author: McMurray, Presiding Judge. Beasley, Judge,

text:
    73985.
    TAPLEY et al. v. VEAL et al.
    (357 SE2d 268)
   McMurray, Presiding Judge.

On April 17, 1986, appellees brought a petition for the adoption of A. L. T., a minor child. In the petition, appellees alleged that the natural mother of the child executed a surrender of parental rights and an acknowledgment of surrender pursuant to OCGA § 19-8-4. They also alleged that surrender or termination of the parental rights of the natural father was unnecessary because he abandoned the child and failed significantly, for a period of one year or longer immediately preceding the filing of the petition, to provide for the care and support of the child as required by law. The petition was served upon the natural father on May 16, 1986. He did not file a written response to the petition.

On July 31, 1986, a hearing was held to determine the propriety of the adoption. The natural parents were present and they contested the adoption. Nevertheless, the superior court granted the petition for adoption. It concluded that the natural mother voluntarily surrendered her parental rights and that she failed to revoke that surrender within 10 days; that surrender or termination of the natural father’s parental rights was not required because he “failed significantly to provide for the care and support of the child, both financial and emotional, for a period in excess of one year immediately [prior to] the filing of the petition for adoption”; that appellees were willing and able to provide a safe and stable environment for the child; and that the best interests of the child would be served by granting the adoption. The natural parents appealed.

The following evidence was presented in the superior court: During the course of their 10-year marriage, appellants experienced financial hardship. On many occasions, they were unable to pay their rent or utility bills. Appellants were constantly evicted and they moved often. The father, a printer, was out of work frequently.

During a period of several months in late 1984, appellants left their four children in Macon with their maternal grandmother while the father, accompanied by the mother, tried to find a job in various cities. The grandmother was unable to watch all of the children herself because she worked. Accordingly, she solicited the help of others. One couple took care of appellants’ youngest child, A. L. T. Appellants did not send money to provide for the support of the children during this period. On Thanksgiving Day, appellants went through Macon on their sojourn but they did not take time to visit with A. L. T.

After a few months, the father found a job and appellants’ family was reunited. The family remained intact until November 1985. At that time, the father was incarcerated after he pleaded guilty to “purse snatching.”

The father was given first offender treatment and was able to keep his job under a work-release program. Pursuant to the program, the father was let out of jail each day to go to work. During this period of time, the father saw his children frequently because he often returned home to get his clothes. The mother met the father each payday and accompanied him to the bank. After the bank cashed the father’s pay check, he gave a certain amount to his wife. (The father testified he only kept “spending money” and the mother was given the balance of each check. Mrs. Veal, one of the appellees, testified that the mother informed her she was only given a small sum by the father each week.)

In March of 1986, while the father was still in jail, the mother decided that she would have to divorce him, that it would be too difficult to raise all four children alone, and that, therefore, it would be best to give up the two youngest children for adoption. The maternal grandmother thought that appellees might be interested in adopting A. L. T. and they were. They took custody of the child on March 14, 1986. At that time, the mother executed the surrender of parental rights. Shortly thereafter, this petition for adoption was filed by appellees.

The mother changed her mind about the divorce and the adoption of her children. She informed appellees that she wanted A. L. T. back. Appellees pressed on. The father never consented to the adoption of A. L. T. He informed the investigating caseworker that he opposed the adoption. Yet, he did not provide financial support for the child or visit the child during the pendency of the adoption proceeding. Held:

1. Pursuant to OCGA § 19-8-6 (a), a person may seek the adoption of a child without first obtaining a surrender or termination of parental rights if the child has been abandoned by the natural parent. Under OCGA § 19-8-6 (b), a close relative of either natural parent may seek the adoption of a child without first obtaining a surrender or termination of parental rights if the natural parent has failed significantly for one year or longer immediately prior to the filing of the petition for adoption to communicate or to make a bona fide attempt to communicate with the child or to provide care and support for the child. See generally In re A. J. A., 164 Ga. App. 210, 211 (296 SE2d 103).

Decided April 17, 1987

Rehearing denied May 18, 1987.

James M. Wootan, for appellants.

In the case sub judice, neither appellee is a close relative of the natural parents. A surrender of parental rights was obtained from the natural mother of the child. But the natural father refused to consent to the adoption. Accordingly, it was incumbent upon the superior court to weigh the evidence under OCGA § 19-8-6 (a). In other words, the court should have determined whether the natural father abandoned the minor child. This the court failed to do. The court merely determined that the natural father significantly failed to provide for the care and support of the child for a period exceeding one year. Such a determination is not the equivalent of a finding of abandonment. See Crumb v. Gordon, 157 Ga. App. 839 (278 SE2d 725). It follows that the superior court erred in granting the petition for adoption. Spires v. Bittick, 171 Ga. App. 914, 917 (321 SE2d 407). This case must be remanded for further consideration. In re J. S. J., 180 Ga. App. 873 (350 SE2d 843).

In re A. J. A., 164 Ga. App. 210, supra, does not require a different result. In that case the superior court made a specific finding of abandonment. No such finding was made in the case sub judice.

2. In view of our ruling hereinabove, we need not consider the remaining enumerations of error.

Judgment reversed and case remanded for proceedings not inconsistent with this opinion.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in all that is said except that I would consider the discussion regarding insufficient evidence of abandonment to be merely dicta. We have ruled, rightly, that the superior court applied the wrong statutory criteria. Having so concluded, reversal is in order. Since the court never weighed and ruled on the evidence of abandonment, I do not believe it is incumbent on this reviewing court to do so in the first instance.

Philip T. Raymond III, for appellees.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    74450.
    74451.
    COCA-COLA COMPANY v. DENMARK. SAVANNAH COCA-COLA BOTTLING COMPANY v. DENMARK.
    (357 SE2d 286)
   Deen, Presiding Judge.

Joleen Denmark, plaintiff in the captioned cases, was employed by Williams Seafood Company (Williams) in Savannah. She allegedly sustained an electrical shock while she was cleaning one of the two Coca-Cola dispensing machines located on her employer’s premises. She brought an action against Williams; against Sitco, Inc., manufacturer of the machines; against Savannah Coca-Cola Bottling Co. (Savannah Coke), which had leased the machines to Williams, installed them, and supplied the drink mixture and made appropriate adjustments when needed; and against The Coca-Cola Company (Coke), owner of the machines. She charged Savannah Coke with negligence and Coke with negligence and strict liability.

Both Savannah Coke and Coke moved for summary judgment. The former alleged that it was neither the manufacturer nor the owner of the machine(s); that it only delivered and stocked the equipment; that it was not negligent in delivery, stocking, or service; and that there were no genuine issues of material fact in the case such as to require trial. The latter defendant, Coke, based its motion on the ground that it neither manufactured, installed, nor maintained the machine(s); and, further, that there were no genuine issues of material fact involved in the case. Plaintiff/appellee filed the affidavit of an expert witness who opined that the offending machine should have been tested by Savannah Coke to determine that it was adequately grounded. She also filed, inter alia, the affidavit of a former Williams assistant manager to the effect that the other machine had previously shocked persons and that Savannah Coke had been so notified and had sent someone to ground it; and that, furthermore, the second machine (the one which allegedly shocked Ms. Denmark) had been installed without an adequate ground but had not shocked anyone before Ms. Denmark. Savannah Coke filed, inter alia, the deposition of plaintiff’s expert witness in which he acknowledged that his opinion that the machine was improperly grounded was based on no evidence other than the fact that Ms. Denmark had received a shock.

The trial court denied both Coke’s and Savannah Coke’s motions for summary judgment, and this court granted their applications for interlocutory appeals. Coke enumerates as error (1) the trial court’s failure to rule as a matter of law that Coke could not be held strictly liable because it was not the manufacturer of the offending machine; (2) the court’s alleged failure to recognize plaintiff’s allegedly improper and unjustified reliance on the doctrine of res ipsa loquitur, (3) , (4), the court’s denial of summary judgment allegedly in the absence of evidence of negligence or of proximate cause. Savannah Coke makes a general assignment of error to the trial court’s denial of its motion for summary judgment. Held:

1. Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” OCGA § 9-11-56 (c); Pugh v. Frank Jackson Lincoln-Mercury, 165 Ga. App. 292 (300 SE2d 227) (1983); Southeastern Fid. Ins. Co. v. Tesler, 159 Ga. App. 60 (282 SE2d 703) (1981). In terms of evidentiary standards, the award or denial of summary judgment is analogous to the granting or the denial of a directed verdict. Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981). All evidence must be construed against the movant; the party opposing the motion is to be given the benefit of all reasonable doubts and favorable inferences. Id. See also Pugh v. Frank Jackson Lincoln-Mercury, supra; Hanover Ins. Co. v. Nelson Conveyor &c. Co., 159 Ga. App. 13 (282 SE2d 670) (1981). Moreover, when the movant is the defendant, he bears a double burden: he must pierce the plaintiff’s pleadings and affirmatively negate one or more of the elements of plaintiff’s case, and he must establish that there are no genuine issues of material fact to be tried. Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465) (1983). Questions of negligence and diligence are not ordinarily amenable to summary adjudication but are reserved for the jury. Malvarez v. Ga. Power Co., 166 Ga. App. 498 (304 SE2d 542) (1983); Fort v. Boone, supra.

In the instant case we are not persuaded that defendant/appellant Savannah Coke has carried its statutory burden; the evidence adduced does not demand a verdict. There is conflicting evidence regarding, inter alia, whether or not Savannah Coke had notice that one of the machines had shocked a person or persons prior to Ms. Denmark’s experience, and as to whether the two machines were sufficiently similar that notice concerning one of them should have put Savannah Coke on notice regarding the other. These issues, as well as that of causation, are properly for the jury. See Fort v. Boone, supra. We find no merit in Savannah Coke’s contention that the trial court erred in denying summary judgment. OCGA § 9-11-56.

Decided May 4, 1987

Rehearing denied May 18, 1987

Joe C. Freeman, Jr., Edward M. Newsom, for appellant (case no. 74450).

Frank W. Seiler, Wiley A. Wasden III, Roy E. Paul, for appellant (case no. 74451).

Walter W. Ballew III, for appellee.

2. As to Coke, however, the record reveals that plaintiff/appellee has abandoned the strict liability count with respect to that appellant. With the case stripped to its essentials, there remains against Coke only the negligence count, which appellee pursues on the theory of agency, arguing that Savannah Coke’s alleged negligence should be imputed to Coke. In advancing this argument appellee urges res ipsa loquitur: “the matter speaks for itself [of negligence].” We find no merit in these theories as applied to the facts of case no. 74450, and therefore find no genuine issue of material fact which would preclude summary judgment for Coke. The trial court erred in denying summary judgment to this appellant.

Judgment reversed in case no. 74450; judgment affirmed in case no. 74451.

Birdsong, C. J., and Pope, J., concur.

       The original complaint named only Savannah Coke as defendant. Plaintiff subsequently moved to add the other named defendants as parties to the action. The Coca-Cola Co. was originally denominated as “Coca-Cola U. S. A.” Neither Williams nor Sitco is a party to this appeal.


author: Benham, Judge.

text:
    73822.
    JACKSON v. THE STATE.
    (357 SE2d 321)
   Benham, Judge.

Appellant was charged with two counts of aggravated assault upon a peace officer. OCGA § 16-5-21 (c). The jury was instructed, at appellant’s request, on the elements of mutiny and found appellant guilty of one count of mutiny. In his sole enumeration of error, appellant asserts that the evidence presented against him was not sufficient to support the conviction of mutiny.

A person commits mutiny when he, while in the lawful custody of a penal institution, “assails, opposes, or resists an officer of the law or of such penal institution or a member of the guard with intent to cause serious bodily injury. . . OCGA § 16-10-54. The State presented evidence that appellant, an inmate at Buford Correctional Institute, raised a metal chair above his head and, on his downward swing, struck a correctional officer on the arm. The officer received a glancing blow because his fellow officer had pushed him out of the downward path of the chair. Still armed with the chair, appellant again attacked the victim, who blocked the chair from hitting his head by fending off the blow with his arms. Once subdued, appellant threatened to kill the officer. Appellant contends there is no evidence that he acted with the requisite intent to cause serious bodily injury.

Decided May 18, 1987.

Lawrence L. Washburn III, for appellant.

Thomas C. Lawler III, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

“ ‘Sometimes the intention can be proved, sometimes it can only be inferred or presumed; and the general rule laid down by our Code is, that the intention will be manifested by the circumstances connected with the perpetration of the offense . . . [T]he intent with which an act is done is peculiarly a question of fact for determination by the jury.’ [Cit.] . . . We are of the opinion that the evidence was sufficient for the jury to determine beyond a reasonable doubt that appellant acted with the intent to cause serious bodily injury to the [correctional officer] he struck.” Weaver v. State, 170 Ga. App. 731 (4) (318 SE2d 196) (1984). See also Weaver v. State, 176 Ga. App. 639 (2) (337 SE2d 420) (1985). The acquittal of appellant of aggravated assault upon a peace officer does not compel a different conclusion, since in aggravated assault of the type charged in the indictment, we look to the means by which one attempted to inflict injury; in mutiny, to the intended result.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Birdsong, Chief Judge.

text:
    74084.
    UNITED STATES ELEVATOR CORPORATION v. SMYRNA HOSPITAL.
    (357 SE2d 322)
   Birdsong, Chief Judge.

Default Judgment — Excusable Neglect. The facts relevant to this appeal show that U. S. Elevator had installed elevators in the Smyrna Hospital and was responsible for maintenance of the same. On September 8, 1984, a fire occurred in the elevator control room causing substantial property damage. By letter dated December 14, 1984, U. S. Elevator was advised by the hospital administrator that the hospital was of the opinion the fire was caused by improper maintenance by U. S. Elevator and sought to recover its losses. Apparently U. S. Elevator concluded the fire was caused by improper wiring which was not within the area of responsibility of U. S. Elevator. As a result the hospital filed suit against U. S. Elevator. Process was served upon U. S. Elevator’s Atlanta agent on April 30, 1986. The process was forwarded by the agent for service to the parent company of U. S. Elevator, the Cubic Corporation, in California. Depending on the size of the alleged claim, Cubic as a self-insurer would either process the complaint directly to an attorney of its choosing or if a large claim, it would refer the process to one of several excess insurers or to a claim handler. This decision was made by Cubic’s risk manager and more specifically by the risk manager’s secretary. When Smyrna Hospital’s complaint was received in Cubic’s headquarters on or about May 6, 1986, the secretary misread the complaint. The complaint alleged the contract had been consummated between the parties in 1982. However, the secretary misconstrued the complaint to say the fire damage had occurred in 1982 whereas in fact the complaint plainly alleged the damage occurred in 1984. As a result of the misreading of the complaint, the document was referred to an excess insurer that handled losses occurring during the year 1982. It is clear that after the complaint was forwarded to the excess insurer on May 6, 1986, no further efforts were made by Cubic to follow up or ascertain if the complaint had been answered within the requisite 30 days or an extension thereof granted by the court or with the consent of the opposing party. On June 23, 1986, 53 days after the process had been served in Atlanta, the hospital moved to place the case on the next available default calendar.

No further action was taken until August 20, 1986, when Cubic’s excess insurer to whom it had referred the process informed Cubic that the case was not within its 1982 case responsibility and it would not take action to defend the suit. Cubic then established its own case file and referred the matter to an attorney in the Atlanta area. The file was forwarded to the Atlanta attorney on September 3, 1986, thirteen days after being notified that no answer had been filed by its excess insurer.

Upon receipt of the process by the Atlanta attorney, a motion was filed on behalf of U. S. Elevator/Cubic to open the default. This was resisted by the hospital. The trial court found as a matter of fact and law that though the default was the result of inadvertence, it also concluded the inadvertence was not the result of excusable neglect. The trial court denied the motion to open the default and entered judgment upon the default in the amount of damages requested by the hospital. U. S. Elevator brings this appeal urging the trial court abused its discretion in concluding the inadvertent failure to file a timely answer was not the result of excusable neglect. Held:

It is not arguable as a proposition of law that the decision whether to open a default judgment falls squarely within the discretionary powers of the trial court granting or denying the same. The exercise of this discretionary power should not excite interference by a reviewing court unless the trial court manifestly abuses the discretion vested within it. Taurus Productions v. Md. Sound Indus., 155 Ga. App. 147, 148 (2) (270 SE2d 337). In this case, U. S. Elevator premised its motion to open default upon excusable neglect. That neglect is reflected first by the misreading of a secretary of the complaint and then compounding the mistaken reading by erroneously referring the complaint to an excess insurer who had no responsibility to prepare a defense. The neglect continued when the risk manager and his secretary, at least one of whom should have been aware that the answer or a granted delay had to be filed or obtained in slightly more than three weeks in order to avoid a default, failed to make any follow up even after the passage of more than 75 days. In point of fact, for all the record shows the parent company (Cubic) apparently would have done nothing further in the case had not the excess insurer informed Cubic that the excess insurer would not defend the case. Even after being informed that an answer would not be filed by the excess insurer, Cubic established a case file but did not assign the case for a defense until the passage of almost two more weeks.

In order for this court to intervene in this proceeding, we must find as a matter of law that there is nothing less than reasonable evidence of excusable neglect on the part of Cubic and U. S. Elevator and that perforce the trial court acted arbitrarily and abused its discretion. While there is evidence offered by Cubic and U. S. Elevator showing that this process and complaint simply got lost in a bureaucratic morass, the evidence also shows there were no apparent safeguards to prevent such errors nor did Cubic or U. S. Elevator take steps to prevent the occurrence of what eventually did occur. While we may not have found an abuse of discretion by the trial court in opening the default, neither can we find an abuse of discretion in refusing to open the default. In short there is ample and convincing evidence to support the trial court’s discretionary act in refusing to open the default.

U. S. Elevator cites to us the cases of Sears Roebuck & Co. v. Ramey, 170 Ga. App. 873 (318 SE2d 740) and Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754 (240 SE2d 136) as similar cases in which it was held the neglect was excusable. While in each of those cases the complaint got lost in the bureaucratic process, each of those cases likewise shows that there were internal procedures designed to follow the cases and that prompt and repeated follow-up action was taken by each of the defendants in those two cases. Like the trial court, we too can determine the precedent of those two cases clearly is distinguishable from the facts of this case, is not dispositive of the issues herein and indeed are inapposite.

We are unable to fault the trial court in this case in the exercise of its discretion in denying the motion to open default and entering judgment thereon.

Decided May 18, 1987.

R. Clay Porter, William E. Gray II, for appellant.

Michael J. Gorby, for appellee.

Judgment affirmed.

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


author: Carley, Judge.

text:
    73717.
    CHEVROLET-PONTIAC-CANADA GROUP, GENERAL MOTORS CORPORATION v. MILLAR.
    (357 SE2d 598)
   Carley, Judge.

The appellant-employer was granted leave to file this discretionary appeal from an order of the .superior court affirming the Full Board’s award of workers’ compensation benefits to appellee-employee.

1. Appellant urges that the award of the Full Board contains factual misstatements. “ ‘(A) misstatement of significant testimony will be ground for referral back to the board of an award (even if) otherwise supported by evidence where it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion.’ [Cits.] ‘The most that the superior court or this court can do is, if it finds a significant misstatement of testimony in the finding of facts which in all likelihood erroneously influenced the award, to remand the case for further consideration. [Cit.]’ [Cit.]” Fidelity & Cas. Ins. Co. v. CIGNA/Pacific Employers Ins. Co., 180 Ga. App. 159, 162 (2) (348 SE2d 702) (1986). Accordingly, the first issue to be determined is whether there are factual misstatements contained in the award and, if so, whether they are of such significance as to warrant a remand.

It does appear that the award erroneously states that appellee had back surgery in March of 1984. Appellee’s surgery was actually performed in March of 1985. However, the error is insignificant. The date that appellee underwent surgery would have no material bearing whatsoever on the ultimate validity of the award. See Murphy v. Uniroyal, 138 Ga. App. 773, 774 (3) (227 SE2d 506) (1976). Compare Fidelity & Cas. Ins. Co. v. CIGNA/Pacific Employers Ins. Co., supra, wherein the date of the employee’s injury was decisive.

The award also misstates that a certain electromyelogram (EMG) study showed abnormal results at the C 6-7 area of appellee’s spine. The results of that specific EMG study were normal. However, evidence of another EMG and of various other tests did show that appellee exhibited abnormalities at C 6-7. Moreover, appellee did eventually require surgery to remove a damaged disc at that space. Considering the additional evidence, any misstatement as to the results of one test would clearly be insignificant. Compare Fidelity & Cas. Ins. Co. v. CIGNA/Pacific Employers Ins. Co., supra, wherein the finding of facts erroneously stated that a herniated disc had been diagnosed months before the only admissible evidence showed that it was actually diagnosed.

Decided May 19, 1987.

Lloyd Sutter, Melvin K. Westmoreland, for appellant.

H. Clifton Conrad, Jr., H. Durance Lowendick, for appellee.

2. Appellant contends that the injury did not arise out of or in the course of appellee’s employment and is, therefore, not compensable.

Prior to seeking workers’ compensation benefits, appellee suffered a back injury in an automobile collision. The award of the Administrative Law Judge (ALJ), as adopted by the Full Board, found that appellee had sustained “an aggravation of her pre-existing condition which arose both out of and in the course of her employment.” “It is the law in this state that if there is any evidence to support a finding of the Workers’ Compensation Board, the superior court may not reverse the award unless errors of law were committed.” Calhoun v. Mergentine/KVN & Horn Fruin-Colnon, 165 Ga. App. 610 (1) (302 SE2d 401) (1983). The award to appellee is supported by evidence that her previously-existing back injury was aggravated by the strenuous physical labor that she performed in her employment with appellant. “ ‘(I)f the employment contributes to the aggravation of the preexisting injury, it is an accident under our compensation law, and is compensable and it is not necessary that there be a specific job-connected incident which aggravates the previous injury. . . .’ [Cits.] It is well established that an employee need not be in perfect health or free from disease at the time he received the injury to recover under the Act; the employer takes his employee as it finds him and assumes the risk of a diseased condition aggravated by injury. [Cits.]” Colonial Stores v. Hambrick, 176 Ga. App. 544, 545-546 (3) (336 SE2d 617) (1985).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    73809.
    LOVELL et al. v. HOWARD.
    (357 SE2d 600)
   Benham, Judge.

Appellee sued appellants for damages she incurred when her car struck a horse. She alleged in her suit that the horse was under the control of appellants and that they were negligent in allowing the horse to stray onto the public road. This appeal is from a judgment entered on a jury verdict in appellee’s favor.

1. Appellants first enumerate as error the trial court’s jury instruction to the effect that a violation of OCGA § 4-3-3, which provides, in pertinent part, that “[n]o owner shall permit livestock to . . . stray upon the public roads of this state. . . ,” is negligence per se. Based on this court’s holding in Porier v. Spivey, 97 Ga. App. 209 (1b) (102 SE2d 706) (1958), that a violation of the statute is not negligence per se, we are constrained to hold that the giving of the contrary instruction was error.

Appellee’s reliance on Willis v. Jones, 89 Ga. App. 824 (2) (81 SE2d 517) (1954), for the proposition that the erroneous charge was harmless since the jury would have to find appellants guilty of common-law negligence before it could find the violation of the law to be negligence per se, is misplaced. The statute involved in that case contained a requirement that the proscribed conduct be unreasonable, thereby importing a negligence standard into the statute. The statute involved here contains no such requirement. Appellants are entitled to a new trial.

2. Since the issue is likely to arise at a new trial, it is appropriate to address appellants’ other enumeration of error. It concerns the trial court’s refusal of their request for a charge on comparative negligence. In support of the charge, appellants can point only to the fact that appellee was driving with her low-beam headlights despite having previously seen horses on that road, and to appellee’s testimony that “I just looked up in my windshield, and there was a horse’s head.” Appellants assert that the cited evidence raises an inference that appellee was not paying sufficient attention to the road. We disagree. Taken together with other evidence, including testimony that the horse was 5 feet, 10 inches, tall at the head, that the only other time appellee had seen horses on that road had been in daylight, that appellee was traveling well below the speed limit, and that the horse came from her left and was moving perpendicular to her path, the cited evidence would not permit the drawing of any inference of negligence on the part of appellee. Consequently, we find no error in the trial court’s refusal to charge on comparative negligence. Beadles v. Bowen, 106 Ga. App. 34 (4) (126 SE2d 254) (1962).

Judgment reversed.

Bank, P. J., and Carley, J., concur.

Decided May 19, 1987.

B. Dean Grindle, Jr., for appellants.

William E. Brewer, for appellee.


text:
    73987.
    WILLIAMS v. THE STATE.
    (357 SE2d 324)
    Decided May 19, 1987.

      William C. Puckett, Jr., for appellant.

      Robert E. Wilson, District Attorney, Susan Brooks, Gregory A. Futch, Nelly F. Withers, Assistant District Attorneys, for appellee.
   Carley, Judge.

Appellant was tried before a jury on an indictment charging him with two counts of armed robbery. The jury found him guilty on both counts. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

The sole enumeration is that the trial court erroneously refused to give a written request to charge on appellant’s good character. Appellant did not testify in his own defense. Compare Braddy v. State, 172 Ga. App. 386, 387 (2) (323 SE2d 219) (1984), aff’d 254 Ga. 366 (330 SE2d 388) (1985). The only evidence cited as authorizing the charge on appellant’s good character is testimony given by the victim of one of the armed robberies. The victim testified that he had known appellant for a long time, that he was not afraid of appellant, and that he had never heard anything which would cause him to fear appellant. This testimony falls short of that required to raise appellant’s good character as a viable issue to be submitted to the jury. The witness did not testify as to appellant’s general reputation within the community. Hudson v. State, 163 Ga. App. 845 (4) (295 SE2d 123) (1982). Accordingly, the trial court did not err in refusing appellant’s request to charge.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Sognier, Judge. Beasley, Judge,

text:
    74013.
    MARSH v. THE STATE.
    (357 SE2d 325)
   Sognier, Judge.

Appellant was convicted of two violations of the Georgia Controlled Substances Act for trafficking in cocaine and unlawfully possessing less than one ounce of marijuana. In his sole enumeration of error appellant contends the trial court erred by denying his motion to suppress because law enforcement officers had no authority to arrest him without a warrant. Therefore, he contends the resulting seizure of the cocaine and marijuana was unlawful.

On December 14, 1985, Robert Cartun was arrested for possession of cocaine and trafficking in cocaine in the Sandy Springs area. Cartun told the GBI agents who arrested him that the cocaine came from appellant, Cartun’s contact in Miami, Florida. Cartun agreed to contact appellant and arrange for him to bring cocaine to the Atlanta area. Cartun thereafter called appellant and about 12:30 a.m., December 24, 1985, appellant contacted Cartun and told him he (appellant) was in Room 212 at the Red Carpet Inn off 1-75 in the Atlanta area. Appellant was in a hurry to leave and told Cartun to hurry. After a “body bug” was placed on Cartun and his car was refueled, he and several law enforcement officers proceeded to the Red Carpet Inn in Forest Park, arriving about 2:00 a.m. Cartun entered appellant’s room and after observing cocaine therein, used certain code words to signal the officers monitoring the conversation that cocaine was present. Cartun left the room on the pretext of getting $35,000 cash from his car, and gave a hand signal indicating that cocaine was in the room. Officers then broke into the room, arrested appellant, and seized a package of cocaine sitting on a bureau and a small amount of marijuana that was on the bed where appellant was sitting.

David Bartlett, the GBI agent in charge of the operation, testified that once they learned the cocaine was actually in the room, it would have taken at least an hour to obtain a warrant. They were afraid that appellant, the cocaine and the $35,000 the GBI had provided Cartun would be gone if they waited for a warrant, as appellant had said he wanted to leave no later than 4:00 a.m. to return to Miami. This statement was made to Cartun, and was overheard by officers listening in on the body bug.

“An arrest for a crime may be made by a law enforcement officer . . . without a warrant if the offense is committed in his presence or within his immediate knowledge, ... or for other cause if there is likely to be [a] failure of justice for want of a judicial officer to issue a warrant.” OCGA § 17-4-20 (a). (Emphasis supplied.) The words “in his presence” and “within his immediate knowledge” are synonymous, and to justify the arrest without a warrant, the officer need not see the act which constitutes the crime taking place if by any of his senses he has personal knowledge of its commission. Lynn v. State, 130 Ga. App. 646 (1) (204 SE2d 346) (1974); King v. State, 161 Ga. App. 382, 383 (1) (288 SE2d 644) (1982). A valid search without a warrant may be made incident to a lawful arrest or under exigent circumstances when supported by probable cause. Smith v. State, 135 Ga. App. 424 (218 SE2d 133) (1975).

Decided May 19, 1987.

John C. Campbell, for appellant.

Robert E. Keller, District Attorney, Debra Benefield, Assistant District Attorney, for appellee.

In the instant case the officers had personal knowledge from Car-tun’s use of prearranged code words that appellant had cocaine in his room. Thus, they were authorized to arrest appellant without a warrant because a crime was being committed in their presence or within their personal knowledge. Once appellant was under arrest the officers were entitled to search the immediate area around appellant, Smith, supra, although a search was not necessary here because the contraband was in plain view. Since the arrest was lawful and the contraband was in plain view, the officers were authorized to seize it. Coolidge v. New Hampshire, 403 U. S. 443, 468 (91 SC 2022, 29 LE2d 564). Accordingly, it was not error to deny appellant’s motion to suppress the evidence seized at the time of his arrest.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in what is said but believe it necessary to draw attention to what we did not reach.

Appellant perfunctorily claims that his state constitutional right, under Ga. Const. 1983, Art. I, Sec. I, Par. XII, as well as his federal constitutional right against unlawful searches and seizures, was violated. He merely cites it. He did the same thing below and does not show how it is violated.

If he were to mean that failure to meet federal constitutional guidelines ipso facto constitutes a violation of a correlative state constitutional provision as well, I could not agree because of our dual federalism. The Supreme Court of Georgia is the final construer of our state constitution whereas the United States Supreme Court is the final interpreter only of the federal constitution. See Lee v. State, 177 Ga. App. 698 (340 SE2d 658) (1986); Massachusetts v. Upton, 466 U. S. 727 (104 SC 2085, 80 LE2d 721) (1984).

But appellant has not made this argument or any other in connection with the state constitution’s provision, and thus, properly, we do not rule on it. Mitchell v. State, 173 Ga. App. 560 (1) (327 SE2d 537) (1985). See Andrews v. State, 175 Ga. App. 22, 24 (332 SE2d 299) (1985).


text:
    74022.
    McCRANEY et al. v. FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT.
    (357 SE2d 327)
   Carley, Judge.

This case arises out of the occurrence of a two-car collision. One of the cars was owned by appellant-plaintiff Daniels and was being driven by appellant-plaintiff McCraney. The other car was owned by Ms. Amaryllis Stallworth and was being operated by Mr. Melvin Russell.

Appellants filed suit against Mr. Russell, giving notice of the commencement of their suit to appellee-defendant Fire and Casualty Insurance Company of Connecticut (FCICC). FCICC is the insurer providing the liability coverage on Ms. Stallworth’s vehicle. No answer to appellants’ suit against Mr. Russell was ever filed and a default judgment in their favor was entered. A subsequent demand by appellants that their judgment against Mr. Russell be paid by FCICC was refused.

Appellants then filed this action, seeking to recover against FCICC the amount of their judgment against Mr. Russell. FCICC answered and, among its other defenses, asserted that no liability coverage was afforded to Mr. Russell under the terms of its policy with Ms. Stallworth. Cross-motions for summary judgment were filed. According to FCICC’s motion, Mr. Russell had stolen the vehicle from its insured prior to the collision. This contention was supported by evidence that Mr. Russell had been indicted for and had then pled guilty to the theft of Ms. Stallworth’s vehicle. Under FCICC’s policy, no liability coverage was afforded to anyone who was using Ms. Stallworth’s vehicle “without a reasonable belief that [he was] entitled to do so.” In their motion, appellants urged that the policy’s exclusion for non-permissive use of the automobile had been waived, insofar as FCICC had failed to seek a declaratory judgment as to the exclusion’s applicability prior to the entry of appellants’ judgment against Russell. In the alternative, appellants urged that FCICC was otherwise estopped to deny its liability under the Stallworth policy for the judgment against Russell. The trial court conducted a hearing on the cross-motions and granted summary judgment in favor of FCICC and denied summary judgment to appellants. Appellants appeal from this order.

When an insurer is called upon to defend an action, it is put to the choice of either undertaking the defense or of refusing to do so. The insurer’s election is not without its consequences. “ ‘By refusing to defend, the company loses all opportunity to contest the negligence of the insured or the injured person’s right to recover, and exposes itself to a charge of and penalty for breach of contract. By defending, it incurs considerable expense and may waive the claim of immunity.’ ” LaSalle Nat. Ins. Co. v. Popham, 125 Ga. App. 724, 729 (1) (188 SE2d 870) (1972). Accordingly, the law provides a procedural remedy to the insurer who is facing this choice. “A proper and safe course of action for an insurer in this position is to enter upon a defense under a reservation of rights and then proceed to seek a declaratory judgment in its favor. [Cits.]” Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 217 (1) (231 SE2d 245) (1976).

Decided May 19, 1987.

Thomas E. Spraley, for appellants.

Michael L. McGlamry, A. Ed Lane, Stephen J. Caswell, for appellee.

FCICC did not avail itself of this procedurally “safe course of action” when appellants gave it notice of their pending action against Mr. Russell. FCICC made its election that it would not undertake the defense of that suit. Accordingly, FCICC has waived all opportunity to contest either the negligence of Mr. Russell or appellants’ right of recovery against him. By electing not to defend the suit against Mr. Russell, FCICC has not, however, waived either its right or its opportunity to contest appellants’ entitlement to a recovery under its policy covering Ms. Stallworth. “ ‘The liability under the policy and the liability for negligence are indeed two separate transactions.’ [Cit.]” LaSalle Nat. Ins. Co. v. Popham, supra at 729 (1). Where, as here, “a judgment has been obtained against an insurer’s putative insured, . . . [a] 11 rights have accrued; [FCICC] is either liable under the terms of its [policy] for the judgment entered against [Mr. Russell] or it is not. . . . [I]ts defenses can [now] be presented [in this] suit. . . entered [against it] by [appellants as the putative] third-party claimant^]. [Cit.]” Shield Ins. Co. v. Hutchins, 149 Ga. App. 742, 744-745 (2) (256 SE2d 108) (1979). Under the uncontroverted evidence of record, FCICC is not liable under the terms of its policy with Ms. Stall-worth for the judgment entered against Mr. Russell. See generally Georgia Farm Bureau Mut. Ins. Co. v. Fire & Cas. Ins. Co., 180 Ga. App. 777 (350 SE2d 325) (1986).

Appellants’ remaining contention that FCICC is otherwise es-topped to deny liability for the judgment against Russell is without merit. See generally Loftin v. U. S. Fire Ins. Co., 106 Ga. App. 287 (127 SE2d 53) (1962); State Farm Mut. Auto. Ins. Co. v. Keene, 111 Ga. App. 480, 483 (142 SE2d 90) (1965). The trial court correctly granted summary judgment in favor of FCICC and correctly denied summary judgment to appellants.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74085.
    THE STATE v. FOWLER.
    (357 SE2d 329)
   Carley, Judge.

An accusation was filed in the State Court of Fulton County, charging appellee with the State offenses of selling liquor without a State license and selling alcoholic beverages on Sunday. Appellee filed a motion which he erroneously denominated as a plea of autrefois convict. Appellee’s motion was, in fact, a plea of autrefois acquit. According to the allegations of appellee’s motion, he had been tried in the Municipal Court of the City of Atlanta and acquitted of “the offense of peddling without a license, a violation of a City ordinance.” Based upon his alleged former prosecution and acquittal for violating the city ordinance, appellee moved for the dismissal of the pending prosecution in the State Court of Fulton County. It does not appear that appellee ever requested a hearing on his motion or that the trial court ever conducted one. The trial court merely entered an order which states that, appellee’s motion “having been read and considered!,] it is hereby ordered that said motion be granted and the accusation ... be dismissed.” The State appeals from this order dismissing the prosecution against appellee for violation of the State criminal statutes.

A summons charging appellee with violating a city ordinance prohibiting “peddling without a license” was neither attached to his motion nor does such a summons otherwise appear of record. “ ‘A plea of former jeopardy which does not set forth a copy of the accusation on which it is alleged the accused was previously tried is fatally defective.’ [Cit.]” Welch v. State, 53 Ga. App. 255, 257 (185 SE 390) (1936). Moreover, if appellee was tried in the municipal court for violating an ordinance prohibiting “peddling without a license” “the plea fails to set out the ordinance and it is therefore too indefinite to raise any question for decision on this issue. [Cit.]” Hannah v. State, 97 Ga. App. 188, 194 (102 SE2d 624) (1958). “Neither a trial court nor an appellate court may judicially notice a municipal ordinance. [Cits.] Where an ordinance of a municipality is relied upon, it must be pleaded and proved in the trial court. [Cits.]” Hood v. Mayor &c. of Savannah, 247 Ga. 524 (277 SE2d 54) (1981). Moreover, notwithstanding the procedural deficiencies in appellee’s motion, it appears that the trial court undertook to grant it without ever holding a hearing. Compare Bell v. State, 249 Ga. 644, 645 (1) (292 SE2d 402) (1982). “Where defendant files a special plea of autrefois acquit the burden is upon him to prove such plea.” Hendricks v. State, 108 Ga. App. 259 (1) (132 SE2d 845) (1963). “It would have been appropriate for the State to file a general demurrer to [appellee’s] plea. The failure to do so does not mean, however, that the special plea in bar stands admitted. The failure [of the State] to demur does not confess the action either in law or in fact, and the proof of the facts in the plea [would] not authorize a judgment unless the existence of those facts so authorize. [Cit.] [Appellee] filed his plea in bar [but apparently] requested [no] hearing. The State [has not had the opportunity to oppose] the plea at [a] hearing by way of argument on the legal questions presented. [The State has not] received a fair and impartial hearing on the merits of [appellee’s] plea.” Bell v. State, supra at 645 (1).

Decided May 19, 1987.

Norman R. Miller, Assistant Solicitor, for appellant.

L. David Wolfe, for appellee.

For all of the procedural deficiencies discussed, the order granting appellee’s plea of autrefois acquit must be reversed. However, in the event that appellee should make a new motion and that a hearing on that motion be held, we would give the following general direction: Mere proof that a “peddling without a license” ordinance exists and that appellee was tried and acquitted for that municipal offense will not authorize the grant of his motion. The initial determination is whether the municipal offense of which appellee was acquitted and the two State offenses now in issue constitute the “same offense.” “ ‘ “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” ’ [Cit.]” State v. Burroughs, 244 Ga. 288, 290 (3) (260 SE2d 5) (1979). Assuming that the two State offenses may require proof of some facts which differ from those necessary to prove a violation of the municipal ordinance, the inquiry should proceed to a determination of whether appellee’s former acquittal could reasonably have been grounded upon a failure of proof as to a fact peculiar to the municipal offense rather than a failure of proof as to a fact which the municipal offense may have in common with the State offenses. See generally State v. Tate, 136 Ga. App. 181, 184 (4) (220 SE2d 741) (1975).

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    74192.
    GILBERT et al. v. HUDSPETH.
    (357 SE2d 601)
   Sognier, Judge.

Lawrence Gilbert and his wife, Patricia Gilbert, brought suit against J. P. Hudspeth seeking damages for personal injuries and loss of consortium, respectively, incurred as a result of an attack on Lawrence Gilbert by three dogs owned by Hudspeth. Hudspeth moved for summary judgment on the basis of his affidavit denying any knowledge that prior to the incident in question his dogs had bitten or unprovokedly attacked anyone. The trial court granted Hudspeth’s motion for summary judgment and the Gilberts appeal.

Decided May 19, 1987.

William M. Simon, for appellants.

Stanley Karsman, for appellee.

We affirm. The only evidence appellants submitted was the affidavit of Lawrence Gilbert stating that 10 to 14 days prior to the injury-inflicting incident he was threatened and chased by the growling and barking of the same three dogs as he passed appellee’s residence, and that he “believed” he would have been bitten at that time had appellee not called off his dogs. Appellants presented no evidence to show appellee knew or should have known of his dogs’ propensities to attack and bite. Appellee’s affidavit, which showed lack of scienter, was thus unrebutted. “ ‘Scienter is a necessary arid a material fact which must be shown before there can be any finding of liability against the defendant. [OCGA § 51-2-7]. “(U)nder this section it is still necessary, as at common law, to show not only that the animal was vicious or dangerous, but also that the owner or keeper knew of this fact.” [Cit.] “It must appear that the animal had a propensity to do the act which caused the injury and that the defendant knew of it.” [Cits.]’ (Emphasis supplied.) [Cit.]” Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978). See also Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984). We note that the events in this case predate the 1985 amendment to OCGA § 51-2-7, effective July 1, 1985, and that many rulings cited herein may become inapplicable under that statute’s amended provisions. Contrary to appellants’ argument, a violation of the county leash law does not negate the burden on appellants to show scienter in order to allege a valid cause of action. Brown v. Pierce, 176 Ga. App. 787 (338 SE2d 39) (1985).

Judgment affirmed.

Beasley, J., concurs. McMurray, P. J., concurs in the judgment only.


text:
    74202.
    CURTIS v. THE STATE.
    (357 SE2d 602)
   Carley, Judge.

Appellant was tried before a jury on an indictment charging him with two counts of selling cocaine in violation of the Georgia Controlled Substances Act. The jury returned verdicts of guilty. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. The denial of appellant’s pre-trial motion to disclose the identity of a confidential informant is enumerated as error. Ridgeway v. State, 174 Ga. App. 663, 665 (4) (330 SE2d 916) (1985) is controlling under the evidence of record in this case. There was no error.

2. On the cross-examination of a State’s witness, the trial court refused to allow appellant to make inquiry as to the identity of the confidential informant. This ruling is enumerated as error. Since the trial court’s pre-trial ruling that the identity of the confidential informant would not be revealed was correct, it necessarily follows that the trial court’s refusal to allow appellant to conduct cross-examination as to that topic was not erroneous. “A criminal defendant is entitled to a thorough and sifting cross-examination of the witnesses against him, providing that the subject matter of the inquiry is relevant to the issues at trial. [Cit.]” Harris v. State, 173 Ga. App. 787, 788 (1) (328 SE2d 370) (1985). The identity of the confidential informant was not a relevant topic of inquiry.

Appellant’s further contention that restrictions placed upon his cross-examination of the State’s witness encompassed topics other than the identity of the confidential informant is refuted by the transcript. Appellant was afforded the opportunity to conduct a thorough and sifting cross-examination of the State’s witness as to all matters regarding the confidential informant except with respect to the informant’s identity. There was no error.

3. Several enumerations of error concern the denials of appellant’s motions for mistrial. Appellant initially moved for a mistrial because, on the morning of his trial, he had been led into the courthouse while wearing handcuffs. “[T]he mere fact that a handcuffed defendant is seen by jurors or prospective jurors is not a ground for the automatic grant ... of a mistrial. [Cits.]” Carter v. State, 155 Ga. App. 840, 841 (1) (273 SE2d 417) (1980). We find no error in denying appellant’s motion in the case sub judice. See generally Starr v. State, 209 Ga. 258, 259 (5a) (71 SE2d 654) (1952). “ ‘This was a matter which addressed itself to the discretion of the trial court. Such a situation is not ground for mistrial.’ [Cits.]” Howard v. State, 144 Ga. App. 208, 213 (8) (240 SE2d 908) (1977).

In another instance, an officer who was a witness for the State referred “to having other cases other than this one against [appellant]. . . .” Appellant moved for mistrial, asserting that the witness had made reference to “other crimes” committed by appellant and had therefore put appellant’s character into issue. Outside the presence of the jury, the witness explained that his testimony had been misconstrued by appellant’s counsel. The witness did have “other cases” but none of those other cases were against appellant. The trial court then informed appellant’s counsel that it would instruct the jury to disregard the testimony and would also allow the witness to explain that there were no “other cases” pending against appellant. Appellant’s counsel informed the trial court that he would rely upon the motion for mistrial. When the jury returned, the trial court did give instructions to strike the witness’ testimony and to disregard it. The giving of these curative instructions was a sufficient response on the part of the trial court to the incident. If appellant’s counsel wished to have the witness clarify his answer and establish that there were no “other cases” pending against appellant, he was free to do so. There was no error in refusing to grant a mistrial. See generally Gasaway v. State, 137 Ga. App. 653, 657 (3) (224 SE2d 772) (1976).

Decided May 19, 1987.

Walter E. Van Heiningen, for appellant.

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

In another instance, the trial court denied appellant’s motion for mistrial, but instructed the jury to disregard the testimony which had prompted the motion. Appellant did not then renew the motion for mistrial. “[T]he denial of a motion for mistrial is not subject to review where, as here, the motion was not renewed following curative instructions. [Cit.]” Morgan v. State, 181 Ga. App. 113 (1) (351 SE2d 517) (1986).

Based upon the asserted “cumulative effect” of the prior instances which had prompted him to move for mistrial during the course of the trial, appellant moved for a mistrial at the close of the evidence. The enumeration as to the denial of this motion raises nothing for appellate review. “Because this state does not recognize the concept of ‘cumulative error,’ it is incumbent upon the defendant to show error with regard to each point he raises. [Cit.]” Campbell v. State, 181 Ga. App. 1, 3 (2) (351 SE2d 209) (1986). Each of the motions for mistrial that appellant made during the course of the trial has been addressed. None was erroneously denied.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    73878.
    BROOKS v. FOREST FARMS, INC.
    (357 SE2d 604)
   Carley, Judge.

Appellee-defendant Forest Farms, Inc., purchased realty and executed a promissory note and deed to secure debt in favor of the several members of the Martin family (the Martins) who were the sellers of the property. Thereafter, appellee sold the property to appellant-plaintiff Brooks, who assumed the indebtedness that appellee owed to the Martins. Subsequent to appellant’s purchase of the property, he entered into a separate agreement with appellee, which agreement contained the following provision: “ASSUMPTION OF LIABILITY, INDEMNITY. [Appellant] assumes all liability for payment of the existing indebtedness (to the Martins or otherwise) on the Property and to idemnify and hold [appellee] harmless from all claims, actions, demands, liabilities and costs asserted against or reasonably incurred by [appellee] as obligor under any such indebtedness accruing from the date hereof [November 27, 1984,] until such time as said indebtedness is paid in full. In consideration of the within indemnity, [appellee] agrees that it will not modify or amend any such indebtedness and shall immediately notify [appellant] of any demand, notice, or claim thereto pertaining.”

After entering into this agreement, appellant failed to make a timely payment on the note that was held by the Martins. On February 8, 1985, appellee received a letter from the Martins, the purpose of which was to accomplish the following: to declare the existence of a default; to accelerate the entire indebtedness; to give notice of the intent to institute foreclosure proceedings; and, to give notice of the enforcement of the provision in the note relative to attorney’s fees if the accelerated indebtedness was not paid within 10 days. Within the 10 days following its receipt of the Martins’ letter, appellee did not undertake either to pay the Martins the accelerated indebtedness or to notify appellant of its receipt of the Martins’ demand and notice. Apparently, it was not until March 4, 1985 that appellee informed appellant of its receipt of the Martins’ letter. After he had finally been informed of the consequences of his default, appellant sought to restrain the Martins’ foreclosure proceedings. When his efforts to restrain the foreclosure proceedings proved unsuccessful, appellant paid the Martins the entire accelerated balance of the indebtedness, including the attorney’s fees to which the Martins were entitled under the note.

Appellant then filed this action against appellee, asserting that appellee had breached the agreement of November 27, 1984 by failing to give appellant immediate notification after its receipt of the Martins’ letter on February 8, 1985. As the result of this alleged breach, appellant sought to recover the attorney fees that he had incurred in his unsuccessful effort to restrain the Martins’ foreclosure proceedings, as well as the attorney fees that he had ultimately paid to the Martins. Appellee answered, denying the material allegations of appellant’s complaint and raising numerous defenses. Thereafter, appellee and appellant filed cross-motions for summary judgment. The trial court conducted a hearing on the motions and entered an order which denied appellant’s motion and granted summary judgment in favor of appellee. Appellant appeals from that order, enumerating as error both the denial of summary judgment in his favor and the grant of appellee’s motion for summary judgment.

1. The first issue for resolution is the construction and interpretation of the November 27, 1985 agreement. “ ‘Where no matter of fact is involved, the construction of a plain and definite contract, if needed, is a matter of law for the court. But a contract is not ambiguous, even where difficult to construe . . . unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.’ [Cits.] ‘ “(E)ven ambiguous contracts may be construed by the courts, and a jury question is presented only when the application of the rules of construction fails to resolve the ambiguity.” ’ [Cits.] The construction and interpretation of a contract, being a matter of law for the court, may properly be disposed of by summary judgment. [Cit.]” Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586, 593-594 (4) (337 SE2d 29) (1985).

Appellee urges that the contractual provision for the giving of notification to appellant is properly construed as creating only a condition precedent to its own right to seek enforcement of the indemnity provision against appellant. Contractual “ [conditions may be precedent or subsequent. A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.” OCGA § 13-3-4. Thus, appellee asserts that a failure on its part to give timely notification cannot be construed as providing appellant with his own independent claim for breach of contract, but could only result in affording appellant a defense against indemnification.

In determining whether the contractual provision in issue contemplates appellee’s act of notification as only a condition precedent to appellant’s obligation to indemnify, consideration must be given to “the literal definitions of the words, along with their context.” Cowen v. Snellgrove, 169 Ga. App. 271, 274 (3) (312 SE2d 623) (1983). The agreement between the parties in this case “did not provide that [appellee] should be permitted [to seek idemnification from appellant] ‘on condition that,’ or ‘if,’ or ‘provided,’ [appellee had given notification to appellant]; nor are there other words of conditions contained in the agreement necessary to make this a condition precedent. [Cits.]” Self v. Smith, 216 Ga. 151, 153 (1) (115 SE2d 355) (1960). Instead, the provision clearly provides for appellant’s own personal agreement to indemnify appellee, “[i]n consideration of [which] indemnity [agreement by appellant, appellee] agree[d]” that it would neither modify nor amend the indebtedness owed to the Martins and that it would also give certain notification to appellant. (Emphasis supplied.) It is clear and unambiguous that appellee’s “agree[ment]” is intended to be the “consideration” that is afforded to appellant for appellant’s return agreement to indemnify appellee. Thus, the language in question is not to be construed as merely a condition precedent to appellant’s liability to appellee on the indemnification agreement. Compare Tuzman v. Leventhal, 174 Ga. App. 297 (329 SE2d 610) (1985). Appellant agreed to an otherwise unconditional indemnification of appellee with regard to the indebtedness and, in return, appellee unconditionally agreed not to modify or amend that indebtedness and also to give certain notification to appellant. “The parties each being free to make such agreement or to refrain from so doing, their mutual promises and covenants afford consideration the one to the other. [Cits.]” Benton v. Roberts, 41 Ga. App. 189, 190 (3a) (152 SE 141) (1929).

Appellee further urges that, if its duty to give notification to appellant is absolute rather than merely conditional, then its absolute duty would not extend to the giving of notification to appellant of the Martins’ letter of February 8, 1985. The agreement provides that appellee “will not modify or amend any . . . indebtedness [secured by the property] and shall immediately notify [appellant] of any demand, notice, or claim thereto pertaining.” (Emphasis supplied.) According to appellee, the phrase “thereto pertaining” can only be construed as a reference back to a “modification] or amend[ment]” of the terms of the indebtedness. Thus, appellee urges a construction of the agreement such that its duty was only to notify appellant of “any demand, notice, or claim” pertaining to a “modification] or amend [ment]” of the terms of the indebtedness rather than to notify appellant of “any demand, notice, or claim” pertaining to the otherwise unmodified or unamended indebtedness itself. Since the Martins’ letter of February 8, 1985 was not a “modification] or amend[ment]” of the terms of the indebtedness, appellee contends it had no obligations to give appellant notice thereof.

The agreement does not refer specifically to a modification or amendment of the terms of the indebtedness. It refers only to the position that appellee itself would take with regard to any such modification or amendment. Insofar as appellee had otherwise agreed that it would not modify or amend the indebtedness, there would certainly be no reason for any further agreement on its part to notify appellant of “any demand, notice, or claim” as might pertain to such a modification or amendment. It is clear and unambiguous that appellee agreed that it would perform some actions and would refrain from other actions with regard to the then-existing indebtedness. Appellee agreed that it would not modify or amend the indebtedness as it then existed and further agreed to notify appellant of any demand, notice, or claim as might pertain to the then-existing indebtedness. Contrary to appellee’s assertions, this interpretation of the agreement does not result in merely requiring the performance of the superfluous act of notifying appellant that his own failure to make a timely payment constituted an act of default. The agreement contemplates notification to appellant that the Martins had elected to use that act of default as the basis for accelerating the entire indebtedness and that they had given notice of their intention to seek attorney’s fees if the accelerated balance was not paid within 10 days.

Accordingly, we hold that the provision does not create a mere condition precedent to the enforceability of the indemnity agreement against appellee. It creates mutual unconditional obligations. Appellee’s unconditional obligation was not merely to refrain from amending or modifying the then-existing indebtedness. Appellee was also obligated to notify appellant of “any demand, notice, or claim” pertaining to the then-existing indebtedness.

2. Having determined that no genuine issue of material fact remains with regard to the construction and interpretation of the agreement, we turn to whether any genuine issue of material fact remains with regard to appellee’s breach of that agreement.

Appellee’s contractual obligation was to notify appellant “immediately” of “any demand, notice or claim” pertaining to the then-existing indebtedness on the property. As we have held in Division 1, the Martins’ letter that appellee received on February 8, 1985 is clearly within the class of communications of which appellant was entitled to be given notification. “ ‘Immediately’ has been construed in many cases to mean with reasonable diligence and within a reasonable length of time in view of attending circumstances of each particular case. [Cits.]” Bituminous Cas. Corp. v. J. B. Forrest &c., Inc., 132 Ga. App. 714, 719 (2) (209 SE2d 6) (1974). There is no need to determine the outside chronological limits of “immediate” notice to appellant of appellee’s receipt of the Martins’ letter. It is clear that, whatever the permissible parameters of “immediate” notice, those parameters have been exceeded under the facts of this case. Appellee’s failure to give notice to appellant until some 24 days after its receipt of the Martins’ 10-day letter is a breach of its contractual obligation as a matter of law. See generally Hawkins v. Studdard, 136 Ga. 727, 729-730 (71 SE 1112) (1911).

3. The remaining issue is that of damages. “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2.

The initiation of foreclosure proceedings was the ultimate result of appellant’s own act of default, which default had already resulted in the Martins’ acceleration of the entire indebtedness by February 8, 1986. Assuming that appellee had complied with its agreement and given appellant immediate notification of the Martins’ letter, appellant would have had only two choices. He could have elected to contest the validity of the Martins’ exercise of their right to assert his default as the basis for their acceleration of the entire indebtedness. Had appellant chosen this course of action on February 8, 1985, he would nevertheless have incurred legal expenses in any effort to restrain the Martins from pursuing foreclosure as their elective response to his act of default. Appellant’s other choice was to acknowledge the validity of the Martins’ exercise of their right to declare his default and accelerate the entire indebtedness. If upon his timely notification, appellant had chosen this course of action, he could have paid the entire accelerated indebtedness by February 18, 1985 and thus could have avoided the additional imposition of attorney fees.

Despite appellant’s untimely notification by appellee, appellant had exactly the same option that he otherwise would have had on February 8, 1985 to contest the validity of the Martins’ exercise of their rights. He could seek to restrain the Martins’ pursuit of foreclosure but incur legal expenses by doing so. On March 4, 1985, appellant also had the same option to obviate the Martins’ pursuit of foreclosure, in that he could simply have paid the entire accelerated indebtedness. However, that option now required that he incur the additional imposition of attorney’s fees. Accordingly, the only option that was lost to appellant as the result of his untimely notification by appellee was that of paying the entire accelerated balance before February 8, 1985 and avoiding payment to the Martins of attorney’s fees. Exactly as he could have done had he received timely notification, appellant elected to contest the validity of the Martins’ exercise of their rights and he sought to restrain their resort to the foreclosure remedy. When that option proved unsuccessful, appellant paid the Martins the entire accelerated indebtedness and their attorney’s fees.

Thus, appellant’s expenditure of attorney’s fees to restrain the foreclosure proceedings was neither the result of appellee’s breach of its obligation to give timely notice to appellant nor was it in mitigation thereof. That expenditure was the sole result of appellant’s own failure to make a timely payment to the Martins and of his own election to contest their exercise of the right to declare a default and an acceleration. That failure and election was, as between the Martins and appellant, in existence on February 8, 1985, notwithstanding the contractual agreement as between appellee and appellant. Appellee’s breach of its agreement to notify appellant had only the effect of depriving appellant of the opportunity to choose to avoid liability to the Martins for attorney fees by making payment of the entire indebtedness no later than February 18, 1985. It is only those attorney fees that are recoverable from appellee.

Decided May 20, 1987.

David E. Spalten, Lex Allen Watson II, for appellant.

Alan M. Wolper, George L. Murphy, Jr., for appellee.

4. The trial court erroneously granted appellee’s motion for summary judgment and erroneously denied summary judgment in favor of appellant as to the amount he paid to the Martins as attorney’s fees pursuant to the note which was in addition to the entire indebtedness owed to the Martins. The trial court correctly granted summary judgment in favor of appellee and correctly denied summary judgment in favor of appellant as to the attorney fees incurred by appellant in his unsuccessful effort to restrain the Martins’ foreclosure proceedings.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Benham, J., concur.


text:
    73990.
    GEORGIA AMERICAN INSURANCE COMPANY v. VARNUM.
    (357 SE2d 609)
   Benham, Judge.

Appellee Varnum sued appellant, her automobile casualty insurer, to recover optional personal injury protection benefits. Prior to trial, appellant made arrangements with the court reporter to have the trial testimony taken down. When a judgment was entered based on a jury verdict in favor of appellee, appellant appealed, and the court reporter completed the trial transcript and filed it with the clerk of the trial court. OCGA § 5-6-41 (e). Upon this court’s reversal of the judgment entered (179 Ga. App. 195 (345 SE2d 863) (1986)), the case was remanded for a new trial, and counsel for appellee requested a copy of the transcript of the first trial for use at the second trial. Appellant sought and was granted a protective order that prevented appellee from obtaining a copy of the trial transcript from the court reporter, but permitted appellee “to use the official copy of the transcript, provided the transcript is not removed from the courthouse or machine-copied.” Unsatisfied with the limited protection given by the trial court’s order, appellant filed an application for interlocutory review, which we granted.

1. Appellant maintains that the ruling enunciated by the Supreme Court in Harrington v. Harrington, 224 Ga. 305 (2) (161 SE2d 862) (1968), is applicable to the case at bar and required the trial court to refuse appellee access to the trial transcript. In Harrington, the Supreme Court held that where one party in a case not statutorily 2. Appellee contends the trial court erred in ruling that she was not entitled to a copy of the transcript. We do not address the merits of appellee’s argument since it concerns a ruling adverse to appellee, thus making it the subject of a cross-appeal for which no notice of cross-appeal was filed. OCGA § 5-6-39; Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783 (1) (302 SE2d 594) (1983). required to be taken down (see OCGA § 5-6-41) makes arrangements with the court reporter to take down the testimony and agrees to be financially responsible therefor, and the other party expressly refuses to participate in the take-down agreement, the non-participating party cannot compel transcription of the reporter’s notes. We do not deem Harrington applicable in light of the factual setting of the case at bar: the trial court did not order transcription of the court reporter’s stenographic notes; rather, it only allowed appellee access to the previously-transcribed transcript filed with the clerk of the court. Since an accurate transcript of the testimony adduced at the first trial, available only because of the foresightedness of appellant’s counsel, “is nonetheless merely a record of the proceedings of a public trial” (Robinson v. J. C. Penney Co., 124 Ga. App. 221, 223 (183 SE2d 782) (1971)), it may be said that once a transcript is filed with the trial court pursuant to OCGA § 5-6-41 (e), the transcript becomes a matter of public record to which all members of the public have access, subject to reasonable limitations imposed by the trial court or the clerk in whose custody it reposes. One of the purposes behind the requirement that the trial court clerk retain a duplicate of the transcript and record sent to the appellate courts is “to afford local counsel . . . convenient access to the exact duplicate copy of the record. . . .” Law v. Smith, 226 Ga. 298, 300 (174 SE2d 893) (1970). Under the Harrington rule, a party who contracts with a court reporter for recording of the proceedings, in which contract the other party has expressly refused to participate, has exclusive rights to the preparation of a trial transcript. We now hold that once the prepared transcript is filed with the trial court clerk, it becomes a matter of public record to which all members of the public have reasonable access. While appellant may have had exclusive rights to the court reporter’s notes, that exclusivity did not extend to a matter of public record, the filed transcript. The trial court did not err in affording appellee reasonable access to the filed trial transcript.

Decided May 20, 1987.

Richard B. Eason, Jr., Carolyn J. Kennedy, for appellant.

Kenneth M. Henson, Millard D. Fuller, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    74200.
    McSWEENEY v. THE STATE.
    (358 SE2d 465)
   Birdsong, Chief Judge.

Paul K. McSweeney appeals his conviction for trafficking in cocaine and unlawful possession of more than one ounce of marijuana. McSweeney was attempting to board a flight out of the Atlanta Hartsfield International Airport, and presented himself to the security checkpoint. The security checkpoint is located between the main concourse and the boarding gates of the airlines. Each gate uses two types of machines, an X-ray to screen hand-carried luggage for weapons, explosives and flammable liquids; and a walk-through magnetometer which is used to detect metal objects on the person of a passenger.

Clarence Allen, an employee of A.R.C. Security, a private security agency, employed by the airport for security purposes, saw Mc-Sweeney pass through a checkpoint without any luggage, but then McSweeney turned around, left the secure area and reentered the concourse. A few minutes thereafter, he saw McSweeney return to his checkpoint with hand luggage which he placed on the X-ray conveyor belt. McSweeney passed through the magnetometer without incident, but the operator of the X-ray machine told Allen to “check” Mc-Sweeney’s luggage. Allen asked McSweeney if he could check his luggage and McSweeney said “no.” Allen advised McSweeney if he did not check it the police officer standing behind him would check it, then “he [McSweeney] just went running . . . down the concourse.” Police Officer N. T. Stone was on duty behind the security checkpoint when she heard McSweeney give a loud and emphatic “no.” She started toward him and he left the checkpoint running. She ran after him but could not catch him. She put out an all-points bulletin for his arrest and returned to the checkpoint. A search of McSweeney’s luggage revealed two bottles of liquor, some marijuana, and a white powder which was subsequently identified as cocaine. When McSweeney was apprehended, a search of his person revealed additional marijuana. Defendant’s motion to suppress was denied and he brings this appeal. Held:

1. Defendant enumerates but one error, the legality of the search of his luggage, which he contends violates the Fourth Amendment to the United States Constitution. “The United States Constitution does not forbid searches and seizures. It forbids only unreasonable searches and seizures.” Elkins v. United States, 364 U. S. 206 (80 SC 1437, 4 LE2d 1669). Further, the basic purpose of the Fourth Amendment is only “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” (Emphasis supplied.) Michigan v. Tyler, 436 U. S. 499, 504 (98 SC 1942, 56 LE2d 486). Conversely, “a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment.” United States v. Place, 462 U. S. 696, 707 (103 SC 2637, 77 LE2d 110). Hence, at issue is the standing in priority of the Fourth Amendment right of privacy of the individual, as contrasted with an equally compelling right to safety and security of airline passengers.

Air piracy, the unlawful seizure and diversion of commercial aircraft to unscheduled locations, with the concomitant kidnapping and possible detention of passengers and crew as hostages, is a contemporary phenomenon with potentially catastrophic consequences. The jeopardy posed to the lives of the passengers and the crew, with the attendant disregard of the passengers’ constitutional rights, clearly and unequivocally demonstrates a critical need for stringent security measures. United States v. Cyzewski, 484 F2d 509, 511 (5th Cir. 1973), U. S. cert. dismissed, 415 U. S. 902. The aerial hijacker’s arsenal is not confined to a gun or a knife. Modern weapons technology has miniaturized weapons to the size of a fountain pen and placed plastic explosives in a tube of toothpaste. United States v. Skipwirth, 482 F2d 1272 (5th Cir. 1973). Airport security must be alert to detect all types of weaponry, and because of the wide range and variety of devices and substances available to the hijacker which can be used to intimidate and coerce an air crew, the security checkpoint guard is not limited to searches for conventional weapons, explosives, or flammable liquids. Skipwirth, supra at 1277.

Because of the danger posed by air piracy, airports are sui generis, and like international borders, are “critical zones” in which special Fourth Amendment considerations apply. United States v. Herzbrun, 723 F2d 773, 775 (11th Cir. 1984); Cyzewski, supra; Skipwirth, supra; United States v.. Legato, 480 F2d 408, 411 (5th Cir. 1973), U. S. cert. den., 414 U. S. 979; United States v. Moreno, 475 F2d 44 (5th Cir. 1973), U. S. cert. den., 414 U. S. 840. Courts balance the security interest of the public against intrusion into the rights of the individual, and consider three main factors: (1) public necessity, (2) efficacy of the search, and (3) degree of intrusion. Skipwirth, supra at 1275. Courts have judicially recognized the public necessity that potential harm posed by air piracy should be foiled. Id. And, airport security inspections are the most efficacious method of thwarting air piracy. Id. Airport searches are designed so that the degree of intrusion into the right of privacy of the individual is minimal, and there is a complete absence of stigma to a search since all passengers are subjected to the same search. Id. “The courts have consistently held airport security measures constitutionally justified as a limited and relatively insignificant intrusion of privacy [of the passenger] balanced against the need to protect aircraft and its passengers.” Cyzewski, supra at 512.

Federal courts are almost unanimous in finding that when an aircraft passenger presents himself to an airport security checkpoint he has consented to the screening of his luggage by the X-ray machine, and his person by the magnetometer. United States v. DeAngelo, 584 F2d 46, 48 (4th Cir. 1978), U. S. cert. den., 440 U. S. 935; Cyzewski, supra at 512. Thereafter, if the X-ray reveals an unidentifiable object or an identifiable object which could pose a danger to security of the aircraft and passengers, or if the magnetometer detects metal on the person of the passenger, these indicia provide the “mere suspicion of possible illegal activity” which justifies further investigation by security personnel. Herzbrun, supra at 776. “Mere suspicion” (i.e., articulable suspicion) is the criterion recognized as sufficient basis for a physical search of the luggage and the person at our national borders. Skipwirth, supra at 1275; Herzbrun, supra at 776. This reasonable fear of the security personnel for the safety of airline passengers justifies a limited physical search of the clothing of a passenger and his luggage for weapons, explosives, and flammable liquids, which could be used to effect air piracy. United States v. Epperson, 454 F2d 769, 772 (4th Cir. 1972), U. S. cert. den., 406 U. S. 947; United States v. Smith, 643 F2d 942, 944 (2nd Cir. 1981), U. S. cert. den., 454 U. S. 875. The constitutional validity of the search of the person and the passenger’s luggage is “entirely justifiable and reasonable” under the articulable suspicion rule of Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). Epperson, supra at 772; DeAngelo, supra at 47; see also Place, supra, 462 U. S. at 706.

Although it is arguable that McSweeney withdrew his consent to search after the X-ray machine alerted security authorities to possible danger, we agree with the rationale and reasoning of DeAngelo, supra at 48, that once consent is given to search it cannot be withdrawn after detection devices indicate danger to the security of the flight. A traveler cannot “attempt to enter the secure area and then beat a retreat if the search proves not to his liking.” Herzbrun, supra at 776. These generally known search procedures are “more valuable for what they discourage than what they discover” and we have found no viable constitutional basis to reward a “heads-I-win, tails-you-lose guarantee to criminals” attempting to board an aircraft with weapons. Id. The criminal cannot rely upon the argument that he will consent to a search until security personnel discover secreted material, and then withdraw his prior consent, and repeat the procedure until he is successful in avoiding detection. This is not a game of “hide-and-seek” between security personnel and a passenger attempting a criminal venture. It is a legitimate endeavor by security personnel to protect airline passengers from potential harm. Thus, a search need not be curtailed, even if the passenger decides not to take the flight, and we reject any “right-to-leave” argument. Herzbrun, supra at 777; DeAngelo, supra at 48.

Decided May 19, 1987.

Charles M. Gisler, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

2. We need not address any issue as to whether the Fourth Amendment applies to the use of private security forces at the Atlanta Airport, as opposed to governmental officials. See State v. Rosof, 180 Ga. App. 637 (1) (350 SE2d 36). We will note only that security searches are governed by FAA regulations and have their genesis as well as their future in governmental control. See 71 Columbia L.R. 1039, Airport Security Searches & the Fourth Amendment.

Judgment affirmed.

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


text:
    74004.
    HICKS et al. v. DAYS INNS OF AMERICA, INC.
    (357 SE2d 847)
   Carley, Judge.

While staying in appellee-defendant’s motel, appellant-plaintiffs experienced a theft from their room of several hundred dollars and a valuable antique pistol. Appellants brought suit, alleging theories of fraudulent concealment and negligence. The trial court granted ap-pellee summary judgment on the fraud count and, on the negligence count, granted appellee partial summary judgment limiting its liability for any recovery to $100. Appellants appeal from the order granting summary judgment in favor of appellee.

1. With regard to the fraud claim, it is alleged that appellee knew that appellants’ motel room was not secure against the possible theft of their property, and that appellee’s failure to give them a warning of that lack of security constitutes fraudulent concealment.

“Actionable concealment is a failure to disclose a material fact with the intent to deceive and mislead. . . Mercer v. Woodard, 166 Ga. App. 119, 123 (3) (303 SE2d 475) (1983). See also Brown v. Rowe, 178 Ga. App. 575, 577 (2) (344 SE2d 245) (1986). The evidence of record negates any intent on appellee’s part to deceive or mislead appellants. The subject of the security of the motel room against theft never arose between the parties. Appellants never inquired about ap-pellee’s anti-theft security measures or gave any indication to appel-lee that they had valuables or large sums of money with them.

Moreover, unlike appellee’s liability as a landowner for personal injury to its guests, the extent of its liability as an innkeeper for its guests’ property damage is controlled by statute. The evidence of record is undisputed that appellee had posted, on the inside of the door to appellants’ motel room, a notice which required guests to store their valuables in the motel’s safe and which otherwise limited appel-lee’s liability for the loss of a guest’s property to $100 unless the guest had made prior written notification that the value of his property exceeded that amount. See OCGA § 43-21-10; former OCGA § 43-21-12. Compare Murchison v. Sergent, 69 Ga. 206 (1) (1882); Traylor v. Hyatt Corp., 122 Ga. App. 633, 635 (5) (178 SE2d 289) (1970). This was a sufficient disclosure of the security measures that were made available by appellee for its guests’ property and of the limitation on its liability as provided by the applicable statutes. Having posted, for its guests’ notification, the disclosures authorized by law, appellee’s failure to volunteer additional information cannot be found to be fraudulent. “ ‘Concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded, or where the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover.’ ” Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 861 (5) (294 SE2d 533) (1982). Appellee’s “publication of [its] rules to [its] guests shall bind them to comply therewith.” OCGA § 43-21-12. “To hold that, without complying with the requirements of the notice authorized by . . . statute, the guest could nevertheless recover as to articles covered by the notice, merely by showing want of [additional disclosures] on the part of the innkeeper . . . , would practically make the statute nugatory.” Jones v. Savannah Hotel Co., 141 Ga. 530, 534 (2) (81 SE 874) (1914). The trial court was therefore correct in granting appellee’s motion for summary judgment as to appellants’ fraud claim.

Decided May 20, 1987.

David G. Crockett, D. Ruth Primm, for appellants.

Chuck E. Buker III, William A. Pannell, for appellee.

2. In support of its motion for summary judgment as to appellants’ negligence claim, appellee did not rely upon its publication of the notice authorized by OCGA § 43-21-10, pursuant to which it would “be relieved from responsibility” for appellants’ “valuable articles” which were not placed in appellee’s safe. Compare Jones v. Savannah Hotel Co., supra; Griffis v. Buckofzer, 25 Ga. App. 531 (103 SE 800) (1920). Instead, appellee relied only upon its publication of the notice that is authorized by OCGA § 43-21-12 and which applies to the loss of property “other than valuable articles.” The evidence is undisputed that appellee had posted, on the inside of the door to appellants’ room, the notice authorized by OCGA § 43-21-12. Compare Traylor v. Hyatt Corp., supra. Appellants assert only that they did not read the entire notice. They did not notify appellee in writing that their property’s value was in excess of $100. Under these circumstances and OCGA § 43-21-12 as it existed at the time of appellants’ loss, appellee’s liability for their property damage was limited to $100. Accordingly, the trial court was correct in granting summary judgment limiting appellee’s liability for its alleged negligence to a recovery of this amount. “The General Assembly by [enacting OCGA § 43-21-12] authorizing a limitation of liability has pre-empted the field on that subject.” Ellerman v. Atlanta American Motor Hotel Corp., 126 Ga. App. 194, 196 (2) (191 SE2d 295) (1972).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74067.
    CURTIS v. THE STATE.
    (357 SE2d 849)
   Carley, Judge.

Appellant was indicted for rape, aggravated sodomy, and burglary. He was tried before a jury and guilty verdicts were returned as to all three crimes. Appellant’s motion for new trial was denied and he appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates as error the admission into evidence of his in-court identification by the victim. The contention is that the in-court identification testimony was the product of an impermissibly suggestive pre-trial identification procedure.

The evidence shows that, after the victim had been assaulted in her home, she escaped when her intoxicated assailant fell asleep. The victim telephoned the police from a neighbor’s house. When the police arrived, they discovered appellant in the living room of the victim’s home. He was nude, intoxicated and asleep. He was arrested at that time. Several days later, the victim told the officers that she thought that she knew the man who had been arrested. The victim was then shown a photograph of appellant and, from the photograph, she identified him as someone who had previously lived in the house across the street from hers.

On this evidence, the only pre-trial identification of appellant took place in the victim’s home when, acting on the victim’s outcry, police officers arrested appellant almost immediately after the commission of the crimes. This identification did not occur as the result of any identification procedure conducted by the State. “In cases involving [line-ups and show-ups], an accused, already under suspicion by the state, is confronted by his accuser under conditions controlled by the state. In these circumstances the potential for improper and prejudicial influence by the state exists, and standards of due process require that the identification procedures not be impermissibly suggestive. [Cits.] In this case, however, the identification of [appellant] was spontaneously made by [the victim] at a time when [appellant] was not under police suspicion for the commission of any crime. The identification in this case was not prompted by state action which would bring the factors [of impermissible suggestiveness and likelihood of irreparable misidentification] into play.” Gilstrap v. State, 250 Ga. 814, 816 (1) (301 SE2d 277) (1983).

Notwithstanding the State’s participation in the victim’s subsequent viewing of a photograph of appellant, this was not an “identification procedure.” The victim did not use the photograph to identify appellant as the perpetrator of the crimes. The victim had already identified appellant as her assailant and he had already been incarcerated as the result of her identification of him. She merely used the photograph to determine that the man whom she had previously identified as her assailant was, in fact, her former neighbor. It is the victim’s initial identification of appellant as the perpetrator of the offenses, not the victim’s subsequent identification of her assailant as a former neighbor, that is the crucial inquiry.

The only pre-trial identification of appellant as the victim’s assailant stems from the circumstances of his arrest in the victim’s home immediately after commission of the crimes, and not from any identification procedure conducted by the State. Since there was no pre-trial identification procedure conducted by the State which led to appellant’s arrest and prosecution, the trial court did not err in allowing the victim to make her in-court identification of appellant.

2. Pursuant to OCGA § 17-7-211, appellant filed a pre-trial motion for discovery of any written scientific reports in the possession of the prosecution. The denial of appellant’s motion for mistrial, predicated upon an alleged violation of OCGA § 17-7-211, is enumerated as error.

Decided May 20, 1987.

Michael G. Schiavone, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

The record in this case shows that the State did furnish to appellant a copy of all of the written scientific reports purportedly in its possession. See Rodriguez v. State, 180 Ga. App. 272 (2) (349 SE2d 22) (1986). The alleged violation of OCGA § 17-7-211 is the absence in the document that the State furnished to defense counsel of any reference to a test for fingerprints. However, the only trial testimony with regard to fingerprints was to the effect that no “usable” fingerprints had been obtained. There is nothing whatsoever to indicate that this lack of any “usable” fingerprint evidence was ever documented in writing. “OCGA § 17-7-211 attaches only when there is a writing. [Cit.]” Faircloth v. State, 253 Ga. 67, 68 (2) (316 SE2d 457) (1984). “ ‘[T]here is no evidence suggesting bad faith on the part of the prosecution in this case. [Cit.]’ There is no evidence in the case sub judice suggesting that the lack of a written scientific report [regarding the absence of usable fingerprints] reflects bad faith on the part of the prosecution. [OCGA § 17-7-211] does not require creation of a written scientific report if none exists. [Cit.]” McDaniel v. State, 169 Ga. App. 254 (3) (312 SE2d 363) (1983).

Moreover, even assuming that there was a written report and that a violation of OCGA § 17-7-211 did occur, no reversible error would be shown. The lack of any usable fingerprint evidence would more nearly constitute an exculpatory rather than an inculpatory factor. The remedy for a violation of OCGA § 17-2-211 is not the grant of a motion for mistrial, but the suppression of the evidence. See OCGA § 17-2-211 (c); Law v. State, 251 Ga. 525 (307 SE2d 904) (1983). The failure of the trial court to suppress what was arguably the only evidence of a potentially exculpatory nature could not possibly have harmed appellant.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.