appellant asked the trial court to hold a second hearing on the petition in order that she might present additional evidence. Any evidence which appellant contends was relevant should have been introduced at the first hearing, and the trial court was not obligated to have an additional hearing in order to accommodate appellant. It follows that this enumeration is without merit.

Decided October 31, 1988 —

Rehearing denied November 16, 1988.

Wayne C. Yancey, Kelly R. Burke, for appellant.

Martin, Snow, Grant & Napier, John T. McGoldrick, Jr., for appellees.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77305.
    EHRLICH v. THE STATE.
    (375 SE2d 272)
   Carley, Judge.

Appellant was indicted for two counts of trafficking in cocaine and five counts of violating the Georgia Controlled Substances Act. His pre-trial motion to suppress was denied and, after a bench trial, he was found guilty of all counts. Appellant appeals from the judgments of conviction and sentences entered by the trial court on its findings of guilt.

Appellant enumerates as error only the denial of his motion to suppress. The trial court was authorized to find the following: Federal Express delivered a package which was addressed to appellant at the condominium complex where he resided. A security guard at the entrance to the complex signed for the package and telephoned appellant to advise him of its delivery. Although appellant requested that the package be brought to him, the security guard suspected that the package contained contraband and, rather than deliver it to appellant, he took the package to the resident manager. The resident manager observed that the package “was not sealed properly” and, when she looked into it, she saw “a baggie. And white.” The police were called and informed of the events. Upon the arrival of a police officer, he was shown a package that “had been opened. Someone had been into the package.” According to the testimony of the officer, “[i]t was not sealed at all. It was open. ...” Because of the unsealed condition of the package, the officer could observe its contents without having to open it himself. The officer believed that what he observed in the unsealed package was cocaine and, based upon that belief, he seized the package. On this evidence, the trial court correctly denied appellant’s motion to suppress the contents of the package, which did prove to be cocaine. It is immaterial whether, prior to the officer’s arrival, the package had become unsealed during the mailing process or, after its delivery, the package had been opened by the employees of appellant’s condominium complex. What is crucial is that, before the officer’s arrival, the package had been opened by some non-governmental agency. Since the officer had seen the contents of the unsealed package in which appellant’s privacy interest had been lost and he had probable cause to believe that what he saw was cocaine, he was clearly authorized to seize the package without resort to a warrant. See generally State v. Johnston, 171 Ga. App. 224 (319 SE2d 83) (1984).

The officer took the package to appellant’s residence. Upon his acceptance of delivery of the package, appellant was immediately arrested while standing in the doorway to his residence. The trial court was clearly authorized to find that this warrantless arrest was legal. When delivery of the package was accepted, the officer had probable cause to believe that, in his presence, appellant was committing the crime of possession of cocaine. See Keyser v. State, 187 Ga. App. 95 (1) (369 SE2d 309) (1988).

After his arrest, appellant requested and was allowed to obtain some articles of clothing to take with him. While doing so, appellant was accompanied by the officer and, during this lawful intrusion into the residence, the officer observed, in plain sight on a counter top, white residue which he reasonably believed to be cocaine. See State v. Field, 188 Ga. App. 639 (373 SE2d 815) (1988). The officer did not seize the suspected cocaine from the counter top but, after appellant’s arrest, he did secure a warrant to search appellant’s residence. The trial court correctly denied the motion to suppress evidence which was seized in the search of appellant’s residence pursuant to this warrant. Contrary to appellant’s contentions, this warrant was issued on probable cause arising from untainted information gained as the result of the initial lawful seizure of the package, from the ensuing lawful arrest of appellant and from the subsequent lawful intrusion of the officer into appellant’s residence while he was accompanying his arrestee. The warrant “was supported by sufficient facts to authorize a finding of probable cause for a more thorough search of the apartment.” Isbell v. State, 179 Ga. App. 363, 366 (1) (346 SE2d 857) (1986).

The lawful search of appellant’s residence led to the issuance of a warrant to search three safety deposit boxes. The trial court correctly denied the motion to suppress evidence which was seized in the search of these safety deposit boxes. This warrant was issued on probable cause arising from untainted information, including that which was acquired as the result of the lawful search of appellant’s residence. “ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . , there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed.’ [Cit.]” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

Decided October 31, 1988 —

Rehearing denied November 16, 1988

Robert G. Fierer, Lawrence Mandych, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Nancy A. Grace, Russell J. Parker, Assistant District Attorneys, for appellee.

Neither the warrantless seizure of the package and the arrest of appellant nor the seizures of evidence from appellant’s residence and safety deposit boxes pursuant to warrants were violative of the Fourth Amendment. The motion to suppress was correctly denied.

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    77060.
    GATEWAY MANAGEMENT COMPANY v. SUTTON. H. C. CONSTRUCTION, INC. v. SUTTON.
    77061.
    (375 SE2d 462)
   Deen, Presiding Judge.

Sondra Sutton sued Gateway Management Company (hereinafter “Gateway”) and H. C. Construction, Inc. (hereinafter “H. C. Construction”), to recover damages resulting from injuries sustained when she slipped and fell upon certain construction debris allegedly left by H. C. Construction upon the unlit common areas of the premises managed by Gateway. This appeal is from the denial of the defendants’ motions for summary judgment.

On the evening of October 1, 1986, Sutton was walking back to her apartment from the apartment of a friend, Karen Maxwell, when she fell upon a pile of cement “chips” which had allegedly been left in the grassy area behind Maxwell’s apartment by H. C. Construction, who was repairing and replacing the sidewalks and outside steps in the apartment complex. The area in which she fell was not lit because of non-functioning exterior lights located on the apartment complex premises.

In support of their motion for summary judgment, appellants relied on the deposition testimony of both Maxwell and Sutton. Maxwell, who witnessed appellee’s fall, testified that it was “common knowledge” that there was debris in the common areas of the apartment complex; that Mrs. Sutton “knew how the grounds were” when asked about Sutton’s knowledge of the area before her fall; and that directly before Sutton’s fall, she could see from the back door of her patio the “larger piles” of debris in the general area of Sutton’s fall. Sutton testified in her deposition that she was aware that the construction work had been in progress at her complex for a couple of months prior to her fall; that she had contacted the manager at least three or four times about the debris in the “grassy area behind apartment unit patios”; that she had taken photographs of the construction debris left in the common areas before her fall; that she also complained about the debris to the employees of H. C. Construction, but that the employees were foreigners who apparently did not understand her; and that she did not see any debris when she was walking to her friend’s apartment or later when she returned home. She claims that she became aware of the cement “chips” only after she fell.

Gateway contends the trial court erred in denying its motion for summary judgment because Sutton had prior and superior knowledge of the existence of construction upon the apartment premises and of the debris upon which she subsequently fell. H. C. Construction claims appellee had equal knowledge of the conditions which caused her fall, and also appeals the trial court’s denial of its motion for summary judgment. Held:

In order to state a cause of action in a slip and fall case involving a foreign substance on the ground, the plaintiff must show that the defendant had actual or constructive knowledge of the foreign substance and that the plaintiff was without knowledge of the substance or for some reason was prevented from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Concerning plaintiff’s knowledge, “it is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions, which he observes and avoids.” Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982).

Nothing could be clearer from the record in the case sub judice than that appellee had known for months about the dangerous condition of the grounds resulting from repair work being done on the sidewalks in the apartment complex where she lived. She had complained numerous times to the management and the construction workers about the debris on the grounds; she had picked up construction debris herself to avoid injury to others; she had photographed the debris; she had traversed the route she took on the evening she fell not only earlier that evening but at least a couple of times each week, to visit with her friend and neighbor. Further, although appellee opined at her deposition that the darkness of the area across which she traveled as a result of a street light being out that evening contributed significantly to the cause of her fall, the record is replete with references to the fact that the light had been inoperative for months and that appellant was not only aware of it but had complained about that as well. Finally, despite the assertion in appellee’s brief that she was simply trying to select the safer of two paths over which to return to her apartment, the record reveals that another route existed which was properly lighted, but longer.

It is thus apparent that appellee, fully conscious of the danger, chose to walk across an unlit area in which she had been seeing debris litter the ground for months. It would require a strained construction of these compelling facts to avoid the conclusion that appellee may not recover because she not only had intimate knowledge of the risk, but chose to assume that risk for the sake of her own convenience. There is no question here, just as there was not in Taylor v. McDonald, 183 Ga. App. 320 (359 SE2d 1) (1987), of other extenuating circumstances which sometimes exist in landlord-tenant slip and fall cases which soften our adherence to that time honored and eminently sensible principle. Compare, e.g., Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977), and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 (210 SE2d 337) (1974), where the tenant’s only other choice was to remain trapped in her apartment.

“It has often been held that the true basis for a landlord’s liability to a tenant for injuries resulting from a defective or hazardous condition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it. [Cits.] This is merely a manifestation of the general rule regarding the liability of proprietors for injuries to invitees occurring on the premises. [Cits.]” Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984). “ ‘ “The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” . . .’” Pound v. Augusta Nat., 158 Ga. App. 166, 168 (279 SE2d 342) (1981).

In this case, assuming that appellant did, indeed, trip on the cement chips as claimed, “ ‘a finding is demanded that [her] fall resulted from a defective and unsafe condition of the premises of which she was aware; and [she] is therefore barred from recovery by reason of her failure to exercise ordinary care for her own safety.’ [Cit.]” Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670) (1987).

Judgments reversed.

Carley and Sognier, JJ., concur.

Decided September 20, 1988 —

Rehearing denied October 6, 1988

Trauner, Cohen & Thomas, Russell S. Thomas, for appellant (case no. 77060).

Long, Weinberg, Ansley & Wheeler, Arnold Wright, Jr., Ronald R. Coleman, Lance D. Lourie, for appellant (case no. 77061).

John F. Davis, Jr., Laura Davis King, for appellee.


author: McMurray, Presiding Judge.

text:
    77441.
    YARBROUGH et al. v. MAGBEE BROTHERS LUMBER & SUPPLY COMPANY, INC.
    (375 SE2d 471)
   McMurray, Presiding Judge.

Plaintiff Magbee Bros. Lumber & Supply Company, Inc., brought suit against H. Cole Yarbrough and Gregory E. Stuhler. The complaint alleged that North River Builders, Inc. (“North River”) executed and delivered a nonnegotiable promissory note payable to plaintiff in the principal amount of $62,500; that North River defaulted under the terms of the note; that the note was accelerated pursuant to its terms; and that North River failed to pay the balance due and owing under the note. It was also alleged that defendants executed a guaranty whereby each defendant guaranteed 50 percent of the obligations which North River incurred pursuant to the note; and that each defendant was liable to plaintiff in the amount of $14,843.75 principal, plus accrued interest and attorney fees. Copies of the nonnegotiable promissory note and the guaranty were attached to the complaint as exhibits.

In pertinent part, the guaranty read: “To induce you to enter into the foregoing Non-Negotiable Promissory Note (‘Note’) with North River Builders, Inc. . . . and in consideration thereof and of any loans, advances or financial accommodations heretofore or hereafter granted by you to or for the account of North River, whether pursuant to said Note or otherwise, and provided always that each Guarantor shall only be liable to the extent of fifty (50%) percent of the total payment, obligations, demands or liabilities guaranteed herein, each of the undersigned Guarantors guarantees; (a) the payment to you of all sums which may be presently due and owing to you from North River, whether under said Note or otherwise, and also guarantees the due performance by North River of all its obligations under said Note, any amendment or supplement thereto and under all other present and future contracts and agreements with you; and (b) to indemnify you and hold you harmless against all obligations, demands and liabilities, by whomsoever asserted, and against all losses in any way suffered, incurred or paid by you as a result of or in any way arising out of, or following, or consequential to transactions with North River, whether under said Note or otherwise . . . and in addition, for attorneys’ fees equal to 15% of the unpaid indebtedness and obligations of North River to you, if any claim hereunder or under any instrument or guaranty is referred to an attorney for collection. Each Guarantor also agrees that the liability of each Guarantor hereunder may be enforced without requiring you first to resort to any other right, remedy or security ...”

The guaranty was signed by each defendant. The words “collection guaranteed” were written by hand above each defendant’s signature.

Defendants were served with the complaint and summons. According to the sheriff’s return of service, defendant Stuhler was also served with plaintiff’s first request for admissions. Pursuant to the request, defendant Stuhler was asked to admit that copies of the nonnegotiable note and guaranty were true, genuine and correct. He was also asked to admit, inter alia, that he was liable to plaintiff for 50 percent of North River’s indebtedness, to wit: $14,843.75 plus accrued interest through September 28, 1987, in the amount of $664.31, plus daily interest accruing thereon from September 28, 1987, in the amount of $4.92 per day and attorney fees equal to 15 percent of North River’s debt.

Defendants answered the complaint separately, denying any indebtedness to plaintiff. Thereafter, plaintiff moved for summary judgment against each defendant.

In the meantime, defendant Yarbrough was served with plaintiff’s request for admissions. Pursuant to the request, defendant Yarbrough was asked to admit that copies of the nonnegotiable note and guaranty were genuine and that he, too, was liable to plaintiff for 50 percent of North River’s indebtedness.

Neither one of the defendants responded to plaintiff’s requests for admissions. On January 8, 1988, however, defendant Stuhler moved for an extension of time within which to file answers to the request addressed to him. In support of his motion, defendant Stuhler submitted an affidavit in which he averred that he is an attorney and that he represented himself- and defendant Yarbrough in this action; that he was served with the complaint on October 7, 1987; and that a request for admission was not attached to the complaint. He averred further that on December 4, 1987, he received by mail the request for admissions directed to defendant Yarbrough and on December 7, 1987, he received by mail plaintiff’s summary judgment motion; that he telephoned plaintiff’s attorney and told him that he did not receive the request for admissions to which reference was made in the summary judgment motion; that plaintiff’s attorney said he would not grant an extension of time to answer the requests; that he never received the request which was addressed to him; and that he was prepared to file answers to the request based on the assumption that the request addressed to him was the same as the request addressed to defendant Yarbrough.

Defendant Stuhler responded to plaintiff’s motion for summary judgment on January 8, 1988. Therein, defendant Stuhler argued that he should be granted additional time to respond to the request for admissions. In this regard, defendant Stuhler made reference to his motions for extension of time and the affidavit which accompanied it. Defendant Yarbrough did not at any time respond to plaintiff’s summary judgment motion.

On January 29, 1988, defendant Stuhler moved to dismiss plaintiff’s complaint. In a brief accompanying the motion, it was argued that plaintiff was not entitled to bring this suit without first obtaining judgment against North River and attempting to have the judgment satisfied. In this regard, defendant Stuhler took the position that the handwritten words “collection guaranteed” appearing above his signature on the guaranty required plaintiff to enforce its rights against North River before suing him.

The trial court did not rule expressly upon defendant Stuhler’s motion for extension of time within which to respond to plaintiff’s request for admissions. Nor did the court rule expressly upon defendant Stuhler’s motion to dismiss. The court did, however, grant plaintiffs motions for summary judgment against each defendant.

Thereafter, defendants filed a motion to set aside the judgments entered against them. The motion was denied.

Defendants timely filed a notice of appeal within 30 days of the orders granting plaintiff’s summary judgment motions. Held,-.

1. The absence of timely answers to a request for admissions has the effect of establishing conclusively the facts set forth in the request. OCGA § 9-11-36. In the case sub judice, the requests for admissions addressed to defendants covered every conceivable issue. Defendants admitted that they were liable to plaintiff for North River’s indebtedness. And the exact amount of each defendant’s liability was specified with respect to the principal indebtedness, interest and attorney fees. Accordingly, summary judgment was appropriate since no genuine issue of material fact remained. Custom Farm Sucs. v. Faulk, 130 Ga. App. 583 (203 SE2d 912).

2. Defendant Stuhler contends the trial court erred in granting summary judgment against him, arguing he should have been permitted to respond to the request for admissions. We disagree.

OCGA § 9-11-36 (b) provides: “Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to Code Section 9-11-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining [the] action or defense on the merits.” (Emphasis supplied.) Thus, any attempt to withdraw or amend admissions must be accompanied by a showing that the merits of the case will be subserved.

Defendant Stuhler would have us rule that the merits of the action would be subserved by permitting him to respond to the request for admissions. In this regard, relying upon OCGA § 11-3-416 (2), he asserts that the words “collection guaranteed” create an issue as to whether plaintiff was required to pursue its remedies against North River before bringing suit on the guaranty. We cannot accept this assertion.

Article 3 of the Uniform Commercial Code concerns commercial paper. In pertinent part, it provides: “ ‘Collection guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor, but only after the holder has reduced his claim against the maker or acceptor to judgment and execution has been returned unsatisfied, or after the maker or acceptor has become insolvent or it is otherwise apparent that it is useless to proceed against him.” OCGA § 11-3-416 (2). The term “instrument” used therein “means a negotiable instrument.” OCGA § 11-3-102 (1) (e). Thus, the term “collection guaranteed” takes effect in the realm of negotiable instruments and commercial paper. Cities Svc. Oil Co. v. Collins, 121 Ga. App. 38 (172 SE2d 653). It has no bearing upon a contract of guaranty which is ancillary to a nonnegotiable note. Fidelity Nat. Bank v. Reid, 180 Ga. App. 428, 429 (1) (348 SE2d 913).

In the case sub judice, the words “collection guaranteed” were added to signatures which were placed on a contract of guaranty which pertained to a nonnegotiable note. They were not affixed to commercial paper or a negotiable instrument. Thus, the words “collection guaranteed” relied upon by defendant Stuhler do not affect the contract of guaranty. See Cities Svc. Oil Co. v. Collins, 121 Ga. App. 38, supra; Fidelity Nat. Bank v. Reid, 180 Ga. App. 428, supra.

It follows that the merits of the action would not be subserved by permitting defendant Stuhler to respond to the request for admissions. The trial court did not err in failing to permit defendant Stuhler to respond to the request.

Decided October 20, 1988 —

Rehearing denied November 16, 1988.

Richard A. Coleman, for appellants.

Cook, Noell, Tolley & Aldridge, Randall D. Quintrell, for appellee.

3. Defendants contend the trial court erred in denying their motions to set aside the judgments against them. In this regard, they assert that the words “collection guaranteed” appearing on the guaranty constitute a nonamendable defect on the face of the record. See OCGA § 9-11-60 (d). This assertion fails for the simple reason that, as noted in Division 2, the words “collection guaranteed” do not alter the terms of a contract of guaranty which is ancillary to a nonnegotiable note. Besides, any defect on the face of the record was cured by the judgment predicated upon defendants’ admissions.

4. Plaintiff’s motion to assess damages for a frivolous appeal is denied. Although we find no merit in defendants’ enumerations of error, we do not conclude that defendants’ enumerations are so specious for us to conclude that the appeal was taken for delay only. See Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765, 766 (6) (350 SE2d 322).

Judgment affirmed.

Pope and Benham, JJ., concur.

       We treat defendant Stuhler’s motion for an extension of time within which to file answers to the request for admissions as a motion to withdraw admissions pursuant to OCGA § 9-11-36 (b). See West v. Milner Enterprises, 162 Ga. App. 667, 668, fn. 1 (292 SE2d 538).