text:
    77220.
    ANDERSON v. CHATHAM.
    (379 SE2d 793)
   Beasley, Judge.

Defendant Anderson appeals the judgment entered on an adverse jury verdict and the denial of his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial in this suit stemming from Chatham’s termination of employment.

The litigation has a lengthy procedural history. In September 1984, Anderson terminated Chatham. The following month, Chatham made a written demand for certain bonuses, vacation pay, and pension and profit sharing funds which she claimed she was due. The demand was not successful and Chatham sued. Anderson acknowledged service of Chatham’s complaint on January 30, 1985 and Chat-ham filed her complaint along with the acknowledgment in the State Court of Fulton County on February 11.

On February 28, Anderson filed a motion to dismiss the suit alleging that he had never in an individual capacity employed Chatham and therefore his acknowledgment of service in his individual capacity was insufficient to confer jurisdiction over the proper party defendant in the case. Anderson supported the motion with his own supplemented affidavit stating that he had not personally employed Chatham and that her employment had been successively with Industrial Properties Group, Anderson/Buckner Company, and Anderson Properties, Inc. Chatham moved for leave to amend the complaint to add the businesses as defendants.

The motion to dismiss was denied and the motion to add the parties was granted. Chatham filed an amended complaint adding Anderson Properties, Inc., and Gene Anderson Company as defendants. On May 31, prior to the businesses’ acknowledgment of service, they filed suit against Chatham in the Superior Court of Gwinnett County alleging that she negligently failed to properly and reasonably perform her employment duties, made fraudulent misrepresentations about her prior job experience and ability to handle the position for which she was hired, and possessed and used certain personalty without authority. They requested damages and temporary and permanent injunctive relief.

On June 10, Chatham requested that the Gwinnett suit be dismissed without prejudice and that the corporate defendants’ claims be filed as counterclaims in her Fulton County suit where they had already been added as defendants. The corporations refused and Chatham answered the complaint and counterclaimed. The corporations maintained that their cause of action against Chatham was a separate matter notwithstanding their addition to the Fulton suit. They offered to consent to a voluntary dismissal without prejudice of those claims to permit them to be raised as compulsory counterclaims in the Gwinnett Superior Court so that the litigation of the two separate causes of action would proceed. The corporations also maintained that a superior court was necessary to adjudicate their equitable claims. After Chatham was served in Gwinnett, Anderson’s counsel accepted service of the two amended complaints for the corporations in the State Court of Fulton County action and the corporations subsequently answered that suit.

The corporations then moved to dismiss for lack of jurisdiction pursuant to OCGA § 9-11-12 (b) on the grounds that any claim that Chatham may have against them had been asserted as compulsory counterclaims in the Gwinnett suit. Gene Anderson Company, Inc., also asserted that Chatham had failed to obtain a court order permitting the amendment to her complaint to state a claim against it in violation of OCGA § 9-11-21. Those motions were denied by the Fulton court on September 13.

On September 23, Anderson and his corporations moved to transfer the Fulton State Court case to the Superior Court of Gwinnett County on the grounds that the answers and counterclaims of the corporate defendants raised equitable defenses and claims for equitable relief over which the state court lacked subject matter jurisdiction. On September 27, Chatham moved for summary judgment as to the corporations’ claim for equitable relief in the Gwinnett County action.

Rather than transfer the Fulton State Court action to Gwinnett, the Fulton State Court transferred the action to the Fulton Superior Court, on November 1. The two corporations then requested that the Gwinnett County case be transferred to the Superior Court of Fulton County for consolidation with the transferred Fulton State Court case.

On May 12, 1986, the Fulton Superior Court granted Chatham’s refiled motion for summary judgment on the equitable claims against her and also directed that the style of the case reflect that Chatham was the plaintiff and that Anderson individually along with Anderson Properties, Inc., and Gene Anderson Company, Inc. were the defendants.

The case was tried in the Superior Court of Fulton County and the jury awarded Chatham $545.85 vacation pay, $2,043.33 from the pension and profit sharing plan, $7,714.92 in bonuses, $13,500 attorney fees, $2,000 for intentional infliction of emotional harm, and $5,000 punitive damages. A special verdict form was submitted to the jury concerning piercing the corporate veil of Anderson’s two corporations. The jury returned its verdict piercing both corporations and holding Anderson personally liable for all amounts. Judgment was entered for Chatham and against Anderson personally for $30,804.10 plus interest at 12 percent and costs.

1. Appellant contends that the trial court erred by entering judgment against him personally in the absence of jurisdiction over his person. He argues that the effect of the trial court’s order of May 12, 1986 was not only to realign the plaintiffs and defendants but also to add him personally as an additional party defendant to that lawsuit, and although the court had the discretion to enter an order on its own initiative to add him as an additional party defendant, this did not dispense with the requirement of serving him with process so as to subject him to the personal jurisdiction of the court.

Anderson personally acknowledged service of the original suit filed by Chatham in the Fulton State Court. The consolidation and transfer of the entire litigation to the Superior Court of Fulton County was accomplished through Anderson’s own actions and those of his corporations.

Even assuming a valid ground for complaint of lack of personal service, such complaint “concern[s] [a] nonamendable [defect] which appear[s], if at all, on the face of the record or pleadings, and thus would be the subject matter of a motion to set aside under OCGA § 9-11-60 (d). Appeals from orders denying such motions to set aside must follow the discretionary appeal procedures pursuant to OCGA § 5-6-35 (a) (8).” State Farm Mut. Auto. Ins. Co. v. Yancey, 188 Ga. App. 8, 9 (1) (A) (371 SE2d 883) (1988). Anderson failed to do so, and the appeal with regard to this issue must be dismissed.

2. Appellant contends that the trial court erred by entering judgment against him personally in the absence of evidence to support the verdict, with respect to piercing the corporate veil.

A substantial portion of the evidence permitting the jury to pierce the corporate veil came from Anderson himself. When questioned about an individual financial statement which listed as well certain corporate assets including pension and profit sharing plan money, Anderson testified that he treated all of the assets as his own because he owned all of the stock in both corporations. He also testified that he would give out such a financial statement to certain bankers and investors with whom he was going to have business dealings. His testimony was replete with other examples of his intermingling of business and personal actions and transactions, including admission that he paid certain personal expenditures from corporate accounts because “it’s just a one man operation.”

In addition, Chatham, who at one time kept the books, testified that Anderson had used a number of different corporations to transact business, at one time operating under twelve or thirteen corporations, and that the corporations were used strictly as “wash throughs.” There were no assets in the corporation at the end of the month, so Chatham looked to Anderson individually. She was paid by different corporations, whatever account Anderson was using at the time. Her agreement was that she worked for Anderson personally.

The evidence of Anderson’s disregard of the separateness of the legal business entities by a commingling and confusion of properties, records, control, etc. was sufficient to permit the jury to pierce the corporate veils. Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (4) (250 SE2d 851) (1978).

Anderson also argues that he cannot be personally liable for the corporate obligations because the jury held that the corporations were not responsible for those obligations.

The special verdict form established direct liability on the part of Anderson. It provided for, and the jury expressly found, that Anderson acted in such a manner that he disregarded the separateness of the corporate entities so that he was liable for any judgment rendered in the case against the corporations. Thus, the verdict did not exonerate the corporations but rather established Anderson’s individual liability whether Anderson stood alone or behind the corporations.

Anderson also urges that he is not personally liable for pension and profit sharing benefits due Chatham because the plans were not made parties to the lawsuit, a proper representative was not made a party to the action, and because there was no theory whatsoever presented at trial under which he could be held personally liable for Chatham’s ERISA benefits.

Anderson was the trustee for the plans. Chatham was permitted to bring her action under ERISA in a state court by maintaining her action against a fiduciary of the plans. ERISA, Sec. 502, 29 USC § 1132. As already noted, Anderson personally acknowledged service of the original suit, and any claim of lack of proper service as a party to the final litigation is not properly made in this direct appeal. See Division 1, supra.

Further, there was ample evidence to pierce any corporate veil provided by the plans, and because of this, to hold Anderson personally liable for Chatham’s pension and profit sharing benefits. See Division 1, supra.

In addition, Anderson’s trial counsel implored the jury in closing argument to “bring back a judgment for the plaintiff for the only thing she’s, entitled to, the amount of the pension and profit sharing plan which is held in trust for her in the amount that the accountant for the Plan has said is the proper amount. I believe the [$1,700] and few dollars. And nothing else. $1,739. Period. Nothing else. That’s what she’s entitled to. And that’s what Mr. Anderson on the stand said absolutely, she’s entitled to get that.” Anderson may not now complain about what his own conduct helped bring about. See Price v. Hitchcock, 174 Ga. App. 606, 607 (2) (330 SE2d 807) (1985).

3. Appellant contends that the trial court erred in admitting certain documents which Chatham used to support her claims for bonuses in that the documents contained hearsay for which no proper foundation or exception was established.

First, Chatham’s testimony was not based entirely on the documents but on her personal knowledge of Anderson’s business operations while she was bookkeeper. Second, Anderson’s specific complaints point out no reversible error.

Exhibit 5 was a real estate commission schedule. Chatham testified that it was the general course of business to prepare such after a real estate transaction closed, that as bookkeeper she in fact prepared the schedule, that she had personal knowledge of the numbers in the document, and that she used the closing statements in the office at that time to prepare it. There was evidence that the document was prepared during Chatham’s employment and not afterwards in preparation for trial. The document was admissible as a business record. OCGA § 24-3-14; see Suarez v. Suarez, 257 Ga. 102, 103 (2) (355 SE2d 649) (1987).

Exhibit 6 was a memorandum from Anderson regarding a contemplated business transaction from which Chatham claimed she was due a bonus. Chatham typed the document during her employment as bookkeeper and had personal knowledge about the transaction. Even if the foundation for the document as a business record was weak, appellant has not shown how he was harmed, especially in light of Chatham’s personal knowledge about the business deal. Without harm, there is no reversible error. Estate of Sam Farkas v. Dougherty County School System, 178 Ga. App. 135 (342 SE2d 501) (1986).

Exhibit 7 was copies of the cash receipts journal for Anderson Properties for a four-month period. Chatham testified that she prepared three months of them as part of her duties as bookkeeper and assisted in the preparation of the fourth. They were admissible under OCGA § 24-3-14.

Exhibits 8 and 9 were commission split documents. A proper foundation for these documents to be admitted as business records was not laid. However, Chatham’s testimony regarding the information in these documents came from her personal knowledge. Appellant has not demonstrated how he was harmed by the jury’s consideration of them.

4. Appellant contends that the court erred by entering judgment for a bonus in the absence of evidence to support the amount awarded, that it was based solely on inadmissible hearsay, that Chat-ham failed to establish the expenses to be reimbursed in connection with the gross commissions upon which she claimed a bonus, and that the judgment for a bonus was based upon improper conjecture and guessing.

The evidence concerning the amount of bonus due was not based solely on inadmissible hearsay. Division 3, supra.

Appellant’s claim that Chatham failed to establish the expenses to be reimbursed in connection with the gross commissions upon which she claimed a bonus is not relevant to the recovery of the bonus, because the evidence was that Chatham was to get a percentage of gross commission, not gross commission less reimbursed expenses. Anderson’s original handwritten proposal to Chatham states there would be a bonus of 1 percent of gross commission earned up to $1,000,000; thereafter, it would be Vz percent of gross commission. Chatham’s memorandum in response restates the agreement as 1 percent of all gross commissions, management fees and consulting fees. The second sentence in the response memorandum makes clear that funds received by Anderson which were reimbursement of expenses and outside investment income were not to be treated as gross receipts in calculating gross commissions. Chatham was paid two bonuses under the agreement. Both were based on gross commissions.

The bonus was not based upon improper conjecture and guessing. Regarding the real estate transaction underlying the bonus, Chatham testified that her 1 percent bonus would be $1,804.58. She further contended she would be owed that entire amount even though a portion was to be received in the future because Anderson drafted the agreement, and that there was nothing said or in the agreement that allowed Anderson to defer his commissions and therefore defer her bonus. She also testified that it would be fair to discount the figure to present value and that a fair discounted amount would be $1,600. See Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 738 (3) (320 SE2d 863) (1984). Although expert testimony would not be required to establish the value of the bonus, OCGA § 24-9-65; see Maddox v. State, 157 Ga. App. 696, 697 (278 SE2d 480) (1981), Chatham was not without such expertise. She had functioned as a bookkeeper and by Anderson’s own testimony was “a very intelligent person and extremely competent.”

Chatham was not required to prove her damages in exact figures. National Refrigerator & Co. v. Parmalee, 9 Ga. App. 725, 726 (1) (72 SE 191) (1911). The jury’s determination in regard to the bonus, see OCGA § 51-12-12, was within the range of testimony and evidence. See Hubacher v. Volkswagen Central, 164 Ga. App. 791, 795 (4) (298 SE2d 533) (1982).

5. Appellant contends the court erred by entering judgment for vacation pay in the absence of evidence to establish the specific terms regarding accrual procedures for vacation pay.

Chatham testified that when she began work in December 1980, the vacation pay was established and she would receive two weeks pay after a year. She took one week of vacation in 1984 and requested her additional week from Anderson for the first week of October. Anderson approved the vacation, but Chatham was terminated in September. She testified that she was entitled to $461.54.

This enumeration is without merit.

6. Appellant contends that the trial court erred by entering judgment for pension and profit sharing benefits in the absence of jurisdiction over the plans. For the reasons discussed in Division 2, this enumeration is without merit.

7. Appellant also attacks the judgment for pension and profit sharing benefits on the absence of evidence to support the amount awarded. He argues that in any benefits paid pursuant to the plans, the plans’ assets had to be valued at fair market value as of each allocation date, i.e., the last day of each plan year; that if an employee is terminated the termination date was the applicable allocation date; that Chatham was terminated on September 27, 1984, and that the valuation of assets in the plans used to calculate the benefits claimed by Chatham was done in May 1983 and again in December 1983, so that the relied upon valuations were not performed in accordance with the plans’ provisions.

The flaw in this is that the evidence showed that effective June 1, 1983, Chatham notified Anderson that she elected not to participate in the pension and profit sharing plan. This was the correct time frame upon which to base calculation of amounts due her. Moreover, when Chatham was terminated, Anderson’s accountant and drafter of the plan directed Anderson to write Chatham a check for $1,739 as Chatham’s vested interest.

This enumeration is without merit.

8. Appellant contends that the court erred by entering judgment for intentional infliction of emotional distress in the absence of evidence. He maintains that Chatham failed to establish a cause of action for this and failed to establish any damages that were the proximate result of any such tort.

Chatham worked for Anderson for four years prior to her termination. She thought Anderson could be very emotional, very vindictive, and very cruel when angry. During the end of her employment, Chatham felt that Anderson was very inconsiderate, very rude, very temperamental, and very emotional.

Chatham claimed that Anderson threatened her and intentionally and wilfully inflicted emotional harm upon her in an encounter at her termination. He told her to “just get your stuff and leave , . . don’t try to sue me ... if you have any thoughts about trying to sue me, . . . you’re going to be playing with the big boys and you’re going to be sorry . . . you either take what I’m offering you and give up the rights to the bonuses and everything else, or you leave . . . you better not look to me for any kind of reference or you’ll be sorry.”

Chatham had an ulcer at the time. She was very upset by the encounter, did not sleep well for a few nights, vomited, and took medication for the ulcer and for nerves. Chatham was aware of Anderson’s considerable business holdings and was very apprehensive when she went back out into the job market.

“It is a well-established general rule in this state that in order to sustain a cause of action for the tort of intentional infliction of emotional distress, the defendant’s actions must have been so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff. [Cits.] However, our courts have also recognized that ‘there is authority to sanction a recovery in tort where the defendant has wilfully and wantonly caused emotional upset to the plaintiff through the use of abusive or obscene language.’ [Cits.] . . . [T]his cause of action grounded on wilful or wanton conduct does not give rise to any new type of tort heretofore unrecognized, rather it is but a practical application of the well-reasoned tort principle, . . . that ‘reckless and wanton disregard of consequences may evince an intention to inflict injury.’ Thus, as in the case of severe mental distress caused by intentional infliction of injury, “ “‘a reckless disregard of the rights of others, equivalent to an intentional tort [committed] by the defendant” ’ ” will give rise to a cause of action to the injured party for the mental pain and anguish, that is, the mental distress, suffered therefrom .... to sustain a cause of action for the emotional distress tort of wilfully and wantonly causing emotional distress through the use of abusive or obscene language, the defendant’s conduct must have been so abusive or obscene as naturally to humiliate, embarass, frighten, or extremely outrage the plaintiff. [Cit.] . . .

“In order to warrant recovery under either theory, the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness. [Cits.]” Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 225 (369 SE2d 541) (1988).

While the objected-to language might not, taken in isolation, rise to a level of conduct actionable under the law for emotional distress, viewing the encounter with Anderson in the totality of the circumstances does not show a failure of the cause of action as a matter of law. The last encounter came after a described pattern of abusive behavior after the two had had a lengthy working relationship. Moreover, “the existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist. [Cit.] ...

“The severity of the emotional distress allegedly produced by the conduct is also a factor in determining liability for this tort. [Cit.]” Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (335 SE2d 445) (1985) discussing Comment f, § 46 (1) of the Restatement (2d) of Torts, Ch. 2, Emotional Distress (1965).

Such a threatening encounter within the context of the special relationship of employer-employee would naturally give rise to intense feelings so as to cause severe emotional distress^ See Greer v. Medders, 176 Ga. App. 408 (336 SE2d 328) (1985), which considers the tort in the context of statements made by a physician to a postoperative patient and his wife. In addition, contrary to appellant’s assertion that because Chatham stated she had an existing ulcer at the time of the incident she suffered no direct damages as a result of the conversation, Chatham experienced other significant physical manifestations directly resulting from the incident.

The trial court did not err in permitting the jury to consider Chatham’s damages for emotional distress and in entering judgment on the jury’s determination that Anderson’s conduct constituted the tort.

9. Appellant contends that the court erred by charging the jury on intentional infliction of emotional distress because of lack of evidence and failure to instruct on the elements.

Chatham did not fail as a matter of law to submit evidence of the tort. See Division 8, supra.

There is no indication that Anderson initially requested a more detailed or elaborate instruction on the elements of the tort; he objected to any instruction in this regard whatsoever. See Department of Transp. v. Lewyn, 168 Ga. App. 283, 290 (9) (308 SE2d 684) (1983). Following the court’s charge, his only objection to this instruction was that there had to be some “actual damage before you can recover for emotional damage.” “It is well settled that on appeal the ground of the objection stated below ‘cannot be enlarged ... to include grounds not urged before the trial court.’ [Cits.]” Gurin v. Gen. Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830) (1984).

If by “actual damage” appellant means physical injury or impact, that is not required when the conduct at issue is wilful or intentional. See Tuggle v. Wilson, 248 Ga. 335, 337 (2) (282 SE2d 110) (1981).

10. Appellant contends the court erred by entering judgment for punitive damages in the absence of evidence. He maintains that neither the verdict nor the judgment specified whether this award was based on the distress claim or on aggravating circumstances in breach of contract, and that there was no evidence to support the tort.

The special verdict form made clear that the jury could find that Chatham was entitled to an award of exemplary or punitive damages if it found that plaintiff was entitled to recover against Anderson in tort for any intentional infliction of emotional harm. There was no question upon what basis the jury awarded punitive damages. This, coupled with the evidence of the tort, see Division 8, supports the judgment for punitive damages.

11. Appellant contends that the trial court erred by entering judgment for attorney fees incurred or earned in connection with lawsuits other than the one before the trial court, of which there was evidence in the nature of time records.

The original complaint in Fulton State Court was part and parcel of the entire litigation on trial, justifying attorney fees incurred during that stage as no less recoverable than those incurred at other times in the dispute resolution.

12. Appellant contends that the court erred by entering judgment for attorney fees because there existed a bona fide controversy. In considering the propriety of an award of attorney fees under OCGA § 13-6-11, the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense. Ken-Mar Constr. Co. v. Bowen, 245 Ga. 676 (266 SE2d 796) (1980).

We cannot say as a matter of law that Anderson had a reasonable defense. Moreover, there was evidence of Anderson’s bad faith in entering into and performing under the agreement with Chatham.

13. For the same reasons, appellant’s contention that the court erred in charging the jury on attorney fees because there was a bona fide controversy and a lack of evidence with respect to any degree of bad faith or stubborn litigiousness, fails.

14. Appellant enumerates as error the exclusion of memoranda between Chatham and himself. He urges these documents in aid of his defense on the issues of the existence of a bona fide controversy regarding Chatham’s job performance and whether the corporate veils should be pierced. He claims the memoranda showed his dissatisfaction with Chatham’s job performance, corroborated other testimony regarding Chatham’s poor attitude toward her job, and showed that although it was customary practice for them to communicate with each other informally, Chatham clearly understood that the communications from him were in his capacity as an officer of the two corporations rather than in his personal capacity.

The documents were not relevant to the issues on trial. It was undisputed that Chatham was an employee at will and that wrongful termination was not an issue. The benefits Chatham claimed were not dependent per se on the quality of work performance. Furthermore, the subject documents did not reflect on Chatham’s job performance in such a manner as to bear on Anderson’s claims against Chatham. Nor do they demonstrate a separateness of Anderson and his corporations so as to weigh against a piercing of the corporate veils.

In any event, Anderson testified that Chatham’s job performance was positive. He also had full opportunity to testify about the functioning of his businesses. See Division 2, supra. Therefore, he could not have been harmed by the exclusion of the documents. See Hall v. Rome Auto. Co., 181 Ga. App. 621, 623 (2) (d) (353 SE2d 542) (1987).

15. Appellant contends that the court erred by entering judgment for post judgment interest on a verdict amount that included both principal and prejudgment interests and that this court should require renouncement of all post judgment interest or should set aside the judgment as error.

The prejudgment interest can readily be calculated from the record. The jury awarded Chatham interest on the sums she requested. Of the total $30,804.10 awarded, the maximum amount of included prejudgment interest would be $1,537.67. Any irregularity in this regard in the judgment shall be corrected by amendment by the trial court so that the judgment will reflect that only the principal sum will bear post judgment interest; otherwise the judgment is reversed. See Bank of Tupelo v. Collier, 192 Ga. 409 (1) (15 SE2d 499) (1941).

16. Appellant contends that the trial court committed reversible error in failing to give his request to charge the provisions of OCGA § 13-6-10, which states, “[u]nless otherwise provided by law, exemplary damages shall never be allowed in cases arising on contracts.”

The special verdict form makes it plain that the award of punitive damages was based on the finding of tortious conduct. See Division 10, supra. There was evidence of wilful misconduct surrounding any breach which would support the punitive award. Speir Ins. Agency v. Lee, 158 Ga. App. 512, 514 (3) (281 SE2d 279) (1981).

17. Lastly, relying upon his previous contentions, appellant enumerates that the trial court erred by denying defendants’ motion for directed verdict and motion for judgment notwithstanding the verdict. For the reasons given in the preceding divisions, the court did not err in these regards.

Decided March 2, 1989.

Elrod & Thompson, Randall A. Constantine, for appellant.

Ezra B. Jones III, for appellee.

18. Appellee’s request for imposition of 10 percent damages for frivolous appeal, see OCGA § 5-6-6, is denied.

Appeal dismissed in part and judgment affirmed with direction.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    77318.
    TERRY v. THE STATE.
    (379 SE2d 604)
   Sognier, Judge.

Odis Terry and Gregory H. Powell were tried jointly on charges of possession of cocaine with intent to distribute. The arresting officer, Sergeant Joe Smith, testified at trial that he came upon Terry and Powell sitting hunched over in the front seat of a parked car. Upon observing in plain view two small white rocks, which he believed to be rock cocaine, and certain paraphernalia he knew was used with rock cocaine, Smith arrested both men. Terry was convicted of possession with intent to distribute while Powell was convicted of possession, and Terry filed this appeal.

1. Appellant first enumerates as error the trial court’s failure to grant his motion to sever made after the court refused to allow appellant to impeach Powell with evidence of prior convictions. The record discloses that Powell testified on his own behalf at trial, and denied any prior knowledge of the drugs and drug paraphernalia that Sergeant Smith had stated he found in the car in which appellant and Powell were seated. Powell also stated that he was outside the car when the officer approached, although he admitted being the driver. Appellant then made an offer of proof regarding Powell’s prior criminal record, but the trial judge refused to allow appellant to question Powell regarding the convictions on the ground that to do so would violate Powell’s right to a fair trial. At that point appellant renewed his motion to sever (which he had previously made but withdrawn), and the trial court denied the motion.

Whether or not a motion for severance should be granted rests in the sound discretion of the trial court, but severance should be granted “before or during the trial whenever it appears ‘necessary to achieve a fair determination of the guilt or innocence of a defendant.’ [Cit.]” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). When deciding a motion to sever, the court must consider whether the number of defendants will create confusion of the evidence and law applicable to each, the risk that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court, and whether the defenses of the defendants are antagonistic to each other or to each other’s rights. Id. Further, the court must determine whether the failure to sever will lead to prejudice resulting in a denial of due process. House v. State, 170 Ga. App. 88, 90 (4) (316 SE2d 483) (1984).

In the case at bar, appellant contends Powell’s testimony was antagonistic to appellant’s defense because it conflicted with appellant’s argument that both defendants were in joint possession of the cocaine and thus appellant was sharing the drugs with Powell and the other witness rather than selling to them. However, as appellant did not testify at trial and presented no evidence in his defense, there is no evidence in the record before us that indicates his defense was antagonistic to that of Powell. See Rampley v. State, 166 Ga. App. 521, 523 (2) (304 SE2d 574) (1983);. compare Price v. State, 155 Ga. App. 206 (1) (270 SE2d 203) (1980), rev’d on other grounds, 247 Ga. 58 (273 SE2d 854) (1981). Appellant does not contend, nor does our review of the record cause us to conclude, that any confusion of the evidence and law was created, or that there was a risk that evidence admissible only against Powell was considered by the jury against appellant. Accordingly, we find no abuse of discretion in the trial court’s denial of appellant’s motion to sever. See Rampley, supra at 523 (2). We note that while the trial court’s ruling precluding appellant from introducing evidence of Powell’s prior criminal conviction may have denied appellant his right to a thorough cross-examination, see Lingerfelt v. State, 235 Ga. 139, 140 (218 SE2d 752) (1975), that objection was not made below, nor was the ruling enumerated as error, and thus we cannot consider it. See Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987).

2. Appellant contends the trial court erred by refusing to allow him to cross-examine Sergeant Smith regarding a prior inconsistent statement. At trial Sergeant Smith testified that the evidence showed the defendants possessed cocaine with intent to distribute, whereas the criminal warrant sworn to by Smith charged appellant with possession only. A witness may be impeached by previous contradictory statements, OCGA § 24-9-83; Buffington v. State, 171 Ga. App. 919, 921 (3) (321 SE2d 418) (1984), and accordingly we agree with appellant that the trial court should have permitted the question. However, “[t]he burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse. [Cit.]” Steward v. State, 180 Ga. App. 266, 267 (349 SE2d 18) (1986). We find no such error here.

Decided March 2, 1989.

Short & Fowler, Lester M. Castellow, for appellant.

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

3. There was no error in the trial court’s admission into evidence of drug paraphernalia used to smoke rock cocaine found in the possession of a third party who was standing next to the car in which appellant and Powell were sitting when Sergeant Smith arrived. This evidence was admissible to show intent to distribute cocaine, and as part of the circumstances connected with appellant’s arrest. See generally Thompson v. State, 168 Ga. App. 734, 735 (2) (310 SE2d 725) (1983).

Judgment affirmed.

Deen, P. J., concurs. Carley, C. J., concurs in Divisions 1 and 3 and in the judgment.


author: Carley, Chief Judge.

text:
    77656.
    LOVETT v. THE STATE.
    (379 SE2d 606)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of possession of a weapon by an inmate and of aggravatéd assault. He appeals from the judgments of conviction and sentences entered by the trial court on the jury verdicts.

1. The indictments upon which appellant was brought to trial alleged that his unlawful possession of a weapon and his commission of the aggravated assault had occurred on December 29, 1987. At trial, the State sought to introduce into evidence two homemade weapons. The first of these weapons had been found on the evening of December 29, 1987, at the scene of the alleged assault. The second weapon had been found on the morning of December 30, 1987, inside appellant’s mattress. When appellant learned that the State planned to offer both weapons into evidence, he objected and moved for the exclusion of the second weapon based upon the failure of the State to provide proper notice of its intention to use evidence of a similar transaction under Uniform Superior Court Rule 31.1. The trial court overruled appellant’s objection, and both weapons were admitted into evidence. This evidentiary ruling is enumerated as error.

Decided March 2, 1989.

Cramer, Weaver & Edwards, Christopher C. Edwards, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

“An ‘ “indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the . . . period of limitation, including the [date] alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to future prosecution for any offense of the nature charged within the period.” [Cit.]’ [Cit.] The dates alleged in appellant’s indictment[s] were not an essential averment thereof. The . . . similar [act of possessing a weapon] had occurred within the applicable . . . statute of limitation. ‘Thus, the evidence did not fall within the ambit of Rule 31.1 relating to notice of the State’s intention to present evidence of a similar transaction. Rather, it was evidence of the offense charged and admissible. . . .’ [Cit.]” Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987). Accordingly, the trial court did not err in overruling appellant’s objection to admission of both weapons.

2. From our holding in Division 1, it necessarily follows that appellant’s motion for mistrial, based upon the admission of both weapons into evidence, was properly denied.

Judgments affirmed.

Been, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    77814.
    FULMER BROTHERS, INC. et al. v. KERSEY.
    (379 SE2d 607)
   Beasley, Judge.

We granted Fulmer Brothers and its insurer’s application to appeal this workers’ compensation case to consider coverage of drug addiction under the Act.

The present claim was precipitated when Kersey injured his back on March 23, 1987 while strapping down logs on a truck.

In June of 1985, while working for another employer, Kersey had also injured his back, resulting in an operation. He had a second operation in June of 1986, performed by Dr. Downing. He was released to work in October when he began to work for Fulmer. He had settled his workers’ compensation claim against his former employer.

Even prior to his 1985 injury, Kersey had been treated for pain and shoulder problems. He had been given muscle relaxers and pain medication beginning in 1980. He was hospitalized in September 1983 for a “frozen shoulder” and, shortly after being released with prescriptions for muscle relaxers and pain relief, he was readmitted as a drug overdose patient. Dr. Smith, his family physician, advised Kersey at that time to get psychiatric help and warned him about concurrent use of various medications.

The possible drug abuse was noted in 1984 by Dr. Stanley, a neurologist, who had examined his shoulder. He advised at that time that Kersey should only be given Soma compound, a muscle relaxer, at the rate of ten a week.

Throughout 1984 and early 1985, before his first back injury, Kersey continued to be prescribed Soma and Tylenol 3, a class 3 narcotic for mild to moderate pain, as well as Percodan, a class 2 narcotic for moderate to severe pain, Demerol, and others.

Dr. Smith began to realize as early as November 1985 that Kersey was getting too much pain medication and noted it in his medical records. Dr. Smith had by this time become aware that Kersey was also getting pain medication from two other doctors in Augusta. It was Dr. Smith’s opinion that Kersey was abusing these medications in 1985.

The overuse continued through 1986, before as well as after the June back operation, resulting in Dr. Smith’s refusal to give him further medications on October 30, 1986. Dr. Downing, the neurologist, also refused him pain medication on October 29, and told Kersey on November 6 that he would no longer dispense medication because Kersey was obviously abusing it.

Dr. Smith did again prescribe Demerol and Percodan on February 7, 1987 when Kersey presented himself with a “twisted back” and complained of severe pain. He was given Tylenol 3 again on March 7.

After the incident on March 23, 1987, Kersey continued to receive pain medication and muscle relaxers, but the records do not reflect any greater amounts of frequency than before this accident.

The ALJ found that Dr. Downing and Dr. Smith concluded that Kersey had a very low pain threshold and a drug problem* that “[claimant has had a problem with medications going back to at least 1983 ....,” and “that claimant’s medication addiction was aggravated and extended by the medications which he obtained as a result of the March 23, 1987 injury. Also,. . . that claimant’s total disability for work since March 23, 1987 is attributable to his compensable injury.” The ALJ ordered payment of “all other medical expenses which the parties shall agree are reasonable in amount and reasonably required to effect a cure or give relief.”

The Board adopted the findings of the ALJ and the superior court affirmed.

Employer/insurer’s appeals both below and here urge that the superior court erred in affirming the order insofar as it holds that any disability associated with drug abuse is the responsibility of employer/insurer.

“The superior court, when sitting as an appellate body, is ordinarily bound by the ‘any evidence’ standard of review. OCGA § 34-9-105. [Cit.] In this posture, the superior court is not authorized to substitute its judgment for that of the Board, [cits.] and where there is conflicting evidence, then the resolution of discrepancies and the determination of witnesses’ credibility is ordinarily for the ALJ or the Board as finders of fact. [Cit.] Only where there is plain error of fact or an error purely of law is an appellate court authorized to reverse the Board’s award. [Cits.]” Carroll v. Dan River Mills, 169 Ga. App. 558, 562 (313 SE2d 741) (1984).

OCGA § 34-9-1 (4) includes in the definition of “injury” for purposes of workers’ compensation law that “[a]lcoholism or disabilities attributable thereto shall not be deemed to be ‘injury’ or ‘personal injury’ by accident arising out of and in the course of the employment. Drug addiction or disabilities resulting therefrom shall not be deemed to be ‘injury’ or ‘personal injury’ by accident arising out of and in the course of employment except when such addiction was caused by the use of drugs or medicines prescribed for the treatment of the initial injury by an authorized physician.” (Emphasis supplied.)

This case involves a “new injury” as defined in Central State Hosp. v. James, 147 Ga. App. 308, 309 (1) (248 SE2d 678) (1978): “[a] second example is where the claimant sustains a second accident as the result of a specific job-related incident which aggravates a preexisting condition which resulted from a prior accident. In these circumstances the second accident which aggravated the pre-existing condition is a new injury, if the second accident at least partially precipitated the claimant’s disability.” See Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 156 (1) (338 SE2d 742) (1985).

It is only a pre-existing condition which results from a prior accident, however, that is compensable when aggravated by a new injury even when the pre-existing condition is one without restriction as to coverage. Central State, supra; Mutual Savings &c. Ins. Co. v. Pruitt, 178 Ga. App. 476, 478 (343 SE2d 495) (1986).

Employer/insurer does not argue that, for the purposes of this case, drug addiction cannot be such a pre-existing condition. What is argued and what is determinative is the lack of evidence to support the conclusion of the ALJ that the addiction was “caused by the use of drugs or medicines prescribed for the treatment of the initial injury by an authorized physician.”

Decided March 2, 1989.

Adams, Gardner, Ellis, Inglesby & Falligant, James R. Gardner, Christopher E. Klein, for appellants.

E. Neal Little, Jr., William L. Skinner, for appellee.

To cause means to bring about an effect or produce or call forth a resultant action or state. Webster’s Third New Inti. Dictionary, p. 356 (1981).

The evidence is clear and undisputed that claimant was using the drugs to which the ALJ found him addicted as early as 1980. He suffered a drug overdose in 1983 and was found by the ALJ to have a drug problem then. This finding is supported by the record. Kersey was regularly taking the same drugs prescribed for both the 1985 and 1987 injuries through 1984 and 1985 and had had his prescriptions limited by Dr. Smith even before his June 1985 workers’ compensation claim.

The addiction could only be considered a pre-existing condition, if at all, if it was “caused by” the medications prescribed for the first injury. It is not enough that the medication for the first injury “worsened” an already existing addiction, which was further worsened by medication prescribed for the new injury. The legislature was very specific in its allowance of coverage for drug addiction and that coverage cannot be expanded. See Dan River, Inc. v. Shinall, 186 Ga. App. 572, 574 (367 SE2d 846) (1988).

While claimant is correct that no award for drug rehabilitation has yet been made, since the award does appear to include claimant’s drug addiction as part of the total disability which he suffers, it must be reversed.

It is not necessary to consider the remaining enumerations.

Judgment reversed and case remanded for action consistent with this opinion.

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


text:
    77870.
    CENTRAL & SOUTHERN BANK OF GEORGIA v. CRAFT.
    (379 SE2d 432)
   Beasley, Judge.

Central & Southern appeals the judgment entered on the jury’s verdict in favor of Craft in its suit against her for the deficiency on her car, which was repossessed by C & S and sold at private sale. OCGA §§ 11-9-503; 11-9-504; 10-1-36.

Decided March 2, 1989.

J. David McRee, for appellant.

Dallas, Fowler & Wills, Samuel A. Fowler, Jr., for appellee.

C & S enumerates as error two of the general grounds, i.e., that the judgment is contrary to the law and to the evidence. OCGA § 5-6-36 (a); see Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988); Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988).

Craft bought her 1986 Charger in April 1986 from a dealer for $9,884. Her conditional sales contract was then assigned to C & S. In April 1987, Craft notified C & S She could not maintain the payments and during the week before May 1 she returned the car to the dealer. C & S retrieved the car and sent Craft the notice letter required by OCGA § 10-1-36 on May 6, 1987. The car was then sold at private sale on May 28, 1987, bringing $3,900.

C & S argues that the verdict is contrary to law and the evidence because it proved the sale was commercially reasonable. As acknowledged by C & S, “the burden of showing that the disposition of collateral pursuant to [OCGA § 9-11-504] was commercially reasonable rests with the secured party. [Cit.] This burden may not be satisfied without establishing affirmatively that the ‘terms’ of the sale were commercially reasonable. This includes a burden upon the secured party to show that the resale price was the fair and reasonable value of the collateral.” Wagner v. Ford Motor Credit Co., 155 Ga. App. 729, 730 (3) (272 SE2d 500) (1980). What C & S asks is for us to hold as a matter of law that the bank officer’s opinion of the worth of the car was sufficient to legally require a finding in its favor. We cannot. See Farmers Bank, Union Point v. Hubbard, 247 Ga. 431, 437 (276 SE2d 622) (1981); Wagner, supra.

There was also a factual issue as to whether the bank had mailed the notice letter within ten days of the repossession. This was peculiarly a matter for the jury’s determination and the jury may not have reached the issue of commercial reasonableness.

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    77566.
    DIXON v. AMERICAN BUILDINGS COMPANY.
    (379 SE2d 533)
   Birdsong, Judge.

This is an appeal from the judgment awarded against appellant in the amount of $10,028.81, and of the trial court’s denial of appellant’s motions for new trial and for judgment n.o.v.

Appellant was born on February 26, 1965. On March 12, 1981, at the age of sixteen, appellant signed a written dealer agreement with appellee American Buildings Company, and was granted “the non-exclusive right to purchase” appellee’s metal building products and components within a certain dealership territory. The contract was for a one-year period, but contained an automatic renewal provision that was subject to a detailed termination clause. It appears that the appellant entered the agreement pursuant to the directions of his father. Appellant’s dealership application was accompanied by a check for a dealer kit reflecting that it was a Fayette Construction Company check, bearing the signature of “A. Boyd Dixon [appellant’s mother] by Carroll Dixon [appellant’s father].” Appellee granted appellant’s dealership application believing that they were doing business with appellant and unaware of his age.

During the terms of the dealership agreement, appellant received a total of two orders from the Harrison Construction Company. In April 1982, appellee received a purchase order from the Harrison Construction Company as builder, signed by appellant’s father, to ship steel building components to the Glen Marsh job site. Appellee filled this order, and received a check from the Harrison Construction Company, signed by appellant’s father, which was returned by the bank due to insufficient funds. Although Glen Marsh paid the Harrison Construction Company on May 18, 1982, and the Glen Marsh check was deposited in the construction company’s bank account, appellee never was paid for the materials on this account. Appellant’s father currently is in bankruptcy. During the period in question, appellant was appellee’s only dealer in the Griffin, Georgia area, so any purchase order it received from that area would of necessity had to have been a Harrison B. Dixon order.

Appellant asserted that he signed the dealership application only at his father’s direction; that he was basically unaware of the construction company’s operation; that he did not participate in the decision to order the building for Marsh; that he would work on job sites on occasion, including the Marsh job site; and that he was not paid by a salary, but was given money by his father as needed. However, appellant’s father judicially admitted that appellant’s signature was on the Harrison Construction Company bank account and appellant could write checks on the company. Moreover, in response to appellee’s request for admissions,'filed pursuant to OCGA § 9-11-36, appellant admitted that he “is indebted to the [appellee] in some amount.”

Appellant reached the age of majority on February 26, 1983. The appellee’s complaint was filed on or about April 4, 1983. Appellant filed his answer to the complaint on May 16, 1983, and did not assert minority as an affirmative defense in these pleadings nor otherwise attempt to renounce any contract with the appellee. On May 30, 1986, appellant executed an affidavit in support of his motion for summary judgment, asserting that he was a minor when he executed all agreements and contracts with appellee, that he received no consideration from the sale of the Marsh building, that the only money he received was when his father paid him on occasion for work done at the building, and that he does not possess and has not retained any consideration received from the contract and agreement in question since becoming eighteen years of age. On April 8, 1986, appellant executed a second affidavit asserting in part that he is Harrison B. Dixon d/b/a Harrison Construction Company, that he is now over age eighteen, and that he “hereby disavows said contracts made while a minor.” On August 18, 1987, a consolidated pretrial order was filed in this case. Appellant’s outline of contentions in this order included “that at the times a contract was entered into, [appellant] was a minor and that he has since disaffirmed said contract and that said contract is now void and unenforceable.” The order listed among the issues for jury determination “[w]hether [appellant] who was a minor at the time of contract was executed has reasonably and seasonably rejected said contract upon reaching his majority.” The order concluded with the following provision: “It is hereby ordered that the foregoing . . . constitutes the PRE-TRIAL ORDER . . . and supersedes the pleadings. ...” The issue of timely repudiation of contract was presented to the jury, and the jury was duly charged regarding this issue. Appellant has not challenged the content of this charge in his enumeration of error.

The jury returned a verdict for the appellee in the amount of $10,028.81, excluding interest. Judgment was entered for appellee. Appellant moved for a judgment n.o.v. and for a new trial. The trial court denied both motions. Held:

1. Appellant asserts that the trial court erred in not ruling that the appellant disaffirmed the contract by filing the pretrial order, as the pretrial order would relate back to appellant’s original answer filed within two months of appellant’s eighteenth birthday and would constitute a seasonable rejection of the contract as a matter of law.

Appellant’s reliance on Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135 (267 SE2d 792) is misplaced as it is distinguishable from the facts before us.

Pretermitting the issue of whether defense of contract disaffirmance raised in the pretrial order caused an implied amendment of the pleadings that would relate back to the date of appellant’s original answer is a question of whether such a procedural result would actually operate to amend the date on which appellant first expressed to appellee an intent to disaffirm the contracts in question. While it is clear that the parties could enter a binding stipulation regarding the date when contract disaffirmance was first attempted, no such stipulation of fact appears in the pretrial order or elsewhere. “The purpose of modern pleading is to facilitate determination of the truth.” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 512 (250 SE2d 424). Construing the pretrial qrder as, in effect, creating an involuntary stipulation of fact on appellee’s part as to the date of appellant’s now-asserted defense of disaffirmance would not comport with this goal. Accordingly, we are satisfied that the appellant apparently first attempted in writing to disavow the contracts in his affidavit of April 8, 1986, and later asserted disaffirmance as a defense in the pretrial order dated August 18, 1987. The trial court denied appellant’s motions for judgment n.o.v. and for a new trial, in part, holding “that raising the defense of infancy for the first time in 1987 is not reasonable.” We will not reverse the correct ruling of a trial court, regardless of the reasons given therefor. Tony v. Pollard, 248 Ga. 86, 88 (281 SE2d 557). Accordingly, we find this enumeration to be without merit.

Decided February 10, 1989

Rehearing denied March 3, 1989

Caldwell, Bridges, Connell & Snow, Don E. Snow, for appellant.

Lamb & Associates, Melody R. Hennick, Steven B. Horowitz, for appellee.

2. Appellant asserts that the evidence failed to show his reaffirmation of the contract in question by the defendant upon his reaching majority and therefore the contract is void.

On appeal, we must construe the evidence most strongly to support both the jury’s verdict and the judgment. Williams v. Perry, 187 Ga. App. 586 (1) (370 SE2d 836), citing McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777). We find that there is ample evidence in the trial record to support the verdict and judgment in this case.

Appellant’s other enumerations of error are without merit.

Judgment affirmed.

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


author: Deen, Presiding Judge. Carley, Chief Judge,

text:
    77594.
    DAY v. THE STATE.
    (379 SE2d 548)
   Deen, Presiding Judge.

Appellant was tried before a jury and found guilty of the offense of distributing an obscene videotape in violation of OCGA § 16-12-80. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates as error the trial court’s denial of his motion for a directed verdict of acquittal. He does not contend that the videotape in question is not obscene. Appellant urges only that the evidence presented at trial did not show that he had the requisite guilty knowledge of the obscene nature and contents of the videotape.

OCGA § 16-12-80 (a) provides in pertinent part that “[a] person commits the offense of distributing obscene materials when he . . . rents ... to any person any obscene material of any description, knowing the obscene nature thereof, . . . provided that the word ‘knowing,’ as used herein, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. . . .”

Whether or not appellant has “knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material” is a question generally for the jury. Underwood v. State, 144 Ga. App. 684, 687 (242 SE2d 339) (1978). The videotape in this case, viz., “The Revealing of Elsie,” was listed in the “mature” category of the Video Catalog listing index. Above and below the subject video were the listings of “Playgirls’ Sexual Secrets” and “Sensual Partners.” The former is described in part as “instruction in techniques to enhance the joy of love making” and the latter in part as “wild romp on an exotic island with a worldly playboy becomes a nightmare when unsuspecting women are whisked off to be sold as slaves.” “In the nature of things, fire is always attended with more or less danger, and is itself a warning to beware.” Allen v. Augusta Factory, 82 Ga. 76, 79 (8 SE 68) (1888).

Appellant was knowledgeable in ordering and stocking videotapes of all kinds. We must not second-guess the jury’s finding regarding the knowledge of facts sufficient to put a reasonable and prudent man on notice of the suspect nature of the videotapes, a fortiori, when that reasonable and prudent man happens to be so knowledgeable on the subject of videotapes. “[J]urors are entitled to use their own common sense as intelligent human beings on many questions,” in particular those concerning “perversion and degeneracy.” Feldschneider v. State, 127 Ga. App. 745, 746, 747 (195 SE2d 184) (1972). We cannot say in this case that the evidence was insufficient to support the verdict.

2. Alleged errors relating to the motion to suppress and the special and general demurrer are without merit. The rental of the tape was by a private individual, and the indictment met the requirements of notice and specificity. See N & N, Inc. v. Veline, 253 Ga. 51 (315 SE2d 908) (1984), Wood v. State, 144 Ga. App. 236 (240 SE2d 743) (1977), and Smith v. State, 130 Ga. App. 390 (203 SE2d 375) (1973).

3. Reference to a statute in the closing argument by the State did not violate the prohibitions of Conklin v. State, 254 Ga. 558 (331 SE2d 532) (1985), nor did the remarks of the trial judge made during closing argument add up to harmful error.

Judgment affirmed.

McMurray, P. J., Birdsong and Pope, JJ., concur. Beasley, J., concurs in judgment only. Parley, P. J., Banke, P. J., Sognier and Benham, JJ., dissent.

Carley, Chief Judge,

dissenting.

In Division 1, the majority finds no merit in the general grounds. In my opinion, the State failed to adduce sufficient evidence to authorize the jury, as the trior of fact, to find appellant guilty beyond a reasonable doubt of the crime of distributing obscene material. Accordingly, appellant’s conviction should be reversed and I must, therefore, respectfully dissent.

A review of the record shows that there was no proof whatsoever that appellant had actual knowledge of the obscene contents of the videotape. The State did show that appellant is the owner of a videotape rental store wherein a wide variety of movies are offered for rental and that he ordered a videotape entitled “The Revealing of Elsie” from a film distributor in Atlanta. All that appeared on the exterior of the videotape, however, was a label which contained the following language: “Private Screenings, The Revealing of Elsie, color/approx. 70 minutes.” Appellant placed the videotape in the adult section of his store and appellant’s employee subsequently rented the videotape to a customer who passed it on to a third-party. The third-party gave the tape to the chief of police, who subsequently gave it to the sheriff’s department. It is undisputed that appellant never viewed the videotape until sometime after his arrest. There being no proof that appellant had actual guilty knowledge, the issue to be resolved is whether the evidence presented at trial would authorize a finding that appellant had constructive guilty knowledge of the obscene contents of “The Revealing of Elsie.” “The applicable test [for constructive knowledge] under [OCGA § 16-12-80] is whether [appellant had] ‘ “knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.” ’ [Cit.]” Underwood v. State, 144 Ga. App. 684, 687 (4) (242 SE2d 339) (1978).

There was no visible indication on the exterior of “The Revealing of Elsie” videotape cassette itself which would have put a reasonable person on notice as to its obscene contents. There was no evidence that the packaging or box in which the videotape had been delivered to appellant from the distributor contained a written description of the contents or “vividly indicate [d] pictorially on the covers what the contents [were].” Hess v. State, 146 Ga. App. 874, 875 (2) (247 SE2d 546) (1978). The title of the videotape was not so salacious as to indicate its obscene nature or contents. Compare Hess v. State, supra; Underwood v. State, supra. The catalogue from which “The Revealing of Elsie” had been ordered by appellant did not contain a summary of the plot. There was evidence that the catalogue did list other “Private Screening” brand videotapes and that, as summarized, those other videotapes had a sexual content. It is this evidence regarding the other videotapes that the majority apparently finds decisive as to appellant’s guilt. In my opinion, however, this evidence is ultimately immaterial and irrelevant to the issue of whether appellant had the requisite constructive knowledge of the obscene nature and character of “The Revealing of Elsie.” The State made no effort to show that any of the other “Private Screening” videotapes listed and summarized in the catalogue were obscene. While there was evidence that the other videotapes were considered to be suitable for a mature rather than a juvenile audience, there is no legal proscription against the distribution of videotapes with actual or constructive knowledge that they contain material which may be suitable only for mature audiences. Material may be suitable for viewing only by adults without being obscene. The law only proscribes the distribution of videotapes with actual or constructive knowledge that they contain obscene material which is unsuitable for viewing by any audience.

Decided February 15, 1989

Rehearing denied March 3, 1989

William H. Mills, for appellant.

Charles M. Ferguson, District Attorney, David H. Moseley, Assistant District Attorney, for appellee.

Construing the evidence most strongly against appellant, the State’s proof was totally insufficient to establish the requisite guilty knowledge of obscenity required to authorize a conviction under OCGA § 16-12-80. The evidence shows only that appellant distributed a videotape in the honest, but mistaken, belief that it had not crossed the line between legitimate entertainment for adults and obscenity. The law, however, only punishes the act of distributing videotapes with actual or constructive knowledge that that line has been crossed. Accordingly, I believe the trial court erred in denying appellant’s motion for a directed verdict of acquittal and I must dissent to the majority’s affirmance of appellant’s conviction.

I am authorized to state that Presiding Judge Banke, Judge Sognier and Judge Benham join in this dissent.


author: Pope, Judge.

text:
    76271.
    CHEROKEE INSURANCE COMPANY et al. v. LEWIS.
    (380 SE2d 93)
    Decided March 3, 1989.

      Brady D. Green, Douglas M. Campbell, for appellants.

      Dennis D. Watson, John W. Davis, Jr., for appellee.
   Pope, Judge.

Our judgment in this case at 187 Ga. App. 628 (371 SE2d 103) (1988) has been reversed by the Supreme Court on certiorari. Lewis v. Cherokee Insurance Co., 258 Ga. 839 (375 SE2d 850) (1989). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    76667.
    WARREN v. AKINS.
    (380 SE2d 93)
    Decided March 3, 1989.

      William J. Neville, Jr., Lovett Bennett, Jr., for appellant.

      Gerald M. Edenfield, Marc M. Bruce, Michael J. Classens, for appellee.
   Pope, Judge.

Our judgment in this case at 188 Ga. App. 602 (373 SE2d 802) (1988) has been reversed by the Supreme Court on certiorari. Akins v. Warren, 258 Ga. 853 (375 SE2d 605) (1989). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    77283.
    SOUTHERN INTERMODAL LOGISTICS, INC. v. SMITH & KELLY COMPANY.
    (379 SE2d 612)
   Sognier, Judge.

Southern Intermodal Logistics, Inc., brought suit against Smith & Kelly Company alleging breach of contract and fraud arising out of a contract for hauling services. The trial court granted summary judgment to Smith & Kelly, and Southern Intermodal appeals.

The record reveals that appellant is engaged in the business of hauling containerized cargo from the ports of Savannah and Charleston to inland destinations. Appellee is an agent for shipping lines, and in that capacity its duties include procuring hauling services for its shipping line customers. William A. Thompson, Jr., appellant’s regional sales manager, testified by deposition that he contacted Kathleen D’Amaral, equipment control manager for appellee, on April 1, 1986 regarding potential business, and they agreed appellant would provide hauling services for Prudential Lines, Inc., between Warner Robins and Charleston. There is no dispute that Prudential was experiencing financial difficulties at the time, that another hauling company, Controlled Distribution Services (CDS), had terminated its operations for Prudential because of nonpayment, and that appellant was aware that appellee was acting solely as an agent for Prudential. Thompson testified that in this initial conversation D’Amaral informed him only that Prudential, like most steamship lines, was slow to pay its bills, and that he would not have accepted the account if he had known that CDS had just cancelled its Prudential contract for nonpayment. D’Amaral, however, testified that she informed Thompson of CDS’s action, and that Prudential’s financial problems were “common knowledge” in the shipping industry.

The evidence further discloses that appellant quickly began having difficulty collecting payment from Prudential. Don R. McGlone, appellant’s marketing director during Spring 1986, stated in his deposition that he met with James J. Flynn, appellee’s equipment manager, to discuss the payment problem, and that although he could not recall specifically whether Flynn told him appellee would pay the account if Prudential failed to do so, he did recall leaving this meeting “feeling assured that [appellee] would pay us or else I think at that time we would have discontinued to handle [Prudential’s] account.” Flynn testified by deposition that he never told McGlone that appellee would satisfy the account if Prudential did not. Subsequently, appellee, on behalf of Prudential, terminated appellant’s contract on May 3, 1986, allegedly for inadequate performance.

1. Appellant contends the trial court erred by granting summary judgment to appellee on the fraud claim, as material questions of fact remain regarding whether appellee wrongfully concealed information concerning Prudential’s financial status from appellant or misled appellant to induce it to agree to haul for Prudential.

“Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. Appellant contends there is a jury question as to whether appellee’s knowledge of Prudential’s status or Thompson’s inquiries of D’Amaral constituted “particular circumstances” giving rise to an obligation to disclose CDS’s prior cancellation. We do not agree. While concealment of material facts may amount to fraud when the concealment is of intrinsic qualities the other party could not discover by the exercise of ordinary care, Woodall v. Orkin Exterminating Co., 175 Ga. App. 83, 84 (332 SE2d 173) (1985), in an arms-length business or contractual relationship there is no obligation to disclose information which is equally available to both parties. Miller v. Clabby, 178 Ga. App. 821, 822-823 (344 SE2d 751) (1986); General Motors &c. Corp. v. Bowen Motors, 167 Ga. App. 463, 466-467 (IB) (306 SE2d 675) (1983). Under such circumstances, actionable fraud cannot be shown unless the plaintiff exercised due'care to discover the fraud. General Motors, supra at 466.

In the instant case, appellee has presented evidence, undisputed by appellant, that Prudential’s financial difficulties were well known in the shipping industry, and that numerous resources were available to provide information concerning the financial status of industry companies. There is also no dispute that appellant’s officials made no inquiries concerning Prudential’s financial status, reviewed no industry publications, and consulted no credit information services. Indeed, Thompso'n admitted that D’Amaral revealed to him that CDS previously had hauled for Prudential and also told him that Prudential was slow to pay its bills, but he did no further investigating. “ ‘[Tjhere is no legal relief afforded when one “blindly relied on the representations of the [other party] as to matters of which he could have informed himself.” ’ [Cits.]” Foremost Ins. Co. v. Southeast Recovery, 175 Ga. App. 794, 796 (3) (334 SE2d 375) (1985). The entire record is devoid of the slightest evidence that appellant exercised any diligence or even ordinary care in ascertaining Prudential’s true status before entering into the hauling agreement. See Nicholson v. Harris, 179 Ga. App. 35, 37 (3) (345 SE2d 63) (1986). Accordingly, we affirm the trial court’s grant of summary judgment to appellee on the fraud claim. See generally Casgar v. C & S Nat. Bank, 188 Ga. App. 234, 235-236 (1) (372 SE2d 815) (1988).

2. Appellant also enumerates as error the trial court’s grant of summary judgment to appellee on the contract claim, contending there is a jury question regarding whether appellee promised to pay Prudential’s outstanding bills, thereby obligating appellee for the debts of its principal.

“[W]here an agent is duly constituted, and names his principal, and contracts in his name, the principal is responsible, and not the agent. [Cit.]” Gibbs v. Car. Portland Cement Co., 50 Ga. App. 229, 230 (2d) (177 SE 760) (1934); see OCGA § 10-6-53. However, an agent, by expressly undertaking to do so, may become liable for the principal’s obligation. OCGA § 10-6-85. Also, we note that oral promises to answer for the debt of another generally are barred by the statute of frauds, see OCGA § 13-5-30 (2), but as appellee neither pleaded that affirmative defense nor offered any proof thereof, it has been waived. See Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 227-228 (1) (119 SE2d 63) (1961).

In the case at bar, there is no dispute that appellee disclosed the identity of its principal, and that appellant understood appellee was acting on behalf of its principal, who would be responsible for paying appellant for its services. Appellant, however, contends a factual question exists as to whether Flynn, in his meeting with McGlone, agreed that appellee would satisfy Prudential’s obligations to appellant if Prudential defaulted. Appellee proffered Flynn’s deposition testimony, in which he stated unequivocally that he never told Mc-Glone appellee would pay Prudential’s debts owed to appellant. In rebuttal, appellant tendered only the deposition of McGlone, in which he “[could] not swear” that Flynn had said appellee would satisfy Prudential’s obligations, could not recall whether Flynn stated appellee would pay Prudential’s bills or merely agreed to ensure that Prudential paid them, and could remember only that he left the meeting “confident that we would receive monies.”

“In passing upon a motion for summary judgment, a finding of fact which may be inferred . . . but is not demanded by circumstantial evidence, has no probative value against positive and unrebutted evidence that no such facts as sought to be inferred do exist. [Cit.]” Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987). Although all evidence adduced on a motion for summary judgment, including the testimony of the respondent, must be construed against the movant, the testimony of either party “is to be construed most strongly against him where it is self-contradictory, vague or equivocal. [Cit.]” Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987). Thus, appellant’s theory, that because McGlone recalled being under the impression that appellant would be paid appellee must have agreed to do so, has no probative value against appellee’s agent’s unequivocal testimony that he never promised to satisfy Prudential’s obligation to appellant. See Kenny, supra.

Appellant having introduced only vague and equivocal testimony, and having produced no evidence conflicting with the positive and direct testimony offered by appellee, we concur with the trial court’s conclusion that no genuine issue of material fact remains as to the breach of contract claim, and accordingly appellee is entitled to judgment as a matter of law. See generally Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 566-567 (307 SE2d 99) (1983).

Judgment affirmed.

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

Decided March 3, 1989.

Ronald C. Crawford, for appellant.

Bouhan, Williams & Levy, Roy E. Paul, for appellee.


author: Birdsong, Judge. Banke, Presiding Judge,

text:
    77739.
    SEGREST et al. v. INTOWN TRUE VALUE HARDWARE, INC.
    (379 SE2d 615)
   Birdsong, Judge.

This is an appeal from the trial court’s judgment denying appellants’ motion for summary judgment, granting appellee’s motion for summary judgment, entry of final judgment against appellants, and denying appellants’ motion for reconsideration.

Appellants filed their motion for summary judgment on March 28, 1988. Appellee filed its motion for summary judgment on April 25, 1988. On May 18, 1988, the trial court denied appellants’ motion for summary judgment and granted appellee’s motion therefor. On June 6, 1988, the trial court entered final judgment against appellants. On June 8, 1988, appellants filed a motion for reconsideration, which was denied by the trial court on July 18, 1988. By order filed June 16, 1988, the trial court granted appellant’s motion for extension of time for filing Notice of Appeal until July 17, 1988. OCGA § 5-6-9. As July 17, 1988 fell on a Sunday, appellant timely filed notice of appeal on Monday, July 18, 1988. See OCGA §§ 1-3-1 (d) (3); 5-6-30. Held:

1. Pursuant to the express statutory provisions of OCGA § 9-11-56 (h), “[a]n order granting summary judgment on any issue or as to any party shall be subject to review by appeal.” “ ‘[T]he party against whom summary judgment was granted may [directly] appeal either after the grant of summary judgment or after the rendition of the final judgment.’ ” Surgent v. Surgent, 153 Ga. App. 100 (264 SE2d 568); compare Mitchell v. Oliver, 254 Ga. 112 (1) (327 SE2d 216) with Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641). As appellant has timely appealed the grant of summary judgment to appellee, OCGA § 9-11-56 (h), this court has jurisdiction over all other enumerations of error duly raised therewith. See generally OCGA § 5-6-34 (d).

Further, in the case sub judice, both parties moved for summary judgment. When both parties move for summary judgment, they are “in essence agreeing that the action was ripe for decision . . .” and cannot change their procedural trial strategy on appeal. Southern Guaranty Ins. Co. v. Goddard, 190 Ga. App. 97 (378 SE2d 130); Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700 (3) (347 SE2d 688); Management Search v. Avon Prods., 166 Ga. App. 262 (1) (304 SE2d 426).

2. Appellants assert that the trial court erred in ruling on appellee’s motion for summary judgment prior to appellants’ being given the opportunity to respond. OCGA § 9-11-56 (c) pertinently provides that motions for summary judgment “shall be served at least 30 days before the time fixed for the hearing.”

An appellant is entitled to the notice provided by statute. Leverich v. Roddenberry Farms, 253 Ga. 414 (321 SE2d 328); see Baker v. Wulf, 173 Ga. App. 674, 675 (327 SE2d 796). The purpose of the so-called 30-day notice is to inform timely “the opposing party ... as to the material relied upon by the movant ... so that [the opposing party] might have sufficient opportunity to prepare his response.” Benton Bros. &c. Co. v. Cotton States &c. Ins. Co., 157 Ga. App. 448 (1) (278 SE2d 40). Once an opposing party has been provided this opportunity, the primary purpose of the waiting period is satisfied.

In Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 623 (351 SE2d 443), it was held that OCGA § 9-11-56 “contemplates but does not mandate a hearing,” and that Rule 6.3 of the Uniform Rules of the Superior Courts (Rules), see 257 Ga. 829, and the statute work consistently. Rule 6.3 “fixes the method parties use to obtain a hearing.” Id. However, under the Rules, “a party opposing a motion has 30 days after service of the motion to file a response. . . . [T]he Rules do not deprive the opposing party of the opportunity to be heard, since he is given 30 days after service of the motion in which to file a response to the motion.” Jacobsen v. Muller, 181 Ga. App. 382 (2) (352 SE2d 604); accord Tandy Computer Leasing v. Smith, 186 Ga. App. 101 (1) (366 SE2d 417); Rules 6.2. Thus, “ ‘[u]nder the Rules, service of a motion on an opposing party serves as notice to that party that the court will take the matter under advisement after 30 days . . . after service of the motion has passed.’ ” (Emphasis supplied.) Id.; Jacobsen, supra at 383. Accordingly, it is “ ‘error to grant a motion for summary judgment without affording the opposite side the time provided or without giving notice or the opportunity to be heard.’ ” (Emphasis supplied.) Dixon v. Midland Ins. Co., 168 Ga. App. 319 (2) (309 SE2d 147); Peoples Fin. Corp. v. Jones, 134 Ga. App. 649, 650 (215 SE2d 711); see Leverich, supra; Ga. Prac. & Proc. (5th ed.), Judgments, § 23-15. And judgment rendered under such conditions is erroneous in the absence of waiver. Ga. Prac. & Proc., supra. “ ‘A respondent is “heard” when he files a response, since “hearing” does not necessitate an oral hearing but “contemplates notice to the respondent that the matter will be heard and taken under advisement as of a certain day. . . .” ’ ” Tandy, supra; Jacobsen, supra at 382-383.

The record reflects that appellants failed to respond to appellee’s motion for summary judgment both prior to the trial court’s order of May 18, 1988, granting summary judgment to the appellee, and prior to the trial court’s final order of June 6, 1988. The final order tacitly republished the trial court’s order granting appellee summary judgment, and expressly awarded monetary judgment in favor of appellee/ plaintiff. Thus, appellants had not responded and, thus were not heard on appellee’s motion prior to the time that the trial court issued its May 18th order before the 30-day waiting period had expired. As this order was entered prematurely and without respondent’s consent or waiver, it constituted error. See Dixon, supra; Peoples, supra; see also Tandy, supra; Jacobsen, supra.

However, as of June 6, 1988, when the trial court entered its final order 12 days after expiration of the 30-day period, appellants, as evidenced by the record before us, had not objected to the procedure of the trial court. Neither had appellants attempted in the interim to file any form of response to appellee’s motion for summary judgment, or to utilize timely Rule 6.3, as authorized by Kelley, supra, to compel the granting of an oral argument on the motion (see Rule 6.3, 257 Ga. 229).

The effect of appellants’ trial tactics is multifaceted. First, because appellants failed to respond at all during the 30-day period, the trial court was faced with a situation both on the date of the expiration of the 30-day period and the date of the final order, where the record established that appellee had pierced appellants’ answer to its complaint averring nonpayment of certain goods obtained on open account. See Stein Steel &c. Co. v. Briggs Mfg. Co., 110 Ga. App. 489 (3) (b) (138 SE2d 910); see also Concert Promotions v. Haas & Dodd, 167 Ga. App. 883, 884-885 (307 SE2d 763); Holland v. Tri-City Hosp. Auth., 162 Ga. App. 256 (1) (291 SE2d 107). Appellee was entitled to rely in support of its motion on the uncontested facts contained in its tendered affidavit and on the allegations contained in its complaint which had been admitted as true by the appellants. Behar v. Aero Med. Intl., 185 Ga. App. 845 (1) (366 SE2d 223). The appellant could not rely in opposition to appellee’s motion on any allegation in its pleadings that had not been duly admitted as being true. Id. at 846. Thus, at the time when the trial court issued its final order and judgment, and therein tacitly republished its prior order of May 18, 1988, the posture of the record mandated the granting of appellee’s motion for summary judgment. Accordingly, we find that under the attendant circumstances of this case, appellants were not harmed by the trial court’s error in initially ruling upon appellee’s motion for summary judgment before expiration of the 30-day response period. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 670 (2) (278 SE2d 468). In view of this holding, we need not determine whether appellants’ unexplained failure to invoke the benefits of Rule 6.3 or to otherwise demand the right to respond during the 30-day period constituted a valid waiver. See generally Kelley, supra at 623-624; Mobley v. Coast House, Ltd., 182 Ga. App. 305, 308-309 (355 SE2d 686).

3. Appellants assert that the trial court erred in granting, on May 18, 1988 and June 6, 1988, appellee’s motion for summary judgment and awarding damages to appellee; and denying the motion for reconsideration. For reasons above discussed and by application of the legal standards for review of a motion for summary judgment, we conclude that the trial court did not err in granting appellee’s motion for summary judgment in its order of June 6 and that the error committed in granting summary judgment in its order of May 18 did not prejudice appellants.

Further when, as in this case, both parties move for summary judgment they are “in essence agreeing that ... no issue of material fact existed as a matter of law.” Southern Guaranty, supra at Division 2; Westberry, supra at 700 (3); Management Search, supra at 262 (1). It is “axiomatic that at the appellate level ‘ “(o)ne cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” ’ ” Management Search, supra at 263, citing Dodd v. Dodd, 224 Ga. 746, 747 (164 SE2d 726). In such circumstances, “[o]n appeal, [appellant] will not now be heard to assert ‘(t)he trial court erred in failing to find a genuine issue of material fact as to preclude the grant of summary judgment. . . .’ ” Westberry, supra at 702 (3); Management Search, supra at 263.

As appellants have failed to support their enumeration of error regarding damages either with specific citation of authority or argument addressing the damages issue therein contemplated, this ground is deemed abandoned. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland &c., 176 Ga. App. 390 (1) (336 SE2d 315).

Appellants specifically argue that the documentary evidence and affidavit attached to their motion for reconsideration “certainly created enough conflict in the evidence as to material issues to preclude granting appellee’s motion.” OCGA § 9-11-56 (c) provides that prior to the day of hearing the adverse party may serve opposing affidavits. As above discussed, both the 30-day period and any time thereafter during which oral argument could have been obtained under Rule 6.3 had expired before appellants made any attempt to provide facts in opposition to appellee’s motion for summary judgment. Under these circumstances, the trial court could in its discretion refuse to consider any affidavits or other documentary evidence relevant to the summary judgment motion that was tendered for the first time under the guise of being in support of a motion for reconsideration. See Williamson v. Sunshine Oil Co., 176 Ga. App. 661 (1) (337 SE2d 441); Concert Promotions, supra at 886 (2); Ga. Prac. & Proc., supra at § 23-16. And there is no requirement that the record contain any writing evidencing this exercise of discretion. Liberty Nat. &c. Ins. Co. v. Houk, 248 Ga. 111 (1) (281 SE2d 583). Considering the state of the record at the time of its final order, the trial court would not err in denying the motion for reconsideration if it elected not to consider the affidavit and other documentary evidence attached thereto. “On appeal appellant has the burden of demonstrating harmful error, by the record. . . .” Sullivan v. Brownlee, 174 Ga. App. 813 (1) (331 SE2d 622). Appellants have failed to show affirmatively by the record that the trial court did consider the supporting documents filed with their motion for reconsideration. As appellants have “failed to rebut the presumption that the superior court faithfully and lawfully performed the duties devolving upon it by law,” Sullivan, supra at 814, we hold that the trial court did not err in denying their motion for reconsideration. We will not presume error from a record silent as to matters directly bearing upon the validity of the trial court’s ruling, as we are obliged to construe the record “on appeal in favor of upholding the judgment.” Williams v. Perry, 187 Ga. App. 586 (1) (370 SE2d 836).

Appellants’ other assertions are without merit. Appellee’s motion for damages under OCGA § 5-6-6 is denied.

Judgment affirmed.

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

Banke, Presiding Judge,

concurring specially.

I agree that inasmuch as the trial court reaffirmed its grant of summary judgment to the appellee after the expiration of the 30-day period within which the appellants were required to serve and file a response to the motion, and inasmuch as the appellants still had not responded to the motion as of that time, the initial error committed by the trial court in ruling on the summary judgment motion prior to the expiration of the 30-day period was rendered harmless. I note, however, that the appellee states in its brief on appeal that “[t]he grant of summary judgment did not include the [appellant’s] counterclaim, which remains pending.” If that is the case, then the entry of final judgment in favor of the appellee was premature, and the appellee should not be permitted to enforce the judgment until such time as the merits of the counterclaim have been established. See Mock v. Canterbury Realty Co., 152 Ga. App. 872, 878-9 (264 SE2d 489) (1980). Accord Brunson v. C.B.A., Inc., 189 Ga. App. 621 (3) (376 SE2d 706) (1988).

I am authorized to state that Judge Beasley joins in this special concurrence.

Decided March 3, 1989.

Everett D. Caldwell, for appellants.

Claire Moynihan, Eugene Novy, for appellee.


text:
    77771.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. ALLSTATE INSURANCE COMPANY et al.
    (379 SE2d 619)
   Beasley, Judge.

Defendant Georgia Farm appeals the order granting plaintiff Allstate’s motion for summary judgment and denying defendant Peterman’s motion for summary judgment.

Allstate insured a 1980 Oldsmobile Cutlass owned by Jean Carroll under an automobile liability policy which defined “persons insured” while using an insured auto as including “you” [the named insured], “any resident” and “any other person using it with your permission.” Jerry Ray Carroll was Jean’s adult son who at the time was not residing in her household but living separately with his girl friend, Judy Pearson. On February 8, 1987, Jerry was driving the Cutlass when he was involved in a collision with Peterman. Peterman sought damages against Jerry and Jean and served Georgia Farm as his uninsured motorist carrier. Judy Pearson was added as a third-party defendant.

Allstate offered to defend Jerry under a non-waiver agreement and brought a declaratory judgment action against Peterman, Jerry, Jean, Judy and Georgia Farm. Allstate contended that under the policy’s aforestated omnibus clause, Jerry was not an additional insured and it was not obligated either to defend him or to provide liability coverage. Peterman and Allstate both filed motions for summary judgment, and the trial court found for Allstate.

1. The sole issue presented is whether there was permissive use of the insured vehicle.

Allstate points out that in answering interrogatories in the tort action, which were considered below, Jean stated that “I did not give Jerry Ray Carroll permission to drive the vehicle at the time and place in issue. I had not given him permission to take possession of the vehicle. I do not know how or why he had possession of the vehicle at the time.” It therefore urges that Jerry could not have had permission within the contemplation of the policy language. Defendants contend that Jean’s answer should not have been considered by the trial court. Regardless of the admissibility issue, the accuracy of the decision must be tested by a consideration of all the proof offered in support of and in opposition to the motion.

The evidence must be construed most favorably to the party opposing the motion for summary judgment; this party must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Mattison v. Travelers Indem. Co., 157 Ga. App. 372, 375 (1) (277 SE2d 746) (1981); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 179 (1) (129 SE2d 408) (1962). Full efficacy must be given also to the applicable principles of law which are comprehensively expounded in Strickland v. Ga. Cas. & Surety Co., 224 Ga. 487 (162 SE2d 421) (1968), and Cotton States &c. Ins. Co. v. State Farm &c. Ins. Co., 118 Ga. App. 451 (164 SE2d 262) (1968). In essence, the permission to use contained in an omnibus clause refers to the purpose for which permission was given and not to the operation of the vehicle. Thus, where a third person utilizes a vehicle via another person who did have permission from the owner, the fact that such third person had neither express nor implied permission from the owner is irrelevant. So is the fact the third person had no license to drive or was expressly forbidden to drive by the owner. “[T]he policy only requires permission for the purpose to be served.” Hemphill v. Home Ins. Co., 121 Ga. App. 323, 328 (1) (174 SE2d 251) (1970), quoting from Strickland, supra at 489. As long as the use falls within the scope of the permission then it is permissive within the policy terminology.

Jerry testified that: “The girl I’m living with’s car tore up, so she let us borrow it. Well she let her borrow it to take me back and forth to work.” He subsequently reiterated this and added “and to get groceries and stuff.” The use of the vehicle was for his benefit.

In response to the question of how he happened to be driving, Jerry answered that he “went up town” to get a “T. V. antenna.” He got the keys on “the wall where we hang them at.” This was the place Judy and he routinely left the car keys. At the hearing, Jean answered the trial court’s question as to whether Jerry had permission to drive her car: “Well, Your Honor, I loaned the car to him and his girlfriend.” Asked if she ever reported the car as stolen, she responded: “No sir. I don’t consider it was stolen because I had loaned the car to them and he got drunk and that’s what happened.” There was no proof that she forbade Jerry’s use of the automobile and in fact Jerry denied that his mother told him not to drive the car.

Because going to town to acquire a TV antenna could be construed as within the framework of the generic terms of picking up “groceries and stuff,” the evidence did not establish as a matter of law that Jerry acted for a prohibited purpose or was outside the scope of the permission given. Even if it could be said that Jerry was not permitted to drive, proof remained from which a jury could find that the mission he set out on was for a purpose to be served by the permission. Strickland, supra; United Svcs. &c. Assn. v. Sentry Indem. Co., 147 Ga. App. 217, 218 (1) (248 SE2d 521) (1978); Cotton States &c. Ins. Co., supra. Summary judgment was erroneous.

Decided March 3, 1989.

Heard, Leverett & Phelps, Cynthia G. Weaver, for appellant.

Frederick A. Bading, for appellees.

2. Assuming that Georgia Farm could raise an issue concerning the ruling on Peterman’s motion for summary judgment, in view of our determination in Division 1 that a jury issue was presented, the trial court did not err in denying the motion.

Judgment reversed.

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


author: Banke, Presiding Judge.

text:
    A89A0391.
    CONWOOD CORPORATION et al. v. GUINN.
    (379 SE2d 621)
   Banke, Presiding Judge.

In a prior appearance of this workers’ compensation case before this court, we concluded that the limitations set forth in OCGA § 34-9-242, dealing with compensation for accidents occuring “while the employee is employed elsewhere than in this state,” would not apply if “the principal locality of the employment relationship” were determined to be in Georgia; and we remanded the case to the board for a factual finding on that issue. Guinn v. Conwood Corp., 185 Ga. App. 41, 47 (363 SE2d 271) (1987). Without taking any additional evidence, the board concluded on remand “that the locality of the claimant’s employment was in Georgia and that the board does have jurisdiction of this claim”; and it remanded the case to an administrative law judge for consideration on the merits based on this determination. That ruling was appealed to the superior court, which affirmed. The case is now before us again pursuant to our grant of the employer/ insurer’s application for a discretionary appeal. Held:

“The Workers’] Compensation Act makes no provision for an appeal to the superior court from a decision by the full board other than one which grants or denies compensation.” Garner v. Owens-Illinois &c. Container, 134 Ga. App. 917 (216 SE2d 709) (1975); OCGA § 34-9-105 (b). While we are inclined to agree with the employer/insurer’s contention that the existing evidence of record in this case was insufficient to support a finding one way or the other on the issue of whether “the principal locality of the employment relationship” was in Georgia, we must conclude that inasmuch as the board’s ruling on this issue did not constitute a “final order or judgment” within the contemplation of OCGA § 34-9-105 (b), the superior court was without jurisdiction to entertain the appeal. The judgment of the superior court is accordingly reversed with direction that the appeal be dismissed as premature.

Decided March 3, 1989.

Van Gerpen & Rice, G. Scott Hoffman, for appellants.

Robert A. Wharton, Jr., for appellee.

Judgment reversed and case remanded with direction.

Sognier and Pope, JJ., concur.