author: Carley, Chief Judge.

text:
    77908.
    HARRELL v. HUNTINGTON ASSOCIATES, LTD.
    (379 SE2d 194)
   Carley, Chief Judge.

Appellee-plaintiff is the holder of two promissory notes which were secured by real property. Payment of the notes was guaranteed by appellant-defendant. The notes went into default for the untimely failure to pay according to their terms. After this default, appellee brought suit against appellant on his guaranty agreement. Appellant answered, denying the material allegations of the complaint and, by supplemental answer, he subsequently raised certain other defenses. Appellant appeals from the grant of summary judgment in favor of appellee.

1. Appellant enumerates the grant of appellee’s motion for summary judgment as error, urging that a genuine issue of material fact remains as to whether the default was attributable to appellee’s own wrongful conduct. See generally OCGA § 13-4-23.

Appellant offered only his own affidavit in support of his OCGA § 13-4-23 defense. There is considerable doubt whether appellant’s affidavit should even be considered as sufficient to raise any genuine issue as to the asserted defense. In his affidavit, appellant merely sets forth his conclusion that appellee’s declaration of the default was “meritless and wrongful,” but does not include sufficiently specific facts to support such a conclusion. See generally Parlato v. MARTA, 165 Ga. App. 758, 759 (1) (302 SE2d 613) (1983).

However, even assuming that the affidavit would otherwise be sufficient to raise a genuine issue of material fact as to the OCGA § 13-4-23 defense, the other uncontradicted evidence of record shows the nonviability of that defense. It is undisputed that, subsequent to the default, the parties entered into several agreements. In those post-default agreements, appellant acknowledged the existence of an actionable default in the payment óf the notes, the validity of appellee’s acceleration of the underlying indebtednesses as the result of that default, and appellee’s entitlement to exercise its legal rights and remedies to secure payment of the accelerated indebtedness. In consideration of appellee’s acceptance of a partial payment on the accelerated indebtedness and its agreement to forebear the exercise of its legal rights and remedies for a specified period, appellant agreed that he would undertake to cure the default. These post-default agreements, which recognize the existence of an actionable default on the notes, are totally inconsistent with appellant’s present contention that appellee’s initial declaration of the default was “wrongful and meritless.” Accordingly, those post-default agreements serve to estop appellant from now establishing a defense based upon OCGA § 13-4-23. “ ‘ “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted to thus mend his hold. He is estopped from doing it by a settled principle of law.” [Cit.]’ ” Weldon v. Lashley, 214 Ga. 99, 103 (3) (103 SE2d 385) (1958). Appellant has, at all times prior to this litigation, acknowledged the existence of an actionable default and, under the principle of estoppel, he is prevented from now assuming, to the detriment of appellee, the inconsistent position that the default is not actionable. See generally Brown v. Scales, 109 Ga. App. 138 (135 SE2d 525) (1964).

Nothing in Pearson v. Brown, 105 Ga. 802 (31 SE 746) (1898) compels a contrary result. The holding in Pearson relates to an estoppel against the defense of partial failure of consideration and that holding has no applicability in a case where, as here, the asserted estoppel is addressed to a wholly different defense to liability. See Williams v. Rentz Banking Co., 114 Ga. App. 778 (152 SE2d 825) (1966). Moreover, here, unlike in Pearson, the evidence shows more than a mere naked post-default promise on the part of appellant to undertake to cure the acknowledged default. The uncontradicted evidence establishes a mutual agreement, supported by valuable consideration, whereby appellee, in return for a partial payment and the promise to cure the acknowledged default in a timely fashion, promised that it would forebear from the exercise of its legal rights and remedies.

Construing the evidence most favorably for appellant, no genuine issue of material fact remains as to his estoppel to assert the only defense that he has raised to his liability as guarantor of the notes. Accordingly, the trial court did not err in granting appellee’s motion for summary judgment.

2. Pursuant to OCGA § 5-6-48 (d), appellant has moved to supplement the record. “[A]n appellate court may, in its discretion, require that a record be supplemented. . . . [Cit.]” State v. Pike, 253 Ga. 304, 307 (320 SE2d 355) (1984). Appellant urges that the supplemental material will demonstrate that the grant of summary judgment in favor of appellee should be vacated as moot. Mootness, however, is a ground for dismissal of an appeal, and not a ground for the vacation of a judgment. See OCGA § 5-6-48.

The supplementary material at issue relates to an entirely separate legal proceeding and concerns events which did not occur in that separate proceeding until sometime after the trial court in the present case had granted summary judgment in favor of appellee. Consequently, that material relates to extraneous matters which were not raised in the trial court prior to the grant of appellee’s motion and, thus would have no bearing on the question of whether the order from which appellant appeals is or is not erroneous. “[I]t is obvious that the purported amendment, never having been considered by the trial court, has no place in the record on appeal.” Egerton v. Jolly, 133 Ga. App. 805, 807 (2) (212 SE2d 462) (1975). Accordingly, the motion to supplement the record is denied.

Decided February 10, 1989

Rehearing denied February 22, 1989.

Wildman, Harrold, Allen, Dixon & Branch, William L. Rothschild, for appellant.

Morris, Manning & Martin, David A. Rabin, for appellee.

3. Appellee’s motion for the imposition of damages for pursuit of a frivolous appeal is denied.

Judgment affirmed.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A0247.
    TOSTENSEN v. THE STATE.
    (379 SE2d 9)
   Banke, Presiding Judge.

While serving as the duly elected Clerk of the Superior Court of Glynn County, Georgia, the appellant was indicted by the Glynn County Grand Jury for three counts of theft by taking and one count of theft by conversion, based on allegations that he had unlawfully obtained or misappropriated funds belonging to the county. He moved to dismiss the indictment on the ground that the state had violated his rights under OCGA § 45-15-11 by failing to serve him with a copy of the indictment prior to its presentment to the grand jury, by not allowing him to be present during the grand jury proceedings, and by not allowing him to make a sworn statement at the conclusion of the state’s presentation of its evidence to the grand jury. The trial court denied the motion, and the case is now before us pursuant to our grant of the appellant’s application for an interlocutory appeal. At issue is whether the appellant is a “state official” within the contemplation of OCGA § 45-15-11. Held:

1. OCGA § 45-15-11 provides as follows: “Before an indictment charging any state official with misfeasance or malfeasance in office is presented to a grand jury, the rights provided in Code Section 45-11-4 shall be afforded said official and the district attorney of the county where the grand jury will convene shall notify the Attorney General of such contemplated action.” The following are the rights provided in OCGA § 45-11-4: “A copy of the indictment shall be served on the defendant before it is presented to the grand jury. The accused shall have the right to appear before the grand jury and make such sworn statement as he shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his counsel to examine the witnesses. The accused and his counsel shall have the right to be present during the presentation of all evidence and statements of the accused on the proposed indictment, presentment, or accusation after which he and his counsel shall retire from the grand jury room.”

Decided February 10, 1989

Rehearing denied February 22, 1989

John J. Ossick, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, Joseph L. Chambers, Spe cial Assistant District Attorney, for appellee.

In Lowndes County v. Dasher, 229 Ga. 289 (3) (191 SE2d 82) (1972), the Supreme Court held that where it was apparent from the language of the then-existing Constitution that the tax commissioner was a county officer, he could not be considered a state official within the contemplation of former Code Ann. § 40-1617, which was the predecessor to OCGA § 45-15-11. Under the present Georgia Constitution, the clerk of the superior court, judge of the probate court, sheriff, tax receiver, tax collector, and tax commissioner, where such office has replaced the tax receiver and tax collector, are specifically classified as county officers. Art. IX, Sec. I, Par. Ill, Ga. Const, of 1983. Under the authority of Lowndes County v. Dasher, supra, we accordingly hold that superior court clerks cannot currently be considered state officials within the contemplation of OCGA § 45-15-11.

We do not consider this court’s decision in Axson v. State, 174 Ga. App. 236 (1) (329 SE2d 566) (1985), to be authority for a contrary holding. There, we concluded that a superior court clerk who had resigned his office prior to the presentment of an indictment against him was “no longer a state official and thus [was] not entitled to any of the procedures of OCGA § 45-11-4 and § 45-15-11.” Id. at 236. Although it is possible to construe this language as an implicit holding that the clerk had been a state official before he resigned, we do not believe that issue was actually addressed. Rather, the court was merely saying that, even assuming the defendant had been a state official while serving as clerk, he was not entitled to the protection of the statute since he no longer held that position at the time the indictment was presented.

2. In view of the foregoing, we do not reach the issue of the state’s contention that the indictment did not charge the appellant with malfeasance in office.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Beasley, Judge.

text:
    77392.
    GIVENS v. BOURRIE.
    (379 SE2d 223)
   Beasley, Judge.

Following the denial of its motion for new trial and amended motion for new trial, defendant Givens d/b/a Givens Used Auto Parts appealed. The suit was brought by customer Bourrie for breach of contract, fraud, punitive damages, expenses under OCGA § 13-6-11, and the intentional violation of the Fair Business Practices Act of 1975, OCGA § 10-1-390 et seq., in the sale, installation, and warranty of a used gasoline engine.

The jury awarded plaintiff actual damages of $1,251.27 for each of his claims of breach of contract, fraud, and violation of the Act; it awarded no punitive damages but found violation of the Act to be intentional. Plaintiff elected the verdict rendered under OCGA § 10-1-390 et seq. Accordingly, pursuant to OCGA § 10-1-399 (c), the trial court entered judgment for treble damages in the amount of $3,753.81 plus interest from the date of judgment and costs.

1. Appellant contends the trial court erred in denying its original and renewed motions for a directed verdict because the plaintiff failed to prove damages as required by law.

Construing the evidence most favorably toward the plaintiff and the verdict, see Eddie Parker Interests v. Booth, 160 Ga. App. 15, 17 (285 SE2d 753) (1981), it showed that Bourrie decided to replace the diesel engine in his pickup truck with a 350 Oldsmobile gasoline engine. He called defendant, spoke with Mrs. Givens, and was told that they had a 1980 Oldsmobile 350 engine and would install it for one thousand dollars. When Bourrie brought his truck to defendant, he was again given the same information about the replacement engine. Bourrie agreed for the described engine to be put in.

A day or so later, Bourrie was notified by defendant that there was a problem with the transmission and that repair would cost an additional two hundred dollars. Bourrie agreed to the repair and defendant installed an engine in the truck.

When Bourrie picked up the truck he observed that the engine looked a little big for a 350 but was assured that it was “[a] good running 350, no problems.” He paid defendant twelve hundred dollars.

Printed language on the sales ticket stated, “Defective parts will be replaced if returned within 10 days of date of purchase. No cash refund.” Handwritten on the ticket was, “Engine guaranteed not to rod knock or burn oil. Warranty void if driven without oil or coolant.” Bourrie had been told verbally that the warranty was for thirty days.

Four days later the engine began to miss and skip. Bourrie knew defendant was closed for vacation, so he took the truck to Precision Tune for evaluation. The diagnosis was a defective intake manifold gasket. When Bourrie went to replace the part he discovered that the installed engine was a 455 rather than the promised 350 size engine. Bourrie called Mrs. Givens and was told that they did not guarantee the size of the engine.

Bourrie replaced the part and approximately two weeks after the purchase of the engine, he took the truck on a substantial motor trip out of state. The engine began to knock; a rod bearing had gone out. Bourrie had maintained oil and coolant in the engine. Bourrie rented a vehicle and towing equipment and towed the truck back to the defendant and asked that the engine be fixed. Defendant refused. Bourrie had his own mechanic take the defective engine out and eventually sold the truck.

Bourrie’s mechanic testified that the 455 engine used a lot more gas than did the 350, that it was a “guzzler,” that bearings went out all the time on a 455, that it was not a good engine to be used for working, and that in his garage there was no market for a 455 engine.

Plaintiff introduced into evidence the $1,200 sales slip from defendant, a $12.50 bill for the Precision Tune evaluation, his rental car bill for $145.50, and the rental towing equipment bill for $43.75.

Under the Fair Business Practices Act, the measure of damages is the actual injury suffered. Standish v. Hub Motor Co., 149 Ga. App. 365, 366 (254 SE2d 416) (1979). Since plaintiff produced evidence from which the jury could determine the actual damage suffered, the trial court correctly denied a directed verdict on plaintiff’s claim under the Fair Business Practices Act. OCGA § 9-11-50.

The sufficiency of the evidence of damages on the remaining claims is not reached inasmuch as the judgment at issue is based solely on the verdict under the Fair Business Practices Act.

2. Appellant contends that the court erred in its charge and recharge on the measure of damages recoverable on each count of his complaint. The court’s charge and recharge considered as a whole and the portions instructing on damages in connection with the other parts of the charge were correct statements of the law. See Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (1) (351 SE2d 82) (1986).

In briefing this enumeration, appellant also attempts to raise the failure of the court to give a specific request to charge and to give instruction on a principle regarding the disclaimer of warranties. These points are not before us because an enumeration of error cannot “be enlarged to include other issues not made therein. [Cit.]” Stewart Bros. v. Gen. Improvement Corp., 143 Ga. App. 258, 260 (1) (238 SE2d 259) (1977).

Decided February 22, 1989.

G. Hughel Harrison, for appellant.

Gordon C. Raeburn, for appellee.

3. Appellant challenges the trial court’s denial of his motion for new trial and amended motion for new trial solely on the bases already urged. The motions were properly denied. See Divisions 1 and 2, supra. Other grounds raised in the motion for new trial and the amended motion for new trial have not been pursued and therefore are deemed abandoned. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315) (1985).

Judgment affirmed.

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


text:
    77428.
    BURNETTE v. BRADLEY.
    (379 SE2d 225)
   Carley, Chief Judge.

Appellee-plaintiff is an attorney. Appellant-defendant, who had suffered personal injuries as the result of a traffic incident, engaged appellee as his legal representative. The parties entered into a contingency fee contract which provided, in relevant part, that appellee would receive, as compensation for his services in appellant’s behalf, 40 percent of “the gross recovery.” Through appellee’s efforts, appellant did secure $2,500 in PIP benefits. Appellee thereafter continued to negotiate for a settlement of appellant’s other personal injury claims. However, he was discharged as appellant’s legal representative on April 1, 1987, prior to securing any other recovery for appellant. Appellant requested that appellee submit a bill for his services to date.

Shortly after April 1, 1987, a $20,000 settlement offer of appellant’s claims was communicated to appellee. Appellee never informed appellant of this settlement offer. However, the $9,000 bill that appellee submitted to appellant reflected the combined sums of $8,000, representing 40 percent of the uncommunicated $20,000 settlement offer, and $1,000, representing 40 percent of the $2,500 in PIP benefits which had actually been recovered. Appellant refused to pay the $9,000 bill and demanded that appellee submit an itemized statement for the services he had actually rendered. Appellee responded by filing a two-count complaint against appellant.

In the first count of his complaint, appellee sought to recover $9,000 under the written contingent fee contract. In the second count, appellee sought to recover “at least $9,000” under a quantum meruit theory. A bench trial was conducted. The trial court found in favor of appellee on the contingency fee contract claim and awarded him $9,000. The trial court also found in favor of appellee on the quantum meruit claim but awarded no damages, having determined that appellee’s “evidence [as to damages was] too remote and any award under [the quantum meruit theory] would be too speculative.” Appellant appeals from the judgment entered by the trial court in favor of appellee.

1. Appellant raises the general grounds. He concedes that the evidence would authorize appellee to recover $1,000 under the terms of the express contingency fee contract but urges that any recovery greater than that would not be authorized.

“An attorney at law cannot recover under a- contingent fee contract unless the contingency expressed in the contract occurs. [Cits.] In absence of a contingent fee contract a client has a right to terminate the employment of an attorney at any time upon the payment of reasonable attorney’s fees, and such termination is not considered a breach of the contract. [Cit.] Where there is a contingent fee arrangement between a client and his attorney and the client prevents the contingency from happening, the attorney is entitled to reasonable attorney’s fees for his services that have been rendered on behalf of the client. [Cits.]” Bearden v. Lane, 107 Ga. App. 424, 425-426 (1) (130 SE2d 619) (1963). See also Overman v. All Cities Transfer Co., 176 Ga. App. 436, 438 (336 SE2d 341) (1985); Hopkins v. Steele, 164 Ga. App. 527 (297 SE2d 528) (1982); Brookhaven Supply Co. v. Rary, 131 Ga. App. 310, 311 (4) (205 SE2d 885) (1974). Here, the parties’ contingency fee contract provided for the payment to appellee of 40 percent of appellant’s “gross recovery.” At the time that appellee was discharged, appellant’s “gross recovery” consisted only of the $2,500 in PIP benefits. The $20,000 settlement offer had neither been made nor accepted prior to appellant’s discharge of appellee. Accordingly, appellee’s recovery under the contract would necessarily be limited to $1,000, which sum represents 40 percent of appellant’s $2,500 “gross recovery” at the time appellee was discharged and the contract for appellee’s services was terminated. An additional $8,000, representing 40 percent of the uncommunicated and unaccepted post-discharge $20,000 settlement offer, would not be recoverable by appellee under the terms of the express contract. Accordingly, the trial court erred in entering a judgment greater than $1,000 in favor of appellee as to Count One of his complaint.

2. Quantum meruit would be an alternative theory of recovery by appellee. “It is a well settled principle of law that a party to a contract for services who has partly performed his obligation thereunder by rendering valuable services may, where it appears that the opposite party has repudiated and abandoned the contract, waive his right to recover for a breach of the contract, and, by treating the contract as rescinded, maintain an action in quantum meruit against the other contracting party for value of the services rendered. [Cits.]” Brown v. Home Security Corp., 106 Ga. App. 147, 150 (2) (126 SE2d 439) (1962). However, as appellee has filed no cross-appeal from the judgment entered by the trial court on Count Two of the complaint, the issue of whether the trial court erred in failing to award damages to appellee under the alternative quantum meruit theory is not before us. Karr v. Ryback, 186 Ga. App. 842 (4) (368 SE2d 799) (1988); Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783 (1) (302 SE2d 594) (1983). Compare Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987) (where, in the absence of a cross-appeal, a ruling adverse to the appellees was considered by the appellate court because the propriety of said ruling was “critical to the disposition of errors enumerated by appellants.”) Accordingly, we have no authority to reach the issue of whether, contrary to the trial court’s determination, the evidence as to the reasonable value of appellee’s services was sufficient to authorize an award of damages under the quantum meruit theory.

Decided February 22, 1989.

Charles E. Muskett, for appellant.

Robert H. Herndon, for appellee.

3. The judgment is affirmed with direction that, as to Count One, all relief granted to appellee other than an award of monetary damages in the amount of $1,000 be stricken therefrom.

Judgment affirmed with direction.

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


text:
    77523.
    WATKINS v. THE STATE.
    (379 SE2d 227)
   Carley, Chief Judge.

Appellant was convicted of burglary and criminal damage to property in the second degree. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. Appellant enumerates the general grounds, urging that the evidence, which was entirely circumstantial, was not sufficient to exclude all other reasonable hypotheses save that of his guilt.

“ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with guilt but shall exclude every other reasonable hypothesis save that of guilt of the accused. [Cit.] Such evidence need not exclude every inference or hypothesis except guilt of an accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. [Cit.] “Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” [Cit.]’ [Cit.]” (Emphasis in original.) Gee v. State, 146 Ga. App. 528 (1) (246 SE2d 720) (1978). See also Montgomery v. State, 168 Ga. App. 625, 628 (309 SE2d 902) (1983). From the circumstantial evidence produced at appellant’s trial, any rational trier of fact could reasonably have found him guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Evans v. State, 256 Ga. 10, 12 (1) (342 SE2d 684) (1986).

Decided February 22, 1989.

The Garland Firm, Charles G. Haldi, Jr., for appellant.

Robert E. Wilson, District Attorney, Eleni A. Pryles, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.

2. The State’s expert witness in forensic serology was allowed to testify as to the frequency with which a certain blood type appears in the general population. This evidence was properly admitted. Evans v. State, supra at 12 (2).

3. The trial court did not err in admitting evidence of prior difficulties between appellant and the victim. “ ‘On a trial of an indictment for [criminal damage to property], it is not error to admit evidence showing that feelings of anger or dislike existed on the part of the defendant toward the owner of the property.’ [Cit.] . . . The evidence objected to in the case sub judice was of actions and words of the defendant toward the property owner and therefore admissible to show the ‘feelings’ of the defendant toward such property owner.” Wright v. State, 113 Ga. App. 436, 437 (1) (148 SE2d 333) (1966). See also Wilson v. State, 171 Ga. App. 120 (1) (318 SE2d 705) (1984).

Judgments affirmed.

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


author: Sognier, Judge.

text:
    77597.
    BROOKS v. THE STATE
    (379 SE2d 228)
   Sognier, Judge.

James Calvin Brooks appeals from his conviction of possessing marijuana with the intent to distribute.

Construing the evidence to support the jury’s verdict, the record reveals that DeKalb County Police Officer Bullard and his partner staked out a location where about 600 previous arrests for sales of drugs such as marijuana had occurred. They watched for about fifteen or twenty minutes, and observed between five and seven transactions, each lasting about ten to fifteen seconds. Each time, they observed a black male, later identified as appellant, who was standing in a driveway near an intersection, approach and stop vehicles turning at the intersection and direct them into the driveway. The vehicles stopped, money changed hands, and then appellant passed a manila envelope to the driver or, sometimes, the passenger if there were two people in the car. Appellant then returned to the driveway and awaited the next approaching vehicle. When the two officers started toward appellant after he had approached and stopped a Bronco carrying two white males, the men in the Bronco drove off. The officers stopped appellant, and Officer Bullard saw appellant throw a brown paper bag away from him and retain a black bag in his hand. Appellant drew a toy gun from the black bag but did not point it, then dropped the black bag as well and raised his arms. The brown paper bag thrown away by appellant was later found to contain small manila coin envelopes (“dime bags”) of marijuana. The black bag contained a black toy gun, scotch tape, and small empty marijuana envelopes. No money was found in the black bag, and Officer Bullard could not recollect with certainty whether appellant had any money on him when stopped. He thought appellant did and was allowed to keep it because he told the officers he had children, but a later search of appellant’s person and the arrest scene yielded no money.

Appellant denied selling drugs. He testified that a work acquaintance named Johnson had left the black bag and the envelopes of marijuana at his house that evening, indicating that he would return to get his things. Johnson never returned, and since Johnson had left similar items at his home before, and appellant knew the brown bag contained marijuana (but appellant denied knowing what was in the black bag) and appellant’s wife became uneasy about having these items in the house, he took the items Johnson had left and went to a nearby laundry to see if he could find Johnson to return the items. He denied approaching and stopping cars, and denied reaching into the black bag.

1. Appellant first enumerates the general grounds, specifically contending the evidence was insufficient to support the conviction because no money or drugs were seen passing hands. However, this contention is not supported by the record. Officer Bullard testified that appellant “would approach [the car], and we would see money change hands first, and then the bag was passed to the person inside the vehicle.” As appellant admitted that the envelopes found in his possession contained marijuana, the evidence was sufficient to authorize the jury to convict appellant of the offense charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 22, 1989.

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, Barbara B. Conroy, Assistant District Attorneys, for appellee.

2. Appellant also contends the trial court erred by recharging the jury on the meaning of “distribution.” The record reveals that after beginning their deliberations, the jury asked the trial court to define “distribution,” and also asked some specific questions regarding “distribution” and requested certain information which had not been given in the evidence presented at trial. Regarding the latter, the trial court instructed the jury that the evidence was closed, and they would have to decide based on the evidence they already had. Regarding the definition of “distribution,” before responding to the jury’s question the trial court told counsel it would instruct the jury that “distribution” should be given its “common ordinary meaning,” and that there were no “magical legal words of any kind.” The trial court then specifically asked counsel if they agreed with that, and appellant’s counsel said she did. The trial court then so recharged the jury, and after doing so, asked if there were any exceptions to the recharge, to which appellant’s counsel replied “[w]e reserve exceptions.” When reminded by the judge that she had agreed to the recharge before it was given, appellant’s counsel replied, “[w]ell, I guess I kind of did. Yes, sir, I agreed to that.” In admitting that she had agreed to it, appellant’s counsel waived any exception to the recharge. “‘[A] litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an [alleged] erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. [Cit.]’ [Cit.]” Sanders v. State, 181 Ga. App. 117, 120 (351 SE2d 666) (1986). Any issues “not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court. [Cit.]” Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552) (1988). Consequently this issue was not preserved for appeal.

Judgment affirmed.

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


text:
    77702.
    77703.
    KORNEGAY v. MUNDY et al. ANCHOR SAVINGS BANK v. MUNDY et al.
    (379 SE2d 14)
   Carley, Chief Judge.

Appellee-plaintiffs Mr. and Mrs. James Mundy filed suit against appellant-defendants H. Street Kornegay and Anchor Savings Bank (Anchor). The complaint alleged that Kornegay had, with the full knowledge of his employer, Anchor, intentionally inflicted emotional distress upon Mrs. Mundy and that he had also tortiously interfered with her business relations. Mrs. Mundy sought to recover damages for the alleged torts and Mr. Mundy sought to recover for the loss of his wife’s consortium. Appellees answered, denying the material allegations of appellants’ complaint.

Following extensive discovery, appellants moved for summary judgment. After a hearing, the trial court denied the motions, but certified its orders for immediate review. Pursuant to our grant of their applications for interlocutory appeal, Kornegay appeals from the denial of his motion for summary judgment in Case No. 77702 and Anchor appeals from the trial court’s denial of its motion for summary judgment in Case No. 77703.

Case No. 77702

1. Kornegay enumerates as error the trial court’s denial of his motion for summary judgment, urging that no genuine issue of material fact remains as to his liability.

The evidence of record shows that both Mrs. Mundy and Kornegay were, at the times relevant to this appeal, employees of Anchor. Mrs. Mundy was employed as the manager of an Anchor branch bank in Hapeville. Kornegay was employed as an Anchor public relations officer. Neither had direct managerial or supervisory authority over the other. In denying the motion for summary judgment, the trial court found that the following alleged incidents would authorize a jury to find that Kornegay had intentionally inflicted emotional distress upon Mrs. Mundy and that he had tortiously interfered with her business relations: “1) Several comments made by Kornegay in the presence of others to the effect that he was not sure of what color her hair was, and that he had known her when it was black. 2) Kornegay asked [Mrs.] Mundy’s age and when she refused, he asked her husband what was her age. 3) The Mundys maintained a boat at a marina at Lake Jackson where Kornegay owns a home. [Mrs.] Mundy’s discomfort around Kornegay caused her to sell her boat. 4) Kornegay allegedly interfered with bank operations by walking behind the teller lines over [Mrs.] Mundy’s objections. 5) Kornegay allegedly tampered with the wheels on [Mrs.] Mundy’s chair causing her to fall to the floor when she sat down. 6) Kornegay allegedly plundered through [Mrs.] Mundy’s purse, desk and office and removed files and records from her office. 7) Kornegay allegedly interrupted [Mrs.] Mundy over an eight-month period while [Mrs.] Mundy was consulting with customers about their problems. 8) Kornegay allegedly interfered with the performance of bank tellers in violation of Anchor’s policy. 9) Kornegay alleged that [Mrs.] Mundy was responsible for an employee by the name of Tom Sawyer being fired at the Hapeville Anchor Branch. 10) Kornegay stated that ‘no woman was capable of managing the Hapeville branch office.’ 11) Kornegay allegedly showed account balances to persons other than the owner of the account. 12) Kornegay allegedly violated the Safety Deposit Box policies by allowing access to safety deposit boxes by non-owners of the boxes and allegedly destroyed safe deposit signature cards. 13) Kornegay allegedly approved share loan rates at other than the regulated interest rate charged, issued illegal share notes, cashed certificates early without penalty and allowed loans to be collateralized by property other than that of the obligor. 14) Kornegay allegedly swept objects off [Mrs.] Mundy’s desk to the floor while she was on the telephone.”

By way of response to at least two of these alleged incidents, Numbers 5 and 6, Kornegay offered his sworn denial of any involvement. No one witnessed these acts and appellees failed to offer any evidence to support their allegations other than their mere suspicion that Kornegay was involved. Once the pleadings have been pierced, the plaintiff may not rest upon his complaint but must come forward with “his case in full in order to show there is a genuine issue for trial. [Cits.]” Alghita v. Universal Investment & Mfg. Co., 167 Ga. App. 562, 567 (307 SE2d 99) (1983). As to those two instances wherein the uncontradicted evidence shows that Kornegay was not involved, no genuine issue of fact remains and, accordingly, those instances should have been eliminated from consideration by the trial court as factual support for a tort claim against Kornegay.

The remaining instances of Kornegay’s alleged tortious conduct, whether considered individually o.r collectively, do not, as a matter of law, rise to the requisite level of egregious or outrageous behavior which justifiably results, in that severe fright, humiliation, embarrassment, or outrage which no reasonable person is expected to endure. See Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 773 (324 SE2d 593) (1984). See also Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222 (369 SE2d 541) (1988); Carruth v. Roberts, 189 Ga. App. 247 (375 SE2d 499) (1988), Alleged tasteless and rude social conduct on the part of Kornegay—such as commenting on Mrs. Mundy’s age and hair color, interrupting her conversations or knocking objects from her desk—is not actionable. “ ‘[T]he liability [for intentional infliction of emotional distress] clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of . . . filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.’ ” (Emphasis omitted.) Moses v. Prudential Ins. Co. of America, supra at 225. Likewise, Kornegay’s allegedly disruptive and questionable professional conduct directed toward others—such as interfering with Anchor’s bank tellers, and violating Anchor’s safety deposit and loan policies—may give rise to justifiable concern on the part of the parties who were directly affected, but such conduct would not afford Mrs. Mundy a viable basis for claiming that she herself was justifiably frightened, humiliated, embarrassed, or outraged. Construing the evidence most strongly against Kornegay, there was an internal power struggle between himself and another Anchor employee as to how the Hapeville branch would be managed. Although Mrs. Mundy held the title of manager, Kornegay insisted on questioning and challenging her authority and ability. An employee’s ongoing frustration in the work place, born of a personality conflict with a co-employee, does not give rise to an action for intentional infliction of emotional distress. Such a conflict between employees is a matter to be resolved by the mutual employer. It should not be litigated in a court of law.

The alleged acts were also insufficient, as a matter of law, to support an action against Mr. Kornegay for the tortious interference with Mrs. Mundy’s business relationship with Anchor. See generally West Va. Glass Specialty Co. v. Guice & Walshe, Inc., 170 Ga. App. 556, 557 (1) (317 SE2d 592) (1984); Henson v. American Family Corp., 171 Ga. App. 724, 729 (4) (321 SE2d 205) (1984); Sacks v. McCrory, 160 Ga. App. 430 (1) (287 SE2d 292) (1981).

For the reasons stated, the trial court erred in denying summary judgment in favor of Mr. Kornegay.

Case No. 77703

2. Anchor enumerates as error the trial court’s denial of its motion for summary judgment.

The only basis for a recovery against Anchor would be Anchor’s vicarious liability for the tortious actions of Kornegay as its employee. Where the liability of a party is premised solely upon his vicarious liability for the tortious actions of an agent and judgment is entered for the agent, the party alleged to be vicariously liable is also entitled to judgment. See Duke Trucking Co. v. Giles, 185 Ga. App. 833, 835 (2) (366 SE2d 216) (1988); Hughes v. Newell, 152 Ga. App. 618, 623 (4) (263 SE2d 505) (1979). Accordingly, our holding in Division 1 mandates the reversal of the trial court’s denial of Anchor’s motion for summary judgment.

Decided February 22, 1989.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, for appellant (case no. 77702).

Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Wade K. Copeland, for appellant (case no. 77703).

Meals, Kirwan, Goger, Winter & Parks, David R. Bundrick, James T. Perry, for áppellees.

Judgments reversed.

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


author: Deen, Presiding Judge.

text:
    A89A0028.
    MOYE v. THE STATE.
    (379 SE2d 17)
   Deen, Presiding Judge.

Edward Dewey Moye was convicted of possession of cocaine with intent to distribute, and contributing to the delinquency of a minor. On appeal, he contends that the trial court erred in denying his motion for a directed verdict because there was insufficient evidence to convict him of the offenses with which he was charged, and that it was error for the court to admit evidence of an alleged theft because it was not relevant, had no probative value, and placed his character in issue.

1. Appellant first argues that the State failed to prove that he had either actual or constructive possession of the cocaine because the only evidence was the uncorroborated testimony of an alleged accomplice.

The evidence showed that a former auxiliary deputy sheriff, Emmett Pinkston, observed a seventeen-year-old (“Troy”) enter a pharmacy and noticed what appeared to be needle marks on his arm. He saw Troy purchase insulin syringes, leave the pharmacy, and enter a pick-up truck containing two other males. Pinkston followed the truck to a wooded area, and then he contacted Special Agent Cuellar of the Lowndes/Valdosta Drug Unit. He met Cuellar and other agents and pointed out the location where the truck entered the woods. The agents observed the truck coming out of this location. It contained appellant, who was seated by the passenger window; Troy, who was seated in the middle; and a sixteen-year-old (“Jared”), who was driving. Cuellar observed Troy moving about as if attempting to hide something to his right as the officers were pulling the vehicle over to question the occupants. After the men exited the vehicle at the agents’ request, one of the agents noticed a corner piece of an envelope in the vehicle which contained a white powdery substance. It field-tested positive for cocaine, and the three men were arrested. A bag containing syringes and a straw was also recovered from the truck.

At trial, a chemist with the State Crime Laboratory testified that the item, identified as State’s Exhibit 1, tested positive for cocaine.

Jared testified that he was driving his truck on the day in question and that Troy and the accused were his passengers. They went to a location where Troy went to a house and stole a television set. They then went to another house, which Moye entered with the television set and returned with cocaine. Jared then drove his truck to the drug store, where Troy purchased some syringes and then proceeded to a Hardee’s restaurant drive-through and obtained a cup of water. They next went to a wooded area, where Moye mixed some of the cocaine with water and injected the mixture into himself. Jared and Troy used a straw to snort the cocaine.

While a conviction which is based on the uncorroborated testimony of an accomplice cannot stand, slight evidence from an extraneous source which tends to connect the defendant to the crime or leads to the inference that he is guilty is sufficient to corroborate the accomplice’s testimony. Dickerson v. State, 161 Ga. App. 178 (288 SE2d 131) (1982). The testimony of the accomplice need not be corroborated in every material particular. Slight evidence from an extraneous source which identifies the accused as a participant in the crime is sufficient to support a guilty verdict. Bennett v. State, 156 Ga. App. 617 (275 SE2d 701) (1980).

Jared’s testimony was supported by Pinkston’s observation in the pharmacy, Agent Cuellar’s identification of the accused as one of three individuals in the pick-up truck who were leaving the wooded area, the positive field-test for cocaine of the material found in the truck, the chemist’s testimony that the substance was cocaine, and the recovery of syringes and a straw from the truck. This evidence also corroborated Jared’s testimony that Moye distributed the cocaine to Troy and himself.

2. The evidence showed that one of Moye’s companions, a juvenile named Troy, stole a television set, which the accused exchanged for cocaine which Moye and his companion ingested in the woods. The court admitted this evidence as a part of the res gestae for the limited purpose of showing how Moye obtained the cocaine which he shared with the juveniles. “Evidence that is otherwise relevant or material to the issues in a criminal case does not become inadmissible simply because it concerns separate offenses, or because it incidentally puts a criminal defendant’s character or reputation in evidence.” Drake v. State, 245 Ga. 798, 802 (267 SE2d 237) (1980). “This rule has been applied specifically to evidence showing the circumstances relating to a defendant’s arrest.” Fudge v. State, 184 Ga. App. 590, 591 (362 SE2d 147) (1987).

Decided February 22, 1989.

L. Howard Freeman, Jr., for appellant.

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

Moreover, even if the character evidence was impermissibly introduced into evidence, it does not rise to the level of reversible error in the case at bar since it is highly probable that any alleged error did not contribute to the verdict. Sultenfuss v. State, 185 Ga. App. 47, 51 (363 SE2d 337) (1987).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0137.
    FANCHER v. THE STATE.
    (378 SE2d 923)
   Deen, Presiding Judge.

Dana Fancher was tried and convicted of violating the Georgia Controlled Substances Act, OCGA § 16-13-31 (c) (1), trafficking in marijuana.

On January 15, 1987, a Louisiana State Trooper stopped Jackie Goodwin, the driver of a U-Haul truck, for a license violation. When asked about his destination, Goodwin replied that he was moving furniture to Atlanta for a friend. During the stop, the officer noticed an odor of marijuana about the vehicle and called for a drug-detecting dog, who gave a positive alert on the truck. Goodwin consented to a search, and investigating officers found several cardboard boxes and two green garbage bags whose contents field-tested positive for marijuana. Goodwin and his passenger were arrested. Upon questioning, Goodwin revealed that he was driving the truck to Marietta, Georgia, to give the contents to appellant, and that he had delivered approximately eighty pounds to him two to three weeks earlier. A Louisiana officer contacted the Georgia Bureau of Investigation, and appellant’s existence was confirmed. A GBI agent advised the trooper to bring the truck to a motel in Marietta, Georgia, to consummate the sale. Three state troopers accompanied Goodwin to Marietta. When they arrived, a GBI agent took custody of the truck containing 335 pounds of marijuana. Goodwin contacted appellant by telephone twice, and each of the conversations was recorded by the GBI.

Two GBI agents who wore recording equipment were installed in a motel room. Appellant refused to talk to them in the room, but he did talk to Goodwin in the parking lot. Goodwin, in turn, informed the agents that Fancher wanted only part of the load. One of the agents then went to the parking lot, and, after he talked to Fancher, it was agreed that Fancher would take the entire load. The men then went back to the motel room, where appellant discussed the price of the marijuana with a buyer on the telephone. The entire transaction was videotaped and recorded. Appellant drove the U-Haul truck out of the parking lot onto a side street, where he was stopped and arrested by law enforcement officers. The automobile that he drove to the motel was impounded. It emanated an odor of marijuana. A later search revealed marijuana residue in the trunk, and seeds were discovered on the passenger side of the vehicle.

1. Fancher first contends that because the trial court failed to adhere to the notice and hearing requirements of Rules 31.1 and 31.3 of the Uniform Rules of the Superior Court, it erred in failing to exclude from evidence testimony of an alleged similar transaction involving large amounts of marijuana. He also contends that the similar transactions did not meet the relevance requirements of OCGA § 24-2-2.

The transcript shows that appellant did not raise any objection to testimony that appellant had received delivery of eighty pounds of marijuana from Jackie Goodwin approximately three weeks prior to his arrest. In fact, appellant’s counsel cross-examined Goodwin on this issue.

Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. Hardeman v. State, 252 Ga. 286, 288 (313 SE2d 95) (1984). Similarly, this court will not consider whether testimony was admitted in violation of Rules 31.1 and 31.3 when no objection has been raised in the court below. Cohn v. State, 186 Ga. App. 816 (368 SE2d 572) (1988).

As to appellant’s relevance objection, evidence that marijuana was found in the trunk of his automobile supported the inference that he had previously transported marijuana and was relevant to prove that he was predisposed to commit the crime for which he was indicted and to which he raised the defense of entrapment. This evidence was sufficient to withstand a relevancy objection. “Georgia favors the admission of evidence even where its relevancy or competency is doubtful, when it logically tends to elucidate or throw light upon a material issue. [Cits.]” Worth v. State, 183 Ga. App. 68, 69 (358 SE2d 251) (1987). “ ‘(E)vidence is relevant if it renders the desired inference more probable than it would be without the evidence.’ [Cits.]” “Under the broad discretion of the trial court, the admission of the evidence clearly was not error.” Worth v. State, supra at 70.

2. The trial court did not err in refusing to give appellant’s request for a charge on entrapment. The charge as requested stated in part: “[S]hould you find that the defendant was jointly possessed of the property with law enforcement officers or an employee of the law enforcement agency, then in that event, the defendant would be not guilty by reason of entrapment.”

The State’s evidence showed sole possession of the marijuana by Fancher after the truck was turned over to him in. the parking lot and when he drove it onto a side street near the motel. The fact that the law enforcement officers did not intend to permit him to escape with the contraband does not show joint possession.

The trial court fully charged the jury on the issue of entrapment. “ ‘A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.’ ” Andrews v. Major, 180 Ga. App. 393, 396 (349 SE2d 225) (1986).

Appellant’s argument that the charge as given was confusing to the jury was not enumerated as error. Error argued in the brief, but not enumerated as error, will not be considered on appeal. Enumerations of error cannot be enlarged by statements contained in the brief to include issues not contained in the enumeration. Scott v. State, 111 Ga. App. 474, 477 (339 SE2d 718) (1986).

3. Appellant next raises objection to the trial court’s failure to order the State to produce certain tape-recordings of the defendant, Goodwin and law enforcement officers so he could investigate, and test their accuracy and admissibility prior to trial.

The record shows that Fancher filed a pretrial motion seeking disclosure of all electronic surveillance. A motion for independent examination of scientific evidence must be specific and “identify . . . particular critical physical evidence for examination.” Smith v. State, 171 Ga. App. 758, 759 (321 SE2d 213) (1984). At one point, appellant ■informed the court he was simply seeking discovery of the tapes and not scientific examination. At the motion hearing, he agreed to stipulate the authenticity of the videotape and that the court listen to and examine the tapes for exculpatory matter. On the second day of trial, he inquired as to the court’s examination, and the judge replied that he had examined the tapes and found nothing exculpatory therein. The court granted counsel’s request to be permitted to listen to the tapes with his client prior to opening statements. When it was brought to the court’s attention that counsel and the court had not heard certain prefatory comments on the tape and a tape pertaining to the parties, counsel was permitted to hear these portions of the tapes. The request for scientific examination was made orally at trial. It was properly denied as not timely made. Dixon v. State, 180 Ga. App. 222, 224 (348 SE2d 742) (1986).

Appellant’s argument that he was entitled to pretrial disclosure of the tapes because they contained custodial statements is without merit. His only request for his statements was made pursuant to a Brady motion. Appellant’s own statements are not subject to discovery under this motion. Johnson v. State, 177 Ga. App. 705, 706 (340 SE2d 662) (1986). Moreover, the challenged tapes do not contain custodial statements. “Utterances made by appellant during the commission of, or in connection with, the crime charged do not constitute statements given ‘while in custody.’ ” Holbrook v. State, 162 Ga. App. 400, 402 (291 SE2d 729) (1982).

4. As appellant did not object to the trial court’s failure to charge the jury that it must determine the voluntariness of the tape-recorded conversation between himself and Goodwin when the court inquired as to his objections to the charge and he did not reserve the right to later object, he has waived this alleged error on appeal. Henderson v. State, 182 Ga. App. 513 (356 SE2d 241) (1987).

Appellant’s argument that the court erred in failing to hold a hearing on the voluntariness of Goodwin’s consent to the tape-recording is outside the scope of this enumeration and will not be considered. Scott v. State, supra.

5. The trial court did not err in denying appellant’s motion to suppress evidence taken from his automobile on May 22, 1987.

The evidence at the motion hearing revealed that on May 19, 1987, the State entered a voluntary dismissal of the libel for condemnation of appellant’s Chevrolet automobile. This dismissal was signed by appellant’s attorney and provided in part: “By consent of the parties, the defendant will not be allowed to reassume the contract. The vehicle will be released to the lien holder, G. M. A. C.” In ruling upon the motion, the court held that through the entry of the voluntary dismissal the defendant relinquished his “interest in the property in question so that the defendant could then no longer retain a reasonable expectation of privacy with regard to it.” Appellant argues that despite the court’s ruling he retained a proprietary interest in the vehicle because he was to receive the excess proceeds of any sale by G. M. A. C. and therefore continued to hold an ownership interest in it until its final disposition by G. M. A. C.

Assuming arguendo that appellant retained an ownership interest in the vehicle, his consent to release the vehicle to G. M. A. C. resulted in an abandonment of any reasonable expectation of privacy because the car was to be placed for sale and was therefore open for inspection. This type of abandonment “ ‘is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ [Cit.]” Bassett v. State, 181 Ga. App. 597, (353 SE2d 48) (1987). Abandonment is an issue to be determined by the trier of fact, and such a finding will not be disturbed on appeal if there is any evidence to support it. Williams v. State, 171 Ga. App. 546, 548 (320 SE2d 389) (1984). We find no error.

Decided February 22, 1989.

Douglas N. Peters, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    77286.
    WARREN v. JENKINS.
    (378 SE2d 19)
   Beasley, Judge.

Defendant Warren appeals the trial court’s judgment in effect enforcing a verbal settlement and terminating the litigation.

In November 1985, Warren entered into a purchase order with Jenkins which provided that Jenkins would provide “damage and restoration” services for the contents of Warren’s house which had been damaged in a fire.

Jenkins sued in March of 1986, alleging breach of contract, quantum meruit, and intentional infliction of emotional distress. Defendant Warren’s answer, filed May 1, 1986, contained a counterclaim in which he contended that plaintiff had breached the agreement by not returning certain items which had been removed from the premises for cleaning. He also alleged intentional infliction of emotional distress.

Later in May, counsel for Jenkins met with defendant’s wife and counsel for defendant to discuss settlement of the matter. Defendant testified that the “meeting was held with my permission.” He also acknowledged that “I gave him [attorney] authority hopefully to bring the matter to a conclusion. But as to that figure [$8,344], I did not give him authorization.”

Warren does not dispute that Allstate, his insurer, issued a check payable to him, his wife and plaintiff Jenkins for $8,344 and that the check was endorsed by him and his wife. Nor does he dispute that Jenkins returned the items which he had been holding. Defendant’s contention appears to be that, after the settlement, he went through additional documents and determined that he had overpaid Jenkins and therefore did not want to settle.

On October 1, 1987, plaintiff filed his Motion To Enforce Settlement Agreement including the affidavit of his counsel setting out the specific terms of the agreement, which included the payment to plaintiff of the $8,344, return by plaintiff to defendant of the retained property, and dismissal of the action with prejudice by the parties. Counsel further stated that after defendant’s counsel had withdrawn in July, he had talked with defendant and they had again agreed on these settlement terms. While defendant recalled the phone call, he did not recall the agreement. Nothing was filed in opposition to the motion, defendant apparently relying on his deposition.

Thereafter, plaintiff amended his complaint to add a demand for attorney fees.

The trial court granted the motion to enforce settlement and entered judgment for Jenkins in accordance with it.

1. Defendant’s second enumeration contends that his former attorney was not authorized to agree to a settlement. This assertion, however, is refuted by defendant’s own sworn statement in his deposition that he gave his attorney “authority hopefully to bring the matter to a conclusion.” Thus, the trial court’s reliance on the affidavit of plaintiff’s attorney and defendant’s own evidence supported his conclusion that the attorney was authorized. USCR 4.12; Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983).

The affidavit of plaintiff’s attorney provides another basis for the court’s ruling. The attorney unequivocally states that, with permission of defendant’s counsel, he personally negotiated with defendant and the two of them reached the same agreement previously made with the attorney. Defendant agrees that the conversation took place and does not dispute that an agreement was reached, but merely says that he does not remember reaching the agreement.

“ ‘A compromise of a dispute is binding on the parties . . . The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract . . . Where parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation.’ Skinner v. Smith, 120 Ga. App. 35, 36 (169 SE2d 365) (1969). [Cit.]” Smith v. Haverty Furniture Co., 173 Ga. App. 447, 448 (326 SE2d 812) (1985).

2. Defendant further asserts that his counterclaim was not included in the settlement and so it was error to terminate the entire litigation (with the exception of the issue of plaintiff’s demand for attorney fees). This objection was never voiced in the court below and will not be considered here for the first time. Hinkley v. Bldg. Material Merchants Assn., 187 Ga. App. 345, 346 (370 SE2d 201) (1988); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397, 398 (370 SE2d 520) (1988). The record does reflect that the settlement discussions all occurred after the filing of the answer and counterclaim and there is nothing to indicate they were not all-inclusive.

Decided February 23, 1989.

Robert E. Robinson & Associates, Robert E. Robinson, for appellant.

H. Gregory Fowler, for appellee.

Judgment affirmed.

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


author: Benham, Judge.

text:
    77156.
    McCOLLUM v. DOE et al.
    (379 SE2d 233)
   Benham, Judge.

After she was involved in an automobile collision with an unknown motorist in June 1985, appellant filed suit against the alleged tortfeasor, John Doe, and had her uninsured motorist carrier, appellee Atlas Mutual Insurance Company (Atlas), served with a duplicate original. See OCGA § 33-7-11 (d). Atlas filed an answer in its own name. See OCGA § 33-7-11 (d). The case proceeded to trial, where the trial court granted appellee’s motion for directed verdict. Appellant maintains on appeal that the directed verdict in favor of her UMC was inappropriate.

1. Appellant testified that the automobile collision at issue occurred on June 21, 1985, at the intersection of Highways 138 and 42. During his cross-examination of appellant, counsel for Atlas introduced into evidence a release executed by appellant in favor of Atlas. In consideration of the payment of $829 by Atlas, appellant “fully release [d] and forever discharge [d] . . . Atlas . . . from any and all claims and causes of action which [appellant] now [has] or may have against said company under the [uninsured motorist] endorsement attached to [appellant’s] Policy . . . resulting from an accident which occurred on the 21 day of June 1985, at Hwy. 138 and Hwy. 42, Stock-bridge, Georgia.” Appellant admitted that she read the release and executed it in late July 1985 in the presence of her attorney, who notorized her signature. She also admitted that she had received the money from Atlas. She testified that she believed that the $829 covered only her property damage, but admitted that the release nowhere stated it was limited to property damage.

Under the express and unambiguous terms of the release, Atlas was to be released and discharged from any liability to appellant with regard to uninsured motorist claims arising from the June 21, 1985, automobile collision, upon payment of $829 to appellant. It is undisputed that appellant executed the release and received the consideration. “ ‘(P)ayment of the full amount of consideration in accordance with the terms of a contract of release extinguishes the releasor’s cause of action. [Cit.]’ ” Bishop v. Intl. Paper Co., 173 Ga. App. 34 (1) (325 SE2d 870) (1984). There was no evidence of artifice or fraud in the procurement of the release, and appellant was not entitled to rely upon the adjustor’s representations, if any. Henry v. Anderson, 164 Ga. App. 110 (2) (296 SE2d 410) (1982). The trial court did not err in directing a verdict.

Decided February 24, 1989.

Scott Walters, Jr., for appellant.

Tash J. Van Dora, Jennifer L. Houser, for appellees.

2. The defense of release is an affirmative defense (OCGA § 9-11-8 (c)) that is subject to waiver if not set forth in a responsive pleading. Phillips v. State Farm &c. Ins. Co., 121 Ga. App. 342 (2) (173 SE2d 723) (1970). Atlas did not set forth release as an affirmative defense in its answer. However, OCGA § 9-11-15 (b) “operates as an exception to the rule that defenses not pleaded are waived. The fact that a defense, even an affirmative defense, has not been formally pleaded is immaterial if the issue was tried by express or implied consent ... In effect, therefore, the parties may ... by the introduction of evidence without objection, amend the pleadings at will. Implied consent usually is found where . . . evidence is introduced without objection . . . [I]ssues tried by . . . implied consent shall be treated as if raised by the pleadings. [Cit.]” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978). The defense of release was raised by the unobjected-to evidence offered during trial, so it was properly considered by the trial court. See Brown v. Commercial Credit &c. Corp., 172 Ga. App. 568 (3) (323 SE2d 822) (1984).

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    77469.
    77470.
    STODDARD v. GRADY COUNTY BOARD OF TAX ASSESSORS. HAWKINS et al. v. GRADY COUNTY BOARD OF TAX ASSESSORS.
    (379 SE2d 234)
   Birdsong, Judge.

The appellants in these two ad valorem tax appeals are landowners and tree farmers. Both have been in prior litigation over their property tax assessments. See, e.g., Stoddard v. Cone, 250 Ga. 852 (301 SE2d 641); Stoddard v. Bd. of Equalization, 180 Ga. App. 889 (351 SE2d 92); Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 (350 SE2d 790). The primary focus of the present appeals, as well as the earlier appeals, is whether the appellants’ timber-lands were properly valued in terms of their existing use, or whether the value was speculative as a result of application of a highest and best use theory. See Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65 (318 SE2d 643).

Appellant Stoddard returned his property at a value of $112,400 and the Board of Tax Assessors set the fair market value of the property at $769,407. Mr. Stoddard appealed this valuation to the Board of Equalization pursuant to OCGA § 48-5-311 (e), and the Board of Equalization set the fair market value of Mr. Stoddard’s property at $665,425. Both the Board of Tax Assessors and Mr. Stoddard appealed this decision to the superior court, pursuant to OCGA § 48-5-311 (f) (1), and the case was tried before a jury with the Hawkins Trust tax appeal. The jury returned a verdict placing the fair market value of the Stoddard property at $769,407. This verdict was made the judgment of the court, and Mr. Stoddard filed a timely notice of appeal from that judgment.

The Hawkins Trust (the Trust) originally valued its property subject to this dispute at $316,050, but the Board of Tax Assessors set the fair market' value of the property at $1,352,759. The Trust then appealed to the Board of Equalization, and that Board set the fair market value of the property at $1,158,122. Both the Trust and the Board of Tax Assessors appealed this decision to the superior court. Later, however, the Board of Tax Assessors dismissed its appeal, and the case was tried before a jury with the Stoddard tax appeal. The jury returned a verdict setting the fair market value of the Trust’s property at $1,158,122. This verdict was made the judgment of the court and the Trust appealed from that judgment to this court. Held:

Case No. 77469

1. Appellant Stoddard enumerates as error the trial court’s failure to include in its judgment certain portions of the Board of Equalization’s decision “unaffected by the Appellant-taxpayer’s cross appeal. ...” The portions of the Board’s decision he refers to are apparently certain statements in attachments to the Board’s decision which seemingly respond to issues raised in his appeal to the Board. Examination of these attachments indicates that these findings were reached by the Board in the process of setting the value of Mr. Stoddard’s property and were not independent orders and directives. Accordingly, these matters were affected by his appeal of the Board’s decision. Mr. Stoddard’s argument on this point assumes that these findings were “unaffected” by his appeal. We note that his notice of appeal to the superior court asserted as error “each and every ground set forth in the original notice of appeal to the Board of Tax Assessors which is in conflict with the decision of the Board of Equalization . . .” and he asserted “[i]f the decision of the Board of Equalization is a denial of any of the grounds of the original appeal, then the Board of Equalization erred. . . .” The appeal to the Board of Equalization, of course, was an appeal of the $769,407 value placed on his property by the Board of Tax Assessors and the grounds for the appeal were the reasons Mr. Stoddard deemed the value to be excessive. Consequently, his contention that his appeal was of law only and not one which requires determination of fact is without merit. His appeal was over the value of his property and this is an issue of fact which must be decided by a jury. OCGA § 48-5-311 (f) (4) (A).

Appellant Stoddard also asserts that the trial court should have included in its judgment letters which the Board of Equalization sent to the Board of Tax Assessors and to the County Commissioners. The thrust of this argument is that the trial court should have ordered what the Board of Equalization declined to do in the first instance: direct the Board of Tax Assessors to take action. Review of the letters in question shows them to be merely communications from one county agency to other county agencies concerning the assessment of ad valorem taxes generally. These letters are not directions or orders and lack the findings required by OCGA § 48-5-311 (d) (2). In regard to appellant Stoddard’s particular appeal, as discussed above, these matters were considered by the Board in deciding his appeal. Thus, there was no error in not making these letters part of the trial court’s judgment, and there was no error in not remanding the appeal to the Board of Tax Assessors. The facts of this appeal do not fall within the circumstances of Monroe County Bd. of Tax Assessors v. Remick, 165 Ga. App. 616 (300 SE2d 203).

2. The second enumeration of error concerns testimony, over objection on relevancy, that the State rejected the county tax digest in 1985 and that the tax digest was subsequently increased by eight percent across the board. As later testimony showed that the next year the tax digest was decreased by eight percent across the board and all this testimony concerned the procedure used in placing a value on the appellant’s property there was no error. Further, it is difficult to ascertain the prejudice to the appellant, even assuming error, and the appellant assigns none. Consequently, the error would have been harmless in any event, and there would be no grounds for reversal. First Nat. Bank v. American Sugar Refining Co., 120 Ga. 717 (48 SE 326).

3. The third enumeration of error asserts that the verdict and the judgment are strongly against the evidence in the case and are contrary to the law. Examination of the transcript reveals that the appellant fully presented evidence in support of his theory of evaluation of the property as did the Board of Tax Assessors. While appellant may disagree with the ultimate value placed on his property by the jury, this does not mean that the verdict was either excessive or contrary to the evidence. The verdict reached was within the range of the evidence presented. Murray v. Richardson, 134 Ga. App. 676, 677 (215 SE2d 715). Additionally, while the appellant contends that the verdict and judgment were contrary to the law and cites for our attention various principles which should be applied in cases of this nature, he has not, however, identified any particular principle which he contends has been violated. The evidence presented was sufficient to authorize the verdict and judgment and both were in accordance with the law. Stoddard v. Bd. of Tax Assessors, 163 Ga. App. 499, 501 (295 SE2d 170).

Decided February 24, 1989.

Loftiss, Van Heiningen & Ward, J. Patrick Ward, for appellants.

4. In enumerations of error 4 and 5, the appellant asserts that the trial court committed prejudicial error in not charging the jury exactly as he proposed. We have examined the entire charge given and find no prejudicial error. The charge accurately stated the law in substance and there was no error in not charging exactly as the appellant wished. Brooks v. Coliseum Park Hosp., 187 Ga. App. 29, 34 (369 SE2d 319).

Appellant Stoddard presented a supplemental brief which cursory examination revealed to be merely a statement from the appellant which was not contained elsewhere in the record. Of course, this court may not and did not consider this statement. Appellant Stoddard’s enumeration of error having no merit, the judgment of the trial court is affirmed.

Case No. 77470

Appellants Maryann and Otis Hawkins’ Trust was represented by the same counsel as the appellant in Case No. 77469 and the two tax appeals were consolidated for trial in the superior court. The same errors were enumerated on appeal to this court and the briefs are virtually identical in regard to the argument presented. Not surprisingly the same result is reached on appeal. For the reasons discussed in considering the Stoddard appeal, the judgment of the trial court is also affirmed. Hawkins v. Grady County Bd. of Tax Assessors, supra, p. 835.

Judgments affirmed.

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

Porter & Lehman, Thomas L. Lehman, for appellee.


text:
    77202, 77203.
    SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. JEFFARES et al. (two cases).
    (379 SE2d 167)
   Sognier, Judge.

Southern Guaranty Insurance Company of Georgia brought this declaratory judgment action to determine its obligations under a manufacturers and contractors liability policy it issued to Mobile Air Control, Inc. Mobile Air previously had been named as a defendant, along with Craig Jeffares and Countryside Mobile Homes, Inc., in an action filed by Virginia and James Scott, and Southern Guaranty included all the parties to that action as defendants in the case sub judice. Upon cross-motions for summary judgment, the trial court entered an order granting summary judgment in favor of the defendants and denying Southern Guaranty’s motion. Southern Guaranty filed an appeal from the summary judgment order, which we designated as Case No. 77202. Three months after entry of summary judgment, the trial court entered another order denying Mobile Air’s petition for attorney fees and making the summary judgment order the final judgment in this case, and Southern Guaranty filed another appeal from the final judgment, Case No. 77203, enumerating the same errors as in Case No. 77202.

The material facts are not in dispute. Appellees James and Virginia Scott purchased a mobile home from appellee Countryside on February 1, 1986. Countryside then contracted with appellee Mobile Air to install gas lines and an air conditioning system at the home. Appellee Jeffares, the installer for Mobile Air, testified by deposition that as of February 24, 1986, he had completed the electrical, gas, and air conditioning hookups, installed the air conditioning unit, and received approval of the work from the requisite county inspectors, but was unable to charge and test the unit at that time because the outside temperature was below the seventy-five degree minimum established by the manufacturer and the electrical service to the home was not yet connected. Countryside paid the contract price in full on February 25th. The home was destroyed by fire three days later before the Scotts moved in. The Scotts then brought suit against Countryside, Mobile Air, and Jeffares to recover damages resulting from the fire.

Appellant filed this action to determine whether the completed operations exclusion in the policy issued to Mobile Air precluded coverage for said loss. The policy issued to Mobile Air excludes coverage for bodily injury or property damage included within the “completed operations hazard,” which is defined in the policy as damages arising out of the insured’s operations after completion. The policy further provides: “Operations shall be deemed completed at the earliest of the following times: (1) when all operations to be performed by or on behalf of the named insured under the contract have been completed, (2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or (3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.” The trial court ruled that under this policy language appellant was obligated to provide coverage for the Scotts’ claim because the work had not been “completed” within the meaning of the policy definitions at the time of the fire.

1. At the outset, we note that appellant’s second notice of appeal was not necessary. An order granting summary judgment is subject to review by direct appeal, OCGA § 9-11-56 (h), even if other issues remain pending before the trial court. Capital Bank of Miami v. Levy, 151 Ga. App. 819, 821 (1) (261 SE2d 722) (1979). Accordingly, Case No. 77203 is dismissed.

2. Appellant contends the trial court’s denial of its summary judgment motion was error because the remaining charging and testing of the air conditioning unit were “minor details of performance” as described in Hartford Accident &c. Co. v. Strain Poultry Farms, 166 Ga. App. 334, 336-337 (2) (303 SE2d 781) (1983), and consequently the completed-operations exclusion applied. We do not agree. Appellee Jeffares, who installed the unit and thus was the person most familiar with the scope of work to be performed, testified that his work was not finished because he had to charge the unit and determine whether it performed properly. The record clearly establishes that this remaining work was necessary for full performance of the contract requirements, and accordingly the operations to be performed by the insured under the contract at the job site were not completed when the fire occurred. See Hartford, supra at 337. Compare Continental Ins. Co. v. Hawkins, 170 Ga. App. 274 (316 SE2d 596) (1984), in which the insured contractor and its installer testified that the project was “completed and operational” before the damage at issue occurred. The remaining work in the case at bar was not in the nature of “service or maintenance work” or “correction, repair or replacement,” but was an essential element of the contract performance. Further, there is no dispute that the air conditioning unit had not been turned on or otherwise put to its intended use by anyone, including Mobile Air. Accordingly, we find the trial court properly denied appellant’s motion for summary judgment. See Hartford, supra.

Decided February 6, 1989

Rehearing denied February 27, 1989.

Robert M. Darroch, Cynthia B. Smith, for appellant.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., Stephen A. Friedman, C. Jeffrey Kaufman, William B. Lyons, for appellees.

3. Appellant also contends the trial court erred by granting summary judgment in favor of appellees because a fact question remains in the form of a contradiction between Jeffares’ deposition testimony and a prior statement he made to an insurance investigator. When a party-witness tenders contradictory testimony on motion for summary judgment, “if a reasonable explanation is offered for the contradiction, the testimony will not be construed against [him].” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30. (2) (343 SE2d 680) (1986). The record reveals that in a taped interview Jeffares told the insurance investigator that “to the best of [his] knowledge” the job was totally completed on or about February 24, 1986, but that he was making this statement without consulting his records. At his deposition three months later, Jeffares explained that he had been responding to the questions as phrased by the investigator, and that he understood the question to be whether he had finished all the work required up to the point of inspection. We agree with the trial court’s conclusion that to the extent this testimony was contradictory it was satisfactorily explained and accordingly will not be construed against appellee Jeffares. See Prophecy Corp., supra at 30-31 (3). Therefore, the trial court properly granted summary judgment in favor of appellees, and accordingly we affirm in Case No. 77202.

Judgment affirmed in Case No. 77202; appeal dismissed in Case No. 77203.

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


text:
    77247.
    BAPTISTE v. THE STATE.
    (379 SE2d 165)
   Benham, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act (OCGA § 16-13-30), and using a communication facility, a telephone, to commit that violation. OCGA § 16-13-32.3. He enumerates several alleged errors in his effort to have his convictions reversed.

Acting at the behest of police, Clifford Charles, a man arrested and incarcerated by police for selling cocaine to an undercover agent, made a series of telephone calls to appellant in an effort to purchase cocaine from appellant. Appellant agreed to meet Charles at a local stadium where police observed him give Charles a package containing what was later identified by a crime lab expert as “crack” cocaine. Appellant was arrested as he drove away from the encounter.

1. Prior to trial appellant made a motion in limine, seeking to prevent the State’s introduction of evidence that appellant was involved with cocaine prior to the incident for which he was arrested. Appellant argued that the material was not admissible as a similar transaction since he had not been served prior to trial with the notice required when the State intends to rely upon similar transactions (see Uniform Superior Court Rule 31.3), and that reference to any involvement he might have had with cocaine previous to the charges at bar amounted to the impermissible introduction of character evidence by the State. See OCGA § 24-9-20. He also maintained that the expected evidence was not admissible to explain the officer’s conduct, in light of the Supreme Court’s holdings in Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), and Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984). The trial court denied the motion, recognized appellant’s continuing objection to the anticipated testimony, and agreed that appellant would have a continuing motion for mistrial at the time the testimony was admitted.

During his opening statement, the assistant district attorney stated that the police had asked Charles to reveal the name of his “source” and to call that individual; and that Charles had called appellant. During the presentation of the State’s case, Charles testified that the police had asked him to provide them with the name of the person from whom he had gotten cocaine and that he had named appellant. Each of three police officers testified that, upon their inquiry, Charles had named appellant as the source of his cocaine.

Through the testimony, the jury was made aware that prior to the event for which appellant was being tried, appellant was a “source” of cocaine. Appellant’s contention that the testimony placed his character in evidence is well taken. Anderson v. State, 252 Ga. 103, 104 (312 SE2d 113) (1984). Contrary to the State’s assertion, the fact that such testimony explained the witnesses’ subsequent conduct does not make the inadmissible character evidence admissible. Id. Additionally, the statement that appellant was Charles’ cocaine source did not constitute evidence of a similar crime or transaction. See Hargrove v. State, 188 Ga. App. 336 (4) (373 SE2d 44) (1988). Even if it did qualify as evidence of a similar transaction, the State failed to comply with USCR 3T.3 regarding pre-trial notice of the use of a similar transaction.

Having reached the conclusion that it was error to admit the testimony that appellant was a source of cocaine, we must resolve whether that error was harmful since “ ‘ “(h)arm as well as error must be shown to authorize a reversal by this court.” ’ [Cit.]” Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987). In light of the eyewitness evidence that a man driving the car in which appellant was seen shortly thereafter gave Charles a package containing cocaine in the stadium parking lot, and of Charles’ identification of appellant as the man he met in the stadium parking lot, we are constrained to hold that the improper admission of impermissible character evidence was harmless error. Minter v. State, 258 Ga. 629 (2) (373 SE2d 359) (1988).

2. On the morning of trial, the trial court informed counsel that he had been advised by the clerk’s office that a juror had called that morning to report that her child was ill, and was either at the hospital emergency room or had been treated there. The trial court ruled that “over [appellant’s counsel’s] objection, the court is going to excuse the juror. You have agreed to proceed with not less than eleven.”

A criminal defendant has the right to waive his constitutional right to be tried by a jury of twelve. 1983 Ga. Const., Art. I, Sec. I, Par. XI; Weeks v. State, 187 Ga. App. 307 (2) (370 SE2d 344) (1988). While we are unable to find in the record appellant’s purported waiver, neither appellant nor his counsel contested, then or now, the trial court’s statement. We proceed on the premise that appellant made such a waiver.

OCGA § 15-12-172 authorizes the trial court to replace a juror who “dies, becomes ill, upon other good cause shown to the court is found to be unable to perform [her] duty, or is discharged for other legal cause. ...” The statute implicitly authorizes the trial court to exercise its discretion with regard to excusing a juror from the panel. While we agree with trial counsel that further inquiry should have been made of the juror herself, especially in light of the fact that she had left a telephone number at which she could be reached, we cannot say any error was harmful in light of appellant’s agreement to proceed with eleven jurors.

3. On cross-examination, in an effort to demonstrate Charles’ motive for getting involved at the request of the police, appellant’s trial counsel brought to the jury’s attention that Charles was currently facing an indictment for aggravated assault. The trial court permitted questions that elicited Charles’ testimony that he had been indicted for aggravated assault; had shot someone in self-defense; had not made a deal with the police concerning the disposition of the charge; and that he was testifying in an effort “to keep from going to prison.” However, the trial court sustained objections to the attempts of appellant’s counsel to question Charles about the underlying facts of the aggravated assault charge.

The Confrontation Clause of the Sixth Amendment of the U. S. Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, guarantees a criminal defendant the right to cross-examine a state’s key witness concerning pending criminal charges against the witness. Hines v. State, 249 Ga. 257 (2) (290 SE2d 911) (1982). “[E]xposing the motives of a state’s witness for testifying is always relevant in attacking the credibility of the witness . . . [w]hether the witness may be shading his testimony in an effort to please the prosecution” is an important consideration. Owens v. State, 251 Ga. 313. (1) (305 SE2d 102) (1983).

Decided January 30, 1989

Rehearing denied February 27, 1989

Sutton, Reddick, Hackel & Hackel, Thomas M. Hackel, for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assis tant District Attorney, for appellee.

The relevant issue was whether the witness entertained any belief of personal benefit from testifying favorably for the prosecution. Id. at 317; Morris v. State, 166 Ga. App. 137 (3) (303 SE2d 492) (1983). The trial court appropriately exercised its sound discretion to determine the extent of cross-examination when the questions left the area of the witness’ belief of personal benefit and went to the fact underlying the aggravated assault charge. We find no violation of appellant’s right to a thorough and sifting cross-examination of Charles. See Peacock v. State, 170 Ga. App. 309 (3) (316 SE2d 864) (1984).

4. The State objected when appellant’s counsel brought up entrapment in his closing argument. The trial court ruled that the argument was improper since entrapment had not been made an issue. Appellant now argues that the trial court should have permitted him to argue an entrapment defense and should not have labeled his argument improper.

“[W]hen the State’s case shows evidence of entrapment and the defendant offers no evidence of entrapment inconsistent with his defense that he did not commit the crime, the defendant is not required to admit the commission of the crime in order to be entitled to a charge on entrapment.” Gregoroff v. State, 248 Ga. 667, 672 (285 SE2d 537) (1982). Appellant denied committing the act, and the State’s evidence that its agent made phone calls to appellant in an effort to procure contraband does not constitute evidence of entrapment. See Christian v. State, 181 Ga. App. 569 (1) (353 SE2d 65) (1987). Therefore, absent an admission from appellant that he committed the crime, argument concerning entrapment was improper and was properly halted. See Strobhert v. State, 184 Ga. App. 615 (1) (362 SE2d 99) (1987).

Judgment affirmed.

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


text:
    77320.
    TRAVELERS INDEMNITY COMPANY v. MARYLAND CASUALTY COMPANY.
    (379 SE2d 183)
   Beasley, Judge.

We granted to Travelers Indemnity Company an interlocutory appeal from the trial court’s order on a “Motion for Determination of Issues” filed by Maryland Casualty Company in which the court found that as to the relative obligation between the two insurers to provide underinsured motorist coverage to the insured, Travelers was the primary UM carrier.

Welch was injured in a collision between her vehicle and that driven by Roberson. At the time of the wreck, Welch was performing her delivery job and was driving a vehicle owned by her employer, Don Auld’s Prescription Shop, Inc. (Don Auld’s). Welch sued Roberson and pursuant to OCGA § 33-7-11 served Maryland and Travelers. Roberson had $15,000 liability coverage under a policy issued by another insurer. Maryland provided $50,000 UM coverage to Welch as a household family member of its named insured, Welch’s mother. Traveler’s provided $40,000 UM coverage to its named insured, Don Auld’s. Under the circumstances, Welch is insured for UM coverage under both policies.

Maryland filed its “Motion for Determination of Issues” seeking a determination that it was not the primary UM carrier and therefore had no duty to pay benefits unless Welch received a judgment in excess of the UM coverage provided by Travelers. An insured is permitted to stack multiple policies of UM coverage where the tortfeasor is minimally insured. OCGA § 33-7-11; State Farm &c. Ins. Co. v. Hancock, 164 Ga. App. 32 (295 SE2d 359) (1982). The question is how to apportion between the UM carriers any damages beyond the coverage provided by the liability carrier.

Ga. Farm &c. Ins. Co. v. State Farm &c. Ins. Co., 255 Ga. 166 (336 SE2d 237) (1985) held that in such a situation the insurance company receiving a premium from the injured party would be responsible for compensating the injured party under his or her policy. See also Lewis v. Atlanta Cas. Co., 179 Ga. App. 185 (345 SE2d 858) (1986). But in this case, the injured plaintiff Welch did not pay a premium for either policy. The premiums were paid by her mother and her employer.

The trial court applied the rationale of Ga. Farm &c. Ins. Co., supra, and concluded that the UM carrier more closely identified with plaintiff Welch should bear the burden of providing primary underinsured coverage beyond the liability insurance coverage, and that the carrier more closely identified with Welch was Travelers. The court reasoned that Travelers received its premium from the named insured corporation, Don Auld’s; that at the time of the collision Welch was an employee of that named insured and was injured while acting in the course of her employment as a deliveryman; and that Welch, acting as an agent of the corporate named insured and in the course and scope of her employment and while driving a corporate vehicle, in effect was acting as the-corporation at least in terms of its insurance coverage. Therefore, it should be primarily responsible for UM coverage rather than Maryland, whose coverage arose because Welch lived at home with her mother, and neither her mother nor any of the vehicles listed on the Maryland policy were involved in the wreck.

The court ordered that if plaintiff Welch was able to prove damages in excess of $15,000, the coverages provided by the Travelers policy would then apply and thereafter the coverages provided by the Maryland policy. The court made no determination as to the amounts of coverage in either policy.

Appellant Travelers contends that the trial court erred in finding that Welch, an employee who was not specifically listed as a named insured under the employer’s UM policy with Travelers, in effect was the corporation and thus in effect was the named insured. It further contends that the court erred in failing to find that Welch, a teenager living at home, was more closely identified with Maryland, her mother’s individual UM insurer, and thus, in failing to find the Maryland policy would be primary.

We agree with the trial court’s threshold determination that the holding of Ga. Farm &c. Ins. Co., supra, should, under the facts at hand, be applied to mean that the primary UM carrier is the one that is more “closely identified” with plaintiff Welch. See Pock, Insurance, 38 Mercer L. Rev. 247, 265 (1986).

The gravamen of appellant’s argument that Maryland is more closely identified with Welch is two-pronged. It relies on the closeness of the mother-daughter relationship and on the fact that Welch, as a relative residing in her mother’s home, was a “class one” insured under the policy provision, i.e., the policy defined covered persons first as “You or any family member.” Thus, appellant urges, Welch was within the same class as the named insured, her mother. In contrast, Welch was “merely a ‘class two’ insured under her employer’s policy with Travelers”; she was not specifically designated as a named insured but was insured because she was occupying a vehicle owned by the named insured, Don Auld’s.

While we do not adopt appellant’s terminology of a “class one” versus “class two” insured, we find the distinction between a named insured by virtue of family membership and one who is insured merely because he or she is occupying the covered vehicle at the time of injury to be a useful one and determinative here.

Decided February 9, 1989

Rehearing denied February 27, 1989.

Bouhan, Williams & Levy, James M. Thomas, Peter Muller, for appellant.

A stated purpose of the Supreme Court’s holding in Ga. Farm &c. Ins. Co., supra, was to “simplify such cases in the future.” Id. at 167. In order to accomplish this, the Court established the easily ascertainable and risk-measurable criterion of receipt of premium from the injured litigant plaintiff for determining primary UM liability. In a situation such as this where that critical factor is not present, we must look to another or other indicia which similarly will provide a clear rule.

The distinction between a named insured or family-member-named-insured and one who is covered because of merely occupying the named vehicle at the event accomplishes this clarity while also recognizing the legal closeness of identity inherent in the family unit. It, like the factor of premium payment, is a single and uniformly-occurring fact which addresses itself to the relationship of the injured plaintiff to the policy rather than the circumstances of the injury to the policy. This status rather than incident context controls. Although there is no dispute that the injured plaintiff was at the time of injury in the course of her employment, such circumstances are often in dispute and not susceptible of simple resolution. The merely periodic coverage of Welch by the employer’s policy makes it more distant than the constant, time-comprehensive coverage afforded to the household member by the mother’s policy.

Although we certáinly cannot take issue with the trial court’s observation that employees and not corporations drive automobiles, we reject the court’s conclusion that Welch was in effect the corporation, i.e., the named insured, in terms of its UM coverage. See Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 672 (2) (320 SE2d 555) (1984); Anderson v. Ford, 168 Ga. App. 684, 685 (309 SE2d 854) (1983); Fowler v. U. S. Fidelity & Guaranty Co., 133 Ga. App. 842, 843 (212 SE2d 486) (1975).

We conclude that plaintiff Welch was more “closely identified” with her mother’s UM coverage provided by Maryland Casualty Company than the employer’s UM coverage provided by Travelers Indemnity Company; therefore, Maryland rather than Travelers is the primary UM carrier.

Judgment reversed. Banke,

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

Hunter, Maclean, Exley & Dunn, Anne C. Marscher, Lee C. Mundell, for appellee.