text:
    76295.
    WALKER v. THE STATE.
    (371 SE2d 199)
   McMurray, Presiding Judge.

Defendant Sherry Lynn Walker was indicted for the offense of criminal solicitation (soliciting the murder of Linda Graham). The evidence adduced at trial, construed most favorably to support the jury’s verdict, was as follows: Sometime in late 1985 or early 1986, Lucille Henry received a telephone call from an unidentified female who called to speak with her son, Joe Glen Henry. Ms. Henry advised her son of the telephone call.

During the early evening of December 3, 1985, Carol Sue Henry, Joe Glen Henry’s wife, received a telephone call at her and her husband’s home in Mineral Bluff, Georgia, from an unidentified female who spoke with an accent similar to a “Spanish accent” and who asked to speak with Mr. Henry about a job. Ms. Henry inquired about the nature of the job and the unidentified female told Ms. Henry that she would talk to Mr. Henry about it.

Later that evening, “[a]round 9:00,” Mr. Henry answered his home telephone and a female who spoke with an accent which “sounded like it was ... a Spanish accent” and who identified herself as “ ‘Monica’ ” asked Mr. Henry if he was alone, told Mr. Henry that she had a job for him and that “she would call [him] back the next morning at 10:00 and tell [him about the job].”

The next morning at “10:00 o’clock,” a female telephoned Mr. Henry, advised him that she was calling from an airport in Chicago and told him that she wanted him to “kill Ms. [Linda] Graham” in exchange for $5,500. More specifically, the female outlined an incentive payment plan whereby she would pay Mr. Henry $5,500 if he killed Ms. Graham that day (December 4, 1985) and that $500 would be deducted for each day Mr. Henry waited to complete the job. The female then gave Mr. Henry details regarding Ms. Graham’s home address, place of employment and physical description. She also described Ms. Graham’s automobile and automobile license plate; told Mr. Henry that Ms. Graham would return to her home at about 8:00 that evening (December 4,1985) and that Ms. Graham’s husband, Dr. David Graham, would not be home until 12:00 or 1:00 that night. The telephone conversation was interrupted and the caller explained that she had run out of change and that she would call Mr. Henry again, which she did shortly thereafter to complete the plan. Mr. Henry testified that he “recognized [the female voice] as the same one that called the night before.”

During the course of the telephone conversation the unknown female told Mr. Henry that she was acquainted with several members of his family, including two of Mr. Henry’s teenage children, and she cautioned Mr. Henry not to reveal the subject of their discussions. Although Mr. Henry felt that the caller was acquainted with him, he did not recognize the female’s voice and he was not familiar with her identity.

Around 11:30 that morning, Mr. Henry contacted Agent Charles King of the Georgia Bureau of Investigation (“GBI”) and informed him of the conversations with “ ‘Monica.’ ” Agent King followed up on the tip and, after discovering that the information given to Mr. Henry by the caller was associated with the Grahams, Agent King turned the investigation over to Agent Michael McGinnis of the GBI.

Agent McGinnis’ investigation revealed that defendant and Dr. Graham had been engaged in an extra-marital relationship and that Dr. Graham and defendant had planned to be together during the evening of December 4, 1985. (Dr. Graham testified that he had been acquainted with defendant for approximately two years, that they saw one another “as much as four times a week or five . . .” and that defendant was aware that he had no intentions of divorcing his wife.) Agent McGinnis also discovered that long distance telephone calls had been made to Mr. and Ms. Henry’s home on December 3 and 4, 1985, from pay telephones located in a hotel where defendant dined on December 3, at a grocery store near defendant’s home and near defendant’s office. All of the calls were made at the times the unknown female contacted the Henrys. In fact, Agent McGinnis discovered that defendant had used the pay telephone near her office during the morning of December 4, 1985, around the time Mr. Henry was contacted by “ ‘Monica’ ” regarding the details of the job.

Further investigation revealed that a long distance telephone call was made from an Atlanta airport location to Mr. Henry’s mother’s (Lucille Henry’s) home on December 2, 1985, and that the call was billed to the credit calling card of defendant’s ex-husband, John Walker. (Mr. Walker testified that he had been issued two credit calling cards, that he kept one card for his use, that he gave the other card to defendant and that he did not use his card.) This same telephone calling card was used on December 4, 1985, at the pay telephone near defendant’s place of employment to make the second call received by Mr. Henry from “ ‘Monica.’ ” The other long distance calls received by the Henrys from the unknown female were coin-operated transactions.

Defendant “was raised up there in [the] area where” Mr. Henry and his family resided, she was acquainted with Mr. Henry and his family and defendant told Agent McGinnis that she felt that Mr. Henry was “a shady sort of person . . .” The jury found the defendant guilty of the offense of criminal solicitation and this appeal followed. Held:

1. In her first and third enumerations of error, defendant argues the trial court erred in allowing Mr. Henry’s “hearsay” testimony as to his telephone conversations with “ ‘Monica.’ ”

“As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made. Assuming that the proof is limited to merely showing that the statement was made and not as evidence of the truth of the fact asserted in the statement, the statement is admissible as original evidence and does not concern the hearsay rule.” Green, Ga. Law of Evidence (2d ed.), 369, § 218. In the case sub judice, Mr. Henry was not testifying as to the validity of the substance of “ ‘Monica’s’ ” statements, but as to her utterances. “To this, [Mr. Henry] is clearly qualified to testify, so that no objection can arise on that score.” 5 Wigmore, Evidence, 2, § 1361 (2) (Chadbourn rev. 1974). Since the challenged testimony was not hearsay, the trial court did not err in allowing same into evidence. Brackett v. State, 142 Ga. App. 578 (2) (236 SE2d 538). See OCGA § 24-3-1.

2. In her second and fourth enumerations of error, defendant challenges the sufficiency of the evidence, arguing that the State’s case was based entirely on circumstantial evidence that failed to exclude the reasonable hypothesis of her alibi defense.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. However, “[t]he determination of whether other hypotheses have been excluded is primarily a jury function. Anglin v. State, 244 Ga. 1, 5 (257 SE2d 513) (1979). It is not required that the circumstantial evidence remove every possibility of the accused’s innocence. McConnell v. State, 235 Ga. 366 (220 SE2d 5) (1975). The accused’s statement must be considered ‘insofar as it is consistent with the circumstantial evidence properly admitted.’ Barnett v. State, 153 Ga. App. 430, 432 (265 SE2d 348) (1980) and cit.” Murdix v. State, 250 Ga. 272 (1), 274, 275 (297 SE2d 265).

Decided June 10, 1988

Rehearing denied June 23, 1988

Hylton B. Dupree, Jr., A. Gregory Poole, for appellant.

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

In the case sub judice, considering defendant’s denial that she solicited Mr. Henry to murder Linda Graham from a pay telephone near her office on the morning of December 4, 1985, against the State’s evidence to the contrary, we find that there was more than sufficient evidence to authorize a finding that defendant was guilty beyond a reasonable doubt of the crime charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Fatora v. State, 185 Ga. App. 15, 16 (1) (363 SE2d 566).

Judgment affirmed.

Pope and Benham, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    76377.
    CITY OF BRUNSWICK v. CARNEY.
    (371 SE2d 201)
   McMurray, Presiding Judge.

Plaintiff Carney brought an action against her former employer, the City of Brunswick (City), seeking reimbursement of medical expenses she allegedly incurred after the City changed its employees’ group medical insurance policy. Plaintiff based her claim on breach of contract, negligence, fraud, and 42 USCA § 1983.

The evidence adduced at a bench trial showed that plaintiff began working for the City in 1979 and that, as a benefit of employment, the City provided plaintiff group medical insurance through Sentry Life Insurance Company (Sentry). Sentry’s group insurance policy allowed a city employee to recover up to $1,000,000 for “nonscheduled health benefits” and allowed each employee to convert the group policy to its individual policy, “without evidence of insurability. . . . ,” upon termination of the employee’s employment.

In February 1983, plaintiff suffered a serious injury to her head which required a substantial amount of medical treatment, including surgical procedures to reconstruct “portions of her face, nose, and lips.” Plaintiff was unable to return to work as a result of her injuries and, as a consequence, plaintiff was terminated by the City on April 22, 1984.

On May 1, 1983, the City allowed its group insurance policy with Sentry to lapse and changed to another group health insurance carrier. Plaintiff was not informed of this change until “July or August, 1983.” Plaintiff was not covered under the new group insurance policy.

Under an “EXTENDED BENEFITS” provision of the Sentry policy, plaintiff’s medical expenses were paid through December 1984. However, since the City allowed the Sentry policy to lapse, other extended benefits plaintiff was entitled to exercise under the Sentry policy were cut off. Consequently, after December 31, 1984, plaintiff was left without group insurance to cover the medical expenses arising from the treatment of her “catastrophic” injuries. From this and other evidence adduced at trial, the trial court entered judgment for plaintiff, ordering the City to pay plaintiff’s non-covered medical expenses “through the time of trial ...” and ordering the City to pay “up to a maximum amount of $1,000,000 . . .” for plaintiff’s future medical bills arising from the “catastrophic loss.” This appeal followed. Held:

1. In its first enumeration of error, the City contends the trial court erred in entering judgment in favor of plaintiff, arguing that it neither violated 42 USCA § 1983 nor breached its employment contract with plaintiff. Pretermitting these issues, we find that the City’s liability to plaintiff arose from the fiduciary relationship that existed between the parties at the time the City changed group insurance coverages.

(a) “In Dawes Mining Co. v. Callahan, 246 Ga. 531 (272 SE2d 267), the Supreme Court was confronted with an issue involving a group health insurance program wherein the employer changed coverage from the existing insurer to another insurance company. The new insurance had a provision prohibiting payment of medical expenses incurred as a result of a pre-existing illness until the policy had been in effect for a certain period of time. The employee’s wife fell within that exclusion and the Supreme Court was faced with the resolution of the problem as to what duty the employer owed the employee. That Court in a detailed and exhaustive discussion of the problem involved found that the employer acted as an agent of the employee when changing a group policy insuring its employee and was ‘under a duty to notify the employees of differences between the old and new policy and of any rights employees may have to continue the old insurance on an individual basis. We hold further that where this duty is breached, an employee can recover such damages as results from a difference in coverage.’ The Supreme Court cited authority from other states wherein it was pointed out that while an employer had the right to terminate or modify a group health and accident policy it has purchased for its employees that the employer was obligated to inform the insured employee of the termination or modification of the benefits under the policy. In short, that without reasonable notice to the employee, the employer could not cancel or modify a group policy so as to deprive the employee of rights under that policy.” Dinnan v. Totis, 159 Ga. App. 352, 353 (1), 354 (283 SE2d 321).

Decided June 13, 1988

Rehearing denied June 23, 1988

Kran Riddle, for appellant.

In the case sub judice, the City not only failed to notify plaintiff of differences between the Sentry group insurance policy and the new group policy, plaintiff was not made aware of the change in group insurance policies until over a month after the Sentry policy had lapsed. Consequently, since the evidence authorized a finding that plaintiff was damaged as a result of the change in group insurance policies, the trial court did not err in awarding plaintiff damages that resulted because of the change in coverage. See Calhoun v. Kut-Kwick Corp., 172 Ga. App. 511 (323 SE2d 699).

(b) Next, the City contends that “its decision in changing insurers was protected by government immunity. . . .”

OCGA § 36-33-1 (b) provides that “[municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.” The City argues that it is immune from liability because it was performing a governmental function in changing insurance companies. We do not agree.

The City’s liability to plaintiff is not from its action of changing insurance carriers, it is based on its failure to give plaintiff reasonable notice that it intended to change group health insurance carriers. See Dinnan v. Totis, 159 Ga. App. 352, 353 (1), supra. We find that the duty to give such notice to government employees “is a perfunctory administrative duty not included under the category of government functions and not barred by any statutory immunity.” Smith v. City of Atlanta, 167 Ga. App. 458, 461 (2), 462 (306 SE2d 720).

2. In its second enumeration of error, the City contends the trial court erred in failing to amend its findings of fact to reflect other pertinent evidence contained in the record. This enumeration of error is without merit. After considering the entire record, the trial court did not err in entering judgment for plaintiff.

Judgment affirmed.

Pope and Benham, JJ., concur.

Robert P. Killian, for appellee.


author: Deen, Presiding Judge.

text:
    76708.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. PARTRIDGE.
    (371 SE2d 185)
   Deen, Presiding Judge.

On a rainy day in March 1984, appellee Partridge was proceeding northerly in the extreme right-hand lane of 1-85 and was approaching an entrance ramp when she became aware of an Atlanta Dairies truck parked on the shoulder of the road just beyond the entrance ramp. At the same time she saw a bus belonging to the Metropolitan Atlanta Rapid Transit Authority (MARTA), appellant here, proceeding down the entrance ramp preparatory to entering the northbound lanes of the freeway. As she approached the intersection of the ramp with the freeway itself, the bus entered her lane and she had to swerve to the left. The bus struck the rear of her automobile with sufficient force to spin the car around approximately 180°, so that she was facing south in the next lane; in this position she was hit from the front by a northbound automobile driven by a Ms. Brown. The Partridge automobile was demolished, and Ms. Partridge sustained, inter alia, a concussion, injuries to her face, back, and neck, and a spinal injury, as well as psychological injury. She brought an action against Atlanta Dairies, alleging that the truck was improperly and negligently parked; against Ms. Brown, alleging driving too fast for conditions, following too closely, and failing to maintain a proper lookout and to maintain control of her car; and against MARTA, alleging negligence in failing to observe a “Yield” sign and merging improperly. Brown and Atlanta Dairies were subsequently dismissed as parties to the action.

A Fulton County jury awarded Partridge $96,466.50. MARTA appeals, enumerating as error (1) the denial of its motion for directed verdict made at the close of plaintiff’s evidence; (2) the denial of its motion for new trial on the grounds that the verdict was excessive and contrary to the weight of the evidence; and (3) the denial of its motion for a new trial and for judgment notwithstanding the verdict, on the basis of the trial court’s refusal of a request for a continuance when defense counsel became ill two days into the trial. Held:

1. OCGA § 9-11-50 provides that a motion for directed verdict should be granted only if “[t]here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” If the evidence on a material issue is in conflict, a directed verdict should not be granted. Smith v. Allen, 180 Ga. App. 624, 626 (349 SE2d 548) (1986); Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901) (1986). In the instant case there was evidence that the bus failed to observe the “Yield” sign, thereby raising a genuine conflict in the evidence on the material issue of causation. See, e.g., Grabowski v. Radiology Assoc., 181 Ga. App. 298 (352 SE2d 185) (1986). Thus the court correctly denied MARTA’s motion, and this error is without merit.

2. In view of the evidence adduced not only as to appellee’s property damage but also as to earning capacity, medical expenses incurred, and the likelihood that she would require additional medical attention in the future, the verdict was well within the range of the evidence. See OCGA §§ 51-12-4; 51-12-7.

As to the second prong of this enumeration, it is well settled that the appellate court addresses only the sufficiency of the evidence, and that it is the prerogative of the jury to determine its weight. Brown v. Scott, 151 Ga. App. 366 (259 SE2d 642) (1979). Our review of the record reveals sufficient competent evidence to sustain the verdict. This enumeration, too, is without merit.

3. To grant or deny a request for a continuance is within the sound discretion of the trial court. Patterson v. Lanham, 182 Ga. App. 343, 344 (355 SE2d 738) (1987). The record reveals that in the instant case a MARTA attorney informed the court, just prior to the scheduled trial, that the attorney assigned to the case was ill. Plaintiff/appellee objected to a continuance, but the trial court simply ordered the trial postponed for one week. Two days into the trial, MARTA’s attorney became ill again, and the court declared a twenty-four-hour recess to allow the other attorney to prepare for trial. According to the record, no formal motion for a continuance was made at this time. See Bryan v. Fed. Express Corp., 180 Ga. App. 163 (348 SE2d 705) (1986). Adams v. Hill, 177 Ga. App. 492 (340 SE2d 27) (1986). Moreover, there has been no showing of prejudice to appellant by the denial of a continuance, in that the attorney who finished trying the case was already familiar with it, having been present in the courtroom on the two days during which his assistant had conducted the trial, and having attended all but one of the depositions taken in preparation for trial. It is axiomatic that, even if error be found during the proceedings in the trial court, it must be demonstrated that the error was harmful in order to warrant reversal of the judgment. Jackson v. Eight & Sons, 159 Ga. 584 (126 SE 379) (1924).

We find no merit in this enumeration.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in Divisions 1 and 2 and in the judgment.

Decided June 7, 1988

Rehearing denied June 23, 1988.

Eve A. Appelbaum, Michael E. Fisher, Daniel P. Johnson, for appellant.

Robert A. Falanga, Jesse E. Barrow III, for appellee.


author: Birdsong, Chief Judge.

text:
    75696.
    PANFEL et al. v. BOYD et al.
    (371 SE2d 222)
   Birdsong, Chief Judge.

The original appeal of this case was from the order of the trial court, granting and denying various motions for summary judgment by appellants and appellees. This court issued its holding on February 12, 1988, affirming in part and reversing in part, the judgment of the trial court. Motions for rehearing by appellants and appellees were denied. Certiorari was denied by the Supreme Court, but the “Georgia Real Estate Commission filed an extraordinary motion [with the Supreme Court] . . . inviting attention to Reg. 520-1.34 (2) (g) of the Rules and Regulations of the Georgia Real Estate Commission.” The Supreme Court then remanded this action to this court for appropriate consideration. We vacate our opinion of February 12, 1988, and substitute the following in lieu thereof.

Appellants, Mark Panfel and Scott Roberts, were potential purchasers of the Anderson Park Apartments, which were owned by appellees James Boyd, Boyd Properties, and Anderson Park Apartments, Ltd. Appellees contracted with Michael Callahan, a real estate agent, and Northside Realty Associates, his employer, to sell the apartment complex. Roberts saw the advertisement and made an inquiry which led to the tender of a contract by Panfel and Roberts who were jointly involved in other real estate ventures. The first contract was refused, but Boyd and his partners made suggestions which were accepted by Panfel and Roberts and a second contract was tendered. Appellants’ second contract offered a purchase price of $1,490,000, contingent upon the buyers obtaining a new first mortgage “of not less than $1,140,000, with an interest rate not to excede [sic] 13%.” Sellers were to receive $400,000 at closing and carry a second lien security deed in the approximate amount of $406,265 at 11% for 4 years and 12% for the remainder of the period. The buyers were to deposit $10,000 “to be used as earnest money, to be applied as part payment of the purchase price . . . and if sale, due to Buyer’s default, willful or otherwise, is not consummated, then said earnest money shall be refunded.” (Emphasis supplied.) The sales contract was drafted by Panfel and Roberts on May 14, 1985, and required that the “[s]ale shall be closed on or before July 1, 1985.” The contract was accepted by Boyd and his partners and appellants’ check for $10,000 was deposited by Northside into its escrow account.

Panfel testified that the property appraisers were behind schedule and it became apparent that appellants could not complete arrangements for their loan before the July 1 closing date. Appellants verbally requested Callahan to obtain an extension of time for closing and confirmed the request with a letter, dated June 27,1985, in which they cite their “due diligence in attempting to close title by July 1st and would appreciate you[r] efforts in procuring a reasonable extension.” Callahan gave the letter to Boyd, who polled his partners and reached an agreement to extend closing to July 19 because appellants’ letter stated they “should be able to close the loan by mid-month.” (Emphasis supplied.) Callahan said he verbally advised Panfel and Roberts of the July 19 deadline, but that the sale did not close on that date. Panfel stated that he talked to Callahan almost on a daily basis and “we understood that we had obtained our requested extension. There was no writing confirming the extension.” Appellants denied they were informed of a definite date for closing in response to their request, only that they had obtained an extension.

Callahan said that at some time before July 26, Panfel told him that the appellants had received a mortgage commitment from their bank for $1,100,000, which was $40,000 short of the contract condition, and appellants “asked [him] to ask Mr. Boyd whether the partnership would be willing to increase the amount of the loan the partnership intended [to] make to the purchasers as a part of the sale. [He] passed that request along to Mr. Boyd, and he rejected it.”

Panfel’s affidavit shows that the appellants received their loan commitment on July 26, one week after the extended closing date, and that he called Callahan on that date telling him of the loan and Callahan asked him when closing would be. Following that statement, Panfel said: “In a prior conversation, Mr. Callahan was asked by Mr. Roberts to approach the seller regarding the potential of including an additional $40,000 in the secondary financing. ... At all times Mr. Roberts and I had the additional $40,000 at our disposal and, from July 26, 1985 on, were ready, willing and able to close the sale. . . .” Callahan informed Panfel that Boyd was considering appellants’ request for additional financing of $40,000 as a counter offer.

Callahan admitted receiving a letter from Panfel on July 30 stating appellants would be ready to close on July 31, but on July 30, he had told Roberts and Panfel the seller would not close on July 31, but he would poll his partners regarding an extension to August 2, and “that Mr. Boyd was not inclined to extend the closing deadline.” Appellants admitted they were told Boyd was not inclined to extend the deadline but Callahan asked them to put their proposal in writing “and that closing would be extended until August 2, 1985.” Panfel placed appellants’ proposal in a letter and gave it to Callahan. The letter was delivered to Boyd. On August 2, 1985, Boyd had a letter hand-delivered to appellants rescinding the contract for failure of the purchasers to close “on or before the time set forth in the contract, as extended. ...”

At some time after August 2, Panfel asked Callahan for a return of the $10,000 earnest money and confirmed his request in writing by a letter dated August 6, 1985, demanding return of the money. Callahan forwarded the letter to Boyd with an additional line typed thereon which included the consent of Boyd to return the earnest money. Subsequently, Boyd informed Callahan he would consent to a return of the earnest money and would reimburse appellants for their expenses in return for appellants’ agreement “not to sue him or his partners.” Callahan confirmed this verbal offer in a letter to Boyd and sent a copy to Panfel. Appellants rejected the offer and Panfel responded with a letter, dated September 4, to Callahan again demanding return of the earnest money under the terms of the contract. In the interim, appellants forwarded a letter to the head of Northside’s escrow accounts demanding return of the money in accordance with the contract, within three days, or that a lawsuit would be filed for the money and damages.

The earnest money was not returned and this action followed alleging: (1) breach of the sales contract, (2) a request for specific performance, (3) negligence on the part of Callahan for “failing to obtain an extended closing date from seller . . . [and] in not obtaining a written extension for this closing date,” (4) that Callahan wilfully, wantonly and intentionally represented that the sale would be closed on a date certain with actual or implied knowledge that the sellers intended not to perform, which amounted to fraud, and (5) that Callahan and Northside wrongfully refused to return the earnest money in accordance with the terms of the contract and wrongfully conspired to withhold the money.

Northside answered and filed a counterclaim against Panfel and Roberts, and a cross-claim against Anderson Park Apartments, alleging that because appellants demanded specific performance and the “[s]eller has not authorized the release of the . . . earnest money,” Northside was interpleading the funds into the registry of the court because it was “in great doubt as to whether defendants-in-counterclaim [Panfel and Roberts] or defendant-in-cross-claim [Anderson Park Apartments] is entitled to said funds.”

Boyd, Boyd Properties and Anderson Park Apartments answered and filed a counterclaim to recover fees, expenses and damages incurred when its attempt to refinance the apartment complex was turned down by the bank, ostensibly because of a lis pendens filed by appellants. A consent order was entered directing the interpleaded funds to be returned to appellants. The trial court granted summary judgment to Northside Realty, Callahan, Boyd, Boyd Associates, and Anderson Park Apartments on their motions. The court denied appellants’ motion for summary judgment against Boyd, Boyd Associates and Anderson Park Apartments on appellees’ claims for damages based on the lis pendens filing. Panfel and Roberts appeal from this order. Held:

1. Appellants allege error of the trial court “in failing to support its [summary judgment] Order with findings of fact and conclusions of law. . . .” Our Code requires in actions “tried upon the facts without a jury . . . [that] the court shall find the facts specially and shall state separately its conclusions of law thereon. . . . [However,] [findings of fact and conclusions of law are unnecessary on . . . motions under Code Section . . . 9-11-56 [summary judgment] . . . except as provided in subsection (b) of Code Section 9-11-41.” OCGA § 9-11-52 (a). OCGA § 9-11-41 (b) deals with involuntary dismissal of a complaint for failure of the plaintiff to prosecute or comply with an order of the court and is inapplicable to this case. The court did not err in failing to make findings of fact and conclusions of law.

2. It is contended that the court erred in granting summary judgment to Callahan and Northside because there remain questions of fact regarding: (a) Callahan’s breach of legal duties to appellants, (b) Callahan’s promises and representations to appellants which would support their claim of fraud, and (c) the withholding of the earnest money.

(a) Appellants were experienced real estate investors, and knew Callahan was an agent for the seller, and they had dealt with him in that capacity from the beginning of the negotiations until the final letter of rescission. All terms of the contract had been determined by Boyd and appellants, Panfel and Roberts. All requests for modification of the contract had been transmitted through Callahan to the seller. It was clearly understood by all parties that Boyd gave approval for any contract modification. Appellants twice submitted requests in writing, through Callahan, to Boyd, for extensions of the closing date, acknowledging that Callahan was without authority to decide any issue and only the seller could make a binding decision. There was no “apparent authority” that Callahan was anything other than an agent of the seller, or that his authority extended to varying the terms of the contract. See Interstate Fin. Corp. v. Appel, 134 Ga. App. 407 (1) (215 SE2d 19). Appellants demonstrated, in writing, they were fully aware of the extent of authority of Callahan, i.e., to transmit offers and other communications to the seller. We find no basis in the record for a claim of a legal duty of Callahan to the appellants, qr for a claim of fraud. See Washington v. Combustion Engineering, 159 Ga. App. 555, 557 (284 SE2d 61).

(b) Remaining at issue is whether the court erred in granting summary judgment to Callahan and Northside on the issue of damages in refusing to return appellants’ earnest money. The contract terms were clear and unambiguous: “if sale, due to Buyer’s default, willful or otherwise, is not consummated, then said earnest money shall be refunded.” On August 2, the seller directed a letter to the buyers formally rescinding the expired contract. Appellants verbally, then in writing, demanded return of the earnest money. Callahan, and Northside as his principal, chose to ignore the contract terms and forwarded the letter to the seller for his concurrence in the return of the money. The seller also disregarded the contract terms and elected to exact exculpation. Continued demands for adherence to the contract terms for return of the earnest money met with negative results, until this action was filed and Northside impleaded the earnest money into the registry of the court, where all parties consented to its return to appellants.

On appeal Callahan and Northside allege adherence to the Rules of the Georgia Real Estate Commission as a basis for their failure to return appellants’ earnest money. The Georgia Real Estate Commission is authorized to pass rules and regulations, “not inconsistent with this chapter” (OCGA § 43-40-2 (c)) in governing the conduct of real estate brokers and salespersons. Section 520-1-.34 (2) of those Regulations provides that a broker “who disburses trust funds from a designated trust account under the following circumstances shall be deemed by the Commission to have fulfilled properly the broker’s duty to account for and remit money which the broker is required to maintain and deposit in a designated trust account. . . .” The regulation then lists seven methods: (a) upon “rejection of an offer to buy, sell, rent, lease, exchange or option real estate”; (b) upon withdrawal of an offer, not accepted, (c) at the closing of the transaction, (d) upon securing a written agreement signed by all parties, which directs the brokers’ action, (e) upon the filing of an interpleader, (f) in compliance with the order of a court of competent jurisdiction, and (g) “upon a reasonable interpretation of the contract which directed the broker to deposit the funds.”

Where an agency or commission is granted the authority and power to adopt such rules and regulations within the scope of the legislative enactment, such rules and regulations have the same force and effect as that of a statute. Georgia Public Svc. Comm. v. Jones Transp., 213 Ga. 514, 515 (100 SE2d 183). However, it is the paramount public policy of this state that courts will not lightly interfere with the freedom of our citizens to contract. Cash v. Street & Trail, 136 Ga. App. 462, 465 (221 SE2d 640). Thus, “a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.” OCGA § 1-3-7. Hence, in the instant case all parties to the contract chose to contract for the return of the earnest money to the potential buyer “if sale, due to Buyer’s default, willful or otherwise, is not consummated. . . .” We find nothing injurious to other persons or contrary to the public interest in such provision. It is uncontested that the sale was not consummated, due to the buyer’s default, but Northside failed to return the earnest money, even after the repeated demands of appellants. We also note that the Commission’s regulations authorized a return of the earnest money upon “rejection of an offer to buy . . .” and “upon a reasonable interpretation of the contract. . . .” The seller clearly rejected appellant’s offer to buy and a “reasonable interpretation of the contract” terms required a return of the earnest money, but Northside chose not to comply with these subsections, but elected to pursue an agreement between the parties which was not obtained. Then Northside elected to implead the funds into this action.

“ ‘Before one occupying the situation of a stakeholder can call upon adverse claimants of a fund in his hands to interplead, he must satisfactorily show to the court that their claims have such a “foundation in law as will create a reasonable doubt” as to his safety in undertaking to determine for himself to whom the fund belongs.’ Franklin v. Southern Railway Co., 119 Ga. 855 (47 SE 344).” Smith v. Folsom, 190 Ga. 460, 465 (9 SE2d 824); see OCGA § 23-3-90. “ ‘It must appear from the allegations of the petition that the conflicting claims of the defendants are of such character as to render it doubtful or dangerous for the plaintiff to act. . . .’” Reed v. Metro. Life Ins. Co., 206 Ga. 604, 605 (58 SE2d 183). “While it is not incumbent upon the [holder] to decide at its peril either close questions of fact or nice questions of law, nevertheless, when [the holder] is in possession of all the facts and the questions of law are not intricate or debatable, a petition for interpleader will be denied. [Cits.]” Mandeville v. First Nat. Bank, 206 Ga. 426, 429 (57 SE2d 553). “ ‘A stakeholder is not entitled to protection by a court of equity to the extent of being saved from all shadow of risk; and so when he is in possession of all the facts and there is no question of law which is reasonably debatable, his petition for interpleader should be denied.’ ” Lilley v. Nixon, 214 Ga. 548, 550 (105 SE2d 716); accord Calhoun v. Lawrence, 217 Ga. 423, 424 (122 SE2d 576). The facts were known to Northside, as they were responsible for communications between the parties. We find no foundation in law as to create a reasonable doubt as to its safety in undertaking to dispense the earnest money in accordance with the clear terms of the contract. Northside was not entitled to interpleader as justification for withholding disposition of the funds in accordance with the contract.

We can easily understand the desire of Northside to please both parties to the contract and thus prevent a controversy over entitlement to the earnest money. But that problem should have been resolved in the original contract, if Northside wanted to dispense the funds in accordance with the Commission’s regulations. The Regulations of the Real Estate Commission are neither a panacea nor a shield which will insulate a real estate broker from compliance with the clear terms of a realty contract to which it is a party. Even if reliance is placed upon the Code, OCGA § 43-40-20 (f) requires that earnest money deposited in an escrow account “shall be maintained until disbursement is made under the terms of the encumbrance pertaining thereto. . . .” (Emphasis supplied.) Hence, the Code places above all else, compliance with the contract, and the contract in the case at the bar required return of the “earnest money” upon the “[bjuyer’s default. . . .” The trial court erred in granting summary judgment to Callahan and Northside on appellants’ claim for damages for refusal of appellees to return their earnest money following rescission of the contract, in accordance with the terms of their agreement.

3. It is argued that the court erred in granting summary judgment to Boyd, Boyd Properties, and Anderson Park Apartments, because the financing provisions of the sales contract were inserted “for the protection of the appellants and clearly could have been and was waived by appellants” and were not a condition precedent. Appellants’ argument addresses only a portion of this issue. Although the financing condition was inserted for the benefit of appellants, it was a condition that could have prevented enforcement of the contract by appellees, thus was a condition precedent as to them. OCGA § 13-3-4; Nalley v. Harris, 176 Ga. App. 553 (2) (336 SE2d 822); Parker v. Averett, 114 Ga. App. 401 (2) (151 SE2d 475). When appellants could obtain a loan only for the amount of $1,100,000, which was $40,000 below the contract condition, and Roberts requested the realty agent to ask the seller to restructure the secondary financing to include the missing $40,000, this definitely was an additional condition attempted to be inserted in the contract, and to which no mutual assent had been given.

For there to be a valid contract, there must be a subject matter, a consideration, and mutual assent by all parties to all the terms. OCGA § 13-3-1. The subsequent communication by one party to the contract to the other party “varying only one term of the original offer” is a counteroffer. Stubbs v. Tattnall Bank, 244 Ga. 212, 213 (259 SE2d 466). The fact that the offeror may have intended something else does not alter the fact that appellants did tender a counteroffer to appellees. Id. at 214. Acceptance of an offer must be unconditional, unequivocal, and without variance of any sort, otherwise, there can be no meeting of the minds and mutual assent necessary to formation of a contract. B. L. Montague Co. v. Somers, 94 Ga. App. 860, 864 (96 SE2d 629). In the instant appeal, this issue is of doubtful significance. The original contract had expired by its own terms. The date for closing, as verbally extended, had passed, including the one requested by appellants (mid-month of July), and the one granted by appellees (July 19). Thereafter, the letter from appellant, dated July 30, offering to close on July 31 in accordance with the original offer, was merely an attempt to revive a contract no longer in existence and such offer was ineffective unless accepted. W. B. Leedy & Co. v. Shirley, 97 Ga. App. 801, 807 (1) (104 SE2d 580). The appellants’ offer was not accepted. The belated attempt to revive an expired contract with a changed condition was legally ineffectual. It is not material that appellants may have “[a]t all times . . . had the additional $40,000 at [their] disposal,” because the counteroffer they communicated to the seller was an offer to revise the original contract by adding an additional $40,000 to the seller’s secondary financing. And, whether the extension obtained by Callahan from the seller was to “mid-month” (July 15) or to July 19, is not germane to any issue because appellants admitted they were informed that their requested extension had been approved, and both dates had passed when appellants attempted to revive the expired contract. This enumeration is without merit.

4. Appellants allege the trial court erred in denying their motion for summary judgment as to the counterclaim of Boyd, Boyd Properties and Anderson Park Apartments based on the filing of the lis pendens notice, concurrent with the filing of their complaint. The complaint alleged a breach of a sales contract for realty and asked for specific performance, among other relief. For there to be “ ‘ “a valid and effective lis pendens, it is essential that three elements be present ... [1] the property must be of a character to be subject to the rule; [2] the court must have jurisdiction both of the person and the subject-matter; and [3] the property involved must be sufficiently described in the pleadings.” ’ ” Scroggins v. Edmondson, 250 Ga. 430, 432 (297 SE2d 469). The case at the bar met these criteria. “The only purpose of the lis pendens statute is to notify persons who are not parties to a pending suit involving realty that any judgment or decree rendered in the cause will be binding on them. ...” Kenner v. Fields, 217 Ga. 745, 747 (125 SE2d 44), overruled in part, on other grounds, 250 Ga. 430, fn. 1 at 431 (297 SE2d 469). The mere filing of an action involving realty will not operate as a lis pendens to such realty (OCGA § 44-14-610) unless filed with the clerk of the court and placed on the lis pendens docket. OCGA § 44-14-611. Hence, for a litigant’s action involving realty to place the world on notice and to bind the public as to the outcome, it is necessary to file lis pendens.

Decided June 23, 1988.

Glenn S. Bass, for appellants.

Jay M. Barber, Richard P. Decker, Frederick G. Boynton, Edward H. Wasmuth, Jr., Harold L. Russell, for appellees.

Quinton S. King, amicus curiae.

An owner of realty may bring an action for libel or slander which falsely and maliciously impugn his title, if any damage accrues to him. OCGA § 51-9-11. However, this tort is subject to the privilege of OCGA § 51-5-8 accorded all “ ‘regular pleadings filed in a court of competent jurisdiction. . . .’ ” Berger v. Shea, 150 Ga. App. 812, 813 (258 SE2d 621); accord Ferguson v. Atlantic Land &c. Corp., 248 Ga. 69 (3) (281 SE2d 545). Lis pendens may not be predicated upon an action which seeks merely to recover a money judgment (Watson v. Whatley, 218 Ga. 86, 88 (126 SE2d 621)), but the property itself must be directly “involved” in the pending suit. Evans v. Fulton Nat. Mtg. Corp., 168 Ga. App. 600, 601 (309 SE2d 884). In the case sub judice, appellants requested specific performance of the contract requiring the property involved to be sold to them. The property was directly involved. Hill v. L/A Mgt. Corp., 234 Ga. 341 (216 SE2d 97). Lis pendens was proper, the pleadings were privileged, and its filing is simply notice of the suit — not defamation of the title. Berger, supra. The trial court erred in denying appellants’ motion on appellees’ counterclaim involving lis pendens.

5. We find no error in the trial court’s denial of appellants’ motion for attorney fees based upon an allegation that Boyd’s motion for summary judgment and amended counterclaim “lacks substantial justification and was either interposed for delay or harassment.” We have sustained the grant of appellees’ motion for summary judgment and the trial court found sufficient merit to the counterclaim to reserve that issue for trial. Although we have reversed the trial court’s judgment as to the counterclaim on the lis pendens issue, we do not find such issue to be frivolous. OCGA § 9-15-14; see also Yost v. Torok, 256 Ga. 92 (344 SE2d 414).

Judgment affirmed in part and reversed in part.

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


author: Benham, Judge.

text:
    76018.
    BROWN v. TRION, INC. et al.
    (371 SE2d 135)
   Benham, Judge.

Brown appeals from the grant of summary judgment in Trion, Inc.’s favor in Brown’s malicious prosecution action against Trion, contending that the trial court erred in taking the issue of probable cause away from the jury. Finding no such error, we affirm.

Brown’s wife had attempted to purchase certain items from Trion’s store, The Orange Crate, by utilizing the store’s layaway plan. The merchandise she sought to purchase cost over $100. On September 2, 1984, Mrs. Brown made her first payment of $20, and in mid-October and early November she paid amounts totaling another $20. At the time of the November payment, she told the clerk she would like to come back after Christmas to complete her payments and pick up the merchandise, and the clerk told her there would be no problem. However, when Mrs. Brown called the store on December 26 to find out whether the store would be open after she left work so she could pick up her merchandise, the store manager, appellee Tracy Shannon, told her that she would have to check on her layaway. The manager later told Mrs. Brown that, in accordance with store policy, the merchandise had been returned to stock because it had not been picked up within 30 days, and that some, but not all, of the layaway items had been sold. Mrs. Brown offered to use the $40 she had deposited to buy those items that remained, but the manager would not allow her to do so. They discussed the situation further but Mrs. Brown and Ms. Shannon were unable to resolve the matter to Mrs. Brown’s satisfaction. On Sunday, December 29, she returned to the store with appellant and their child to try to resolve the dispute. When the manager refused to refund the $40 Mrs. Brown had paid, to allow her to use that money to purchase the layaway items that remained, or to compensate the Browns in any way for the $40, Mr. Brown told his wife to pick out $40 in store merchandise. She selected two sweaters, for a total of $39.96, and gave them to her husband, who tore off the tags and gave them to a salesclerk. Appellant asked the clerk to remove the store inventory tags, and when she refused he pried them off with a screwdriver. When the clerk declined to accept his offer to pay the sales tax on the items, appellant and his wife and their child left the store with the sweaters. The next day, Ms. Shannon swore out a warrant for appellant’s arrest for shoplifting, a charge for which he was subsequently tried and acquitted.

After his acquittal, Brown filed his lawsuit against Trion, Inc., and Ms. Shannon for malicious prosecution. Appellees moved for summary judgment, and in a detailed order, the trial court granted their motion, finding that Brown’s evidence did not show that appellees had no reasonable basis for believing that Brown was guilty of shoplifting. We agree with that ruling. “With regard to appellant’s claim for malicious prosecution, ‘the overriding question is not whether [he] was guilty, but whether appellee had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution.’ [Cit.] . . . [U]nder the undisputed evidence, appellee’s agent had reasonable grounds to believe appellant to be guilty of shoplifting at the time of [his] arrest. Appellant produced no evidence that, subsequent to [his] arrest, appellee acquired further information tending to show that its earlier assessment of the existence of probable cause was erroneous. [Cit.] Accordingly, as to appellant’s malicious prosecution claim, the grant of summary judgment in appellee [s’] favor was correct.” Arnold v. Eckerd Drugs of Ga., 183 Ga. App. 211, 213 (358 SE2d 632) (1987).

Decided June 23, 1988.

Ñaman L. J. Wood, for appellant.

J. Anderson Davis, for appellees.

Judgment affirmed.

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


author: Pope, Judge. McMurray, Presiding Judge,

text:
    76097.
    76098.
    THE STATE v. EVANS. THE STATE v. MITCHELL.
    (371 SE2d 432)
   Pope, Judge.

Defendants were charged in separate multi-count accusations with various misdemeanor offenses in the State Court of Coffee County. State Court Judge T. V. Williams, Jr. voluntarily recused himself from trying the charges and made a written request for assistance to the Chief Judge of the Waycross Judicial Circuit. Since the recusing judge was the sole judge of the Coffee County State Court, said request was proper pursuant to OCGA § 15-1-9.1 and Rule 25.3 of the Uniform State Court Rules. The written request recommended the appointment of Judge Brooks E. Blitch of the Alapaha Circuit, who had already indicated his willingness and availability to assist in the trial of these cases. However, the record contains no written request from the Chief Judge of the Waycross Judicial Circuit to the Chief Judge of the Alapaha Circuit requesting the assistance of a designated judge as authorized by OCGA § 15-1-9.1 (b). The record contains no indication that Judge Blitch was formally designated by the court receiving the request to preside at the trial, pursuant to OCGA § 15-1-9.1 (e). Defendants filed motions to disqualify the Solicitor of Coffee County from prosecuting the cases. At the hearing on said motions Judge Blitch indicated he made his appearance to preside over the trial of these cases in response to the direct request of the voluntarily disqualified state court judge. After a hearing on the motions, Judge Blitch issued an order declaring that the parties stipulated him to be qualified as presiding judge. The order went on to disqualify the solicitor from prosecuting the cases and to appoint a special solicitor pro tempore. The state takes exception to the process by which Judge Blitch was appointed to preside over these cases, as well as the order disqualifying the solicitor and appointing a solicitor pro tempore.

1. Earlier this court dismissed the state’s application for interlocutory appeal for failure to obtain a certificate of immediate review from the trial court. The dissenting opinion would also dismiss the state’s direct appeal on the ground the order was not directly appeal-able pursuant to OCGA § 5-7-1. However, the appointment of a designated judge to try a criminal case and the disqualification of the solicitor to prosecute the case are matters of court administration and not matters which should be governed by Chapter 7 of Title 5 of the Official Code of Georgia, addressing the procedure by which the state may appeal orders in criminal cases. The procedure for appointing a designated judge to replace a judge who has been disqualified is the same in civil or criminal matters. An appeal from such an appointment should not be governed by rules which apply only to criminal matters. Moreover, the state’s ground for appealing this appointment is that the recused state court judge was without authority to select a designated judge. See Rule 25.5 of the Uniform State Court Rules. A disqualified judge can take no judicial action in the case and any attempt at such action is a mere nullity. Garland v. State of Ga., 110 Ga. App. 756 (140 SE2d 46) (1964). An appeal of an illegal or null order will not be dismissed but the void judgment will be reversed. Darden v. Ravan, 232 Ga. 756 (1) (208 SE2d 846) (1974). Therefore, the direct appeal of the appointment of the designated judge was proper.

The order disqualifying the solicitor and appointing a special prosecutor is also directly appealable. An order requiring action which is enforceable by a contempt action against the individual so ordered “is in the nature of an interlocutory mandatory injunction which is appealable under [OCGA § 5-6-34 (a) (4)].” Padgett v. Cowart, 232 Ga. 633, 634 (208 SE2d 455) (1974).

Having concluded the state’s appeal should not be dismissed, we nevertheless uphold the order of the specially appointed judge. It is true the recused state court judge was without authority to select his own replacement. See Rule 25.3 of the Uniform State Court Rules. By statute, the chief judge of the requesting circuit should have made a written request to the chief judge of the circuit receiving the request who, in turn, should have designated the replacement judge. OCGA § 15-1-9.1. However, the record shows the defendants waived any objection to the appointed judge sitting as trial judge in this case. The county solicitor, who was subsequently disqualified, made conflicting statements at the hearing regarding whether he objected to the appointment of the judge. In answer to a direct question concerning whether he objected to the appointed judge’s trying the case, the solicitor answered, “No.” Later in the proceedings, he indicated the state did not waive its objection to the appointment. Thus, whether the state in fact waived its objection to said judge became a factual matter at issue in this case and was rightfully an issue for the trial judge to decide. Under the facts and circumstances of this case, we find no error in the trial court’s finding that the parties stipulated to the qualification of the specially appointed judge to preside over the trial of this case.

2. The state waived its right to object to the timing or manner in which the motion to disqualify the solicitor was brought by failing to object to the motion at the time it was heard.

3. Finally, the state challenges the trial court’s finding that the state court solicitor was disqualified from prosecuting the cases by reason of conflict of interest and personal animosity against defendants. While there is no specific statutory provision for disqualifying a state court solicitor and appointing a substitute to prosecute in his place, it is instructive to look to the statutory rules applying to district attorneys. Cf. OCGA § 15-7-24 (a) (wherein the solicitors of the state courts are required to take the same oath of office which the district attorneys of the superior courts must take). According to OCGA § 15-18-5 (a), a district attorney may be disqualified from his interest in the case. The record in this case indicates one of the defendants had opposed the solicitor in the political race for that office and the other defendant had assisted in the campaign. The solicitor had discussed with the state court judge to whom the case was originally assigned the possible appearance of impropriety of his prosecuting the case. The facts of this case would not appear to require the disqualification of the solicitor. See Scott v. State, 53 Ga. App. 61 (185 SE 131) (1936), aff’d 184 Ga. 164 (190 SE 582) (1937). However, the propriety of appointing a substitute prosecutor in such a situation is within the discretion of the trial court and the appellate courts will not interfere where, as here, the court’s discretion was not abused. Statham v. State, 41 Ga. 507 (2) (1871); Mach v. State, 109 Ga. App. 154 (1c) (135 SE2d 467) (1964).

Judgments affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as the orders which are the subject of these appeals are not final and are therefore not matters which can be pursued by direct appeal on behalf of the State. OCGA § 5-7-1. Contrary to the majority opinion, I see no reason to make an exception to the finality requirement for direct appeals in these criminal cases as the disqualification orders have no bearing upon the rights of the defendants. (See 5 ALR4 1252 for discussion on the appealability of a state court’s order granting or denying motion to disqualify attorney. Compare my dissent in Hargrove v. Phillips, 186 Ga. App. 525 (368 SE2d 123). In that case, an attorney was disqualified in a civil matter where the rights of the client were directly affected.) Further, there is no indication that the State’s interests have been impaired as a result of the disqualification orders. In this regard, I see no evidence that the solicitor pro tempore (who was appointed to prosecute the cases) was not qualified to proceed on behalf of the State. Moreover, the record indicates that these collateral matters may be moot and the opinion of the majority merely advisory because of final dispositions in the underlying prosecutions.

Decided June 23, 1988

Dewey Hayes, Jr., pro se.

Robert B. Sumner, for appellees.

In any event, the proper procedure for review was by application for immediate review pursuant to OCGA § 5-7-2. See State v. Davis, 159 Ga. App. 537 (284 SE2d 51). Accordingly, I would dismiss these appeals since the applications for immediate review were denied by this court on August 18, 1987, for failure to obtain certificates of immediate review from the trial court.


text:
    76220, 76346.
    INMAN v. THE STATE (two cases).
    (371 SE2d 230)
   Benham, Judge.

Appellant was accused of two counts of perjury in an indictment which alleged that he lied twice in testimony before the grand jury. In these two cases, we granted appellant’s applications for interlocutory appeal of the trial court’s orders denying his challenge to the array of the grand jury and his motion to quash the indictment. Although the enumerations of error in these cases assert all five grounds on which appellant attacked his indictment in the trial court, we need address only one since our review of the evidence and of the law convinces us that the oath given to appellant prior to his testimony was deficient and that the indictment should have been quashed on that ground.

“The Georgia courts have always insisted on strict compliance with the statutory oath: ‘Unless the oath prescribed by the statute is

Decided June 23, 1988.

Eugene C. Black, Jr., for appellant.

J. Brown Moseley, for appellee.

taken by the witness, his testimony before the grand jury does not amount to evidence, and, if false, would not be a basis upon which perjury or false swearing could be assigned. [Cit.]’ [Cit.] ‘As a prerequisite to valid testimony before a grand jury, there must be before the grand jury some pleading, either in the form of a bill of indictment or a special presentment, charging a named person with a specified offense, and upon which particular case the witness must be sworn; and the only oath that can be administered to the witness is the one, or at least substantially the one, which is prescribed by the statute. To swear a witness generally is not sufficient. The law does not authorize the grand jury to compel a witness to become a public informer.’ ” State v. Williams, 181 Ga. App. 204, 205 (351 SE2d 727) (1986).

The oath required by statute is set out in OCGA § 15-12-68: “The evidence you shall give the grand jury on this bill of indictment (or presentment, as the case may be) (here state the case), shall be the truth, the whole truth, and nothing but the truth. So help you God.” The oath administered to appellant was stipulated to be: “[T]he testimony you shall give before this grand jury in the matter of this investigation by the grand jury of the Mitchell County School System shall be the truth . . . ,” etc. That oath does not “state the case” or indicate whether there was to be an indictment or presentment following. Under the case law cited in Williams, that oath was inadequate to serve as a basis for charging appellant with perjury.

Since the resolution of this enumeration of error in Case No. 76346 mandates the grant of appellant’s motion to quash, the other enumerations of error in that case and the sole enumeration of error in Case No. 76220 are moot and need not be addressed.

Judgment reversed in Case No. 76346. Appeal dismissed in Case No. 76220.

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


author: Sognier, Judge. Deen, Presiding Judge,

text:
    76309.
    GRISSOM v. THE STATE.
    (371 SE2d 137)
   Sognier, Judge.

Appellant was convicted of rape, aggravated sodomy, false imprisonment and simple battery.

1. In three enumerations of error appellant contends the trial court erred by denying his motions for a directed verdict of acquittal because the evidence was not sufficient to support the verdict and venue was not established. Appellant’s contention as to venue is not supported by the transcript, which shows that a police officer testified that the house address where the offenses occurred was in DeKalb County.

The evidence disclosed that after offering to take the victim home from , a “shot house,” appellant and his half-brother, Walter Osby, drove the victim instead to Osby’s home. The victim agreed to go in Osby’s house for a few minutes, and when they entered, appellant went to take a shower. Osby and the victim went into the den, where Osby started making sexual advances to the victim, which she rejected. Osby then forcibly pulled down the victim’s slacks and panties and committed oral sodomy on her. Appellant returned from his shower and he and Osby forcibly removed the victim’s clothing and carried her into a bedroom. The victim testified that Osby raped her twice over a period of three hours, and appellant forced her to commit oral sodomy on him by choking the victim until she committed the act. Appellant subsequently raped the victim. Osby took the victim by the arm into the den to retrieve her clothing, then led her back into the bedroom. The victim was threatened by appellant, and was directed by both men not to touch the bedroom door during brief periods when they would leave the room. During one of those absences the victim got dressed, except for her brassiere, and escaped by climbing out the bedroom window and dropping several feet to the ground. She went next door and was allowed by the occupant to use the telephone to call the police, after informing the occupant that she had been raped. The victim was kept in Osby’s house for approximately four hours before her escape. Police found the victim’s brassiere in the bedroom of Osby’s house.

Both Osby and appellant made written statements to the police admitting that they had sexual intercourse with the victim, but stating that it was with her consent. Osby also admitted committing an act of sodomy, but appellant denied that he committed sodomy. Appellant testified to essentially the same facts as contained in his statement, and also testified that after he had intercourse with the victim, she asked him for $50.

The primary issue in this case was one of credibility of witnesses, since the victim testified that the acts were committed forcibly and against her will, while appellant testified the acts were all with the victim’s consent. The victim’s testimony was corroborated in many respects, and in regard to the charge of false imprisonment, a person commits that offense when, in violation of the personal liberty of another, he arrests, confines or detains such person without legal authority. OCGA § 16-5-4. The evidence shows that the victim was kept in the bedroom for almost four hours before she was able to escape. Thus, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellant’s motions for a directed verdict of acquittal. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).

2. Appellant alleges the trial court erred by refusing to make prior statements of the victim available for cross-examination. Prior to trial appellant filed a motion to produce requesting, among other things, all written statements of witnesses in possession of the prosecuting attorney. At a hearing before the jury was finally selected, the court asked if it needed to make an in camera inspection of the prosecuting attorney’s file as to any exculpatory material. Appellant’s counsel responded that he had not received a copy of a document from the doctor at Grady Hospital who examined the victim. Subsequently, counsel reported to the court that he had spoken with the doctor and was ready to proceed. The court then stated that it had examined the State’s file for exculpatory matters and found nothing that had not already been provided appellant. After the victim testified, appellant requested a copy of her pretrial statement to the police to use in cross-examination of the victim. The court again examined the statement, announced it found nothing exculpatory in it, and found nothing in the statement inconsistent with the victim’s testimony; therefore, appellant’s request was denied.

We find no error in this ruling, because a criminal defendant is not entitled to pretrial statements by key State witnesses as long as they are not exculpatory. Walter v. State, 256 Ga. 666, 668 (1) (352 SE2d 570) (1987).

3. Appellant contends the trial court erred by allowing a .22 calibre rifle into evidence. He argues that the rifle, which was leaning against the wall in the bedroom where the offenses occurred, was not used to threaten the victim, and thus was not relevant. This argument is without merit. The victim testified that not only had appellant threatened her verbally, but she had noticed the rifle leaning against the wall and was terrified that appellant or Osby would blow her brains out, toss her body in appellant’s truck, and dump her body out someplace. Thus, the fact that the gun, with a round in the chamber, was found in the bedroom corroborated the victim’s testimony and was relevant to the offenses charged. Further, where the relevance or competence of evidence is doubtful, it should be admitted and its weight left to determination by the jury. Houston v. State, 180 Ga. App. 267, 268 (3 (b)) (349 SE2d 228) (1986).

4. Appellant contends the trial court erred by allowing the charge of battery and multiple sodomy charges to go to the jury. However, at the sentencing hearing the trial court granted appellant’s earlier motion to merge the charge of battery with the charge of aggravated sodomy. The court did not sentence appellant on the battery charge, and nolle-prossed that charge. Hence, any error in submitting the charge of battery to the jury was rendered harmless by the court’s action. See generally Anderson v. State, 165 Ga. App. 885, 887 (3) (303 SE2d 57) (1983), which holds that an appellant claiming error must show harm as well as error.

Decided June 23, 1988.

Tony H. Hight, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

As the victim left the “shot house,” as noted in the majority opinion, she claimed “she heard shots.” See Osby v. State, 185 Ga. App. 185 (363 SE2d 611) (1987). Later she testified she thought they “would blow her brains out” with the rifle in the bedroom, which contained a round in the chamber. Admission of the .22 calibre rifle into evidence was not error in view of her fear of past confrontations with shots and the present and future possibilities of additional shots being fired. I concur fully with the majority opinion and add these additional observations.


text:
    76046.
    SPEARS v. MIRES et al.
    (371 SE2d 122)
   McMurray, Presiding Judge.

Plaintiff Spears brought an action against defendant Mires and corporate defendant McDonald Oil Company, seeking damages for injuries she allegedly sustained after a tractor-trailer gasoline truck, owned by corporate defendant and operated by defendant Mires, collided into a vehicle in which she was a passenger. Defendants denied the material allegations of the complaint and the case was tried before a jury, where the evidence authorized the following:

After defendant Mires made a delivery of gasoline to the Money Back Convenience Store in Columbus, Georgia during the early evening of July 25, 1986, he maneuvered corporate defendant’s tractor-trailer gasoline truck so as to exit the convenience store’s parking lot, turning right onto a one-way limited access road. The truck essentially blocked the entire driveway. As defendant Mires waited for traffic approaching from the left to clear, plaintiff’s husband maneuvered an automobile, in which plaintiff was a passenger, “a foot or two” from the right front wheel of the gasoline truck. There was insufficient space between the truck and the curb for plaintiffs husband to exit in front of the truck and, when traffic cleared a few moments later, defendant Mires rolled the gasoline truck at a speed of “maybe a mile an hour” into the “left-front corner” of the vehicle that was being operated by plaintiffs husband. At the moment of impact, defendant Mires “heard a crunch [but at] that particular moment [he] did not know what it was. [He] set [his] emergency brakes, got out of the truck and walked around and realized [that he had] struck a vehicle.” From this and other evidence, the jury returned a verdict in favor of defendants. Plaintiffs motion for new trial was denied and this appeal followed. Held:

1. In her third enumeration of error, plaintiff contends the trial court “erred in charging intervening negligence of a third party,” arguing that there was no evidence that a third-party caused the collision.

“ ‘A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about. An intervening force may be either a superseding or concurrent cause of injury, depending upon a number of causative factors involved. It may be either dependent upon or . . . independent of the original negligent act, and yet be such that, except for the existence of both negligent acts, the injury would not have occurred. The original act of negligence may be passive, that is harmless unless something further occurs but capable of being made dangerous by the operations of some new force . . . .’ Taylor v. Atlanta Gas Light Co., 93 Ga. App. 766, 768 (92 SE2d 709).” Perry v. Lyons, 124 Ga. App. 211, 212 (1) (b), 215, 216 (183 SE2d 467). In the case sub judice, the evidence showing that plaintiff’s husband placed his vehicle in the close proximity of the right front wheel of a tractor-trailer gasoline truck that was preparing to make a right turn onto a roadway was sufficient to sustain the trial court’s charge on intervening cause. This enumeration of error is without merit.

2. Plaintiff contends in her second enumeration that the trial court erred in refusing to allow her to introduce into evidence the transcript of a tape recorded telephone conversation which allegedly contained prior inconsistent statements made by a witness whose testimony supported defendants’ version of the collision.

“The use of the transcripts is within the discretion of the trial judge just as the admission of the tapes is.” Elliott v. State, 168 Ga. App. 781, 786 (3) (310 SE2d 758). In the case sub judice, plaintiff’s attorney was allowed to utilize the entire transcript of the telephone conversation during cross-examination of the witness for impeachment purposes. Under these circumstances, we find no abuse of discretion by the trial court in refusing to allow the transcript of the tape recording into evidence. See Brooks v. State, 141 Ga. App. 725, 736 (9) (234 SE2d 541).

Decided June 15, 1988

Rehearing denied June 24, 1988

L. B. Kent, for appellant.

Allen C. Levi, for appellees.

3. Lastly, plaintiff asserts the general grounds, arguing that the trial court erred in denying her motion for directed verdict and her motion for new trial.

“This court will not disturb a judgment when there is any evidence to sustain it, in the absence of a material error of law. Menendez v. Ellis, 149 Ga. App. 684 (255 SE2d 70). If the verdict is wholly without supporting evidence, it will be set aside, but where the evidence is in conflict and a properly instructed jury resolves the conflicts against the plaintiff, and that decision is approved by the trial judge and is supported by the evidence of record, this court, in the absence of material errors of law, will affirm. Scott v. Scott, 243 Ga. 472, 473 (254 SE2d 852).” Hester v. Baker, 180 Ga. App. 627, 631 (6), 632 (349 SE2d 834). In the case sub judice, there was evidence supporting defendant’s assertion that plaintiff’s husband was negligent in placing his vehicle in a position which led to the collision. Consequently, the trial court did not err in denying plaintiff’s motion for a directed verdict and motion for new trial.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Beasley, Judge.

text:
    76195.
    ROGERS et al. v. ROCKDALE COUNTY et al.
    (371 SE2d 189)
   Beasley, Judge.

Mr. and Mrs. Rogers brought a medical malpractice action against Rockdale County Emergency Medical Service and two individual paramedics, alleging that their failure to administer proper emergency care was the proximate cause of a disabling stroke suffered by Mr. Rogers. On April 27, 1987, the trial court granted defendants’ motion for summary judgment as to all issues and all parties on the ground that sovereign immunity barred the claim. Following an order extending the time for notice of appeal for 30 days, the Rogerses timely filed a notice of appeal on June 24, accompanied by an affidavit of poverty. A 30-day extension for preparation and filing of the record on appeal was granted on July 27.

Before the record was completed and transmitted to this court, the Rogerses filed in the trial court, on August 10, a motion for reconsideration of the order appealed from, seeking to offer additional proof to show that defendants were covered by a liability insurance trust fund as discussed by the Supreme Court in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (2) (357 SE2d 569) (1987), which became final on July 29, 1987, so as to render ineffective the defense of sovereign immunity to the extent of insurance coverage. The trial court held an ex parte hearing that same day and granted the motion for reconsideration, set aside and vacated the order of April 27 granting defendants’ motion for summary judgment, and set a hearing on the matter for September 1. Mr. and Mrs. Rogers also dismissed their appeal without prejudice the same day. On October 26 the trial court again granted total summary judgment from which the instant appeal, filed November 23, ensues.

1. Appellees have moved to dismiss this appeal for lack of jurisdiction, contending that the language of the dismissal, which was handwritten at the bottom of the typed notice of motion for reconsideration, shows that the motion had been heard and ruled upon before the dismissal occurred. While it is stated that “Plaintiffs’ Motion for Reconsideration, filed August 10, 1987, having been heard and granted, Plaintiffs hereby dismiss the above notice of appeal, without prejudice . . . ,” it appears that the single document containing the notice of the motion and the voluntary dismissal, as well as the motion itself and the order granting it, were all filed simultaneously on August 10. The entry of filing by the clerk does not denote the hour of filing of any of these papers.

“ ‘The entry of filing by the clerk is the best evidence of the date of filing and is presumed to be correct until the contrary is shown. [Cit.] This presumption may be rebutted, however, by proof of delivery for filing to the clerk [at a different time.] “The actual date of filing is the date upon which the paper is handed to the clerk to be filed.” [Cit.]’ [Cit.]” Intl. Longshoremen’s Assn. &c. v. Saunders, 182 Ga. App. 301, 303 (2) (355 SE2d 461) (1987). Since there was no showing to the contrary, we will presume that the voluntary dismissal of the appeal was validly effected in a regular and legal manner prior to the filing, consideration and grant of appellant’s motion for reconsideration. Cox v. City of Lawrenceville, 168 Ga. App. 119 (1) (308 SE2d 224) (1983). Accord Sullivan v. Brownlee, 174 Ga. App. 813 (1) (331 SE2d 622) (1985). We will not presume that the trial court acted when it was without jurisdiction and will instead “presume that the trial court as a public official faithfully and lawfully performed the duties devolving upon him by law. [Cits.]” Smith v. Jones, 154 Ga. App. 629, 631 (1) (269 SE2d 471) (1980).

There was, of course, nothing to prevent appellants from dismissing their notice of appeal in the trial court. See Waldor v. Waldor, 217 Ga. 496 (1) (123 SE2d 660) (1962); Albert v. Bryan, 150 Ga. App. 649 (258 SE2d 300) (1979). Any previous statutory limitations of this right were removed by the 1981 official recodification, which did not carry forward former Code Ann. § 3-510 (cited in Waldor, supra) and explicitly relegated OCGA § 5-3-8 to the chapter governing appeals to the superior court.

In regard to the propriety of appellants’ motion for reconsideration, which they contend was actually an attack on the first judgment in the form of a motion to set aside based upon fraud, accident or mistake pursuant to OCGA § 9-11-60 (d), appellees assert that they received no reasonable notice of the motion or hearing thereon until after the hearing had taken place, in contravention of OCGA § 9-11-60 (f). This assertion is not borne out by the record, which shows that service was made. Nor is the specific denomination of the motion controlling, since “[t]he well established rule in Georgia is that, under our system of notice pleading, the substance, rather than the nomenclature, of legal pleadings determines their nature. [Cits.]” Cotton v. Fed. Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980). See also Roberts v. Bienert, 183 Ga. App. 751, 755 (2) (360 SE2d 25) (1987).

A motion for reconsideration, which is. non-statutory, can be ruled upon by the trial court ex mero moto, with or without notice to either party. Holcomb v. Trax, Inc., 138 Ga. App. 105, 106 (225 SE2d 468) (1976). “The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments . . . save those which are founded upon verdicts. [Cits.]” Allstate Ins. Co. v. Clark, 186 Ga. App. 58, 59 (366 SE2d 394) (1988). No question has been raised as to whether the subject judgment was vacated during the term at which it was entered, and in any event, OCGA § 9-11-60 (f) provides that except for motions for new trial, “[i]n all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of.” Accordingly, we find no lack of authority in the trial judge to rule on the motion, and we deny the motion to dismiss the appeal.

2. The trial court correctly granted summary judgment to defendants. The Rogerses’ contention that the paramedics as employees of the EMS were covered by a comprehensive liability policy insuring employees of the Georgia Department of Public Safety against liability resulting from the negligent performance of their public duties so as to waive their sovereign immunity to the extent of such coverage is adversely controlled by the recent decisions in Ward v. Bulloch County, 258 Ga. 92 (365 SE2d 440) (1988); Dugger v. Sprouse, 257 Ga. 778 (364 SE2d 275) (1988); Bowen v. Columbus, Ga., 256 Ga. 462 (349 SE2d 740) (1986). The paramedics were not employees of the Georgia Department of Public Safety, nor was the county EMS a part of the state agency.

Decided June 8, 1988

Rehearing denied June 24, 1988

Charles H. Hyatt, Curtis R. Richardson, for appellants.

John A. Nix, John A. Gilleland, William W. Lavigno III, for appellees.

Judgment affirmed.

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


text:
    76224.
    YOUNG v. WOOLDRIDGE et al.
    (371 SE2d 100)
   McMurray, Presiding Judge.

This is a tort action arising from a motor vehicle collision in which Karey Lynn Wooldridge was fatally injured. The plaintiffs are the parents of the deceased on a wrongful death claim and the father, as administrator of her estate, on a claim for personal injuries, mental anguish, shock and fright suffered by deceased prior to her death.

Plaintiffs’ complaint alleges that, at the time of the collision, deceased was a passenger in a vehicle negligently operated by defendant Brett Young. Plaintiffs’ complaint also states claims against defendant Forrest Young, father of defendant Brett Young, predicated on theories of the family purpose doctrine and negligent entrustment. Claims against defendants Del Taco, Inc., Creative Food ’N Fun Company and ARA Services, Inc. are predicated on allegations that these defendants negligently sold defendant Brett Young alcoholic beverages prior to the collision.

This appeal is taken by defendant Forrest Young from an order of the superior court granting plaintiffs’ motion for summary^ judgment on the applicability of the family purpose doctrine, thereby imposing liability on defendant Forrest Young for any liability found in this action to exist on the part of his son, defendant Brett Young, arising out of the subject fatal collision. Defendant Forrest Young also enumerates as error the denial of his motion for summary judgment on the applicability of the family purpose doctrine and applicability of plaintiffs’ negligent entrustment theory. Held:

1. The affidavit of defendant Forrest Young avers that defendant Brett Young was a minor and lived with his parents, that the automobile driven by defendant Brett Young at the time of the collision was purchased approximately four months prior to the collision, that the automobile was registered and titled in defendant Forrest Young’s name because defendant Brett Young was a minor, and that the down payment for the purchase was $1,000 cash, of which defendants Forrest Young and Brett Young each provided one-half. Defendant Forrest Young further averred that he gave the automobile dealership a check for $12,000, that two days after the purchase of the automobile defendant Brett Young obtained a loan for $12,000, the entire proceeds of which were transferred to him (Forrest Young) to reimburse for the cash and check given the dealership, and that this method of payment was used since defendant Brett Young did not have a checking account. In his affidavit defendant Forrest Young also averred that subsequently defendant Brett Young obtained insurance on the automobile in his name, and that the insurance premiums were paid by defendant Brett Young by providing cash reimbursement for checks drawn on the account of Mr. and Mrs. Forrest Young (again because Brett Young had no checking account). Defendant Forrest Young also stated that he “did not have his own personal set of keys” to the automobile, performed no maintenance on the automobile, “never did and never could authorize another family member to drive” the automobile as he did not consider the automobile to be his, and that defendant Brett Young exercised exclusive authority, custody and control over the automobile. These facts were corroborated by the affidavit of defendant Brett Young.

“Upon a motion for summary judgment, the burden is upon the movant to establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56. In determining whether a movant meets the summary judgment burden, the respondent must be given the benefit of all favorable inferences and every reasonable doubt. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442); Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866).” Buice v. White, 172 Ga. App. 634 (1) (324 SE2d 203).

Before the superior court and again before this court, plaintiff relies heavily upon our decisions in Sledge v. Law, 113 Ga. App. 746 (149 SE2d 758), and Murch v. Brown, 166 Ga. App. 538 (304 SE2d 750). In both of these cases, we held that the evidence set forth therein was sufficient to preclude a summary judgment against the defendant parent predicated upon the family purpose doctrine. These cases do not hold that the facts therein are sufficient to authorize summary judgment by a plaintiff against such defendant parents. Indeed, in the similar cases of Keith v. Carter, 172 Ga. App. 588 (323 SE2d 886), and Calhoun v. Eaves, 114 Ga. App. 756 (152 SE2d 805), we upheld grants of summary judgment to the defendant parents.

The rules governing applicability of the family purpose doctrine have been often restated. See in this regard Murch v. Brown, 166 Ga. App. 538, 539, supra; Keith v. Carter, 172 Ga. App. 588, 589, supra; and Buice v. White, 172 Ga. App. 634, 635 (2), supra. In Buice we stated: “ ‘The rules applicable to the family purpose doctrine are as follows: “To come within the application of the doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use, rather than for use in his business.” ’ Finnocchio v. Lunsford, 129 Ga. App. 694 (2) (201 SE2d 1). Of course, it must be borne in mind that mere ownership will not create liability. Finnocchio v. Lunsford, 129 Ga. App. 694, 695, supra; Raley v. Hatcher, 61 Ga. App. 846, 848 (7 SE2d 777). ‘To hold the head of a family liable under the family purpose doctrine, he must have provided the automobile for the pleasure, comfort or convenience of some member of his family. Ferguson v. Gurley, 218 Ga. 276 (127 SE2d 462).’ Finnocchio v. Lunsford, 129 Ga. App. 695, supra. How do we determine whether a defendant has provided the automobile for the ‘pleasure, comfort or convenience’ of a family member? ‘ “In order to qualify as a provider under the family purpose doctrine one must be the principal mover, one who intends to provide for another or others the particular thing, the automobile, and takes steps on his own responsibility to see the consummation of the transaction, and contributes substantially of his own means toward that end without expectation of reimbursement or compensation.” Smith v. Simpson, 260 N.C. 601, 611 (133 SE2d 474).’ Finnocchio v. Lunsford, 129 Ga. App. 695, supra.”

In the case sub judice, the evidence is in conflict as to defendant Forrest Young’s right to exercise authority and control over the use of the vehicle. Viewed most strongly in favor of plaintiff the evidence shows that defendant Forrest Young supplied the automobile to an unemancipated minor son who was a member of his immediate household for family use and that the automobile was being driven with his acquiescence at the time of the collision. Viewed most favorably to defendant Forrest Young the evidence shows that the automobile was the separate property of an emancipated minor son over which he had no authority and control. Consequently, the superior court erred in granting summary judgment in favor of plaintiffs on the issue of liability under the family purpose doctrine. The superior court did not err in denying defendant Forrest Young’s motion for summary judgment in regard to plaintiffs’ theory of liability based on the family purpose doctrine.

2. The superior court did not err in denying defendant Forrest Young’s motion for summary judgment in regard to plaintiffs’ theory of liability based on negligent entrustment. “Under the theory of negligent entrustment, ‘liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. (Cits.)’ Saunders v. Vikers, 116 Ga. App. 733, 735 (158 SE2d 324).” May v. Phillips, 157 Ga. App. 630, 631 (2) (278 SE2d 172). In the case sub judice, defendant Forrest Young presented no evidence controverting plaintiffs’ allegations of incompetence and habitual recklessness on the part of defendant Brett Young. Defendant Forrest Young did present evidence that he had no knowledge of any speeding tickets received by defendant Brett Young prior to the collision, nor had any facts ever been brought to his attention regarding a pattern of negligent or reckless driving on the part of defendant Brett Young. However, such evidence did not pierce the allegations that defendant Brett Young was an incompetent driver. Nor is defendant Forrest Young’s statement that no facts regarding reckless conduct by his son had been brought to his attention, equivalent to a statement that he had no knowledge of such conduct. This enumeration of error is without merit.

Decided June 3, 1988

Rehearings denied June 24, 1988

Richard G. Greer, Stephen A. Friedman, for appellant.

William H. Schroder, Jr., Lynn E. Marsal, William W. Lavigno III, Nicholas C. Moraitakis, Robert C. Semler, for appellees.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.


text:
    75942.
    ARNOLD v. PALACE INDUSTRIES, INC. et al.
    (371 SE2d 236)
   Beasley, Judge.

Plaintiff Arnold appeals from the verdict in favor of defendants Palace Industries, Inc., and Home Modernizers of Tennessee, Inc., directed by the court at the close of his evidence, and from denial of an amended motion for new trial.

Arnold was employed to operate branch offices of defendants’ home remodeling business. He had a written compensation agreement which provided that he would receive a monthly salary, car allowance, road and work expenses, medical insurance, and a 2-Vfe percent override of “business generated” in the branch offices. His employment lasted from February 6 to October 18, 1985.

Arnold sued in breach of contract for override commissions, alleging that Palace had not fully paid them and that since Home Modernizers had paid some sums due him by Palace, it might be responsible for some or all of the payments still due. Arnold claimed that he received only partial commissions on sales from February through August 1985 and no commissions for September and October.

A fraud count alleged that when Palace hired Arnold it did not intend to live up to the terms of the agreement but made it to induce him to accept employment, that in reliance on the agreement he did so and dissolved his own profitably operating concern, and that he was injured thereby.

The third count maintained that Palace tortiously caused Home Modernizers to issue Arnold’s last week’s salary check with a release from further claims, thereby precluding its negotiation and entitling him to its value plus punitive damages.

The final count claimed the value of benefits realized by defendants from Arnold’s services under the doctrine of quantum meruit.

The basis for the directed verdict in favor of defendants was lack of proof of damages.

Arnold contends that the trial court should have granted a new trial because it erred in excluding from evidence job logs which were monthly sales performance sheets he used in calculating damages, his testimony as to damages, and a letter from defendants’ former attorney. He further contends that there was evidence in the form of interrogatories and responses from which damages could be calculated, that there was sufficient evidence in the record of his tort claims for jury consideration, and that there was evidence of a breach which would support an award of at least nominal damages.

1. Assuming for the purpose of disposition that the exclusions of evidence were correct, there was sufficient evidence to show at least a part of the actual damages plaintiff was seeking.

There was evidence of the written contract of employment upon which Arnold was to receive compensation, that he was employed until mid-October, and that payments had not been made to Arnold in accordance with the contract. Defendants’ president admitted that August was the last month in which Arnold was paid his commission, that Arnold had still been entitled to receive the override for September and October, and that “[i]t was never disputed we owed him the money.” In addition, certain answers to interrogatories were admitted without objection. The president testified that he answered the interrogatories under oath. Although he was then asked only about another interrogatory’s response, the entire page was admitted without objection. One of the answers stated the specific amounts of the business generated for September 1985 at each of the branch offices. The percentage commission for this period constituted part of plaintiff’s claim.

The issue of lack of damages proof, raised by defendants as the ground for their motion for directed verdict, related to the breach of contract claim. However, the court granted a directed verdict as to all claims. As to the fraud claims, plaintiff also presented evidence that defendants entered the contract intending not to abide by the compensation provision, in that the president told him when the dispute arose that he never intended to pay the commission as stated. Also, there was evidence that release language was added to Arnold’s last salary check to foreclose any attempt he might make to recover the overrides for September and October. In addition, there was evidence that language was added to the front of a September check, after negotiation, stating it was for all commissions to date including August. This constituted some evidence of a breach of Arnold’s employment contract as well as of the claimed fraudulent acts.

Decided June 24, 1988.

William R. Reece III, Mark V. Spix, for appellant.

James G. Killough, for appellees.

A directed verdict was not authorized and plaintiff is entitled to a new trial.

2. The enumeration of error regarding nominal damages is thus rendered moot. A new trial being called for, the evidentiary questions need not now be ruled on.

Judgment reversed.

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