text:
    77151.
    SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. GODDARD et al.
    (378 SE2d 130)
   Birdsong, Judge.

Southern Guaranty Insurance Company brings this appeal from the grant of summary judgment to Brenda and Raymond Goddard, and the denial of their motion for summary judgment. On September 13, 1985, Brenda Goddard made an initial application for automobile insurance with appellant. She spoke with an employee who typed in her answers to questions on the application form. She stated that she did not decide what coverages she would get. She does not know what “PIP” means, and does not recall whether the employee discussed “no-fault” with her at that time. Ms. Goddard claims that the employee did not “explain any coverage at all. . . .” She identified a signature on the back of the application as hers. When asked if she had read and signed each of the signature lines on the back of the application she replied: “I can’t say that I just went over it, you know, thoroughly because the X’s were there and I signed them.” Ms. Goddard .stated that she did not enter the check marks on the application and they were there before she signed. The clerk just told her to “sign here by the X.” She identified the signature appearing by “X” rejecting all coverages not accepted in the coverage section on the front page. However, she said she did not read this portion of the application. “I don’t think I understood that or, you know, the X’s were there and she said to sign here and that’s where the X’s were and that’s exactly what I did ... I was doing it in faith, good faith, you know.”

Ms. Goddard was involved in an automobile collision on November 26, 1985. As a result of that incident she suffered medical injury and lost wages in excess of $5,000. Southern Guaranty paid her $5,000 in basic PIP benefits. Ms. Goddard’s attorney contacted Southern Guaranty and advised them of his client’s election to have optional PIP coverage in the amount of $50,000. Southern Guaranty refused to honor the request and this action followed. Both parties moved for summary judgment. The trial court granted appellees’ motion and denied appellant’s motion, and this appeal followed. Held:

1. Appellees have filed a motion to dismiss the appeal, arguing that the notice was not timely filed. The judgment of the trial court is dated December 8, 1987, but was not filed until December 10, 1987. A notice of appeal is required to be filed “within 30 days after entry [December 10] of the appealable decision or judgment complained of. . . .” (Emphasis supplied.) OCGA § 5-6-38 (a). In computing time for filing a notice, we disregard the date of filing and count the last day. OCGA § 9-11-6 (a). Since the judgment was filed on December 10, 21 days elapsed in December and the 30th day was January 9, 1988, a Saturday. By statute, when the last day falls on a Saturday, the next business day, Monday, January 11, 1988, is the final day for filing. Id. The notice of appeal was timely filed on January 11 and the motion to dismiss is denied.

2. Both parties moved for summary judgment, in essence agreeing that the action was ripe for decision and no issue of material fact existed as a matter of law. Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700 (3) (347 SE2d 688); Management Search v. Avon Prods., 166 Ga. App. 262 (1) (304 SE2d 426). Appellees prayed for damages in the amount of $9,034.14 plus $190.40 per week for as long as Ms. Goddard remained disabled, and for the full “statutory penalty,” attorney fees and punitive damages. The record contains no evidence conclusively establishing a specific amount of damages, lost wages, or attorney fees. The trial court’s summary judgment awarded no specific amount of damages, nor did it restrict its judgment to liability alone, or reserve for trial the issue of damages and attorney fees. On appeal, neither party addresses this question. This court will not undertake to resolve what neither party desires to place in issue.

3. The principal issue at trial and on appeal is the sufficiency of the appellant’s application to comply with the provisions of OCGA § 33-34-5 (b), as amended. The statute provides: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section [Optional PIP—up to $50,000 per person] have been explained to the applicant.” (Emphasis supplied.) At issue is whether the application possessed, in boldface type, language signifying “the optional coverages . . . have been explained to the applicant. . . .” (Emphasis supplied.) Appellees argue that there was noncompliance in that there was no boldface type, and although there was an offer of optional PIP, there was no explanation of such coverage. Appellee’s deposition testimony supported her contention that the optional coverages were not explained to her. Appellant has submitted no evidence that optional coverages were explained except testimony that the application bearing appellee’s signature followed the statement: “I have been offered all Optional Coverages as required by the Georgia and Florida No-Fault Laws, and reject all coverages not indicated as accepted by ‘X’ in Coverage Section on Front of this application.” On the front side of the application are blocks within blocks on the lower half of the right half of the page, listing 29 different types of coverages for each of three different cars, making a total of 87 boxes from which selections were to be entered. All coverages are “abbreviated” and none is “explained.” For example, the first large block of coverage offered is: “A BI 10/20,000 25/50,000 100/200,000.” The next block is “PIP Basic (5,000 GA) (10,000 FL).” The third block: “B PD 10,000 25,000 50,000 100,000.” The next block: “C MP C-l AP 1,000 Med, (Chk. B for AP), 2,000 Med. (Chk. D for AP), 5,000 Med. (Chk E for AP).” The next coverage offered is: “C-2 10,000 PIP (GA) 25,000 PIP (GA & FL) 50,000 PIP (GA & FL).” None of the blocks for this last section is checked.

This appeal presents the same general question faced in St. Paul Fire &c. Ins. Co. v. Nixon, 252 Ga. 469 (314 SE2d 215), that is, whether the application “is in substantial compliance with the requirements of OCGA § 33-34-5 (b). . . .” Id. at 469. The clearly expressed intent of the legislature as to new policies of motor vehicle insurance, sold after November 1, 1982, is: (1) the initial application “shall contain a statement in boldface type signed by the applicant,” (2) “indicating that the optional coverages . . . have been explained to the applicant.” OCGA § 33-34-5 (b). The application in the instant appeal was a first-time application by Ms. Goddard and was made on September 13, 1985. The application does not contain any “boldface type” listing the optional PIP coverages, either on the front page where all coverages are listed, or on the reverse side where the signature line is located. Secondly, the application does not contain any wording “indicating that the optional coverages . . . have been explained to the applicant.” OCGA § 33-34-5 (b). To the contrary, from the exhibit which apparently is a copy of the application, the reverse page of this exhibit does not show any signatures and inquiry of the clerk of the trial court reveals that the retained copy also shows no signatures. Of course, we are aware of the holding of Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 713 (300 SE2d 673) and Tolison v. Ga. Farm Bureau &c. Ins. Co., 253 Ga. 97, 100 (317 SE2d 185), that “ ‘(t)he purpose of the statute [OCGA § 33-34-5] is to resolve conflicts which arise when an insured contends that he was not informed of his statutory right to optional benefits [as in the instant case]. When this claim is made, the resolution of the issue will be to look to the policy to determine if there was reduction or rejection of those benefits in conformance with the statutory scheme.’ ” 253 Ga. at 100. The copy of the application here reveals no signatures, but when Ms. Goddard’s deposition is consulted, she admits that she did sign the application and she identified her signature after the block checked which indicated she rejected all coverages not accepted on the opposite side of the application. Thus, although the clerk of the trial court does not have the original application and the retained copy as well as the copy in the record does not show any signatures, it is obvious from Ms. Goddard’s testimony she did sign indicating rejection of coverages not accepted. Although the general law is that a court will look to the form of the application to determine if it complies with the statute, this court, in Bob Lairsey Ins. Agency v. Allen, 180 Ga. App. 11 (2) (348 SE2d 658), held that in construing an insurance application under OCGA § 33-34-5 (b) as amended, testimony was admissible which related to whether the person signed the application. Hence, we find there is sufficient information that Ms. Goddard signed the line indicating rejection of coverages not accepted on the opposite page. Does this signature control the result we are required to reach? We find that it does not.

We have two principles of law in conflict: (1) the insured was required to read the application and is bound by her signature (see generally Stewart v. Boykin, 165 Ga. App. 868, 869 (303 SE2d 50); Hubert v. Beale Roofing, 158 Ga. App. 145, 146 (279 SE2d 336); Mutual of Omaha Ins. Co. v. Truluck, 129 Ga. App. 692, 693 (200 SE2d 913); (2) the application is required to comply with OCGA § 33-34-5 (b) which requires the insurer to offer $50,000 PIP, which may be reduced to $5,000 by the insured, and in the absence of such reduction or rejection, in writing, the insured will have $50,000 PIP coverage from the inception of the policy. Perry v. Intl. Indem. Co., 251 Ga. 709, 710 (309 SE2d 139). Of course, “ ‘an applicant’s waiver of his privilege to obtain optional coverages [must] be made knowingly and in writing.’ ” (Emphasis deleted.) Colwell v. Voyager Cas. Ins. Co., 251 Ga. 744, 748 (309 SE2d 617). We hold that the statute controls and we will turn to the application alone to determine whether the reduction in the instant case was “made knowingly and in writing” in accordance with the statutory scheme.

Decided January 4, 1989

Rehearing denied January 31, 1989

Jenkins, Bergman & Darroch, Robert M. Darroch, Robert E. Mulholland, C. David Vaughn, for appellant.

Didio & Broome, Stefano A. Didio, Robert W. Broome, for appellees.

“ ‘In order for a document to be in substantial compliance with OCGA § 33-34-5 (b) . . . the form on its face should show the prospective insured, as a reasonable man or woman, the offered coverages and the action needed to accept or reject with such clarity so as not to require speculation as to whether there was a knowing election. In other words, does the form show that the applicant, as an ordinary reasonable man or woman, understood what was being offered and what choices he or she was making?’ ” Johnson v. Southeastern Fidelity Ins. Co., 178 Ga. App. 431, 435 (343 SE2d 709). Although Johnson involved a pre-November 1, 1982 policy, its reasoning is apropos to the issue we face here. Applying the above standards to the facts of the instant case, we find the form not in substantial compliance with the statute for the optional coverages were not explained, but were abbreviated and not clearly understandable to the uninformed (see Tolison, supra at 100), there was no “boldface type” indicating optional coverages and explanation of those coverages (OCGA § 33-34-5 (b)), and we find that “ ‘the offered coverages and the action needed to accept or reject [were not explained] with such clarity so as not to require speculation as to whether there was a knowing election.’ ” Walden v. Progressive Cas. Ins. Co., 184 Ga. App. 774 (362 SE2d 505). There being no reduction or rejection of optional coverage in compliance with the statute, the policy provides $50,000 PIP coverage from its inception. Perry, supra.

We have examined each of appellant’s enumerated errors and find them to be without merit.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    77208.
    PRIVITERA v. ADDISON et al.
    (378 SE2d 312)
   Birdsong, Judge.

The main action in this case was filed for conversion against appellant Anthony M. Privitera by Presidential Financial Corporation (Presidential). Presidential is in the business of financing accounts receivable, generally for small companies with going concerns but with cash flow or other minor financial problems.

Presidential had entered a loan and security agreement with BFA Security & Investigative Agency (BFA) in April 1984. BFA was 90 percent owned and operated by Sara Addison, who had inherited the company from her husband in 1983. She (for BFA) had already borrowed heavily from First Atlanta Bank and had pledged her personal certificates of deposit for this loan when First Atlanta recommended she contact Mr. Goldstein of Presidential. Throughout the trial of this case, Goldstein always indicated he considered Sara Addison to be of highest integrity.

BFA’s business depended mainly upon a federal Government Services Administration (GSA) contract to provide armed security guards at IRS facilities in Chamblee, Georgia, and in Kentucky. The GSA payment each month was $156,875.81. However, it lagged behind time for payment of guards’ salaries and overhead. There was also the bank loan outstanding of $165,000 and about $100,000 owed in back taxes.

In April 1984, BFA obtained from Presidential an initial lending of $75,000. Presidential took a security interest in all accounts receivable, income, monies and proceeds thereof. Presidential filed a timely UCC financing statement in Fulton County court records.

The Presidential loan involved a revolving line of credit. Seven “draws” were made between April and August 1984. GSA’s $156,875.81 payment was directly deposited in BFA’s bank and each time, within a day or two, BFA paid Presidential fully by direct deposit. The business prognosis, however, weakened. In July 1984, Sara Addison consulted business brokers to sell the business. She provided a financial statement and gave the brokers access to BFA’s files. However, she never met Anthony Privitera until August 6, 1984, when he came to BFA offices for the closing.

Privitera paid Mrs. Addison $10 for her 90 percent share of the corporation. He prepared the closing documents and presented them to Mrs. Addison to sign. Item “C” of this document stated: “There are no corporate loans outstanding other than the [First Atlanta] bank loan payable for $165,000.” Item “L” stated: “No loans have been made during the past thirty (30) days other than the revolving line of credit.” Item “N,” just above the signature, stated: “Accounts receivable are not assigned or encumbered.”

Mrs. Addison signed this document. She testified she considered the Presidential arrangements a revolving line of credit and not a loan; and that she was very upset and crying a lot at the closing because of selling the business her husband had built for 10 years, and hardly knew what she was signing. BFA had received “draw” 8, in the amount of $75,000, from Presidential on July 18, 1984. Mrs. Addison did not, until after the August 6 sale, tell Presidential she had sold the business because she said she did not think she was required to do so.

On August 6, 1984, Privitera arrived for business. Sara Addison stayed as a “management consultant” at a salary of $4,000 per month. On August 9, the GSA check for $156,875.81, normally deposited by GSA directly into BFA’s bank, First Atlanta, arrived mysteriously at BFA’s office. (It was never disclosed at trial how this anomaly occurred.) Mrs. Addison opened the mail, said: “It’s here!” and then took it to Privitera’s office. She told him firmly the first thing that had to be done was to pay Presidential. Privitera replied that they did not have to pay Presidential for 90 days. When Mrs. Addison said she did not know anything about “ninety days,” Privitera responded that he knew the president of Presidential and would take care of the matter.

The testimony of Privitera, who represented himself, was extremely elusive as to whether he knew on August 6 that the accounts receivable were assigned to Presidential. He admitted, however, that he did not examine the courthouse records to determine whether any UCC documents or liens attached to BFA before he purchased the business.

Privitera indicated he found out about Presidential’s interests on August 7, 8, 9, or 10. He admitted, however, that Mr. Goldstein, President of Presidential, did call him on August 8, the day before GSA’s check arrived; and that Goldstein had found out about the sale, was very irate, and may have said something like, “we’re used to getting paid.” He had lunch with Goldstein the next week to work out matters; but he elsewhere testified that the first time he found out about Presidential’s security interest in accounts receivable was “late in August” or on August 14 or 15, or at the time of his lunch meeting with Goldstein. He hadn’t “listened” to Mr. Goldstein on their August 7 or 8 phone call because Goldstein had also called and harassed Mrs. Addison and therefore he (Privitera) did not consider Goldstein reputable.

In the meantime, the new BFA board of directors (Privitera and one other) had voted Privitera an annual salary of $60,000 plus 2 percent of gross revenues. Within days, Mrs. Addison was locked out of BFA’s offices and fired from her consulting position. On August 11, Privitera had BFA issue a check to him for $500 for “fee.” On August 9 (the date the GSA check arrived), he had BFA issue checks to “Ad Placement” for $300 and $5,000. Ad Placement was a company which placed advertisements on the rear of taxi-cabs; it was owned by Privitera’s wife and Privitera was its president. On August 14, Privitera created “BFA Financial, Inc.” and directed all BFA Security mail to go to a new “BFA Financial, Inc.” Marietta post office box. He also transferred $54,000 of BFA Security deposits to the “BFA Financial” account at First Georgia Bank. On August 17, he wrote a $3,000 check, a $495 check made to “cash” to BFA, and a $5,000 check to “Creative Business Consultants.” On August 9, he had committed BFA to pay Creative Business Consultants $7,000 per month. Creative Business Consultants was, effectively, himself, and he admitted the $5,000 was his salary. On August 22, Privitera wrote a BFA check to his law firm for $10,000 to initiate a Chapter 11 bankruptcy.

On August 22, Presidential sent notices of assignment to GSA and all of BFA’s commercial accounts. On August 23, Privitera wrote another check to Creative Business Consultants for $10,000 (designated as “fund management” and salary). Also on August 23, Privitera ordered all the security guards pulled off their posts and their guns and equipment removed because of GSA’s “default” in not sending him (BFA) an advance of more money after GSA received Presidential’s August 22nd notice of assignment. On September 7, 1984, one month after Privitera bought the business, BFA filed proceedings in Chapter 7 for total liquidation.

In its complaint, Presidential also sued Addison, Robert Sandhoff (a BFA officer) and Michelle Roberson (Mrs. Addison’s daughter) on personal guarantees. Sandhoff contended he had asked Presidential to be released and had been released, because the conditions set by Presidential had been met. Presidential contended the conditions for release had not been met, because Sandhoff had not requested in writing to be released.

Addison, Sandhoff, and Roberson all cross-claimed against Privitera for indemnity, for his wilful, malicious diverting of BFA’s receivables by which they were damaged upon their guarantees (Sandhoff, of course, insisting he had none).

The jury returned a verdict as follows: Robert Sandhoff was released from his guarantee to Presidential. He was awarded $00.00 (“zero dollars”) from Privitera, and $10,000 punitive damages from Privitera. Against Privitera, Presidential was awarded $52,548.56 (balance unpaid of “draw” 8); $30,000 attorney fees, and $37,000 punitive damages.

Michelle Roberson was found liable on her guarantee to Presidential, but was awarded indemnification against Privitera in the amount of $52,548.56 (the balance of “draw” 8) and $10,000 punitive damages.

Mrs. Addison was awarded $160,000 for compensatory damages (evidently representing the amount of her certificates of deposit which she earlier pledged to First Atlanta and lost). The jury also awarded her $52,548.56 for indemnification on her guarantee to Presidential for “draw” 8, and $480,000 punitive damages.

Addison, Sandhoff, and Roberson were represented by the same attorney and were awarded $29,530 attorney fees.

Privitera was awarded nothing on his claims against any of the parties. On appeal he enumerates six errors. Held:

1. Appellant contends the awards of punitive damages to all parties cannot stand because this case does not involve a tort but is an action on a contract. See cited, Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827) and OCGA § 13-6-10; and see OCGA § 51-12-5.

Clearly the cause of action of each plaintiff and cross-claimant against Privitera was in tort, for conversion of funds assigned to Presidential and for the knowing, wilful and malicious diverting of said funds to the tortious detriment of Addison, Sandhoff, and Roberson. Under appellant’s cited case, Colonial Pipeline Co., supra, punitive damages are appropriate for conversion as a tort.

Appellant urges further the punitive damages can be awarded only to plaintiffs, which Addison, Sandhoff and Roberson are not. However, clearly they are plaintiffs in cross-claim for indemnification against Privitera. OCGA § 9-11-13 (g). He also contends the $480,000 punitive damages awarded to Mrs. Addison are excessive “as a matter of law,” and this we cannot hold. Exemplary damages lie within the conscience of the jury. The jury obviously found aggravating circumstances in Privitera’s acts and intentions sufficiently repugnant to justify this award. They are authorized to so find by OCGA § 51-12-5, in effect at the date of this verdict, January 1987. Absent applicable legislation to the contrary, this appellate court is reluctant to interfere with the jury’s sense of conscience in her behalf.

2. Privitera contends the trial court erred in denying him directed verdicts against all co-defendants for their claims of indemnification, because as co-defendants they would be entitled to indemnification only as joint trespassers (tortfeasors).

The fact that joint wrongdoers (see OCGA § 51-12-30 et seq.) might be entitled to indemnification does not mean that other parties might not be so entitled. OCGA § 9-11-13 (g) provides: “[A] cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.”

Quixotically, Privitera contends there cannot be “contribution” where the tortious act involves moral turpitude. Undoubtedly this means one guilty of an act of moral turpitude cannot be entitled to contribution; but since in this case the act of moral turpitude was by Privitera himself, he cannot complain that another is not entitled to “contribution.”

3. In his third enumeration, Privitera claims Presidential could not recover for conversion because it is not seeking to recover some specific money, but money generally (see Hodgskin v. Markatron Inc., 185 Ga. App. 750 (365 SE2d 494)); and that Presidential must show not merely equitable title in the allegedly converted matter, but legal title.

This enumeration is without merit. An exercise of dominion or control over property, which is inconsistent with the legal rights of a secured party, is a conversion of the property. A secured interest in accounts receivable is a legal interest. Trust Co. v. Assoc. Grocers Co-Op., 152 Ga. App. 701, 702 (2) (263 SE2d 676).

4. In enumeration 4, Privitera contends the trial court erred in failing to direct a verdict to him on the issue of attorney fees, because only plaintiffs can recover attorney fees (cited, OCGA § 13-6-11), and Addison, Sandhoff and Roberson were not plaintiffs. In Division 1 of this opinion, we disposed of the contention that cross-claimants are not positioned as plaintiffs against Privitera.

The conversion count supports the attorney fees awards. The actions of plaintiff Presidential and cross-claimants Sara Addison, Sandhoff, and Roberson were founded upon the fraud and deceit of Privitera. F. N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257 (208 SE2d 13). The evidence supports a finding of bad faith in the dealings of Privitera with BFA, Presidential, Addison, Sandhoff, and Roberson. The plaintiff and cross-claimants “specifically pleaded and . . . made a prayer” for attorney fees (OCGA § 13-6-11) and are entitled thereto.

5. The trial court did not err in failing to direct a verdict in Privitera’s favor on grounds that Presidential had assigned its interests in BFA’s accounts receivable to another corporation, ITT, and thus was not the proper party to bring suit.

For all this record shows, Presidential was the damaged party; Privitera has not proved otherwise, nor is he the proper party to complain on behalf of ITT. Cf., OCGA § 9-11-25 (c). Further, a plaintiff in a conversion action need not show he is absolute owner of the converted property; he only need show a right of action or possession in the property. See Gilbert v. Rafael, 181 Ga. App. 460 (352 SE2d 641).

6. Privitera contends the trial court erred in submitting to the jury a claim for Sara Addison’s lost certificates of deposit.

Addison did not specifically plead and pray in her complaint for compensation for these forfeited funds, but the issue was litigated without objection from Privitera. Therefore, the pleadings must be treated as if amended to include a plea and prayer for such compensation, since the issue was tried by express or implied consent of the parties. OCGA § 9-11-15 (b). The evidence showed Addison lost her certificates after the intervention of Privitera into BPA’s affairs, and the jury could conclude he was the cause of that loss.

Decided January 3, 1989

Rehearing denied January 31, 1989

Gershon, Olim, Katz & Loeb, William R. Lester, Fred J. Stokes, for appellant.

Louis K. Polonsky, Kirk McAlpin, Jr., Susan S. Jones, for appellees.

7. Although the point is not specifically raised by Privitera, the judgments in favor of Presidential, Sara Addison and Michelle Roberson, each in the amount of $52,548.56 (representing the amount finally owed to Presidential by BFA), appear to be duplicative. The jury released Sandhoff from his guarantee, finding he had met Presidential’s stated conditions for release. The jury also carefully found each other guarantor liable for the full debt to Presidential on their individual guarantees. This amounts to $157,645.68 for BFA’s final debt to Presidential of $52,548.56.

The trial court should review the evidence to determine if these multiple verdicts for one debt are excessive; and if they are, they should be stricken except to the extent necessary to satisfy the $52,548.56 debt owed to Presidential.

8. Though Roberson’s award of indemnification on her guarantee be stricken, and though Sandhoff was released from his guarantee and awarded “zero dollars” in indemnification, the “specially pleaded” and prayed-for award of attorney fees in the case of both Roberson and Sandhoff constitute actual damages under the express terms of OCGA § 13-6-11. In point of fact, they are actual damages. Therefore, these awards of attorney fees support the awards of punitive damages to Roberson and Sandhoff.

The verdict and judgment below are affirmed, except to the extent it must be remolded consistent with Division 7 to prevent duplication of recovery by Presidential of the final balance owed: $52,548.56.

Judgment affirmed on condition any excessive or duplicative verdict be stricken; otherwise reversed in part.

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


author: McMurray, Presiding Judge.

text:
    77385.
    KEENAN et al. v. HILL et al.
    (378 SE2d 344)
   McMurray, Presiding Judge.

Plaintiff Monty Steven Hill brought this personal injury action against Anthony Lee Keenan and All Day Leasing, Inc. (“All Day Leasing”). He alleged that All Day Leasing owned a 1980 Cadillac automobile which it negligently entrusted to Keenan on July 23, 1982; that, on that date, Keenan negligently operated the automobile; that, as a direct and proximate result of the negligence of All Day Leasing and Keenan, plaintiff sustained serious personal injuries and property damage; and that, therefore, Keenan and All Day Leasing were liable to plaintiff in the amount of $76,227.11. (Keenan, Inc., was also named as a party-defendant. It was alleged that All Day Leasing fraudulently conveyed real property to Keenan, Inc., on July 30, 1982 in order to hinder, delay and defraud plaintiff.)

Answers were filed by All Day Leasing, Keenan and Keenan, Inc. They denied that they were liable to plaintiff in any way.

Whether defendants were insured was questionable. Accordingly, plaintiff served his uninsured motorist carrier—Travelers Insurance Company (“Travelers”)—by second original. Travelers filed defensive pleadings in its own name and denied that it was liable to plaintiff. In addition, Travelers asserted cross-claims against All Day Leasing and Keenan to recover any sums it might be required to pay plaintiff.

Prior to trial, plaintiff compromised , and settled his claim against Travelers. Accordingly, Travelers was dismissed as a party to the proceedings. Thereafter, Travelers dismissed its cross-claims against All Day Leasing and Keenan.

Defendants objected to the dismissal of Travelers. They argued that, having elected to proceed in its own name, Travelers’ interest could not be represented thereafter by plaintiff. The trial court disagreed. It ruled that, in light of a settlement agreement executed by plaintiff and Travelers, plaintiff could prosecute the action in his own name and for the benefit of Travelers.

On the morning of trial, before any evidence was taken, plaintiff announced that he was seeking punitive damages. The trial court permitted plaintiff to seek such damages over defendants’ objection. In so doing, the trial court pointed out that a pre-trial order had not been signed and entered.

Upon the conclusion of the trial, the jury awarded plaintiff $297,949.24. Punitive damages against defendant Keenan accounted for $100,000 of the total award. (It also was determined that the conveyance of the real property from All Day Leasing to Keenan, Inc., should be set aside.) Judgment was entered accordingly. (The judgment against defendant Keenan was reduced by $17,000, however, to reflect previous payment of that amount as criminal restitution.) This appeal follows. Held:

1. In their first and second enumerations of error, defendants contend the trial court erred in allowing Travelers’ interest to be prosecuted in plaintiff’s name. In this regard, defendants assert that the election of an uninsured motorist carrier to proceed in its own name is irreversible. Defendants cite no authority for this assertion and we find none. We see no reason, however, to require an uninsured motorist carrier to continue to proceed in its own name simply because it elected to do so initially. See generally Johnson v. Amerson, 179 Ga. App. 75 (345 SE2d 94). The first and second enumerations of error are without merit.

2. In their third and fourth enumerations of error, defendants assert the trial court erred in refusing to permit defendants to introduce evidence concerning uninsured motorist benefits and optional personal injury protection benefits that plaintiff received from Travelers. This assertion is without merit. State Farm Mut. Auto. Ins. Co. v. Chastain, 167 Ga. App. 822, 823 (307 SE2d 717); City Council of Augusta v. Lee, 153 Ga. App. 94 (264 SE2d 683); Hall v. White, 150 Ga. App. 545 (258 SE2d 256). See also Polito v. Holland, 258 Ga. 54 (365 SE2d 273).

3. No pre-trial order having been entered, and no evidence having been taken, it cannot be said the trial court erred in permitting plaintiff to amend the complaint in order to seek punitive damages. See Jackson v. Paces Ferry Dodge, 183 Ga. App. 502, 503 (1) (359 SE2d 412). Besides, defendants failed to demonstrate how they would be prejudiced by such an amendment. See OCGA § 9-11-15 (b). Defendants’ fifth enumeration of error lacks merit.

4. The trial court did not err in refusing to grant defendant Keenan’s motion for a directed verdict with regard to punitive damages. “The conduct of a hit-and-run driver of an automobile in failing to stop and give his name, etc., and render assistance to the person injured, when taken in connection with all the circumstances, may authorize a finding that the conduct of the driver in causing the injury constituted an entire want of care and conscious indifference to consequences, and therefore that there were such ‘aggravating circumstances in the act’ as would authorize a recovery by the person injured for punitive damages. . . .” Battle v. Kilcrease, 54 Ga. App. 808, 810 (4) (189 SE 573). Enumeration of error number 6 fails.

5. In the seventh enumeration of error, defendant All Day Leasing contends the trial court erred in failing to grant its motion for summary judgment and its motion for a directed verdict on the negligent entrustment issue. In this regard, it points out that no corporate officer of All Day Leasing (other than defendant Keenan himself) had actual knowledge of Keenan’s poor driving record and that, in any, event, the vehicle was leased by All Day Leasing to another corporate entity—United Truckers Service, Inc.—on the day in question.

We cannot pass upon the propriety of All Day Leasing’s motion for summary judgment. Following the entry of the verdict and judgment, the order denying the summary judgment motion became moot. Stone Mountain Pool &c. Co. v. Imperial Pool Co., 170 Ga. App. 283 (2) (316 SE2d 769). We will review, of course, the denial of All Day Leasing’s motion for a directed verdict.

The evidence adduced in the trial court demonstrates the following: All Day Leasing owned the Cadillac automobile driven by Keenan. An insurance policy covering the automobile was issued to Lynn Mason Keenan, Keenan’s former wife. All Day Leasing leased the automobile to United Trucking Services, Inc. (“United Trucking”) on September 16, 1980. The lease was in effect at the time of the collision.

The collision occurred during the early morning hours (approximately 2:00 a.m.) on July 23, 1982. At that time, Keenan was using the Cadillac automobile for his personal use.

Keenan was the vice-president of All Day Leasing; he was also an officer of United Trucking and Keenan, Inc. Keenan’s mother was the president of All Day Leasing; his father was the corporation’s secretary. Keenan’s family members also held offices in United Trucking and Keenan, Inc. Keenan’s mother, father and Keenan’s former wife held the stock in All Day Leasing, United Trucking and Keenan, Inc.

Keenan used the Cadillac automobile almost daily. He used it for both business and personal purposes. Sometimes, he drove it home and parked it overnight. Other officers and employees of All Day Leasing, United Trucking and Keenan, Inc., used the automobile too. But Keenan himself used it most frequently.

The automobile was equipped with a radar detector. Keenan testified that he purchased the device as a gift for his former wife.

From May 30, 1977, until the time of the collision, Keenan was convicted of speeding four times and driving under the influence one time. Ultimately, his license was revoked and he was driving without a license when the collision occurred.

Keenan testified that he never told his parents, former wife, or any employee of All Day Leasing about his driving record. Keenan’s mother testified that she was unaware of the traffic offenses committed by her son. Neither Keenan’s father, nor his former wife, nor any other employee of All Day Leasing testified at the trial.

Based on the foregoing facts, we conclude that All Day Leasing did not entrust the Cadillac automobile to Keenan negligently. “ ‘Knowledge of the driver’s incompetency is an essential element of the rule which holds an owner liable for furnishing his automobile to an incompetent driver. See Holt v. Eastern Motor Co., 65 Ga. App. 502, 508 (15 SE2d 895); Graham v. Cleveland, 58 Ga. App. 810 (200 SE 184).’ Marques v. Ross, 105 Ga. App. 133, 139 (123 SE2d 412); NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 (1) (171 SE 151); and such knowledge must be actual rather than constructive. . . .” Roebuck v. Payne, 109 Ga. App. 525, 526 (2) (136 SE2d 399).

The evidence demonstrates that, with the exception of Keenan himself, no officer or employee of All Day Leasing had actual knowledge of Keenan’s driving record. Can the actual knowledge of Keenan be imputed to All Day Leasing? We think not.

A corporation is bound by knowledge of an officer or agent when the knowledge pertains to matters within the scope of the officer’s or agent’s duties. But when the officer or agent departs from the scope of his duties and acts in such a way that his private interest outweighs his obligation as a corporate representative, the law will not impute his knowledge to the corporation. Williams v. Citizens Bank of Ashburn, 182 Ga. App. 461, 462 (356 SE2d 80).

Although Keenan had actual knowledge of his own driving record, it could not be imputed to All Day Leasing. Keenan’s private interest in driving an automobile outweighed his duty as a representative of the corporation to ensure that an incompetent driver did not operate the corporation’s automobile. Thus, Keenan was an “opposite party” insofar as the operation of the Cadillac automobile was concerned. See Hodgson v. Hart, 165 Ga. 882, 887 (142 SE 267).

Assuming, arguendo, that Keenan’s knowledge of his driving record was imputed to All Day Leasing, we must conclude, nevertheless, that All Day Leasing did not furnish the Cadillac automobile to Keenan negligently. Why? Because All Day Leasing leased the automobile previously to United Trucking. Thus, it was the responsibility of United Trucking to be sure that a driver of the automobile was competent.

Plaintiff contends the evidence was sufficient to enable the jury to disregard the corporate shields surrounding All Day Leasing and United Trucking and to conclude that the lease was a sham. We disagree. The only evidence in this regard demonstrated that the officers and shareholders of All Day Leasing and United Trucking were the same. Such evidence alone was not sufficient to enable the jury to disregard the separateness of the two corporations. See Sturdivant v. Chapman, 146 Ga. App. 26, 28 (2) (245 SE2d 311); Bowen & Bowen v. McCoy-Gibbons, 185 Ga. App. 298, 303 (2) (363 SE2d 827).

It cannot be said that All Day Leasing negligently entrusted the Cadillac automobile to Keenan. It follows that the trial court erred in failing to grant All Day Leasing’s motion for a directed verdict on the negligent entrustment issue.

6. Defendants contend the trial court erred in instructing the jury that driving without a license constitutes negligence per se. While driving without a license is a violation of State law, it does not constitute actionable negligence unless there is a causal connection between the violation and the injury. Carpenter v. Lyons, 78 Ga. App. 214, 217, 218 (50 SE2d 850). If this had been the only act which the trial court characterized as negligence per se, we would be inclined to find harmful error. However, the trial court also charged that other acts committed by defendant Keenan (exceeding the speed limit, driving too fast for conditions, failure to stop and remain at the scene of an accident, and failure to render assistance to a person injured) constituted violations of the law. Thus, the court’s charge, viewed on the whole, falls within the ruling in Johnston v. Woody, 148 Ga. App. 152, 154 (2) (250 SE2d 873). We cannot see how defendants were harmed thereby. Defendants’ eighth enumeration of error is without merit.

Decided January 19, 1989

Rehearing denied January 31, 1989

J. Wayne Moulton, C. Michael Walker, for appellants.

R. Chris Irwin & Associates, Bryan F. Dorsey, Jamie L. Mack, for appellees.

7. In their ninth enumeration of error, defendants contend the trial court erred in ruling that if defendants attempted to impeach plaintiff by using a statement made by plaintiff during the criminal trial of Keenan, then plaintiff would be entitled to introduce the entire transcript of the criminal trial. This enumeration of error lacks merit. The trial court made no such ruling. Rather, it ruled that if defendants attempted to impeach plaintiff with a statement made at Keenan’s criminal trial, the source of plaintiff’s previous statement could be identified.

8. Finally, defendants assert the trial court erred in failing to reduce the amount of the judgment by the amount plaintiff was paid ($5,000) pursuant to his minimum no-fault coverage. We agree. Plaintiff was not entitled to recover the amount of his economic loss benefits ($5,000) as a matter of law. McGlohon v. Ogden, 251 Ga. 625, 628 (308 SE2d 541); Glover v. Grogan, 162 Ga. App. 768, 771 (5) (292 SE2d 465). The trial court should have reduced the amount of the judgment accordingly. Consequently, it is directed that a final judgment in favor of plaintiff be entered which reflects a write-off from the jury verdict in the amount of $5,000.

Judgment affirmed in part with direction and reversed in part.

Pope and Benham, JJ., concur.


author: Carley, Chief Judge. Sognier, Judge,

text:
    77396.
    LANE v. K-MART CORPORATION et al.
    (378 SE2d 136)
   Carley, Chief Judge.

Appellant-plaintiff is a former employee of appellee-defendant K-Mart Corporation. When his employment was terminated, appellant brought suit against appellee K-Mart and three of its employees, appellee-defendants David Davis, Dale Scholes and Bruce Nilsson. In his complaint, appellant alleged that appellee K-Mart had breached his oral employment contract by discharging him; that appellees Davis, Scholes, and Nilsson had tortiously interfered with his contractual relationship with appellee K-Mart; and that appellees had intentionally caused emotional harm to him.

Appellees answered, denying the material allegations of the complaint, and filed a motion for summary judgment. The trial court conducted a hearing and granted appellees’ motion. Subsequently, the trial court also awarded appellees’ attorney’s fees in the amount of $2,500 pursuant to OCGA § 9-15-14 (a) and (b). Appellant appeals from the trial court’s grant of appellees’ motions for summary judgment and from the award of attorney’s fees.

1. Urging that a genuine issue of material fact remains as to the merits of his breach of contract claim, appellant enumerates the trial court’s grant of summary judgment in favor of appellee K-Mart as error.

“[T]he record . . . clearly demonstrates that [appellant] had been hired by [appellee-K-Mart] for an indefinite term. See OCGA § 34-7-1. ‘The term of [appellant’s] employment was indefinite and therefore comes under the statutory rule that “(a)n indefinite hiring may be terminated at will by either party.” [Cits.]’ [Cits.]” Taylor v. Amisub, Inc., 186 Ga. App. 834, 835 (1) (368 SE2d 791) (1988). “The rule in Georgia remains hard and fast that an employer is free to discharge an employee at will for any or no reason, and that the employer’s motives in discharging such an employee are legally immaterial. [Cits.]” Jacobs v. Ga.-Pacific Corp., 172 Ga. App. 319, 320 (323 SE2d 238) (1984). “[E]mployment for an indefinite period ... is terminable at the will of either party, and a discharge in such circumstances affords no cause of action for breach of contract. [Cits.]” Land v. Delta Air Lines, 130 Ga. App. 231 (203 SE2d 316) (1973). See also Meeks v. Pfizer, Inc., 166 Ga. App. 815 (305 SE2d 497) (1983).

The contention that appellee K-Mart’s employment manual created an implied contract of employment is controlled adversely to appellant by Burgess v. Decatur Fed. Savings &c. Assn., 178 Ga. App. 787 (345 SE2d 45) (1986). “ ‘We do not view [appellee K-Mart’s] manual setting forth certain policies and information concerning employment with [appellee K-Mart] necessarily as a contract [cit.], and even if considered as a contract, it was clearly terminable at will because it failed to specify a period of employment. [Cit.]. . . Therefore, in the absence of a definite period of employment, the manual did not bestow upon [appellant] the status of permanent lifetime employee of [appellee K-Mart]. [Cit.] Employment was thus terminable at the will of either party. [Cit.]’ [Cit.]” Burgess v. Decatur Fed. Savings &c. Assn., supra at 788. “The fact that [appellant] had notice of certain [of appellee K-Mart’s] policies and procedures regarding discipline and termination of employees which [he] alleges were not followed in [his] discharge would not give rise to an action for wrongful termination.” Garmon v. Health Group of Atlanta, 183 Ga. App. 587, 589 (359 SE2d 450) (1987). See also Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 882 (2) (354 SE2d 204) (1987). Accordingly, the trial court correctly granted appellee K-Mart’s motion for summary judgment.

2. Appellant also enumerates error in the grant of summary judgment on his tortious interference claim as against his co-workers, appellees Davis, Scholes, and Nilsson.

In his complaint, appellant alleged that the conduct in which appellees Davis, Scholes, and Nilsson engaged was within the scope of their authority and in the course of their employment with appellee K-Mart. Under such circumstances, appellant would have no viable claim against his former co-employees, in their individual capacities, for the tortious interference with his contractual relationship. See Henson v. American Family Corp., 171 Ga. App. 724, 729 (4) (321 SE2d 205) (1984); Sacks v. McCrory, 160 Ga. App. 430 (1) (287 SE2d 292) (1981). The trial court correctly granted summary judgment.on appellant’s tortious interference claim.

3. “There has been no allegation of any conduct by [appellees] which can be considered so humiliating, terrifying, or insulting as to give rise to a cause of action for intentional infliction of emotional stress. [Cit.] Accordingly, [appellees were] also entitled to summary judgment on this count of the complaint.” Life Chiropractic College v. Fuchs, 176 Ga. App. 606, 609 (4) (337 SE2d 45) (1985). See also Crowe v. J. C. Penney, Inc., 177 Ga. App. 586, 588 (1) (340 SE2d 192) (1986).

4. The undisputed evidence of record shows that no genuine issue of material fact remains as to any viable theory of recovery against appellees that is arguably raised by the allegations of appellant’s complaint. Summary judgment was correctly granted in favor of all appellees as to all claims asserted by appellant.

5. The trial court’s award of attorney’s fees pursuant to OCGA § 9-15-14 (a) and (b) is enumerated as erroneous on two grounds.

Appellant first contends that the trial court based its award solely upon events and conduct which had no connection with this action, but which had occurred in connection with an earlier dismissed lawsuit brought by appellant against appellees. On its face, however, the order itself shows that the trial court expressly based its award of attorney’s fees on the events and conduct which had taken place in connection with the instant case and that it regarded the circumstances surrounding the previous lawsuit as evincing only “additional, but not necessary, support for an award of attorney’s fees. ...” “The trial court awarded attorney fees and expenses of litigation on the basis of both OCGA § 9-15-14 (a) and (b). OCGA § 9-15-14 (a) provides for a mandatory award. The standard of review for this section is the ‘any evidence’ rule. OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion. Under both standards the record supports the trial court’s award.” Haggard v. Bd. of Regents of Univ. System, 257 Ga. 524, 527 (4 c) (360 SE2d 566) (1987).

Appellant further urges that the evidence did not authorize an award of attorney’s fees in the amount of $2,500. The hearing wherein the trial court heard evidence as to the amount of the attorney’s fees was not transcribed. “ ‘[T]he burden is on him who asserts error to show it affirmatively by the record.’ Where there is no transcript of evidence before the court, we must assume that the evidence authorized the ruling below. [Cit.] Finding no error, we hold that appellant’s enumeration is devoid of merit.” Favors v. State, 173 Ga. App. 567 (1) (327 SE2d 543) (1985).

6. “The appellee[s’] motion for the imposition of a penalty for frivolous appeal under Court of Appeals Rule 26 is denied. Under the circumstances of this case, ‘although the errors enumerated by appellant were without merit, we do not deem them to be frivolous.’ [Cit.]” Blalock v. Southern Ins. Co., 180 Ga. App. 319, 320 (349 SE2d 32) (1986).

Judgments affirmed.

Deen, P. J., concurs in Divisions 1, 2, 3, 4, 6, and in judgment. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur fully in Divisions 1 through 4 and 6 of the majority opinion. I write specially because I cannot agree with all that is said by the majority in Division 5 regarding the award of attorney fees.

The trial court based its award of attorney fees to appellees on both OCGA § 9-15-14 (a) and (b). Section (a) of that statute requires that attorney fees be awarded against a party who asserts a claim which lacks “any justiciable issue of law or fact” (emphasis supplied), modified by section (c)’s caveat that attorney fees not be awarded against a party asserting a claim (or defense) “in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.” Because of the casting of the language of section (a) in the disjunctive rather than the conjunctive, I read that section to allow attorney fees only when a claim has merit neither in fact nor in law. See generally Smith v. State, 15 Ga. App. 536, 538-539 (83 SE 886) (1914); Ga. Paper Stock Co. v. State Tax Bd., 174 Ga. 816, 819 (164 SE 197) (1932). Because section (a) is tempered by section (c), I read the statute to mean that even if the law is otherwise in Georgia, if the claim stands supported by “some recognized precedential or persuasive authority,” no attorney fees may be assessed against a proponent of change in the Georgia law merely for his or her good faith attempt to persuade our courts that the Georgia law should be changed. Such an attempt would not be a claim which lacks a justiciable issue of law, and should not be subject to the sanction of attorney fees under section (a) of the statute. In my view, that is precisely the situation in the case sub judice.

First, although recognizing the rule enunciated by the Georgia Supreme Court in Haggard v. Bd. of Regents of Univ. System, 257 Ga. 524, 527 4 (c) (360 SE2d 566) (1987), I do not agree with the majority’s routine application of the “any evidence” standard here. It is not simply whether appellant’s claim has factual merit that we are called upon to review, but whether it has some justiciable issue of law, and I have difficulty reviewing the merit of an attempt to change the law under an evidentiary standard. Second, we must bear in mind that appellant may not be penalized for trying to change the law in Georgia if he has supported his theory with “some recognized precedential or persuasive authority.” Although I view the Georgia law regarding “at will” employment as salutary, and consequently support it, I value even more the right and heritage of our citizens to have free access to the courts to challenge rules of our common law. In fact, while abiding by them as I must, I question the wisdom underlying both OCGA § 9-15-14 (which the legislature must reexamine as it expires in July 1989) and the judicially created tort of “abusive litigation,” see Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), for the same reason.

Other jurisdictions have, in increasing numbers in recent years, carved out exceptions to the rule allowing no cause of action for the “at will” discharge of an employee hired for an indefinite term. See, e.g., Weiner v. McGraw-Hill, Inc., 443 NE2d 441 (NY App.) (1982), in which that state’s highest court held that a complaint which alleged that an employment handbook included an assurance that discharge would be for just cause only stated a cause of action for wrongful discharge, even though the law in New York had been otherwise for almost a century. See also cases collected at 12 ALR4th 544, Annotation: Modern Status of Rule That Employer May Discharge At-Will Employee For Any Reason. Because the decisions of-other jurisdictions have certainly been considered “persuasive authority” by the Georgia courts, see, e.g., State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 378-379 (364 SE2d 62) (1987), aff’d 258 Ga. 276 (368 SE2d 509) (1988); First Ga. Ins. Co. v. Goodrum, 187 Ga. App. 314, 315 (370 SE2d 162) (1988), I find no basis here for the award of attorney fees to appellees under OCGA § 9-15-14 (a). I note that the majority’s failure to grant appellees’ motion for a penalty for frivolous appeal appears to be based on this very same reasoning.

Decided January 12, 1989

Rehearing denied January 31, 1989

Douglas R. Padgett, for appellant.

John F. Wymer III, Kelly J. Koelker, for appellees.

Nevertheless, I concur in the result achieved by the majority in Division 5 because I find evidence in the record of abuse by appellant of the discovery process, which supports the award of attorney fees to appellees pursuant to OCGA § 9-15-14 (b).


text:
    77408.
    JOHNSON v. THE STATE.
    (378 SE2d 366)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of two counts of kidnapping and two counts of armed robbery. Following a jury trial, defendant was convicted of one of the kidnapping counts and one of the armed robbery counts. He was sentenced to a life term (for kidnapping) to be followed by 20 years probation (for armed robbery). This appeal ensued. Held:

1. Relying upon Baxter v. State, 254 Ga. 538, 548 (18) (331 SE2d 561), defendant contends the trial court erred in refusing his request to permit the examination of documents used by several witnesses to refresh their recollection.

Specifically, defendant asserts he should have been permitted to examine documents used to refresh the recollections of the victim, a detective and a fingerprint examiner.

The victim did not use the documents to refresh his recollection while he was on the witness stand. Rather, the victim used the documents to refresh his recollection before testifying. Accordingly, defendant was not entitled to examine the documents used by the victim. Miller v. State, 189 Ga. App. 587 (1) (376 SE2d 901).

Inasmuch as the detective and the fingerprint examiner used documents to refresh their recollections as they were testifying, the trial court erred in refusing to grant defendant access to the documents. Baxter v. State, 254 Ga. 538, 548 (18), supra. However, upon viewing the entire record (including the assistant district attorney’s file which was photocopied and transmitted to this court under seal, and which contains documents prepared by the detective and the fingerprint examiner), we find that, in all likelihood, the refusal to grant access to the documents used by the detective and the fingerprint examiner did not contribute to defendant’s conviction, and therefore, was harmless error. Baxter v. State, 254 Ga. 538, 548 (18), supra.

Decided January 26, 1989

Rehearing denied January 31, 1989

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, R. Andrew Weathers, Wil liam Fincher, Assistant District Attorneys, for appellee.

2. Cross-examining a witness who testified for defendant, the assistant district attorney asked the witness if defendant knew how to “contact” the witness’ wife and child. The witness gave a positive response and defense counsel moved for a mistrial stating: “[t]hose questions are clearly designed to create the question in the jury’s mind that the defendant would harm or might harm the wife and child of this witness unless he testified in his behalf. I can see no other possible reason for asking it about the child certainly. I think it’s reprehensible among other things without some evidence to support that and I want the district attorney to offer what evidence he has which might support that kind of an inference ...” The assistant district attorney replied that he was seeking to demonstrate the witness’ bias. He admitted, however, that he had no evidence that defendant threatened the witness: “None at all. I was going to see if he would offer anything like that. If he doesn’t, that’s as far as I need to go.” Asked by the trial court if he had anything to add, defendant’s counsel stated that he stood by his motion. Thereupon, the motion was overruled. Neither the assistant district attorney nor defendant’s counsel pursued the matter further.

Defendant enumerates error upon the denial of the motion for a mistrial. We find no error. “It is proper for the State’s counsel, in the cross-examination of a witness for the accused, to bring out the relationship existing between the witness and the accused, for the purpose of showing the bias or prejudice of the witness, or for the purpose of showing the probability that the witness is testifying in behalf of the accused by reason of duress or fear.” Kimbrough v. State, 9 Ga. App. 301 (70 SE 1127). Thus, the assistant district attorney was entitled to probe the motives of defendant’s witness for testifying. Whatley v. State, 165 Ga. App. 13 (1) (299 SE2d 87). Besides, defendant was free to “clear the air” and ask the witness if, in fact, he had been threatened by defendant. He chose not to do so.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A0309.
    HAMBRICK v. THE STATE.
    (378 SE2d 340)
   Banke, Presiding Judge.

The appellant was convicted of burglary. His primary complaint on appeal concerns the trial court’s refusal to give his requested charge on criminal trespass as a lesser included offense.

The appellant was arrested while standing just inside the unlocked rear door of a Sears store which had been secured for the night only a few minutes earlier. He explained to the arresting officer that “he was looking for some food and a place to get warm.” There was no evidence that the appellant was in possession of burglary tools or property belonging to the store, and the officer testified that there was no sign of a forced entry.

The appellant testified that he had lived on the streets for the previous four years, scavenging for food in trash cans and dumpsters. He stated that he had been searching through a trash can behind a restaurant in the shopping center where the Sears store was located when he noticed that the door to the Sears store was open. Explaining that he knew there was an area in the back of the store “where they kept the refrigerator and cookie machines,” he testified that he “walked in and went straight to where they kept the food and stuff at, the refrigerator, and started looking in the trash can.”

The trial court concluded that the appellant was not entitled to a charge on criminal trespass as a lesser included offense because he had admitted to entering the building with the intent to commit a theft therein when he testified that he entered to get food. Not knowing that his requested charge on criminal trespass would be refused, the appellant’s counsel had already argued to the jury that his client should be found guilty of the lesser offense; and during the course of their deliberations, the jury returned to the courtroom to ask “if we can consider, as [appellant’s counsel] suggested, a charge of criminal trespass.” The judge responded by instructing them as follows: “You can either find one of two verdicts in this case. You can either find [the appellant] guilty of burglary or not guilty of burglary.” Held:

1. Where the evidence establishes without conflict that a burglary in fact occurred, and the defendant simply denies being the one who committed it, the crime of criminal trespass merges with the crime of burglary, and no charge on criminal trespass is required. See Deese v. State, 137 Ga. App. 476, 477 (3) (224 SE2d 124) (1976); Varnes v. State, 159 Ga. App. 452, 453 (2) (283 SE2d 673) (1981). However, the evidence in this case does not establish without dispute that a burglary occurred. The appellant testified that he did not intend to steal anything from inside the store but merely hoped to find some food in the trash can in the vending machine area. Because any such food would have been discarded, it would not necessarily have been a violation of anyone’s property rights for the appellant to have taken it. See Williams v. State, 187 Ga. App. 859 (2) (371 SE2d 673) (1988) (holding that a defendant accused of theft by taking was entitled to defend against the charge on the theory that he reasonably believed the property had been discarded). Thus, a jury might reasonably have determined under the circumstances of this case that although the appellant acted unlawfully in entering the store, he did not enter “with the intent to commit a felony or theft therein,” so as to be guilty of burglary within the contemplation of OCGA § 16-7-1 (a). Accordingly, we hold that the trial court erred in refusing to give the appellant’s requested charge on criminal trespass as a lesser included offense.

2. The court did not err, however, in “restricting] the [jury’s] right to return a conviction based upon the crime of theft by taking. . . .” Since the appellant unquestionably had entered or remained in the building without authority, a finding that he had committed a theft would necessarily have established his guilt of burglary. “Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.” Burley v. State, 172 Ga. App. 34, 35 (321 SE2d 783) (1984).

3. Nor did the trial court err in denying the appellant’s motion for a directed verdict of acquittal on the burglary charge. Although the jury could have concluded from the appellant’s testimony that he did not intend to commit a theft inside the building, it was not required to do so. “[P]roof of unauthorized entry does not dispense with the need to further show such entry was with the intent to commit a felony or theft; it does make, however, the jury’s conclusion, reached by consideration of all circumstances connected with the act, that the requisite intent was present, a logical one.” Ealey v. State, 139 Ga. App. 604, 606 (229 SE2d 86) (1976). Inasmuch as there were certain inconsistencies in the appellant’s testimony, and inasmuch as the unauthorized entry or presence of an individual inside a retail store which has been secured for the night may in and of itself be considered suggestive of an intent to take something of value, we hold that the evidence in this case was sufficient to enable a rational trier of fact to find .the appellant guilty of burglary beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. The trial court did not err in refusing to give the appellant’s requested charges to the effect that intent is an essential element of a crime which may not be presumed but must be proved by the state beyond a reasonable doubt. The charge given by the court amply and completely covered these principles and was not unconstitutionally burden shifting.

Decided January 18, 1989

Rehearing denied January 31, 1989

Mullins, Whalen & Shepherd, Samuel H. Sullivan, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

5. The appellant’s remaining enumeration of error is directed to the trial court’s failure to hold a pre-charge conference to inform counsel of its proposed action on the requests to charge prior to closing arguments, as required by OCGA § 5-5-24 (b). We decline to address this asserted error inasmuch as such an omission is not likely to reoccur upon any retrial of the case.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    77279.
    In the Interest of K. E. B.
    (378 SE2d 171)
   McMurray, Presiding Judge.

This appeal is from an order terminating the parental rights of the mother and father of K. E. B., a two-year-old child.

K. E. B.’s mother is 17 years of age and is unemployed. The father is 35 years of age, is afflicted with “muscular dystrophy” and is receiving Social Security disability benefits due to his handicap.

During the evening of July 26, 1986, K. E. B.’s parents brought the child, who was then four months old, to “the emergency room at Habersham Medical Center. . . . The mother stated that there was an acute onset of nausea and vomiting that day [and that the] child was not eating well.” A physical examination revealed that K. E. B. “was alert, was without significant physical findings, including any significant bruises that were evident or noted or any obvious injuries. She was noted to have a soft abdomen, normal bowel sounds, did not vomit during the stay in ER, and in fact was able to take some fluids there and was diagnosed as having acute viral gastroenteritis and discharged home to be followed by a private physician.”

Two days later, “the child was brought without warning to the emergency room at 2:25 p.m. [by the] Baldwin Police Department” and it was noted by the emergency room physician that the child was “having difficulty breathing [and was] pale, lifeless, with some slight attempts to cry.” The treating physician also noticed that “[t]he child had bruising to the [right] cheek[, but] no other outward signs of injury. ...” A closer physical examination revealed that K. E. B. had “difficult raspy respiration at about 30 per minute. There was some gasping. Her skin was cool and dry. Temperature was subnormal at 95. Pulse was 83, [about half what it should be, and it was] barely palpable in the femoral regions. There was no detectable blood pressure by standard measuring techniques.” In short, K. E. B. was in “shock.”

A team of physicians acted rapidly and were successful in restoring K. E. B.’s respiration, heartbeat and blood pressure. “[T]here were chest X-rays performed on the child as well as skull X-rays.” It was discovered “that there were bilateral tenth rib fractures, which were subacute, meaning they had already undergone some changes of healing which meant that they were old.” “The skull examination was really pretty much unrevealing[; however, there] was some widening detected of the anterior suture line, [the front of the skull where the bones are closely united,] which made it difficult to rule out a skull fracture.”

After K. E. B. became “stable,” she was “air lifted ... to the Scottish Rite Children’s Hospital [in Atlanta, Georgia].” It was there discovered that the child’s threatening condition was a result of “bilateral subdural hematomas,” which “caused . . . increasing pressure ... in the brain and swelling of the brain tissue.” K. E. B. “had two [surgical] procedures ... to draw fluid from the brain . . .”, and, after more than a month in the hospital, K. E. B. was released to the custody of the Habersham County Department of Family and Children Services and is currently retained in foster care.

Neither parent could reasonably explain the cause of K. E. B.’s injuries. However, the mother later pleaded guilty to one count of cruelty to children in that she “maliciously” caused K. E. B. to suffer injuries. (A psychological evaluation of the mother reveals that she has severe limits on her aggressive impulses when overwhelmed by stress.) The father was not convicted for any crime relating to K. B. B.’s injuries. In fact, it appears that he was at work at the time K. E. B. sustained head injuries. (A psychological evaluation of the father indicates that he is “shy, retiring and timid” and may be unable to protect K. E. B. in the wake of his wife’s violent response to child-rearing stress.)

After the Department of Family and Children Services assumed custody of K. E. B., the parents were informed by “a Case Worker Principal” that they could visit with K. E. B. once a month at the “Family and Children’s Services Office.” More specifically, the “Case Worker Principal” “talked with [K. E. B.’s parents] about the goal of . . . going to parenting classes as well as counseling for both of them and regular visitation. ...” She later arranged for K. E. B.’s parents to pay the Department of Family and Children Services $10 per month for child support. However, it was not until December 29, 1986, that the Juvenile Court of Habersham County entered an order placing K. E. B. in the temporary custody of the Department of Family and Children Services, “effective August 18, 1986.” The temporary custody order provided “that the parents shall submit to family counseling and such other reasonable requests and services as are provided by the Habersham County Department of Family and Children Services.” The parents were also required to “undergo a psychological examination and [to] submit to such reasonable continued psychological treatment as the initial examination shows to be warranted.” The order further provided that “[visitation shall be specifically limited to such times and places as the Habersham County Department of Family and Children Services deems appropriate between the parents and said child [and that] periodic administrative review of this matter will be held and that each of the parents will be provided with specific goals that must be obtained before the child above named can be returned to their care and custody.”

Both parents have regularly visited with K. E. B. and have displayed a great deal of concern regarding loss of their parental rights. However, they have been somewhat less than diligent in fulfilling the other “goals” suggested by the Department of Family and Children Services’ “Case Worker Principal.” In this regard, neither the mother nor father have pursued mental health counseling, the parents have attended only two parenting classes and they have made only one child support payment.

After conducting three hearings, the juvenile court entered an order and concluded “that there is a high degree of likelihood that [the mother], when presented with a stressful situation, would commit cruelty toward her daughter, [K. E. B.], and that because of his physical disability, and because of his inability to influence or affect [the mother’s] behavior, [the father] could not protect his daughter against such behavior.” The Court further found “that both parents have failed to comply with the Court-ordered plan designated to reunite the child with her parents [and ordered] that the parental rights of [the parents] are hereby terminated as to their daughter, [K. E. B.], and that the child [be] committed to the custody of the Department of Human Resources. . . .” Held:

A termination of parental rights because of parental misconduct or inability is a remedy of last resort which can only be sustained after “clear and convincing” evidence that “[t]he child is a deprived child, as such term is defined in Code Section 15-11-2; [that] lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; [that such] cause of deprivation is likely to continue or will not likely be remedied; and [that the] continued deprivation will cause or is likely to cause serious physical, mental, emotional or moral harm to the child.” (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (A) (i)-(iv). See Blackburn v. Blackburn, 249 Ga. 689, 691 (292 SE2d 821).

In the case sub judice, Robert L. Frady, “a psychologist, licensed by the Georgia State Board of Examiners,” examined K. E. B.’s mother and father and concluded that both parents lack certain parenting skills necessary to provide K. E. B. a safe home environment and that it would be in the best interest of the child to “remain in foster placement” until the parents can be treated for their deficiencies. More specifically, Dr. Frady affirmed that the mother “has severe limits to her ability to curb her aggressive impulses when overwhelmed by stress”: and testified that she “could benefit from effective parenting training and training geared toward reduction of her behavioral outbursts, anger management training, control of impulsive response and intervention directed at controlling her anger that is partly related to her history of being abused. . . .” With regard to the father, Dr. Frady reported that “[h]e may have difficulty making even minor decisions and may become overwhelmed by major ones,” and testified that the father “could benefit from effective parenting training and assertiveness training dealing with his wife’s aggressive outbursts.” This testimony, along with other “clear and convincing” evidence that K. E. B. was severely abused by her mother, is sufficient to sustain the juvenile court’s finding that the parents are presently unfit to care for K. E. B. See Jones v. Dept. of Human Resources, 168 Ga. App. 915, 916 (1) (310 SE2d 753). However, we cannot ignore Dr. Frady’s unchallenged testimony that he “didn’t have any data . . . indicating number one, [that K. E. B.’s parents] couldn’t change, and number two, that they had had access to the type of [behavioral training and psychological] intervention that they needed.” Nor can we ignore Dr. Frady’s “prognosis” that with appropriate treatment the father’s “ability for developing effective parenting skills appears to be quite good” and his opinion that the mother’s “prognosis” is “guarded.” This testimony brings into question the sufficiency of the evidence regarding the likelihood of parental habilitation as is contemplated by OCGA § 15-11-81 (b) (4) (A) (iii). From this perspective, we examine the evidence relating to the trial court’s finding that “both parents have failed to comply with the Court ordered plan designed to reunite the child with her parents.”

Although it is undisputed that the parents failed to attend psychological counseling and were sporadic in attending parenting classes, Dr. Frady testified that the mother and father’s apparent lack of motivation in following these guidelines was due to their “[u]nsophistication, immaturity [and] lack of trust of State agencies.” Dr. Frady explained that the parents did not seem to fully understand the “plan” provided by the Department of Family and Children Services’ “Case Worker Principal,” that they did not know the “types of treatment they need, where they need to go” and that the parents felt that their relationship with the Department of Family and Children Services was “adversarial.” In fact, Dr. Frady indicated that there was no “clear” and effective plan designed to reunite the family and suggested that the parents be provided with a habilitation plan specifically designed to “head them in the right direction, structure it, lay it out, and then if we don’t have compliance, then well, we terminate [parental rights].”

We affirm Dr. Frady’s suggestion since there was less than “clear and convincing” evidence that the parental unfitness which caused K. E. B.’s deprivation “will not likely be remedied.” OCGA § 15-11-81 (b) (4) (A) (iii). Compare In the Interest of P. F. J., 174 Ga. App. 47 (2) (329 SE2d 194) and In the Interest of C. M. S., 185 Ga. App. 549, 550 (2) (364 SE2d 908). We also find no competent evidence showing that the father’s physical disability will likely impair his ability to care for K. E. B. In this regard, there was no evidence that a physical evaluation of the father had been performed, no competent testimony outlining the various forms and consequences of “muscular dystrophy” and no expert testimony identifying the father’s physical limitations or whether his physical condition will deteriorate.

“ ‘There is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously.’ McCormick v. DHR, 161 Ga. App. 163, 164 (288 SE2d 120) (1982).” Jones v. Dept. of Human Resources, 168 Ga. App. 915, 916 (1), supra. In view of the circumstances of the case sub judice, the trial court’s order terminating the parents’ parental rights is vacated and the case is remanded for consideration of alternative dispositions as expressly authorized by OCGA § 15-11-81 (c). See OCGA § 15-11-34. See also Jones v. Dept. of Human Resources, 168 Ga. App. 915 (1), 917, supra.

Decided January 31, 1989.

Winslow H. Verdery, Jr., for appellant.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, Ernest H. Woods III, for appellee.

Judgment vacated and case remanded with direction.

Pope and Benham, JJ., concur.

       Muscular dystrophy is “a group of genetically determined, painless, degenerative myopathies characterized by weakness and atrophy of muscle without involvement of the nervous system. There are three main types: pseudohypertrophic muscular dystrophy, Landouzy-Déjerine dystrophy, and limb-girdle muscular dystrophy. Rarer forms are distal muscular dystrophy, ocular myopathy, and myotonic dystrophy.” Dorland’s Illustrated Medical Dictionary (25th ed.) p. 488. The structural and functional changes associated with the various forms of muscular dystrophy are marked by varying degrees of physical disability and bear heavy on the victim’s ability to lead a normal and physically independent life. Dorland’s Illustrated Medical Dictionary (25th ed.), supra.

       The mother was sentenced as a first offender to serve 10 years on probation with the following special conditions of probation: “1. Seek mental health evaluation and treatment as may be directed by Probation Officer. 2. Do not seek custody, or interfere with the Department of Family and Children Services in regard to custody of any child. 3. Attend school, or vocational training insofar as possible. 4. Maintain employment insofar as possible.”

       Dr. Frady recommended specialized clinical intervention, involving “one on one individual training with [both parents] as well as observation with them interacting with [K. E. B.].”


author: Carley, Judge. Deen, Presiding Judge,

text:
    77343.
    PARKER v. THE STATE.
    (378 SE2d 503)
   Carley, Judge.

Appellant was tried before a jury and found guilty of the offenses of sodomy and sexual exploitation of children. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

Appellant enumerates only the general grounds. The evidence, construed most strongly in favor of the guilty verdict, shows the following: The victim testified that he and a friend were driven by appellant to appellant’s house where a party was being held. A witness for the State testified that he had been hired to videotape the party. At the party, the victim and appellant’s roommate engaged in an act of sodomy on a couch in the living room. Their sexual activity was videotaped. The victim testified that appellant had actively participated in the videotaping of the act of sodomy. The victim explained that appellant had stood “beside the cameraman telling him what to do” and had held the light for the camera during the taping. The cameraman testified that it was appellant who had accepted, delivery of a final copy of the tape. The victim testified that he had performed sexual acts with appellant in return for money and gifts on several occasions prior to the night of the party.

Appellant urges that the evidence shows only his presence at the scene of the videotaped act of sodomy between his roommate and the victim. “ ‘Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime . . . if he . . . (i)ntentionally aids or abets in the commission of the crime. . . .’ OCGA § 16-2-20. Presence at the scene is not sufficient. [Cit.] ‘Even approval of the act, not amounting to encouragement, will not suffice.’ [Cit.] And mere knowledge, by a private citizen, that a crime is going to be committed, in the absence of the duty to prevent it, does not make the citizen guilty of participating in the crime. [Cits.] Our sister states and federal courts have generally held that aiding and abetting the commission of crime requires affirmative action, and an individual’s mere knowledge that a crime will be committed, and failure to take steps to prevent that crime, do not amount to aiding and abetting. [Cits.] However, if the person had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. [Cits.] Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting commission of the crime. [Cit.]” (Emphasis omitted.) Whitley v. State, 176 Ga. App. 364, 366-367 (lc) (336 SE2d 301) (1985). See also Soltow v. State, 182 Ga. App. 716 (3) (356 SE2d 750) (1987); Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). After reviewing the evidence, we find that a rational trior of fact could have reasonably found from the evidence adduced at trial that appellant had arranged for the victim to be present at the party and that he actively engaged in videotaping an act of sodomy between his roommate and the victim. This evidence would authorize a finding that appellant was guilty of the offense of sodomy as an aider and abettor and was guilty of the offense of exploitation of children as either a principal or as an aider and abettor. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion to the effect that appellant’s presence and participation in preparing the videotaped photography-type pornography of the acts of sodomy support the judgment of conviction and sentences entered on the jury verdicts relating to the offenses of sodomy and sexual exploitation of children, reservations as to two cited cases are registered. Whitley v. State, 176 Ga. App. 364 (336 SE2d 301) (1985), is a two-judge case inasmuch as one judge “concurs in the judgment only.” Also Soltow v. State, 182 Ga. App. 716 (356 SE2d 750) (1987), which relies upon and cites Whitley, is itself a two-judge case inasmuch as one judge concurred specially, challenging the portion and division of Soltow which had cited Whitley. We do not need to cast the shadows of two questionable cases upon the instant case.

Decided January 31, 1989.

M. Muffy Blue, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Doris L. Downs, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.


text:
    77427.
    FRESH & FANCY PRODUCE, INC. v. BRANTLEY et al.
    (378 SE2d 379)
   Birdsong, Judge.

The appellant, Fresh & Fancy Produce, Inc. (“Fresh & Fancy”) appeals a grant of summary judgment on two promissory notes sued upon by appellees Jean Collins and Sam Brantley. The promissory notes, in the amounts of $25,000 and $6,000 respectively, were executed in 1984 on behalf of Fresh & Fancy by Charles C. Collins, as then-president of the corporation.

Fresh & Fancy denied the obligation, asserting the execution of the notes by Collins to be ultra vires and part of an elaborate scheme to make Fresh & Fancy liable by note to pay Jean Collins and Brantley for Charles Collins’ own investment in the company with money which essentially originated with himself and/or his wife Jean Collins.

Fresh & Fancy also filed á third-party complaint against Charles Collins for such unauthorized acts and his alleged machinations of fraud, duplicity and vexation. This third-party complaint is still pending.

To the trial court’s grant of summary judgment to plaintiffs Brantley and Jean Collins as to Fresh & Fancy’s liability on the notes, Fresh & Fancy enumerates three errors. Held:

1. Appellant contends the trial court erred in denying a transfer of the case to the Superior Court of Clayton County, pursuant to Rule 3.2 of the Uniform Superior Court Rules. Rule 3.2 provides for assignment or transfer of companion, related and “derivative” cases, where substantially the same parties or subject matter or factual matter, are involved. The appellant in brief has alleged a welter of evidentiary matters, and leaves it to us to infer that the same matters were being litigated in another suit in Clayton Superior Court.

Appellant has failed to show any factors inclining transfer of cases by Superior Court Rule 3.2. There is nothing in its presentation to this court to show that a related case involving substantially the same parties, subject matter, or factual matter was pending or settled elsewhere. This enumeration is without merit.

2. The trial court did not err in granting summary judgment to Brantley and Jean Collins on the promissory notes. The evidentiary proposals, referenced mainly by affidavits of appellant’s attorney and others, appear to deal mainly with the authority, by corporate by-law, of Charles Collins to execute the notes; and an alleged dispute as to whether such by-laws were in effect when the notes were executed, and as to whether any other corporate officer knew he had borrowed the money.

The trial court in its order of summary judgment dealt with these evidentiary assertions and found with specificity that each of the factual assertions by affidavit was inadmissible for lacking foundation, being merely conclusory, or having no probative value; or as being wholly immaterial to appellant’s liability on the notes executed by its then-president.

Appellant has not suggested to this court, or shown, that the trial court erred in any of these evidentiary rulings which led that court to the conclusion that there was no material issue of fact. Neither has appellant shown that any of these alleged factual matters affects appellant’s liability on the notes. The by-law states the president “shall only borrow money on behalf of the Corporation pursuant to specific authority from the Board of Directors.” If Collins lacked any such authority to execute the notes, there appears to be no evidence the appellees knew of any such restriction or lack of authority. Any evidence that Brantley had some of the corporate records, including bylaws, does not prove that he knew Collins did not have “specific authority” to execute the notes, so as to revive a jury issue. Brantley swears by affidavit that he had no knowledge of any particular restrictions. Appellant has not pointed out to us any specific, non-conclusory evidence to the contrary. In response to motion for summary judgment, it is not enough to dispute a sworn fact by proposing an indistinct conclusion to the contrary, but the respondent must “say what he has to say at the right time,” by producing evidence that rebuts the prima facie right to judgment. Davis & Shulman, Ga. Prac. & Proc. § 9-10, (5th ed.) and cases cited. There is therefore no evidence except the shadow of an issue by speculation (see Reid v. Nat. Bank of Ga., 149 Ga. App. 834 (256 SE2d 82)) to rebut Brantley’s affidavit that he actually knew of no such restrictions, so as to relieve the corporation of liability under OCGA § 14-2-150 (g). This is particularly and materially conclusive in view of OCGA § 14-2-22, which restricts a corporation’s generalized use of an “ultra vires” defense. See esp. Free For All &c. Baptist Church v. Southeastern Beverage &c. Co., 135 Ga. App. 498 (218 SE2d 169).

Decided January 31, 1989.

William H. Turner, Jr., for appellant.

J. Dunham McAllister, Alfred L. King, Jr., for appellees.

3. Appellant made a counterclaim with a third-party complaint against Collins, alleging inter alia a conspiracy against appellant by Collins and appellees Brantley and Jean Collins by false pretenses to “wrongfully recover money” it does not owe, and a Yost claim, Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).

Appellant complains that the trial court failed to address the appellees’, Brantley and Collins, motion for judgment on the pleadings as to this counterclaim. In fact, while granting summary judgment to Brantley and Jean Collins against appellant as to liability on the notes, the trial court held also that some of the evidence may well be material as to the third-party claim by appellant, Fresh & Fancy Produce, Inc. By leaving this third-party claim intact, the trial court left alive any question of fraud or deceit, scheme or conspiracy as to whether Collins or other persons committed actionable damage to appellant. But as to the simple issue of liability of the corporation on the notes, the evidence leaves no dispute. This is not to say nothing improper was done to make or obtain the notes, but merely that such was not proved so as to survive summary judgment.

If there are issues of fraud and deceit, they might be proved under the third-party complaint and other evidence. But this appeal does not show error by the trial court on this grant of summary judgment, and that is all it ruled, and all we rule.

Judgment affirmed.

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


text:
    77678.
    GREEN v. THE STATE.
    (378 SE2d 178)
   McMurray, Presiding Judge.

Defendant appeals from his conviction of burglary. Held:

1. Defendant first contends that the trial court’s charge on involuntary intoxication was surplusage and that it tainted his defense of mental impairment due to voluntary intoxication. Defendant reasons that the surplus charge confused the trial court’s instruction regarding the impact of intoxication on a person’s ability to form the requisite mental intent to commit a crime.

A “charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. Weaver v. State, 67 Ga. App. 692 (2b) (21 SE2d 542) (1942).” Davis v. State, 167 Ga. App. 701 (1), 702 (307 SE2d 272). In the case sub judice, we have examined the trial court’s instruction on the impact of intoxication on a person’s ability to form the requisite mental intent to commit a crime and find that it was not an erroneous charge. See Blankenship v. State, 247 Ga. 590, 591 (3) (277 SE2d 505). Further, while the charge on involuntary intoxication may have been surplusage, we cannot agree that the surplus instruction misled the jury.

Decided January 31, 1989.

Gwendolyn A. Atkinson, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

2. Next, defendant contends that the trial court erred in giving repeated instructions that “alcoholism was no defense to a crime and that voluntary intoxication was no defense to a crime.” We have examined the trial court’s charge to the jury in its entirety and, taken as a whole, we find that the instructions were not prejudicial to defendant. Bentley v. State, 179 Ga. App. 287, 288 (2) (346 SE2d 98).

Judgment affirmed.

Pope and Benham, JJ., concur.