text:
    76872.
    EDWARDS-WARREN TIRE COMPANY v. COLE, SANFORD & WHITMIRE.
    (373 SE2d 83)
   Birdsong, Chief Judge.

Appellant, Edwards-Warren Tire Company, brings this appeal from the grant of summary judgment to Cole, Sanford & Whitmire. William C. Warren III was a co-founder of appellant tire company in 1954, and has been the Chairman of the Board of that corporation since its inception. Warren is also the President of Cole, Sanford & Whitmire, an insurance brokerage firm, and although he has been with that firm for 33 years, he has been its president for only the last eight years. Edwards-Warren procured its liability insurance from Cole, and its operations were carried on in nine different states. Warren was aware of the law in Georgia and a majority of other states, that the workers’ compensation statutes of the various states provide the exclusive remedy against an employer and employees of that employer for job-related injuries. See OCGA § 34-9-11. Warren was not aware that the law of Alabama did not follow this rule and permitted employees to sue other employees for job-related injuries.

Edwards-Warren sold off-the-road tires, new and retreads. Those type tires are used on mining and construction equipment. At the Drummond Coal Company in Alabama, a tire “blew up” and killed a Drummond employee and severely injured two Edwards-Warren employees. The injured Edwards-Warren employees brought suit against two other employees of Edwards-Warren, and it was discovered that the liability insurance policy for Edwards-Warren covered acts of their employees, but excluded coverage for suits by other employees. Edwards-Warren then filed this declaratory judgment action against Cole. The trial court granted summary judgment to Cole and this appeal followed. Held:

1. The trial court found that Warren had “serviced [appellant’s] liability insurance needs since 1954 with very little input from others associated with plaintiff,” and as the president of Cole “he ran the company and sold insurance.” The court then concluded that Warren “acted as agent for both plaintiff and defendant with their knowledge and consent. Where an agent acts for adverse parties in a transaction with their knowledge and consent, neither principal is liable to the other for the tortious act of the agent in the absence of complicity by the principal. Hodges v. Mayes, 240 Ga. 643, 644, 242 SE2d 160.” Appellant contends the trial court erred in its “sole and exclusive relianee upon Hodges. . . .” We have found no error.

The evidence established that Warren, as Chairman of the Board for Edwards-Warren, made the exclusive decision to procure liability insurance from Cole, and that he did not discuss this subject with other members of the board or anyone else. As president of Cole, he issued Edwards-Warren a liability policy that he determined would provide adequate liability coverage. He admitted he was unaware that Alabama law permitted employees to sue other employees for job-related injuries, and that this was a mistake in judgment.

The relationship of principal and agent arises whenever one person, either expressly or by implication, authorizes a person to act for him or subsequently ratifies the act of the other. OCGA § 10-6-1. The principal is bound by the acts of his agent, acting within the scope of his authority. OCGA § 10-6-4; Puckett v. Reese, 203 Ga. 716, 725 (48 SE2d 297). At times courts have tended to equate “servant” with “agent,” but these relationships are quite different. “ ‘At common law, and in all of the jurisdictions of this country (except in instances where changed by statute) the difference in concept is fundamental and substantial. Generally the servant performs work or labor for the master, sometimes skilled and sometimes not, while the agent, within the ambit of his authority, represents his principal in some business dealing. He is vested with authority, real or ostensible, to create obligations on behalf of his principal, bringing third parties into contractual relations with him ... it has been generally said that agency relates to business transactions, while the work of a servant relates to manual service.’ ” Headrick v. Fordham, 154 Ga. App. 415, 416-417 (268 SE2d 753). The acts of Warren in procuring liability insurance for Edwards-Warren, and issuing liability insurance policies on behalf of Cole, had been occurring and recurring for more than 30 years (with the exception of three or four years when another insurer was tried). We find that Warren was an agent of both Cole and Edwards-Warren. Both principals were aware of the dual agency and neither principal repudiated such act of the dual agent.

“ ‘Contracts of dual agency are not void per se, but only so when the fact that the agent represented both parties was not known to each [principal].’ ” Pope v. Harper, 40 Ga. App. 573 (1) (150 SE 470). Knowledge and consent of both principals legalize the dual capacity of the agent.. Id. “Where two or more principals employ the same agent, whether as a means of dealing with one another or to protect their common interests, one cannot charge the other not actually at fault with the misconduct of the common agent. The [agent] owes no more duty to one than to the other; each of the principals is under an equal duty to supervise the agent and to protect his own interest, and there is no reason why the misconduct of the agent should be imputed to one principal rather than to the other.” Mechem, Law of Agency 1717, § 2140. Our Supreme Court has adopted the approach espoused by Mechem. “It is generally recognized that where an agent represents two adverse parties in a transaction with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the agent so situated where the opposite principal is not in complicity with the agent or in no way participates in the tortious act. Another way of stating this same principle is that the misconduct of a dual agent by consent cannot be imputed to either of the principals who is not actually at fault. . . .” Hodges, supra at 644; accord Southern &c. Ins. Co. v. Cotton States &c. Ins. Co., 176 Ga. App. 140 (6) (335 SE2d 598). Warren was unaware of the law of Alabama which permitted employees to sue other employees for job-related injuries. While this may have been negligence on the part of an insurer who held himself out as having a specialized knowledge in this field, no overt representation to the contrary was made by Warren or any other agent or employee of Cole to Edwards-Warren. Further, no inquiry or request was made on behalf of Edwards-Warren for this specific coverage, or for any type of liability coverage such as “full coverage” (see Turner, Wood & Smith v. Reed, 169 Ga. App. 213, 214 (311 SE2d 859)), nor was any examination made of Edwards-Warren’s records by an agent of Cole professing to have special expertise to determine their liability coverage needs (Wright Body Works v. Columbus &c. Ins. Agency, 233 Ga. 268 (210 SE2d 801)). There is no evidence to indicate fault on the part of any employee or agent of either principal other than Warren.

This policy of liability insurance coverage was nothing more than the decision of Warren as Chairman of the Board for Edwards-Warren to purchase its liability insurance coverage from Cole, and a decision by Warren, as president of Cole, that this liability coverage was adequate for Edwards-Warren. Inherent in such determination by the same person is that Warren, as Chairman for Edwards-Warren, was aware of the contents of the policy and determined that it fulfilled the needs of his company, or he would never have accepted such policy and paid its premium. This enumeration is without merit.

2. Appellant argues that “a jury question exists as to the scope of the agencies W. Warren was fulfilling on behalf of both Edwards-Warren and Cole. . . .” We do not agree. There is no issue of material fact as to whether Warren had acted as agent for Edwards-Warren in the procurement of liability insurance for the past 33 years. Similarly, Warren as the president of Cole, could issue any type of insurance policy the agency was authorized to issue. The evidence does not indicate any issue as to the existence of the agency, or the extent of the authority of the highest officer in each business.

Appellant cites decisions that hold: “Questions regarding the existence of agency and the extent of the agent’s authority are generally for the trier of fact.” Renfroe v. Warren-Hawkins &c. Post No. 523, 157 Ga. App. 614 (278 SE2d 414). The critical word is “[questions” of existence of an agency, or the extent of the agent’s authority. There was no “question” as to the existence of Warren’s agency on behalf of both principals — for the past 33 years. Nor can there be any “question” as to the authority of the chief executive officer of each principal to accomplish the action he had been taking for years, with the knowledge, consent, and acceptance of both principals. The trial court did not err in determining the agency of Warren and the extent of his authority. European Bakers v. Holman, 177 Ga. App. 172 (2) (338 SE2d 702).

Decided September 13, 1988.

Harry L. Cashin, Jr., Johann R. Manning, Jr., Raymond C. Mayer, for appellant.

Palmer H. Ansley, David A. Sapp, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    76891.
    JONES v. THE STATE.
    (373 SE2d 86)
   Birdsong, Chief Judge.

Jerry Jones appeals his conviction for violation of the Georgia Controlled Substances Act at OCGA §§ 16-13-30 (b) and 16-13-26 (1) (d), involving the sale of cocaine. He asserts the general grounds of insufficiency of the evidence to prove guilt beyond reasonable doubt, and to find Jones sane beyond a reasonable doubt; and complains of the denial of his motion for new trial. Held:

The evidence showed that the testifying undercover police officer went with “Red,” an informant, to the American Legion Club parking lot around 5:00 p.m. on April 4, 1987. “Red” was to show or point out to the officer persons from whom he could buy drugs. In the parking lot, the officer asked Red to call Jones over to the car. The officer testified that when Jones approached the car, “he wanted to know what we wanted and I told him I wanted to buy.”

The officer further testified he learned Jones was also known as “Big Man” because of his size. The officer identified the appellant as the “Big Man” who sold him the drugs, although the appellant did not look the same because he had changed his appearance by cutting all his hair off and trimming his beard. The officer also testified that he knew of two persons in Moultrie called “Big Man,” but that he could distinguish between them and knew “positively” the appellant seated in court, on trial, was the person who sold him drugs on April 4, 1987.

Decided September 13, 1988.

Thomas L. Kirbo III, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Reginald “Red” Coates testified. He is the person who the police officer testified was with him in the car, and who pointed out persons who sold drugs. Red testified the officer frequently would drive him around and would give him some crack and liquor if Red showed him how to find some sellers. However, Red denied having ever called appellant Jones to the officer’s car, denied having bought drugs from Jones or having seen anyone else buy drugs from Jones, and denied specifically the incident at . the American Legion as described by the officer.

On the appeal of a criminal conviction, the evidence is viewed as the jury viewed it, that is, in favor of the verdict of conviction; and the presumption of innocence no longer prevails. McGinnis v. State, 183 Ga. App. 17, 18 (358 SE2d 269). As to conflicting evidence and testimony, the weight of evidence and the credibility of the witnesses is for the jury to determine. Id.; Russell v. State, 174 Ga. App. 436, 437 (330 SE2d 175). The jury in this case evidently credited the officer’s statement that he bought cocaine from appellant, a/k/a “Big Man,” on April 4, 1987, and that although he knew two persons called “Big Man,” he could clearly distinguish them, and was not confused, and that the defendant on tried was the person who sold him cocaine on April 4, 1987.

The evidence in this case was not entirely circumstantial, but was direct eyewitness testimony and positive identification; it is sufficient to permit the jury, as rational triers of fact, to find appellant Jerry Jones guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Therefore, the trial court did not err in denying the motion for new trial on grounds of sufficiency of the evidence.

As for the apparent allegation that the evidence was insufficient to find appellant sane beyond a reasonable doubt, there was no distinct issue made of his sanity in the trial (Halsell v. State, 183 Ga. App. 549 (359 SE2d 393)), and the point is not argued in the brief. It is therefore deemed abandoned (Dawson v. State, 166 Ga. App. 515 (1) (304 SE2d 570)), and it is without merit in any event.

Judgment affirmed.

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


text:
    76903.
    BARROW et al. v. CITY OF ATLANTA.
    (373 SE2d 88)
   Birdsong, Chief Judge.

Appellant, Paul V. Barrow, Jr., a real estate developer, was the owner of unimproved real estate in North Fulton County, located between Old Alabama Road and the Chattahoochee River. The City of Atlanta and Fulton County condemned 6.212 acres of appellant’s land for use as a water intake and pumping station, and an access road from Old Alabama Road to the station. The case was referred to a special master who awarded $363,108 for the take. Appellants being dissatisfied with this amount appealed for a jury trial. The jury awarded appellant $243,423 and appellant moved for a new trial. This appeal followed the denial of the motion for a new trial. Held:

1. Although 6.212 acres of appellant’s land was taken, four acres were located directly on the riverfront and the remaining acreage was used to construct a paved road from Old Alabama Road to the water intake site on the river. The water removed from the river will be pumped through a 60-inch water main to the treatment plant which will be located on the north side of Old Alabama Road. The plant is designed to provide 25-30 million gallons of water per day to that area of North Fulton County, north of the Chattahoochee River and the Sandy Springs district.

The expert real estate appraiser for the City valued the property taken to be worth $209,655, and found no consequential damages to the remainder of the tract. The condemnor also introduced evidence that, because of water shortages in Fulton County during the past two years, and because water for that area was procured from Gwinnett and Cobb County, which gave priority to residents of their own counties, this area will “have an advantage [of] drinking water for this development as a result of this project.”

The condemnee’s expert real estate appraiser valued the land taken at $205,000 with consequential damages to the remainder in the amount of $375,000, for a total value of the take of $580,000. Barrow testified that because the property taken by the City was in the Chattahoochee River corridor, it came within the jurisdiction of the Atlanta Regional Commission (ARC) and because of the limitation by ARC of the maximum percentage of impervious construction on river land, the paved road to the water intake site and the building constructed thereon severely restricted the amount of construction that could be placed on the remainder of the land. Barrow had participated in real estate developments at Sea Pines, Hilton Head, South Carolina and in Puerto Rico. Land on the waterfront, or even with a water view, was highly prized and valued much more than land not on the waterfront. In Sea Pines, waterfront realty was valued at six times the value of land immediately behind it, and the cost of a townhouse on the waterfront was valued at $40,000 more than one with just a water view. For this reason, the riverfront property was to be developed with townhouses and the total value of the raw land before the take was $5,151,000. Because of the paved road and the building placed in the condemned realty (impervious construction), the number of houses had to be decreased by 22 net lots, with a resulting loss of value of $674,000. Barrow would have sold the condemned six acres for not less than $500,000 because riverfront property is selling for $125,000 per acre. Barrow eventually sold the entire tract to Fairfield Communities at a contract price of $33,750 per acre.

The jury arrived at a verdict of $243,423, which is more than the condemnor’s valuation ($209,655 — with no consequential damages) and less than the condemnee’s valuation ($205,000 with $375,000 consequential damages) and Barrow’s estimated $674,000. The award was more than the $33,750 per acre for which the condemnee sold the remainder of the land ($33,750 X 6.212 = $209,655).

Barrow complains that the trial' court’s instruction that the jury “[i]n determining the amount of consequential damages, if any . . . should consider whether the condemnation will benefit the land the owner has left. And if so, reduce the consequential damage by that amount. . . . The benefits which can be set up against consequential damage are what the law calls special benefits or the general benefits. A special benefit would be something which adds to the convenience, accessibility, or usefulness of the property affected by the condemnation. It could benefit the properties of other individuals and still be a special benefit within the meaning of the condemnation law. . . .” He argues this charge permitted the jury to speculate what consequential benefit they were authorized to deduct from the consequential damages to the remainder based solely on the testimony of the condemnor’s expert of a benefit to “this development as a result of this project” because of the assurance of water availability rather than water shortages previously experienced. Appellants contend there was no evidence presented to the jury from which they could compute the amount of the reputed benefit.

This court has held: “Consequential benefits to remaining lands may be shown as an offset against consequential damages. [Cit.] However, where, as in the case sub judice, there was no evidence from which the jury could have formed a reasonable estimate of the amount or value of such benefits, it is error to charge the jury that they could reduce the amount of consequential damages to the remainder by the amount of special consequential benefits. [Cits.]” Continental Corp. v. Dept. of Transp., 172 Ga. App. 766 (2) (324 SE2d 588); accord Theo v. Dept. of Transp., 160 Ga. App. 518 (4) (287 SE2d 333); State Hwy. Dept. v. Rosenfeld, 120 Ga. App. 439 (2) (170 SE2d 837); Ball v. State Hwy. Dept., 108 Ga. App. 457 (3) (133 SE2d 638); State Hwy. Dept. v. Grant, 106 Ga. App. 696, 698 (127 SE2d 920); Smith v. State Hwy. Dept., 105 Ga. App. 245, 246 (124 SE2d 305); Andrus v. State Hwy. Dept., 93 Ga. App. 827, 829 (93 SE2d 174), aff’d 212 Ga. 737, 739 (95 SE2d 781). And if there was no evidence from which it could be argued that there was a benefit to the land, it would be improper to charge the jury on consequential benefits. Stanfield v. State Hwy. Dept., 95 Ga. App. 452 (1) (98 SE2d 40).

Decided September 13, 1988.

Frank Love, Jr., for appellants.

Thomas A. Bowman, Robert L. Zoeckler, for appellee.

We fully recognize the difficulty in assigning any specific value to a benefit to the remainder (as in this benefit resulting from assurance of water), but this burden on the condemnor is no greater than the burden on the condemnee to show the specific amount of damages to the remainder in the form of consequential damages. However, we note in the instant appeal that Barrow offered evidence of the amount of a specific benefit to realty from being on the waterfront, both as to value of raw realty (six times as valuable) and of a residence ($40,000). Hence, the burden placed on a condemnor is not unreasonable since it is the same burden borne by the condemnee as to consequential damages.

This charge is error requiring reversal.

2. We find no error in the refusal of the trial court to give appellant’s requested charge regarding “privacy afforded by the location of a riverfront lot or the location itself. . . .” Although the requested charge was condensed from Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 350-351 (299 SE2d 594), the charge requested emphasizes the value of “privacy” whereas Reynolds emphasized “location.” There was an issue as to the value of the four acres taken which were on the Chattahoochee River, but the element of “privacy” was not included in that presentation. The appellant’s evidence was directed to the “location.” We find the charge was not adjusted to the evidence and it was not error to refuse it in its present format.

Judgment reversed.

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


text:
    76971.
    GRAHAM v. WILKES et al.
    (373 SE2d 90)
   Birdsong, Chief Judge.

This court granted appellant’s application for discretionary appeal to determine the sole issue of whether the trial judge applied the “slight evidence” standard of Bolton v. City of Newnan, 22 Ga. App. 15 (95 SE 472) in denying appellant’s petition for certiorari and thereby committing reversible error.

Decided September 14, 1988.

Appellant petitioned the superior court for certiorari following the decision of the Bibb County Civil Service Board upholding the action of the Sheriff of Bibb County, appellee Wilkes, which terminated appellant’s employment with the sheriff’s department for allegedly violating certain provisions in the sheriff’s manual relating to loyalty and integrity. The superior court denied appellant’s petition for certiorari issuing an order which pertinently provided: “The findings of fact and judgment of the Bibb County Civil Service Board terminating the employment of the Plaintiff are affirmed, and the Plaintiff’s Petition for Certiorari is hereby denied. Bolton v. City of Newnan, [supra].” Held:

This court in Bolton established the “slight evidence” test as a correct test to be used in determining whether the superior court erred in “overruling” a petition for certiorari. Id. at 16 (2). However, in Smith v. Elder, 174 Ga. App. 316 (1) (329 SE2d 511), this court, citing OCGA § 5-4-12 (b) held that “the ‘substantial evidence’ standard is the proper standard to be applied in appeals to superior court by application for certiorari.” Further, in Smith, we overruled a line of decisions holding that “the denial of certiorari by a superior court will not be disturbed where there is at least some evidence supporting the judgment.” Id. Clearly Smith, by implication also reversed that line of cases, such as Bolton and Gresham v. State, 95 Ga. App. 755 (98 SE2d 573), which apply a mere “some evidence” standard. Moreover, OCGA § 5-4-12 (b), applicable at the time of the trial court’s order, prescribes the use of the “substantial evidence” test. It is clear from the face of the trial court’s order that the Bolton standard of “some evidence” has been erroneously applied by the trial court. This case is distinguishable from Sullivan v. Brownlee, 174 Ga. App. 813, 814 (331 SE2d 622), as here the trial court’s erroneous application of the wrong standard is established clearly in the body of its order.

The remaining assertions and arguments of the parties will not be addressed as they are outside the limited scope for which this court granted this discretionary appeal. The record will be returned to the trial court for reconsideration of appellant’s petition for certiorari applying the statutory standard of OCGA § 5-4-12 (b).

Judgment reversed and case remanded with direction.

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

F. Robert Raley, for appellant.

Joseph W. Popper, Jr., Brian J. Passante, for appellees.


text:
    76989.
    SAXON v. COLONIAL INSURANCE COMPANY OF CALIFORNIA.
    (373 SE2d 91)
   Birdsong, Chief Judge.

Theodora Saxon appeals the grant of summary judgment to Colonial Insurance Company of California.

Saxon’s insurance claims arose out of an accident which occurred July 29, 1985. The trial court, upon a finding of certain facts not materially disputed by Saxon, held Saxon forfeited any rights to benefits under her policy of insurance because she breached the terms of the contract by failing to perform her duties thereunder, i.e., by failing to complete and return any no-fault benefit application until October 31, 1986, fifteen months after she initially reported the accident to the insurer; and by failing to aid in the insurer’s investigation of the claim.

The trial court’s finding of facts shows essentially that Saxon had emergency room treatment on the date of the accident (July 29,1985) and on August 2, 1985. She reported the accident to her insurer on August 7, 1985. That same month, when the insurer contacted her, she reported that she would seek more treatment and she did have further medical treatments from March 10 to June 23, 1986.

As early as August 1985, the insurer sent Saxon an application for no-fault benefits and requested her to complete it; she refused. The insurer requested her to attend an independent medical exam, pursuant to the insurance contract, on October 24, 1985, but she failed to attend. She hired an attorney, who advised the insurer that Saxon would be completing and returning the policy-required no-fault benefits application, and would submit to an independent medical examination. However, despite a second scheduled examination, Saxon has failed to apprise us that she ever did submit to an independent medical examination. She sent some medical bills to the insurer in March 1986, but the insurer refused to pay because of her failure to comply with the policy requirements. Not until October 1986, did she send insurer the bill for emergency room treatments that occurred immediately after the accident on July 29 and August 2, 1985. She finally did send in a no-fault benefits application in October 1986.

The insurer paid her medical bills incurred up to October 24, 1985, the date she failed to attend the first requested independent medical examination, but refused all else. Held:

1. On appeal, Saxon urges that the question whether the insurer’s refusal to pay was reasonable, is for the jury. See Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45 (244 SE2d 573). However, this is clearly a case where the issue can be decided as a matter of law and the trial court did not err in doing so. Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800 (307 SE2d 698); see Hudson v. Omaha Indem. Co., 183 Ga. App. 847 (360 SE2d 406).

Although appellant Saxon did on August 7, 1985, report to the insurer that she had had an accident on July 29, 1985, and had received medical treatments, she failed and refused for 15 months the insurer’s attempts to get her to apply for no-fault benefits by filing an application as required by the policy, and failed to submit to two independent medical examinations as required as part of her duties under the policy. She never even submitted a bill for her initial emergency room treatments until 15 months later in October 1986. The insurer paid these bills, because they were incurred before her first refusal to cooperate by attending an independent medical exam, on October 24, 1985. The insurer has clearly borne its burden to prove beyond any material issue of fact that at least as to any expenses incurred after that date, the insurer’s refusal to pay benefits was reasonable because the appellant Saxon failed to comply with her contractual duties and breached the contract. Notwithstanding the liberal beneficial intentions underlying the no-fault act, the insurer had the right to require her to assist in investigating and verifying any claim she might make and her repeated failure to do so disentitles her to further benefits under the contract. Morris v. Aetna Life Ins. Co., 160 Ga. App. 484 (287 SE2d 388).

2. Saxon contends that if this ruling as to medical expenses be correct, she is then entitled to payment for lost wages up to that first date of non-cooperation, October 24, 1985. The fact is, however, that she has not shown that she has ever made a claim for lost wages, at least until October 1986, when she finally submitted a no-fault benefits application. The fact that the insurer voluntarily paid her for medical treatments incurred before she refused to cooperate with the insurer’s right to investigate the claim, does not operate to require the insurer to pay any lost wages incurred up to that date. As far as appellant has pointed out to us, there was no proof of claim of lost wages, until October 1986, and certainly there was never any cooperation or assistance by her in proving such a claim.

She simply contends, in essence, that she is entitled to receive lost wages benefits without any proof of claim, or cooperation or compliance with her contract obligations. This is not a reasonable assertion under the terms of the policy, and does not keep alive any issue of fact as to any further right of Saxon to receive benefits under this policy.

Judgment affirmed.

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

Decided September 14, 1988.

Harris Odell, Jr., for appellant.

Edward M. Hughes, for appellee.


author: Sognier, Judge.

text:
    76823.
    LEE v. THE STATE.
    (373 SE2d 28)
   Sognier, Judge.

Larkin Mayo Lee was convicted of running a stop sign and driving under the influence of alcohol, and he appeals.

1. In his first enumeration of error, appellant contends the evidence was insufficient to support his conviction. The evidence adduced at trial, construed favorably to the prosecution, showed that Butts County Sheriff’s Deputy Britt observed appellant drive his truck past a stop sign without slowing down or stopping. Deputy Britt testified that after stopping appellant for the stop sign violation, he smelled a strong odor of alcohol on appellant and noticed beer cans in the truck. An intoximeter test was thereafter conducted which showed appellant’s blood to contain .15 gm percent alcohol. We find this evidence to be sufficient to support the conviction under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Contrary to appellant’s contention, we find this evidence also establishes that appellant was a “less safe driver” within the meaning of OCGA § 40-6-391 (a) (1). See Collum v. State, 186 Ga. App. 822 (368 SE2d 578) (1988).

3. Appellant’s second enumeration, in which he contends that his conviction should be reversed because the accusation failed to specify under which portion of OCGA § 40-6-391 he was being prosecuted, was not raised below. It is well established that this court will not consider issues raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

4. Appellant maintains the results of the intoximeter test were improperly admitted because no proper foundation was laid in that appellant was not kept under continuous observation before the time of the intoximeter test, in accordance with methods approved by the Georgia Bureau of Investigation pursuant to OCGA § 40-6-392 (a) (1). However, Deputy Britt testified he had observed appellant continuously from arrest until the time of testing and this testimony was sufficient to satisfy that foundation requirement. Any doubt cast on this testimony by the testimony of Deputy Bevell, who administered the intoximeter test, or by Deputy Britt’s own later testimony, would go to Deputy Britt’s credibility and the weight to be given to his testimony, not to the sufficiency of the foundation laid for admitting the results of the intoximeter test. “The weight of the evidence and credibility of witnesses are questions for determination by the [factfinder], and this court passes on the sufficiency of the evidence, not its weight. [Cit.]” Worthey v. State, 184 Ga. App. 836, 838 (363 SE2d 54) (1987).

Decided September 7, 1988

Rehearing denied September 15, 1988

Virgil L. Brown, for appellant.

E. Byron Smith, District Attorney, Thomas McBerry, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    76936.
    CRIDER et al. v. GEORGIA LIFE & HEALTH INSURANCE GUARANTY ASSOCIATION.
    (373 SE2d 30)
   Carley, Judge.

Continental Bankers Life Insurance Company (Continental) issued a health insurance policy to appellant-plaintiffs Mr. and Mrs. William Crider. Appellants submitted a claim on the policy which Continental refused to pay. Appellants then brought suit against Continental, seeking to recover insurance benefits under the policy, bad faith penalties, and attorney’s fees. A jury returned a verdict which awarded appellants actual damages of $47,627, bad faith penalties of $11,907, and attorney’s fees of $13,000. Judgment was entered on the verdict and Continental tendered a check in the amount of $47,627 to appellants. Prior to satisfying the remaining portion of appellants’ judgment, however, Continental became insolvent. Appellants then brought this suit, seeking to recover from appellee-defendant Georgia Life & Health Insurance Guaranty Association the unsatisfied portion of their judgment against Continental. Appellee answered, denying the material allegations of the complaint. After a period of discovery, cross-motions for summary judgment were filed. The trial court entered an order granting summary judgment in favor of appellee and denying appellants’ motion for summary judgment. Appellants appeal from that order, enumerating as error only the grant of summary judgment in favor of appellee.

OCGA § 33-38-1 provides that appellee was created for the purpose of “protect[ing] . . . insureds . . . against failure in the performance of contractual obligations due to the impairment or insolvency of the insurer issuing [life and health insurance] policies or contracts.” (Emphasis supplied.) “ ‘Contractual obligation’ means any obligation under covered policies or contracts.” (Emphasis supplied.) OCGA § 33-38-4 (4). Accordingly, only insofar as there has been an unsatisfied default as to the insolvent Continental’s “contractual obligations” to appellants would appellants have a viable claim as against appellee.

It is undisputed that Continental’s payment of $47,627 satisfied appellants’ judgment for benefits under the policy. Appellants assert only an unsatisfied judgment for statutory damages pursuant to OCGA § 33-4-6. In Colwell v. Voyager Cas. Ins. Co., 184 Ga. App. 842 (363 SE2d 310) (1987), we held that the Georgia Insurers Insolvency Pool (GIIP) was not obligated to pay an insured’s claim for statutory damages against an insolvent insurer. Although the holding in Colwell was based upon an interpretation of the statutory provisions applicable to the GIIP, the underlying rationale would nevertheless appear to be controlling here. The clear intent of the statutory provisions applicable to both GIIP and appellee is “to provide only those insureds having unsatisfied contractual claims for benefits with a source of recovery other than their insolvent insurers.” (Emphasis supplied.) Colwell v. Voyager Cas. Ins. Co., supra at 842. “Since appellants seek [to recover on a judgment representing] only damages based upon [Continental’s] failure to perform its statutory obligations pursuant to [OCGA § 33-4-6], to hold that they can proceed against [appellee] on their claims would be to authorize the dissipation of funds which were intended to benefit only those insureds who, entirely unlike appellants, have never even been initially paid those contractual benefits for which they made premium payments and to which they would be entitled under their policies issued by insolvent insurers. Having recovered their contractual claims for benefits, appellants are, insofar as a potential recovery [of their unsatisfied judgment for OCGA § 33-4-6 damages] is concerned, in no better position than any other plaintiff who has [an unsatisfied judgment] for damages against an insolvent defendant. The fact that appellants are insureds and [Continental] is an insolvent insurer is not, standing alone, a basis for holding that [appellee] is an alternative source of appellants’ recovery of the statutory damages they seek.” (Emphasis in original.) Colwell v. Voyager Cas. Ins. Co., supra at 843.

Appellants attempt to distinguish Colwell, urging that the statutory provisions applicable to appellee are to “be liberally construed to effect the purpose set forth in Code Section 33-38-1, which Code section shall constitute an aid and guide to interpretation.” OCGA § 33-38-3. That there is no comparable explicit expression of legislative intent that the provisions applicable to the GIIP be “liberally construed” does not, however, mandate a different result here from that which was reached in Colwell. As noted previously, OCGA § 33-38-1 provides that the purpose underlying the creation of appellee is “to protect . . . insureds . . . against failure in the performance of contractual obligations due to the impairment or insolvency of the insurer. . . .” (Emphasis supplied.) Pursuant to this clear expression of legislative intent, it would require more than a liberal construction to achieve an expansion of the scope of claims which are assertable against appellee so as to encompass claims for damages based upon an insolvent insurer’s failure to perform its statutory obligations. Such an expansion can only be accomplished through legislation rather than through judicial construction of the existing applicable statutory provisions.

Decided September 7, 1988

Rehearing denied September 15, 1988

David N. Vaughan, Jr., Velma C. Tilley, for appellants.

Appellants point out that the statutory provisions which were applicable to the GIIP in Colwell had been amended so as to provide that “[a] covered claim shall not include any claim or judgment for punitive damages and attorney’s fees associated therewith against any insolvent insurer, its insured, or the [GIIP].” OCGA § 33-36-3 (2) (G). Although there is again no comparable explicit expression of legislative intent that such claims are not assertable against appellee, this likewise does not mandate a different result here from that which was reached in Colwell. The decision in Colwell was predicated entirely upon an interpretation of the general phrase “contractual obligations” and the express definition of a “covered claim” as contained in amended OCGA § 33-36-3 (2) (G) was not a factor in our holding. “Our previous discussion of the extent to which the GIIP has an obligation to the insureds of an insolvent insurer is based entirely upon an interpretation of statutory provisions which predate . . . subsection (G) [of] OCGA § 33-36-3 (2). As indicated in our discussion, under those . . . provisions, it is only contractual claims for benefits under policies issued by an insolvent insurer that ‘become the obligation of the [GIIP]. . . .’ [Cit.]” Colwell v. Voyager Cas. Ins. Co., supra at 843. Here, as in Colwell, a claim based upon an insolvent insurer’s failure to perform its statutory obligation is sought to be enforced pursuant to statutory provisions which authorize only enforcement of claims based upon an insolvent insurer’s failure to perform its contractual obligations. Since there has been no default as to the insolvent Continental’s “contractual obligations” to appellants, they have no viable claim pursuant to OCGA § 33-38-1 et seq. and summary judgment was correctly granted in favor of appellee.

Judgment affirmed.

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

Henry D. Fellows, Jr., Thomas C. Gilliland, for appellee.


author: Pope, Judge.

text:
    76469.
    LITTLE v. THE STATE.
    (373 SE2d 260)
    Decided September 15, 1988.

      Samuel D. Ozburn, for appellant.

      John M. Ott, District Attorney, for appellee.
   Pope, Judge.

Appellant Willie Ivey Little appeals from his conviction of violations of the Georgia Controlled Substances Act, enumerating as error the denial of his motion for discharge and acquittal on the ground that his written demand for trial made pursuant to OCGA § 17-7-170 was not properly filed. Held:

1. Appellant concedes that his demand for trial was filed 20 days prior to the return of his indictment, but urges this court to overrule Robinson v. State, 182 Ga. App. 423 (4) (356 SE2d 55) (1987), in which we held that the speedy trial mandate of OCGA § 17-7-170 may not be invoked until after an indictment has been returned or an accusation has been preferred (citing Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) aff'd 254 Ga. 660 (333 SE2d 834) (1985)). This we are without authority to do. “Although the constitutional protection of the right to a speedy trial attaches at the time of arrest, a defendant may not invoke the statutory provisions of OCGA § 17-7-170 until an indictment has been returned. [Cit.] Where a statutory demand is filed before the indictment is returned, the demand is a nullity and provides no ground for granting a plea in bar for failure to try the case within the statutory period. Id. Because the penalty imposed by this statute against the state is so great, it must be strictly construed. Thus, the demand for trial is a nullity whether it was filed hours, weeks or months before the indictment was returned. The trial court did not err in denying [appellant’s motion for discharge and acquittal].” Day v. State, 187 Ga. App. 175, 175-176 (369 SE2d 796) (1988).

2. Appellant’s second ground of error concerns computation of the two-term limit before discharge pursuant to local superior court rules. However, the trial judge expressly stated he was not denying the motion for discharge on the basis of this rule. Therefore, this enumeration is also without merit.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    76530.
    LOWERY v. THE STATE.
    (373 SE2d 261)
    Decided September 15, 1988.

      E. Herman Warnock, for appellant.

      James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was charged by indictment with three counts of the offense of forgery in the first degree. At a hearing before the superior court on May 27, 1987, defendant waived his right to counsel and entered a plea of guilty on each of the three counts of forgery in the first degree. Defendant was sentenced on May 27, 1987.

On August 21, 1987, defendant filed his “Motion to Vacate Sentence” whereby defendant sought to withdraw his plea of guilty or alternatively that his sentence be vacated. Defendant appeals from the denial of his motion. Held:

The terms of court for the Superior Court of Telfair County commence as follows: “Fourth Monday in February and June and third and fourth Mondays in October.” OCGA § 15-6-3 (29) (E). “Even after sentencing, the trial court has the discretion to allow the withdrawal of the plea prior to the expiration of the term of court in which the sentence was entered. State v. Kight, 175 Ga. App. 65 (332 SE2d 363) (1985). However, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings. Id. The denial of the motion filed by the appellant in the present case must accordingly be affirmed.” Staley v. State, 184 Ga. App. 402 (361 SE2d 702). Neither was defendant’s motion an appropriate means to obtain modification of defendant’s sentence following the end of the term sentence was entered. State v. Kight, 175 Ga. App. 65 (1), 67, supra.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76651, 76652.
    JOHNSON et al. v. THE STATE.
    (373 SE2d 93)
   Pope, Judge.

Defendants Jerry and Tony Johnson are brothers. They both were convicted of two counts of aggravated assault. Jerry Johnson was also convicted of escape.

1. The record shows that in response to the statutory question concerning whether any juror had formed an opinion concerning the guilt or innocence of the defendants, one of the prospective jurors answered, “Yes sir. I was a Valdosta police officer and I know both of the Johnson boys.” Both defendants contend the trial court erred in denying a motion for mistrial on the ground the statement made by the prospective juror in the presence of other jurors during voir dire was prejudicial and improperly placed their characters into evidence.

We hold the court did not err in denying mistrial. First, the appropriate remedy for correcting an error in the process of selecting a jury is disqualification of the jury, not the granting of a mistrial. See Moore v. State, 156 Ga. App. 92 (1) (274 SE2d 107) (1980). Even so, the juror’s statement would provide no ground for disqualifying the jury. This court has held that testimony by a police officer that he knew the defendant from a previous court proceeding does not place a defendant’s character in evidence so as to require the granting of a mistrial. Williams v. State, 158 Ga. App. 867 (282 SE2d 419) (1981). Here, the prospective juror’s statement did not refer to any previous criminal proceeding but merely stated that the juror, a former police officer, knew the defendants. The juror’s statement did not wrongly place the defendants’ characters at issue and provided no ground for disqualifying the jury. See Coates v. State, 165 Ga. 191 (140 SE 287) (1927).

2. We disagree with defendant Tony Johnson’s contention that the verdict against him is unsupported by the evidence. The victim was a cashier at a convenience store. The evidence construed in the light most favorable to the verdict shows defendant Johnson made a threat against the victim as he exited the store. When he was outside, he rapped on the window and the victim went outside to tell him to leave. Once outside the store, the victim was confronted by Tony’s brother Jerry. The victim pushed Jerry Johnson who then assaulted the victim with a bicycle. The victim pulled a knife and attempted to back into the store. At Jerry Johnson’s instruction, Tony Johnson held the victim from behind while Jerry Johnson beat him. The knife fell out of the victim’s hand. After the three had scuffled, the victim got up off the ground and turned to walk back into the store. Jerry Johnson then stabbed the victim with the knife.

A person is a party to a crime if he “[intentionally aids or abets in the commission of the crime . . . .” OCGA § 16-2-20 (b) (3). By holding the victim while his brother beat him, defendant Tony Johnson was clearly an aider and abetter in the beating. As an aider and abetter, the act of one party was the act of the other in the commission of the assault. When this fist fight turned into a knife fight, both parties became guilty of aggravated assault. See Cargill v. State, 256 Ga. 252 (347 SE2d 559) (1986) (where the defendant, brother of the actual killer, knowingly participated in robbery but claimed he did not know his brother intended to kill the potential witnesses; nevertheless, the defendant’s involvement in the criminal enterprise authorized the jury to find him guilty of murder). The evidence was sufficient to support the verdict against defendant Tony Johnson.

Decided September 15, 1988.

Patricia M. Karras, for appellant (case no. 76651).

Robert D. Culliver, for appellant (case no. 76652).

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

3. Defendant Tony Johnson also argues the trial court erred in denying his request for a continuance to afford him the opportunity to obtain counsel. “A motion for continuance is addressed to the sound discretion of the trial court and the refusal to grant a continuance will not be disturbed unless there is a clear abuse of discretion.” Young v. State, 237 Ga. 852, 855 (230 SE2d 287) (1976). The party moving for continuance must show he used due diligence. OCGA § 17-8-20. Defendant admitted upon questioning by the trial court that his request for appointed counsel had twice been denied and that he had been instructed of the necessity to obtain counsel to represent him. The trial court did not abuse its discretion in denying defendant’s motion for continuance because the record shows defendant “had utterly disregarded the trial court’s instructions to obtain counsel . . . .” Hendrix v. State, 145 Ga. App. 170, 171 (243 SE2d 112) (1978).

Judgments affirmed.

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


text:
    76703.
    YAMAHA OF ATLANTA, INC. v. YAMAHA MOTOR CORPORATION U. S. A. et al.
    (373 SE2d 95)
   Pope, Judge.

Appellant (hereinafter “dealer”) was a retail dealer of Yamaha motorcycle products and services. It operated under separate but identical written agreements with both appellees (hereinafter “suppliers”) which, in exchange for financing, granted to the suppliers a security interest in all Yamaha-brand products in the dealer’s possession at the time the agreements were entered into in 1979 and all such products acquired thereafter from the suppliers. According to the terms of the written agreements, the suppliers were granted the right to take immediate possession of the secured property in the event the dealer defaulted on any terms or conditions of the agreements.

On September 25, 1984, the suppliers filed a personal property foreclosure action against the dealer. They also filed a sworn affidavit stating the dealer was in default and applied for a writ of immediate possession of the secured property. The writ was granted and the suppliers repossessed their collateral. In response to the foreclosure action, the dealer filed an eight-count counterclaim. Summary judgment in favor of the suppliers on one count of the counterclaim was affirmed by the Georgia Supreme Court. Yamaha of Atlanta, Inc. v. Yamaha Motor Corp., USA, 257 Ga. XXVIII (1987). The trial court granted the suppliers’ motion to dismiss the remaining seven counts of the counterclaim. The dealer appeals the dismissal of three of the counts of the counterclaim.

1. The dealer alleged the suppliers’ repossession of collateral amounted to tortious interference with its contractual rights since the repossession effectively closed the dealer’s business. It is undisputed that the dealer breached the security agreement when the casualty insurance on the secured property lapsed. Pursuant to the terms of the security agreement, the suppliers were granted a contractual right to take immediate possession of the secured property in the event of default on any term of the agreements. No cause of action exists against a party to a contract for exercising its contractual rights. Cf. Parks v. Atlanta News Agency, 115 Ga. App. 842 (156 SE2d 137) (1967) (in which this court held no cause of action for tortious injury arises out of one party’s refusal to continue a business relationship that is terminable at will). Thus, the trial court did not err in dismissing the dealer’s counterclaim for tortious interference with contractual rights.

2. The dealer also claimed the suppliers are liable for “wrongful levy,” either because the suppliers did not have the right to repossess the property or because the suppliers repossessed property valued in excess of that amount owed by the dealer. As noted above, the written agreements between the parties granted the suppliers the right to immediate possession of all Yamaha products in the dealer’s possession upon default of any term of the agreements. The record shows the suppliers followed the procedures set forth in OCGA § 44-14-230 et seq. by obtaining a writ of possession from the court for repossessing the collateral over which they held a security interest. The evidence shows the suppliers did not wrongfully repossess the secured property. Pursuant to Georgia law, if the secured property is sold for an amount in excess of the debt, “the secured party must account to the debtor for any surplus . . . .” OCGA § 11-9-504 (2). If, on the trial of the foreclosure action, excess proceeds from the sale of collateral are shown, then the dealer will be entitled to them pursuant to said statute. However, the dealer has shown no cause of action for wrongful levy.

3. The dealer also filed a counterclaim for abuse of process. Subsequent to the filing of that claim, abuse of process was merged into the new tort of “abusive litigation” by the holding in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). See Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (4) (359 SE2d 920) (1987). In order to prevail the dealer must show, in regard to the suppliers’ claim, “such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim . . . .” Yost at 96. In this case, the court did accept the asserted claim by granting the writ of immediate possession. Neither can the dealer show that the suppliers’ foreclosure action lacked substantial justification, as defined in Yost. As noted above, the undisputed evidence established the suppliers were granted a contractual right to repossess the property. Thus, the dealer’s counterclaim for abusive litigation was properly dismissed.

Decided September 15, 1988.

Scott Walters, Jr., for appellant.

James A. Pardo, Jr., Dan H. Willoughby, Jr., Gordon A. Smith, for appellees.

4. The order granting dismissal of the counterclaim recites that it is based upon the pleadings as well as evidence presented in the case. Therefore, the motion to dismiss was effectively converted to a motion for summary judgment. Accordingly, direct appeal from the order granting the motion was appropriate and the suppliers’ motion to dismiss the appeal is denied.

Judgment affirmed.

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


text:
    76723.
    SMITH v. THE STATE.
    (373 SE2d 97)
   Pope, Judge.

Defendant, Tony Gene Smith, appeals his conviction as a party to the offense of entering a motor vehicle with intent to commit a theft or felony. According to the testimony of defendant and co-defendant Robert Cook (who pled guilty), the two were mere acquaintances. Cook saw Smith walking down the road and offered to give him a ride. Smith asked to be taken to a printing company where his ex-wife was employed so he could speak to her about a child custody dispute. Cook drove around the parking lot at the printing company so Smith could see if his ex-wife’s car was in the lot. Cook saw a van with the door partially open and he stopped his vehicle and entered the van. Defendant Smith sat in Cook’s vehicle. Smith denied having any knowledge why Cook stopped and entered the van.

An eyewitness, who was an employee of the printing company, testified he saw Cook’s vehicle stopped in front of the van as he entered the parking lot on his way to work. He knew the van belonged to a co-employee at the printing company and became suspicious when Cook seemed to hide from view inside the van. When he approached the van to investigate, Cook said, “We didn’t take nothing.” Defendant Smith was sitting in the driver’s seat of Cook’s vehicle. According to the witness, “[Smith] was definitely keeping an eye. He was watching out.” Cook returned to his vehicle and defendant slid over into the passenger’s seat. When the witness told Cook that he had notified the plant guard, defendant Smith said, “Come on, let’s go.” The co-defendants left the scene and were arrested later at defendant Smith’s residence, where they were working together on Smith’s automobile.

Defendant asserts (1) that the evidence was insufficient to support a conviction and (2) that the trial judge erred in denying a mistrial.

1. Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that defendant is a party. Brown v. State, 250 Ga. 862 (1) (302 SE2d 347) (1983); Parker v. State, 155 Ga. App. 617 (2) (271 SE2d 871) (1980). However, “[c]riminal intent may be found by the jury ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6.” Lunz v. State, 174 Ga. App. 893, 895 (332 SE2d 37) (1985). “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. [Citation and punctuation omitted.]” Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). Defendant offered a reasonable explanation for being with the co-defendant and for being at the scene of the crime. The eyewitness’ testimony that defendant appeared to be a lookout was reasonably explained by defendant’s testimony that he was searching the parking lot for his ex-wife’s car. Defendant explained that he had moved to the driver’s seat of Cook’s vehicle in order to see what was going on because Cook was talking to the eyewitness at the back of the vehicle. Defendant did not deny that he said “Come on, let’s go.” However, he denied that he would have any reason to try to get away from the scene because he had not heard the conversation between Cook and the eyewitness and had no knowledge of what had transpired.

All evidence against defendant was circumstantial. Defendant’s testimony established a reasonable hypothesis of innocence. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “While the circumstantial evidence raises a suspicion of defendant’s guilt, it was not sufficient to exclude every other reasonable hypothesis.” Cornish v. State, 187 Ga. App. 140, 143 (369 SE2d 515) (1988). Accordingly, we rule that the evidence was insufficient to support defendant’s conviction.

Decided September 15, 1988.

Stanley W. Robbins, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

2. Having determined that defendant was entitled to acquittal, we need not address the trial court’s denial of defendant’s motion for mistrial.

Judgment reversed.

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


text:
    76862.
    BROWN v. THE STATE.
    (373 SE2d 99)
   McMurray, Presiding Judge.

Defendant Brown appeals his conviction of the offense of trafficking in cocaine. The sole enumeration of error contends the trial court erred in denying defendant’s motion to suppress evidence. Held:

On February 19, 1987, defendant arrived at the Atlanta airport on an early morning flight from Fort Lauderdale. Flights from south Florida cities are commonly watched by law enforcement officers because that area has been confirmed as a source of illegal drugs.

Two law enforcement officials (Officer Noe and Agent Lalumiere) observed defendant deplane and get directions to a connecting flight. The officers approached an airline employee and learned that defendant had a reservation for a flight to Cleveland and that defendant’s flight reservations had been made within an hour prior to his departure from Fort Lauderdale.

The officers followed defendant and observed that he was looking around nervously. After defendant did not follow a direct route to the departure gate for. his connecting flight, the officers approached defendant.

The officers identified themselves and asked defendant’s permission to speak to him for a moment. The officers were casually attired and any weapons they carried were concealed. After defendant consented to converse with the officers, the officers asked to see defendant’s airline ticket.

Defendant produced his ticket which was a one-way ticket purchased with cash. There was no checked luggage coupon stapled to the inside of the ticket envelope. These facts were significant to the officers since they were consistent with the practices of drug couriers.

When asked his name defendant said he was Douglas Brown and when asked to produce identification defendant produced a Florida driver’s license in the name of Douglas Brown. The airline ticket and driver’s license were returned to defendant.

At that time defendant was advised that the law enforcement officers were narcotics agents looking for illegal drug trafficking and he was asked to cooperate by allowing a search of his person and luggage. “First [defendant] said, do you have a search warrant? And, [Officer Noe] said, no, we’re asking — we would like your cooperation. And, [defendant] said, okay. [Defendant] said, yes. No [Officer Noe] said, we would like your cooperation, will you cooperate with us? [Defendant] said, yes. And, then [Officer Noe] said, we can go to a private room if you would like to. We can do it here or we can go to a private room. At that time [defendant] said, I want to call my attorney first.” Officer Noe advised “that was fine” and pointed to the row of telephones 20 to 30 yards away. “[Defendant] kind of walked the way that [Officer Noe] pointed to where the telephones were and then he stopped and looked around and he laid his yellow plastic bag down in the seat then turned around and walked towards the escalator. . . .” Defendant went down the escalator to the spine connecting the various concourses of the airport. Officer Noe picked up defendant’s plastic bag and the officers followed defendant on the escalator pointing out nearby telephones. Defendant became “extremely nervous and was breathing heavily.”

Officer Noe asked for and was given consent by defendant to look in defendant’s plastic bag. After looking in the bag Officer Noe returned the bag to defendant. While this was going on defendant continued to walk, repeatedly passing public telephones.

Finally, at the bottom of the escalators leading to concourse “C” defendant “stopped and look around several times. Agent Lalumiere asked him what he was looking for and he said he was looking for an exit. Agent Lalumiere advised him that the exit was back the other way, he was going the wrong way ... At that time [defendant] continued to look around nervously for a second and shrugged his shoulders and turned and proceeded up the escalator. At first when he turned around and went toward the escalator, he was walking briskly. As he got to the escalator, he started running up the escalator, one step at a time and then two steps at a time . . . [Officer Noe] was behind him, [Officer Noe] was just running up the escalator along right behind him. [Officer Noe] was just running up the escalator . . . [Officer Noe] ran all the way up the escalator . . . right on the step behind [defendant] and then at the top of the escalator, like three or four steps from the top, [defendant] threw the yellow plastic bag down on the ground and got to the top and just continued to run.” At that time Officer Noe grabbed defendant and attempted to subdue him. “In an attempt to subdue [defendant] there was a slight scuffle and Agent Lalumiere noticed that [defendant] had stuck his hand down towards the front of his pants as if to try to grab something. Agent Lalumiere reached with the hand that was grabbing to the front of [defendant’s] pants and produced a plastic bag containing an off-white chunky powdered substance. . . .”

Decided September 15, 1988.

Charles J. Driebe, Jr., for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assis tant District Attorney, for appellee.

“Contrary to defendant’s argument, the conduct of the officers in approaching defendant and identifying themselves as law enforcement officers accompanied with their request to see defendant’s ticket and identification . . . did not amount to an intrusion upon any constitutionally protected area. Nor did the absence of an express statement to defendant that he was free to leave suggest that defendant was ‘seized.’ Nothing suggests defendant had any objective reason to believe that he was not free to end the conversation and proceed on his way. Such police-citizen encounters involving no coercion or detention are without the compass of the 4th Amendment. United States v. Mendenhall, 446 U. S. 544 (100 SC 1870, 64 LE2d 497); Goodman v. State, 180 Ga. App. 347 (349 SE2d 216); Ullrich v. State, 176 Ga. App. 260 (335 SE2d 490); Allen v. State, 172 Ga. App. 663 [(324 SE2d 521)]; Moran v. State, 170 Ga. App. 837 (318 SE2d 716).” LeBlanc v. State, 184 Ga. App. 789, 790, 791 (363 SE2d 37). See also Verhoeff v. State, 184 Ga. App. 501, 503 (2) (362 SE2d 85).

By that point in time when Officer Noe did in fact physically seize and subdue defendant at the top of the escalator on concourse “C” it was apparent that defendant’s consent to search and request to telephone his attorney had been withdrawn. However, during the preceding interval defendant’s conduct had consisted of an exhibition of increasing stress, rising to perhaps panic and an attempt to flee. This conduct combined with the officer’s knowledge of defendant’s drug courier profile characteristics (traveling with no luggage from a drug distribution point on a one-way ticket purchased shortly before departure with cash) gave the officer probable cause to believe that defendant was committing an offense involving concealed contraband. LeBlanc v. State, 184 Ga. App. 789, 791, supra. The trial court did not err in denying defendant’s motion to suppress evidence.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76892.
    HUDSON v. THE STATE.
    (373 SE2d 101)
    Decided September 15, 1988.

      Richard E. Nettum, for appellant.

      Henry 0. Jones III, Solicitor, for appellee.
   Carley, Judge.

Appellant was tried before a jury and found guilty of the offense of solicitation of sodomy. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

In his sole enumeration, appellant urges that the trial court erred in permitting the State “to bolster or sustain the trial testimony of the victim by showing that on the date of the crime he made statements consistent with his later in-court testimony.” The record shows that the trial court allowed the investigating officer, over appellant’s bolstering objection, to testify that, on the day of the incident, the victim had told him of having been solicited by appellant for an act of sodomy. However, the record also shows that the victim’s cousin had already previously testified, without objection, that, on the day of the incident, the victim had told her of having been solicited by appellant for an act of sodomy. “Assuming that the admission of [the investigating officer’s] testimony was error [because it impermissibly bolstered the victim’s in-court testimony], it was harmless because ‘other testimony to the same effect and of like nature was introduced without objection.’ [Cits.]” Buffington v. State, 171 Ga. App. 919, 920 (2) (321 SE2d 418) (1984).

Judgment affirmed.

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


text:
    76955.
    PETERSON et al. v. LIBERTY MUTUAL INSURANCE COMPANY.
    (373 SE2d 515)
   Birdsong, Chief Judge.

This is an appeal from the order of the superior court granting the appellee/defendant’s motion for summary judgment.

On August 18, 1986, appellant Bernice Peterson, the wife of appellant Abraham Peterson, contacted Mr. Glidewell who was an agent for the appellee, Liberty Mutual Insurance Company, in order to obtain automobile insurance coverage for appellants’ cars. Acting as agent for her husband, Bernice Peterson signed an application for automobile insurance and tendered a check in the amount of $159 as an advance payment thereon. She also signed certain other documents including the following acknowledgment: “I hereby acknowledge and agree that the automobile insurance I have applied for (Date) 8-18-86 from Liberty Mutual Fire Insurance Company will take effect on the specified date as indicated on the application after I am notified of approval by a Liberty Mutual Representative.” Nothing contained in the forms, at the time she signed them, expressly provided for any earlier insurance effective date, provided that the insurance had been approved, or that an insurance binder had been issued thereon. However, the receipt for payment of $159 did contain an entry of “To be assigned” in a block entitled “Complete 15 Digit Policy No.,” although this same form also had blocks entitled “Binder No.” and “Effective Date,” respectively, which were left blank. Bernice Peterson testified by way of deposition that, Mr. Glidewell “told me ... he had to do a license check on my husband, and after a couple of days, then the the insurance would take effect, but I assumed I had a binder on the insurance after I walked out . . . the door, because he accepted my down payment.” She also testified that Mr. Glidewell said he would notify her by mail “when I was covered,” and that he would send “a letter or a policy number through the mail.” Appellant Abraham Peterson testified that he let his wife make the arrangements concerning automobile insurance, and that he was not present when she talked with Mr. Glidewell. Appellant Abraham Peterson does not recall seeing the insurance forms or ever seeing any card or policy from the appellee. However, he testified that several days after his wife’s return from Mr. Glidewell’s office, he received a telephone call from “a man” who indicated that there was a Social Security number discrepancy that needed to be corrected and he gave him the correct information. Later he received another call from the same individual who said that his “insurance was okay,” “insurance went through,” “you have got insurance coverage with Liberty Mutual,” or words to this effect. He does not know who the man is with whom he talked, and the record is otherwise silent either as to whom this man might be or as to what his position, if any, might be with the appellee.

Subsequently on August 30, 1986, Bernice Peterson was injured when she was struck by an uninsured motorist while she was driving one of appellant’s cars. The appellants’ car was damaged beyond repair. On or about September 5, 1986, appellee without explanation returned the amount of $159 to appellant Abraham Peterson. Thereafter, on or about September 23, 1986, appellee sent a letter to appellant Abraham Peterson informing him that the application for insurance had been denied.

The insurance application form signed by Bernice Peterson has a block at the bottom of the last page thereof labeled “Applicant’s Authorization.” Within this block is space in which the time and date when the policy is to commence can be written; this space has been left blank. At the very bottom of this same block is a space where a manager or supervisor of the appellee can sign acknowledging his review of the application. Although this space also is blank, closely adjacent thereto appears the handprinted notation “Approved by Tim Gramig on 8-15-86.” This notation has been initialed by some unknown person. In addition the record contains an affidavit from the Tax Commissioner of Muscogee County who has reviewed the insurance application and asserts that based upon his experience he “would find sufficient evidence of insurance as of August 15, 1986, as shown by the approval thereon to issue a motor vehicle tag in this County.”

The appellants assert three enumerated errors as follows: (1) It was error to grant summary judgment to the defendant holding that there was no genuine issue of material fact; (2) It was error for the trial court to rule as a matter of law that there is no contract between the parties; and (3) It was error to dismiss the case on its merits. We will address these three enumerations simultaneously.

On a motion for summary judgment, “the movant has the burden of showing affirmatively that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. Moreover, when the movant is the defendant, he has the additional burden of piercing the plaintiff’s allegations and affirmatively negating at least one essential element of the plaintiff’s case.” Burns v. Gleason, 183 Ga. App. 245, 247 (358 SE2d 646). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531); see Dickson v. Dickson, 238 Ga. 672, 675 (235 SE2d 479).

Under the facts of this case, the appellants would have received the benefit of insurance coverage from the appellee only if either the appellee duly accepted appellants’ application (offer) for insurance before the accident occurred or an insurance binder was in effect before and at the time of the accident.

First, regarding the tender by appellant Bernice Peterson of a check as a partial advance premium payment, “ ‘(t)he general rule is that an application for insurance, even with the concurrent prepayment of premiums, creates no binding contract of insurance until the insurer manifests its acceptance.’ ” Karp v. Western Life Ins. Co., 182 Ga. App. 693, 694 (356 SE2d 893); Harrison v. American Liberty Ins. Co., 155 Ga. App. 226 (2) (270 SE2d 389). Secondly, regarding the insurance binder issue, “[a] binder is a contract of insurance, albeit a temporary, sketchy, and informal contract, which is intended to give temporary protection pending the investigation of the risk by the insurer or until issuance of a formal policy. [Cit.] The binder is an independent contract, separate and distinct from the permanent policy which may be issued on the basis of the written application.” (Emphasis supplied.) Sawyer v. C & S Nat. Bank, 164 Ga. App. 177, 181 (296 SE2d 134); see generally Jenkins & Darroch, Ga. Auto. Ins. Law, § 3-1. A binder “ ‘ “is not a mere offer, but itself a contract — temporary, sketchy, and informal, but a contract notwithstanding.” ’ ” Cincinnati Ins. Co. v. Stuart, 139 Ga. App. 80, 82 (227 SE2d 771). A binder can be oral or written, OCGA § 33-24-33; Ray v. Ga. Farm &c. Ins. Co., 176 Ga. App. 776, 778 (337 SE2d 779), and “ ‘[t]he language or conduct necessary to create the contract is simply that which is enough to show that there has been a meeting of the minds.’ ” Ray, supra at 778. Thus, a receipt for premiums may in certain circumstances constitute a binder, provided that the attendant circumstances would lead a reasonable person to conclude such was the parties’ intention. Greene v. Commercial Union Ins. Co., 136 Ga. App. 346 (221 SE2d 479); Ga. Auto. Ins. Law, supra.

Applying the legal principles above discussed to the facts of this case, we find that the trial court did not err. No genuine issue of material fact exists either as to the existence of a valid contract of insurance or as to the existence of a binder at the time of appellant’s collision. The facts show that there was no meeting of the minds as to these matters, even though an advance payment of premium was made.

We are mindful of Abraham Peterson’s testimony that some unknown person informed him that he had insurance coverage apparently before the date of the collision. Giving appellant the benefit of every favorable inference from this testimony, we still conclude that no genuine issue of material fact arises. No inference can be drawn that the person with whom appellant conversed by phone had any particular position of general or limited authority with appellee insurance company. Moreover, even the most favorable inferences to be drawn from appellant Abraham Peterson’s testimony would not establish that the person with whom he talked had the specific authority either to issue an oral binder or to approve his pending insurance application by verbal assurances. See Karp, supra at 694. Further, the affidavit of the Muscogee County Tax Commissioner and the notation on the insurance application of “Approved by Tim Gramig on 8-15-86” do not raise a genuine issue of material fact. Tim Gramig appears to have held some position in “Personal Underwriting” with the Liberty Mutual Insurance Company. However, no inference can be drawn that Tim Gramig had the authority either to issue a valid oral binder or to approve and accept the application (offer) of insurance. Id. Additionally, we note that the alleged approval apparently occurred on August 15, 1986 (8-15-86), whereas the evidence in this record conclusively establishes that the application (offer) of insurance was not signed and tendered until August 18, 1986.

Decided September 15, 1988.

David L. Hirsch, for appellants

Ray L. Allison, for appellee.

Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and “while there may be some ‘shadowy semblance of an issue’ [cit.], the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795); Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (314 SE2d 241). We are satisfied that the appellee has met the requisite tests required for the issuance of summary judgment to a movant defendant.

Judgment affirmed.

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


text:
    77048.
    RYAN v. THE STATE.
    (373 SE2d 262)
   Sognier, Judge.

Steven Dennis Ryan was found guilty of burglary and he appeals.

In his sole enumeration of error appellant contends the trial court erred by allowing the State to cross-examine a defense witness, William Christopher Giddens, regarding his jail service without laying a proper foundation for this impeachment evidence. The record reveals that after questioning the defense witness about having painted the victim’s home in late August, appellant’s counsel noted that the victim had testified that he (the victim) had not seen the witness after September until New Year’s Day. Appellant’s counsel then asked the witness whether he had “a particular reason to go somewhere” during that period, to which he replied negatively. On cross-examination, the assistant district attorney specifically referred to the question asked by appellant’s attorney and then elicited information that during the period of time in issue, the defense witness had spent two months in the Fayette County Jail, six weeks in the Gwinnett County Jail, and one week in the Forest Park Jail.

“A review of the transcript reveals that defense counsel opened the door to this line of questioning during his cross-examination of the witness. The prosee [u]tion merely followed up on the issues injected by [appellant]. Since defendant first opened the door to this line of questioning, he cannot now complain. [Cits.]” Smith v. State, 258 Ga. 181, 182 (1) (366 SE2d 763) (1988). Thus, the trial court did not err by overruling appellant’s foundation objection and admitting this evidence.

Decided September 15, 1988.

James W. Studdard, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76696.
    HOWELL v. THE STATE.
    (373 SE2d 216)
   Sognier, Judge.

Deborah Howell appeals from her conviction of theft by taking of a purse.

1. Appellant contends the evidence was insufficient to support her conviction. The evidence adduced at trial revealed that Henry Taylor, the floor manager of the nightclub where appellant was a customer, was apprised by Hope Henderson, a co-employee, that she thought appellant was stealing purses. Taylor testified he observed appellant reach under a desk at the front of the nightclub where employees and regular customers kept their purses, but when Henderson called out to appellant that it was her (Henderson’s) purse, appellant straightened up, waved a cap that was under the desk, then returned the cap before walking back into the nightclub. Taylor had Henderson contact the police. Upon their arrival, Taylor testified he asked appellant to come to the front of the club to talk to the police. Taylor stated that while appellant was carrying a purse on her arm or shoulder when he approached her, when he spoke to ask her to come speak to the police she let the purse drop straight to the floor. Taylor stated appellant then walked to the front and that he retrieved the purse and delivered it to the police. The name on the driver’s license in the purse was that of Marsha Carlton, who responded when Taylor announced her name over the sound system at the nightclub and identified the purse as her own. Carlton testified she had placed the purse underneath the table she was sharing with some friends before she left to go dancing; her friends left the table shortly thereafter to visit the rest room facilities. Carlton stated it was at most 15 minutes between the time she had last seen her purse before she heard Taylor announcing her name over the club intercom. She also testified that her table was in the middle of the nightclub and that no one was seated at the tables nearby.

Appellant testified that she picked up Carlton’s purse, mistaking it for her own, after stopping to chat with friends at a table in the middle of the room and that she told the bartender about it when she discovered the mistake. She stated that Taylor startled her by grabbing her arm when he asked her to walk to the front and that caused her to drop the purse, but that it was she, not Taylor, who picked the purse off the floor. She testified that she then handed the purse to Taylor and walked to the front to talk to the police.

The weight of the evidence and credibility of witnesses are questions for the jury. Davis v. State, 180 Ga. App. 299, 300 (1) (349 SE2d 29) (1986). Although appellant argues the State failed to prove she acted with the intent necessary to constitute theft by taking under OCGA § 16-8-2, “whether or not mens rea, the specific intent to do an unlawful act, exists, is a question of fact. ‘The question of criminal intent is for the jury and not for the court.’ [Cit.]” Jerome v. State, 143 Ga. App. 649 (239 SE2d 541) (1977). The evidence presented at trial, when viewed in a light favorable to the prosecution, was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt. Freeman v. State, 184 Ga. App. 678, 681 (6) (362 SE2d 413) (1987). We thus find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends Taylor’s testimony regarding what Henderson told him was hearsay evidence, the admission of which constituted reversible error. The record reveals that the trial court overruled appellant’s hearsay objection to Taylor’s testimony regarding the initial conversation he had with Henderson on the basis that the testimony was submitted to explain Taylor’s subsequent conduct in observing appellant and directing that the police be contacted. OCGA § 24-3-2. At the request of appellant’s counsel, the trial court thereafter instructed the jury that “[n]ormally we do not allow one person to testify what another person said, because that’s usually not the best evidence. There is an exception to that rule in which we will allow that testimony, and that is if one person hears something from someone else and does something based on what that person heard the other person say, then that is used to explain that person’s conduct, the person that is testifying, so we allow that testimony to explain the conduct, but it does not go to the truth of what the other person said.”

Decided September 6, 1988

Rehearing denied September 16, 1988

Verna L. Smith, for appellant.

Carl A. Veline, Jr., Solicitor, James F. Garnett, Assistant Solicitor, for appellee.

Following the trial court’s curative instruction, appellant made no objection to Taylor’s testimony upon the ground that its substance was inadmissible hearsay; “instead, it appears appellant was satisfied that the court had cured what was objectionable.” Mullins v. State, 176 Ga. App. 439, 440 (336 SE2d 343) (1985). Although appellant complains now for the first time that the admission of Taylor’s testimony pursuant to the provisions of OCGA § 24-3-2 was improper under Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982) and Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984), the trial court was not asked to rule on that ground and thus there is nothing to review. Mullins, supra; see also Cooper v. State, 188 Ga. App. 297 (372 SE2d 679).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76709.
    LAWHORNE v. HORACE.
    (373 SE2d 263)
   McMurray, Presiding Judge.

Appellant filed an application for removal of an obstruction in a private way pursuant to OCGA § 44-9-59 in the Probate Court of DeKalb County. Upon the denial of his application he appealed directly to this court under the authority of OCGA §§ 15-9-120 and 15-9-123 (a).

The facts presented to the probate court showed that in 1971 Reverend Joe Hughes constructed two homes on two abutting tracts of land. During construction of these houses Hughes sold the tract now owned by appellant to Robert Loden, and he and Loden created a gravel driveway to these houses along what they believed was their mutual boundary line. However, subsequent surveys disclosed that most of the roadbed lay on Hughes’ land. In 1976 Loden transferred his property to Larkin W. Freshour, appellant’s immediate predecessor in title. Freshour testified that he used the driveway with Hughes’ permission, and that maintenance and repairs were shared with the understanding that each would do whatever was necessary for upkeep. In October of 1987 Hughes sold his land to appellee, who expressed some concerns to both Freshour and Hughes about the mutual driveway. Appellee told Freshour, who knew most of the driveway was on appellee’s land, that if Freshour sold his land he would build a fence along the property line. When Freshour sold his property to appellant, appellee had the land surveyed and erected a fence one foot inside his property line thereby denying appellant effective use of the driveway. Appellant initiated proceedings seeking to establish prescriptive title by showing constant and uninterrupted use of the driveway by his predecessors in title for a period of more than seven years. Held:

“ ‘In order to sustain (a proceeding under OCGA § 44-9-59 (a) to remove an obstruction from a private way) it is necessary for the applicant to show that he has been in uninterrupted use of the way for seven years or more, that it does not exceed 20 feet, (OCGA § 44-9-40 (a)) in width, that it is the same number of feet originally appropriated, and that he has kept it open and in repair during such period. (Cits.)’ [Cit.]” Rizer v. Harris, 182 Ga. App. 31 (2), 32 (354 SE2d 660) (1987). While possession ordinarily must be adverse to form prescription, in the case of private ways “ ‘ [t] he use may originate in permission and yet may ripen by prescription.’ [Cit.] ‘When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriber’. [Cit.]” Duncan v. Sluder, 204 Ga. 458, 459 (1) 460 (50 SE2d 78) (1948).

Appellant contends that the facts here met all these tests, and that the probate court erred in concluding that because the repairs made by his predecessors in title were with the consent and aid of the owner they were insufficient to acquire prescriptive title. We do not agree. “The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs.” First Christian Church v. Realty Investment Co., 180 Ga. 35, 39 (178 SE 303) (1934). “Thus, the crux of the requirement for repairs lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner.” Rizer v. Harris, supra at 33. Appellant’s predecessor in title not only testified that he had made no adverse claims as to use of the mutual driveway, but that if necessary he would have put in his own driveway. Any repairs or maintenance he did were done with the consent and approval of the owner, and therefore clearly insufficient as notice of adverse use to acquire any prescriptive right or title to the roadway. It follows that the probate court correctly granted summary judgment in favor of appellee.

Decided September 16, 1988.

Kirby G. Bailey, for appellant.

John M. Hyatt, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76720.
    HENDRIX v. DEPARTMENT OF TRANSPORTATION.
    (373 SE2d 264)
   McMurray, Presiding Judge.

George L. Hendrix appeals from the grant of summary judgment to the Department of Transportation (DOT) in his suit seeking compensation for an alleged inverse condemnation of his land and damage to his business. The undisputed facts before the trial court were as follows:

The property owned by Hendrix on which his business is operated is located on a county road approximately six-tenths of a mile east of a bridge across Horse Creek. Another bridge on this road crosses the Ogeechee River approximately four-tenths of a mile west of the Horse Creek bridge. After DOT notified the county authorities of the dangerous deterioration of these bridges, the two counties involved in their maintenance entered into an agreement to have DOT construct replacement bridges. The county commissions of these respective counties further voted to close the county roads at the bridge approaches from April 1986 until construction of the bridges was complete. The bridge closings and construction did not directly affect access to appellant’s property, nor change the ingress to and egress from his business. However, it did necessitate driving a more circuitous route by adding about 15 miles to reach his property from certain areas west of the Ogeechee River. Once construction is completed and opened to traffic, persons travelling to and from the Hendrix property can use the same routes available before the temporary closings. Held:

Hendrix contends that because DOT negligently or wilfully failed to maintain or replace the bridges he has completely lost his business as a result of the closing of the road; and that it has recently been held that a state agency or county is subject to a claim for damages for the taking of private property without just compensation under theories of trespass, nuisance or inverse condemnation. See, e.g., Dept. of Transp. v. Bonnett, 257 Ga. 189 (358 SE2d 245) (1987). DOT argues that appellant could not recover because the effect of the bridge construction is only a temporary detour in the route of travel to his property from certain locations; that he suffered no special damage different in kind from others on the highway; and that he cannot state a claim in negligence.

We agree with appellant that it is not necessary “that any consequential damage in condemnation must be permanent in order to be compensable. . . . [T]he only proper distinction to be made in cases of temporary takings is the same requirement in force for permanent takings. That is that the consequential damages must be special to the condemnee and not be those suffered by the public in general.” Hillman v. Dept. of Transp., 257 Ga. 338, 339 (359 SE2d 637) (1987). “ ‘ “[0]ne whose right of access from his property to an abutting highway is cut off or substantially interfered with . . . has a special property (right) which entitles him to damages. But if his access is not so terminated or obstructed, if he has the same access to the highway as he did before the closing, his damage is not special, but is of the same kind, although it may be greater in degree, as that of the general public, and he has lost no property right for which he is entitled to compensation.” ’ [Cit.]” Metro. Atlanta Rapid Transit Auth. v. Fountain, 256 Ga. 732, 733 (352 SE2d 781) (1987). Accord Dept. of Transp. v. Katz, 169 Ga. App. 310, 311 (2) (312 SE2d 635) (1983). Likewise, “greater difficulty in ingress and egress which is occasioned by a change in traffic patterns is not an appropriate item of damages in proceedings such as this. [Cits.]” Dept. of Transp. v. Coley, 184 Ga. App. 206, 208 (1) (360 SE2d 924) (1987). See generally Dept. of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984). Appellant has alleged only that he suffered damage to a greater degree than that of others affected by the bridge closings, which does not entitle him to compensation.

Appellant’s negligence claims against DOT are equally unavailing. “An action for the value of private property taken or damaged for a public purpose is not, in the ordinary parlance, either a tort or a contract; it is simply a constitutional right which the citizen may not be denied. [Cits.]” C. F. I. Constr. Co. v. Bd. of Regents, 145 Ga. App. 471, 476 (3) (243 SE2d 700) (1978); cert. dismissed, 242 Ga. 96 (249 SE2d 613) (1978). Furthermore, even assuming DOT had any duty to maintain the bridges as a part of the county road system (see OCGA §§ 32-2-2; 32-4-41), a negligence claim against it would be barred by the doctrine of sovereign immunity unless waived to the extent of liability insurance coverage. However, “[s]ince a waiver depends upon the presence of a claim in the action for which liability insurance protection has been provided, if no employee is made a party defendant there will be no waiver as to DOT.” Price v. Dept. of Transp., 257 Ga. 535, 537-538 (361 SE2d 146) (1987). Since no individual employees of DOT were named in his suit, appellant could recover from DOT, if at all, only from his inverse condemnation action based on Art. I, Sec. Ill, Par. I of the Constitution of the State of Georgia. Powell v. Ledbetter Bros., 251 Ga. 649, 650 (2) (307 SE2d 663) (1983). Having failed to show any special damage to his property or a taking of his access thereto, summary judgment in favor of DOT was proper.

Decided September 16, 1988.

John G. Hunter, for appellant.

Michael J. Bowers, Attorney General, Sharon A. Gay, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.