text:
    76291.
    76337.
    DOHN et al. v. LOVELL et al. DOHN v. KELLY et al.
    (370 SE2d 789)
   Sognier, Judge.

We granted the applications for interlocutory appeal made by Carl Dohn, M.D., Patrick Godbey, M.D., James Gowen, M.D. and Marcus Norvell, M.D., d/b/a Golden Isles Women’s Specialist, from the denial of their motions for summary judgment in a medical malpractice case filed by Charlotte and James Lovell in Case No. 76291 and granted the application for interlocutory appeal made by Carl Dohn, M.D., in the medical malpractice case filed by Eloise and Lewis Kelly in Case No. 76337, in order to address questions arising under the construction of the Georgia Voluntary Sterilization Act, OCGA § 31-20-1 et seq. Both appeals are consolidated in this opinion.

The Georgia Voluntary Sterilization Act was enacted in 1966 for the purposes, inter alia, of setting forth the conditions under which sterilization procedures would be authorized as to consenting persons, and to protect doctors of medicine, and certain enumerated others, from civil liability or criminal prosecution in regard to such sterilization procedures. Ga. L. 1966, p. 453. The first of these purposes was codified in OCGA § 31-20-2, which currently provides in pertinent part: “It shall be lawful for any physician ... to perform a sterilization procedure upon a person 18 years of age or over . . . provided that a request in writing is made by such person . . . and provided, further, that prior to or at the time of such request a full and reasonable medical explanation is given by such physician to such person as to the meaning and consequence of such operation.” OCGA § 31-20-5 codifies the other pertinent purpose: “When an operation shall have been performed in compliance with this chapter, no physician duly licensed . . . shall be liable civilly or criminally as a result of such operation or participation therein, except in the case of negligence in the performance of such operation.”

Turning to the facts to which application of these statutes pertains, in Case No. 76291, appellee Charlotte Lovell and her husband requested appellant Patrick Godbey, M.D., to perform a post-partum sterilization. Mrs. Lovell stated in her deposition that upon broaching the matter to Godbey, he showed her a pamphlet which set forth various sterilization methods. Mrs. Lovell stated she told Godbey she wanted her tubes “cut, tied, and burnt,” and when Godbey mentioned the use of a clip, she told him she “wasn’t concerned with the clip, I wanted my tubes cut, tied, and burnt.” Mrs. Lovell stated that after telling Godbey this, he responded: “Okay; that’s what we’ll do.” In his deposition, Godbey stated that he did not remember Mrs. Lovell making any request as to the “cut and burn” method, i.e., tubal ligation, and that he would not have agreed to use such a method of sterilization in a post-partum situation such as Mrs. Lovell’s. He stated he chose the method of sterilization and made the medical decision to use the Bleier clip in a tubal occlusion procedure upon the birth of the Lovells’ child. Mrs. Lovell asserts that had Godbey informed her he would not follow her request as to the type of sterilization method she wished performed on her body but that he would use the Bleier clip, she would not have agreed to the sterilization operation. Shortly after the performance of the operation Mrs. Lovell became pregnant and instituted the present suit.

In Case No. 76337, appellee Eloise Kelly and her husband authorized a sterilization procedure by means of the Bleier clip on the recommendation of appellant Carl Dohn. It is uncontroverted that the Kellys were informed by Dohn that pregnancy might result despite the sterilization procedure. The Kellys assert Dohn informed them that the Bleier clip was “State of the Art” and was “99.9%” effective although Dohn knew, or should have known, that sterilization procedures employing the Bleier clip had a failure rate of approximately 10%. Mrs. Kelly contends that had she been informed of the “inordinately and unacceptably high rates of failure” due to use of Bleier clips she would not have agreed to that method of sterilization. Mrs. Kelly subsequently became pregnant and instituted the present suit in which only Count III, alleging battery, remained viable at the time of Dohn’s motion for summary judgment.

It is the contention of appellants in both cases that they are exempt from all civil or criminal liability in the cases at bar under the language of OCGA § 31-20-5 in the absence of negligence in the actual performance of the sterilization operations. In support of this argument, appellants direct this court’s attention to Robinson v. Parrish, 251 Ga. 496 (306 SE2d 922) (1983), which involved a medical malpractice case brought as a result of the laceration of the intestinal wall of the patient, Mrs. Robinson, during a sterilization procedure. It is apparent from the facts in the case that the laceration was not an intended or necessary action in the performance of the operation. The Supreme Court addressed the question whether the Georgia Voluntary Sterilization Act required a physician to explain to the Robin-sons “the potential risk or complications associated with the performance of a laparoscopic tubal ligation.” Id. In the context of these facts, the Supreme Court held that the requirement that the physician give “ ‘a full and reasonable medical explanation ... as to the meaning and consequence of such operation’ ” meant that “the physician must fully inform the patient of the intended results of sterilization, which is the permanent inability to have children. Specifically, the statute does not require a physician to disclose the possible risks and complications of the sterilization procedure.” Id. at 497.

We do not agree with appellants that the holding in Robinson construing the language in OCGA § 31-20-2 is applicable here in view of the distinguishable factual situation in Robinson which required the Supreme Court to address only that part of the statute requiring a full explanation of the “intended results” or “consequence” of a sterilization procedure insofar as the risks and complications associated with such a procedure were concerned. Nor do we agree with appellants that anything in Robinson demands we apply the Supreme Court’s construction of OCGA § 31-20-2 generally to all possible factual circumstances. Thus, we reject appellants’ contention that the sole requirement placed on a physician in OCGA § 31-20-2 is to inform a patient seeking a sterilization operation that the intended result of the operation is to render the patient permanently incapable of having children.

Likewise, we do not agree with appellants’ arguments concerning the construction we should give OCGA § 31-20-2 in view of the facts of the cases sub judice. OCGA § 31-20-2 requires a physician to give “a full and reasonable medical explanation ... as to the meaning and consequence of such operation.” (Emphasis supplied.) There is no merit in the argument that “meaning” and “consequence” are synonymous. To interpret the Legislature’s use of the word “meaning” as having precisely the same definition sis “consequence” would be to render that term mere surplusage, thereby violating the well established rule of statutory construction that all the words of a statute are to be given due weight and that the courts should not so interpret a statute as to make parts of it surplusage unless no other construction is reasonably possible. Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 742-743 (152 SE2d 768) (1966).

Therefore, we construe “meaning ... of such operation” to reference the nature of the sterilization operation and its significance to the party requesting such operation. Thus, the requirement in OCGA § 31-20-2 that “a full and reasonable medical explanation [be] given by such physician to such person as to the meaning and consequences of such operation,” necessarily requires that a full and reasonable medical explanation be given by the physician to the person as to the method to be employed in such sterilization operation so that the patient will understand how his or her inability to have children will result. To hold otherwise would result in the anomalous situation where a patient requesting sterilization would be unable to select, much less be advised of, the sterilization procedure to be performed upon him or her.

Applying this holding to the facts of the individual cases, we affirm the trial court’s denial of the motion for summary judgment in Case No. 76291 as to the construction to be given the Georgia Voluntary Sterilization Act. We agree with the trial court and the Lovells that due to the presence of conflicting evidence regarding the conversation between Mrs. Lovell and Godbey regarding what sterilization method was to be used on Mrs. Lovell, questions of fact exist whether the operation was performed in compliance with OCGA § 31-20-2 so as to entitle appellants in case No. 76291 to exemption from liability under OCGA § 31-20-5.

However, in an ancillary matter brought up in Case No. 76291, we must reverse the trial court’s denial of summary judgment as to appellant Marcus Norvell, M.D. Norvell moved for summary judgment on the basis of his affidavit and deposition in which he averred that he was not a partner in Golden Isles Women’s Specialist, but rather an employee of the three partners, and that his employment commenced subsequent to the sterilization procedure that gave rise to the Lovells’ cause of action. Although the Lovells rely on the deposition testimony of appellant James Gowen, M.D. regarding the relationship of the doctors at Golden Isles Women’s Specialist, that “[w]e share expenses at the office. We share call[s]. We share patients many times,” Gowen went on to explain that although there were no legal papers, that the partnership to which he was referring consisted of himself, Dohn and Godbey, and that Norvell is “a salaried employee of the three of us.” There being no evidence that Norvell was anything other than an employee engaged subsequent to Mrs. Lovell’s sterilization procedure, the trial court erred by denying Norvell’s motion for summary judgment. See generally Bethune v. Leake, 177 Ga. App. 330 (1) (339 SE2d 296) (1985).

In Case No. 76337, the Kellys do not contend they were misinformed as to the method of sterilization to be utilized or that Mrs. Kelly’s requested method was disregarded. Mrs. Kelly knew Bleier clips would be used to effect the sterilization, knew the nature of the procedure, knew of the intended results of the sterilization procedure, and knew a possibility existed that any method used would fail. The basis of the Kellys’ cause of action thus appears to be their assertion that because Dohn failed to represent correctly to them the precise percentages regarding the efficacy of the Bleier clip, there was no “full and reasonable medical explanation” as required under OCGA § 31-20-2, and thus the exemption from liability under OCGA § 31-20-5 does not arise to bar their claim of battery. (We note that the Kellys concede in their brief that Bleier clips were marketed for post-partum use, contrary to their assertion before the trial court, and thus that issue is not before us.)

Decided June 3, 1988

Rehearing denied June 14, 1988

Terry A. Dillard, Bryant H. Bower, Jr., for appellants (case nos. 76291, 76337).

Amanda F. Williams, for Lovells.

James P. Fields, Clyde Urquhart, for Kellys.

It is not necessary, however, to reach the issue as to what constitutes a “full and reasonable medical explanation” under OCGA § 31-20-2 since the record reveals no evidence to rebut Dohn’s affidavit testimony that at the time of Mrs. Kelly’s sterilization operation in 1983, he was not aware of the high failure rate of the Bleier clip devices and did not become aware of such until late 1984, at which time he took steps to notify the Kellys of the greater than usual failure rate and conferred with them in early January 1985 about the matter. Although the Kellys asserted in interrogatory answers that questions regarding the failure rate of the Bleier clip device had arisen in 1981, the documentary evidence they submitted in support of this statement reveals that the article discussing the high failure rate was published in November 1984, which was the date of the article Dohn stated in his response to interrogatories first alerted him to the high failure rate. Thus, Dohn having carried his burden of piercing the Kellys’ allegation that he knew or should have known about the high failure rate in regard to Bleier clip devices in 1983, and in the absence of any evidence rebutting Dohn’s evidence so as to create a genuine issue for jury determination, the trial court erred by denying Dohn’s motion for summary judgment in Case No. 76337. See generally Taylor v. McDonald, 183 Ga. App. 320, 321-322 (359 SE2d 1) (1987).

Judgment in Case No. 76291 reversed as to appellant Norvell but otherwise affirmed. Judgment in Case No. 76337 reversed.

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


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    76360.
    WILLIAMS v. THOMAS.
    (370 SE2d 773)
   Birdsong, Chief Judge.

This is an appeal from the order of the Superior Court of Dougherty County denying appellant’s motion for a partial summary judgment and granting appellee’s motion for partial summary judgment.

Appellant and appellees’ joint motion to transfer this case to the Georgia Supreme Court is denied.

Appellant was injured on the job when he was struck by a motor vehicle owned by his employer and operated by co-employee, Harry Thomas, who was acting in the scope of his employment. Appellant made claim for and was awarded workers’ compensation benefits for his injuries. Appellant brought suit against his co-employee seeking damages and declaratory judgment. In particular, appellant sought a construction of the uninsured motorist provisions of his own automobile insurance policy, a declaration of his rights thereunder, and a determination of whether his co-employee would qualify as an uninsured motorist.

The trial judge concluded that “the form of recovery set forth in the Workers’ Compensation law of the State of Georgia, both in statute and as interpreted by the Courts, is the exclusive remedy for injuries sustained in cases such as these, i.e., where an employee is injured by the negligence of a co-employee. This court ... is persuaded by the rationale and holding in Allstate Ins. Co. v. Boynton, 486 S2d 552 (1986), a unanimous decision of the Florida Supreme Court. . . .” Although this is a case of first impression, we agree with the conclusion of the trial judge. OCGA § 34-9-11, on its face, pertinently provides: “The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee. . . .” (Emphasis supplied.) Cf. Pappas v. Hill-Staton Engineers, 183 Ga. App. 258 (358 SE2d 625) (the exclusive remedy provision of OCGA § 34-9-11 is not confined to rights at common law but applies to all rights and remedies which might otherwise be available to the employee as against the employer). Although it could have done so, the General Assembly has made no exception to the unambiguous rights and remedies provisions of this statute of exclusivity, so as to enable an injured employee to obtain a judgment against a co-employee in order to meet any statutory or contractual conditions necessary to the ultimate recovery of insurance benefits from his own insurer. Further, we find that the general provision for relief by declaratory judgment, contained in OCGA § 9-4-2 (c), does not constitute an exception to the exclusive rights and remedies provision of OCGA § 34-9-11.

Moreover, under the provisions of both the Georgia Uninsured Motorist Act (OCGA § 33-7-11) and appellant’s own automobile insurance policy, the insurer was obligated only to pay the insured all sums which the insured shall be “legally entitled to recover” as damage from the owner or operator of an uninsured motor vehicle. OCGA § 33-7-11 (a) (1).

Decided May 31, 1988

Rehearing denied June 14, 1988

Alfred N. Corriere, K. Alan Dasher, for appellant.

Michael L. Wetzel, for appellee.

Because OCGA § 33-7-11 (a) (1) requires under the Georgia Uninsured Motorist Act only the payment of all sums which the insured shall be “legally entitled to recover as damages from the owner or operator” of the uninsured motor vehicle, “ ‘[i]t is a condition precedent to an action against an automobile liability insurance carrier to recover under the [Act] on account of injuries and damages to the plaintiff resulting from the negligence of. . . [an] uninsured motorist, that suit shall have been brought and judgment recovered against the uninsured motorist.’ ” (Emphasis supplied.) Hartford Acc. &c. Co. v. Studebaker, 139 Ga. App. 386 (1) (228 SE2d 322); accord Wallis v. Cotton States Mut. Ins. Co., 182 Ga. App. 147, 148 (354 SE2d 842); Peagler &c. v. Studebaker, 156 Ga. App. 786 (275 SE2d 385); Continental Ins. Co. v. Echols, 145 Ga. App. 112, 113 (243 SE2d 88), cert. dismissed, 242 Ga. 419 (249 SE2d 616); Cash v. Balboa Ins. Co., 130 Ga. App. 60, 61 (202 SE2d 252); State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga. App. 54, 57 (147 SE2d 364); Jenkins & Darroch, Ga. Auto. Ins. Law, § 41-4; but cf. Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (224 SE2d 167) (insurer liable where uninsured motorist had been discharged in bankruptcy and judgment could not be obtained; see current provisions of OCGA § 33-7-11 (a) (4)); Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121) (holding that where the uninsured motorist could not be found the situation was analogous to Wilkinson); Watkins v. United States, 462 FSupp. 980 (S.D. Ga. 1977), aff'd on op. below, 587 F2d 279 (5th Cir. 1979) (if insured can establish tort liability he can recover from his insurer regardless of whether he can recover against the uninsured motorist; Fed. Drivers Act case).

Accordingly, as appellant is barred by the exclusive rights and remedies provision of OCGA § 34-9-11 from obtaining judgment either against his employer or the co-employee who injured him, he cannot satisfy the condition precedent to an action against his insurer for recovery under the uninsured motorist provisions of his policy. Accordingly, we find that the trial judge did not err.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    76632.
    PRUDENTIAL-BACHE SECURITIES, INC. v. BARTOW COUNTY BANK.
    (370 SE2d 751)
   Banke, Presiding Judge.

This is a garnishment action initiated by the appellant against the appellee bank to collect a judgment in the approximate amount of $55,000 which the appellant had previously obtained against one of the bank’s depositors, Edward E. Johnson. The bank acknowledged in its answer that it was indebted to Johnson on a $200,000 certificate of deposit but asserted that this certificate was not subject to garnishment because Johnson had previously assigned it to the bank as security for a corporate indebtedness which he had personally guaranteed in the amount of $750,000. This indebtedness was evidenced by two notes made payable to the bank which were alleged to be in default both because the corporate maker had failed to make all of the payments required thereunder and because it had initiated bankruptcy proceedings.

The appellant traversed the bank’s answer and subsequently learned, through discovery, that the bank was also in possession of approximately $10,000 in accrued interest payable on the certificate of deposit, a fact it had neglected to mention in its answer. Following an evidentiary hearing, the trial court denied the appellant’s traverse, concluding that the bank had a superior claim to both the principal and the interest owing on the certificate. In addition, the court determined that the bank was entitled to recover from the appellant its litigation expenses, including attorney fees, pursuant to OCGA § 18-4-97. The case is now before us pursuant to our grant of the appellant’s application for a discretionary appeal. See generally OCGA § 5-6-35 (a) (4).

After the appeal was docketed and after both parties had filed their briefs, counsel for the bank notified this court, by letter dated April 5, 1988, that the defendant-in-garnishment, Johnson, had died on April 2,1988. However, as the defendant-in-garnishment has never made any appearance in the case, either in this court or in the court below, we deem it appropriate to proceed to the merits of the appeal without resorting to the procedure set forth in Rule 39 of this court for securing the participation of a deceased party’s representative in the event of the party’s death during the pendency of an appeal. Held:

1. The appellant contends that the written documents pursuant to which the defendant-in-garnishment had assigned the certificate of deposit to the bank as collateral for the corporate indebtedness did not give the bank a perfected security interest in the certificate pursuant to Article 9 of the Uniform Commercial Code. We agree. The certificate specified on its face that it was “non-transferable,” with the result that it can be considered neither a “negotiable document” nor an “instrument” within the contemplation of the UCC, see OCGA §§ 11-9-105 (1) (i); 11-9-304; 11-9-305. Moreover, it has previously been observed by this court that “the secured transactions article of the Uniform Commercial Code does not apply to transfers of bank deposits or savings accounts.” Spurlock v. Commercial Banking Co., 138 Ga. App. 892, 894, fn. 1 (227 SE2d 790) (1976), aff’d 238 Ga. 123 (231 SE2d 748) (1977). However, it does not follow that the assignment documents were ineffective to give the bank a superior claim to the deposits represented by the certificate, for it has been held that an agreement which purports to transfer a security interest in bank deposits but is ineffective to do so may nevertheless be effective to create a contractual lien on such deposits. Accord Spurlock, supra, 138 Ga. App. at 895. We have been offered no reason why the defendant-in-garnishment’s clear intention to create such a lien in favor of the bank should not be honored.

“[W]hile the garnishment law [seeks] to prevent evasions and subterfuges, it does not intend to violate existing contracts or restrain the right to contract. It is only intended to reach something actually due the defendant and which he could recover himself.” J. Austin Dillon Co. v. Edwards Shoe Stores, 53 Ga. App. 437, 439 (186 SE 470) (1936). A judgment creditor is “bound by existing, though unrecorded, counterclaims, setoffs, pledges, encumbrances, or liens (cits.) whether the latter be created by contract or by operation of law. . . .” Owens v. Atlanta Trust &c. Co., 122 Ga. 521, 523 (50 SE 379) (1905).

The assignment documents were executed by the defendant-in-garnishment on April 14, 1986, the same day the certificate of deposit was issued to him by the bank, whereas the present garnishment action was not initiated until February 18, 1987. It follows that the bank’s contractual lien on the deposits represented by the certificate must be considered superior to the appellant’s lien of garnishment, with the result that the deposits were not subject to garnishment. We do not reach the issue of whether the bank’s contractual lien survived the maturity date specified on the certificate of deposit, which was April 14, 1987, as the bank’s answer was filed prior to that date; and this proceeding cannot be considered a “continuing” garnishment action within the contemplation of OCGA § 18-4-110 et seq.

2. We now turn to the issue of whether the interest which had accrued on the certificate of deposit was subject to garnishment. The certificate specified on its face that interest was to accrue at the rate of 7.5 percent per . annum and that it was to be paid to the depositor in the form of checks mailed to him on a monthly basis. The assignment documents contained no reference to these payments; however, as of the date the bank filed its answer, it had retained eight such interest checks, in the total amount of almost $10,000, without mailing them to the defendant-in-garnishment. As previously indicated, the bank’s answer included no reference to these checks.

We find no language in the assignment documents which would support the bank’s contention that its contractual lien on the certificate extended to these funds. We thus proceed directly to the bank’s alternative contention that even if it did not have a superior contractual lien on the accrued interest represented by the checks, it nevertheless had a superior claim to the funds by virtue of its common law right of set-off.

“[A] garnishee, if the debtor be indebted to him, has a lien on funds coming into his hands, or future indebtedness to the debtor on his part, superior to that of the plaintiff in garnishment. He is entitled to pay himself before he is required to collect for the benefit of others. . . .” Florida First Nat. Bank v. First Nat. Bank of Columbus, 154 Ga. App. 211, 213 (267 SE2d 849) (1980), citing Mutual Reserve &c. Co. v. Fowler, 2 Ga. App. 537, 540 (2) (59 SE 469) (1907). Accord First Nat. Bank of Atlanta v. Sinkler, 170 Ga. App. 668 (5) (317 SE2d 897) (1984); Gant, Inc. v. C & S Nat. Bank, 151 Ga. App. 212, 214 (259 SE2d 485) (1979).

The appellant contends that no such right of set-off arose in this case because it applies only with respect to matured debts owed to the garnishee by the defendant-in-garnishment. Cf. Washington Loan &c. Co. v. First Fulton Bank &c., 155 Ga. App. 141 (1, 3) (270 SE2d 242) (1980). It is apparent, however, that the defendant-in-garnishment’s liability on his guarantee of the corporate notes was in fact presently enforceable, there being no question that the notes were in default, and the bank having been expressly relieved by the terms of the guaranty agreements of any obligation to initiate collection efforts against the corporate debtor as a prerequisite to proceeding against the defendant-in-garnishment. Consequently, we conclude that the bank is correct in its contention that it had a common-law right of set-off with respect to the interest checks which, like its contractual lien on the certificate itself, was superior to the appellant’s lien of garnishment.

It does not follow, however, from the fact that the bank had a common law right of set-off against the accrued interest that its actions were sufficient to constitute an exercise of that right. It is apparent from the record that at the time the bank filed its answer it had not yet actually applied any of the interest owing on the certificate of deposit against the indebtedness represented by the corporate notes. Indeed, there is no indication that it has done so to this date. Rather, acting in reliance on the possibility that the corporate debtor’s assets, a significant portion of which had evidently been pledged to the bank as security for the notes, would be adequate to discharge its indebtedness on the notes, the bank had simply held the interest checks in reserve, adopting a “wait-and-see” attitude.

We do not believe the bank was entitled to have it both ways, i.e., both to retain possession of the interest checks and to postpone making a decision on whether actually to apply the indebtedness represented by those checks against the indebtedness owed by the defendant-in-garnishment on the guaranty agreements. Compare Washington Loan &c. Co. v. First Fulton Bank &c., supra. Rather, we conclude that by not exercising its right of set-off prior to filing its answer, the bank forfeited that right and became obligated to deliver the accrued interest to the court along with its answer, pursuant to OCGA § 18-4-84. To conclude otherwise would be to permit a garnishee to remove funds belonging to a judgment debtor from the pool of assets available for the satisfaction of the judgment without correspondingly reducing the liabilities of the judgment debtor, thereby facilitating evasion of the judgment. While the garnishee may legitimately maintain such a position with respect to property in which he has previously reserved a contractual lien or security interest, we do not believe he should be permitted to defeat a lien of garnishment with respect to property belonging to a judgment debtor merely by asserting, without exercising, a common-law right of set-off in such property. We consequently hold that the trial court erred in the present case in denying the appellant’s traverse with respect to the funds represented by the interest checks.

3. Because the bank’s answer included no reference to the interest checks, and because we have held that these funds were subject to garnishment under the facts of this case, it necessarily follows that the award of litigation expenses to the bank pursuant to OCGA § 18-4-97 must also be reversed, as that Code section authorizes such an award only where the expenses are incurred “in making a true answer of garnishment.”

Judgment affirmed in part and reversed in part.

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

On Motion for Rehearing.

On motion for rehearing, the bank contends that, notwithstanding the inapplicability of Article 9 of the UCC to the certificate of deposit itself, it acquired a perfected security interest in the interest checks pursuant to OCGA §§ 11-9-304 (1) and 11-9-305 by retaining possession of these “instruments” with the consent of the payee. We find this contention to be without merit. The checks cannot be considered “instruments” within the contemplation of the UCC (see OCGA § 11-9-105 (1) (i)) for the very reason that they were never delivered to the payee. “Delivery is essential to the existence of a negotiable instrument as an aspect of its original issue by the maker or drawer.” 6 Anderson, Uniform Commercial Code, § 3-305:71, p. 43 (3rd ed., 1984). Thus, the only significance of the checks is that they represent an acknowledgment by the bank of the amount of unpaid interest which had accrued on the certificate of deposit in the months prior to the filing of its answer.

Decided May 18, 1988

Rehearing denied June 14, 1988

Charles M. Dalziel, Jr., for appellant.

William M. Akin, for appellee.

The bank further argues on motion for rehearing that it should not be taken to task either for failing to disclose in its answer the amount of the accrued interest obligation represented by the checks or for failing to exercise its common-law right of set-off with respect to this obligation, because simultaneously with the filing of its answer it filed a separate pleading, entitled “Claim of Bartow County Bank,” in which it sought the court’s permission to set-off against the depositor’s indebtedness to the bank “the entire amount of said savings certificate of deposit, plus interest.” We do not believe this language provided reasonable notice to anyone that the bank had withheld and was seeking to set-off, in addition to current interest due on the certificate, several months of accrued interest totalling in excess of $10,000. This is particularly true in view of the language of the certificate providing for the payment of interest to the depositor on a monthly basis. Thus, we conclude that this single reference to “interest” did not constitute an exercise by the bank of its right of set-off with respect to the accrued interest owing on the certificate. The motion for rehearing is therefore denied.


author: McMurray, Presiding Judge.

text:
    75828.
    CREDITHRIFT OF AMERICA, INC. v. BORG-WARNER ACCEPTANCE CORPORATION.
    (370 SE2d 801)
   McMurray, Presiding Judge.

Credithrift of America, Inc. (Credithrift) brought an action against Borg-Warner Acceptance Corporation (Borg-Warner) in two counts, seeking in Count 1 to protect security interests it allegedly held in five Harbor Craft speedboats which were purchased from Lanier Harbor Marine Sales & Service (Lanier Harbor) by one of Credithrift’s customer’s, Boat Trading, Inc. (Boat Trading), Credithrift further alleged that Borg-Warner seized the five boats, which were located at Lanier Harbor’s place of business on Lake Lanier, Gainesville, Georgia, thereby impairing its security interests in the boats. In Count 2, Credithrift sought attorney fees, costs, and “such other and further relief as the Court may deem just and proper,” alleging that Borg-Warner acted in “bad faith” by seizing the boats with knowledge of Credithrift’s security interests. Borg-Warner answered, denied the material allegations of the complaint and defended, alleging that it had superior security interests in the boats pursuant to an inventory security agreement it had with Norcross Marine, Inc.

The case was tried before a jury and the evidence authorized a finding that Borg-Warner is in the business of financing inventory for dealers of boats, motors and related marine merchandise. Borg-Warner had an inventory security agreement with Norcross Marine, Inc. (Norcross Marine), covering merchandise at Norcross Marine’s locations in Norcross, Georgia and on Lake Lanier in Buford, Georgia. Archie Dave Dixon was the president of Norcross Marine and he also operated a marine supply business at the Lake Lanier location known as Lanier Harbor.

On May 13, 1985, Norcross Marine purchased five Harbor Craft speedboats from Harbor Craft, a boat manufacturer, and financed the boats through Borg-Warner. Two days later, Boat Trading, through its president, James Jordan, purchased the boats from Lanier Harbor. Boat Trading purchased the boats, financing them through Credithrift, in contemplation of operating a boat rental business located at Lanier Harbor on Lake Lanier. Archie Dave Dixon was to supply maintenance on the boats, insurance, advertising and operate the rental business in exchange for 50 percent of the boat rental proceeds.

Norcross Marine failed to pay Borg-Warner for the five boats and Borg-Warner later foreclosed on Norcross Marine’s collateral, including the five speedboats at Lanier Harbor. Both Borg-Warner and Credithrift had perfected their security interests in the boats by filing financing statements in accordance with the Uniform Commercial Code. At the close of evidence, the trial court denied Credithrift’s motion for directed verdict, and granted Borg-Warner’s motion for directed verdict, finding that Boat Trading “was not a buyer in the ordinary course of business.” This appeal followed. Held:

“ ‘OCGA § 9-11-50 (a) . . . provides in pertinent part that “(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. (Cit.) The standard used to review the grant or denial of a directed verdict is the “any evidence” test. (Cit.)’ Skelton v. Skelton, 251 Ga. 631 (4) (308 SE2d 838) (1983).” Leavell v. Bentley, 183 Ga. App. 366, 367 (1) (358 SE2d 907). From this perspective, we look to OCGA § 11-9-307 (1), which provides in part that “[a] buyer in ordinary course of business . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” A “ ‘[b]uyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind . . .” OCGA § 11-1-201 (9).

In the case sub judice, the evidence authorized a finding that Boat Trading purchased the five speedboats from the president of Norcross Marine, a dealer of marine products, and that Boat Trading did so as any other purchaser of goods in the ordinary course of business. Although there was evidence to support the trial court’s conclusion that the sale was somewhat less than “ordinary,” thereby removing the shield provided to consumers under the Uniform Commercial Code, “ ‘(t)he court cannot direct a verdict where there is any reasonable inference supported by evidence which would authorize a verdict to the contrary. (Cit.).’ Findley v. McDaniel, 158 Ga. App. 445, 447 (1) (280 SE2d 858) (1981).” Leavell v. Bentley, 183 Ga. App. 366, 367 (2) , 368, supra. Accordingly, the trial court erred in granting Borg-Warner’s motion for directed verdict. However, there was no error in the trial court’s denial of Credithrift’s motion for directed verdict as there was evidence to authorize a finding that Boat Trading was not a buyer in ordinary course. See Associates Fin. Svcs. Co. v. Intl. Harvester Credit Corp., 127 Ga. App. 636 (194 SE2d 518). See 1 Anderson, Uniform Commercial Code 189-190, § 1-201:23.

Decided June 14, 1988.

Ronald S. Stevens, Christopher J. McFadden, for appellant.

J. Loren Fowler, David Drake, for appellee.

Judgment reversed.

Pope and Benham, JJ., concur.

       Although the undisputed evidence revealed that Boat Trading and the president of Norcross Marine entered into a business relationship for the rental of boats, this is not controlling on the issue of Boat Trading’s status as a buyer in the ordinary course of business. “The fact that the buyer is related to the seller either by family or business relationship does not bar the buyer from being a buyer in ordinary course. Thus, the fact that the purchaser is an employee or a shareholder of the seller does not prevent the purchaser from being a buyer in ordinary course of business when the sale to him is made in the same way that it would be made to members of the general public.” 1 Anderson, Uniform Commercial Code 194, § 1-201:31. However, evidence of the parties’ business relationship is dispositive on the issue. “While relationship in itself does not bar the status of buyer in ordinary course, such relationship, when coupled with other circumstances, may be sufficient to show that the buyer was not such a buyer. Thus it has been held that the relationship of the parties and the terms of the sale may indicate that a subpurchaser is not a buyer in the ordinary course.” 1 Anderson, Uniform Commercial Code 194, supra.

       “When the circumstances make it manifest that the buyer did not purchase in good faith, he does not qualify as a buyer in the ordinary course of business. ... A person is not to be deemed a good faith purchaser where ‘it is clear that his sole intention was to obtain possession of the goods by purporting to buy them.’ ” 1 Anderson, Uniform Commercial Code 201, § 1-201:39.


text:
    75854.
    KITTLES et al. v. KITTLES.
    (370 SE2d 803)
   McMurray, Presiding Judge.

This case was before this court in Kittles v. Kittles, 181 Ga. App. 471 (352 SE2d 649), after Georgia Kittles’ (widow) application for a “third year’s support” was denied based on the fact that there were “substantial debts” of the estate at the time the widow’s petition was filed. We reversed because the widow was not allowed to present evidence to support her contention that the executors of the estate, William H. Kittles and Johanna K. Kittles, wrongfully failed to pay the estate’s debts for the purpose of defeating her claim for year’s support. This appeal followed a jury trial in which the widow was awarded a third year’s support comprising $30,000 and a tract of real property. Held:

1. In their first and fourth enumerations of error, the executors contend the trial court erred in allowing evidence of estate debts which existed after the widow filed her petition for year’s support and, in their third enumeration of error, the executors argue that the trial court erred in allowing evidence of the widow’s current medical expenses. They argue that such evidence was irrelevant.

“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly.” OCGA § 24-2-1. However, “[admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. Alexander v. State, 239 Ga. 108, 110 (236 SE2d 83). Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Crass v. State, 150 Ga. App. 374, 377-378 (257 SE2d 909).” Lewis v. State, 158 Ga. App. 586 (1), 587 (281 SE2d 331).

In the case sub judice, one of the issues before the jury was the amount of year’s support the widow was entitled to recover. The amount of year’s support is “to be determined using the criteria established in subsection (c) of [OCGA § 53-5-2] and keeping in view also the solvency of the estate.” (Emphasis supplied.) OCGA § 53-5-2 (b). Subsection (c) (2) of this Code section provides that other “criteria as the court deems equitable and proper” is relevant to the amount of the widow’s year’s support. From this perspective, we find that the trial court did not abuse its discretion in allowing evidence of estate debts and in allowing evidence of the widow’s current medical expenses as this evidence was relevant to the estate’s “solvency” and to determining the amount needed by the widow for year’s support.

2. In their second enumeration of error, the executors contend the trial court erred in allowing the widow to testify “regarding her alleged ministrations to the decedent during his last illness, the nature and types of such illness, the length of such illness, and her inability to get help from [the executors].” While such testimony seems to bear little, if any, relevance to the issues before the jury, i.e., whether the executors deliberately and intentionally failed to satisfy debts against the estate for the sole purpose of preventing the widow from exercising her claim to a year’s support and, if so, the amount of year’s support the widow is entitled to receive, we recognize that “ ‘[o]ur appellate courts have consistently adhered to the rule that an objection to the admission of evidence on the sole ground that it is “irrelevant” is insufficient to show error requiring reversal. (Cits.) . . .’ Jefferson v. State, 157 Ga. App. 324, 325-26 (277 SE2d 317) (1981).” Daniels v. State, 183 Ga. App. 222 (1), 223 (358 SE2d 637). Consequently, this enumeration of error is without merit.

3. Next, it is argued that the trial court erred in allowing the widow’s attorney to cross-examine executor William H. Kittles regarding the estate’s defense to the widow’s petition for a second year’s support. In this regard executor William H. Kittles affirmed on cross-examination that he authorized the estate’s attorney to argue that the executors’ motives in failing to pay estate debts is irrelevant to the widow’s claim for a year’s support.

“Although the scope of the cross-examination is not unlimited every party has a right to a thorough and sifting cross-examination of opposing witnesses the scope of which examination rests largely within the discretion of the trial judge.” Jackson v. State, 157 Ga. App. 604, 605 (3) (278 SE2d 5). In the case sub judice, considering the widow’s position that the executors intentionally failed to pay estate debts to defeat her right to a year’s support, we find that the trial court did not abuse its discretion in allowing this line of cross-examination. See Lewis v. State, 158 Ga. App. 586 (1), supra.

4. In their sixth enumeration of error, the executors contend the trial court erred in denying their motion for directed verdict, arguing that the evidence was insufficient to sustain a finding that they intentionally failed to pay estate debts in order to defeat the widow’s claim for year’s support.

“The standard of appellate review of a trial court’s denial of a motion for directed verdict is the ‘any evidence test.’ United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329, 330 (1) (304 SE2d 131) (1983).” Little v. Little, 173 Ga. App. 116 (1) (325 SE2d 624). The pivotal issue in the case sub judice was directed to the executors’ intent in failing to pay estate debts. “The intent with which an act is committed is not often capable of direct proof. It has always been held to be a question for the jury, to be drawn from the circumstances of the transaction under investigation.” Davis v. State, 53 Ga. App. 325 (1), 326, 327 (185 SE 400). In the case sub judice, evidence which supports the jury’s finding that the executors intentionally failed to pay estate debts so as to defeat the widow’s petition for year’s support was as follows: Estate assets were valued at over $150,000 while estate debts were only $20,000; Executor William H. Kittles affirmed on cross-examination that he did not try to sell property so that he would have assets to pay the debts of the estate and he explained that the reason he refused to sell estate assets was that “as an executor I have a responsibility also to preserve some of this property for the beneficiaries under the will.” Considering this evidence along with evidence showing that executor William H. Kittles was aware that estate debts would defeat the widow’s petition for year’s support, we find the trial court did not err in failing to direct a verdict for the executors. This enumeration of error is without merit.

5. The executors’ seventh, eighth and ninth enumerations of error challenge the trial court’s failure to charge certain of their written requests.

“[I]n all civil cases, no party may complain of . . . the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” OCGA § 5-5-24 (a). Although this Code section also provides that “[ojbjection need not be made with the particularity formerly required of assignments of error and need only be as reasonably definite as the circumstances will permit,” the executors’ objection that “[w]e except to the failure of the Court to charge [executors’] request No. 1A, 4, and 5, in that we believe that each of these requests to charge contain the correct statement of law which is properly adjusted to the evidence,” fails to meet the requirements of the statute.

“The mere exception to a failure to give a numbered request to charge fails to meet [the] requirement [of OCGA § 5-5-24 (a)]. U. S. Security Warehouse, Inc. v. Tasty Sandwich Co., 115 Ga. App. 764 (1) (156 SE2d 392). ‘To be reviewable the objection must be unmistakable in its purport in directing the attention of the trial court to the claimed error and must point out distinctly the portion of the charge challenged. The grounds of error urged must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to what the specific ground of challenge is. The grounds of error urged must fully apprise the court of the error committed and the correction needed to cure the error.’ Ga. Power Co. v. Maddox, 113 Ga. App. 642 (1) (149 SE2d 393).” Black v. Aultman, 120 Ga. App. 826 (1), 827 (172 SE2d 336).

Decided June 14, 1988.

Daniel H. White, Thomas H. Draffin, for appellants.

Robert P. Killian, for appellee.

Further, OCGA § 5-5-24 (c) provides that “ [notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” In the case sub judice, the refusal to give the charges requested show no such harmful error as a matter of law so as to require their consideration under subsection (c) of the statute. In fact, assuming appropriate objections were made, an examination of the requested charges shows that the subject matter of one of the charges was covered in the trial court’s instructions and that the other two requested charges were not supported by the evidence.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76205.
    MAHONE v. SHERMAN et al.
    (370 SE2d 806)
   McMurray, Presiding Judge.

Johnnie Mahone (plaintiff) brought an action against defendants Sherman and Guffie seeking damages which allegedly arose after defendant Guffie “crashed” a vehicle, owned by defendant Sherman, into plaintiff Mahone’s building. Defendant Guffie did not respond to the complaint and a default judgment was subsequently entered against her. Defendant Sherman denied the material allegations of the complaint and later filed a motion for summary judgment.

The undisputed facts show that Sherman sold a “1978 Plymouth Sapporo automobile” to Guffie in exchange for $1,000. Sherman allowed Guffie to test drive the automobile overnight and on April 16, 1985, defendant Guffie accepted the automobile, gave defendant Sherman a down payment and promised to pay the remaining balance in installments. At that time, Sherman signed the transfer portion of the title certificate over to her but retained possession of the automobile’s title until she paid the entire purchase price. Sherman had main-tamed a policy of motor vehicle liability insurance on the vehicle before the sale and, according to his deposition testimony, he maintained the insurance policy after the sale to protect himself from liability in the event Guffie was involved in a collision.

On June 9, 1985, Guffie lost control of the Plymouth automobile she had purchased from Sherman and collided into a building owned by plaintiff. Shortly after the collision, Guffie paid Sherman the remaining balance for the vehicle and Sherman gave her the automobile’s certificate of title.

The trial court granted defendant Sherman’s motion for summary judgment and this appeal followed. Held:

1. The contention that this appeal should be dismissed because plaintiff entered a voluntary dismissal of the action sub judice after judgment was entered and after plaintiff filed his notice of appeal is without merit. “ Tt has been held that the plaintiff’s right to dismiss can not be exercised after a verdict or a finding by the judge which is equivalent thereto has been reached . . . Merchants’ Bank v. Rawls, 7 Ga. 191; Peeples v. Root, 48 Ga. 592; Cherry v. Building & Loan Assn., 55 Ga. 19; Meador v. Bank, 56 Ga. 605 (4); Brunswick Grocery Co. v. Railroad Co., 106 Ga. 272 (32 SE 92). The principle at the foundation of these decisions is that after a party has taken the chances of litigation and knows what is the actual result reached in the suit by the tribunal which is to pass upon it, he can not, by exercising his right of voluntary dismissal, deprive the opposite party of the victory thus gained.’ Peoples Bank of Talbotton v. Exchange Bank of Macon, 119 Ga. 366, 368 (46 SE 416).” Cooper v. Rosser, 233 Ga. 388 (1), 389 (211 SE2d 303). Further, since plaintiff’s voluntary dismissal was filed in the trial court after the notice of appeal, it is a nullity and will not be considered on appeal. See Dalton American &c. Stop v. ADBE Distrib. Co., 146 Ga. App. 8, 11 (4) (245 SE2d 346).

2. Plaintiff contends the trial court erred in finding that defendant Sherman was not the owner of the vehicle at the time of the collision and was therefore not responsible for the consequences of defendant Guffie’s collision. In this vein, plaintiff argues that a genuine issue of material fact remains with regard to defendant Sherman’s ownership of the vehicle and that this disputed fact relates to whether defendant Sherman negligently entrusted his vehicle to defendant Guffie and whether defendant Sherman was liable as a joint tortfeasor for failing to maintain automobile liability insurance on the vehicle as is required by Georgia law.

Assuming, without deciding, that defendant Sherman was the owner of the vehicle at the time of the collision, we find the trial court properly granted defendant Sherman’s motion for summary judgment. (See American Mut. &c. Ins. Co. v. Cotton States Mut. Ins. Co., 149 Ga. App. 280, 281 (2, 3) (253 SE2d 825), with regard to determination of automobile ownership under circumstances similar to the case sub judice.)

Decided June 14, 1988.

Herald J. A. Alexander, for appellant.

Jeffrey F. Leasendale, Richard G. Greer, for appellees.

(a) Negligent Entrustment. “An essential element of establishing this tort is allegation and proof that the owner of the vehicle had actual knowledge of the intended driver’s incompetence. Pugmire Lincoln-Mercury, Inc. v. Sorrells, 142 Ga. App. 444, 445 (236 SE2d 113) (1977). (Emphasis supplied.)” Ballew v. Riggs, 244 Ga. 232, 235 (2) (259 SE2d 482). In the case sub judice, plaintiff neither alleged that defendant Guiñe was incompetent to drive a vehicle nor that defendant Sherman had knowledge that defendant Guiñe was incompetent to drive a vehicle. Further, there is no evidence in the record to indicate that defendant Sherman had any knowledge that defendant Guffie was incompetent to drive the subject vehicle. On the contrary, the undisputed evidence shows that defendant Sherman examined defendant Guffie’s driver’s license before allowing her to drive the automobile and that defendant Sherman was aware that defendant Guffie drove the vehicle for several weeks before the collision without mishap. “Standing alone, [these] undisputed [facts do] not establish the tort of negligent entrustment, and the trial judge was correct in granting [defendant Sherman’s motion] for summary judgment [on this issue].” Ballew v. Riggs, 244 Ga. 232, 235 (2), supra. See Thomason v. Harper, 162 Ga. App. 441, 444 (2) (289 SE2d 773).

(b) Joint tortfeasor. Contrary to plaintiff’s assertion that defendant Sherman was a joint tortfeasor for failing to insure the vehicle, the undisputed evidence shows that defendant Sherman maintained motor vehicle liability insurance on the subject vehicle at the time of the collision as is required by OCGA § 33-34-4. Consequently, the trial court properly granted summary judgment in favor of defendant Sherman on this issue. See Tamiami Trail Tours v. Bess, 150 Ga. App. 632, 635 (2) (258 SE2d 200).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76313.
    HUBBARD v. THE STATE.
    (371 SE2d 116)
   McMurray, Presiding Judge.

Defendant was convicted of trafficking in marijuana. Following the denial of his motion for a new trial, defendant appealed. Held:

1. It was not error for the trial court to admit into evidence a written prior inconsistent statement made by witness Randall Andrews. Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717); Lockhart v. State, 169 Ga. App. 931, 932 (315 SE2d 455). See also Waldrup v. Baker, 180 Ga. App. 121 (348 SE2d 566). Defendant’s first enumeration of error is without merit.

2. Defendant offered into evidence the transcript of a prior statement made by Randall Andrews which was consistent with Andrews’ testimony. In his second enumeration of error, defendant contends the trial court erred in refusing to admit the transcript into evidence. Assuming the trial court erred in refusing to admit the prior consistent statement (see in this connection Edwards v. State, 255 Ga. 149, 150 (2) (335 SE2d 869)), we cannot see how defendant was harmed. Defendant’s counsel questioned the witness about the consistent statement at length. In so doing, defendant’s counsel read large portions of the transcript. Moreover, the witness reiterated his version of events under oath at trial. The second enumeration of error is without merit. Wyatt v. State, 179 Ga. App. 327 (1), 328 (346 SE2d 387).

3. In the third and fourth enumerations of error, defendant complains about certain testimony elicited upon cross-examination from witness Harry Fleming. Defendant raised no objection with regard to that testimony. Accordingly, it cannot be considered on appeal. Houston v. State, 180 Ga. App. 267 (1) (349 SE2d 228).

4. Hair from a beauty shop was found in two marijuana patches allegedly planted by defendant. The beauty shop operator testified that defendant’s wife obtained the hair from her shop. At the time of his arrest, defendant was informed that his wife would be arrested too because of her connection with the hair found in the marijuana patches. (In fact, defendant’s wife was arrested and tried with defendant. At the close of the evidence, however, the trial court granted the wife’s motion for a directed verdict of acquittal.)

During cross-examination of the sheriff, defense counsel asked whether defendant was interrogated at the time of his arrest and the sheriff replied that he was. Thereupon, defense counsel asked the sheriff whether defendant told him to look in his garden for the hair which his wife obtained. The sheriff could not remember whether defendant made such a statement.

Thereafter, the State sought to introduce an incriminating statement which defendant made to the sheriff several days after defendant was arrested. A Jackson-Denno (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing was held and the sheriff testified as follows: While defendant was waiting to be released on bond, he and the sheriff struck up a conversation about hunting and hunting dogs. (Defendant and the sheriff knew each other well — they were cousins.) At some point, the conversation turned to the marijuana patches. (The sheriff did not remember who initiated this aspect of the conversation.) Defendant asked the sheriff if the room was bugged. The sheriff said it was not. Then defendant asked the sheriff if what he was about to say would be “off the record.” The sheriff said it would. (In this regard, the sheriff testified: “[B]efore he’d answer me or anything, he said, now, this is off the record, me and you are just talking and I said yeah.”) At that point, defendant made the incriminating statement.

The trial court ruled that the statement was voluntary. Subsequently, it was repeated for the jury. On cross-examination, the sheriff acknowledged that defendant would not have made the statement if he had been advised that anything he said could be used against him.

In his fifth enumeration of error, defendant contends the trial court erred in permitting the sheriff to testify with regard to the incriminating statement made by defendant. We agree.

“After an individual in custody on criminal charges has been given the complete Miranda warnings, it is not necessary that subsequent incidents of questioning the arrested person be preceded by repetition of the complete warning if that full warning is reinforced prior to subsequent interrogation by reminding the individual in custody that he was previously advised of his rights. [Cits.]” (Emphasis supplied.) Bragg v. State, 162 Ga. App. 264, 266 (291 SE2d 112). In the case sub judice, defendant was not reminded of his rights when he made the incriminating statement to the sheriff several days after his arrest. (Although there was no showing during the Jackson-Denno hearing that defendant was given his Miranda rights at the time of his arrest, this fact was brought out during the trial subsequently. Whether a full Miranda (Miranda v. Arizona, 348 U. S. 436 (86 SC 1602, 16 LE2d 694)) warning was given to defendant at the time of his arrest does not appear. We need not concern ourselves with the adequacy of the first Miranda warning, however, since it is clear that that prior warning was not reinforced at the time the incriminating statement was made.) Accordingly, the statement was not admissible. Grant v. State, 154 Ga. App. 758 (270 SE2d 42). Compare Watson v. State, 227 Ga. 698, 699 (1) (182 SE2d 446).

The State contends defendant “opened the door” to the incriminating statement by questioning the sheriff about defendant’s interrogation. We disagree. It is clear that defense counsel was referring to a statement which defendant purportedly made at the time of his arrest. The incriminating statement was made by defendant several days later.

It cannot be said it is highly probable that the admission of the incriminating statement did not contribute to the verdict of the jury. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). Accordingly, defendant must be afforded a new trial.

Decided June 14, 1988.

Dennis P. Helmreich, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

4. “It is only when the evidence demands a verdict of ‘not guilty’ that it is error for the trial court to refuse to grant a motion for a directed verdict of acquittal. Battle v. State, 155 Ga. App. 541 (271 SE2d 679) (1980).” Payne v. State, 184 Ga. App. 366 (1), 367 (361 SE2d 666). In the case sub judice, there was direct substantive evidence (as well as circumstantial evidence) of defendant’s guilt. See generally Gibbons v. State, 248 Ga. 858, supra. Accordingly, the trial court did not err in denying defendant’s motion for a directed verdict of acquittal. See generally Fatora v. State, 185 Ga. App. 15, 16 (1) (363 SE2d 566). Defendant’s ninth and tenth enumerations of error are not meritorious.

5. In his eleventh enumeration of error, defendant contends the trial court erred in permitting a Georgia Bureau of Investigation (GBI) agent to testify concerning statements made to him by defendant over the telephone since defendant was not advised of his Miranda rights at the outset of that conversation. A thorough review of the transcript demonstrates that the GBI agent did not ultimately testify as expected. He did not give testimony concerning the telephone conversation that was adverse to defendant. Accordingly, the eleventh enumeration of error is without merit.

6. The remaining enumerations of error are either wholly without merit or unlikely to occur again upon retrial.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Sognier, Judge.

text:
    75842.
    STEPHENS v. CRITTENDEN TRACTOR COMPANY.
    (370 SE2d 757)
   Sognier, Judge.

Crittenden Tractor Company brought suit on open account against John Stephens for sums due under a contract for purchase of a used combine and other equipment. Stephens answered and counterclaimed against Crittenden for breach of warranties of fitness for a particular purpose and merchantability, alleging that the equipment he purchased from Crittenden failed to operate properly or was not repaired adequately and that he had sustained damages as a result thereof. At the close of evidence, the trial court directed the jury to return a verdict in favor of Crittenden on its main claim and against Stephens on his counterclaim. Stephens appeals.

Evidence adduced at trial revealed that appellant accepted a price quotation from appellee to purchase a used Allis-Chalmers combine along with both a used corn head and a used floating grain head for the combine. The price quotation was contained in a document filled in by appellee’s agent that set forth both the price and the terms of the “used equipment warranty” on the equipment, namely, a 20% discount on all repair parts until the end of the 1985 soybean harvest and free labor on major failures such as engine and transmission. The parties subsequently signed an equipment purchase contract for the used equipment which contained, in boldface print, appellant’s agreement that he had read the warranty and conditions in the document and that he understood his copy of the document “to be the entire agreement relating to the sale and warranty of the above described machinery. The warranty does not apply to used machinery included in this order whether or not designated as such.” While most of the equipment purchase contract consisted of terms applicable only to the “Company,” i.e., Allis-Chalmers, a party not involved in the sale of the used equipment, the document did contain one provision, in Paragraph G, which specifically addressed appellee, as “Dealer.” Paragraph G provided: “NO DEALER WARRANTY The selling Dealer makes no warranty of his own on any equipment warranted by Company, and makes no warranty on other items unless he delivers to purchaser a separate written warranty specifically warranting the item. The Dealer has no authority to make any representation or promise on behalf of Company or to modify the terms or limitations of this Warranty in any way.” (Emphasis supplied.) Within a day or two after appellant took the combine and the corn head to his farm he began to experience numerous problems with the equipment which hampered his attempt to harvest his corn crop. Appellee was called upon repeatedly to service the equipment. The corn crop was eventually harvested with a combine provided free of charge as a test model by its manufacturer. However, when appellant subsequently sought to use the combine with the floating grain head to harvest his soybean crop, appellant was unable to use the grain head because mechanical difficulties prevented the grain head from properly “floating” so as to conform to the contours of the land and thereby to collect the soybean crop. Appellant borrowed a neighbor’s grain head to harvest the soybeans. The evidence was in sharp conflict over repairs to the grain head in that appellee asserted the grain head was repaired while appellant denied the head was ever operable. Appellant further testified that the combine itself developed such severe problems it could no longer safely be operated. At trial the evidence was uncontroverted that appellee never charged appellant any sums for any of the labor expended to service the used equipment and appellee gave appellant a 20 percent discount for repair parts not associated with normal wear and tear on the used equipment.

1. Appellant contends the trial court erred by directing a verdict in favor of appellee on his counterclaims for appellee’s breach of express and implied warranties. We note that appellant, through counsel, expressly waived any claims based on implied warranties during trial, a position consistent with the parties’ pre-trial order. Thus, we address only appellant’s arguments that appellee (a) breached the express warranty to repair by failing to repair the equipment in a timely fashion and (b) breached an express warranty to deliver the equipment in good condition pursuant to the provisions of OCGA § 11-2-313.

(a) We agree with appellant that there was evidence to support a finding that the “used equipment warranty” in the purchase order, providing that appellee would provide free labor on major failures, constituted a “separate written warranty” under Paragraph G of the equipment purchase contract not otherwise subject to the disclaimer of warranty contained therein. We further agree with appellant that the express warranty to provide free labor was an express warranty to repair, or at least service, the purchased equipment. In the absence of any language specifying the time for making such repairs, the warranty was thus subject to the provision of OCGA § 11-2-309 (1) imposing a “reasonable time” requirement on action taken pursuant to this warranty. Reviewing the evidence presented at trial, it is apparent that the timeliness of appellee’s repairs of the used equipment was a hotly contested issue, with both parties presenting conflicting evidence as to the number of times the equipment was serviced, the efficacy of the servicing, and the timeliness of the repairs in view of the status of the crops to be harvested.

“A jury issue is . . . presented regarding a reasonable time allowed a seller to comply with the warranty provision of a sales contract. [Cit.]” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 851 (1) (278 SE2d 689) (1981). See also Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 114 (2) (332 SE2d 336) (1985). “Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for jury resolution. [Cit.]” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 301 (3) (352 SE2d 185) (1986). Thus, we reverse the trial court’s grant of a directed verdict to appellee on appellant’s counterclaim insofar as the alleged breach of warranty to repair timely the purchased equipment is involved.

(b) Appellant also alleges there is a question of fact whether appellee breached an express warranty appellant contends existed pursuant to OCGA § 11-2-313. OCGA § 11-2-313 (1) provides: “Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise, (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Appellant argues that oral representations made to him by one of appellee’s employees and its president that the used equipment would be sold in “working” condition constituted an express warranty under OCGA § 11-2-313. Appellant argues that parol evidence in the form of trial testimony by appellee’s president and the employee in agreement with appellant’s contention that the equipment would be sold to appellant in “working” condition established conclusively the existence of this warranty. However, under the clear and unambiguous language in Paragraph G of the equipment purchase contract signed by appellant, no warranty could be made by the dealer, i.e., appellee, on the used equipment in the absence of a separate written warranty specifically warranting the item. The contract also explicitly provided that appellee could not modify the terms or limitations of the warranty document. Thus, appellant was on notice that appellee could offer a warranty on the used equipment only to the extent such warranty was contained in a separate written warranty and in the absence of any ambiguity, parol evidence was not admissible to add to, take from, or vary the terms of the written contract. See Rigg v. New World Pictures, 183 Ga. App. 446, 448 (2) (359 SE2d 207) (1987). The parol evidence from appellee’s president and employee, though admitted without objection, was nevertheless without probative value to vary the terms of the written contract. Cooper v. Vaughn, 81 Ga. App. 330, 337-338 (58 SE2d 453) (1950); Waters v. Lanier, 116 Ga. App. 471, 474-475 (157 SE2d 796) (1967). Evidence at trial established that the only document that could be construed as a separate written warranty under Paragraph G was the “used equipment warranty” in the purchase order which contained no warranty that the equipment would work, but only provided that the equipment would be repaired with free labor and with discounted repair parts.

Notwithstanding the language in Paragraph G of the equipment purchase contract, appellant argues the express warranty that the used equipment be in “working” condition that he claims was created by oral representations here could not be negated by the disclaimer in the contract, citing Century Dodge v. Mobley, 155 Ga. App. 712 (2) (272 SE2d 502) (1980) and Hill Aircraft v. Simon, 122 Ga. App. 524, 526 (2) (177 SE2d 803) (1970). In both those cases, an express warranty was contained in the contract in the form of a description of the purchase: in Century Dodge, supra, a vehicle previously involved in an accident was described in the contract as “new”; in Hill Aircraft, supra, an aircraft described as “flyable” failed to meet that requirement. The rationale for allowing a purchaser to pursue a remedy for breach of express warranty despite limitation language in the contract was clarified in Century Dodge on the basis that because “the car purchased was described as new in the contract,” under OCGA § 11-2-313 (former Code Ann. § 109A-2—313) it would be “unreasonable to allow an express warranty contained in a contract (the description as ‘new’) to be negated by a disclaimer of warranty in the same contract, for the two provisions are not consistent with each other.” (Emphasis supplied.) Id. at 713. Cases in which recovery for breach of contract based on an express warranty was barred when the purchaser had acknowledged a disclaimer of all warranties by signing the contract were carefully distinguished. Id. Since in the case sub judice the express warranty that the equipment be in “working” condition asserted by appellant was not contained in the contract, or otherwise referenced in a separate written document, the rationale of Century Dodge is not applicable and the disclaimer of warranty in Paragraph G of the equipment purchase contract barred any claim based thereon.

However, while the trial court properly directed the verdict in favor of appellee insofar as the express warranty that the equipment be in “working” condition is concerned, we note that while there was no evidence adduced at trial that appellant did not receive the precise combine and corn head he purchased, as to the grain head the purchase order reflected that appellant was purchasing a used thirteen foot “floating” grain head, serial number 61505. The equipment purchase contract indicates the purchase of a thirteen foot grain head, serial number 61305, with no indication whether the grain head was a “floating” head or not. Although there was no contention at trial that appellant did not receive the same used grain head he contracted to purchase (the difference in serial numbers notwithstanding), the evidence at trial conflicted whether the head appellant received was a floating head that was broken, was a floating head that was operational but which appellant mistakenly believed would contour itself to the shape of the field in a manner different from its capabilities, or whether the head was not a floating head at all but a fixed head. Thus, it is apparent a question of fact exists whether appellee breached its express warranty to provide appellant with a “floating” grain head, the description “floating” having been made part of the contract. See Century Dodge, supra. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. [Cits.]’ [Cit.]” Dependable &c. Co. v. Nursecare of Atlanta, 184 Ga. App. 136, 137 (1) (361 SE2d 23) (1987). The trial court erred by granting a directed verdict in favor of appellee on this issue.

2. Appellee argues that the directed verdict is nonetheless correct under Paragraph I of the equipment purchase contract providing: “REMEDIES EXCLUSIVE The Company’s liability, whether in contract or in tort, arising out of warranties, representations, instructions, or defects from any cause shall be limited exclusively to repairing or replacing parts under the conditions as aforesaid, and in no event will the Company be liable for consequential damages, including but not limited to loss of crops, loss of profits, rental or substitute equipment, or other commercial loss.” However, the equipment purchase contract contains no language comparably limiting the liability of appellee, whose status in the contract is that of “Dealer,” not “Company.” Thus, we do not agree with appellee that this paragraph applies to appellee so as to limit any damages appellant might prove as a result of appellee’s alleged breach of the express warranties discussed in Division 1, supra.

3. Appellant contends the trial court erred by ruling that appellant was not entitled to “rescind” or revoke his acceptance of the purchased equipment based on its nonconformity. OCGA § 11-2-608, entitled “Revocation of acceptance in whole or in part,” provides: “(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it: (a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.”

In Jacobs v. Metro Chrysler-Plymouth, 125 Ga. App. 462 (188 SE2d 250) (1972), the purchaser of an automobile subject only to a warranty to repair or replace defective parts sought to revoke his acceptance of the vehicle when the seller breached its warranty by a refusal to repair. This court upheld the denial of a motion for directed verdict made by the seller on the basis that a refusal to repair or an unsuccessful repair was such a breach as to render revocation of acceptance of the vehicle an available remedy under OCGA § 11-2-608 (former Code Ann. § 109A-2—608). Id. at 467 (1). While we agree with appellee that “although [the purchased equipment] may have been in poor operating condition and in need of extensive repairs, those factors did not place [the equipment] in nonconformance with the contract,” Bicknell v. B & S Enterprises, 160 Ga. App. 307, 309 (287 SE2d 310) (1981), we do not agree with appellee that Bicknell is applicable here because this is not a case where the purchaser seeks to revoke acceptance of a purchase due to discoverable nonconformities existing at the time of purchase. Rather, appellant seeks to use OCGA § 11-2-608 to revoke his acceptance of the equipment because appellee breached its warranty to provide timely repair of the used equipment, and is thus proceeding under the authority of Jacobs, supra, and OCGA § 11-2-106 (2), which provides: “Goods or conduct including any part of a performance are ‘conforming’ or conform to the contract when they are in accordance with the obligations under the contract.” Thus, appellant seeks a remedy cognizable under Georgia law, that of revoking his acceptance of goods due to the nonconformity of appellee’s performance of obligations under the contract. See generally Esquire Mobile Homes v. Arrendale, 182 Ga. App. 528-529 (1) (356 SE2d 250) (1987).

Decided May 24, 1988

Rehearing denied June 15, 1988.

Richard A. Childs, for appellant.

Jesse G. Bowles III, for appellee.

Since the remedy appellant seeks is legally available and in view of the existence of questions of fact whether appellee breached its warranty to repair appellant’s equipment and whether revocation was made within a reasonable time, see OCGA § 11-2-608 (2), the trial court erred by granting appellee’s motion for directed verdict on this issue. See generally Grabowski, supra; Griffith v. Nance, 175 Ga. App. 59, 60 (1) (332 SE2d 358) (1985).

Judgment affirmed in part and reversed in part.

Been, P. J., and Carley, J., concur.


text:
    75801.
    BAPTIST CONVENTION OF GEORGIA v. HENRY et al.
    (370 SE2d 813)
   McMurray, Presiding Judge.

Plaintiff Baptist Convention of the State of Georgia, d/b/a Georgia Baptist Medical Center, filed this continuing garnishment proceeding predicated upon its judgment in the Superior Court of Cherokee County against defendant Buddy Henry. The answer of garnishee Fafnier Bearing Company states that: “We do not have a Buddy Henry Employeed [sic]. We do have a Louis Barry Henry ...” Louis Barry Henry filed a traverse and counterclaim, alleging that he is not the same person as the defendant in the underlying Cherokee County judgment and that his wages were wrongfully garnished by reason of plaintiff’s summons of continuing garnishment.

Plaintiff’s garnishment was dismissed. All that remains pending is the counterclaim filed by Louis Barry Henry.

Plaintiff moved to strike the counterclaim filed by Louis Barry Henry. The Superior Court of Gordon County denied plaintiffs motion to strike and we granted plaintiff’s application for interlocutory review of this ruling. Held:

Decided June 15, 1988.

Frederick J. Hanna, for appellant.

J. Lane Bearden, for appellees.

The issues presented arise from the special statutory nature of the garnishment procedure. Our garnishment statute is in derogation of the common law and, thus, must be strictly construed. Terrell v. Fuller, 160 Ga. App. 56, 58 (286 SE2d 50). “Under Georgia law, the parties to a garnishment proceeding are the plaintiff and garnishee. However, a judgment debtor may become a party by utilizing the procedure set forth in OCGA § 18-4-93. That procedure calls for the judgment debtor to file a traverse to the plaintiff’s affidavit.” Travelers Ins. Co. v. Trans State, 172 Ga. App. 763, 764 (1) (324 SE2d 585).

Louis Barry Henry has attempted to inject himself as a party into the case sub judice by the filing of a traverse and counterclaim. Yet, as shown by his own traverse and counterclaim, Louis Barry Henry is not the defendant in this action and under the garnishment statutes there is no provision for this individual becoming a party to this action. While the wages of Louis Barry Henry may have been withheld for a brief period so as to give Louis Barry Henry a cause of action against one or more of the parties to the garnishment proceeding, such claim may not be asserted in this particular action. Nor do we find the recent decision in Yost v. Torok, 256 Ga. 92 (344 SE2d 414), to be relevant to the case sub judice since no unfounded claim, defense or other position has been asserted in court against Louis Barry Henry. Compare Young v. Bank of Quitman, 180 Ga. App. 491, 492 (349 SE2d 510). The superior court erred in denying plaintiff’s motion to strike the counterclaim filed by Louis Barry Henry.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Carley, Judge.

text:
    75892.
    THOMPSON v. THE STATE.
    (370 SE2d 814)
   Carley, Judge.

Appellant and his co-defendant were indicted for two counts of armed robbery. Appellant’s co-defendant pled guilty to the offenses. Appellant was tried before a jury and found guilty of both counts. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates the general grounds. After reviewing the evidence in the light most favorable to the verdict, we find that the State produced sufficient evidence at trial from which a rational trior of fact could have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the trial court’s giving of a charge on flight, contending that the charge was not authorized by the evidence presented at trial.

“We disagree with this contention as there was evidence that the perpetrators of the robbery fled the scene after commission of the crimes. . . .” Harris v. State, 234 Ga. 871, 874 (218 SE2d 583) (1975). See also Bullard v. State, 157 Ga. App. 606, 608 (4) (278 SE2d 26) (1981). “ Tt is well established that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. [Cit.] To justify a charge on a given subject, it is not necessary there should be compelling evidence giving rise to that point; it is enough if there be something from which a legitimate process of reasoning can be drawn from it by the jury.’ [Cit.]” Garnett v. State, 167 Ga. App. 792, 793 (307 SE2d 692) (1983). “The charge [on flight] did not intito the jury that flight had been proven but left it to the jury to determine whether there was flight, and, if so, what inference might be drawn therefrom.” Harris v. State, supra at 874. Appellant’s enumeration is without merit.

3. The trial court sustained the State’s objection to a portion of appellant’s closing argument wherein reference was made to the State’s failure to present appellant’s co-defendant as a witness. This ruling is enumerated as error.

“[I]t is not reasonable to infer that the [Sjtate’s failure to produce all available inculpatory witnesses means that their testimony would not have been inculpatory or would have been exculpatory.” Wilson v. Zant, 249 Ga. 373, 385 (4) (290 SE2d 442) (1982). See also Roper v. State, 251 Ga. 95, 98 (6) (303 SE2d 103) (1983). “[W]e will not find error where the trial court refuses to allow the defense counsel to argue that the jury may make an impermissible inference [from the failure of the State to present certain witnesses].” Gannaway v. State, 142 Ga. App. 87, 88 (2) (235 SE2d 392) (1977). See also Brown v. State, 150 Ga. App. 831, 832 (2) (258 SE2d 641) (1979). Moreover, “[i]n this instance the [witness was] as available to [appellant] as to the [S]tate, and the defense could have called [him] to testify.” Brown v. State, supra at 833 (2). Appellant’s enumeration is without merit.

Judgment affirmed.

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

Decided June 15, 1988.

Joseph C. Kitchings, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.


text:
    76182.
    TSILIMOS v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al.
    (370 SE2d 816)
   McMurray, Presiding Judge.

Plaintiff brought this libel action against The National Association for the Advancement of Colored People (“NAACP”) and the Vidalia Branch of the NAACP (“Vidalia Branch”). It was alleged that the NAACP was responsible for the publication of flyers which were distributed by the Vidalia Branch. The flyers concerned the local Dairy Queen which was managed by plaintiff. They read: “DON’T EAT OR PATRONIZE THE VIDALIA DAIRY QUEEN. The manager of our local Vidalia Dairy Queen practices sexual harassment, alcohol abuse on the premises, unfair treatment, and profanity to his own workers. We don’t need or want this kind of manager in our community. Help us help our community. THE VIDALIA NAACP.” Defendants answered the complaint and denied its material allegations.

The case proceeded to trial. Upon the close of plaintiff’s evidence, the NAACP moved for a directed verdict. The motion was granted. Thereafter, the jury rendered a verdict in favor of plaintiff and against the Vidalia Branch in the amount of $58,000 ($3,000 actual damages and $55,000 punitive damages). Judgment was entered in accordance with the verdict and plaintiff appealed. In his sole enumeration of error, plaintiff contends the trial court erred in granting the NAACP’s motion for a directed verdict. Held:

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions and inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); Tri-Eastern Petro. Corp. v. Glenn’s Super Gas, 178 Ga. App. 144, 145 (1) (342 SE2d 346) (1986).” Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. Folsom v. Vangilder, 159 Ga. App. 844 (285 SE2d 583) (1981).” Skelton v. Skelton, 251 Ga. 631, 633 (4) (308 SE2d 838).

Viewing the evidence most favorably to plaintiff, we find the following: Shortly after plaintiff terminated the employment of two black female employees, he was visited by Joanne Eason. She identified herself as a representative of the NAACP and the Vidalia Branch. Nothing came of that meeting. Tensions mounted in Vidalia. On October 21, 1985, plaintiff’s attorney addressed a letter to the “Vidalia — Toombs County Branch NAACP.” The letter sought a resolution of the conflict which was not accomplished. In January 1986 the Vidalia Branch published and distributed the flyers described above. The flyers were distributed for two days.

Following the distribution of the flyers, Earl Shinholster, a representative of the NAACP in Atlanta, attended a meeting at a restaurant in Vidalia. He also attended a meeting which took place in the office of plaintiff’s attorney. No evidence was adduced concerning what was said or what action was taken at the meetings. It was clear, however, that the NAACP did not repudiate the actions of the Vidalia Branch.

Relying upon National Assn. for the Advancement of Colored People v. Overstreet, 221 Ga. 16 (142 SE2d 816), cert. dismissed, 384 U. S. 118 (86 SC 1306, 16 LE2d 409), plaintiff takes the position that it was incumbent upon the NAACP to repudiate the actions of the Vidalia Branch in order to escape liability for the distribution of the flyer. In Overstreet, W. W. Law, the president of the Savannah Branch of the NAACP and the Georgia State Conference of Branches of the NAACP, called a mass meeting of the NAACP which led to the unlawful picketing of plaintiff’s store. The Supreme Court determined that the evidence was sufficient to establish a cause of action against the NAACP. In this regard, the Supreme Court held: “The national corporation never at any time disavowed the agency of Law ... or the Savannah Chapter in acting for it in this matter. It was notified of the action by Law ... If Law originally acted without authority and assumed to act for them without authority, they had the option to repudiate or ratify the act, but they were required to do one or the other. And where, as here, they never repudiated the act, they are deemed to have affirmed it.” National Assn. for the Advancement of Colored People v. Overstreet, supra at p. 27.

The holding reached by the Supreme Court in Overstreet is no longer tenable. In National Assn. for the Advancement of Colored People v. Claiborne Hardware Co., 458 U. S. 886 (102 SC 3409, 73 LE2d 1215), the Supreme Court of the United States held that the First Amendment prohibits the imposition of liability against the NAACP solely on the basis of political affiliation. In that case, suit was brought in the State of Mississippi against the NAACP on the ground that its field secretary, Charles Evers, was engaged in tortious boycott activities. The “chancellor in equity” found the NAACP liable. He determined that the NAACP had the option of repudiating the activities of its agent and that, by failing to do so, it subjected itself to liability. The Supreme Court of Mississippi affirmed. Reversing, the Supreme Court of the United States held: “The associational rights of the NAACP and its members have been recognized repeatedly by this Court. The NAACP — like any other organization — of course may be held responsible for the acts of its agents throughout the country that are undertaken within the scope of their actual or apparent authority. [Cit.] Moreover, the NAACP may be found liable for other conduct of which it had knowledge and specifically ratified.

“The chancellor made no finding that Charles Evers or any other NAACP member had either actual or apparent authority to commit acts of violence or to threaten violent conduct. The evidence in the record suggests the contrary . . . Similarly, there is no evidence that the NAACP ratified — or even had specific knowledge of — any of the acts of violence or threats of discipline associated with the boycott . . . The chancellor made no finding that the national organization was involved in any way in the boycott.

“To impose liability without a finding that the NAACP authorized — either actually or apparently — or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment.” Id. at 930, 931.

The high court concluded by quoting with approval Justice Douglas’ dissent from the dismissal of the writ of certiorari in National Assn. for the Advancement of Colored People v. Overstreet, 384 U. S. 118, supra: “ ‘To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit. We have not been slow to recognize that the protection of the First Amendment bars subtle as well as obvious devices by which political association might be stifled. [Cit.]’ ” National Assn. for the Advancement of Colored People v. Claiborne Hardware Co., supra at 931, 932.

The holding in National Assn. for the Advancement of Colored People v. Claiborne Hardware Co., supra, is quite apt. Plaintiff introduced no evidence demonstrating that the NAACP authorized (either actually or apparently) or ratified the tortious acts of the Vidalia Branch. It was not incumbent upon the NAACP to repudiate those acts. National Assn. for the Advancement of Colored People v. Claiborne Hardware Co., supra. It follows that the NAACP cannot be held liable for those acts and that the trial court did not err in granting the NAACP’s motion for a directed verdict.

Judgment affirmed.

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

Decided June 15, 1988.

D. Duston Tapley, Jr., for appellant.

Hugh B. McNatt, Randolph W. Thrower, Charles T. Lester, Jr., John L. North, for appellees.


text:
    76232.
    BROWN v. THE STATE.
    (370 SE2d 818)
    Decided June 15, 1988.

      George M. Saliba II, for appellant.

      H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant brings this appeal from his convictions of burglary, rape and theft by taking. Held:

1. In his first enumeration of error, defendant contends he was entitled to a directed verdict of acquittal because the only direct evidence implicating him was the testimony of an accomplice who was impeached. Completing the argument, defendant contends the accomplice’s testimony must be disregarded in its entirety (OCGA § 24-9-85 (b)) and that the remaining circumstantial evidence is not sufficient to sustain a conviction. This contention is without merit. A review of the transcript does not show that the accomplice gave “willfully and knowingly” false testimony. See OCGA § 24-9-85 (b); Fugitt v. State, 251 Ga. 451, 452 (1) (307 SE2d 471). Thus, the credit to be afforded the accomplice’s testimony was a matter for the jury to resolve. OCGA § 24-9-85 (a). True, the accomplice admitted that he lied to the police when he was initially arrested. Lying to the police, however, does not constitute false swearing. See generally Hill v. State, 159 Ga. App. 489, 490 (2) (283 SE2d 703).

2. Relying upon OCGA § 24-3-52, defendant contends the trial court erred in admitting into evidence the statements which the accomplice made to the police. In view of the fact that the accomplice took the stand and was cross-examined by defendant’s attorney, OCGA § 24-3-52 is inapplicable. Lattimore v. State, 175 Ga. App. 756, 757 (5) (334 SE2d 701). Accordingly, we find no error.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76250.
    MOON v. THE STATE.
    (370 SE2d 808)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of burglary and on appeal raises the sufficiency of the evidence as his sole enumeration of error. Held:

The State’s evidence shows that the burglary occurred at a residence. Entry was accomplished by breaking a window on the secluded back side of the house. Defendant’s fingerprints were found on both sides of a shard of glass remaining in the window frame. Within the knowledge of the sole resident of the house, defendant had never been to the residence for any legitimate reason.

The burglary occurred on December 10 or 11, 1986. Among the items taken in the burglary was $30 in half dollars, mostly Kennedy halves. During December 1986 defendant paid for convenience store purchases with Kennedy half dollars. “The evidence presented by the state was entirely circumstantial, and ‘(t)o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ OCGA § 24-4-6. Moreover, assuming that the appellant’s contention that his fingerprint is the sole evidence linking him to the crime is correct, the state was required ‘to prove to the exclusion of every reasonable hypothesis that the fingerprints could only have been impressed at the time the crime was committed. Barnett v. State, 153 Ga. App. 430 (1) (265 SE2d 348) (1980).’ Jones v. State, 156 Ga. App. 823, 824 (275 SE2d 712) (1980). ‘ “However, . . . circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.” ’ Jones v. State, supra, 156 Ga. App. at 824. The question of whether there was a reasonable hypothesis favorable to the accused is a question for the jury. Murdix v. State, 250 Ga. 272 (1) (297 SE2d 265) (1982); Harris v. State, 236 Ga. 242, 243-244 (223 SE2d 643) (1976). ‘ “If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law. (Cits.)” ’Jones v. State, supra, 156 Ga. App. at 824. Accord Pugh v. State, 250 Ga. 668 (1) (300 SE2d 504) (1983), Harris v. State, supra, 236 Ga. at 245.” White v. State, 253 Ga. 106, 107 (317 SE2d 196). See also Glover v. State, 175 Ga. App. 285, 287 (333 SE2d 165).

“Our review of the transcript demonstrates that the State met its burden of proving, to the exclusion of every other reasonable hypothesis, that [defendant’s] fingerprints which were on the broken glass of the window through which entry was gained to the burgled residence, could only have been impressed at the time the crime was committed. In the instant case, as in Jones v. State, [156 Ga. App. 823, 825 (275 SE2d 712)], ‘(t)here was no evidence presenting any other reasonable explanation as to how [defendant’s] fingerprints came to be on the window. (Cits.)’ Compare Anthony v. State, 85 Ga. App. 119 (68 SE2d 150) (1951); Vaughn v. State, 136 Ga. App. 54 (220 SE2d 66) (1975); Barnett v. State, 153 Ga. App. 430 (265 SE2d 348) (1980).” Brown v. State, 175 Ga. App. 778 (334 SE2d 365). When viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found defendant guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560); Clark v. State, 185 Ga. App. 513 (1), 514 (364 SE2d 641).

Decided June 15, 1988.

John J. Martin, Jr., for appellant.

Robert F. Mumford, District Attorney, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.