text:
    76657.
    FULTON COUNTY HOSPITAL AUTHORITY v. HYMAN et al.
    (376 SE2d 689)
   Deen, Presiding Judge.

On May 21, 1982, appellee Jared Hyman, an infant represented by his father, appellee Steven Hyman, cut his left thumb and was taken by his parents, appellees Steven and Robin Hyman, to North-side Hospital’s emergency room for treatment. The wound was cleaned, dressed, and bandaged and the baby dismissed with instructions for care of the wound and the suggestion that he be taken to see his pediatrician in a few days for follow-up care. He was taken to his regular pediatrician five days later, on May 27, 1982, and on the following day the parents noted that the thumb appeared worse and was apparently causing the child pain. The parents took Jared back to the pediatrician’s office, whence he was referred to Scottish Rite Children’s Hospital. He was hospitalized briefly, discharged, and then hospitalized again after four days. Shortly thereafter, the upper part of the distal (outer) joint of the thumb was surgically removed, this being done at Scottish Rite on an out-patient basis. Jared was further seen by, and his parents consulted with, specialists in pediatric surgery and hand surgery. The parents sought to obtain disability ratings and prognoses as to the likelihood of the necessity for further surgical or other treatment aimed at giving Jared more nearly normal use of the thumb and hand during childhood and youth and as an adult.

On January 31, 1983, the Hymans instituted an action against Northside Hospital. Northside answered and served interrogatories upon the plaintiffs. After three months defendant Northside filed a motion to compel discovery, later filing a motion to dismiss for failure to complete discovery. Plaintiffs then voluntarily dismissed the complaint without prejudice, but almost exactly six months later, on July 6, 1984, refiled. Process was left with a secretary who apparently did not transmit the papers either to her supervisor or to the hospital’s insurer in a timely manner, with the result that Northside’s answer was untimely and the case went into default. Northside sought to open the default on the basis of insufficiency of service, contending that the secretary was not an agent authorized to receive process. The trial court declined to open the default, and the case proceeded to trial, judgment being rendered in favor of appellees in March 1987. In the meanwhile, there had been a mistrial and a protracted contretemps regarding completion of discovery.

Before commencement of the trial the court instructed defense counsel that evidence tending to establish comparative or contributory negligence would be inadmissible, even if such evidence also had a bearing upon the measure of damages. A Fulton County jury awarded Mr. and Mrs. Hyman damages in the amount of $4,200 (the approximate amount of unreimbursed medical expenses), plus interest and costs; Jared Hyman received $118,000 for pain and suffering, plus interest and costs. On appeal Northside Hospital enumerates as error (1) the trial court’s entry of default judgment when service had allegedly been insufficient; (2) the trial court’s refusal to open default; (3) the denial of appellant’s motion to dismiss the complaint for alleged willful failure to make discovery; (4), (5), and (6), certain evidentiary rulings regarding the use of expert testimony; and (7) the exclusion of evidence regarding allegedly inadequate home care of the wound on the ground that this evidence would tend to establish contributory or comparative negligence. Held:

1. It is undisputed that appellant did not file a timely response to the complaint. Appellant at no time made any affirmative showing that the secretary served was not an authorized agent for service of process. Cf. Southwest Community Hosp. &c. v. Thompson, 165 Ga. App. 442, 444 (301 SE2d 501) (1983). Therefore, the trial court properly ruled that service was sufficient. As to the trial court’s refusal to open the default resulting from the untimely filing of the response, “It is not arguable as a proposition of law that the decision whether to open a default judgment falls squarely within the discretionary powers of the trial court granting or denying the same. The exercise of this discretionary power should not excite interference by a reviewing court unless the trial court manifestly abuses the discretion vested within it.” United States Elevator Corp. v. Smyrna Hosp., 182 Ga. App. 886, 887 (357 SE2d 322) (1987). Appellant’s first two enumerations are without merit.

2. Appellant argues persuasively that its motion to dismiss the action because of appellees’ allegedly unwarranted delay in answering its interrogatories should have been granted. There being no transcript of any hearing that might have been held on this motion, however, we can only presume that the trial court proceeded correctly in arriving at its ruling on the motion. Burgess v. Jones, 158 Ga. App. 826 (282 SE2d 399) (1981). Moreover, even if, arguendo, such ruling were error, it must be shown to be harmful in order to justify reversal of the judgment. Jackson v. Kight & Sons, 159 Ga. 584 (126 SE 379) (1924). Since in the instant case the court ruled that only those questions pertaining to the measure of damages should be answered by appellees, appellants have shown no prejudice ensuing from appellees’ failure to make a timely filing of the answers to the interrogatories. Examination of the record reveals that two of the twelve interrogatories filed pertained only to the issue of liability, which appellant was precluded by the default judgment from pursuing, and that the other interrogatories sought information which was largely, if not wholly, either already within appellant’s knowledge or readily available from other sources. We find no reversible error here.

Decided September 19, 1988 —

Rehearing denied December 13, 1988

Allen & Ballard, Hunter S. Allen, Jr., Dennis A. Elisco, for appellant.

Goldstein & Schatten, Lee S. Goldstein, for appellees.

3. Our examination of the record, including the trial transcript and the depositions, reveals no impropriety in the presentation of expert testimony. We therefore find appellant’s fourth, fifth, and sixth enumerations to be devoid of merit.

4. Georgia law is clear that, once liability has been established, evidence which is proffered for the purpose of establishing the appropriate amount of damages, but which at the same time tends to suggest comparative or contributory negligence on the part of the plaintiff, is inadmissible. Krystal Co. v. Carter, 180 Ga. App. 667, 669 (350 SE2d 306) (1986); Whitby v. Maloy, 150 Ga. App. 575 (258 SE2d 181) (1979); Flanders v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286 (223 SE2d 482) (1976). Appellant contends that this rule is inapplicable in personal injury cases; he cites no authority for this contention, however. We find no such authority to be cited; indeed, in Southwest Community Hosp. &c. v. Thompson, supra, a personal injury case, this court held at 443: “Due to its default, defendant is in a position of having admitted each and every material allegation of the plaintiff’s complaint except as to the amount of damages suffered by plaintiff [Cits.] The element of proximate cause, as well as negligence, having been alleged in plaintiff’s complaint is admitted due to the default of defendant and requires no further proof.” This enumeration, too, is without merit.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in Divisions 2 and 3 and in the judgment.


source: Caselaw Access Project

author: Deen, Presiding Judge. Carley, Judge,

license: Public Domain

text:
    77536.
    JOHNSON v. BLUE RIDGE INSURANCE COMPANY.
    (376 SE2d 703)
   Deen, Presiding Judge.

On April 2, 1986, Hubert Watson loaned his car to Sandra Boatner so that she could look for a job in Rome. Boatner, however, decided instead to pick up a twelve-year-old friend and visit another friend in Cedartown, where she allowed the twelve-year-old to drive the car. While driving the car, the twelve-year-old struck the appellant, Angelia Johnson, as she was pushing her bicycle along the road. The appellee, Blue Ridge Insurance Company, as Watson’s insurer, sought and obtained declaratory judgment of no liability on the basis that the policy excluded coverage for any person “using a vehicle without a reasonable belief that that person is entitled to do so,” and this appeal followed. Held:

The evidence was more than sufficient to support the trial court’s findings that Boatner’s use of Watson’s vehicle had exceeded the scope of permission given by Watson, and that the twelve-year-old friend could not have had a reasonable belief that she was entitled to use Watson’s vehicle, thus excluding coverage for the incident under the policy. See Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga. App. 513 (330 SE2d 443) (1985). Johnson, however, contends that such a conclusion is erroneous because it ignores necessary public policy considerations.

“[C]ompulsory motor vehicle liability insurance in this state established the public policy that ‘innocent persons who are injured should have an adequate recourse for the recovery of their damages.’ [Cit.]” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 338 (329 SE2d 136) (1985). See also Anderson v. Southeastern Fid. Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983), and Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115) (1981). However, notwithstanding that public policy, not all exclusions of coverage are invalid. Cotton States Mut. Ins. Co. v. Neese, supra. Unlike Neese, Anderson, and Young, where the insured vehicle involved in the collision was driven by the actual insured, in the instant cáse the insured vehicle was driven by one unauthorized to use the vehicle. Public policy may justify enlarging an insurer’s risk where acts of the undisputed insured driver are concerned, but not necessarily so where an unauthorized driver who is not an insured under the policy is involved. This court has previously ' affirmed declaratory judgment for the insurer where such an unauthorized and thus uncovered use of the vehicle occurred. Georgia Farm &c. Ins. Co. v. Fire &c. Ins. Co. of Conn., 180 Ga. App. 777 (350 SE2d 325) (1986); Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., supra. We reach the same conclusion in the instant case.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

Decided November 29, 1988 —

Rehearing denied December 13, 1988

Gammon & Anderson, Joseph N. Anderson, for appellant.

J. Anderson Davis, J. Clinton Sumner, for appellee.

Carley, Judge,

concurring specially.

The trial court correctly ruled that, based upon its findings, there was no coverage in this case. It is clear that, in the absence of a violation of public policy, the exclusion involved in this case is applicable and enforceable. Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga. App. 513 (330 SE2d 443) (1985). In support of appellant’s contention that the policy exclusion in this case against public policy, appellant relies upon the following cases: Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985); Anderson v. Southeastern Fid. Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983); and Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115) (1981). I agree with the majority that the cited cases are not controlling here so as to require determination that the challenged exclusion is void as against public policy. However, I do not agree with the majority that those cases are necessarily distinguishable only because in those cases the vehicle was driven by the actual insured. “[I]n Georgia each exclusion must be evaluated individually.” Cotton States Mut. Ins. Co. v. Neese, supra, 338 fn. 6. In the case at bar, the insurance policy’s exclusion of coverage for any person “using a vehicle without a reasonable belief that that person is entitled to do so” is not violative of public policy. Cf. Integon Indent. Corp. v. Canal Ins. Co., 256 Ga. 692 (353 SE2d 186) (1987).

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


author: Banke, Presiding Judge.

text:
    77569.
    THE STATE v. BOYD.
    (377 SE2d 11)
   Banke, Presiding Judge.

On May 28, 1985, the appellee pled guilty to charges that he had possessed cocaine and marijuana in violation of the Controlled Substances Act. Based on these pleas, he was placed on probation for a period of three years pursuant to OCGA § 42-8-60 (a) (1), which provides for the probation of first offenders without an adjudication of guilt. The maximum sentence the appellee could have received for possession of cocaine was 15 years imprisonment. See OCGA § 16-13-30 (e).

On March 30,1988, the state filed a “Petition for Adjudication of Guilt and Imposition of Sentence,” based on allegations that the appellee had violated the terms and conditions of his probation on February 27 or 28, 1988, by committing an aggravated assault. Due to a series of continuances granted in response to requests by both sides, the matter did not come before the court for a hearing until May 31, 1988. At that time, the appellee moved to dismiss the petition on the ground that the three-year period of first offender probation had already expired. The trial court granted the motion, and the state filed this appeal. Held:

In concluding that it no longer had any authority to sentence the appellee once the period of probation had expired, the trial court relied on Logan v. Lee, 247 Ga. 608 (278 SE2d 1) (1981), Reed v. State, 101 Ga. App. 714 (115 SE2d 270) (1960), and Todd v. State, 107 Ga. App. 771 (131 SE2d 201) (1963). The state argues that these cases are inapposite because they deal with probation revocation (see OCGA § 42-8-20 et seq.) rather than the imposition of an initial sentence based on a violation of the terms and conditions of probation previously imposed under the “First Offender Probation Act.” See Ga. L. 1968, p. 324; OCGA § 42-8-60 et seq. The distinction between the two procedures was explained by the Supreme Court in State v. Wiley, 233 Ga. 316, 317-318 (210 SE2d 790) (1974), as follows:

“It is obvious that the General Assembly intended the first offender probation to have a different effect than probation in other cases. Any probationary sentence entered under this Act is preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction. If, however, such offender does not take advantage of such opportunity for rehabilitation, his trial which has, in effect, been suspended is continued and an adjudication of guilt is made and a sentence entered. Unlike other probated sentences the defendant is not merely serving his sentence outside the confines of prison, but is serving a period on probation to determine whether or not the prisoner may be rehabilitated.
“If, by violating the terms of his probation, the defendant shows that he is not worthy of the offered opportunity for rehabilitation then, and only then is he sentenced to the penitentiary. No former adjudication of guilt having been made and no prior sentence having been entered thereon, the defendant is subject to receive any sentence permitted by law for the offense he has been found guilty of committing.”

Pursuant to State v. Wiley, supra, the issue before the trial court in the present case was thus whether, as the result of an offense allegedly committed during the period of the first offender probation, the appellee defendant had forfeited his right to be discharged without a felony conviction on the drug possession charges. The trial court found that a violation of the terms of the first offender probation had in fact occurred. Under such circumstances, the court erred in concluding that it no longer had jurisdiction to impose sentence on the drug possession charges. We consequently reverse the judgment of the trial court and remand the case for disposition pursuant to OCGA § 42-8-60 (b), with the caveat that the defendant will be entitled to receive credit against any sentences imposed for the time he has already served on probation. See Stephens v. State, 245 Ga. 835, 836 (268 SE2d 330) (1980); Tallant v. State, 187 Ga. App. 138 (369 SE2d 789) (1988). We do not reach the issue of whether a different result would obtain if the state had failed to file its “Petition for Adjudication of Guilt and Imposition of Sentence” prior to the expiration of the period of first offender probation, since that issue is not presented by the facts of this case. The judgment of the trial court is reversed, and the case remanded for further proceedings consistent with this opinion.

Decided November 21, 1988 —

Rehearing denied December 13, 1988

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellant.

M. Francis Stubbs, for appellee.

Judgment reversed and case remanded with direction.

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


author: Carley, Judge.

text:
    77281.
    HENRY GENERAL HOSPITAL et al. v. STEPHENS.
    (376 SE2d 705)
   Carley, Judge.

Ralph Stephens sought workers’ compensation benefits but died before a hearing could be held. After his death, the workers’ compensation claim was pursued by his widow, appellee Betty Stephens. The Administrative Law Judge (ALJ) found that Mr. Stephens’ pre-existing hepatitis condition had been aggravated by his employment and that that aggravation had initially resulted in his compensable disability and in his eventual death. Accordingly, the ALJ awarded benefits to appellee. Appellants, the employer and its workers’ compensation insurance carrier, appealed to the Full Board, After a de novo review, the Full Board adopted the findings of the ALJ and, with some slight modification as to the amount of compensation, made the ALJ’s award to appellee its award. Appellants appealed to the superior court and the award of the Full Board was affirmed. Appellants then applied for a discretionary appeal to this court. This appeal results from the grant of appellants’ application.

1. Appellants contend that there was no evidence to authorize the ALJ to find that the deceased employee’s employment entailed the performance of vigorous or strenuous duties. “It is axiomatic that any finding of fact by the board, if supported by any evidence, is conclusive and binding upon the superior court and this court. [Cits.]” Walton County Bd. of Commrs. v. Williams, 171 Ga. App. 779, 780 (320 SE2d 846) (1984). See also Dalton Fire Dept. v. Gossage, 185 Ga. App. 96 (1) (363 SE2d 349) (1987); Kwon v. Fleming, 184 Ga. App. 861, 863 (2) (363 SE2d 28) (1987). A review of the record shows that there was ample evidence to support the finding that the deceased’s job duties were vigorous or strenuous.

2. Appellants also contend that there was no evidence to authorize the ALJ to find that “the decedent’s job duties . . . facilitated the progression of his pre-existing hepatitis.”

The decedent’s treating physician testified that “in good general medical practice . . . excessive activity, stress, and so forth either exacerbates — in some cases may even cause worsening of [hepatitis]. I think it is reasonable to presume that that would be the case here. ... I would think it is reasonable to suggest that [exertion or stress, either physical or mental,] would make [hepatitis] worse, based on all my experience and reading, as well as with [the deceased].” Accordingly, “[t]he doctor who treated claimant testified that [the deceased’s strenuous and stressful job activities] could aggravate the underlying disease to the point of disablement. The aggravation of a pre-existing condition was sufficient of itself to constitute the cause of the claimant’s inability to work, and the aggravation thus constituted compensable injury. [Cit.] Therefore, there was sufficient, competent evidence to support the findings of fact and the award. We are bound to affirm.” Thornton Chevrolet v. Morgan, 148 Ga. App. 711, 711-712 (252 SE2d 178) (1979). “This doctor’s opinion that work could have caused the [aggravation of the decedent’s pre-existing hepatitis condition] merely left it to the factfinder to determine whether in fact it did . . . aggravate the [hepatitis] condition. [Cits.] This evidence . . . [was] sufficient to support a finding for claimant ([cits.]). ...” (Emphasis in original.) Carter v. Kansas City Fire &c. Ins. Co., 138 Ga. App. 601, 603 (226 SE2d 755) (1976).

There is medical evidence of record which contradicts the above-stated opinion of the decedent’s treating physician. This evidence would not, however, authorize either the superior court or this court to reverse the award to appellee. “Even though the preponderance of the medical evidence may contraindicate any causative relationship between [the decedent’s employment and the aggravation of his preexisting condition], the above [stated opinions of the treating physician] constituted the requisite ‘any evidence’ to support the award, with regard to the issue of compensability. Accordingly, the superior court correctly affirmed the award of the board.” Walton County Bd. of Commrs. v. Williams, supra at 780.

Decided December 1, 1988 —

Rehearing denied December 14, 1988

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Cameron D. Simpson, for appellants.

Germano & Kimmey, J. Lansing Kimmey III, for appellee.

Judgment affirmed.

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


text:
    77437.
    BRUNSON v. C. B. A., INC.
    (376 SE2d 706)
   Banke, Presiding Judge.

Cecil Brunson sued C. B. A., Inc., to recover unpaid sales commissions allegedly due him for work which he had performed while employed as a sales representative for the company between March of 1985 and June of 1986. C. B. A. denied liability, contending that Brunson had at all times been employed on a straight salary basis rather than on a commission basis and that he had been paid all salary and bonuses due him. In addition, the company counterclaimed to recover the balance due on a promissory note Brunson had executed in favor of the company. The trial court granted summary judgment to C. B. A. on both the main claim and the counterclaim, and Brunson filed this appeal.

C. B. A. serves as a manufacturer’s representative for various companies and is itself compensated on a commission basis for its services. There is no question that Brunson understood he was to be paid on a straight salary basis at the time he began working for C. B. A.; however, he contends that he accepted the job based on oral representations by the company’s management that a commission plan was being formulated and would be implemented in the future. C. B. A. admitted in its answer “that it did in fact promise to attempt to put together a commission program for its sales persons.” Brunson testified that after beginning work for the company in August of 1983, he initially inquired about the status of the commission plan every two or three months, but that by November of 1984 he was “pressing the issue at least once a month.” He stated that he was told at that time by the company’s president and co-owner “that the company would be coming out with a [commission] plan next year.”

The company’s fiscal year ended in February of 1985; and in March of that year, Brunson and the other members of the sales staff began receiving “commission statements” disclosing the commissions the company had earned on their sales. Copies of proposed commission schedules reflecting the portion of this revenue to be credited to the individual members of the sales force as commissions were ultimately distributed in May of 1985, at which time it was announced that the plan would be retroactive to March of 1985. According to Brunson, one of the subjects discussed at the May 1985 meeting at which the commission schedules were distributed was how some manufacturers paid the company higher commissions than others and how sales of those companies’ products would enable the members of the sales force to “make more commission” themselves.

Throughout the remainder of the 1985 fiscal year, the company continued to issue pay checks to Brunson and the other members of its sales force as if they were still being compensated on a salary basis. Brunson testified that when he asked to be paid some portion of the commissions he had earned, he was informed by the president that the company’s policy would be to pay any additional compensation which had been earned in a lump sum at the end of the fiscal year. Brunson maintained that at no point during such discussions was he ever told that he was not currently earning commissions. When no commissions were forthcoming at the end of the fiscal year, he became dissatisfied and, in July of 1986, left to form his own company.

C. B. A. maintains that the commission plan distributed in May of 1985 was merely a preliminary proposal designed to show “that [the members of the sales force] could enjoy substantial commissions when C. B. A. shifted to a commission program.” While conceding that the schedules would have “created substantial anticipation in the mind of [Brunson],” the company asserts that it never agreed to be bound by them because it never decided to what extent its sales and overhead expenses would be offset against the proposed commissions. Brunson acknowledges that he was told during the May 1985 meeting that the plan still had “minor glitches” and was not final; however, he maintains he was assured at that time that “this was essentially going to be the pay plan. . . .’’In the context of that representation and of the company’s subsequent representations to him that he would be paid his commissions at the end of the fiscal year, he contends that the commission schedules could reasonably be viewed as evidencing a binding, enforceable agreement between the parties, notwithstanding the omission therefrom of any details regarding the apportionment of expenses. Held:

1. “It is well-settled that the policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties.” Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438, 439-440 (291 SE2d 35) (1982). “It is generally held that a contract is not void because its performance is, as to particular details, left subject to the subsequent agreement of the parties.” Id. at 440.

While C. B. A. contends that the commission schedules were too uncertain to be considered contractually binding due to the absence of any agreement on apportionment of expenses, Brunson counters that he has obviated any such uncertainty by charging himself with 100 percent of his sales expenses in determining the amount of commissions owed to him. Construing the evidence in favor of Brunson as respondent on motion for summary judgment, we hold that jury issues remain to be tried in the present case with respect to whether and to what extent the company assumed by its conduct a contractual obligation to compensate Brunson on a commission basis for the services which he rendered subsequent to February of 1985.

C. B. A.’s contention that it could not have acquired any executory obligations towards Brunson because his employment was terminable at will misses the point. Brunson is not suing to enforce an ex-ecutory obligation but to recover compensation for services which he has already fully performed, allegedly in reliance on promises made to him in advance of such performance. Compare Alston v. Brown Transport Corp., 182 Ga. App. 632 (356 SE2d 517) (1987); Murphine v. Hosp. Auth. of Floyd County, 151 Ga. App. 722 (261 SE2d 457) (1979). Brunson would not have been required to give the company “additional” consideration over and above the performance of his job as a sales representative in order to accept the offer created by these alleged promises. Compare Management Search v. Morgan, 136 Ga. App. 651 (222 SE2d 154) (1975) (holding that an employer’s promise to pay a bonus to an employee was not enforceable where the employee was already obligated under a written contract to perform the services in question).

Similarly misplaced is C. B. A.’s reliance on cases holding that agreements merely to seek agreement in the future are not enforceable. See, e.g., Hartrampf v. C & S Realty Investors, 157 Ga. App. 879, 881 (278 SE2d 750) (1981); Nuclear Assurance Corp. v. Dames & Moore, 137 Ga. App. 688 (225 SE2d 97) (1976). In the present case, Brunson’s testimony would support a finding that, beginning in May of 1985, the parties were operating under an express understanding that compensation for all sales made subsequent to February of 1985, would be based on the commission schedules. While this understanding was obviously not definite and certain as to all details, a jury might reasonably determine that it was sufficiently definite and certain as to its essential elements to constitute an enforceable agreement. Accord McMurray v. Bateman, 221 Ga. 240, 252-253 (144 SE2d 345) (1965). Compare Medlin v. Globe Continental Corp., 171 Ga. App. 103 (318 SE2d 807) (1984) (holding that a former employee was not entitled to recover a year-end bonus from his former employer where no definite sum of money or percentage of profits was promised and where the employee left the company before the end of the fiscal year in question). Consequently, we hold that the trial court erred in granting summary judgment to C. B. A. with respect to Brunson’s commission claim.

2. We reject Brunson’s claim that in the event it is ultimately determined that C. B. A. did not contract to pay him on a commission basis, he can recover additional compensation for his services on the theory of quantum meruit. Either he was to be paid for his services on a commission basis or he was to be paid on a straight salary basis, and in either event the amount of his compensation was the subject of an express agreement. That being so, “[t]he agreement of the parties, and not the legal principle of giving value for services rendered in the absence of an agreement, controls.” Ga. Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 346 (333 SE2d 618) (1985). Compare Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 292 (3) (241 SE2d 256) (1977).

3. Inasmuch as Brunson does not deny owing the balance due on the promissory note, the trial court was authorized to grant partial summary judgment to C. B. A. with respect to such liability. However, the trial court was not authorized to go further and enter a final judgment in favor of the company for the remaining principal and interest due on the note, inasmuch as Brunson may ultimately prevail on his commission claim, and the amount of that claim exceeds his remaining indebtedness on the note. Accord Mock v. Canterbury Realty Co., 152 Ga. App. 872, 878-879 (264 SE2d 489) (1980). Because the amount of attorney fees which the company may be entitled to collect under the terms of the note will similarly be affected by the ultimate disposition of the commission claim, the inclusion of such attorney fees in the summary judgment awarded on the counterclaim was similarly premature.

4. Asserting that he himself never sought summary judgment, Brunson contends that the court erred by including in its order a statement that “[p]laintiff’s motion for summary judgment is DENIED.” Clearly, however, this alleged error was entirely harmless under the circumstances. Consequently, it requires no further response from this court.

Judgment reversed.

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

Decided December 2, 1988 —

Rehearing denied December 14, 1988

Lawrence E. Newlin, for appellant.

Bauer, Deitch & Raines, Gilbert H. Deitch, George Ference, for appellee.


author: Banke, Presiding Judge. Birdsong, Chief Judge,

text:
    77473.
    SOUTHEASTERN FIDELITY INSURANCE COMPANY v. CHANEY et al.
    (376 SE2d 710)
   Banke, Presiding Judge.

The appellant, Southeastern Fidelity Insurance Company, issued a policy of motor vehicle liability insurance to the appellees, Effie and June Chaney. The insured vehicle was owned by and registered to Effie Chaney; however, she did not have a driver’s license, and she was identified on the policy as a non-driver. The regular driver of the vehicle was June Chaney, Effie’s 25-year-old daughter, who resided in the same household with Effie along with two children of her own.

During the period the policy was in effect, Effie was injured in a collision which occurred while she was riding in the insured vehicle as a passenger. June was driving the vehicle at the time, and Effie submitted a claim to the insurer for liability benefits, contending that the collision had been caused by June’s negligence. In response, the insurer filed the present action seeking a judicial declaration that it had no obligation to pay such benefits, due to the presence in the policy of a “Family Exclusion Endorsement” providing as follows: “This policy does not apply under the Bodily Injury and Property Damage Liability coverages to (1) the named insured, or (2) any person who is related by blood, marriage or adoption to and is a resident of the same household as (i) the insured or (ii) the person for whose use of the automobile or trailer the insured is legally responsible. If this policy is issued in a state where Personal Injury Protection coverage is required, this endorsement does not apply to the Personal Injury Protection coverage.”

The trial court granted summary judgment to the insureds on the coverage issue, while denying summary judgment to the insurer. This appeal followed. Held:

Because June is an emancipated adult, she would have no immunity from liability to Effie under the intrafamily tort immunity doctrine. See Howard Concrete Pipe Co. v. Cohen, 139 Ga. App. 491, 493 (3) (229 SE2d 8) (1976); Davis v. Cox, 131 Ga. App. 611, 614 (206 SE2d 655) (1974). The insureds consequently contend that the family exclusion endorsement must be considered unenforceable under GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595) (1986), wherein the Supreme Court held that a family or household exclusion clause appearing in a contract of motor vehicle liability insurance issued in Georgia is violative of public policy to the extent that it purports to grant to the insurer broader protection from liability than the insured tortfeasor enjoys under the tort law applicable in the state where he is being sued. The appellant insurer, on the other hand, relies on the Supreme Court’s more recent decision in Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355 (359 SE2d 665) (1987), holding that a named insured’s wife was not entitled to recover liability benefits for injuries incurred while riding as a passenger in the insured vehicle at a time when the vehicle was being driven by a friend.

In holding that the family exclusion clause was enforceable under the facts of the Southern Guaranty case, the Court explained that its decision in GEICO v. Dickey had turned not merely on the public policy of ensuring compensation for innocent victims of negligent motorists but also on “the exposure of the insured to liability.” Southern Guaranty, supra, 257 Ga. at 356. The Court thus appeared to place great importance on the fact that the alleged tortfeasor in the GEICO case was the policyholder, whereas the alleged tortfeasor in the Southern Guaranty case was a stranger to the insurance contract. (In this connection, the Court may also have been influenced by the fact that the alleged tortfeasor in the Southern Guaranty case was separately covered under a policy of motor vehicle insurance issued to her in her own right by another company.) In holding that the family exclusion clause was not against public policy and was enforceable in the Southern Guaranty case, the Supreme Court reasoned that to deny liability benefits to the wife of the named insured under the circumstances would result neither in “prejudice to innocent members of the motoring public,” nor in “unfair exposure of the insured to unanticipated liability which was the problem in GEICO v. Dickey.” Id. at 356.

The facts in the present case appear to fall somewhere between those in Southern Guaranty and those in GEICO. On the one hand, the alleged tortfeasor is herself a named insured facing exposure to liability, a fact which tends to bring the case within the ambit of GE-ICO. On the other hand, enforcement of the family exclusion clause would not result in potential prejudice to “innocent members of the motoring public” who are not themselves signatories to the policy, a fact which tends to make Southern Guaranty applicable. On balance, however, we conclude that the more important consideration is the protection of a named insured from exposure to liability resulting from the operation of the insured vehicle, and we accordingly hold that GEICO rather than Southern Guaranty is the controlling authority. Consequently, we affirm the order of the trial court granting summary judgment to the appellees and denying summary judgment to the appellant on the coverage issue.

Decided December 2, 1988 —

Rehearing denied December 14, 1988

Newton, Smith, Durden, Kaufold, Wilson R. Smith, for appellant.

Joseph J. Hennesy, Jr., for appellee.

Judgment affirmed.

Beasley, J., concurs. Birdsong, C. J., concurs specially.

Birdsong, Chief Judge,

concurring specially.

I agree with the majority that so long as the holding of GEICO v. Dickey, 255 Ga. 661, 663 (340 SE2d 595), is extant, we should follow its literal meaning, i.e., “if the exclusion were broader than the tort immunity of this state, the exclusion would be against public policy.” It is not contested that the insured’s tort liability in the instant appeal exists, and the policy “exclusion [is] broader than the tort immunity of the state.” Accordingly, I am constrained to follow Dickey, even though I doubt its viability in light of Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355 (359 SE2d 665), which reversed Preferred Risk Mut. Ins. Co. v. Southern Guaranty Ins. Co., 181 Ga. App. 688 (353 SE2d 590), which appears to hold the same thing as this opinion. Accordingly, I concur with the result reached.


text:
    77505.
    BYRAM v. THE STATE.
    (376 SE2d 909)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery based on evidence that she had participated with three other persons in the robbery of a pizza deliveryman at knifepoint. She brings this appeal from the denial of her motion for new trial. Held:

1. The appellant attacks the constitutionality of OCGA § 17-6-1, contending that it constitutes “an unreasonable restraint by the legislature upon the discretionary power of the judiciary.” We assume that the appellant’s quarrel is with subsection (g) of the Code section, which specifies in pertinent part that “[n]o appeal bond shall be granted to any person who has been convicted of . . . armed robbery. . . .” However, we are cited to no ruling by the trial court denying an appeal bond in the present case. Consequently, this enumeration presents nothing for review. Moreover, even assuming that the appellant was in fact denied an appeal bond on the basis of this statutory provision, we note that its constitutionality has previously been upheld against both due process and equal protection challenges. See Browning v. State, 254 Ga. 478 (2) (330 SE2d 879) (1985).

2. It is asserted that the trial court erred in allowing one of the investigating officers to reveal the nature of certain in-custody statements one of the co-indictees had made in his presence which tended to incriminate the appellant. The testimony in question served as the foundation for the introduction of certain items of physical evidence which were seized from the residence where the offense occurred. As there is no indication that the appellant raised any objection either to the testimony or to the introduction of the physical evidence itself, this enumeration of error also presents nothing for review.

3. The appellant contends that the trial court erred in refusing to charge on conspiracy as a lesser included offense. See generally OCGA § 16-4-8. However, the evidence introduced at trial established without dispute that the armed robbery had in fact been committed. “The failure to charge on conspiracy under these circumstances is not error, because, if the crime has in fact been committed, the co-conspirators are guilty as parties to the commission of the crime under [OCGA § 16-2-20].” See Gunter v. State, 243 Ga. 651, 660 (256 SE2d 341) (1979).

4. The trial court did not err in failing to charge, without request, on the lesser included offense of robbery by intimidation. See generally Peterson v. State, 253 Ga. 171, 172 (317 SE2d 521) (1984); State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).

5. Subsequent to her arrest, the appellant made certain incriminating statements to police, both orally and in writing. In response to a written discovery request served upon the state prior to trial, defense counsel was provided with a copy of the written statement but not a summary of the oral statement. For this reason, the trial court did not allow the state to prove the contents of the oral statement. The appellant contends on appeal that proof of the written statement should also have been excluded under these circumstances. We find this contention to be without merit. Cf. White v. State, 253 Ga. 106 (2) (317 SE2d 196) (1984).

6. The appellant also contends the written statement was inadmissible because it was the product of an unlawful arrest and was not voluntary. Based on the evidence adduced at the Jackson v. Denno hearing, we hold that if in fact any such objections were made at trial, they were properly overruled. See generally Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).

7. The appellant contends that the trial court erred in failing to charge the jury on the requirements of OCGA § 24-3-53, which provides as follows: “All admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.”

Decided December 2, 1988 —

Rehearing denied December 14, 1988.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

The court did in fact charge the first sentence of the Code section, and the appellant did not request a charge on the second portion. As her written statement to police was, in any event, amply corroborated by other evidence, this enumeration of error is also without merit.

8. Because the state’s case did not rest merely on circumstantial evidence, the trial court did not err in failing to charge, without request, on the provisions of OCGA § 24-4-6. See Whittington v. State, 252 Ga. 168 (7) (313 SE2d 73) (1984).

9. The evidence introduced at trial, considered in its entirety, was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the appellant was an active participant in the armed robbery. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

10. We have carefully examined the appellant’s remaining enumerations and have determined that they establish no ground for reversal of the appellant’s conviction.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    77918.
    CLARK v. SOUTHEAST ATLANTIC CORPORATION et al.
    (377 SE2d 19)
   McMurray, Presiding Judge.

This is an action for damages arising from a motor vehicle collision between a truck driven by defendant Light in the course of his employment by defendant Southeast Atlantic Corporation and an automobile driven by plaintiff Clark. The collision occurred when defendant Light, driving eastbound on Hugh Howell Road in Tucker, Georgia, encountered a vehicle driven by Joseph Kent Frederick emerging from a stop sign headed northbound, across Hugh Howell Road. Plaintiff Clark was headed westbound on Hugh Howell Road. Defendant Light crossed the centerline after colliding with Frederick; in doing so, he struck plaintiff Clark’s vehicle and thereafter overturned his employer’s truck on the south shoulder of the highway.

Decided November 28, 1988 —

Rehearing denied December 14, 1988

Robert P. Wilson, for appellant.

Originally included as defendants in the case sub judice were Joseph Kent Frederick and Kent L. Frederick. The Fredericks were released from the case pursuant to a settlement agreement with plaintiff Clark.

At trial the jury returned a verdict in favor of defendants Light and Southeast Atlantic Corporation and against plaintiff. Plaintiff appeals raising a single issue of whether the trial court erred in refusing to give plaintiff’s requested charge on sudden emergency. Held:

The parties have stipulated that there was sufficient evidence at trial for the jury to have returned a verdict for either the plaintiff or the defendants on their respéctive theories under a proper charge by the trial court. Both parties agree that the evidence warranted a charge on sudden emergency and one was given.

However, plaintiff contends the trial court erred in refusing to give the requested charge since the charge as given failed to include any instruction (such as requested) that the defendants had the burden of proof to show that defendant Light did not in any way contribute to the sudden emergency by the manner in which he operated his employer’s truck.

The plaintiff’s requested charge states: “It appears from the evidence that the defendant contends that he was not negligent in the operation of his vehicle, but rather was faced with a sudden emergency. I charge you that before a defendant may avail himself of the defense of ‘sudden emergency’ it must be proved to your satisfaction and by a preponderance of the evidence, that the defendant did not in any way contribute to the emergency by the manner or method in which he operated his automobile.”

We affirm, since we find plaintiff’s requested charge to be argumentative. A charge which states inferences from the evidence, reasoning, or conclusions is argumentative. Liberty Nat. Life Ins. Co. v. Power, 112 Ga. App. 547, 555 (6) (145 SE2d 801). See also Emory Univ. v. Lee, 97 Ga. App. 680, 697 (4) (104 SE2d 234). An argumentative charge is properly refused. Lefkoff v. Sicro, 189 Ga. 554 (3) (6 SE2d 687). See also Adams v. Smith, 129 Ga. App. 850, 854 (8) (201 SE2d 639); Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 663, 641 (224 SE2d 739).

Judgment affirmed.

Pope and Benham, JJ., concur.

Henning, Chambers & Mabry, Arthur L. Myers, Jr., for appellees.


text:
    77406.
    GOVERNMENT EMPLOYEES INSURANCE COMPANY (GEICO) v. SISK.
    (376 SE2d 25)
   Banke, Presiding Judge.

The appellee sued the appellant insurer to recover optional personal injury protection (PIP) benefits allegedly due her as a consequence of the insurer’s failure to comply with Ga. L. 1975, p. 3, § 1 (formerly codified as OCGA § 33-34-5 (c)), which required motor vehicle liability insurers to give existing policyholders an opportunity to accept or reject optional PIP coverage in writing. The trial court granted summary judgment to the insured and denied summary judgment to the insurer on the coverage issue, and the insurer brought this appeal.

The insurance policy in question was already in existence on March 1, 1975, when the statute took effect. On May 19, 1975, the insurer mailed certain materials to the insured in an effort to comply with the statute. Included in these materials was a letter advising as follows: “Basic Personal Injury Protection, with a maximum limit of $5,000 per person, was automatically added to every Georgia auto insurance policy on March 1, 1975. However, if you want more than $5,000 of protection for you and your family, you must request a higher limit. Additional limits of $10,000, $25,000 or $50,000 worth of Personal Injury Protection are available. . . . Because auto accident injury costs continue to rise, we recommend the $25,000 limit of Additional PIP coverage.” (Emphasis from original.)

Accompanying the letter was a form entitled, “GEORGIA NO-FAULT OPTION SELECTOR,” to be used by the insured in the event she desired to purchase optional coverage. With respect to PIP coverage, the following options were listed:

□ I want $10,000 Additional PIP at an annual cost of $5.00 per vehicle.
□ I want $25,000 Additional PIP at an annual cost of $9.00 per vehicle.
□ I want $50,000 Additional PIP at an annual cost of $14 per vehicle.

The insured was asked to mark her desired selections on the form, to sign and date it, and to return it in an envelope provided for that purpose; and she was instructed that if she did not do so within 30 days, the company would assume that the offer of additional coverages had been rejected. The insured did not return the form; and several years later, on February 11, 1981, she was involved in the accident which gave rise to the present claim. Held:

As codified by former OCGA § 33-34-5 (c), Ga. L. 1975, p. 3, § 1 provided as follows: “On and after March 1, 1975, all named insureds in existing motor vehicle liability policies who have not previously responded to an offer to accept or reject the optional coverages required to be offered by this chapter shall be given an opportunity to accept or reject, in writing, the optional coverages required to be offered under this Code section; provided, however, that the failure of an insured to notify his insurer of his written acceptance or rejection within 30 days after written notice of the offer has been mailed by the insurer, postage prepaid, by first class mail to the address stated in the policy shall constitute a rejection of the optional coverage.”

The insured in this case contends that the materials mailed to her by the insurer failed to meet these requirements for two reasons: (1) Because the selection form did not provide a method by which she could reject in writing any and all offers of optional PIP coverage but was designed only for use in electing such coverage, and (2) because the optional PIP coverage limits described in the letter and listed on the form were evidently not intended to represent “additional” coverage limits, as indicated, but rather total coverage limits. (This assertion is based on the fact that the maximum PIP coverage required to be made available under the Georgia Motor Vehicle Accident Reparations Act is $50,000, see OCGA § 33-34-5 (a), whereas the total coverage purportedly offered by the letter and form appears to have been $55,000.) We hold that neither of these asserted deficiencies invalidated the offering.

Since the statute specified that a failure to accept the offer of optional coverage within 30 days would be considered a rejection of the offer, it is clear that the Legislature had no intention of requiring the insurer to extend such coverage to existing policyholders in all cases where the policyholder did not reject it in writing. In Wiard v. Phoenix Ins. Co., 251 Ga. 698, 700 (310 SE2d 221) (1983), the Supreme Court held that an offering would be deemed sufficient to meet the requirements of former OCGA § 33-34-5 (c) if it clearly informed the insured of the optional coverages available and provided “a means for the insured to make a written acceptance or rejection of each.” (Emphasis supplied.) In accordance with this decision and with the reasonable intendment of the statutory language, we conclude that the failure to provide on the selection form a mechanism for rejecting those optional coverages which were not desired as well as a mechanism for electing those which were desired did not render the form defective.

While the evident mistake in describing the optional coverage limits as “additional” limits rather than total limits does appear to have constituted a defect, we hold that this mistake was not of sufficient magnitude to nullify the offering. “Substantial compliance” with the Code section was all that was needed in order for the offering to be valid. See Anderson v. United Svcs. Auto. Assn., 185 Ga. App. 552 (365 SE2d 467) (1988). It is apparent that the overstatement of the available optional PIP coverage limits could not have been a material factor in the insured’s decision not to select such coverage since, to the extent it misled her, it would have misled her to believe she would receive $5,000 more PIP coverage in return for payment of the additional premium amounts listed than was actually the case. We accordingly conclude that the mistake did not prevent the insured’s failure to return the document from constituting a valid rejection of the optional PIP coverage actually available to her. Both the grant of summary judgment to the insured and the denial of summary judgment to the insurer on the coverage issue are consequently reversed.

Decided December 2, 1988 —

Rehearing denied December 14, 1988

Drew, Eckl & Farnham, G. Randall Moody, for appellant.

Monroe J. Feldman, Michael D. Goodman, for appellee.

Judgment reversed.

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


author: Carley, Judge. Sognier, Judge,

text:
    76525, 76526.
    DEPARTMENT OF TRANSPORTATION v. PETKAS et al.; and vice versa.
    (377 SE2d 166)
   Carley, Judge.

Pursuant to OCGA § 32-3-1 et seq., the Department of Transportation (DOT) condemned property which was owned by Mr. Nick Petkas and others (condemnees). The issue of just and adequate compensation was tried before a jury and the verdict which was returned was in excess of the amount which had been paid into court by DOT. The trial court entered judgment in favor of the condemnees for the difference. Thereafter, DOT filed a motion for new trial. Relying upon OCGA § 32-3-19 (b), DOT also subsequently moved that the judgment in favor of the condemnees be vacated as having been prematurely entered on the jury’s verdict. The trial court denied DOT’s motion for new trial, but it did order that the judgment in favor of the condemnees be set aside. In Case No. 76525, DOT appeals from the denial of its motion for new trial. In Case No. 76526, the condemnees cross-appeal from the setting aside of the judgment.

Case No. 76526

1. Because the cross-appeal raises an issue which relates to the existence of appellate jurisdiction over this and other condemnation actions initiated pursuant to OCGA § 32-3-1 et seq., that appeal will be addressed first.

The condemnees enumerate as error the grant of DOT’S motion to set aside the judgment which had been entered on the jury’s verdict. As previously indicated, in urging that the judgment in favor of the condemnees be set aside as premature, DOT relied upon OCGA § 32-3-19 (b) and, in granting the motion to set aside, the trial court also relied upon that statute. OCGA § 32-3-19 (b) provides: “After the verdict of the jury, the court shall, in instances where no motion for new trial or notice of appeal is filed within the time provided for by law or where such verdict has been affirmed by a proper appellate court and the remittitur from such court has been made the judgment of the superior court, enter judgment in favor of the condemnee and against the condemnor in the amount of such verdict, together with the accrued court costs, which judgment shall be immediately credited with the sum of money deposited by the condemnor with the declaration of taking and which shall bear interest as provided in subsection (c) of this Code section. . . .” (Emphasis supplied.) Under DOT’s construction of OCGA § 32-3-19 (b), the entry of judgment in this case would have been authorized had no timely motion for new trial been filed but, since a timely motion for new trial was filed, the entry of judgment was premature and prohibited.

Before addressing the issue of what the statute prohibits, consideration must be given to what the statute authorizes. If read literally, OCGA § 32-3-19 (b) contemplates that the trial court “shall” enter judgment on the jury’s verdict in three enumerated instances. First, the trial court “shall” enter judgment “where no motion for new trial. ... is filed within the time provided for by law. ...” However, “the time provided for by law” for the filing of a motion for new trial does not begin to run until such time as a judgment has been entered on the jury’s verdict. Accordingly, the direction that judgment “shall” be entered in this enumerated instance is mere surplusage. A judgment “shall” necessarily have been entered by the trial court in all instances where no timely motion for new trial has been filed, for the very reason that no motion for new trial could otherwise have been timely filed. Second, OCGA § 32-3-19 (b) provides that the trial court “shall” enter judgment “where no . . . notice of appeal is filed within the time provided for by law. . . .” However, “the time provided for by law” for the filing of a notice of appeal likewise does not begin to run until such time as a judgment has been entered on the jury’s verdict. Accordingly, the direction that judgment “shall” be entered in this enumerated instance is also mere surplusage. A judgment “shall” necessarily have been entered by the trial court in all instances where no timely notice of appeal has been filed because, absent the entry of such judgment, no notice of appeal could otherwise have been timely filed. Third, OCGA § 32-3-19 (b) provides that the trial court “shall” enter judgment “where such verdict has been affirmed by a proper appellate court. . . .” This portion of the statute is either meaningless at worst, or it is mere surplusage at best. An appellate court has no jurisdiction to hear an appeal from a jury’s “verdict” and, therefore, a direction that judgment “shall” be entered where the “verdict” of the jury has been affirmed on appeal is meaningless. If the word “verdict” is to be read as “judgment,” then the direction that judgment “shall” be entered by the trial court after an affirmance on appeal is no more than mere surplusage. An appellate court would have no jurisdiction over the appeal unless judgment had been entered on the jury’s verdict. “[Tjhere must be an entry of judgment to finally dispose of the case or for the purpose of using the judgment to support an appeal to this court or the Supreme Court. [Cits.]” Dunagan v. Sims, 119 Ga. App. 765, 767 (1) (168 SE2d 914) (1969). Accordingly, a judgment “shall” necessarily have been entered by the trial court in all instances where there has been an affirmance of the case by an appellate court, for the reason that, absent the entry of such a judgment, appellate jurisdiction would otherwise be lacking.

“Where possible, we construe language used by the General Assembly in a manner that will not render it meaningless or mere surplusage. [Cit.]” State of Ga. v. C. S. B., 250 Ga. 261, 263 (297 SE2d 260) (1982). “[I]t is nevertheless a cardinal rule of construction that the legislative intent shall be effectuated, even though some of the verbiage of an enactment may have to be eliminated from the text.” Youmans v. State, 7 Ga. App. 101, 103 (1) (66 SE 383) (1909). It is clear that the legislature intended that the parties to a jury trial which is held in a condemnation action initiated pursuant to OCGA § 32-3-1 et seq. have “the same right to move for a new trial and file a notice of appeal as in other cases at law. . . .” OCGA § 32-3-16 (a). If any effect is to be given to that clear legislative intent, it is not possible to construe the relevant language of OCGA § 32-3-19 (b) as being anything other than meaningless or mere surplusage. As discussed, the right to move for a new trial, to file a notice of appeal and to have an appellate resolution of the case are all premised upon the prior entry of judgment by the trial court on the jury’s verdict.

If the language of OCGA § 32-3-19 (b) which explicitly directs the entry of judgment in certain enumerated instances is meaningless or mere surplusage, it necessarily follows that there is no validity to DOT’s construction of that language as implicitly prohibiting the entry of judgment in the unenumerated instances. To give effect to that construction would lead to the absurd result that there could be no viable appeal in a condemnation action under OCGA § 32-3-1 et seq. Under DOT’s interpretation, the mere filing of a timely motion for new trial or a notice of appeal, both of which contemplate the prior entry of a judgment on the jury’s verdict, would have the anomalous consequence of destroying the underlying viability of that prior judgment as a final appealable order in the case and the proceedings would necessarily end with the otherwise nonfinal and unappealable jury verdict. “ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cits.]” Barton v. Atkinson, 228 Ga. 733, 739 (187 SE2d 835) (1972). “ ‘[W]hen to follow the words of an enactment would lead to an absurdity as its consequences, that constitutes sufficient authority to the interpreter to depart from them.’ [Cit.]” Gillis v. Gillis, 96 Ga. 1, 9 (1) (23 SE 107) (1895).

The trial court erred in relying upon OCGA § 32-3-19 (b) as authority for setting aside the judgment that it had entered on the jury’s verdict. Accordingly, the order of the trial court which sets aside that judgment is reversed and the case is remanded with direction that the trial court reinstate the original judgment.

Case No. 76525

2. Technically, until such time as the remittitur in Case No. 76526 is made the judgment of the trial court, there is no actual judgment in the case upon which DOT could predicate either its motion for new trial or its appeal from the denial thereof. However, in the interest of judicial economy and fairness to the parties, we will address the merits of the errors that are enumerated in DOT’s main appeal, rather than dismiss in contemplation of DOT’s refiling of a motion for new trial or notice of appeal subsequent to the reinstatement of the judgment that is mandated by our holding in Case No. 76526.

3. The trial court refused to admit into evidence some 50 of DOT’s photographs of the property. This evidentiary ruling is enumerated as error.

At trial, introduction of the photographs was disallowed on the clearly erroneous ground that they had been made subsequent to the date that the property had been taken by DOT. “It is the substantial resemblance, not the date, which should control. [Cits.]” Camelot Club Condo. Assn. v. Metro Lawns, 161 Ga. App. 574, 575 (2) (288 SE2d 325) (1982). DOT’s photographs, although made subsequent to the date of taking, were shown to be a fair and accurate representation of the property on the date of taking. Accordingly, the photographs were clearly admissible. See generally Sackett v. L. L. Minor Co., 244 Ga. 375, 376 (2) (260 SE2d 37) (1979).

In denying DOT’s motion for new trial, the trial court apparently recognized that its evidentiary ruling was erroneous, but it further concluded that the excluded photographs were cumulative of other evidence which had been admitted in the case. The excluded photographs were not, however, cumulative of any other photographs introduced by DOT. The trial court’s ruling excluded all of DOT’s photographic evidence. The proposition that DOT’s erroneously excluded photographic evidence should be considered as merely cumulative of the oral testimony is untenable. “A condemnation case can easily become a confusing mass of numbers if the parties do not introduce clear and intelligible evidence to supplement the testimony.” Pursley, Ga. Eminent Domain, ¶ 7-10, p. 191 (1982). The trial court did allow the condemnees to introduce photographs to supplement the testimony which supported their contentions as to the just and adequate compensation for the property. DOT, however, was erroneously required to rely solely upon oral testimony to support its own contentions in that regard. The erroneous evidentiary ruling excluding all of DOT’s photographs was clearly harmful because it “effectively eviscerated [DOT’s] theory” as to just and adequate compensation for the property. Harris v. Collins, 145 Ga. App. 827, 828 (3) (245 SE2d 13) (1978).

4. The trial court refused to allow DOT to cross-examine witnesses with regard to the fact that, at the time of the taking, a pending lawsuit between two of the condemnees involved the property which was the subject of the condemnation proceeding. This ruling is enumerated as an erroneous curtailment of DOT’s right to conduct a thorough and sifting cross-examination.

The condemnees urge that this cross-examination was improper absent any showing by DOT that the legal dispute would have interfered with any sale or lease of the property. This contention ignores, however, that the very purpose of DOT’s cross-examination was to determine whether or not the legal dispute would have interfered with any sale or lease of the property and, therefore, whether or not it would have had an effect on its value. “Fair market value is the price a seller who desires, but is not required, to sell and a buyer who desires, but is not required, to buy, would agree is a fair price, after due consideration of all the elements reasonably affecting value. [Cit.]” (Emphasis supplied.) Wright v. MARTA, 248 Ga. 372, 375 (283 SE2d 466) (1981). There can be no doubt that the existence of a lawsuit between co-owners of property could have an effect on the property’s value. “A title which exposes the vendee to litigation is not a good and merchantable one if the danger thereof is apparent and real, not merely imaginary or illusory, which may be apprehended upon the basis of some fact or truth as to which there can be no ascertainment with reasonable certainty. [Cit.]” Mrs. E. B. Smith Realty Co. v. Hubbard, 130 Ga. App. 672, 675 (1) (204 SE2d 366) (1974). Accordingly, DOT’s inquiry was clearly relevant because it concerned an existing circumstance which could have affected the value of the property.

The condemnees further urge that any relevancy of the cross-examination would be outweighed by its prejudice. If, however, the witnesses had responded in the negative as to the impact of the legal dispute upon the value of the property, the condemnees certainly would not have been prejudiced. If, on the other hand, the witnesses had responded to DOT’s inquiries in the affirmative, the relevancy of those affirmative responses to the issue of the value of the property would clearly outweigh any arguable prejudice to the condemnees. “ ‘A relevant and material fact is not subject to an objection that it would inflame the minds of the jurors.’ [Cits.]” Cagle Poultry &c. Co. v. Busick, 110 Ga. App. 551, 552 (1b) (139 SE2d 461) (1964). The trial court erroneously abridged DOT’s right to a thorough and sifting cross-examination and that error was harmful.

5. The trial court allowed the condemnees to introduce evidence regarding the changes made by DOT in its plans for the property prior to the date of the actual taking. This evidentiary ruling is enumerated as error.

The condemnees urge that this evidence was admissible to rebut the testimony of DOT’s experts whose opinions as to value had been based, in part, upon the vacancy of the improvements on the date of taking. However, the only relevant inquiry was the value of the property on the date of taking. That the value of the property on that date may have been lessened as a result of the anticipated condemnation is totally irrelevant to the issue of just and adequate compensation. “[L]osses occurring to property before the actual date of taking are not compensable in direct condemnation actions. Thus, while there is a diminution in value as a result of anticipated condemnation, no compensation may be paid. [Cit.]” Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3) (353 SE2d 346) (1987). Accordingly, the evidence as to the pre-taking changes in DOT’s plans for the property was in no way relevant to rebut the testimony of DOT’s experts. “ ‘Since the compensation to be paid for property condemned is to be determined by its value at the time of its actual taking, a jury can not consider the value at a time prior to the actual time of taking.’ [Cit.]” Will-Ed Enterprises v. MARTA, 139 Ga. App. 829 (229 SE2d 763) (1976).

The inadmissible evidence undoubtedly caused the jury to infer that DOT was somehow guilty of pre-taking bad faith, and that such bad faith should be given consideration in the determination of the value of the property on the date of actual taking. Indeed, the condemnees used the inadmissible evidence as a basis from which to argue to the jury that DOT owed “the duty ... to let them be in a position to make some sort of reasonable business decision rather than sit there with a piece of property they couldn’t do anything with for a period of six years, six years, at $100,000 a year, that’s $750,000 that they lost while they were waiting for something to happen to that property.” The evidence upon which the condemnees predicated this argument was totally irrelevant and prejudicial, and its admission constitutes reversible error. By the admission of this evidence, the. condemnees were erroneously allowed to raise allegations of DOT’S pre-taking “bad faith ... in a forum in which the sole issue [was] just and adequate compensation [as of the date of taking], [Cit.]” Department of Transp. v. Franco’s Pizza &c., 164 Ga. App. 497, 498 (1) (297 SE2d 72) (1982). That the condemnees were “unable to rent the [improvements] on the property once the condemnor announced its plans to take the property . . . [is] a ‘loss’ [which] is not compensable. [Cits.]” Collins v. MARTA, 163 Ga. App. 168, 170 (6) (291 SE2d 742) (1982).

6. DOT enumerates as error the trial court’s exclusion of statistical evidence concerning the occurrence of actual traffic mishaps at the intersection where the property was located.

It is the condemnees’ contention that the effect of this ruling was only to exclude evidence which was merely cumulative of other evidence which had been admitted regarding the existence of traffic and safety problems at the intersection. A review of the record reveals, however, that the excluded report was not merely additional evidence as to the general existence of “traffic and safety problems” at the intersection. It sought to quantify and to clarify those general traffic problems by showing exactly how many actual mishaps had occurred at the intersection. The condemnees were allowed to show that the property was presumably benefited by the intersection’s high traffic count, and DOT was likewise entitled to show that that high traffic count was not an entirely advantageous element. The value of property located at a known high traffic-mishap intersection may differ from the value of property which is located at an intersection which presents only such general “traffic and safety problems” as are usually associated with a high-traffic count. Cf. Department of Transp. v. Whitehead, 169 Ga. App. 226, 231 (4) (312 SE2d 344) (1983), aff’d 253 Ga. 150 (317 SE2d 542) (1984).

Thus, the trial court’s ruling had the erroneous and harmful effect of preventing DOT from introducing relevant evidence as to an element “reasonably affecting value. [Cit.]” Wright v. MARTA, supra at 375. “ ‘Evidence which, in connection with other evidence, tends, however slightly, to prove, explain, or illustrate a fact, even though it is not sufficient, standing alone, to sustain a finding of such fact, is relevant, has probative value and is admissible as against objection as to its relevancy and probative value; doubt as to the latter should be resolved in favor of admission and against exclusion, sufficiency not being a test or condition of admissibility. [Cits.]’ [Cits.]” Department of Transp. v. Whitehead, supra at 231 (4).

7. Error is enumerated as to the trial court’s ruling which allowed the condemnees to elicit testimony concerning the denial of certain permits to them by the City of Atlanta.

This evidence was totally irrelevant. “Although the presence or absence of a special use permit may reflect upon the value of a piece of property and thereby affect the amount of compensation to be paid for it, a condemnation proceeding is not the proper forum to litigate the denial of an application for such a permit. [Cit.]” United Waste v. Fulton County, 184 Ga. App. 694, 698 (4) (362 SE2d 476) (1987). The record shows that this evidence was specifically admitted for the purpose of implicating DOT in the denial of the permits. The trial court overruled DOT’s objection to the evidence when the condemnees urged that its introduction “would be permissible if it relates to [DOT]” and, thereafter, one of the condemnees’ witnesses responded in the affirmative when the trial court itself asked if the permits had been “held up because of the alleged condemnation of the property.” Moreover, the condemnees argued to the jury that “[i]t came from the witness stand ... his Honor asked did the fact that [the property] was under condemnation . . . have anything to do with [the condemnees’ inability] to get permits and the answer is yes, it sure did. . . .” The evidence upon which the condemnees predicated this argument was irrelevant and erroneously admitted. “Assuming that the DOT did influence the [permit] decisions, the final, official decisions to deny [the condemnees’ permit] requests were made by the [City of Atlanta]; it was [the City], not the DOT, that was to be held accountable for those [permit] decisions.” Department of Transp. v. Poole, 179 Ga. App. 638, 639 (1) (347 SE2d 625) (1986).

The harm occasioned by the admission of this irrelevant evidence is apparent. It undoubtedly caused the jury to infer that the denial of the permits, insofar as it was attributable to DOT’s proposed condemnation, should be given consideration in determining the value of the property on the date of taking. Thus, the trial court’s erroneous evidentiary ruling had the harmful effect of allowing the condemnees to recover “from the DOT . . . what [they] might have earned had [they] sought the proper relief in a timely manner from the party that actually denied [them] the opportunity to use [their] property as [they] desired.” Department of Transp. v. Poole, supra at 639 (1).

8. Remaining enumerations which are not otherwise discussed have been considered. None of them, however, constitutes reversible error.

9. In considering the general grounds on appeal, “this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. [Cit.]” Felton v. Mercer, 149 Ga. App. 358, 360 (1) (254 SE2d 398) (1979). However, this principle has no application in the consideration of enumerations wherein the trial court’s evidentiary rulings are asserted to be erroneous. Resolution of questions of fact by the jury does not insulate the trial court’s legal rulings on the admissibility of evidence from appellate scrutiny. If the jury was allowed to find facts based upon evidence which was erroneously admitted or in the absence of evidence which was erroneously excluded, the judgment entered on that verdict must be reversed. Here, for the reasons discussed, the trial court committed numerous errors whereby the condemnees were allowed to introduce evidence which was irrelevant to the issue of the value of the property on the date of taking and whereby DOT was not allowed to introduce evidence which was relevant to that issue. Those errors were clearly harmful. Accordingly, the trial court erred in denying DOT’s motion for a new trial.

Judgment reversed in Case No. 76525. Judgment reversed and case remanded with direction in Case No. 76526.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.

Sognier, Judge,

dissenting.

Construing the evidence in favor of upholding the jury’s verdict, Ackerman/Adair Realty Co. v. Coopedge, 155 Ga. App. 903, 907 (3) (273 SE2d 645) (1980), and bearing in mind the well established rule that a judgment will not be disturbed where there is any Evidence in the record to sustain the verdict, in the absence of some material error of law, Bullock v. Bullock, 178 Ga. App. 336, 337 (343. SE2d 121) (1986), I must dissent from the majority’s reversal of the verdict in Case No. 76525 since evidence supporting the verdict is present in the record and I find no material errors mandating reversal.

1. The trial court refused to admit approximately 50 photographs depicting the subject property which were shot by a DOT employee shortly after the date of taking. The issue on appeal is not whether the photographs should have been admitted, since both I and the trial court agree with the majority that it would have been better to have admitted the photographs. The issue for determination is whether the improper exclusion of this evidence constituted a material error mandating reversal. “It is incumbent upon the reviewing court to determine if the mistake was of sufficient magnitude to require a new trial. [Cit.]” Dual S. Enterprises v. Webb, 138 Ga. App. 810, 812 (3) (227 SE2d 418) (1976).

The record reveals that while no photographs depicting the property during that time frame were admitted, there was extensive testimony describing the condition of the property: the DOT employee who photographed the scene testified in depth detailing the view he had witnessed while shooting the photographs and other witnesses also testified at length about the delapidated condition of the property and the improvements thereon. Despite this oral testimony, the majority nevertheless deems it necessary to reverse the jury’s verdict because no other photographs were admitted into evidence. I can find no rule of evidence, nor does the majority cite one, that photographs occupy some higher level of evidence than oral testimony so that the one can never adequately substitute for the other. Thus, even though there may be truth in the popular adage that a picture is worth a thousand words, where the “thousand words” are present, as here in the transcript, the absence of the picture does not constitute reversible error under this State’s law. Rather, construing the other evidence at trial to uphold the verdict, Ackerman/Adair Realty Co., supra, I must concur with the trial court’s determination that because there was other evidence cumulative of the excluded evidence, see generally Central of Ga. R. Co. v. Luther, 128 Ga. App. 178, 185 (6) (196 SE2d 149) (1973), the failure to admit the DOT’s photographs does not require reversing the jury’s verdict. See generally Whitehead v. Cogar, 180 Ga. App, 812, 813 (1) (350 SE2d 821) (1986).

2. The trial court refused to allow the DOT to cross-examine two witnesses regarding a lawsuit between two of the condemnees or to allow the DOT to introduce into evidence the voluminous record of that lawsuit. The majority concurs with the DOT that since a jury is allowed to consider “all the elements reasonably affecting value” under Wright v. MARTA, 248 Ga. 372, 375 (283 SE2d 466) (1981), this testimony and documentary evidence should have been admitted so that the jury could take into consideration whether a prospective purchaser of the property as of the date of taking might have been negatively affected by the existence of the lawsuit. Condemnees, on the other hand, argue that evidence regarding litigation among themselves was not admissible as an element affecting value since no evidence was introduced or proffered that the dispute would have reasonably affected or impacted on any sale or lease of the property. Secondly, the condemnees point to the extreme confusion introducing such other litigation would create which, along with the prejudicial effect of that evidence on the jury, would far outweigh its relevancy.

This court has held that the admission of evidence of factors which may reasonably influence a prospective purchaser’s decision is a matter within the discretion of the trial court. Macon-Bibb County &c. Auth. v. Reynolds, 165 Ga. App. 348, 350-351 (299 SE2d 594) (1983); see also Department of Transp. v. Sequoyah Land Invest ment Co., 169 Ga. App. 20, 21 (2) (311 SE2d 488) (1983). I find no abuse of the trial court’s discretion here. A careful review of the record supports the trial court’s determination that the DOT did not demonstrate how this evidence was relevant to the issue of value, especially in view of the confusion caused by introducing the record in that litigation into a complex and bitterly contested condemnation suit as well as the prejudicial impact on the jury of evidence of infighting among the condemnees. “A trial judge has the discretion to exclude even relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will unduly prejudice or mislead the jury or confuse the issues being tried. [Cits.]” Kilpatrick v. Foster, 185 Ga. App. 453, 456 (3) (364 SE2d 588) (1988). I would find no reversible error in the trial court’s refusal to admit this evidence. See generally Kane v. Cohen, 182 Ga. App. 485, 487 (2) (356 SE2d 94) (1987).

3. The DOT’s experts testified that their opinions as to the value of appellees’ property were based in part on the fact that the improvements on the property were vacant on the date of taking. In rebuttal, condemnees were allowed to testify that they had difficulty trying to lease the improvements on their property during the six-year interval between the public announcement of the DOT’s plans and the actual date of taking because of the DOT’s many changes in plans and that due to the vacancy of the improvements, the appearance, though not necessarily the value, of the property had dramatically deteriorated. The majority finds that this evidence was inadmissible under Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3) (353 SE2d 346) (1987) and “undoubtedly caused the jury to infer that DOT was somehow guilty of pre-taking bad faith,” citing in support of this statement language from appellees’ closing argument. Aside from the fact that the cited language has been taken out of context (appellees’ counsel was not arguing appellees should receive compensation for pre-taking damages: he was urging the jury not to be misled about the true value of the property by the property’s dilapidated appearance after six years of neglect), the record clearly discloses no objection was interposed by the DOT to this allegedly improper argument. Any error stemming from that language was waived. Saxon v. Toland, 114 Ga. App. 805, 806 (3) (152 SE2d 702) (1966).

As to the actual testimony at trial, the record is clear that appellees were not litigating an inverse condemnation suit against the DOT. Nor were they seeking compensatory damages for any losses incurred in the period prior to the date of taking. What is clear is that Josh Cabaret, supra, is totally inapposite here. As to the inference that the DOT was “somehow guilty” of pre-taking bad faith, there is no evidence whatsoever in the record that the DOT defrauded appellees or acted outside its official capacity when it altered the plans involving appellees’ property in the years prior to the taking. Rather, the record fully supports the trial court’s determination that the evidence considered objectionable by the DOT and the majority was relevant and admissible both as evidence relating to the value of the property as of the date of taking and as rebuttal evidence to the testimony by the DOT’s experts.

While the DOT evidently believes that the inevitable response of any jury informed of the DOT’s pre-taking activities will be to impute bad faith and fraud to the DOT, I do not agree that the hostility the DOT imputes to juries renders inadmissible evidence relevant to the value of the condemned property as of the date of taking, especially where, as here, the evidence is necessary to rebut testimony by the DOT’s own experts using the effect of the pre-taking activity as a basis for a lower value for the property. The rule is too well established that where evidence is pertinent and admissible, it cannot be excluded merely because it would be prejudicial. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 339 (4) (319 SE2d 470) (1984). Accordingly, I find no reversible error in the admission of this evidence. See generally Rosenthal v. Hudson, 183 Ga. App. 712 (2) (360 SE2d 15) (1987).

4. The majority determines the jury’s verdict must be reversed because the trial court excluded the DOT’s “quantifying and clarifying” statistical evidence regarding actual traffic accidents at or near the Piedmont-Lindbergh intersection where appellees’ property is located. This was not some hotly contested issue at trial which required reams of statistical evidence to persuade the jury. The DOT’s detailed compilation of statistics was cumulative of other evidence regarding the well known and uncontroverted traffic and safety problems at this intersection. Under the circumstances of this case, I cannot understand how the majority can hold that the trial court’s exercise of its discretion by refusing to admit repetitive evidence regarding a minor undisputed evidentiary matter “practically wronged” the DOT so as to mandate reversal of the jury’s verdict. See Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882) (1987).

5. Regarding the testimony relative to the City of Atlanta’s denial of building permits, the record consists of Robert Batcher’s statement that they had decided to abandon a building project on the property because “[w]e couldn’t get any permits to do anything to the building,” and James Beak’s statement during his explanation of the potential value of a building on the property that “the building could structurally be used if we could get a permit to use the building.” Beak’s follow-up statement was stricken by the trial court on hearsay grounds. The record clearly reveals that there was no other testimony by witnesses on this matter.

As to the comments cited by the majority which were made during trial by counsel and trial court on this matter, the question posed by the trial court to a witness, and the comments made by appellees’ counsel during argument before the jury, the record discloses that the DOT failed to make any objections, motions for mistrial, or requests for jury instruction. Thus, the DOT waived any error in the comments by trial court and counsel during trial, see Palmer v. Stevens, 115 Ga. App. 398, 401 (5) (154 SE2d 830) (1967); Saxon, supra at 806-807 (5); waived any error in the trial court’s questioning of witnesses, see Pulliam v. State, 196 Ga. 782, 790-791 (6) (28 SE2d 139) (1943); and waived objection to the alleged improper arguments. Saxon, supra at 806 (3).

Turning to what the transcript reveals was actually said by witnesses at trial, I cannot agree with the majority that there is any merit in the DOT’s assertion that the admission of Batcher’s and Beak’s statements constitutes reversible error under Department of Transp. v. Poole, 179 Ga. App. 638, 639 (1) (347 SE2d 625) (1986). The case sub judice stands in striking contrast to the situation in Poole, in which we held that the trial court had erroneously allowed the condemnee to introduce evidence showing that the denial of her zoning requests made more than 10 years before the date of taking had been influenced by the DOT in an attempt to obtain her property at a lower cost. As the quotations from the transcript reveal, no witness in the case sub judice indicated or otherwise implied that the DOT was responsible for or had any influence over the decision denying the permits or even that there was any impropriety in the denial of those permits so as to intimate that the condemnees were relitigating the issue in the condemnation proceeding. The only remarks intimating such matters were made by trial court and counsel and cannot serve as the basis for reversal where no objection was made. Palmer, Saxon, Pulliam, supra.

“ ‘Questions of relevancy of evidence, which include the issue of materiality, are for the [trial] court, and in the absence of an abuse of judicial discretion, this court will not interfere.’ [Cit.] ‘[B]road discretion is reposed in the trial court whose decision will not be disturbed except in cases demonstrating a clear abuse of that discretion.’ [Cit.]” Metropolitan Property &c. Ins. Co. v. Shepherd, 166 Ga. App. 300, 301 (1) (304 SE2d 74) (1983). I find no abuse of the trial court’s discretion in admitting this testimony.

6. Based on the above discussion and my review of the remaining enumerations, I can find no reversible error in the trial court’s order denying the DOT’s motion for new trial. Since I would affirm the judgment in Case No. 76525, I respectfully dissent to the majority’s opinion in that case.

Decided November 29, 1988 —

Rehearing denied December 15, 1988

Weiner, Dwyer, Yancey & Mackin, Dennis S. Mackin, Beryl H. Weiner, Michael J. Bowers, Attorney General, for appellant.

Peek & Whaley, J. Corbett Peek, Jr., James Garland Peek, Grizzard, Simons & Martin, D. Michael Sweetnam, Warren W. Wills, Jr., for appellees.