text:
    74155.
    ALEXANDER UNDERWRITERS GENERAL AGENCY, INC. et al. v. LOVETT et al.
    (357 SE2d 258)
   Birdsong, Chief Judge.

This is the second appearance of this case before this court. See Alexander Underwriters Gen. Agency v. Lovett, 177 Ga. App. 262 (339 SE2d 368). The facts relevant to this case are set forth in that opinion and will not be here repeated. The effect of the decision of this court in the earlier opinion was to establish coverage by International Indemnity Company for liability. In its remand this court concluded that a jury issue existed as to whether and to what extent the insurer could be held liable for damages over and above the $10,000 policy limits based on the insurer’s failure to defend or adjust the claim against its insured, the Lovetts. We recognized in the opinion that there was evidence of record that on February 27, 1984, after the wrongful death action against the Lovetts had gone into default but before a trial on damages, the decedent’s attorney wrote the insurer International Indemnity offering to settle for the $10,000 policy limits. We concluded that the insurer ignored this offer, choosing to rely on the position that the policy had been cancelled. We stated that a proper and safe course of action for an insurer in this position would have been to enter upon a defense under a reservation of rights and then proceed to seek a declaratory judgment in its favor. We also pointed out that where a person injured (Collins, the tort claimant) offers to settle for a sum within the policy limits, and the insurer refuses the offer of settlement, the insurer may be liable to the insured to pay any verdict rendered against the insured including a verdict which exceeds the policy limits of liability. McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1) (310 SE2d 513). Thus it is clear that upon remand a jury was to decide whether the insurer had refused in bad faith or negligently to defend or adjust the claim by Collins against its insured the Lovetts.

In the suit initiated by Collins on behalf of the decedent’s minor child, suing for wrongful death against the tortfeasor Lovett (the suit which International Indemnity refused to defend), the child sued several defendants involved in the multiple car accident which caused her father’s death. Lovett appeared pro se but offered no defense and simply made an appearance. Each of the other defendants received a verdict but Lovett, being in default, suffered a jury verdict in the amount of $415,377 plus interest and costs.

Lovett then instituted this litigation against his insurer, International Indemnity, to recover his loss, i.e., the $415,377 plus penalties and attorney fees. It was the trial court’s grant of summary judgment to Lovett on the issue of liability that resulted in the first appearance of this case before the court at 177 Ga. App. 262, supra.

Upon remand to determine the issue of damages, whether equal to or over and above the $10,000 policy limits, the jury returned the verdict in favor of Lovett in the amount of $415,377, $25,000 in punitive damages and $22,500 in attorney fees.

International Indemnity and its general agent, Alexander Underwriters General Agency, Inc. (defendants below) bring this appeal enumerating 27 asserted errors. Held:

1. Inasmuch as many of these enumerations may be consolidated, we will not consider the enumerations seriatim but will consolidate where possible. Parenthetically we note that Alexander is the administrative arm as well as the general agent of International Indemnity. Alexander accepts applications, prepares the policy and mails the policy and thereafter monitors the daily activities concerning policies and policyholders. However, International Indemnity maintains and controls the flow of cash and is the insurer.

In substance International Indemnity contends:

(a) The evidence was insufficient to show bad faith so as to justify an award beyond the contractual limits of the policy. It argues that the suit was long in default and could not realistically be reopened. It maintained it had a bona fide belief that the policy had been cancelled due to non-payment of premium, thus International Indemnity maintains that it in good faith concluded there was no coverage at the time of the accident and it was justified in maintaining this belief until the grant of summary judgment in this case established contractual liability.

(b) It maintains that statutory penalty provisions pertaining to bad faith manifested by a wrongful denial of coverage or defense applies only to the contractual limitations of the policy and not to an excess liability claim. Thus, International Indemnity claims that the insurer was entitled to a directed verdict on the entire complaint in excess of the $10,000 policy limit. It makes this contention on the basis that as soon as this court ruled in the first appearance of this case that liability attached and the contested issue of coverage was settled, International promptly paid the contractual limits of $10,000 plus interest into the registry of the court. It contends that this response to the determination of liability removed any issue of penalties and attorney fees based on bad faith.

(c) International Indemnity argues that the rights of the tort claimant (Collins) and the insured (the Lovetts) are both governed by the express terms of the contract and the claim for damages based upon bad faith must be grounded upon an absolute denial of liability by the insurer or upon the refusal of the insurer to make a bona fide effort to effect a settlement of the claim rather than upon the failure of the insurer to pay the claim. Having paid the $10,000 plus interest into the registry of the court shows, International Indemnity contends, there was no absolute denial of liability and it did constitute an attempted settlement of the claim.

(d) It also contends that penalties for bad faith are not authorized where the insurer has any reasonable ground to contest the claim and there is a disputed question of fact. International Indemnity maintains it had a bona fide and legal right to deny liability because all of their records show that Lovett was not one of their insureds. Bad faith according to International Indemnity is limited to a frivolous and unfounded denial of liability which it maintains was not supported by the evidence in this case.

(e) It contends that no actual demand for settlement of bodily injury claim was ever unequivocally made to the insurer. The only notice to International Indemnity was on a PIP claim, a separate action against another insurer and against International Indemnity. The PIP claim came to International Indemnity’s attention at the time of the taking of a deposition when the records and documents pertaining to the claims of the insured Lovett and Collins were made available to International Indemnity. It maintains that merely being exposed to the paperwork does not constitute a demand for settlement within the policy limits.

(f) International Indemnity complains that reasonable notice of the accident and potential claim was never seasonably brought to their attention and thus there was no compliance with notice requirements of the contract. In addition, it claims there was no evidence that the insurer had any actual opportunity to settle the bodily liability because the notice related to PIP and not to bodily liability coverage which is the subject of this litigation.

(g) It also contends that the plaintiff-intervenor Collins should have been dismissed or a separate trial ordered. International Indemnity maintains that Collins was only entitled to the $10,000 policy limits and when that was paid into the registry of the court Collins had no further interest. It contends that Collins’ presence in the case complicated the issues and prejudiced the insurer.

(h) International Indemnity and Alexander contend that Alexander was only the general agent and not responsible for the payment. It was contended therefore that Alexander should have been removed from the suit.

(i) It is contended that because Lovett (the plaintiff in this action) was a defendant in the suit by Collins the contribution of the insurer toward the judgment against Lovett in favor of Collins in the amount of $415,377 should be reduced by the amount of the PIP recovery.

(j) It is contended the broker Craig’s wrongdoing legally cannot be imputed to the insurer as a substitute for the insurer’s bad faith so as to justify any judgment in excess of the policy limit of $10,000.

(k) It is contended the evidence reflects no bad faith in the insurer’s refusal to defend Lovett.

(l) International Indemnity complains the trial court erred allowing in evidence the demand for PIP coverage, arguing the PIP demand was irrelevant and prejudicial because the trial court refused International Indemnity’s proffer of settlement documents between the plaintiff Collins and a PIP insurer indicating settlement of the claim in full.

(m) Upon the same basis as the denial of the settlement documents, International Indemnity urges error in the denial of admission of a purported covenant not to sue flowing from the PIP settlement.

(n) It also complains the trial court erred in denying motions for mistrial based upon references in closing argument by the plaintiff’s attorney to the size and wealth of the insurance company in relation to the individual plaintiff (Lovett).

(o) International Indemnity complains the trial court erred in refusing to charge that the suit was one on contract and that the measure of damages was limited to the contractual limits of the policy; that failure to pay a specifically demanded sum does not provide evidence of bad faith; that bad faith embraces more than negligence or bad judgment and that an unsuccessful defense does not necessarily establish bad faith; that failure to charge the principles of comparative bad faith by Lovett and Lovett’s failure to mitigate his damages was error; that the court erred by charging that liability for a sum in excess of the face value of coverage may be established by showing merely that the insurer was negligent in declining to settle within policy limits; and that by highlighting the requirement that the insurer must treat the insured’s interest on an equal plane with that of the insured’s own interest the charge was made argumentative and expressed the opinion of the court.

2. As indicated hereinabove, International Indemnity was arguing from the basis that penalties, attorney fees, and excess coverage are governed by statute. Its whole argument therefore proceeds on the basis that this case is one based on contract and that excess coverage based upon bad faith relates to a contractual failure to defend an insured resulting in excess liability to the insured. As we view the case, however, this case is not based upon the terms of the contract nor is the excess judgment based upon a bad faith failure to defend Lovett rising from the contractual obligation so to do. The liability of the insurer in this case is based upon the fact that there was purportedly a timely offer of settlement within the limits of coverage and that the insurer negligently or in bad faith refused to adjust the account or to defend the insured (after the offer of settlement) when the amount of damages between the injured party and tortfeasor was being established. It is clear therefore that the right to excess liability rests within the rationale established by State Farm Mut. Auto. Ins. Co. v. Smoot, 381 F2d 331 (5th Cir. 1967), and subsequently recognized in McCall v. Allstate Ins. Co., supra. In order to establish his case, Lovett needed only to establish to the jury’s satisfaction that International Indemnity’s refusal to defend the issue of damages or settle within the policy limits prior to that ultimate litigation, was motivated or caused by negligence, fraud, or bad faith as established in an earlier case of Francis v. Newton, 75 Ga. App. 341 (43 SE2d 282). See McCall v. Allstate Ins. Co., supra, at p. 871 (1). It is manifest from the transcript that the Lovetts chose to establish this bad faith as the predicate for the excess coverage.

Inasmuch as it is beyond dispute that the insurer did not afford Lovett a defense or accept an offer to settle within the limits of the policy coverage, the issue for the jury was to decide whether that refusal was manifested by bad faith. See Alexander Underwriters Gen. Agency v. Lovett, supra at p. 266 (4). Conflicting evidence was submitted by the insurer and the insured raising a close issue as to whether the insurer was sufficiently aware of Lovett’s contentions that the cancellation of his policy was unknown to him so that the prudent course of action by the insurer was to file a defense with reservation and seek a declaratory judgment. This court had recognized in its first opinion in this case that ordinarily such was the proper and safe course of action. The jury then was to decide whether Lovett had actually placed the insurer on timely notice that the tort claimant was willing to settle within policy limits, and whether assuming such notice to the insurer, the failure thereafter to afford such defense was in good faith by the insurer or so negligent as to indicate bad faith by the insurer. It is apparent that the jury after considering all the evidence, hearing the arguments of counsel and charge of the court concluded that International Indemnity acted in bad faith in taking no action to settle the claim or to defend Lovett. We are hardly in a position to conclude that there was no evidence to warrant such a verdict. International Indemnity had received no less than 35 pieces of correspondence including a “Smoot letter” offering to settle the demand within the policy limits. Though International Indemnity argues that the letter was not addressed to them, was not in their files and related to a PIP claim, the jury nevertheless had to decide whether the insurance company was sufficiently on notice to know that Collins was willing to settle within the limits of the coverage in the suit against Lovett for bodily injury other than PIP. Obviously the jury so concluded. The question of the insurer’s good faith or lack thereof is one of fact for the jury as we have previously observed and the jury’s determination on this issue will be upheld if there is any evidence to support it. Binns v. MARTA, 250 Ga. 847, 848 (301 SE2d 877). Irrespective of whether we agree with that conclusion, we do in fact find sufficient evidence to support the determination of bad faith in the refusal to defend or adjust the claim.

3. Reference International Indemnity’s motion to dismiss Collins, we can find no specific written motion to dismiss nor is such a motion apparent in the record. The insurer in the pretrial order concurs that there is no question of misjoinder. Inasmuch as the trial court did not have a motion to rule on and the insurer did not object to the absence of such a ruling and indeed had consented to Collins being added to the action in the first place, we find no substance to the denial of the motion to dismiss Collins. Dehler v. Setliff, 153 Ga. App. 796, 799 (2) (266 SE2d 516); Bell v. Brewton, 139 Ga. App. 463, 465 (5) (228 SE2d 600).

4. Our examination of the record in relation to the motion to reduce the verdict by the amount of PIP benefits available discloses an inherent flaw in this motion. The law is clear that in order for the trial court to grant such a motion (1) the benefits must have been paid or (2) the benefits are available for payment. City Council of Augusta v. Lee, 153 Ga. App. 94, 98 (2) (264 SE2d 683). At the time the motion in this case was made, no benefits had been paid by International Indemnity for economic loss under PIP and International Indemnity was vehemently denying coverage under the policy and contending that no funds were available for any purpose. Inasmuch as the benefits had not been paid and were not available on the dates that International Indemnity made its motion, there was no error in denying the motion in limine made by the insurer. In relation to the issue of whether a write-off or reduction on appeal was available to International Indemnity, we must conclude that such a right is held solely by Lovett at the time the original case went into default. This case is one of excess liability coverage under a contract. The excess liability is directly imposable upon Lovett and indirectly the responsibility of the insurer if excess liability coverage is eventually established. Lovett did not make a motion to limit at his trial on the damage issue; therefore, Lovett’s insurer cannot complain of the omission of the insured at this late date. See Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 272 (4) (339 SE2d 321).

5. International Indemnity urged as error the refusal to admit evidence of settlement negotiations and a covenant not to sue after Lovett had introduced evidence that Collins was willing to settle PIP within the limits of the policy and this agreement to settle had been brought to the attention of an officer of International Indemnity. However, the attempted settlement was admitted by the trial court solely for the purpose of allowing the jury to determine if the insurer had been placed on notice that Collins was willing to settle within the limits of the policy and whether it would have been prudent for the insurer to settle or to afford Lovett a defense with reservation followed by the normal declaratory judgment.

Insofar as the admissibility of the desire to settle within the limits of the policy, because this was relevant to the issue of notice, it was proper for the trial court to admit this evidence and submit it to the jury with appropriate instructions. Georgia Farm Bureau Mut. Ins. Co. v. Latimore, 151 Ga. App. 786, 789 (261 SE2d 735).

Moreover, the overriding issue before the jury pertained to excess judgment. Therefore, all evidence proffered by either side necessarily should have been limited to evidence of good faith efforts or lack of good faith. Evidence of a covenant not to sue as such related to a release, an issue already decided adversely to the insurer and thus did not relate to the issue of good faith. See Farris v. Pazol, 166 Ga. App. 760, 762 (2) (305 SE2d 472).

6. During closing argument counsel for Lovett made reference to the “big” or “wealthy” insurer and that the jury should send an appropriate message to the insurer concerning refusal to settle or defend. Prompt and appropriate objection was made to the comment and a motion in each case was made and denied. In its ruling the trial court directed the jury to erase the comment from their minds and informed the jury that the case should be decided on its own merits without regard to the size, influence or affluence of either party.

We are satisfied that the corrective action taken by the trial court in each of these instances was sufficient to remove any harm and that no abuse of discretion appears in its denial of the motion for new trial. London v. State, 142 Ga. App. 426, 427 (1) (236 SE2d 158). Moreover, it has been held that where the court instructs the jury to disregard the remark and indicates that the remarks were inappropriate, this in effect amounts to a rebuke of counsel. See Spell v. State, 225 Ga. 705, 708-709 (3) (171 SE2d 285). Moreover, these comments did not for the first time reveal the availability of insurance for the jury was fully aware that an insurance company was involved and of Lovett’s contentions that the insurer had disregarded his right of coverage in bad faith. We are satisfied that the trial court in this case did not abuse its discretion in overruling the motions for mistrial and that the charge of the court to erase the comment from the minds of the jurors was sufficient to remove any potential prejudice. See Inter national Indem. Co. v. Coachman, 181 Ga. App. 82, 90 (7) (351 SE2d 224). Moreover, if International Indemnity deemed the instruction given or the action taken inadequate to erase any error or prejudice, it was incumbent upon International Indemnity to request additional instruction or renew its motion for mistrial, neither of which was done. See Pitts v. State, 141 Ga. App. 845, 846 (234 SE2d 682).

We further conclude that lack of prejudice in the ruling is manifest in the verdict of the jury. In his original complaint, Lovett sought general damages in the amount of the recovery in favor of Collins, interest and punitive damages of $2 million and subsequently amended to include attorney fees. The verdict of the jury reflected the exact amount of attorney fees that Lovett requested, the exact amount of recovery in favor of Collins, but only $25,000 punitive damages. Looked at in perspective, the amount of punitive damages was less than the interest that had accrued on the judgment against Lovett to the date of trial ($25,000 vs. $83,075). We are satisfied that this is indicative of the lack of prejudice. See Progressive Cas. Ins. Co. v. West, 135 Ga. App. 1, 3 (217 SE2d 310).

7. Appellant’s requested charge no. 4 pertained to the measure of liability on an insurance contract where the insurer had refused to afford coverage or defense on the basis of that contract. This case related to the excess liability on an insurance contract flowing from the gamble with Lovett’s money by the insurer in refusing a settlement or affording a defense. Therefore, International Indemnity’s requested charge no. 4 was based on contract and ignored a “Smoot” demand, thus was not responsive to the issue or the evidence and was properly denied. U. S. Fidelity &c. Co. v. Evans, 116 Ga. App. 93, 95 (156 SE2d 809). See also London v. State, supra. Appellant’s requested charge nos. 4 and 6 were not correct statements of law and were not responsive to the law or the issues. International Indemnity had consistently and absolutely denied all liability by virtue of lack of coverage and consistently refused to defend or settle within the policy limits maintaining no coverage. Thus the request to charge was inappropriate and properly refused. SCM Corp. v. Thermo Structural Prods., 153 Ga. App. 372, 379 (7a) (265 SE2d 598).

Moreover, though the trial court refused International Indemnity’s requested charge no. 12, the court did charge a pattern charge regarding contracts. Though not given in the language requested, it was given in substantial compliance with the request and therefore was not improper. Atlanta & West Point R. Co. v. Armstrong, 138 Ga. App. 577, 581 (5) (227 SE2d 71).

We find no error in the refusal to give International Indemnity’s charge nos. 13 and 14 relating to comparative bad faith and diminution of damages. We are satisfied that the evidence reflects that Lovett did all he could to procure a defense for himself and to avoid liability. Having notified International Indemnity of the pending lawsuit and ultimately of the offer by Collins to settle within the policy limits, the law required International Indemnity to show good faith and prove that its acts or omissions were in good faith. By its verdict, the jury sustained the position that by refusing to defend International Indemnity lost all opportunity to contest the negligence of the insured or the injured person’s right to recover. Leader Nat. Ins. Co. v. Smith, supra at pp. 271-272 (4). Though International Indemnity has consistently taken the position that this suit is one in contract, we have concluded that the insured’s (Lovett’s) suit was not upon the contract of insurance but rather in tort and involved a duty by the insured and an alleged breach of that duty. The two requested charges relate to contractual duties and not the omission of duties giving rise to a tort. U. S. Fidelity &c. Co. v. Evans, supra at p. 94 (2).

Likewise, we conclude the trial court did not err in refusing to give requested charges 15, 16, and 19 on the issue of bad faith. The court charged the superior court judge’s pattern charges on bad faith which is essentially the same as requested charge 16. The requested charge 15 is language taken from a dissenting opinion in U. S. Fidelity &c. Co. v. Evans, supra at p. 103, and is not the law of this state. A charge must be correct in all respects in order for its omission to be error. Durand v. Reeves, 217 Ga. 492, 495 (3) (123 SE2d 552); McMullen v. Vaughan, 138 Ga. App. 718, 721 (3) (227 SE2d 440). Charge no. 19 likewise is not consistent with the law of this state. The charge assumes that International Indemnity could not have successfully effected a settlement of the suit within the policy limits even if it had desire to do so. However, we find the evidence is clear that International Indemnity could have settled within the policy limits long after this lawsuit had gone into default and before damages were proven and judgment entered. We conclude therefore there was no error in refusing to charge International Indemnity’s request nos. 15, 16 and 19. International Indem. Co. v. Coachman, supra.

International Indemnity also complains of the giving of Lovett’s request to charge on excess judgment as being allowed by the negligent or bad faith actions of the insurer. The request to charge is verbatim from language contained in Francis v. Newton, supra and consistent with State Farm Mut. Auto. Ins. Co. v. Smoot, supra. These cases establish the standards and requirements to hold an insurer liable for bad faith. The trial court charged the jury on the basis of the current state of the law; the jury applied this law to the facts and legally arrived at their verdict. Notwithstanding International Indemnity’s argument that negligence as a standard has been removed from the test of bad faith, there is no authority in support of this contention. The case of U. S. Fidelity &c. Co. v. Evans thus is still the law of this state and supports the charge given by the trial court. We note that the asserted enumerations of error 23 and 24 relating to requested charges by International Indemnity were given verbatim by the trial court as requested. We find no merit to enumeration nos. 23 and 24.

Decided April 17, 1987

Rehearing denied May 1, 1987

Fred S. Clark, Michael L. Wetzel, for appellants.

Clarence L. Martin, Robert E. Robinson, for appellees.

There being no merit to any of the enumerations presented by appellant, International Indemnity has presented nothing to warrant a new trial.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74209.
    BARNES v. HARLEY-DAVIDSON MOTOR COMPANY, INC.
    (357 SE2d 127)
   Birdsong, Chief Judge.

Breach of Manufacturer’s Warranty — Strict Liability — Summary Judgment. Barnes was injured in an accident in August 1984, while driving his motorcycle. Barnes deposed that he had grown up riding motorcycles. Apparently he had owned and operated three of his own and had been using motorcycles for approximately 17-18 years. He had owned and operated a 1976 Harley-Davidson 1200 cc Super Glide model motorcycle for several years before the accident in August 1984. His father purchased the motorcycle for him in 1979. It was conceded that at the time of its purchase the motorcycle was in good operating condition and Barnes did not consider that the vehicle was without any equipment essential to its efficient operation. At the time of the acquisition, the motorcycle was not designed to have as standard equipment, and did not have, “crash bars” (to protect the motorcycle in the event of falling over during operation). Although Barnes had thought about installing crash bars as a safety feature, he had never done so. Also, the motorcycle was equipped with a standard motorcycle sealed beam unit (Par. 46 5 Í4 ”) with a maximum candlepower of 22,000 on high beam and 10,500 on low beam, designed pursuant to Federal Motor Vehicle Safety Standard 108. That headlamp had been standard equipment on Harley-Davidson motorcycles since 1976 and there had been no change in design throughout the period of installation and use. Barnes stated that he had come to the belief that the candlepower was inadequate at higher speeds but although he had personally replaced the sealed beam unit several times he had never sought to increase the candlepower nor placed a second or auxiliary lamp on the motorcycle. Barnes also conceded that he had no complaints about the operation of the vehicle or equipment upon the motorcycle prior to the accident in August 1984.

On August 7,1984, one Bobby Howard was operating his automobile on Highway 78 just west of Lexington, Georgia. Howard experienced electrical failure in the ignition and his car stalled. Howard parked the stalled auto on the right shoulder of the road with the left front and back wheels just to the right of the white line constituting the edge of the westbound lane of the highway, thus just off the highway. After working unsuccessfully on the car for more than an hour to get it restarted, Howard and a friend apparently started to push the stalled vehicle toward Lexington. The friend apparently was pushing from the rear of the vehicle and Howard was pushing at the driver’s door and presumably guiding the vehicle in its forward progress. Howard and his friend heard a loud noise which Howard stated he thought to be a truck. The appellant Barnes was approaching the stalled auto on his motorcycle at about 50-55 mph. Howard stated he never saw the approaching motorcycle and Barnes stated he never saw the stalled car. Barnes struck the driver’s door of the stalled vehicle which was projecting several inches to a foot beyond the white line and thus slightly into the eastbound lane. Barnes’ motorcycle struck the edge of the auto door with the right lower part of the motorcycle, causing him to lose control and ultimately to cause injuries to his right leg resulting in the amputation of the leg at a point just below the knee.

As a result of this accident, Barnes filed a complaint against his own insurer (Leader) and Howard. Because Barnes had deliberately refused coverage on uninsured motorist and paid no premium therefor, his insurer (Leader) was granted summary judgment and removed from the litigation. Barnes then brought Harley-Davidson in as a party defendant as the manufacturer of the motorcycle, upon the basis of strict liability contending that Harley-Davidson misdesigned the particular model motorcycle by not providing crash bars as standard equipment and using an inadequate headlight, both defects together making the motorcycle, as designed, not reasonably suited for the use intended, i.e., a safe two-wheeled vehicle. He further argues that Harley-Davidson was negligent in not warning Barnes as a consumer of the inherent dangers involved in using a product with no crash bars and inadequate lighting, a fact which he contends Harley-Davidson clearly would have greater knowledge about than a consumer. After extensive discovery, Harley-Davidson moved for summary judgment contending there was no breach of any express or implied warranty and that Barnes had assumed any risk involved in the use of the motorcycle without crash bars or with what he considered inadequate lighting. The trial court granted the motion for summary judgment filed by Harley-Davidson and this grant forms the basis for the appeal by Barnes. Held:

Although Barnes enumerates 7 separate asserted errors, each is simply a different facet of the same argument. We are at once confronted with the obvious facts that Barnes was a very knowledgable and experienced operator of motorcycles. He had operated the motorcycle upon which the accident occurred for approximately 4-5 years. He had been taught rules of safe driving and was familiar with motorcycles generally, including the different equipment that was furnished as standard safety features and equipment on different models of motorcycles. He conceded that there was no apparent defect in the model 1200 cc Super Glide when it was purchased and that he had used it successfully throughout his ownership. He conceded further that the motorcycle was provided with all the equipment that it was designed to have. He knew the model he owned and was riding at the time of the accident did not come equipped with crash bars. Though he knew crash bars probably afforded greater safety for the rider, he never undertook to purchase or install crash bars on the motorcycle. Moreover, he acknowledged that the headlamp worked as designed; it came on when energized and went off when switched off. He agreed that the high beam afforded more forward light than did the low beam but did not know whether the lamp was on high or low beam at the time of the accident. Though Barnes deposed that he personally believed the lamp afforded too little light, especially in very dark areas when driving at high speeds, he had changed the seal beam on several occasions but had made no efforts to increase the intensity of the light by installation of a more powerful seal beam or to attach a second lamp. It was shown and not disputed that the headlamp installed by Harley-Davidson was in accordance with federal standards and that Harley-Davidson had used the same design and intensity light since 1976. In substance then the evidence showed that Barnes had no complaints concerning the operation of the motorcycle throughout his ownership and that if there were defects within his own contemplation, these defects were patent.

In relation to the asserted design defect of inadequate light, we are constrained to conclude that the evidence established the light met federal standards. Assuming that Barnes had concluded the light nevertheless was inadequate, it is also clear that such defect was at least as well known to him as to the manufacturer. The conclusion is inescapable that by his continuing use of the motorcycle even after his belief that the light was insufficient, Barnes assumed any risk attendant to continued operation. In an earlier “headlight” case, this court quoted with approval the following language: “If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof. . . . [H]e is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. Nor is there a duty on the manufacturer or seller to warn of obvious common dangers connected with the use of a product.” (Citations and punctuation omitted.) Poppell v. Waters, 126 Ga. App. 385, 387-388 (190 SE2d 815). A product is not in a defective condition when it is safe for normal handling. If injury results from abnormal handling the manufacturer is not liable. Center Chem. Co. v, Parzini, 234 Ga. 868, 869 (218 SE2d 580). Even assuming the light created a hazard under certain conditions, Barnes was aware that under those conditions the light was insufficient for safe driving. Thus logically it was the excessive speed at night that created those circumstances (driving too fast for effective illumination of the road ahead) and thus Barnes caused through his own voluntary act the lack of sufficient light to minimize or forestall the collision. Under such circumstances we must conclude that Barnes assumed the risk of the alleged patent defect and excused any liability for the insufficiency of light. The candlepower of the light was a mere circumstance of the accident and not its proximate cause. Mann v. Hart County Elec. &c. Corp., 180 Ga. App. 340-341 (349 SE2d 215).

As to the alleged failure by the manufacturer to install crash bars as standard equipment, we have previously considered such an allegation. In the case of Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 46-47 (248 SE2d 15), we held: “ ‘A manufacturer or a seller does not have the status of an insurer as respects products design. Since it is patent that virtually any article, of whatever type or design, is capable of producing injury when put to particular uses or misuses, a manufacturer has no duty so to design his product as to render it wholly incapable of producing injury. . . .’ A motorcycle by its nature subjects the rider to a greater risk of injury than other forms of transportation; neither the legislature nor the common law has imposed upon the motorcycle manufacturer the duty of installing crash bars and we also decline to do so. As the facts show that [Harley-Davidson] did not breach its duty to design and manufacture its product for the ordinary purposes for which it was intended, the trial court did not err in granting summary judgment for [Harley-Davidson].” Barnes asks us to reconsider this holding and reverse it. We find no cogent reason for doing so. Moreover, it is clear that Barnes was aware of the greater attendant risk of operating a motorcycle without crash bars and thus his assumption of that risk was the proximate cause of his own injuries. Mann v. Hart County EMC, supra.

Decided April 20, 1987

Rehearing denied May 1, 1987

Kenneth Kalivoda, David R. Montgomery, for appellant.

William T. Gerard, Howard T. Scott, for appellee.

Likewise, we must reject Barnes’ argument that the motorcycle was designed with an inherent defect. As previously discussed, there is no independent responsibility upon a manufacturer of a motorcycle to furnish crash bars as standard equipment. The facts show that the motorcycle was functional and suitable for the purpose for which it was intended. The light was a standard light which apparently met federal standards. The facts thus establish that Harley-Davidson had done everything necessary to make the machine function for the purpose intended. Barnes made no showing in the record there were any latent defects. For all the record shows, the ordinary use of the machine created no danger or peril that was not known to Barnes. Under these circumstances, Harley-Davidson satisfied the demands of the law for product safety and suitability. Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 847 (321 SE2d 353). Because the design of the motorcycle apparently met all requirements of the law in designing a motorcycle for ordinary use on the highways, we cannot conclude that Harley-Davidson failed to meet the required standards of reasonable care. Hunt v. Harley-Davidson Motor Co., supra. Inasmuch as we are unable to find any evidence of a design defect in this record, it follows the manufacturer did not breach any duty of reasonable care in its design nor did it fail to create a safe product as a matter of law. Coast Catamaran Corp. v. Mann, supra at p. 848. Likewise, because we have found no inherent or latent defect, there can be no duty to warn Barnes of a nonexistent latent defect. We can find no error in the grant of summary judgment to Harley-Davidson.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    74235.
    CITY OF DALLAS v. WHITE et al.
    (357 SE2d 125)
   Banke, Presiding Judge.

The appellees sued the City of Dallas seeking to be reimbursed for the construction of a sewer line. The complaint was predicated both on breach of contract and quantum meruit. The trial court granted summary judgment to the appellees with respect to the city’s liability on the quantum meruit claim, reserving the issue of damages for trial. The city appeals.

The evidence, construed most strongly in favor of the city as the party opposing the motion for summary judgment, may be summarized as follows. In June of 1984 appellee White and his attorney met with the city manager and the city attorney to discuss the construction of a sewer line from the appellees’ property to a lift station on the city’s existing sewer line. It was agreed that the appellees would construct the line and secure an easement in favor of the city pertaining to the property on which the line was located. The sewer line was subsequently constructed under the city’s inspection, and the easement was delivered as promised to the city attorney and was thereafter filed of record with the superior court.

On October 7, 1985, appellee White made a request of the city council to pay one-half the cost of the sewer line. At that meeting, the city council passed a motion to pay an unspecified “share” of the cost of the sewer. On October 9, 1985, a third party paid a fee to the city for tapping into the sewer line constructed by the appellees. On October 18, 1985, appellee White refused an offer by the city to reimburse the appellees over a four-year period for one-half the cost of the sewer line. Held:

The parties clearly had no formal, written agreement with respect to reimbursement; however, it is well settled that where a municipality has accepted a beneficial service, it may be held liable in quantum meruit for the value of the benefit received. See, e.g., City of Saint Marys v. Stottler Stagg & Assoc., 163 Ga. App. 45, 46 (292 SE2d 868) (1982). Thus, the only issue presented by this appeal is “whether the city could and did ratify the acts and receive a benefit from them so as to be liable for their reasonable value.” City of Gainesville v. Edwards, 112 Ga. App. 672, 674 (145 SE2d 715) (1965).

It is clear from the record that the appellant impliedly ratified the construction of the sewer line by overseeing it and by accepting the easement. It is further clear that the city received a tangible benefit from the construction in the form of a fee paid by a third party for tapping into the line. We reject the city’s argument that a recovery in quantum meruit is barred where the party seeking recovery has itself benefited from the services performed. An action for damages in quantum meruit ordinarily arises whenever one renders services valuable to another which the latter accepts. See generally OCGA § 9-2-7; First Nat. Bank &c. Co. of Vidalia v. McNatt, 141 Ga. App. 6 (232 SE2d 356) (1977). We are aware of no authority for the proposition that one is precluded from obtaining such a recovery if he, too, has received a benefit from the work performed.

It being clearly demonstrated by the record that the city accepted and was benefited by the appellees’ services, we hold that the trial court did not err in granting partial summary judgment to the appellees on the issue of liability.

Decided April 17, 1987

Rehearing denied May 1, 1987

Thomas C. Sanders, for appellant.

Jeffrey B. Talley, Beverly M. Hartung, for appellees.

Judgment affirmed.

Corley and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    74467.
    HALLEY v. HARDEN OIL COMPANY.
    (357 SE2d 138)
   Deen, Presiding Judge.

On June 23, 1981, the appellant, Jack Halley, purchased from Larry Edwards a tract of land upon which was located a service station and grocery store. On March 21, 1980, Edwards had entered into a purported lease agreement with the appellee, Harden Oil Company. Under that agreement, (1) Harden Oil Company “leased” the premises for a ten-year period and paid $6,000 rental in advance; (2) Edwards retained possession, use, and responsibility for maintenance of the property; and (3) Edwards was required to purchase gasoline exclusively from Harden Oil Company. The lease contained no price or quantity terms, nor any obligation on the part of Harden Oil Company to sell gasoline to Edwards. This purported lease was never recorded, but the evidence was conflicting over whether Halley actually knew of it before he purchased the property from Edwards.

Shortly after the purchase Willis Harden approached Halley’s son who was working at the store, and had him sign the same lease agreement that Edwards had signed. Halley thereafter approached Harden, seeking a contribution on the renovation of the service station, including repaving and converting the pumps to self-service. Harden eventually agreed to provide $5,000, at which time he remarked, “Jack, I’m going to give you this check and I’m not going to require any additional lease, because I’ve already got eight years to go on the one I’ve got and I don’t really need any more.” Halley silently accepted the check.

Halley continued to buy gasoline exclusively from Harden Oil Company until May 1984, when he began obtaining his gasoline at a better price from an independent distributor. Harden Oil Company subsequently commenced this action, seeking damages for the breach of the lease, or, in the event the lease was not enforceable, return of a pro rata share of the $6,000 that had been paid to Larry Edwards and return of the $5,000 paid to Halley, and return of some service station equipment owned by Harden Oil Company. There was no dispute that Harden Oil Company was entitled to the personal property in question, and the trial court directed a verdict to that extent. Following the trial court’s denial of Halley’s motion for directed verdict, the jury awarded Harden Oil Company $8,300 in damages, and this appeal resulted. Held:

The agreement between Larry Edwards and Harden Oil Company, despite its denomination as a lease, constituted neither a lease nor a covenant running with the land, and thus, without more, was not binding upon Halley. Cf. Copelan v. Acree Oil Co., 249 Ga. 276 (290 SE2d 94) (1982). Moreover, the agreement between Edwards and Harden Oil Company, which more correctly would be classified as an “exclusive dealings” contract under OCGA § 11-2-306, was actually unenforceable for lack of mutuality, since there was no obligation whatsoever imposed upon Harden Oil Company to sell gasoline to Edwards (or Halley). See Billings Cottonseed v. Albany Oil Mill, 173 Ga. App. 825 (328 SE2d 426) (1985). Accordingly, even if Halley was aware of the purported lease prior to his purchase of the property, and even if Halley meant to assume Edwards’ position and obligation under that agreement, neither eradicates the determinative fact of the unenforceability of that contract.

Nevertheless, since it was uncontroverted that Harden Oil Company contributed $5,000 to Halley’s renovation of the service station in reliance upon the existence, validity, and affirmation of the lease agreement, Halley is not entitled to retain that money, because of that “naked and changeless equity which forbids that one man should retain the money of his neighbor, for which he paid nothing, and for which his neighbor received nothing: an equity which is natural — which savages understand — which cultivated reason approves, and which Christianity not only sanctions, but in a thousand forms has ordained.” Culbreath v. Culbreath, 7 Ga. 64, 67 (1849); Reid v. Hemphill, 82 Ga. App. 391 (2) (61 SE2d 201) (1950). (Harden Oil Company may not recover from Halley any of the $6,000 that was “had and received” only by Edwards.) The jury award for money damages is sustainable to that extent only, i.e., $5,000, and the verdict in excess of that amount must be stricken; otherwise, the judgment must be reversed.

Judgment affirmed with direction.

Birdsong, C. J., and Pope, J., concur.

Decided April 22, 1987

Rehearing denied May 1, 1987.

Edmund A. Waller, for appellant.

Dan A. Aldridge, Jr., for appellee.


author: McMurray, Presiding Judge.

text:
    73965.
    CARRUTH v. THE STATE.
    (357 SE2d 122)
   McMurray, Presiding Judge.

Gary William Carruth (defendant), Elizabeth Marie Marshall and George Wayne Thompson III were indicted for armed robbery. Defendant was tried separately before a jury and the following evidence, construed most favorably to support the verdict, was adduced: Shortly after 3:00 p.m. on October 13, 1985, George Wayne Thompson III and defendant robbed the victim, the manager of a Stop-and-Go convenience store in north Atlanta, Georgia, as she was in the process of making a bank deposit. Thompson took the money from the victim and defendant picked up Thompson in an escape vehicle after the robbery. The robbers fled after the victim chased Thompson to the get-away vehicle.

The State introduced evidence showing that defendant and Thompson had committed theft of property of another Stop-and-Go convenience store on a previous occasion on October 1, 1985, by taking that store’s bank deposit. Similarly, in this transaction, Thompson took the money and defendant drove the escape vehicle. After each offense, Thompson and defendant purchased marijuana and cocaine and consumed the drugs. From this and other evidence adduced at trial, defendant was found guilty. The trial court denied defendant’s motion for new trial and this appeal followed. Held:

1. In his first enumeration of error defendant contends the trial court erred in allowing evidence of the October 1, 1985, theft. “In order to introduce evidence of an independent offense as a relevant similar transaction the state must prove two factors. It must be shown that the defendant was in fact the perpetrator of the separate offense and that there is a sufficient similarity of offenses so that proof of the former tends to prove the latter. French v. State, 237 Ga. 620 (229 SE2d 410) (1976).” Moore v. State, 254 Ga. 674, 676 (333 SE2d 605).

In the case sub judice, defendant contends that the evidence presented at trial was not sufficient to link him to the October 1, 1985 theft. At trial, George Wayne Thompson III testified that he and defendant committed the October 1, 1985 theft. Defendant challenges this evidence arguing that Thompson recanted this testimony after trial. “[A] post-trial declaration by a state witness that his former testimony was false is not a cause for a new trial. [Cits.]” Porter v. State, 167 Ga. App. 697, 699 (2) (307 SE2d 515). This enumeration of error is without merit. There was sufficient evidence showing that defendant participated in the October 1, 1985 theft.

Decided April 16

Rehearing denied May 4, 1987

John W. Greer III, for appellant.

Lewis R. Slaton, District Attorney, Doris L. Downs, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

2. Defendant contends next that the trial court erred by admitting into evidence testimony concerning defendant’s use of drugs after the robbery. We do not agree.

“ ‘ “Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” (Cits.)’ Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981).” Burney v. State, 252 Ga. 25, 26 (2) (310 SE2d 899). In the case sub judice, the evidence showed that defendant used part of the money derived from the robbery to purchase drugs, which he later consumed. Further, the evidence showed that defendant expended part of the money derived from the October 1, 1985 theft for the same purpose. Consequently, evidence of defendant’s drug use immediately following the crimes was relevant and admissible to show defendant’s motive in committing the crime. See Carter v. State, 237 Ga. 617 (229 SE2d 411).

Another reason the trial court did not err in admitting this evidence at trial is that defendant first introduced evidence at trial of his drug use after the robbery. “ ‘One cannot complain of an error which his own conduct aided in causing. (Cits.)’ Westbrook v. State, 162 Ga. App. 130, 131 (2) (290 SE2d 333) (1982).” Almond v. State, 173 Ga. App. 423, 426 (2) (326 SE2d 798).

3. In his third enumeration of error, defendant contends the trial court erred in charging the jury on flight, asserting there was no evidence of flight by defendant. This argument is not supported by the record. The evidence showed the defendant fled in the escape vehicle after picking up his accomplice who was fleeing from the victim. See Baxter v. State, 160 Ga. App. 181, 184 (3) (286 SE2d 460).

4. In his fourth enumeration of error, adopting his argument of enumeration of error 1, defendant challenges the trial court’s charge on evidence of similar transaction. For the reasons stated in Division 1 of this opinion, this enumeration of error is without merit.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74102.
    MURPHY v. FIRST NATIONAL BANK.
    (357 SE2d 266)
   Banke, Presiding Judge.

The appellee bank sued the appellant to recover the balance due on a promissory note payable by its terms on demand. This appeal is from the grant of the bank’s motion for summary judgment. Held:

1. The appellant contends that as the result of the bank’s acceptance of “repeated, late and irregular payments” on the note, a quasi new agreement was created pursuant to OCGA § 13-4-4, requiring the bank to notify him of its intention to rely on “the exact terms of the agreement” prior to filing suit. It is quite unclear to this court how payments made under a demand note containing no repayment schedule could ever be considered late or how the acceptance of “irregular” payments on such an obligation could ever be deemed to vary its terms. “ ‘A note payable on demand is due immediately after delivery without further notice or demand. . . .’ (Cit.) . . . Thus, the only ‘duty’ under the U.C.C. on a holder of a demand instrument is to seek enforcement of the instrument which is on its face ‘immediately’ due and payable within the applicable statute of limitation.” Fulton Nat. Bank v. Willis Denney Ford, 154 Ga. App. 846, 849 (269 SE2d 916) (1980). See also Stone v. First Nat. Bank of Atlanta, 159 Ga. App. 812 (2) (285 SE2d 207) (1981).

Moreover, the record reflects without dispute that prior to filing the present action the bank’s attorney did in fact notify the appellant, by certified mail, that the entire balance of the note had been declared due. Thus, even assuming arguendo that the bank somehow managed to obligate itself to provide the appellant with notice of its intention to enforce the note, it is evident that it fulfilled that obligation.

2. Asserting that the note was a renewal of a previous note on which several other individuals, including Mrs. Peggy B. Murphy, were also liable, and citing the principle that the release of one joint obligor on an indebtedness operates to release the others (see OCGA §§ 11-3-606 (1) (a); 13-4-80), the -appellant contends that the bank released him from further liability on the indebtedness by failing to procure Mrs. Murphy’s signature thereon as co-maker. This contention is without merit, as Mrs. Murphy’s failure to sign the note obviously does not, in and of itself, evince any intention on the part of the bank to release her from any liability she may have had on the underlying indebtedness. To the extent the appellant contends in this enumeration of error that the bank violated an alleged oral promise to him to obtain Mrs. Murphy’s signature on the note, he has asserted no defense because the note is by its terms an unconditional promise to pay, and parol evidence cannot be used to vary its terms or impose additional conditions not apparent on its face. See Whiteside v. Douglas County Bank, 145 Ga. App. 775 (2) (245 SE2d 2) (1978).

3. The appellant contends that the trial court was precluded from granting summary judgment to the bank due to the pendency of a counterclaim which he had filed seeking to recover actual and punitive damages from the bank in an amount exceeding the balance alleged to be owed on the note. This counterclaim was premised on the appellant’s allegation that, by accepting certain payments he had made on the note, the bank, having by its conduct released and discharged him from the indebtedness, unlawfully converted his money. It necessarily follows from our rulings in Divisions 1 and 2 of this opinion, that this allegation is groundless. Consequently, this enumeration of error is without merit.

4. The appellant contends that the trial court erred in failing to hold a hearing on the bank’s summary judgment motion in accordance with OCGA § 9-11-56. However, there is no indication in the record that the appellant ever requested such a hearing, as required by Rule 6.3 of the Uniform Rules of the Superior Courts, 253 Ga. 801, 817. It follows that this enumeration of error is also without merit. See Kelley v. First Franklin Fin. Corp., 256 Ga. 622 (351 SE2d 443) (1987).

5. The appellant contends that the trial court erred in failing to consider certain depositions which, though filed of record, remained sealed at the time the court ruled on the summary judgment motion. However, the appellant has cited us to no testimony in the depositions which might create a material issue of fact with respect to his liability on the note. Accordingly, this contention establishes no ground for reversal. See Miller Grading Contractors v. Ga. Fed. &c. Assn., 247 Ga. 730 (3), 734 (279 SE2d 442) (1981); Eunice v. Citicorp Homeowners, 167 Ga. App. 335 (2) (306 SE2d 395) (1983).

6. The appellant’s final contention is that an affidavit submitted by the bank’s president to establish the balance owed on the note was deficient because it was purportedly based on a review of the bank’s books and records pertaining to the indebtedness yet was not accompanied by properly authenticated copies of such records. This contention is also without merit. We can conceive of no reason why the bank’s president would not be competent to establish the balance due on the note, and in the absence of any contrary evidence offered by the appellant tending to refute or cast doubt on the correctness of the figures provided by him, we hold that the trial court was entitled to accept those figures as accurate for summary judgment purposes. Accord Ga. Grain &c. Co. v. First Ga. Bank, 142 Ga. App. 709 (236 SE2d 913) (1977).

Decided April 17, 1987

Rehearing denied May 4, 1987

James D. Hudson, for appellant.

Jimmy J. Boatright, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Carley, Judge.

text:
    73951.
    GORDON v. SOUTHEASTERN FIDELITY INSURANCE COMPANY.
    (357 SE2d 146)
   Carley, Judge.

Appellant-plaintiff in this declaratory judgment proceeding is insured by appellee-defendant. The petition sought a declaration as to the parties’ respective rights and duties with regard to the conduction of a medical examination of appellant. Appellee moved to dismiss appellant’s petition for declaratory judgment. The trial court granted the motion after considering the entire record and argument of counsel. The grant of the motion to dismiss was therefore, in effect, a grant of summary judgment. Ellis v. Major Gas & Oil Co., 154 Ga. App. 34 (267 SE2d 485) (1980).

The record does not show the existence of any justiciable controversy which would have authorized the trial court to declare the rights of the parties. There is no evidence or contention that appellant currently has any claims for benefits pending with appellee. Nor is there any indication that there is any medical examination of appellant scheduled. Rather, appellant appears to be seeking the superior court’s opinion on how to proceed should she file further claims with appellee and should appellee then demand that she submit to a medical examination by a physician of its own choosing. What appellant seeks is an advisory opinion. It is not within the jurisdiction of a court to render such an opinion. Liner v. City of Rossville, 212 Ga. 664 (1) (94 SE2d 862) (1956). “Absent an actual controversy involving palpable insecurity, a court is without power to act by way of declaratory judgment. [Cit.]” Fourth St. Baptist Church v. Bd. of Registrars, 253 Ga. 368, 369 (1) (320 SE2d 543) (1984). Appellant contends that she still suffers from, and is being treated for, injuries for which she is insured by appellee. However, in the absence of any claim filed with appellee and any present demand by it for a medical examination of appellant, there is no controversy ripe for judicial determination. See generally Sanders v. Harlem Baptist Church, 207 Ga. 7, 9 (2) (59 SE2d 720) (1950). Accordingly, the trial court correctly granted summary judgment to appellee.

Decided May 4, 1987.

Robert S. Windholz, for appellant.

Richard B. Eason, Jr., Carolyn J. Kennedy, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    73960.
    MURPHY v. THE STATE.
    (357 SE2d 147)
   Carley, Judge.

Appellant was indicted for one count of theft by taking. A jury found her guilty. Appellant appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates as error the admission into evidence of an “accounts payable” ledger under the business records exception to the hearsay rule. OCGA § 24-3-14.

A witness for the State gave testimony which was sufficient to lay the foundation for admission of the ledger pursuant to OCGA § 24-3-14. See Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 319 (5) (291 SE2d 238) (1982). “ ‘ “It is not necessary that a witness identifying business records under [OCGA § 24-3-14] have personal knowledge of the correctness of the records or have actually made the entries himself.” [Cit.]’ [Cit.]” Hines v. Good Housekeeping Shop, supra at 319 (5). Any alleged inaccuracies in the ledger would go to weight and not to admissibility. See Don Howard’s Music Mart v. Southern Bell Tel. &c. Co., 154 Ga. App. 648 (269 SE2d 506) (1980). There was no error.

2. Appellant enumerates the general grounds. A review of the record, in the light most favorable to the jury’s verdict, reveals sufficient evidence from which any rational trior of fact could have found appellant guilty, beyond a reasonable doubt, of the crime of theft by taking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The trial court’s denial of appellant’s motion for mistrial is enumerated as error. Appellant’s motion was not made until after the close of all the evidence. “ ‘Where a motion for a mistrial is not made until the conclusion of the evidence, it “. . . (is) not timely and will be considered as having been waived because of the delay in making the motion.” ’ [Cits.] Hence there was no error.” Garner v. State, 174 Ga. App. 628, 629 (2) (330 SE2d 750) (1985).

4. Appellant enumerates as error the trial court’s supplemental jury instructions. The indictment charged appellant with the theft of more than $15,000. Shortly after beginning their deliberations, the jurors returned to ask the trial court the following question: “When we reach the decision, is that for [the] whole amount [charged] in the [indictment]? We can’t convict her for part of that amount, or if we think that she took part of it?” In response to this inquiry, the trial court instructed the jury with regard to the distinction between the misdemeanor and the felony grade of theft. See OCGA § 16-8-12. The jury foreman then stated to the trial court that the jury was having some difficulty distinguishing between the felony and misdemeanor grades of theft by taking. The trial court then reinstructed the jury on the distinction outlined in OCGA § 16-8-12 and that “the same elements are required in either a felony or a misdemeanor. It all depends on the amount. All right. Anything below $500 is a misdemeanor. Anything above $500 is a felony. That’s all.” Appellant urges on appeal that, “[i]n the face of expressed doubts by the jury, the trial court failed to give the jury correct and meaningful instructions to assist the jury in reaching a correct and legal verdict.”

The trial court’s instruction was not erroneous. Taken in context, the jury’s question was as to what effect, if any, the value of the allegedly stolen property would have on its verdict. The trial court’s instruction was directly responsive to the jury’s question. The jury was, in effect, properly instructed that the value of the allegedly stolen property was not an element of the offense of theft by taking but related only to the punishment that would be imposed upon the thief. Ayers v. State, 164 Ga. App. 195, 196 (2) (296 SE2d 772) (1982); Stancell v. State, 146 Ga. App. 773 (2) (247 SE2d 587) (1978). Appellant made no request to charge on misdemeanor theft by taking as a possible verdict in this case and it would appear that the evidence would not have authorized such a charge if requested. See Richardson v. State, 144 Ga. App. 416, 417 (2, 3) (240 SE2d 917) (1977). There was no error.

5. Appellant enumerates as error that portion of the sentence which conditions her probation upon the restitution of the full amount she was charged in the indictment as having stolen.

In 1980, comprehensive legislation was enacted which declared it “to be the policy of this state that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” OCGA § 17-14-1. Pursuant to this policy, “[t]he judge of any court of competent jurisdiction may order that an adult offender make restitution as a condition of any relief ordered by the court.” OCGA § 17-14-3. The statute encompasses a trial court’s imposition of restitution as a condition of an offender’s probated sentence. See OCGA § 17-14-2 (4), (6); Cannon v. State, 246 Ga. 754 (272 SE2d 709) (1980). However, the imposition of restitution as a condition of appellant’s probated sentence in this case “cannot stand” for the reasons enunicated in Patterson v. State, 161 Ga. App. 85, 86 (5) (289 SE2d 270) (1982). “Accordingly, we must reverse that portion of appellant’s sentence which imposes restitution as a condition of [probation] and remand the case to the trial court with direction that a hearing on the issue of restitution be held at which [OCGA § 17-14-9] and the factors in [OCGA § 17-14-10] are to be considered and we further direct that the written finding required by [OCGA § 17-14-8] be made.” Patterson v. State, supra at 86 (5).

Decided May 4, 1987.

Frank K. Martin, for appellant.

William J. Smith, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

Judgment of conviction affirmed. Sentence reversed with direction.

Banke, P. J., and Benham, J., concur.


text:
    74133.
    STRIPLING v. FARMERS & MERCHANTS BANK.
    (357 SE2d 149)
   Carley, Judge.

Appellant-plaintiff filed a multi-count complaint against appellee-defendant. Appellee answered and raised, among other defenses, the affirmative defense of res judicata. Based upon its res judicata defense, appellee subsequently filed a motion to dismiss. After conducting a hearing on appellant’s motion, the trial court, in effect, granted summary judgment in favor of appellee. Appellant appeals.

The evidence of record demonstrates that, prior to appellant’s initiation of this suit, appellee had sued appellant on a promissory note and had obtained a judgment by default against him. See Stripling v. Farmers & Merchants Bank, 175 Ga. App. 75 (332 SE2d 373) (1985). The various claims that appellant now asserts against appellee in the case sub judice are all based upon the parties’ former debtor-creditor relationship and the promissory note that appellant executed in favor of appellee. These claims should have been, but were not, raised by appellant as compulsory counterclaims to appellee’s former action on the note. See generally First Fed. S. & L. Assn. of Detroit v. I.T.S.R.E., 159 Ga. App. 861 (285 SE2d 593) (1981); B. J. Howard Corp. v. Skinner, Wilson, Strickland, Hardy &c., 172 Ga. App. 446, 447 (1) (323 SE2d 664) (1984); Nindos v. Katra, Inc., 173 Ga. App. 326, 327 (2) (326 SE2d 530) (1985); Medlin v. Carpenter, 174 Ga. App. 50, 51 (2) (329 SE2d 159) (1985); Idowu v. Lester, 176 Ga. App. 713 (1b) (337 SE2d 386) (1985). The trial court correctly granted appellee’s motion for summary judgment.

Decided May 4, 1987.

Billy D. Stripling, pro se.

Terry R. Barnick, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74386.
    QUEEN v. THE STATE.
    (357 SE2d 150)
   Deen, Presiding Judge.

Grady Holt Queen was indicted for arson in the first degree and as an habitual offender. He received a jury trial on the arson count, was found guilty, and was sentenced to the maximum sentence of twenty years (ten to serve, ten on probation, a fine, and restitution) as an habitual offender, pursuant to the provisions of OCGA § 17-10-7.

1. In his first enumeration of error, Queen contends that the trial court erred in sentencing him as a recidivist because his prior felony conviction had been discharged under OCGA § 42-8-60, the first-offender statute.

Appellant was given first-offender treatment after he entered a guilty plea to three counts of financial transaction card fraud and was given three years on probation on each count, to be served concurrently. Queen successfully completed the terms of his sentence and was discharged on August 7, 1984. The arson felony was committed on August 22, 1985.

Because part of his sentence was probated, we find that Queen was sentenced under subsection (a) of OCGA § 17-10-7 and not under subsection (b) as he contends. Subsection (a) provides that a person convicted of a subsequent offense “shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense . . . ,” but that “the trial judge may, in his discretion, probate or suspend the maximum sentence prescribed for the offense.” In contrast, subsection (b) requires a fourth felony conviction to be served for the maximum time provided in the sentence without eligibility for parole. Under subsection (c), “conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.” As appellant’s prior offenses were listed as different counts in one indictment, he had only one prior conviction under this code section.

The sole question for decision is whether this prior conviction can be considered when he is sentenced under subsection (a) because he was given first offender treatment and he successfully completed the terms of his probated sentence. The purpose of first offender treatment is to permit the offender to take advantage of an opportunity for rehabilitation without the stigma of a felony conviction. “If, however, such offender does not take advantage of such opportunity for rehabilitation, his trial which has, in effect, been suspended is continued and an adjudication of guilt is made and a sentence entered.” State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790) (1974).

Under Ga. L. 1968, p. 324, § 1, the forerunner to present OCGA § 42-8-60, which provided for probation for first offenders, it was provided that, “[u]pon violation of the terms of probation, or upon a conviction for another crime, the court may enter an adjudication of guilt and proceed as otherwise provided.” (Emphasis supplied.) The amendments to this code section which appear in Ga. L. 1985, p. 380, § 1 changed this language to read: “Upon violation by the defendant of the terms of probation or upon a conviction for another crime during the period of probation . . . the court may enter an adjudication of guilt.” (Emphasis supplied.) OCGA § 42-8-62 provides that upon fulfillment of the terms of probation “the defendant shall be discharged without court adjudication of guilt. The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.” Use of the prior finding of guilt is set forth in OCGA § 42-8-65 and provides that: “If otherwise allowable by law in any subsequent prosecution of the defendant for any other offense, a prior finding of guilt may be pleaded and proven as if an adjudication of guilt had been entered and relief had not been granted pursuant to this article.” (Emphasis supplied.) This section further provides to whom the record of discharge may be released and that “no such agency, law enforcement agency or court may release any information regarding an adjudication of guilt under this article except to disclose the fact that the defendant has exercised his or her right to first offender treatment under Georgia law and that such person has been discharged.”

The foregoing provisions, however, have been held not to act as a bar to permitting a defendant to impeach a witness with her first offender record, although she has fulfilled the terms of her probation. Gilstrap v. State, 250 Ga. 814 (301 SE2d 277) (1983). In analyzing these provisions and their legislative changes, we find that the Op. Att’y Gen. No. U81-32 which states that “[t]he discharge does not . . . prevent the use of the record in a subsequent criminal prosecution of the defendant for a latter offense, [OCGA § 42-8-65],” to be an incorrect statement of the present law because of the changes made in 1985 to OCGA § 42-8-60. As a result, the use of the prior prosecution “is not allowable by law” as provided in OCGA § 42-8-65. Accordingly, this portion of the case must be reversed and remanded for re-sentencing.

Decided May 4, 1987.

E. Neill Wester III, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

2. The admission of appellant’s appearance bond in the arson case into evidence was not error. Appellant contends that it was not properly identified and that a foundation had not been laid for its admission into evidence.

The bond was signed by one Cecil Cole as surety. As no objection was raised to its authenticity in the court below, it cannot be raised for the first time on appeal. Morris v. State, 179 Ga. App. 228 (345 SE2d 686) (1986).

As to the claim that a proper foundation was not laid for the introduction of the document into evidence, there was testimony that Cecil Cole sold the houseboat which was burned to the appellant, and that the rightful owner of the boat could not get him to reveal where Queen lived or provide information about the sale of the boat. Appellant’s release from custody upon a bond provided by Cole was therefore relevant to show the close relationship between the two men. Appellant, however, testified he was afraid of Cole and had problems getting in touch with him to obtain title to the houseboat. He also testified several times that he did not know how to get in touch with Cole and that Cole signed the bond because he “was the cause of this.” Accordingly, there was no error in admitting this document because it wás relevant to appellant’s conduct in allegedly purchasing the boat and in providing a possible motive for burning it. Questions of relevancy are generally matters within the court’s discretion. Pope v. Propst, 179 Ga. App. 211 (345 SE2d 880) (1986). We find no abuse of the lower court’s discretion.

Judgment affirmed in part, reversed in part, and case remanded for resentencing.

Birdsong, C. J., and Pope, J., concur.


text:
    74486.
    CHEVROLET-PONTIAC-CANADA GROUP, GENERAL MOTORS CORPORATION v. PEARSON.
    (357 SE2d 152)
   Deen, Presiding Judge.

We granted this discretionary appeal to consider whether the DeKalb County Superior Court’s award of attorney fees to claimant should be reversed, remanded to the Board of Workers’ Compensation for entry of an amended award based upon proper proof of the value of the attorney’s services, or affirmed. Scrutiny of the record of the instant case, including the January 23, 1986 hearing before an administrative law judge, indicates that, although under relevant statutory authority it was proper for there to be an award of attorney fees, the evidence presented as to the value of the services for which those fees were sought falls far short of the standard of proof required in this state. See Hardee’s v. Bailey, 180 Ga. App. 332, 333 et seq. (349 SE2d 211) (1986); State of Ga. v. Mitchell, 177 Ga. App. 333 (339 SE2d 384) (1985); Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576 (275 SE2d 152) (1980). It therefore follows that this case must be remanded to the full Board of Workers’ Compensation for determination of the proper amount of attorney fees to be assessed against appellant General Motors, on the basis of sufficient competent evidence of the value of the attorney’s services.

Decided May 4, 1987.

Lloyd Sutter, Melvin K. Westmoreland, for appellant.

Steven E. Marcus, for appellee.

Appellant urges in its brief that this court de facto overrule the superior court’s remand to the full Board for determination of the appropriateness of assessing an additional 20 percent penalty against General Motors for not filing a timely initial appeal. “An enumeration of error may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” Scott v. State, 177 Ga. App. 474, 477 (339 SE2d 718) (1986); accord Tucker v. State, 173 Ga. App. 742 (327 SE2d 852) (1985). Because the trial court’s remand for consideration of the propriety of the additional penalty was not originally enumerated as error, we cannot properly address this issue.

Judgment reversed and case remanded, with direction.

Birdsong, C. J., and Pope, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    73705.
    HERNANDEZ v. THE STATE.
    (357 SE2d 131)
   McMurray, Presiding Judge.

Via indictment, a Clarke County grand jury charged and accused defendant and Charles May with the offense of trafficking in cocaine. It was charged that on December 8, 1985, defendant and May “did unlawfully deliver and bring into this State more than 400 grams of cocaine.” The indictment also charged defendant with being a recidivist. In this regard, it was alleged that on January 19,1984, defendant “plead guilty in the United States District Court for the Southern District of Florida [in] Case No. 83-824 CRALH charging Conspiracy to Possess Cocaine and was sentenced to serve three years on probation.” In the case sub judice, a jury found defendant guilty upon the trafficking count and the trial court found defendant guilty upon the recidivist count. Defendant was sentenced to serve a period of 30 years, 25 in confinement and the remainder on probation and now appeals. Held:

1. “ ‘[V]enue in criminal cases is a matter of jurisdictional fact, and like every other material allegation in the indictment must be proved beyond a reasonable doubt.’ Dickerson v. State, 186 Ga. 557, 559 (199 SE 142) (1938); see also Patterson v. State, 157 Ga. App. 233, 234 (276 SE2d 900) (1981). Where venue is not established by the state, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. Patterson v. State, 162 Ga. App. 455 (291 SE2d 567) (1982); McCoy v. State, 62 Ga. App. 575 (8 SE2d 795) (1940).” Trogdon v. State, 176 Ga. App. 246, 247 (1) (335 SE2d 481). See also Jones v. State, 135 Ga. App. 893, 900 (219 SE2d 585). “ ‘This is no pedantic, justice-defeating technicality. The dangers of abuse are manifold if the Government can obtain an indictment for conspiracy in a district other than the district where the offense was actually committed merely by alleging that one act, which need never be proved, was committed in that district. Surely the Government should not be able to procure an indictment . . . without having to prove to the satisfaction of a jury that at least one act was done in the district of the indictment.’ ” Jones v. State, supra at 901 (quoting Green v. United States, 309 F2d 852, 856 (5th Cir. 1962)).

Defendant contends the State failed to prove beyond a reasonable doubt that venue was established in Clarke County. In his first enumeration of error, he asserts that the trial court erred by failing to direct a verdict of acquittal upon this ground. We disagree.

“Evidence to sustain venue may be either direct or circumstantial. Loftin v. State, 230 Ga. 92, 94 (195 SE2d 402).” Keri v. State, 179 Ga. App. 664, 668 (5) (347 SE2d 236). Accord Worth v. State, 179 Ga. App. 207, 208 (2) (346 SE2d 82). In the case sub judice, we find the following direct and circumstantial evidence with regard to the venue question: On December 8, 1985, one Phillip Metzger sold five “kilos” of cocaine to an undercover policeman in Clarke County at which time Metzger was arrested. Metzger had obtained three of the “kilos” from Charles May earlier in the day. That exchange took place when Metzger and May met in DeKalb County. Metzger did not pay May for the three “kilos” when the exchange took place as payment was to come after Metzger sold the cocaine. May waited for Metzger and the money at a motel in DeKalb County. He expected Metzger to arrive by 5:00 p.m. Metzger never showed but the police appeared. They sought May’s cooperation in obtaining evidence against defendant.

Defendant lived and worked in south Florida. May made two long distance telephone calls to defendant following his arrest. The conversations between May and defendant were recorded by the police with May’s permission. During the course of the first conversation May told defendant that he had heard nothing from Metzger and that he (Metzger) had taken all three “kilos” of cocaine. Defendant was chagrined. He said he thought that May was only going to give Metzger one “kilo” and he wished that May had not given Metzger all three of them. He also told May to wait at the motel. In the second conversation May told defendant that one of Metzger’s friends came by the motel and informed him that “Phil got popped . . .” Trying to calm and reassure May, defendant told him that he had nothing to worry about; that he (May) was just a “tourist”; and that he would get paid. Defendant added: “I’m the one that’s going to be wanted because I lost three, you understand ...”

May testified at the trial. (He pleaded guilty to trafficking in cocaine before the trial began.) He averred that he obtained the cocaine from defendant in Florida; that he was to deliver the cocaine to Metzger in DeKalb County; that he was to be paid $2,000 for delivering the cocaine; and that after he delivered the cocaine Metzger told him to go back to his motel room and wait until Metzger called or came by with the money.

Metzger was called as a defense witness and testified that he did not pay May for the cocaine initially and that he was to give May the money for the cocaine later. He also averred that he had “no idea” whether defendant was connected with the delivery of the cocaine. On cross-examination, Metzger admitted that he shared a business address with defendant; and that, at the time of his arrest, he possessed a business card which bore the telephone numbers of defendant and defendant’s girl friend.

Defendant took the stand and testified that he did not give three “kilos” of cocaine to May. He acknowledged that he had had long distance telephone conversations with both May and Metzger during the weekend in which May gave Metzger the cocaine. With regard to the recorded conversations, defendant explained that he was simply trying to find May and keep him calm because he had introduced May to “Juan” and “Juan” made it clear that defendant would have problems if May did not return to Florida with the money.

“Where a person intentionally aids or abets in the commission of a crime, or advises, encourages, hires, counsels, or procures another to commit the crime, he may be convicted of commission of that crime pursuant to Code Ann. § 26-801 (b) (3, 4) [OCGA § 16-2-20 (b) (3, 4)]. ‘While this Code section does not use the word “conspiracy” it is plain that it embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto.’ Scott v. State, 229 Ga. 541 (1) (192 SE2d 367) (1972). Thus, where the crime is completed, a defendant may be convicted of it based on his activities as a conspirator, even though conspiracy is not alleged in the indictment. See Bruster v. State, 228 Ga. 651 (3) (187 SE2d 297) (1972). Venue in such a case is properly laid in the county in which the substantive offense is committed, even though the defendant may never have entered that county. See Jackson v. State, 29 Ga. App. 324 (4) (115 SE 507) (1923); Welch v. State, 49 Ga. App. 380 (2), 387-389 (175 SE 598) (1934); Jones v. State, 135 Ga. App. 893 (7), 900 (219 SE2d 585) (1975).

“It has been held that the mere agreement of one person to buy contraband which another agrees to sell does not establish that the two acted in concert so as to support a finding of conspiracy. See United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir., 1978), and cases cited therein. However, where the supplier ‘fronts’ contraband to a recipient with the expectation that the latter will sell it and pay him from the proceeds, it has been held that he retains a sufficient interest in the subsequent sale to establish that he acted in concert with the recipient to distribute the contraband. See United States v. Caplan, 633 F2d 534 (9th Cir., 1980); United States v. Boone, 641 F2d 609 (8th Cir., 1981). Compare United States v. Harbin, 601 F2d 773 (5th Cir., 1979).” Osborn v. State, 161 Ga. App. 132, 133-134 (291 SE2d 22).

In the case sub judice, the evidence authorized the conclusion that defendant “fronted” the cocaine to Metzger (via May) with the expectation that Metzger would sell it and pay him the proceeds. Accordingly, the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of trafficking in cocaine in Clarke County. Osborn v. State, supra.

2. Over defendant’s objection, the trial court permitted the prosecutor to ask Metzger, on cross-examination, whether he introduced defendant to a drug dealer so that defendant could purchase drugs. Metzger invoked his Fifth Amendment privilege. In his second enumeration of error, defendant contends the trial court erred in permitting the State to question Metzger about the “similar transaction” because (1) the trial court ruled in limine that evidence of similar transactions was inadmissible and (2) the State failed to give notice of its intent to present such evidence pursuant to the Uniform Rules for the Superior Court. This contention is without merit.

The trial court permitted the State to make the inquiry in question for impeachment purposes. (Metzger testified that he had had no business dealings with defendant.) In ruling in limine that similar transaction evidence was inadmissible, the court qualified its ruling. It stated that, in general, evidence of similar transactions was inadmissible. It did not rule similar transaction evidence inadmissible for all purposes. Thus, it cannot be said that the trial court ran afoul of its in limine ruling. Moreover, it was not necessary for the state to give notice of its intent to question Metzger about the introduction of defendant to the drug dealer. Rule 31.3 of the Uniform Rules for the Superior Court was not “intended to alter the rules of evidence relating to impeachment of witnesses.” Rule 31.3 (E), Uniform Rules for the Superior Court (253 Ga. 854).

3. “ ‘ “[I]t is never error for a trial court to refuse to charge on a lesser included offense even though requested in writing when the evidence does not reasonably raise the issue that the defendant may be only guilty of the lesser crime.” [Cit-.]’ [Cit.]” Green v. State, 175 Ga. App. 92, 94 (4) (332 SE2d 385). Under the evidence presented in the case sub judice, only two verdicts were possible — guilty of trafficking in cocaine or acquittal. Accordingly, it was not error for the trial court to refuse to charge the jury concerning possession of cocaine. Cooper v. State, 180 Ga. App. 37, 39 (2) (348 SE2d 486). Defendant’s third enumeration of error is not meritorious.

4. In his final enumeration of error, defendant contends the trial court erred by sentencing him under the recidivist statute. In this regard, defendant points out that following his federal court conviction for conspiracy to possess cocaine he was given a probated sentence. Completing the argument, defendant asserts that the recidivist statute has no application unless a person was convicted of a felony and sentenced to confinement. OCGA § 17-10-7 (a). Defendant’s contention is controlled adversely to him by Bennett v. State, 132 Ga. App. 397, 398 (3) (208 SE2d 181) and Tankersley v. State, 155 Ga. App. 917, 922 (13) (273 SE2d 862).

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1-3 and find that the holding in Division 4 is compelled by what is not in the record in addition to what is shown.

Hernandez pleaded guilty in Florida to an information originating in Arkansas, which charged him with violating 21 USC “Section 844 (a) and Section 846.” The “Judgment and Probation/Commitment Order” form states, in the section entitled “sentence or probation order,” that the court orders that: “Imposition of sentence of confinement is withheld and the defendant is placed on probation for THREE (3) YEARS. Special condition of probation is that the defendant shall remain employed during entire probationary period.”

Decided April 20, 1987

Rehearing denied May 5, 1987

David R. Sweat, Jeanne M. L. Player, for appellant.

Gerald W. Brown, Assistant District Attorney, for appellee.

Section 844 (a), which the state contends this sentence falls under, provides for imprisonment for not more than one year, but a second or repetitious offense allows imprisonment of two years. Fines are also authorized, but probation is not expressly provided.

Hernandez contends that this is a sentence under Section 844 (b). It states that the court, with respect to a person who has not previously been convicted of a federal controlled substances crime, “may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require and for such period, not to exceed one year, as the court may prescribe.” Satisfactory completion of probation results in discharge and dismissal without adjudication of guilt.

The other federal statute involved is Section 846, which provides for a separate penalty for attempt or conspiracy to commit a controlled substance crime. Such is punishable “by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the [substantive] offense, . . .” In this case it is one year, or two years if repetitive, as prescribed by Section 844 (a).

In answer to Hernandez’ contention, first, the sentence of the Florida court does not contain the deferment language. Second, it contains the adjudication language, to wit: “the court adjudged the defendant guilty as charged and convicted . . .” Third, there is no record of consent to a subsection (b) deferment. Fourth, the latter is available only to a first offender. Since the maximum for a first offender would be two years’ probation (one year for Section 844 (b) and one year for Section 846), and the court having imposed three years’ probation, Hernandez must not have been eligible for subsection (b) treatment.

Thus I agree that the sentence was one of confinement, suspended upon satisfactory completion of three years’ probation. This being the case, Bennett v. State, 132 Ga. App. 397, 398 (3) (208 SE2d 181) (1974) controls.


text:
    73825.
    In re S. N. S.
    (357 SE2d 127)
    Decided April 17, 1987
    Rehearing denied May 5, 1987.

      Bruce W. Callner, Kathy L. Portnoy, for appellant.

      Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.
   Birdsong, Chief Judge.

This appeal of a termination of parental rights by the Juvenile Court of Fulton County is dismissed as improvidently granted. Cases involving termination of parental rights must be made by direct appeal, as they are not within the purview of OCGA § 5-6-35 (a) (2) requiring certain appeals to be made by discretionary application. In the Interest of R. L. Y., 180 Ga. App. 559 (349 SE2d 800).

Appeal dismissed.

Deen, P. J., and Pope, J., concur.


author: Benham, Judge.

text:
    73864.
    GLOBE LIFE & ACCIDENT INSURANCE COMPANY v. OGDEN.
    (357 SE2d 276)
   Benham, Judge.

Appellant Globe Life & Accident Insurance Company, through its sales agent and field representative Donnie Wages, sold a health and hospitalization insurance policy to appellee Cathleen Ogden. The policy went into effect on August 11, 1983, and appellee paid a one-year premium for it. In late November 1983 and late January 1984, Wages visited appellee’s home allegedly to collect additional premium payments for one year each. On those occasions, appellee gave Wages two checks made payable to him for $493 and $577, respectively. Wages did not forward these premium payments to appellant. Unbeknownst to her, appellee’s policy lapsed on August 11, 1984. Several months later, appellee’s daughter contacted appellant regarding the policy and made a payment of $543 to reinstate it. Appellant’s service department reinstated the policy but when appellee subsequently attempted to file claims, the claims department record showed that the policy had lapsed and would not be reinstated. Appellant refused to pay appellee’s claims, and she filed suit against the company for failure to pay insurance benefits. Count I of her complaint sought recompense under OCGA § 33-4-6 and additional punitive damages. In Count II, she sought general and punitive damages for appellant’s allegedly fraudulent conduct regarding the agent’s collection of funds. At trial, the parties agreed that as to Count I the trial court could direct a verdict in appellee’s favor for $3,000 in general damages for the amount owed under the insurance contract, $1,335.74 penalties and interest, and $7,000 attorney fees; and that there would be no general damages under Count II. The trial proceeded on Count II with appellee seeking punitive damages based on the general damages awarded on Count I. The jury returned a verdict of $25,000 punitive damages, and based on that verdict along with the directed verdict as to the other issues, judgment was entered accordingly. After denial of its motion for directed verdict and j.n.o.v., appellant brought this appeal.

1. In appellant’s first three enumerations of error, it claims that the trial court erred in denying its motions for directed verdict and j.n.o.v. as to Count II of appellee’s complaint and on the issue of punitive damages. We agree. Count II was based on allegations of fraudulent conduct on appellant’s part by its agent’s taking of appellee’s premiums and converting them to his own benefit with intent to damage appellee, and by failing to pay her insurance claim. Appellant sought actual and punitive damages on this count, in addition to those sought under OCGA § 33-4-6 in Count I.

“The plaintiffs case, as shown by the facts alleged in the petition, was plainly and simply one arising on a breach of contract. The relation between the plaintiff and the defendant insurance company was simply a contractual one. However, the petition plainly seeks to assert damages as for a tort. ‘The mere breach of an ordinary contract does not constitute a tort; and if there is no liability except that arising out of a breach of a purely contractual duty, the action must be in contract, and an action in tort can not be maintained.’ ” Leonard v. Firemen’s Ins. Co., 100 Ga. App. 434, 435 (111 SE2d 773) (1959). See also Thomas v. Phoenix Mut. &c. Ins. Co., 142 Ga. App. 550 (236 SE2d 510) (1977). There was no allegation or showing at trial that there was a special relationship between appellant and appellee, one involving “a public duty the breach of which will support an action in tort.” Leonard at 435. Here, as in Leonard, the “[djamages sought to be recovered . . . are in the nature of a penalty, which [appellee] claims [appellant] owes [her] because of its failure to promptly settle [her] claim. The penalties imposed against insurance companies doing business in this State for their failure or refusal to pay claims within a reasonable time after demand has been made are fixed by the provisions of [OCGA § 33-4-6]. Insofar as the insured’s action against the company is based on a mere breach of contract, this remedy is exclusive. ...” Id. at 436. Therefore, appellee was only entitled to the recovery obtained in Count I for the amount due under the contract policy, for 25% of the insurer’s liability for the loss, and for reasonable attorney fees. OCGA § 33-4-6; Tate v. Aetna Cas. &c. Co., 149 Ga. App. 123 (253 SE2d 775) (1979).

Decided April 23, 1987

Rehearing denied May 5, 1987

Kenneth R. Carswell, for appellant.

Rudolph J. Chambless, Vernon L. Cham,bless, for appellee.

Appellee argues that punitive damages, in addition to those damages specifically provided for in OCGA § 33-4-6 as set out above, are authorized where an insurer is guilty of a bad faith refusal to pay under the terms of an insurance policy, and cites Kilgore v. Nat. Life &c. Ins. Co., 110 Ga. App. 280 (138 SE2d 397) (1964). We do not read Kilgore as allowing any punitive damages other than those specifically prescribed in OCGA § 33-4-6.

As we held above, the remedy is exclusive in the absence of some special relationship of the parties. Tate v. Aetna Cas. &c. Co., supra. In accordance with our analysis, we affirm the judgment as to Count I and reverse as to Count II, the portion of the judgment allowing $25,000 punitive damages.

2. Appellant’s last enumeration contends that the trial court erred in allowing evidence concerning its rejection of appellee’s claims under the contract, since such evidence was prejudicial to appellant on the issue of punitive damages under the fraud claim. Our decision in Division 1 of this opinion renders this enumeration of error moot.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Carley, J., concur.