author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A1254.
    JEFFERSON PILOT LIFE INSURANCE COMPANY v. CLARK.
    (414 SE2d 521)
   Birdsong, Presiding Judge.

Jefferson Pilot Life Insurance Company appeals from a judgment based upon a jury verdict in favor of Henry Lee Clark, Jr., in an action to collect the proceeds of a Jefferson Pilot accidental death insurance policy covering Mr. Clark’s son, Donnie Lee Clark, issued through his son’s employment. While a covered person under the policy, Donnie Lee Clark was killed in a one-car collision in which he was the driver and sole occupant. A blood alcohol test taken after his death revealed that his blood alcohol content was .15 percent.

Relying on a policy provision excluding coverage if Donnie Lee Clark’s death was caused by or resulted from an injury sustained while he operated a motor vehicle if he was under the influence of alcohol with a blood alcohol level of at least .15 percent, Jefferson Pilot denied Mr. Clark’s claim for the proceeds of the policy. Subsequently, Mr. Clark filed suit, and after a jury verdict, the trial court entered judgment in favor of Mr. Clark for $80,000 plus interest. This appeal followed.

Jefferson Pilot contends the trial court erred by ruling the public policy of this state requires that the exclusion contain an implied requirement that driving with a .15 percent blood alcohol level was the proximate cause of death, by charging the jury on the proximate cause requirement, and by submitting a special interrogatory to the jury on whether the death was proximately caused by Donnie Lee Clark’s intoxication. Jefferson Pilot also contends the trial court erred by restricting the testimony of a state patrol accident investigator, and by refusing to allow Jefferson Pilot opening and closing argument. Held:

1. Initially we must address Mr. Clark’s arguments that Jefferson Pilot’s enumerated errors are harmless because of certain of the trial court evidentiary rulings, including the denial of a motion in limine to exclude the blood test results, were erroneous. Since Mr. Clark did not file a cross-appeal contesting any of the trial court’s rulings, we cannot consider these assertions. Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783 (302 SE2d 594). Accordingly, these arguments are without merit.

2. Although Jefferson Pilot enumerates as error the trial court’s ruling that the exclusion at issue must implicitly contain the requirement that the .15 percent blood alcohol level was the proximate cause of Donnie Lee Clark’s death to satisfy the public policy of this state, we must first examine the exclusion to determine the scope of its application. The relevant part of the exclusion states: “This policy does not cover any loss, caused by or resulting from ... (6) any injury sustained while operating a motor vehicle if the covered person was under the influence of alcohol as evidenced by a blood alcohol level of at least 0.15% by weight/volume (150 milligrams per 100 milliliters).”

First, we note that not even Mr. Clark has asserted that the exclusion includes a causation requirement. Instead, he has contended that the exclusion was deficient because it did not contain such a requirement.

Secondly, without a covered injury, there is no covered loss, and without a covered loss, there can be no recovery under the policy.

It is uncontroverted that the injury, death, was sustained, as set forth in the exclusion, “while the deceased was under the influence of alcohol as evidenced by a blood alcohol level of at least .15% by weight volume (150 milligrams per 100 milliliters).” (Tests confirm deceased had an alcohol content of .15 percent.) The injury was sustained at a time the deceased had .15 percent blood alcohol content. This injury therefore came within the exclusion of the policy thus eliminating an “injury” and without an injury, covered, there can be no loss.

Nothing in the exclusion of the policy refers or requires that the intoxication cause the accident, injury or loss. Therefore, this exclusion is valid without a causation requirement.

The language of this exclusion does not require that Donnie Lee Clark’s intoxication be the proximate cause either of his injury or of the automobile accident in which his injury was sustained. This exclusion requires only that the “loss” (Donnie Lee Clark’s death) be caused by or result from an “injury” sustained while operating a motor vehicle if he was under the influence of alcohol as evidenced by a .15 percent blood alcohol level.

The term “caused by or resulting from” requires a causal relationship between the “loss” and any one or more of six different circumstances (of which an “injury” “sustained” while Donnie Lee Clark operated a motor vehicle when he was under the influence of alcohol as evidenced by a blood alcohol level of .15 percent is but' one). Thus, if Donnie Lee Clark’s death was not caused by or did not result from any one of the six situations or circumstances listed, the exclusion would not apply.

Considering circumstance six, the plain language of the exclusion does not require that the injury causing Donnie Lee Clark’s death be caused by or result from his operation of the car while under the influence of alcohol. This exclusion requires only an “injury” which is “sustained while” Donnie Lee Clark “operated” the car. while under the influence of alcohol as evidenced by his blood alcohol level of .15 percent. The exclusion does not contain the words “caused” or “resulted,” and no reasonable definition of any words in this exclusion will allow an interpretation which permits implication of a causation requirement between the injury and driving under the influence with a .15 percent blood alcohol level.

In particular, the word “sustained” not only does not carry a connotation of causation, but the generally accepted definitions of “sustain” have the opposite meaning. As used in this sense, “sustain” can only mean “to experience or to suffer” (American Heritage College Dictionary, 2d edition); “to undergo, experience, or suffer (injury or loss, etc.)” (Webster’s Encyclopedic Unabridged Dictionary of the English Language); “to suffer, receive, undergo” (Webster’s Third New International Dictionary); “to suffer, bear, undergo” (Black’s Law Dictionary, 5th ed.). Therefore, in interpreting this policy we must give “sustain” its usual meaning (OCGA § 13-2-2 (2)), and that does not include a definition that forces a causation requirement in this exclusion.

Interpretation of this policy as the dissent proposes would require that the exclusion read as follows: This policy does not cover any loss caused by or resulting from any injury caused by or resulting from the operation of a motor vehicle while the covered person was under the influence of alcohol as evidenced by a blood alcohol level of at least .15 percent. The plain language of this exclusion does not support such an interpretation, and courts are not at liberty to revise contracts while interpreting them.

Moreover, this exclusion is not ambiguous. Ambiguity is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression.’ ” Tarbutton v. Duggan, 45 Ga. App. 31 (163 SE 298). A word or phrase is ambiguous when “ ‘ “it is of uncertain meaning and may be fairly understood in more ways than one.” ’ ” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (381 SE2d 322). Since the words in this exclusion are plain and obvious, however, they should be given their literal meaning. United States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (355 SE2d 428). ■

Although the dissent is concerned that this exclusion denies the proceeds of the policy even if the death is sustained from a plane falling from the sky, this concern is misplaced. Disregarding the obvious fact that driving with a .15 percent blood alcohol level is a serious traffic offense and places the lives of innocent people in jeopardy, insurance is a matter of contract. Therefore, if Mr. Clark’s son wanted to have coverage with a causation requirement, he should have purchased a private policy which under OCGA § 33-29-4 would have had such a provision. Instead he selected and received the benefits of a group policy and must therefore be bound by the terms of the group employment policy.

Although ambiguous exclusions may be construed liberally in favor of the insured and strictly construed against the insurer, this cannot be done when the exclusion is clear and unequivocal. United Svcs. &c. Assn. v. Lail, 192 Ga. App. 487, 489 (385 SE2d 424). Further, “[w]hen the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the court must expound the contract as made by the parties. [Cit.] Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.” Burnette v. Ga. Life &c. Co., 190 Ga. App. 485 (379 SE2d 188). Additionally, reaching the result proposed by the dissent requires that Burnette v. Ga. Life &c. Co., supra, which has in substance the same exclusion, be reversed. Moreover, contrary to the dissent’s contention that the exclusion in Burnette had no “language such as ‘caused by or resulting from,’ ” the Burnette opinion states clearly “the policy excluded losses resulting from ‘(i)njuries sustained while (the insured). . . .’” (Emphasis supplied.) 190 Ga. App. 485. Accordingly, we hold that application of this exclusion as written does not require that Donnie Lee Clark’s death be proximately caused by his driving while under the influence of alcohol.

Therefore, we must next consider whether this exclusion, without a proximate cause requirement, violates the public policy of this state. In deciding that this exclusion did so the trial court did not specify what public policy this exclusion would violate, and nothing in the record suggests a public policy which might be implicated. Instead, the trial court’s concern, like the dissent’s, appears more to be directed to the perceived unfairness in how the exclusion might be applied in other circumstances. Nevertheless, perceived unfairness in a particular extreme situation does not make the exclusion contrary to public policy. Chapter 8 of Title 13, Official Code of Georgia Annotated, contains the legislative provisions regarding illegal and void contracts generally. None of those provisions touches on this exclusion.

Also, contrary to Mr. Clark’s allegations, the record supports the trial court’s conclusion the insurance policy was a group accident policy, issued pursuant to his son’s employment with the Georgia Department of Corrections. See OCGA Title 33, Chapter 30. Therefore, OCGA § 33-29-4 is inapplicable to this policy (OCGA § 33-30-11), and we have found no other provision of Georgia law prohibiting exclusions of this nature. Moreover, accidental death coverage is not required by Georgia law, and, does not provide protection for the general public. Compare GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595); Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136). Further, “ ‘[i]t is the paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.’ ” My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460 (364 SE2d 580). Accordingly, we do not find the exclusion in Jefferson Pilot’s policy violates the public policy of this state.

On the contrary, this exclusion is consistent with the state’s public policy of improving safety on the highways (Cotton States v. Neese, supra at 341) by eliminating from its streets and highways drivers who are under the influence of alcohol. This public policy is reflected in the recent amendments to the DUI law of this state lowering the level at which one is presumed to be under the influence of alcohol and enhancing the measures which might be taken against DUI offenders (e.g., OCGA § 40-6-391.2) and providing remedies against those who serve them alcohol (e.g., OCGA § 51-1-40). In reaching this conclusion, we note that the .15 percent blood alcohol concentration in this exclusion is almost twice the .08 percent blood alcohol concentration at which one is presumed to be under the influence of alcohol in this state after the 1991 amendment to OCGA § 40-6-392 (b) (3) to the extent that it is less safe for that person to drive. See OCGA § 40-6-391 (a) (1).

Although the dissent appears to suggest that the .15 percent blood alcohol level or any blood alcohol level is some arbitrary provision unrelated to the operation of a vehicle, the fact is that a driver with that high blood alcohol level is a significantly less safe driver. Such a driver’s ability to operate his vehicle is significantly impaired under normal operating conditions and it is beyond dispute that his ability to respond to emergencies, even those not of his creation, is delayed dramatically. Accordingly, this provision is legitimately included in this policy and it is not merely some trap for unwary policyholders as the dissent suggests.

Also, this exclusion is contained in an insurance policy which pays benefits when a covered person sustains an accidental injury or death. Thus, it is appropriate to consider the likely relationship between covered persons who are operators of motor vehicles with this blood alcohol concentration and the likelihood of accidental injuries and deaths. While the record on appeal is not extensive on this point, we need not ignore universally accepted traffic safety studies and statistics showing that drivers who are under the influence of alcohol are involved in great numbers of motor vehicle accidents and that great numbers of people are injured or killed as a result of alcohol-related automobile accidents (e.g., a recent report that 355,000 were injured and 22,000 were killed in the United States last year). This report also shows that two-thirds of those killed in alcohol-related automobile accidents were under the influence of alcohol. Further, a state patrolman testified in this case that over half of the hundreds of automobile accidents he has personally investigated were the result of intoxication. As this is true generally of drivers who are under the influence of alcohol, it can be assumed there is a higher correlation between the incidence of motor vehicle accidents and operators with blood alcohol concentrations of .15 percent.

Additionally, this exclusion applies only to operators of motor vehicles with blood alcohol concentrations of .15 percent, a class which is even more likely to be injured or killed in alcohol-related automobile accidents. Therefore, this exclusion is reasonably designed to protect the insurer from unreasonable exposure to risk, and it is not unreasonable for an insurance company to exclude from coverage a class which can be expected reasonably to sustain proportionally higher numbers of accidental injuries or death because of their own misconduct, thus reducing insurance premiums in accordance with public policy. Cotton States v. Neese, supra at 341.

Although Mr. Clark relies on Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79 (380 SE2d 751), that case does not stand for the proposition that intoxication in all cases must be the proximate cause of the injury for a policy exclusion to be valid. Further, Vulcan Life was governed by OCGA § 33-29-4, which imposes a proximate cause requirement, and, significantly, the particular policy in issue itself provided that the company should “not be liable for any loss resulting from your being drunk. . . .” (Emphasis supplied.) Id. Consequently, the exclusion in this appeal, which was not controlled by OCGA § 33-29-4 and had no causation requirement, differs materially from the exclusion in Vulcan Life, which specifically included such a causation requirement.

In the same manner, Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 158 (30 SE2d 411), does not require a contrary result. The exclusion at issue in Progressive Life provided that “ ‘[n]o accidental death benefit will be paid if the death of the insured is a result of suicide, whether sane or insane ... or while under the influence of narcotics or intoxicating liquor.’ ” Although the opinion includes the statement “we are without authority to conclude, as a matter of law, that the evidence demanded a finding that at the time the house was consumed by fire, the insured was under the influence of intoxicating liquor within the meaning of the insurance policy to such an extent as to show a causal connection between his death and the fire which consumed the building,” this statement concerns the sufficiency of the evidence supporting the jury’s verdict that Smith was not under the influence of intoxicating liquor. Id. at 160. Consequently this statement is not a holding on whether a causation provision is required, and is at most dicta. This court, in Progressive Life, did not hold and was not called upon to hold whether the language of the exclusion included a causation requirement or the public policy of this state required an implied causation requirement.

Instead, the issue was whether the insured’s death was caused by the fire or by some non-accidental cause. If the latter, a death benefit was not authorized under an accidental death policy. That is not the question in this appeal, and Progressive Life has no precedential value on this issue.

The issue in this appeal, however, is analogous to that presented in Burnette v. Ga. Life &c. Ins. Co., supra, in which a medical payments policy “excluded losses resulting from injuries sustained while the insured is an occupant of a private automobile being driven in violation of any law or ordinance.” (Punctuation omitted.) Presented with a similar public policy argument because the insured person was a minor and could not control the operation of the car, this court held “the public policy of this state is created by our Constitution, laws and judicial decisions. We find no established public policy impediment, by way of Constitution or statute or case law, to an insurer applying the exclusion in issue here. Unlike the automobile policy exclusion at issue in Cotton States Mut. Ins. Co. v. Neese, [supra,] the parameters of the instant policy are not prescribed by compulsory motor vehicle insurance statutes. The policy issued by appellee is a limited one designed to provide certain coverage to students engaged in school activities, and there is no requirement that the coverage desired by appellant be provided.” (Citations and punctuation omitted.) Burnette, supra at 486. Since the exclusion in this appeal is in a group accidental death policy, the same analysis applies. Therefore, to reach the result the dissent proposes, Burnette must be reversed.

Accordingly, the trial court erred by engrafting a proximate cause requirement on this exclusion by charging on such a requirement and by submitting a special interrogatory to the jury as to causation.

3. Although under our holding in Division 2 causation should not be an issue in a new trial, we find the trial court’s error in imposing a causation provision in this exclusion was compounded by then refusing to allow Jefferson Pilot’s expert to state his opinion on the cause of the one-car accident in which Donnie Lee Clark was killed. The record shows that the trial court based this decision on two factors: First, that the state patrolman was not qualified to give his opinion on the cause of the accident because he was not trained to reconstruct traffic accidents, and second, because the expert stating his opinion would invade the province of the jury.

The record establishes that the expert witness was a Georgia state patrolman. He testified he had been a patrolman for 20 years, he had attended numerous courses on traffic accident investigation (including a portion of his course at the Georgia Police Academy), he was trained to determine the cause of traffic accidents, he had investigated hundreds of traffic accidents, and in almost every wreck he was called upon to decide what caused the accident. Although a witness’ qualifications to testify as an expert is an issue committed to the sound discretion of the trial court (Birge v. State, 143 Ga. App. 632, 636 (239 SE2d 395)), “ ‘[generally nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession; and special knowledge in regard to a particular subject may be derived from experience as well as study and direct mental application.’ ” Id. From the testimony in this case on the witness’ qualifications, it is clear that the trial court abused its discretion by excluding the testimony about the cause of the accident from the state patrolman who personally investigated the accident. Gooch v. State, 155 Ga. App. 708, 709 (272 SE2d 572). Accord Felton v. White, 197 Ga. App. 367 (398 SE2d 425); Massee v. State Farm &c. Ins. Co., 128 Ga. App. 439, 443 (197 SE2d 459). There can be no doubt a police officer with investigative experience on automobile collisions is an expert.

Moreover, in excluding the patrolman’s opinion because the testimony invaded the province of the jury, the trial court focused on the wrong issue. The issue is not whether the opinion would invade the province of the jury, but whether the subject is a proper one for opinion testimony. Nichols v. State, 177 Ga. App. 689, 693 (340 SE2d 654). “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678). Moreover, an opinion on the cause of the accident is an assessment of fact and not a legal conclusion or a conclusion constituting a mixture of law and fact. See State v. Butler, 256 Ga. 448, 450 (349 SE2d 684); Allison v. State, 256 Ga. 851, 853 (353 SE2d 805). Accordingly, the trial court erred by excluding this testimony.

4. We also note that Jefferson Pilot is entitled to opening and closing argument if it admits Mr. Clark’s prima facie case, and it need not admit his absolute right of recovery. Payne v. Thebaut, 180 Ga. 758 (180 SE 725); Uniform Superior Court Rule 13.4. As Jefferson Pilot has the burden of proving that its exclusion applied, if Jefferson Pilot admits Mr. Clark’s prima facie case, it will be entitled to open and conclude argument before the jury. See Morgan-Hill Paving Co. v. Shanks, 45 Ga. App. 274, 275 (164 SE 221). Based upon the record in this appeal, however, we cannot conclude that the trial court erred by giving opening and closing argument to Mr. Clark.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Beasley, Andrews, JJ., and Judge Arnold Shulman concur. Carley, P. J., Pope and Cooper, JJ., concur in part and dissent in part.

Pope, Judge,

concurring in part and dissenting in part.

I must dissent to Division 2 of the majority opinion, because I cannot concur with the majority’s strained construction of the pertinent insurance contract language. Under the majority’s interpretation of this contract language, if an airplane fell from the sky and killed an automobile driver whose blood alcohol level was at least .15 percent, that person’s beneficiaries would not be able to recover despite the fact that the person’s alcohol level was clearly unrelated to the accident. The exclusions and exceptions paragraph of the insurance policy provides in pertinent part: “This policy does not cover any loss, caused by or resulting from: ... (6) any injury sustained while operating a motor vehicle if the Covered Person was under the influence of alcohol as evidenced by a blood alcohol level of at least 0.15% by weight/volume (150 milligrams per 100 milliliters).” (Emphasis supplied.) The caused by or resulting from language does not just modify the word loss as the majority contends; it plainly requires that a causal connection be shown between the insured being under the influence of alcohol and any injury sustained by the insured while operating a motor vehicle in that condition before this exclusion from coverage is applicable.

In essence, the majority decision disregards the causation language contained in the prefatory paragraph setting forth exclusions and exceptions from coverage and considers only the language of sub-paragraph (6) which states that injuries are excluded from coverage if they are “sustained while operating a motor vehicle if the Covered Person was under the influence of alcohol. . . .” (Emphasis supplied.) Assuming arguendo that the language relied upon by the majority does not plainly require a showing of a causal connection, “[e]xceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms. Where the language contained in an insurance policy is susceptible to two or more constructions, the one most favorable to the insured will be adopted.” (Punctuation and citations omitted.) Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 83 (380 SE2d 751) (1989), disapproved on other grounds, Santiago v. Safeway Ins. Co., 196 Ga. App. 480, 482 (1) (396 SE2d 506) (1990). At best, the language in question would be susceptible to two interpretations, and the majority errs in adopting the construction most favorable to the insurer rather than the insured.

Burnette v. Ga. Life &c. Co., 190 Ga. App. 485 (379 SE2d 188) (1989), the only case relied upon by the majority to support its position, is clearly distinguishable from this case. In that case Robert Burnette, a minor, was injured when a car in which he was a passenger crossed the centerline and struck another vehicle. Burnette’s guardian sought benefits pursuant to Burnette’s student blanket insurance policy. The beneficiary brought suit after the insurer denied coverage under an exclusion contained in the policy for “ ‘(i)njuries sustained while (the insured) is an occupant of a private automobile . . . being driven in violation of any law or ordinance. . . .’’’Id. at 485. That case is distinguishable for two reasons. First, the insurance policy in question was a limited one designed to provide certain coverage to students engaged in school activities, and Burnette was not engaged in a school activity at the time of his death; it was not a general accidental death or injury policy as is the policy in this case. Also, contrary to the majority’s contention, it is impossible to determine from our decision in Burnette if the exclusion in question contained the words “resulting from,” as does the policy sub judice. This court’s failure to quote such language from the policy, as it did the language quoted above, suggests that the “resulting from” language was not present in that policy. Because the Burnette decision is clearly distinguishable from this case, the majority’s contention that this opinion would require the reversal of that case is erroneous.

While this court has not had the opportunity to decide whether similar contract language requires a showing of a causal connection, our decisions in Vulcan Life Ins. Co. v. Davenport, supra, and Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157 (30 SE2d 411) (1944) support the trial court’s ruling. In Vulcan, supra, the insured brought suit against his health insurance carrier when it refused to pay his medical bills arising from an automobile collision which occurred while the insured’s blood alcohol content was above the level that would support a conviction for driving under the influence. The exclusion in that case provided: “ ‘INTOXICANTS AND NARCOTICS: We will not be liable for any loss resulting from your being drunk (except in Oklahoma or Minnesota) or under the influence of any narcotic unless taken on the advice of a physician.’ ” (Emphasis supplied). Vulcan, supra at 79-80. In that case, this court recognized that the policy language required the jury to make two decisions: (1) whether the insured’s blood alcohol content of .19 percent meant he was drunk as that term was used in the policy; and (2) if the insured was drunk whether that condition proximately caused the automobile accident underlying the case. Id. at 82 (1). Thus, the only material difference in the policy language between the two cases is that the exclusion in the Vulcan case required an initial determination of whether the insured was drunk, whereas the language of the exclusion in this case makes it clear when the insured is considered to be under the influence of alcohol. Both exclusion clauses, however, contain the pertinent “resulting from” language, which this court in the Vulcan case recognized requires a showing of proximate cause.

In Progressive Life Ins. Co. v. Smith, supra, the insured died in a house fire. The accidental death policy provided by Progressive Life Insurance Company contained the following exclusion: “ ‘No accidental death benefit will be paid if the death of the insured is a result of suicide, whether sane or insane or while under the influence of narcotics or intoxicating liquor.’ ” Id. at 157-158. There was evidence that the insured was intoxicated at the time of the fire. This court concluded that the evidence was insufficient to conclude as a matter of law “that at the time the house was consumed by fire, the insured was under the influence of intoxicating liquor within the meaning of the insurance policy to such an extent as to show a causal connection between his death and the fire which consumed the building.” Id. at 160. Although the majority contends this language is merely dicta, it is clear from the language quoted above that this court in Progressive imposed a causation requirement when considering whether the evidence was sufficient to support the jury’s verdict.

The majority’s focus on public policy in this case is misplaced. The unambiguous language of this contract dictates a showing of a causal connection and makes it unnecessary to decide whether the public policy of this state would require that such a connection be shown. While I share the majority’s concern of removing intoxicated drivers from our highways and do not consider a driver’s blood/alcohoi level unrelated to a driver’s ability to operate a vehicle as the majority contends, this court cannot allow that concern to cause us to abandon time-honored rules of contract construction or, in this case, to ignore the plain language of the contract. I do not agree with the majority’s conclusion that a showing of causation subjects the insurer to unreasonable exposure, because the contract language clearly exonerates the insurer from all liability in those situations in which alcohol is a causative factor. If alcohol is unrelated to the accidental death, the insurer’s risk is the same as it would be in any non-alcohol-related accident.

Decided December 5, 1991

Reconsideration denied December 20, 1991

Wilkes, Johnson & Smith, Ken W. Smith, for appellant.

Simpson & Gray, Ralph F. Simpson, Joseph I. Carter, for appellee.

In sum, the language of the policy exclusion in question clearly requires a showing of a causal connection between the event causing injury or death and the insured’s condition of being under the influence of alcohol before the exclusion is applicable. Even if the language is arguably ambiguous, when the language is construed to support the jury’s verdict and in favor of the insured, as we are required to do, we must affirm the trial court’s ruling. Accordingly, the trial judge correctly charged the jury that the insurer had the burden of showing a causal connection between the deceased’s blood alcohol level at the time of death and the accident resulting in his death and did not err in submitting a special interrogatory to the jury concerning causation.

I am authorized to state that Presiding Judge Carley and Judge Cooper join in this dissent.

       Although appellee erroneously relied on OCGA § 33-29-4 in pbsiting his argument to the court, he has, contrary to the majority’s contention, always maintained that a causation requirement should be a part of the exclusion in question.

       In my opinion the public policy of this state would require that a causal connection be shown between any exclusion from coverage and the event causing injury or death. Insurance companies properly should be able to exclude from coverage certain voluntary risks taken by the insured which increase the chance that the insurer will be exposed to liability. The insurance industry, however, is closely affected with the public welfare. For that reason, public policy requires that insurance contracts be interpreted in a practical, reasonable and fair manner, consistent with the understanding of the average man. To allow an insurance company to insert an exclusion from coverage and not require any correlation between the exclusion and the event causing injury or death smacks against notions of fairness and allows insurance companies to injustly avoid the obligation they assume to their insureds by accepting premiums from them.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1285, A91A1286.
    CORIM, INC. v. BELVIN et al.; and vice versa.
    (414 SE2d 491)
   Cooper, Judge.

At an auction on January 28, 1989, appellee Oscar Belvin (“Belvin”) purchased and took possession of a John Deere cotton picker for $35,000 by check drawn on the account of his daughter, Sherri Belvin. On February 7, 1989, Belvin borrowed $35,000 from appellee Crossroads Bank of Georgia (“Crossroads”), and the following day, a check for said amount was deposited into Sherri Belvin’s account with Crossroads. Crossroads then filed a financing statement on February 10, 1989, which described its security interest as “Purchase Money” and listed Belvin as debtor and the cotton picker as collateral. On December 29, 1989, appellant filed two garnishment actions against Belvin based on an April 21, 1986 judgment obtained against him in the amount of $26,603.79 plus interest and an April 29, 1986 writ of fieri facias. The first action named Crossroads as garnishee, and the latter named Miller-Godley Auction Co. (“Miller-Godley”) as garnishee. On December 30, 1989, at an auction held by MillerGodley, Belvin sold the cotton picker for $40,131.86. Miller-Godley paid $60,449.75 into the court’s registry, which sum represented proceeds from the sale of the cotton picker and other farm equipment owned by Belvin and his wife. Belvin and Crossroads traversed appellant’s affidavit, contending that some of the property sold at the auction was owned by Belvin’s wife and that the proceeds from the sale of the cotton picker were subject to Crossroads’ perfected purchase money security interest. The garnishments were combined into one action in superior court, and following discovery, appellant moved for summary judgment on the ground that its judgment lien was superior to Crossroads’ security interest. The motion was granted in part and denied in part, the trial court concluding that with regard to the proceeds from the cotton picker, Crossroads had the superior interest. We granted appellant’s petition for interlocutory appeal to consider the question of whether Crossroads had a purchase money security interest superior to appellant’s judgment lien. Belvin cross-appealed the trial court’s determination that appellant was entitled to proceeds from the sale of certain tractors which were secured by a financing statement in favor of the FHA.

Case No. A91A1285

1. Appellant contends that the loan to Belvin by Crossroads was not so closely allied with the purchase of the cotton picker so as to establish a purchase money security interest. OCGA § 11-9-107 (b) provides that “[a] security interest is a ‘purchase money security interest’ to the extent that it is . . . [t]aken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.” In defense of the motion for summary judgment, Crossroads submitted an affidavit by its president, W. D. Watson (“Watson”), who stated that several days before Belvin purchased the cotton picker the two agreed that Crossroads would finance the purchase of the machine in the event Belvin was the high bidder at the auction. Since the amount needed to purchase the cotton picker had not been determined, final arrangements could not be made until after the auction. Watson stated further that the arrangements made by Belvin prior to January 28, 1989, and the final loan on February 7, 1989 were all a part of the same transaction. The trial court concluded that because of the nature of the purchase, as an auction purchase and the fact that the purchase price would have to be determined by bidding, it was reasonable to finalize the terms of the loan after the purchase. Moreover, the loan enabled Belvin to purchase the cotton picker and although there were a number of days between the purchase and the finalization of the loan, the purchase and the loan were sufficiently “closely allied” to create a purchase money security interest in accordance with United States v. Hooks, 40 Bankr. 715, 721 (M.D. Ga. 1984). We agree. The evidence is uncontroverted that steps taken by Belvin and Crossroads before and after the auction were parts of “a single financing arrangement” which enabled Belvin to acquire rights in the cotton picker, and the loan was in fact used for that purpose in accordance with OCGA § 11-9-107 (b). Hooks, supra at 721. Thus, the trial court did not err in determining that Crossroads had a purchase money security interest in the cotton picker.

2. Appellant also argues that its judgment lien has priority over Crossroads’ purchase money security interest under OCGA § 11-9-310 (1) (d) and that the trial court erred in determining that because the financing statement was timely filed in accordance with OCGA § 11-9-301 (2), Crossroads’ security interest is superior to appellant’s lien. When read together, the two provisions allow purchase money secured lenders, perfected within 15 days of the debtor’s possession of the collateral, to take priority over lien creditors, including judgment lien creditors, whose rights arise during the period between attachment of the security interest and the time of filing. While the statutory definition of lien creditor comtemplates that its right would arise by virtue of “attachment, levy or the like” by the lien creditor (OCGA § 11-9-301 (3)), in Georgia, a prior perfected judgment lien floats and attaches to property acquired by the judgment debtor after rendition and docketing of the judgment. Kollock v. Jackson, 5 Ga. 153 (2) (1848); Cohutta Mills v. Hawthorne Indus., 179 Ga. App. 815 (2) (348 SE2d 91) (1986). On the other hand, a security interest attaches when “the debtor has signed a security agreement which contains a description of the collateral,” “[v]alue has been given” and “[t]he debtor has rights in the collateral.” OCGA § 11-9-203 (1). Inasmuch as the judgment lien attached on January 28, 1989, when Belvin acquired the cotton picker, and the security interest did not attach until February 8, 1989 and was filed on February 10, 1989, OCGA § 11-9-301 (2) is inapplicable. Furthermore, because Belvin acquired the property, at which time the judgment lien attached, before Crossroads secured attachment of its security interest, appellant’s judgment lien has priority over Crossroads’ purchase money security interest.

The trial court, citing Federal Land Bank of Columbia v. Bank of Lenox, 192 Ga. 543 (16 SE2d 9) (1941), concluded that a “longstanding practice in Georgia ... to prefer purchase money creditors as long as they timely perfect their interest” provided a basis for preferring Crossroads’ purchase money security interest over the judgment lien. In recognition of that preference, OCGA § 11-9-312 (4) provides: “A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral or its proceeds if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within 15 days thereafter.” (Emphasis supplied.) Crossroads’ financing statement was filed 13 days after Belvin took possession of the cotton picker; therefore, its purchase money security interest was perfected in accordance with OCGA § 11-9-312 (4). However, appellant’s judgment lien does not fall within the statutory definition of a “security interest,” which is “an interest in personal property or fixtures which secures payment or performance of an obligation.” OCGA § 11-1-201 (37). Moreover, the preference recognized by the court in Lenox was for purchase money mortgages or deeds to land over prior liens. Lenox, supra at 556. This special priority for purchase money security interests has been recognized in connection with the purchase of land (Aetna Cas. &c. Co. v. Valdosta Fed. &c. Assn., 175 Ga. App. 614 (4) (333 SE2d 849) (1985)); however, the sale of land is not governed by the Uniform Commercial Code (Newton v. Allen, 220 Ga. 681, 684 (141 SE2d 417) (1965)). The preference for purchase money security interests is reflected in the UCC in OCGA §§ 11-9-301 (2) and 11-9-312 (4), which we have determined are not applicable to the particular facts of this case. Based on the foregoing, we conclude that the court erred in determining that Crossroads’ security interest in the cotton picker was superior to appellant’s judgment lien and in denying partial summary judgment to appellant.

3. In its third enumeration of error, appellant contends that Crossroads’ consolidation and renewal of several loans to Belvin destroyed any possible purchase money interest. However, this issue was not raised before the trial court and cannot be considered on appeal. Venture Design, Ltd. v. Original Appalachian Artworks, 197 Ga. App. 432 (3) (398 SE2d 781) (1990).

Case No. A91A1286

In this cross-appeal, Belvin appeals the trial court’s grant of partial summary judgment to Corim, Inc. (“Corim”) and its award to Corim of the remaining proceeds from the sale of two tractors in the Miller-Godley auction on December 30, 1989. Belvin contends that the tractors were subject to a March 4, 1986 lien held by McCranie Motor and Tractor, Inc., and a March 23, 1982 lien held by FHA. The property was auctioned for the sum of $22,750.00, $6,111.11 of which was disbursed to Belvin and McCranie Motor and Tractor, and the balance was paid into the court’s registry. The trial court determined that the proceeds from the sale of the tractors were subject to FHA’s security interest because FHA’s interest was prior to Corim’s fi fa. However, the court went on to find that because FHA did not respond to the suit despite having been notified of the liquidation of the collateral and because FHA did not assert a claim to the proceeds, the court assumed that FHA settled with Belvin on the tractors, and Corim therefore was entitled to the proceeds. However, the trial court’s conclusion on this issue is not supported by the record.

At the outset we note that FHA was not a party to this proceeding (OCGA § 18-4-95), and the record reveals that the only document served on FHA was Corim’s request for production of documents. Nowhere in that request does it state the nature of the case (i.e., liquidation of collateral in which FHA had an interest); it only requests documents reflecting a security interest of FHA in any farm equipment owned by Belvin. “ ‘In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. (Cits.)’ [Cit.]” 944, Inc. v. Ga. State Bank, 198 Ga. App. 893, 894 (1) (403 SE2d 466) (1991). The record contains a financing statement filed on March 23, 1982 in Macon County, which lists Belvin as debtor, FHA as secured party and the tractors at issue as collateral. A continuation of this financing statement was filed in Macon County on March 4, 1987. The trial court recognized that FHA’s perfected interest was superior to Corim’s, and there is no evidence in the record demonstrating satisfaction of this debt. Construing the evidence in the proper light, we see no basis for a deviation from the well established rule that the creditor with the older judgment takes priority over the junior creditor in the distribution of garnishment funds. C & S Nat. Bank v. Wray, 144 Ga. App. 769 (242 SE2d 365) (1978). Accordingly, the trial court erred in granting summary judgment to Corim as to the proceeds from the sale of the tractors.

Judgments reversed.

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

Decided November 18, 1991

Reconsideration denied December 20, 1991

Geiger & Pierce, James N. Geiger, for appellant.

Byrd & Anthony, Garland T. Byrd, Walker, Hulbert, Gray & Byrd, David G. Walker, James C. Marshall, for appellees.

Martin, Snow, Grant & Napier, Edward J. Harrell, amicus curiae.

       It is apparent that in adopting the definition of “lien creditor” from the “Official Text” of the Uniform Commercial Code, the Georgia legislature did not contemplate the potential priority problems, not present in the instant case, which could arise as a result of Georgia’s recognition of floating judgment liens. See 39 Mercer L. Rev. 83, 102-104 (1987).


author: McMurray, Presiding Judge.

text:
    A90A1877.
    GILSTRAP v. THE STATE.
    Decided January 6, 1992.

      Cook & Palmour, Bobby Lee Cook, Robert E. Andrews, Alan J. Baverman, for apellant.
    C. Andrew Fuller, District Attorney, Lee Darragh, Leonard C. Parks, Jr., Assistant District Attorneys, for appellee.
    (414 SE2d 747)
   McMurray, Presiding Judge.

Our prior judgment in Gilstrap v. State, 199 Ga. App. 223 (404 SE2d 629), wherein this Court affirmed the trial court, having been reversed by the Supreme Court of Georgia in Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) our judgment in this case is vacated and the judgment of the trial court is reversed.

Judgment reversed.

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


author: Judge Arnold Shulman.

text:
    A91A1468.
    DINKINS v. THE STATE.
    (414 SE2d 545)
   Judge Arnold Shulman.

The appellant was convicted of armed robbery based on evidence that he and an armed accomplice, Cecil Johnson, Jr., had entered a grocery store in Thomson, Georgia, and had robbed the bookkeeper and a cashier. Johnson testified against the appellant at trial. Held:

Decided January 6, 1992.

Jimmy D. Plunkett, for appellant.

1. The appellant contends that the trial court erred in admitting into evidence a handwritten note which he (the appellant) had given to Johnson while in jail. The appellant objected to this evidence on several grounds at trial; however, on appeal he contends only that its introduction violated his pretrial right under OCGA § 17-7-210 (a) to a copy of “any statement given by him while in police custody.”

This enumeration of error is without merit for at least two reasons. First, the transcript reveals that the state’s attorney did not obtain the note from Johnson until 15 minutes before it was introduced into evidence. Second, “for statements to be discoverable under § 17-7-210, the request must specifically refer to the code section or make it clear that the statements must be furnished ten days prior to trial.” Satterfield v. State, 256 Ga. 593, 598 (351 SE2d 625) (1987). The appellant’s pretrial “motion for discovery” did neither but was simply a general request for discovery directed to any and all evidence in the possession or control of the state which might be favorable to him or which might “in any manner aid [him] in the ascertainment of the truth and in the preparation of his defense.”

2. The appellant contends that the trial court erred in permitting the state to introduce into evidence the photographic display from which the cashier had identified him prior to trial, over his objection that these photographs had not been provided to him prior to trial in accordance with his discovery motion. This enumeration of error is also without merit. There is no general right to discovery in a criminal case. Pruitt v. State, 258 Ga. 583, 585 (373 SE2d 192) (1988). Even if this evidence had been exculpatory of the appellant, which it clearly was not, its admission would not have resulted in a violation of his rights under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) since Brady does not require pretrial disclosure of such materials. See Glenn v. State, 255 Ga. 533, 534 (2) (340 SE2d 609) (1986). While the appellant argues that disclosure of such evidence may be compelled by a pretrial notice to produce filed pursuant to OCGA § 24-10-26, he filed no such notice in this case; and it has been held, in any event, that a notice to produce cannot be used by a criminal defendant to secure review of the district attorney’s file in advance of a trial or evidentiary hearing. See Gilstrap v. State, 256 Ga. 20 (2), 21 (342 SE2d 667) (1986).

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.

Dennis C. Sanders, District Attorney, for appellee.


author: Beasley, Judge.

text:
    A91A1474.
    SPEIR v. NICHOLSON et al.
    (414 SE2d 533)
   Beasley, Judge.

Elzie Speir, Sr., brought suit against Thomas and Carol Nicholson and three other defendants for nonpayment of promissory notes given in connection with the purchase of certain assets of his insurance company. Related cases are Speir v. Nicholson, 193 Ga. App. 444 (388 SE2d 42) (1989), and Speir v. Nicholson, 198 Ga. App. 383 (401 SE2d 588) (1991). He appeals the judgment in favor of defendants following the grant of their motion for directed verdict.

On May 13, 1982, Carol Nicholson and the three other defendants, as purchasers, and Speir Insurance Agency, Inc., as seller, entered into a “CONTRACT AND AGREEMENT” (the May 13 contract) to purchase “the listed property insurance expirations and casualty insurance expirations, as well as supporting documents incidental to said business located at” Speir Agency’s Douglasville and Dallas offices. (An expirations list names the insurance policyholders of an insurer in chronological order based upon the expiration dates of the policies within the insurer’s book of business, so that the insurer may contact the insured prior to that date and request that the policy be renewed for a stated premium.)

A “mutual covenant not to compete” was agreed upon, stating: “It is agreed that for [a period ending 48 months from May 13, 1982] by the parties signed as Purchasers there will be no solicitation of the customers or policyholders of SPEIR INSURANCE AGENCY, INC. directly or indirectly. . . .” The contract was made binding upon the parties and “their respective successors, assigns, executors, and administrators.”

The total contract price was $215,607.58: $500 for good will, $109,107.58 for the covenant not to compete, $6,000 for the furniture and fixtures, and $100,000 for the listed expirations.

The cash consideration for the sale was $15,000 at closing and the balance of $200,607.58 payable according to notes listed in an addendum. The addendum provided that the balance was to be paid under a “MONTHLY INSTALLMENT NOTE” in the amount of $200,607.58 with the purchasers assuming liability for: (1) one $20,432.44 note payable by Speir Agency to Jerry Taylor (who is not a party); and (2) four notes totaling $86,333.19 payable by the Speir Agency to Elzie Speir and payable to Elzie Speir by the purchasers in monthly installments of $2,522.38. Under the MONTHLY INSTALLMENT NOTE, the remaining $93,841.98 was to be paid to Speir Agency in monthly installments of $1,552.67.

Less than two weeks after the parties entered into the May 13 contract, Speir Agency filed a voluntary petition for reorganization under Chapter 11 of the federal Bankruptcy Code.

On July 23 the trustee in bankruptcy sold the insurance expirations of Speir Agency’s Douglasville and Dallas accounts to another insurance agency under a document referred to as the Hamby Purchase Agreement. The trustee drafted a letter for Hamby to deliver to insurance agencies advising them that the trustee had appointed Hamby as the trustee’s representative authorized to deal directly with all carriers and others in transacting any business with respect to policies formerly written through Speir Agency, including “all expirations and renewal rights, new or additional amounts or types of insurance coverage, and all commissions resulting from such coverage or renewal thereof.”

Thomas Nicholson testified that, as a result of that letter, he was informed by insurance companies that they could not enter into agreements with his agency because the bankruptcy court had awarded Speir Agency’s book of business to Hamby. One insurance company cancelled a contract, stating that it “couldn’t serve two masters.” Policyholders in Douglasville and Dallas informed Nicholson that they had received renewal notices from Hamby and sent in their premiums.

The purchasers paid Speir in May, June, and July of 1982 but ceased after the expirations lists were sold to Hamby. Speir sued for nonpayment of certain of the notes payable under the May 13 contract.

1. Speir sues as a third-party beneficiary and assignee of express or implied agreements between the defendants and Speir Agency. As such, his rights are no greater than those of the promisee. Deal v. Chemical Constr. Co., 99 Ga. App. 413, 417 (1) (108 SE2d 746) (1959) (third-party beneficiary) Lankford v. Holton, 78 Ga. App. 632, 634 (51 SE2d 687) (1949) (assignee).

After Speir Agency filed its bankruptcy petition, the trustee in bankruptcy succeeded to all causes of action held by the debtor, including actions arising under contracts. 11 USC § 541 (a) (1); Miller v. Shallowford Community Hosp., 767 F2d 1556, 1559 (1) (11th Cir. 1985). The trustee had the right to assume or reject executory contracts, subject to the bankruptcy court’s approval. 11 USC §§ 365 (a); 502 (g). Parties to rejected executory contracts had a claim against the estate. 11 USC § 502 (g).

The record shows that the trustee in bankruptcy, with the court’s approval, sold the expirations lists for Speir’s Douglasville and Dallas offices to Hamby without exclusion. The trustee thus repudiated the contract to the extent that it was executory, thereby discharging the purchasers from further performance. See OCGA § 13-4-22; Whitley Constr. Co. v. Virginia Supply & Well Co., 99 Ga. App. 419 (1) (108 SE2d 819) (1959).

Speir advances several arguments as to why it was error to grant defendants’ motion for directed verdict.

(a) The first argument is that the evidence established that Speir Agency in fact gave the expirations lists to the purchasers. Speir relies upon plaintiff’s Exhibit 2, which is a receipt in the handwriting of Carol Nicholson stating: “Received from Tommy Speir Expirations through 1989 Carol Nicholson Dallas & Douglasville.”

Carol and Thomas Nicholson testified as follows: Although the above receipt was in Carol’s handwriting, she did not remember writing it. In any event, they did not in fact receive the expirations lists, and they could not have received such lists through 1989 since none of the insurance policies in their book of business was for terms in excess of three years. The expirations lists were maintained on the computer located in Speir Agency’s central office in Forest Park. They would have received computer printouts of insurance policy ex-pirations from the central office within 30 to 45 days prior to expiration. Having closed the purchase in May of 1982, they would have received the June expirations.

They did receive several boxes of microfiche containing information on the Douglasville and Dallas office accounts. However, it was difficult to get information concerning insurance policy expirations from the microfiche, since it was not very legible and listed thousands of active and inactive insurance accounts in alphabetical order rather than in chronological order based on the policy expiration dates. Although they did contact some customers through use of the microfiche and solicitations, the few customers they retained were either personal friends or policyholders of the company when it was Nicholson Insurance Agency.

Viewed in its entirety, the evidence established without conflict that the defendants did not receive the expirations lists for which they had bargained.

(b) The next argument is that the parties’ contract contained no prohibition against the sale of the expirations lists to another party. Sale of the lists to another party violated the covenant not to compete and thus was antagonistic to the reasonable contemplation of the parties.

In addition, the trustee in bankruptcy did more than deliver the expirations lists to Hamby. He appointed Hamby, in effect, as the trustee’s exclusive agent in Douglasville and Dallas, clearly departing from the parties’ contract.

(c) The third argument is that since the expirations lists were not attached to those copies of the May 13 contract and the Hamby Purchase Agreement which were admitted in evidence, there is no positive proof that the expirations actually sold to Hamby were the same as the expirations sold to the purchasers.

The expirations lists were not attached to the May 13 contract because the defendants were never given the lists. Although the expirations lists were supposed to have been contained in an exhibit to the Hamby Purchase Agreement, the parties agreed not to do this because the lists were too voluminous and the parties did not want to make them matters of public record.

The May 13 contract and the Hamby Purchase Agreement establish without conflict that the expirations which Speir Agency was contractually obligated to sell to the defendants were the same as those which the trustee, with the approval of the bankruptcy court, was contractually obligated to sell to Hamby.

2. By showing that the purchasers had executed the note and that it was past due and in default, Speir established a prima facie right to judgment, casting on the purchasers the burden of pleading and establishing an affirmative defense to plaintiff’s claim. Citizens Bank, Douglasuille v. Wix, 154 Ga. App. 249 (267 SE2d 856) (1980). Failure of consideration and breach of contract were the defenses. Proof of total or partial failure of consideration entitles defendant to an abatement of purchase price to the extent that the consideration may have failed. Coast Scopitone v. Self, 127 Ga. App. 124, 126 (1) (192 SE2d 513) (1972). See OCGA _§ 9-11-8 (c).

For various reasons, Speir maintains that the defendants’ real grievance is that the expirations lists were not worth what they paid for them, and that “[m]ere inadequacy of consideration alone will not void a contract. . . .” OCGA § 13-3-46. He argues that, at most, there was only a partial failure of consideration, since the purchasers do not deny that they received the good will, furniture, and fixtures cumulatively valued at $6,500 under the parties’ contract, and that he has not recouped these sums.

The purchasers paid $15,000 in cash at closing and three monthly installments to Speir totaling $7,567.14, thereby paying more than $6,500 to both Speir Insurance Agency and Speir. Thus, the consideration the purchasers gave exceeded that which they received and there was a total failure of the consideration due them. “Where it is apparent, from the uncontradicted evidence, that there is a total failure of consideration as to the contract sued on, it is not error to direct a verdict in favor of the defendant.” Reynolds v. Nevin, 1 Ga. App. 269 (57 SE 918) (1907). The remaining provisions of the contract clearly are not severable from the provision concerning the sale of the expirations lists. See Williams v. Claussen-Lawrence Constr. Co., 120 Ga. App. 190 (169 SE2d 692) (1969).

Under the criteria in OCGA § 9-11-50 (a), the trial court did not err in granting a directed verdict, in that “there [was] no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom” demanded a verdict in defendants’ favor.

Decided January 6, 1992.

Bannister & Black, Charles C. Black, for appellant.

Swift, Currie, McGhee & Hiers, James W. Dilz, Jane C. Barwick, for appellees.

3. The remaining enumerations and arguments need not be addressed.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A1541.
    McDANIEL v. THE STATE.
    (414 SE2d 536)
   Beasley, Judge.

Appellant was convicted of criminal contempt in the superior court for allegedly making a statement of a threatening and intimidating nature to a juror.

On the morning of the incident, appellant was present at the court as a subpoenaed witness in her sister’s divorce trial. The jury reached its verdict just prior to the lunch hour, at which time all participants in the trial were excused. The incident giving rise to appellant’s conviction occurred as she was leaving the courthouse when two courthouse employees apparently overheard her making a statement to an elderly woman who had served as a juror in the divorce trial, and they apparently reported their observations.

As a result, appellant was summoned back to the courthouse where she was interrogated by a police detective to whom she gave a statement explaining her conduct with respect to the incident in question. The evidence is in dispute as to whether appellant had received Miranda warnings and had executed a waiver of counsel prior to making a statement. The detective testified at the contempt hearing that she had; however, no such document appears in the record, and in her brief on appeal appellant denies that Miranda warnings had been administered. The court made no finding of fact in this regard.

At the conclusion of that interview, appellant was brought before the judge who had presided at the divorce trial. The judge informed her that she had been accused of making “verbal and insulting comments to a juror . . . and also physically assaulting] that juror,” and that such conduct constituted direct criminal contempt authorizing an immediate hearing at which the district attorney would present the evidence against her. When appellant inquired, “Does this mean that I can’t have an attorney here,” the court responded, “You are not entitled to a lawyer in a case like this, I’ll be very blunt with you.” As the proceedings commenced, the court qualified that response by stating, “if you want to hire a lawyer or have a lawyer with you right now, that’s fine, but I’m not going to delay the hearing for that purpose.” The summary proceeding was commenced immediately, without a defense counsel.

The evidence adduced is as follows. After the divorce trial had concluded, appellant left the courthouse with her arm around her sister’s daughter who was upset and crying concerning the divorce of her parents. At about the same time, a woman who had served as a juror in the divorce trial was also leaving the building. The testimony is in dispute as to what occurred next. Appellant contends that as she and her niece were exiting the building, the child was expressing fear that she would be unable to attend college because of the divorce of her parents. In an effort to console the child, appellant promised that she would help her attend college and further stated that, “we’ll have to sleep on it tonight.” At about the same time, appellant observed the female juror who appeared to be “laughing and snickering” at them. Appellant admitted that she was upset and said to the juror, “we’ll all have to sleep on it tonight.” Appellant’s version of the events was confirmed by the testimony of her niece as well as by the detective who had taken a statement from appellant shortly after the alleged incident had taken place, which statement was entirely consistent with her testimony at the hearing.

The juror’s testimony at the contempt hearing was self-contradictory. She initially stated that as she was leaving the courthouse to join her husband who was waiting for her across the street, she was pushed, causing her arm to hit the ground. When asked whether anything was said to her at that time, she responded: “No, I don’t think so.” The prosecutor again asked whether anything unpleasant had been said to her (without specifying who may have been speaking). She responded, “I know it was something unpleasant, but I mean, I didn’t hear them. I think its because I have just been so shook up.” In attempting to have the witness identify the alleged perpetrator, the district attorney inquired: “Well, let me ask you to look around the courtroom here, do you see . . . the . . . [woman] that said this stuff to you and pushed you here today — well, let me just ask you, this lady over here in the green T-shirt?” The juror responded, “I was thinking that it is her. . . . But I’m not sure, I mean, I think it was.” The district attorney then inquired, “Do you remember something being said about sleeping with Mr. Howard? (Referring to appellant’s brother-in-law.) Do you remember any remark like that,” to which the juror responded, “No, not at all.” She then testified that she was not on the courthouse steps at all when she was allegedly pushed, but was “around the corner.” When appellant attempted to cross-examine the witness, admitting “I don’t know what questions to ask,” she was interrupted by the court and admonished to ask questions and not to testify.

The district attorney then offered the testimony of the two court personnel who said they witnessed the incident. The first witness stated that she had seen “this lady” (presumably the appellant) and “heard her say something like you will just have to sleep with him tonight” or “something like that,” which comment was directed toward the juror. The second witness testified that she overheard a lady say to the juror, “you go home and sleep with him tonight or some-' thing like that.” The district attorney concluded with the following inquiry, “Now the lady that made the comment well, you go home and sleep with him tonight or whatever that was, is this her?” The witness replied, “Yes, that’s her.”

At the conclusion of the hearing, the trial court adjudged appellant to be in criminal contempt of court in that she had interfered with the administration of justice by directing derogatory statements to a juror. It found insufficient evidence of assault. She was sentenced to five days in confinement, fined $250 and removed from the courtroom in the custody of a deputy sheriff. On the following day, an application for supersedeas of the judgment was filed and was granted pending this appeal.

Appellant posits seven enumerations of error, but we reach only one of them because it is dispositive.

1. The judgment of contempt must be set aside because appellant was deprived of the basic due process components of reasonable notice of the charges against her and a meaningful opportunity to respond to them, as guaranteed by the first right listed in the State Constitution. 1983 Ga. Const., Art. I, Sec. I, Par. I.

The law of contempt in this State has had a stormy history. See Stephenson, The Appellate Judiciary of Georgia and Contempt Out of Court, 2 Ga. L. Rev. 341 (1968). As chronicled in that article, its scope and even its source have been subject to shifts of opinion in the appellate courts. The latest pronouncement in this regard is in Crudup v. State, 218 Ga. 819, 820 (130 SE2d 733) (1963), cert. den. 375 U. S. 829 (84 SC 74, 11 LE2d 61):

“ ‘The power to punish contempts is inherent in every court of record.’ [Cits.] There is no question that every court has the power to preserve and enforce order in its immediate presence, and as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings; that this includes the power to compel obedience to its judgments, order and processes, and to control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto. Code § 24-104 [predecessor to OCGA § 15-1-3]. See also Code § 24-105 [predecessor to OCGA § 15-1-4]. Further, no attorney shall ever attempt to argue or explain a case, after having been fully heard, and the opinion of the court has been pronounced, on pain of being considered in contempt. Code Ann. § 24-3323 (formerly Code § 24-3306) [former Rules of the Superior Courts, Rule 23].”

Under the current constitution, this “inherent” power emanates from the authority conferred in Art. VI, Sec. I, Par. IV: “Each court may exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments. . . .” This power is not unlimited, however. For one thing, its exercise must be compatible with the constitutional guaranties of free speech and liberty of the press. McGill v. State, 209 Ga. 500, 502 (74 SE2d 78) (1953); Atlanta Newspapers v. State, 216 Ga. 399 (116 SE2d 580) (1960).

In addition, the power is balanced to some degree by that of the legislature, for the constitution provides in addition that “[t]he power of the courts to punish for contempt shall be limited by legislative acts.” 1983 Const., Art. I, Sec. II, Par. IV. One of those, as alluded to in Crudup, is OCGA § 15-1-4, which lists the types of cases in which the courts may punish for contempt. The one invoked by the superior court in this case is subsection (a) (1): “Misbehavior of any person or persons in the presence of such courts or so near thereto as to obstruct the administration of justice. ...”

The statute includes such misbehavior as being subject to “summary punishment,” but that must yield to the fundamental constitutional right to due process of law. Where the misbehavior is not in the immediate presence of the court, so that it may “ ‘act on its own knowledge of the facts,’ ” summary punishment is not authorized. Moody v. State, 131 Ga. App. 355, 359 (2) (206 SE2d 79) (1974). As recognized in the Code of Judicial Conduct, Canon 3 (A) (2), “Judges should maintain order and decorum in proceedings before them.” But it also provides, in subsection (4): “Judges should accord to every person who is legally interested in a proceeding, or his or her lawyer, full right to be heard according to law. . . .” As stated in Moody, “With this exception [articulated above], . . . due process demands that the contemnor be cited, given notice, and allowed an opportunity to defend or excuse himself.” Id. at 359. Accord Martin v. Waters, 151 Ga. App. 149, 150 (2) (259 SE2d 153) (1979); see also Maples v. Seeliger, 165 Ga. App. 201 (299 SE2d 906) (1983); Taylor v. Hayes, 418 U. S. 488, 497 (94 SC 2697, 41 LE2d 897) (1974).

The alleged objectionable remark at issue here was not uttered in the presence of the court, but was made outside the courthouse after the proceedings had been concluded. As in the federal constitutional case of Taylor v. Hayes, supra, there was no necessity for the imposition of summary punishment “ ‘to preserve order and enable (the court) to proceed with its business.’ [Cit.]” Id. at 498. Although appellant, who was obviously unsophisticated in the operation of the criminal justice system, was verbally informed of the charge against her and afforded an opportunity instanter to explain her conduct, she was denied any meaningful opportunity to respond to the charges. See also in this regard Code of Judicial Conduct, Canon 3 (a) (4).

Instead, she was compelled to proceed pro se, in violation of her right to counsel (Ga. Const., Art. I, Sec. I, Par. XIV), while the prosecution, in violation of the rules of evidence, which there was no reason to believe the accused knew, was permitted to build a case against her utilizing inconclusive non-probative hearsay and her own somewhat self-incriminating statements. Such a procedure offends the basic notions of fairness and is not “due process.” See, e.g., Taylor, supra at 498-500. “Contempt is a drastic remedy which ‘ought not to deprive one of his liberty unless it rests upon a firm and proper basis.’ [Cits.]” Martin, supra at 150 (2). Because appellant was denied minimum requirements of due process, her conviction must be set aside.

2. It is unnecessary to reach the merits of the sufficiency of the evidence to sustain the conviction of criminal contempt, i.e., “ ‘ “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Emphasis omitted.) In re Bryant, 188 Ga. App. 383, 384 (2) (373 SE2d 74) (1988). See also Garland v. State, 253 Ga. 789, 790 (1) (325 SE2d 131) (1985); In re Crane, 253 Ga. 667, 669 (2) (324 SE2d 443) (1985). Whether the same facts would be found as set forth in the superior court’s order is unknown. Whether those facts as are found could be held to constitute “ [misbehavior ... as to obstruct the administration of justice” so that it is subject to contempt punishment is problematic. See McGill, supra at 504 (“there must be a ‘clear and present danger to the administration of justice’ ”). See also Crudup, supra at 837 (2), and cases cited therein. “The test applied to determine whether a statement is contemptuous is whether there is a clear and present danger to orderly administration of justice,” pronounced the Supreme Court of Georgia in Garland, supra at 790 (2), and referring to the federal constitutional case of Wood v. Georgia, 370 U. S. 375 (82 SC 1364, 8 LE2d 569) (1962). It went on to quote from another federal constitutional case, Bridges v. California, 314 U. S. 252, 273 (62 SC 190, 86 LE 192) (1941): “ ‘(N)either “inherent tendency” nor “reasonable tendency” is enough to justify a restriction of free expression.’ ” Thus, in considering appellant’s behavior, whatever it was, the court must consider that “[t]he identification of a statement as constituting clear and present danger to the orderly administration of justice can be made only after taking into account the setting in which the statement is made.” Garland, supra at 790-791. Compare Morgan v. State, 26 Ga. App. 83 (105 SE 449) (1920).

Decided January 6, 1992.

Gleason, Davis & Dunn, John W. Davis, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.

3. Appellant’s remaining enumerations of error are rendered moot.

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Judge Arnold Shulman. Beasley, Judge,

text:
    A91A1562.
    MILLER v. THE STATE.
    (414 SE2d 326)
   Judge Arnold Shulman.

The appellant was found guilty of driving under the influence and operating a motor vehicle after having been declared an habitual violator. However, the trial judge granted him a new trial on the DUI conviction, based upon a determination that the jury had erroneously been instructed that the appellant “could be convicted of DUI for merely operating a non-moving vehicle.” Thus, the present appeal concerns only the habitual violator conviction.

At approximately 5:00 a.m. on June 25, 1989, the appellant was discovered in the driver’s seat of a motor vehicle which was stopped in the roadway with its engine running, its transmission in gear, and its lights on. The appellant was asleep in the car at the time, with his foot on the brake pedal. The only contested issue at trial was whether he had been driving the vehicle. (His testimony was that the automobile had “cut off” while his wife was driving it, and he had been called to the scene to try to fix it.) The appellant contends on appeal that the trial court erred in instructing the jury that the term “operate” as used in OCGA § 40-5-58 (c) — the Code section setting forth the offense of operating a motor vehicle after having been declared an habitual violator — “does not necessarily mean drive, although it can include drive.”

The instruction was correct. OCGA § 40-5-58 (c) specifies, in pertinent part, that “it shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his driver’s license has been revoked [due to his having been declared an habitual violator], if such person has not thereafter obtained a valid driver’s license.” (Emphasis supplied.) The word “operate” is not defined by the statute; however, the word “operator” is defined by OCGA § 40-1-1 (38) to mean “any person who drives or is in actual physical control of a motor vehicle.” (Emphasis supplied.)

In construing an earlier version of the DUI statute making it a criminal offense “for any person who is under the influence of intoxicating liquor to operate or drive any vehicle,” (Ga. L. 1953, Nov. Sess., pp. 556, 575; former Code Ann. § 68-1625 (a)), this court held that “one who is sitting under the steering wheel of a car located on a public highway with the motor running, who is in physical control of the vehicle, and who engages the lights of the vehicle, is operating the vehicle within the meaning of the [statute].” Flournoy v. State, 106 Ga. App. 756, 759 (128 SE2d 528) (1962). This former proscription against merely operating a vehicle while under the influence of intoxicating liquor was replaced in 1974 by the present statutory language making it unlawful to drive or to be “in actual physical control of any moving vehicle” while under the influence of alcohol or drugs. Ga. L, 1974, pp. 633, 693 (now codified as OCGA § 40-6-391 (a)). (Emphasis supplied.) See Carr v. State, 169 Ga. App. 679 (2) (314 SE2d 694) (1984). However, the habitual violator statute under which the appellant was convicted contains no such requirement but, as previously indicated, specifies simply that “it shall be unlawful for any person to operate any motor vehicle in this state” after his driver’s license has been revoked under the provisions of the habitual violator statute.

The appellant complains that a literal interpretation of this statutory language “would lead to the conclusion that anyone declared an habitual violator could never be an auto mechanic.” However, we are not called upon in the present case to address this hypothetical question, inasmuch as the vehicle at issue here was unquestionably located on a public roadway at the time of the appellant’s arrest. The evidence, construed in the light most favorable to the verdict, was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of operating a motor vehicle after having been declared an habitual violator. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The confusion illustrated by this case and other motor vehicle cases which have preceded it comes primarily from the legal definition and, hence, common usage of the terms “driver” and “driver’s license.” The law defines “driver” as “every person who drives or is in actual physical control of a vehicle.” OCGA § 40-1-1 (14). Compatibly, it designates “driver’s license” as “any license to operate a motor vehicle issued under the laws of this state.” OCGA § 40-1-1 (15). Reading the two together, to “operate” thus means “to drive” or “to be in actual physical control.” This comports with the statutory definition of “operator,” as quoted in the majority opinion. The terms “driver” and “operator” are identically defined.

Decided January 6, 1992.

Elizabeth Markowitz, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Herman L. Sloan, Carl P. Greenberg, Assistant District Attorneys, for appellee.

A “driver’s” license is needed in Georgia, by the law’s definition, not only to drive; it is needed more broadly to operate, which includes not only driving but also being in actual physical control short of driving. It is misleading to think of it merely as a “driver’s license,” as it is in reality an operator’s license.

So when OCGA § 40-5-58 (c) pronounces it unlawful for a person “to operate” a motor vehicle after notice from the Department of Public Safety of revocation of his or her “driver’s” license, that person is charged with understanding that he or she may neither drive nor be in actual physical control of a motor vehicle.


text:
    A91A1603.
    BAGLEY v. THE STATE.
    (414 SE2d 547)
   Judge Arnold Shulman.

In this appeal from the denial of his motion for new trial following his conviction of burglary, the appellant’s sole contention is that the evidence was insufficient to support the jury’s verdict.

The state’s evidence established without dispute that a burglary occurred, that 29 compact discs, a pillow case, and a pistol were taken during the burglary, and that the appellant pawned the 29 compact discs for $75 at a pawn shop that same day. The owner of the burglarized premises testified that the appellant had been to his home approximately a week prior to the burglary “to see about buying some chickens.” The appellant testified that as he was walking towards a nearby highway on the day of the burglary, he came across an automobile occupied by two white males which was stopped on the side of the road with its hood up. He stated that these men sold him the compact discs for $40, following which he hitchhiked into town and pawned them for $75. He further testified that the discs were in a vinyl or leather carrying case when the men originally showed them to him but that they removed them from this case and placed them inside a pillow case before transferring them to him.

Decided January 6, 1992.

William J. Robinson, Jr., for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

“To convict a defendant of burglary based upon recent possession of stolen goods, it must be shown that the goods were stolen in a burglary and there must be an absence of or an unsatisfactory explanation of that possession. [Cit.] Whether the defendant’s explanation of the possession was a satisfactory explanation is a question for the jury. [Cits.]” Bankston v. State, 159 Ga. App. 342, 343-344 (4) (283 SE2d 319) (1981). We hold that the evidence in this case, construed in favor of the verdict, was sufficient to enable a rational trier of fact to reject the appellant’s explanation for his possession of the discs and to find him guilty of burglary beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1655.
    GADSON v. THE STATE.
    (414 SE2d 332)
   Judge Arnold Shulman.

The appellant was convicted of armed robbery and sentenced to life imprisonment as a recidivist based on evidence that he had been convicted of four prior felonies. At the sentencing hearing, he objected to the admission of evidence of these prior convictions on the ground that they were based on guilty pleas which were not shown to have been freely and voluntarily made.. In a prior appearance of the case before this court, we affirmed the appellant’s armed robbery conviction but reversed the sentence and remanded the case for a hearing on this issue. Gadson v. State, 197 Ga. App. 315, 318 (398 SE2d 409) (1990). At that hearing, the state introduced certified copies of the transcripts of the plea proceedings in question; and based on this evidence, the court determined that each of the pleas constituted a knowing and voluntary waiver by the appellant of his right to trial. The appellant was accordingly resentenced to life imprisonment as a recidivist, see generally OCGA § 17-10-7; and the case is now before us again on appeal from that sentence.

The appellant contends that the admission of the transcripts of the prior guilty plea proceedings violated his due process rights because it effectively “granted the state a two-year continuance so that it could prove its case.” However, the use of such extrinsic evidence was clearly within the contemplation of our remand order, since without it there would have been no way for the state to prove that the appellant was cognizant of his rights in those cases, and of the possible consequences of his pleas. See generally Pope v. State, 256 Ga. 195 (17) (345 SE2d 831) (1986); Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989); Bacon v. State, 201 Ga. App. 641 (411 SE2d 785) (1991). As the evidence in question clearly supports the trial court’s determination that the pleas were intelligently and voluntarily entered, we hold that the appellant was properly resentenced to life imprisonment as a recidivist pursuant to OCGA § 17-10-7 (b). See generally Anderson v. State, 199 Ga. App. 559 (3) (405 SE2d 558) (1991).

Decided January 6, 1992.

Charles C. Grile, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.