text:
    76486.
    ROGERS v. ATLANTIC AMERICAN LIFE INSURANCE COMPANY.
    (370 SE2d 810)
   Carley, Judge.

In June of 1983, appellant-plaintiff and her husband were issued a joint whole life insurance policy by appellee-defendant. The policy contained a “waiver of premium benefit” rider. Under the terms of this rider, appellee agreed to a waiver of premiums in the event that an insured suffered a “total disability.” As defined in the rider, an insured’s “total disability” consisted of his “[i]ncapacity to engage in any occupation for remuneration or profit, which incapacity is the result of bodily injury which occurs, or disease which first manifests itself after effective date of this Rider.” It was further provided that the insured’s satisfaction of certain procedural steps would be necessary to secure a successful invocation of the provisions of the “waiver of premium benefit” rider.

As the result of his mental condition, appellant’s husband lost his job in December of 1985. Thereafter, neither he nor appellant made any premium payments to appellee. The insurance policy then lapsed for nonpayment of premiums in January of 1986 and no attempt was made to reinstate the policy. Appellant’s husband died in May of 1986. In June of 1986, appellant submitted a “waiver of premium benefit” claim form to appellee, asserting that her husband had suffered a “total disability” in December of 1985. Shortly thereafter, appellant also submitted a death benefit claim form to appellee.

Appellee denied appellant’s death benefit claim. Appellant then filed this suit against appellee, seeking to recover the face amount of the policy’s death benefit and damages pursuant to OCGA § 33-4-6. Appellee answered, denying the material allegations of appellant’s complaint. After a period of discovery, appellee moved for summary judgment. The trial court granted appellee’s motion. Appellant appeals from the trial court’s order granting summary judgment in favor of appellee.

1. Appellant enumerates the grant of summary judgment in favor of appellee as error, urging that a genuine issue of material fact remains as to whether appellee is precluded from asserting that the nonpayment of premiums caused the life insurance policy to lapse in January of 1986.

Appellant relies upon the “waiver of premium benefit” rider as establishing that there was no obligation to pay the life insurance premiums to appellee during the period of her husband’s “total disability.” However, even assuming without deciding that the record would otherwise authorize a finding of appellant’s satisfaction of the procedural requirements necessary to the invocation of the “waiver of premium benefit” rider, it is clear that the rider could have no substantive effect upon this case unless appellant’s husband had suffered from a disability resulting from a disease “which first manifests itself after [its] effective date. ...” It is undisputed that any disability which appellant’s husband suffered in December of 1985 was solely the result of his mental condition, which mental condition had first manifested itself some six years before the effective date of the rider. The undisputed evidence shows that appellant’s husband had suffered from and had received treatment for schizophrenia from 1977 until his death. In his application for the insurance policy, appellant’s husband had himself also indicated that he had received treatment for a nervous breakdown in 1980. “[A] policy of insurance ‘. . . which, when construed reasonably and in its entirety, unambiguously and lawfully limits the insurer’s liability cannot be extended beyond what is fairly within its plain terms.’ [Cit.]” Showers v. Allstate Ins. Co., 136 Ga. App. 792, 793 (222 SE2d 198) (1975). Accordingly, appellant has no substantive claim under the “waiver of premium benefit” rider to the policy. Therefore, she would have no defense against appellee’s assertion of a lapse of the life insurance policy for nonpayment of premiums.

Appellant urges, however, the incontestability clause of the policy would preclude appellee from denying the applicability of the “waiver of premium benefit” rider. Appellant’s contention is predicated upon a misconstruction of the effect that an incontestable clause has upon those defenses which are available to a life insurer. “A clause in any policy of life insurance which provides that the policy shall be incontestable after a specified period shall preclude only a contest of the validity of the policy and shall not preclude the assertion at any time of defenses based upon provisions in the policy which exclude or restrict coverage, whether or not the restrictions or exclusions are excepted in the clause.” OCGA § 33-25-7. In the case at bar, appellee does not contest the underlying validity of the policy but denies the existence of any valid claim for benefits thereunder. Appellee is merely asserting that appellant has no substantive claim under the terms of the “waiver of premium benefit” rider and that she would, therefore, have no defense to the assertion that the life insurance policy lapsed for nonpayment of premiums. Appellee was not “precluded by the incontestable clause in this [policy] from showing that [the disability of appellant’s husband] was not covered within the terms and provisions of the policy because of restrictions and exclusions therein, although [it] would have been precluded from asserting as a defense the invalidity of the [policy] because of fraud in the procurement or any other ground affecting the validity of the [policy] as a whole. [Cits.]” Ballinger v. C & S Bank of Tucker, 139 Ga. App. 686, 688-689 (229 SE2d 498) (1976). See also Hollis v. Travelers Ins. Co., 49 Ga. App. 274 (175 SE 33) (1934).

Decided June 15, 1988.

W. Steven Harrell, for appellant.

L. Catharine Cox, for appellee.

Since it is undisputed that appellant’s husband did not suffer a “total disability” under the terms of the “waiver of benefit” rider, appellant was obligated to pay premiums to keep the life insurance policy in effect after her husband became disabled. Accordingly, the trial court correctly found that, under the undisputed evidence, the policy lapsed for nonpayment of premiums prior to the death of appellant’s husband and that, as the result, appellee had no liability for the payment of a death benefit under the policy.

2. Appellant’s remaining enumerations of error are moot as the result of our disposition of the case for the reasons discussed in Division 1.

3. The trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    76559.
    CAMERON v. THE STATE.
    (370 SE2d 812)
    Decided June 15, 1988.

      John B. Adams, for appellant.

      Harry D. Dixon, Jr., District Attorney, Margaret M. Edwards, Assistant District Attorney, for appellee.
   Carley, Judge.

Appellant was tried before a jury and convicted of armed robbery and aggravated assault upon a peace officer. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. The trial court’s admission into evidence of certain of appellant’s in-custody statements is enumerated as error. Before allowing appellant’s in-custody statements into evidence, the trial court conducted a Jackson-Denno hearing and concluded that those statements had been voluntarily made and were, therefore, admissible. “Factual and credibility determinations of voluntariness made at a Jackson-Denno hearing must be accepted by appellate courts unless clearly erroneous. [Cit.]” Mungin v. State, 183 Ga. App. 290, 291 (1) (358 SE2d 673) (1987). Our review of the transcript of the JacksonDenno hearing reveals that, in the light of the totality of the surrounding circumstances, the trial court’s finding as to the voluntariness of appellant’s in-custody statements was not clearly erroneous. Accordingly, this enumeration is without merit.

2. Appellant enumerates as error the trial court’s failure to charge on the crime of simple battery as a lesser included offense of the alleged aggravated assault. The evidence adduced at trial showed that the victim of the assault had been stabbed with a knife and was then hit repeatedly on the head with a pistol. “[T]he offense of simple battery is not reasonably raised by [this] evidence, [and] it is not in issue so as to require instructions. [Cit.]” Guthrie v. State, 147 Ga. App. 351, 353 (2) (248 SE2d 714) (1978). See also Davis v. State, 135 Ga. App. 584, 588 (6) (218 SE2d 297) (1975).

3. Appellant enumerates the general grounds. Our review of the entire record reveals that, from the evidence which was produced at trial, a rational trior of fact could reasonably have found appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    76374.
    THOMPSON v. THE STATE.
    (370 SE2d 819)
   Beasley, Judge.

Defendant appeals his conviction of molesting his ten-year-old stepdaughter, in violation of OCGA § 16-6-4. He asserts error in the admission of a video tape depicting explicit sexual activity and the duration of time it was shown to the jury. He also contends that the trial court erred in denying his motion for a directed verdict of acquittal.

1. We find no error in the admission of a video tape and connected testimony. The victim’s friend, a ten-year-old girl, testified the tape was shown to her by defendant the morning after the victim was permitted to have the girl stay overnight. The act of which defendant was charged involved a prerequisite to that permission and occurred the day before. On the trial of sexual crimes, materials, including VCR tapes, depicting graphic sexual acts are properly admitted as they have a tendency to show bent of mind by defendant toward sexual activity. Tyler v. State, 176 Ga. App. 96, 99 (1) (335 SE2d 691) (1985); Wilcoxen v. State, 162 Ga. App. 800 (1) (292 SE2d 905) (1982).

Defendant contends that the witness testified that she watched the tape for only a “couple of minutes” and the jury was permitted to view the tape for five minutes. This variance in viewing time was not harmful error especially in view of the fact that the jury began watching from the beginning and the first two minutes of the video tape consisted of credits and relatively innocuous scenes not at all resembling what the witness described, but then was followed by scenes of sodomy and masturbation. See in this regard Tyler, supra.

2. Defendant argues that, even if true, requiring the victim to dance naked in front of him did not constitute child molestation within the meaning of the code section. The victim also testified that on prior occasions defendant had made her take off her clothes and dance and let him look at and rub her “private places.” She admitted that while he had touched her before that he did not touch her on the occasion for which he was charged.

Whether defendant committed an indecent or immoral act in the presence of the victim, a child under fourteen, with the intent to arouse the sexual desires of either the victim or himself as described in OCGA § 16-6-4 is a jury question, and what the jury determines from a consideration and evaluation of the whole ought to be accepted. Chapman v. State, 170 Ga. App. 779, 780 (1) (318 SE2d 213) (1984). “[T]he Georgia law against child molestation proscribes acts which offend against [the] public sense of propriety as well as affording protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature. A child’s mind may be victimized by molestation as well.” Smith v. State, 178 Ga. App. 300, 301 (1) (342 SE2d 769) (1986).

Decided June 16, 1988.

Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

Construing the evidence and inferences therefrom in favor of the verdict, Adams v. State, 255 Ga. 356, 357 (1) (338 SE2d 860) (1986), a rational trier of fact could have found defendant guilty of child molestation beyond a reasonable doubt. Evans v. State, 177 Ga. App. 572 (1) (340 SE2d 620) (1986); Jordan v. State, 172 Ga. App. 496, 501 (9) (323 SE2d 657) (1984).

Judgment affirmed.

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


author: Pope, Judge.

text:
    76352.
    WILLIAMS v. THE STATE.
    (370 SE2d 821)
   Pope, Judge.

Defendant was convicted by a jury of obstruction of an officer, OCGA § 16-10-24 (b).

The facts, although not without dispute, showed the following: Sgt. Donald Cox of the Valdosta Police Department testified that on the date in question he had responded to a call to disperse a crowd gathered in the street when he was approached by a woman who requested his assistance in removing her son from her house. Sgt. Cox saw the defendant standing on an apartment balcony with four to five people standing on the ground nearby. Sgt. Cox testified that he climbed up the stairs to the edge of the balcony when the defendant grabbed him with both hands and started screaming, “I’ll kill you, I’ll kill you.” Sgt. Cox said he attempted to get away but that the defendant grabbed him “through [the] crotch, [and] took his other hand and put it on [Sgt. Cox’s] shoulder area” in an apparent attempt to “pick [him] up and push [him] at the same time . . . towards the edge of the balcony.” Sgt. Cox testified that he placed his hand on the balcony and the railing began to crack and break. Another officer interceded, shoving defendant and breaking his hold on Sgt. Cox, who continued struggling with defendant down the length of the balcony; the defendant again attempted to push Sgt. Cox off the balcony. Other law enforcement officers entered the fray and defendant fell sandwiched between two officers and was eventually subdued and handcuffed.

1. Defendant first contends that the trial court erred in allowing the State to cross-examine his brother concerning an earlier, unrelated altercation involving the defendant and in not giving the jury appropriate limiting instructions as to such testimony. As to this issue, the record shows that the complained of testimony was first elicited during the defendant’s direct examination of the witness, and that the testimony apparently was the result of the witness’ confusion concerning which incident he was being questioned about. No objection or motion to strike was made by defendant at that time. However, when the State sought to cross-examine the witness concerning the earlier incident, the defendant objected and requested an instruction to the jury. The trial court found that “based on the questions, I think there was some confusion about whether or not this happened the same night. The testimony now is that it happened at an earlier time, so I think that clarifies the matter, and I’ll sustain the objection as to any further testimony.” The defendant did not renew his request for curative instructions to the jury, make a motion for mistrial, or in any other manner indicate that he considered the trial court’s statement to be inadequate ameliorative relief.

“Whenever improper conduct allegedly occurs in the presence of the jury, it is necessary in order to make the same a basis for review, that counsel make proper objection to it at the time made or invoke some ruling or instruction from the court and if the court refuses to grant that remedy to the movant, then it is incumbent upon him to ask the court to declare a mistrial. A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later. Edwards v. State, 171 Ga. App. 264, 265 (2) (319 SE2d 101) (1984).” (Cits. and punctuation omitted.) Castillo v. State, 178 Ga. App. 312 (3) (342 SE2d 782) (1986). See also Kent v. State, 182 Ga. App. 592 (2) (356 SE2d 543) (1987). “ ‘(A) litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an (alleged) erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. (Cit.)’ Upshaw v. Cooper, 127 Ga. App. 690, 692 (1) (194 SE2d 618) (1972).” Sanders v. State, 181 Ga. App. 117, 120 (351 SE2d 666) (1986). Consequently, this enumeration affords no basis for reversal. Accord Henderson v. State, 184 Ga. App. 834 (1) (363 SE2d 52) (1987).

2. Defendant also contends that the trial court erred in allowing the State to introduce evidence of defendant’s prior convictions for the offenses of burglary, theft by shoplifting and theft by entering an automobile. The record shows that the trial court concluded that such evidence was admissible after defendant, in response to a question propounded on direct examination, testified that “[he] never had any run-in with an officer like this before. This is my first time, you know, ever being charged with something like this. I never had a run in with an officer before like this.”

“ ‘(N)o evidence of a criminal defendant’s general bad character or prior convictions shall be admissible against him at trial unless and until such defendant shall have first put his character in issue. (Cit.) It follows that the State cannot rebut or question the presumption of the defendant’s good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence of other witnesses or by his own testimony. (Cit.)’ Phillips v. State, 171 Ga. App. 827 (321 SE2d 393) (1984), aff’d 254 Ga. 370 (329 SE2d 475) (1985)].” Richardson v. State, 173 Ga. App. 695, 696 (327 SE2d 813) (1985). Contrary to the trial court’s finding, we do not believe that defendant’s statement that he had never had a “run-in” with an officer “opened the character door.” Accord Richardson, supra.

We likewise decline to find that the evidence presented here was admissible to show the falsity of defendant’s statement. “ Tn [an] impeachment situation, the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of specific testimony of the defendant.’ [Cit.]” Porter v. State, 254 Ga. 388, 389 (330 SE2d 94) (1985). In the case at bar the prior convictions which were introduced were in no way similar to the conduct denied by the defendant, to wit, having a run in with a law enforcement officer (obstruction of an officer). Hence, the evidence of prior convictions was inadmissible as impeachment evidence. Williams v. State, 257 Ga. 761 (4) (363 SE2d 535) (1988); Jones v. State, 257 Ga. 753 (Ia) (363 SE2d 529) (1988). Cf. Porter, supra; Richardson, supra; Williams v. State, 171 Ga. App. 927 (2) (321 SE2d 423) (1984); Favors v. State, 145 Ga. App. 864 (1) (244 SE2d 902) (1978). Consequently, defendant’s conviction must be reversed. Accord Johnson v. State, 186" Ga. App. 117 (366 SE2d 424) (1987); Carroll v. State, 77 Ga. App. 251 (48 SE2d 491) (1948).

3. Defendant also complains of the trial court’s failure to charge on the lesser included offenses of simple assault and simple battery. “The record does not reflect any request to charge on lesser included offenses presented to the trial court. In the absence of a written request, it is not error for the trial court to fail to charge on a lesser included offense.” Johnson v. State, 179 Ga. App. 21, 23 (345 SE2d 123) (1986).

4. Contrary to defendant’s assertion, the evidence was sufficient. See, e.g., Gay v. State, 179 Ga. App. 430 (2) (346 SE2d 877) (1986); Whaley v. State, 175 Ga. App. 493 (333 SE2d 691) (1985). However, as stated in Division 2, the erroneous admission of evidence concerning prior convictions requires reversal of defendant’s conviction herein.

Decided June 17, 1988.

Robert D. Cullifer, for appellant.

H. Lamar Cole, District Attorney, Stephen J. Pearsall, Assistant District Attorney, for appellee.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    76365.
    TUCK v. MARRIOTT CORPORATION.
    (370 SE2d 795)
   Benham, Judge.

Appellant sued appellee for injuries she sustained in a fall while walking down steps on appellee’s business premises. The evidence showed she had walked up those same steps approximately 15 minutes earlier. Appellant contended that the lighting on the steps was such as to create an optical illusion which caused her to lose her balance and that the absence of a handrail contributed to her loss of balance and to her fall. She testified on deposition that she looked down as she began to descend the steps, noticed that the lighting appeared to be different when descending, and then stepped down. When her foot reached the step, however, it seemed uneven and she lost her balance. Reaching for a handrail, she lost her balance further and fell. There is no evidence that the step was actually uneven.

After suit was filed, some discovery disputes arose and appellant filed a motion to compel discovery. Appellee subsequently filed a motion for summary judgment. The trial court, citing Lane v. Maxwell Bros. & Asbill, 136 Ga. App. 712 (222 SE2d 184) (1975), granted appellee’s motion. It subsequently denied appellant’s motion to compel discovery. We affirm.

1. We agree with the trial court that Lane is applicable, especially in its holding that since appellant was “aware of the elevation, any deception or optical illusion which may have contributed to her injury was negated.” Id. at 713. We find even more compelling authority in Garnett v. Mathison, 179 Ga. App. 242 (345 SE2d 919) (1986). There, as here, there was an allegation of negligence per se and a holding that appellant’s equal knowledge of “the alleged defective condition and potential danger ...” prevented recovery. Id. at 243.

(a) The alleged negligence per se was the absence of or mislocation of a handrail. However, the building code section of which the handrail was alleged to be violative was placed in the record and was shown to be inapplicable since it governed only stairs with more than three risers while the stairs involved here have only two risers. “The evidence showing there to be no violation of any applicable statutory provision, the trial court did not err in granting summary judgment on the negligence per se claim.” Id. Division 1.

(b) Relying on the opinion of an expert witness, appellant contends that the trial court erred in not finding that there were questions of fact remaining with regard to whether appellee was negligent. That position takes into account only half of the showing a plaintiff must make in order to prevail in a negligence action. “For appellant to recover under a common law negligence theory, there must have been a defective condition on [appellee’s] premises, which defect was the cause of appellant’s fall and of which appellee had superior knowledge. [Cit.] ‘The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. “The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” [Cit.] Thus, the basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ [Cit.]” Id. at 243.

There is no allegation that appellant’s view of the steps was in any way impaired. Allegations of negligence concerning the lighting on the steps did not include a claim that the steps were too dark to enable appellant to see clearly, only that the lighting was such as to deceive appellant as to the location of the step. As noted, appellant had traversed the same steps only moments before and noticed as she approached on the return trip that the lighting seemed different. “Under the circumstances, it is clear that appellant’s knowledge of the alleged ‘defective condition’ and potential danger evidenced by the . . . steps was equal to that of appellee. This is especially true since appellant had just traversed the route of which she now complains. Accordingly, appellant would not be entitled to recover in common law negligence from appellee, and the trial court’s grant of summary judgment was proper. [Cits.]” Id. at 243.

2. In her other enumeration of error, appellant complains of the denial of her motion to compel discovery. We note that appellant made no effort to obtain a hearing on her motion prior to the entry of summary judgment. The material she sought to discover related to appellee’s negligence and to its knowledge of the danger presented by the steps. As we have held, however, the crucial knowledge here was appellant’s. More evidence that the steps were defective in the way appellant contended, and evidence that appellee knew of the danger would not change the fact that appellant was also aware of the danger. Although the grant of summary judgment while a motion to compel discovery is pending is generally not condoned, where, as here, the disallowed discovery would add nothing of substance to the party’s claim, reversal is not required. Motz v. Landmark First Nat. Bank, 154 Ga. App. 858 (4) (270 SE2d 81) (1980).

Decided June 8, 1988

Rehearing denied June 20, 1988

James A. Eidson, James W. Kytle, John E. Talmadge, for appellant.

John D. Jones, Margaret L. Milroy, for appellee.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    76807.
    DALTON v. THE STATE.
    (370 SE2d 823)
   Deen, Presiding Judge.

The appellant, Patricia Dalton, was convicted of simple battery, for which she was sentenced to 12 months’ probation and payment of a $100 fine. On appeal, she contends that the trial court erred in its instructions to the jury.

On July 13, 1986, the appellant resided in a mobile home with her husband, her mother and her stepfather. On that day a deputy sheriff was called to the scene because of an argument between the appellant’s husband and another man. The situation was fairly calm, when Tommy Toe, a neighbor, joined the crowd and called the appellant’s brother a “son-of-a-bitch.” The appellant, who claimed that she had told Toe to get off their property several times and that Toe had also called her names, then charged and struck Toe. The deputy sheriff placed only the appellant under arrest. Held:

1. The appellant contends that the trial court should have given the requested charge on defense of property other than a habitation. OCGA § 16-3-24 provides that “[a] person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with real property other than a habitation or personal property: (1) lawfully in his possession; [or] (2) lawfully in the possession of a member of his immediate family. . . .” Obviously, Toe’s trespass on the property was connected to the battery, since his presence made the appellant’s attack possible, but it is clear from the appellant’s own testimony that the appellant was provoked to assault Toe by the latter’s name-calling, and not out of an intent to terminate his trespass on the property. Accordingly, the trial court properly omitted the requested charge.

Decided June 20, 1988.

Neil A. Smith, for appellant.

Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assistant District Attorney, for appellee.

2. The appellant also contends that the trial court should have instructed the jury on the use of “fighting words,” on the grounds that her attack on Toe was justified by the latter’s abusive language. However, when specifically asked by the trial court whether there were any objections to the jury charge, defense counsel objected only to the omission of the requested charge on defense of property, and did not reserve the right to raise other objections later. Under this circumstance, the appellant waived any objection to the omission of a jury charge on “fighting words.” Rann v. State, 183 Ga. App. 234 (3) (358 SE2d 644) (1987).

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Deen, Presiding Judge. Sognier, Judge,

text:
    76521.
    HILSMAN v. KROGER COMPANY.
    (370 SE2d 755)
   Deen, Presiding Judge.

The appellant, Judith Hilsman, commenced this action against Kroger Company to recover damages for a broken wrist she sustained when she slipped and fell while grocery shopping. The trial court granted summary judgment for Kroger, and this appeal followed.

On March 21, 1986, around noon, Hilsman slipped and fell as she was walking down the frozen food aisle. The store’s co-manager happened to be in the next aisle, heard the fall, and went around to the frozen food aisle to help Hilsman. He noticed five frozen peas on the floor. Another shopper witnessed the slip and fall, and claimed that frozen peas and carrots, still with ice on them, were on the floor. Hilsman testified in her deposition that after her fall she noticed frozen peas, ice, and some water on the floor.

The co-manager stated that he had been unaware of the spillage of the peas prior to Hilsman’s fall, and that no one had reported it. He explained that store management policed the floors for any foreign substances and called for clean-up of any messes, but he could not remember if he had inspected the frozen food aisle at any time that day prior to Hilsman’s fall. The store employee in charge of re-stocking the frozen foods routinely checked the displays shortly before he left, but this employee had gotten off work at 11:30 a.m. on the day of the incident. Held:

1. Hilsman contends that the trial court erred in granting summary judgment for Kroger, because a factual issue existed as to Kroger’s constructive knowledge of the spilled peas on the floor. We agree.

Concerning slip and fall cases, we have read of “superior knowledge,” “actual knowledge,” “constructive knowledge,” “reasonable care in inspecting the premises,” and “exercise of ordinary care” “until [our] eyes have grown weak with reading and brain fagged out with trying to understand what learned judge after learned judge and learned law writer after learned law writer have said on these subjects. ‘But the thought comes to us that one may live in sight of the ocean, may sail upon it, may know its moods in the calm and in the storm, and yet not be able to answer some simple question as to a cup of cold water. He who so oft had studied with most critical and intelligent eyes the profusion of flowers in which England’s gardens and fields abound confessed how little he knew of the “all in all” of the single and insignificant flower which he plucked from the crannied wall.’ ” City of Atlanta v. Keiser, 50 Ga. App. 600, 601-602 (179 SE 192) (1934).

Generally, in order to state a cause of action in a slip and fall case involving a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the presence of the foreign substance, and that the plaintiff was without equal knowledge. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). Constructive knowledge may be inferred where there is evidence that an employee of the defendant was in the immediate vicinity and could easily have noticed and removed the substance, or that the defendant failed to exercise reasonable care in inspecting the premises. Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (1985).

2. In moving for summary judgment in the instant case, Kroger had the burden of showing that no genuine issue of fact existed as to its lack of actual or constructive knowledge of the frozen peas on the floor. Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988); Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988). The store co-manager testified by deposition that the store management did police the floors, but he did not specify how frequently such inspection occurred, and, more importantly, he could not remember if he or anyone else had inspected that particular frozen food aisle at any time that day before the fall. The co-manager also explained that another employee had the responsibility of checking the frozen food sections and re-stocking them shortly before he got off from work, which on the day of the incident was 11:30 a.m. This evidence failed to negate the possibility that Kroger, even if it had a general routine of inspection, did not exercise reasonable care in inspecting the property in this instance. Food Giant v. Cooke, supra; Winn-Dixie of Greenville v. Ramey, supra. Likewise, the fact that the peas were still frozen at the time Hilsman fell did not rule out the possibility that the peas had remained on the floor long enough for Kroger to have discovered the spillage in the exercise of reasonable care in inspecting the premises.

The evidence also did not demand a finding that Hilsman, in the exercise of ordinary care for her own safety, should have been aware of the peas on the floor. Accordingly, the trial court erred in granting summary judgment for Kroger.

Judgment reversed.

Carley, J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur specially to note that the majority here, as have I in earlier opinions, cites as authority in an appeal from a grant of summary judgment a case that procedurally involves an appeal from the direction of a verdict. While the principles of law for which such a case is cited are often equally applicable in all slip and fall cases regardless of the procedural status of the case, the burden of proof on the parties differs according to that procedural status. Reference to authorities such as Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (1985), cited in this case and in Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987), should not be misread as indicating any change in the law of summary judgment as it relates to the burden of proof on the movant. The rule has been, and continues to be, that on motion for summary judgment, regardless of which party would have the burden of proof at trial, if a material fact has been alleged in the complaint, can be reasonably drawn from the pleadings, or has been raised by the evidence placed in the record by any party, the defendant-movant has the burden of proving the nonexistence of that fact and it is not until the movant carries its own burden that the burden then shifts to the plaintiff-respondent. See Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895) (1987); Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 49 (3) (332 SE2d 304) (1985); Alterman Foods v. Ligon, 246 Ga. 620, 625 (272 SE2d 327) (1980); see generally Jacobsen v. Muller, 181 Ga. App. 382, 384 (352 SE2d 604) (1986); Harris v. White, 148 Ga. App. 862, 863 (253 SE2d 249) (1979); Evans v. Bibb Co., 178 Ga. App. 139, 140 (1) (342 SE2d 484) (1986).

Decided May 19, 1988

Rehearing denied June 21, 1988

Larry W. Thomason, for appellant.

Robert C. Semler, Johannes S. Kingma, for appellee.


text:
    75369, 75370.
    INTERNATIONAL INDEMNITY COMPANY v. COLLINS; and vice versa.
    (371 SE2d 466)
    Decided June 21, 1988.

      Michael L. Wetzel, for appellant.

      Clarence L. Martin, for appellee.
   Deen, Presiding Judge.

The decisions of the Court of Appeals in the captioned cases having been affirmed in part and reversed in part by the Supreme Court, our decisions in International Indem. Co. v. Collins, and vice versa, 184 Ga. App. XXXI (1987) are hereby vacated and the judgments of the Supreme Court made the judgments of this court. Pursuant to the aforesaid judgments, International Indemnity Company is to pay survivor’s benefits to Shamone Collins as the dependent child of the insured, plus pre-judgment interest at the statutory rate. Further pursuant to the judgments of the Supreme Court, neither a bad-faith penalty nor attorney fees is payable. OCGA §§ 7-4-15; 19-7-2; 33-34-4; 33-34-5; 33-34-6.

Judgments affirmed in part and reversed in part.

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


text:
    75511.
    ALLSTATE INDEMNITY COMPANY v. DENISON et al.
    (370 SE2d 466)
   Pope, Judge.

Our judgment in this case at 185 Ga. App. 390 (364 SE2d 103) (1987) has been reversed by the Supreme Court on certiorari. Allstate Indem. Co. v. Denison, 258 Ga. 269 (367 SE2d 803) (1988). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is affirmed.

Decided June 21, 1988.

Thomas S. Carlock, Paul R. Vancil, for appellant.

J. Alvin Leaphart, for appellees.

Judgment affirmed.

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


text:
    75807.
    DEPARTMENT OF TRANSPORTATION v. COLLINS.
    (370 SE2d 825)
   Beasley, Judge.

DOT appeals in this condemnation case, claiming four errors in evidentiary rulings made by the trial court during the condemnees’ appeal to a jury. OCGA § 32-3-16.

The condemnation was of 1.966 acres on both sides of a state highway. Two advertising signs were located on the condemned property, one on each side of the road. During its case, DOT attempted to show that it had purchased one of the signs from the company which DOT contended owned it. This evidence, however, was disallowed and forms the basis of DOT’S fourth enumeration. The third enumeration claims error in the court’s refusal to admit a copy of a check from this company to Collins. The check was tendered during DOT’S cross-examination of Collins.

When condemnee Collins testified on direct examination, he was asked what his “understanding” was with the people who had originally installed and leased the signs from him about who owned the signs. This question was objected to by DOT on several grounds and was overruled. The question was rephrased nevertheless, and Collins was asked what the agreement was. No objection was made and the question was answered. The first two enumerations relate to the initial question and the later motion of DOT to strike certain redirect testimony on this same issue.

1. On redirect examination, Collins was asked two more questions about ownership of the signs, neither of which was objected to. On the next day after both sides had closed, DOT moved to strike this latter testimony, on the ground that there was no evidence of who actually owned those signs and that Collins’ understanding of who owned them might be different from the other party to the agreement.

Pretermitting the issue of waiver of any objection by DOT’S failure to object at the time of introduction, Nelms v. Dorsey, 168 Ga. App. 452, 454 (2) (309 SE2d 426) (1983) and Hall County Mem. Park v. Baker, 145 Ga. App. 296, 298 (4) (243 SE2d 689) (1978), neither of the grounds presented in the motion to strike go to admissibility of the evidence. The first, that there was no evidence of who owned the signs, was an incorrect statement of what had been introduced. Collins testified that he owned them, which was evidence of that fact. Nesbit v. Nesbit, 241 Ga. 351, 352 (2) (245 SE2d 303) (1978). This was uncontradicted by DOT and was a sufficient basis for denying the motion to strike on that ground. Brown v. Techdata Corp., 238 Ga. 622, 628 (234 SE2d 787) (1977).

As to the second, concerning the correctness of Collins’ understanding with the sign companies, this was a mere statement of counsel’s contentions and was not the subject of any evidence before the court. Collins had testified what the agreement was. This did not provide any ground for granting the motion to strike.

DOT’s argument in its brief concerning the proof of condemnees as to the value of the signs was not the subject of any objection or ruling below and is not enumerated as error. It will not be considered. Velkey v. Grimes, 214 Ga. 420, 421 (105 SE2d 224) (1958); Dean v. State, 163 Ga. App. 29 (1) (293 SE2d 492) (1982).

2. During the cross-examination of Collins, DOT showed him a copy of a 1980 check and its connected memorandum, purporting to be rent for one year to Collins from Lamar Corporation, the company which DOT contended was the owner of one of the signs. Mr. Collins could not positively identify it, other than to agree that it appeared to be a copy of a check from Lamar to him. The copy was tendered by DOT and objected to by Collins on the ground that it was not relevant and no foundation had been laid for its admission, nothing having been shown as to the reason for the check, its authenticity, or its connection with the sign at issue. Although DOT asked Collins further questions, it was unable to elicit any more information about the check. The court sustained the objection, which is here complained of.

Condemnor offered the check copy to impeach Collins as to value of the billboards. There was no connection shown between the document and the issue, thus its relevance was not established. OCGA § 24-2-1; Agnor’s Ga. Evid., § 10-1. Nor was there any showing that due diligence was exerted but failed to produce the original. OCGA § 24-5-21 et seq. Nor was there any proof that the copy was made in the regular course of business so as to make it admissible. OCGA § 24-5-26. These hurdles were required to be met before the copy was admissible for any purpose, including impeachment.

3. In its last enumeration, DOT claims error in the court’s refusal to admit the original of a purported sign conveyance by which DOT contended it had purchased one of the signs from Lamar, as well as oral testimony that the purchase had been made. The document was tendered and testimony given by a right-of-way specialist with DOT. He stated that he was not present when the conveyance was signed nor could he otherwise identify it except as a part of DOT’s records. The document tendered was not signed by anyone from DOT. It was objected to on the ground that it had not been authenticated and no adequate foundation for its admission had been proven. His testimony that the sign had been purchased was objected to as hearsay, he having stated he was not present when the sale was made and that he had no personal knowledge of the sale, but gained information from the outdoor advertising section of DOT and as a member of the acquisition team.

Decided June 21, 1988.

Michael J. Bowers, Attorney General, Glenn Whitley, Special Assistant Attorney General, for appellant.

D. Lynn Kelley, for appellee.

The writing sought to be introduced was never authenticated and thus was not admissible. OCGA §§ 24-7-1; 24-7-4; 24-7-5. The testimony was hearsay and not admissible. OCGA § 24-3-1.

Judgment affirmed.

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

       DOT does not explain how Lamar could be both lessee of the sign, as payer of the excluded one-year “lease” check, and its owner.


text:
    76051.
    PARKS et al. v. CONSOLIDATED FREIGHTWAYS et al.
    (370 SE2d 827)
   Beasley, Judge.

Terry Parks, his mother-in-law Mrs. Reid, his wife, and his daughter through her representatives, appeal from the verdict and judgment in favor of defendants Consolidated Freightways, Horne, and Safeco Insurance Company. Parks, Reid, and the child were injured in a traffic accident involving a Consolidated tractor-trailer driven by Horne. Parks was rendered a quadraplegic. Safeco posted the bond required by OCGA §§ 46-7-12 (a) (c) & 46-7-58 (a) (c).

The evidence supporting the verdict showed that Parks was driving a pickup truck west on Cascade Road with his then three-year-old daughter in the center and Mrs. Reid in the passenger’s seat. No one was wearing seatbelts. He stated he saw a big blur in front of the truck, panicked, and jammed on the brakes, causing the truck to go into a skid and hit the east-bound tractor-trailer driven by Horne. The dispute as to liability arose over Parks’ contention that the tractor-trailer had veered over the centerline into his lane, causing his reaction and the wreck. He contended that the initial impact occurred in his lane. Horne and two eyewitnesses saw the pickup truck weave back and forth more than once and cross the centerline. One saw the child standing up in the seat seconds before impact. All stated that the impact occurred in the eastbound lane and that Horne took evasive action.

Both sides also produced experts in accident reconstruction, although plaintiffs’ had never examined the vehicles except via photographs and only saw the scene three years after the accident. Defendants’ had examined the vehicles and visited the scene within three weeks of the wreck.

1. Plaintiffs first complain that the trial court erroneously bifurcated the trial into liability and damages phases over their objection. In their written response to defendants’ motion, plaintiffs contended that it was necessary for them to introduce expert medical evidence as to how the quadraplegia-producing injury occurred in order to support their version of the accident. There is, however, nothing in the record or transcript showing any proffer of this evidence.

The court ordered the issues tried separately pursuant to OCGA § 9-11-42 (b). “Severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal.” Wheels & Brakes v. Capital Ford Truck Sales, 167 Ga. App. 532, 533 (1) (307 SE2d 13) (1983); Vitner v. Funk, 182 Ga. App. 39, 43 (1) (354 SE2d 666) (1987). Bifurcating the issues of liability and damages was held appropriate in another vehicle collision case involving physical injuries and medical damages. Cline v. Kehs, 146 Ga. App. 350 (1) & (2) (246 SE2d 329) (1978).

There was no error and plaintiffs have shown no harm from the bifurcation in any event.

2. The second enumeration claims error in the trial court’s denial of plaintiffs’ motion for j.n.o.v. or new trial due to the court’s failure to answer or respond to a question posed by the jury during its deliberations.

After the jury began deliberating, it sent out the following question: “Must the jury assign negligence to either party involved?” Shortly after the court and counsel began discussing the response to be made, the jury indicated it had a verdict. It was returned on the special verdict form and revealed that the jury found all parties not negligent.

At the time the announcement was made that there was a verdict and before it was published, plaintiffs voiced no objection to the court’s receiving the verdict without answering the jury’s question. After the verdict was read, plaintiffs voiced their approval as to the form of the verdict and expressed no disapproval until their motion for new trial.

Sequence-wise, it is impossible for such an error to have been the subject of a motion for directed verdict, which is a prerequisite to its being considered in the motion for j.n.o.v. OCGA § 9-11-50 (a) & (b). Further, it is not the proper subject of such a motion. OCGA § 9-11-50 (a).

The failure to charge is a possible ground for a motion for new trial. OCGA § 5-5-24. However, plaintiffs were required to object to the trial court’s refusal to instruct the jury before accepting the verdict if they wished that action. OCGA § 5-5-24 (a); see Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 860 (6) (360 SE2d 418) (1987). Refusing a new trial on this tardy ground was not error.

3. Plaintiffs contend that the denial of the motion for new trial on the “general grounds” was error. See Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988), as to the “general grounds.” “The grant or denial of a motion for new trial ... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is ‘any evidence’ to authorize it.” Associated Software &c. v. Wysocki, 177 Ga. App. 135, 137 (338 SE2d 679) (1985); Glenridge Unit Owners Assn., supra. Plaintiffs conclude from the jury’s answering “no” as to both parties’ negligence after having asked the question set out above that the jury must have erroneously concluded that this was a true “accident” for which neither plaintiffs nor defendants were legally responsible. See Benson v. Hunter, 184 Ga. App. 40 (360 SE2d 612) (1987); Chadwick v. Miller, 169 Ga. App. 338 (1) (312 SE2d 835) (1983).

As instructed by the court, if the jury found that defendants were not negligent, or not proved negligent by a preponderance of the evidence, there could be no recovery by plaintiffs, regardless of the degree, if any, of their own negligence. Thus, any conclusion on the jury’s part as to plaintiffs’ negligence was gratuitous and a legal nullity. It provides no basis for a motion for new trial, since there was evidence from which the jury could have found defendants not negligent.

Even if the verdict must be read to mean that the jury did conclude that this was an accident not attributable to any of the parties, it would not require a new trial for plaintiffs. There was evidence that the child may have created a sudden emergency to which her father reacted in a reasonable fashion, and that Horne’s reaction was not negligent, resulting in a true legal accident. See Chadwick, supra; Reece v. Callahan, 164 Ga. App. 131, 132 (296 SE2d 425) (1982). This rationale still supports the verdict and judgment entered on it.

Judgment affirmed.

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

Decided June 21, 1988.

Clayton Sinclair, Jr., for appellants.

Edgar A. Neely III, Randall H. Davis, for appellees.


text:
    76113.
    ST. PAUL FIRE & MARINE INSURANCE COMPANY et al. v. GEORGIA INTERSTATE ELECTRIC COMPANY.
    (370 SE2d 829)
   Beasley, Judge.

St. Paul, surety on the payment bond, and Atlantic States Construction, Inc., general contractor and principal on the bond, appeal the denial of their motions for directed verdict and j.n.o.v. Georgia Interstate Electric Company, the electrical subcontractor on the Way-cross Wastewater Treatment Plant, had sued the surety on the bond and the general contractor under the subcontract.

The subcontractor performed pursuant to a written subcontract which contained in Article VIII a changes clause providing for extra work not originally contained in the project but authorized by the engineer as provided therein. It stated: “If after receipt of such estimate, Contractor gives Subcontractor written authority for such extra work and for adjustment of Subcontract price in accordance with such estimate, Subcontractor shall perform such extra work and the Subcontract price shall be adjusted by the amount set forth in such estimate, provided that no payment shall be due Subcontractor for such changed or extra work until Contractor has received payment from the Owner for said changed or extra work performed by Subcontractor”

The subcontractor made its claim under this provision contending that, although it had not obtained written authorization for any of the work at issue, all of it was “emergency work” which could be performed pursuant to Article VIII without prior written authorization. The surety and general contractor defended, based on the subcontractor’s failure to comply with conditions precedent to its recovery, i.e., failure to get written approval for the work and failure to show that the contractor had been paid for the work by the owner, triggering the subcontractor’s right to payment. There was no evidence that any payment had been made to the contractor by the owner for any of this work. In fact, the engineer had denied approval of some of the work, effectively denying payment.

A directed verdict is demanded when there is no conflict in the evidence as to any material issue and a particular verdict is demanded as a matter of law. OCGA § 9-11-50 (a); Brown v. Phillips, 178 Ga. App. 316 (1) (342 SE2d 786) (1986). While there were conflicts in the evidence as to whether certain of the work was “emergency” or orally approved by the engineer, these conflicts do not preclude a directed verdict or j.n.o.v. as there was no factual conflict concerning payment by the owner. Hawkins v. Greenberg, 159 Ga. App. 302, 305 (1) (283 SE2d 301) (1981). This issue precludes plaintiffs recovery even accepting its version of all other facts.

Decided June 21, 1988.

Ezra B. Jones III, for appellants.

Benjamin Smith, Jr., for appellee.

“A provision in a contract may make payment by the owner a condition precedent to a subcontractor’s right to payment if ‘the contract between the general contractor and the subcontractor should contain an express condition clearly showing that to be the intention of the parties.’ [Cit.] The condition is clearly expressed in this subcontract.” Sasser & Co. v. Griffin, 133 Ga. App. 83, 86 (2) (210 SE2d 34) (1974); Jerome Distrib. v. B. L. I. Constr., 142 Ga. App. 776, 777 (1) (237 SE2d 13) (1977); D. I. Corbett Elec. v. Venture Constr., 140 Ga. App. 586, 587 (1) (231 SE2d 536) (1976); see Peacock Constr. v. West, 111 Ga. App. 604, 606 (142 SE2d 332) (1965).

The contractor and surety were therefore entitled to a j.n.o.v., having made their motions for directed verdict on this ground. The trial court is directed to enter judgment for defendants.

Judgment reversed with direction.

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


text:
    76168.
    THE STATE v. McCLOUD.
    (370 SE2d 831)
   Beasley, Judge.

Defendant McCloud was charged with four counts: possession of cocaine with intent to distribute, OCGA § 16-13-30 (b); possession of less than an ounce of marijuana, OCGA § 16-13-2 (b); operating a motor vehicle with a suspended license, OCGA § 40-5-121 (a); and operating a motor vehicle without effective insurance thereon, OCGA § 33-34-12 (b).

The court granted defendant’s motion to suppress the drug evidence. The undisputed evidence is as follows: Police officers had been called to the high school where defendant worked as a bus driver on January 14, 1987 to investigate the theft of checks and cash from the school vault. Defendant was a suspect in that theft, although officers did not have probable cause to arrest him. As part of the theft investigation, the officers had checked the record on defendant’s driver’s license the day before and learned that it was suspended. They also were aware that defendant had been taken off the school bus the previous day because he had no valid driver’s license. About two or three minutes before the officers left the school, Mr. Brown, a school official, told them that he had information that defendant had sold drugs that day and had drugs in his car.

When the officers saw defendant driving the car, they called a marked police car and advised that defendant was driving with a suspended license. Officer Taylor stopped defendant, verified the suspended license information, and learned upon inquiry from defendant that the car had no insurance. Defendant was arrested for the two traffic offenses, his car impounded, and an inventory search of the automobile was conducted. Under the driver’s seat, the officers found a plastic cassette tape container which held a plastic bag with rice and five tiny ziplock bags inside. The small bags contained a white powder which proved to be cocaine.

Defendant was then charged with the cocaine offense. A warrant was obtained for defendant’s residence. A set of scales with white residue, a quantity of the small ziplock bags, and a small bag of marijuana were found there.

Defendant filed a motion to suppress in reliance on the federal Fourth Amendment, Ga. Const. 1983, Art. I, Sec. I, Par. XIII, and OCGA § 17-5-1 “et seq.” As to the latter, it probably meant § 17-5-2, relating to inventory of items seized, as it is these two provisions in the statutory series which govern searches without warrants. The motion contended that there was no warrant or probable cause; there was no arrest warrant; no crime was committed in the officers’ presence; and the search took place before the arrest. There was no evidence of this latter ground presented at the hearing, but in connection with the former, defendant focused on the federal ground and as to it additionally cited to the court United States v. Miller, 821 F2d 546 (11th Cir. 1987) and United States v. Smith, 799 F2d 704 (11th Cir. 1986).

The court found essentially the foregoing facts and “that the Defendant would not have been stopped by the officers absent the information given by a school official who approached them on the date of the stop and arrest and related that the Defendant ‘had sold drugs that date and had drugs in his car.’ ” The court also considered important “that in the four-count special presentment . . . , the first two counts deal with drugs and the last two deal with traffic offenses.” On these findings, the court concluded as a matter of law: “This makes the stop and search pretextual and invalid. It appears from the transcript and the court’s order that this ruling was based on Miller and Smith. No independent argument or analysis of defendant’s rights under state statutes or Constitution were made. We thus confine our review to the federal constitutional ground.

Initially, it should be noted that Miller and Smith are not binding on either the trial court or this court. Head v. State, 253 Ga. 429, 430 (1) (322 SE2d 228) (1984); Felker v. State, 252 Ga. 351, 361 (1 b) (314 SE2d 621) (1984). Tarwid v. State, 184 Ga. App. 853 (1) (363 SE2d 63) (1987) which did not involve an observed traffic violation treats Smith merely as “instructive.” Secondly, the prosecutor’s decision as to which counts to place first in the formal presentment or indictment to be voted on by the grand jury says nothing about the police officer’s reasoning at the time of the stop and arrest.

There is no doubt that the officers had probable cause to believe that McCloud was driving an automobile with a suspended license. “Probable cause to make a warrantless arrest exists where the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. [Cits.]” Clark v. State, 180 Ga. App. 280, 283 (3) (348 SE2d 916) (1986), citing Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE2d 543) (1925). Whatever may have been the motive of those officers, they were fully authorized to call a marked car to stop defendant for this occurring violation. OCGA § 40-5-121 (a). Upon asking for the license and proof of insurance, as he was required to do when asking for the license, OCGA § 33-34-12 (a) (2), Officer Taylor’s probable cause arose to believe McCloud also was driving a car without effective insurance on it. At that point, the officers were authorized, if not bound, OCGA § 40-5-122, to take defendant into custody and impound and inventory the car. Highland v. State, 144 Ga. App. 594 (241 SE2d 477) (1978), relying on South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976); see also Op. Atty. Gen. 83-5. OCGA § 40-6-206 (d), which became effective April 2, 1987 after the incident here, statutorily authorized the impoundment of an uninsured vehicle. The 1983 Opinion of the Attorney General had advised the Commissioner of Public Safety that such a vehicle could be impounded prior to the statute’s enactment.

Since, prior to April 2, 1987, driving an uninsured motor vehicle was not an offense for which a driver’s license could be posted in lieu of bail pursuant to OCGA § 17-6-11 (a), amended by Ga. Laws 1987, p. 542, § 3, and since defendant, in any event, had no valid license to post, the officer was authorized to arrest defendant and take him before an appropriate official for posting of cash bail. OCGA §§ 17-4-20; 17-4-23; 17-6-2; 40-13-55 through 40-13-57. This necessitated the inventory search.

The fact that the officer who made the initial stop and the other officers present suspected that McCloud had committed or was committing other crimes does not alter their authority to make the traffic stop. See Eisenberger v. State, 177 Ga. App. 673, 674 (2) (340 SE2d 232) (1986), decided on the federal ground before the Smith and Miller decisions, and the more recent Williams v. State, 187 Ga. App. 409 (370 SE2d 497) (1988), Coop v. State, 186 Ga. App. 578 (1) (a) (367 SE2d 836) (1988), and Whisnant v. State, 185 Ga. App. 51, 52 (1) (363 SE2d 341) (1988). See also State v. Sanders, 154 Ga. App. 305 (267 SE2d 906) (1980) . Even if, but for their drug-related suspicion, they would not have effected a stop at that time but had chosen instead to charge the observed motor vehicle violation later, so as not to jeopardize their theft investigation, neither this choice nor its motivation renders the stop invalidly pretextual in violation of a constitutional protection. The stop and search were valid independent of their suspicion regarding drugs, and that is the key. The introduction of the suspicion to the circumstances did not invalidate their actions. They did not have to wait until they had probable cause to arrest for possession of drugs in order to stop and arrest him for driving with a suspended license, a crime which was being committed in their presence. The fact that the accuracy of their suspicion was borne out in the course of a valid search which was bottomed on a different, probable-cause-based and impoundment foundation, does not prohibit the seizure of the drugs.

Decided June 21, 1988.

Beverly B. Hayes, Jr., District Attorney, Edwin J. Wilson, Assistant District Attorney, for appellant.

Once McCloud was arrested and the car impounded, it could be searched. New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981); South Dakota v. Opperman, supra; Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986); Whisnant, supra at 52 (2) .

The initial search being authorized, there is no “poisonous tree” to consider, in the trial court’s words, with regard to those items later seized from the apartment pursuant to a warrant.

We conclude there was no Fourth Amendment violation.

Judgment reversed.

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

Henry G. Bozeman, for appellee.

       We do not assume that the suspicion was not a reasonable one founded on specific and articulable facts or that it may not have been enough itself to have authorized the present stop (see State v. Brown, 178 Ga. App. 307, 308 (1) (342 SE2d 779) (1986) and Radowick v. State, 145 Ga. App. 231, 233 (1) (244 SE2d 346) (1978), both applying United States Supreme Court authority.) and the search of the passenger compartment of the car (see Michigan v. Long, 463 U. S. 1032, 1034 (103 SC 3469, 77 LE2d 1201) (1983)). Nor do we assume otherwise.


text:
    76357.
    GORLIN v. REECE.
    (370 SE2d 834)
   Beasley, Judge.

This appeal stems from a dispute surrounding two promissory notes executed by Reece in favor of Gorlin.

In the late 1960’s Gorlin and Reece were involved together in several business enterprises and transactions. In 1969, the parties agreed that Reece would purchase 35,000 shares of Tagor Exploration Company stock from Gorlin. The terms of the transaction were memorialized in an agreement dated October 28, 1969, which was approved by Reece and Gorlin and witnessed by Gorlin’s attorney.

The agreement stated that Reece was purchasing from Gorlin the 35,000 shares for $210,000 at $6 per share. Payment was to be: “$100,000.00 by check, a promissory note for $50,000.00 to be paid 30 days from date, and the balance of $60,000.00 paid as follows: a note for $40,000.00 due 90 days from date, $9,000.00 as monies advanced for Steve Gorlin towards purchase of Tagor stock, $6,000.00 as prorata share of previous expenses owed Tagor. In addition . . . $5,000.00 is owed to Steve Gorlin but to be offset against expenses owed to Fred A. Reece and balance adjusted between the parties after exact expenses are calculated.” The document also stated that Reece agreed to place with Gorlin’s attorney 30,000 shares of Tagor in escrow as collateral. On that same day, Reece executed the two required promissory notes for $50,000 and for $40,000. There is no evidence or contention by Reece that they were ever paid in cash.

In 1980, Gorlin borrowed $15,000 from Reece, executing a promissory note. As part of the loan transaction, Gorlin wrote “paid and satisfied in full this 8th day of December, 1980” on the bottom of the face of the 1969 stock purchase/sale agreement and signed it. This $15,000 note was cancelled in 1982 in consideration of a stock transfer from Gorlin and a second note for $9,393.12 was executed. Reece filed suit against Gorlin for payment of the $9,393.12 note.

Gorlin filed the instant suit against Reece for payment of the $50,000 and $40,000 notes plus interest, attorney fees and costs of the action. Reece’s motion for summary judgment was granted and Gorlin’s denied after the court found that it was undisputed that Gorlin admitted marking and signing the 1969 stock purchase agreement. The court concluded that the signed and written release on the face of the agreement evidenced that the terms of the agreement were “Paid & Satisfied in Full” and operated to discharge the obligations thereunder, and that Gorlin had thereby renounced any right to collect cash on the $90,000 notes.

Gorlin argues that he, rather than Reece, should have summary judgment or that at least he is entitled to a jury trial. He claims the law applicable to alleged satisfactions does not permit the blank, unspecified nature of what he characterizes as merely the escrow satisfaction to discharge the promissory notes. He urges that only the trier of fact can resolve the conflict in the evidence as to the meaning of the “escrow” satisfaction. Gorlin’s position is that he was signing off merely on that part of the stock agreement which involved the holding of collateral.

Assuming for the sake of argument that the release language was ambiguous, even ambiguous instruments may be construed by the court, and a jury question is presented only when the application of the rules of construction fails to resolve the ambiguity. Parol evidence may explain any ambiguity but such evidence may not add to, take from, or vary the writing itself. Andrews v. Skinner, 158 Ga. App. 229 (279 SE2d 523) (1981); OCGA § 24-6-4.

The evidence construed favorably for Gorlin was that in 1980, he demanded payment from Reece on the two notes and that Reece told him he had paid them. Reece said he would loan Gorlin some money, if Gorlin put up some stock as collateral and if Gorlin signed off on the stock agreement that Reece’s obligations to him, which included the two notes at issue, were paid and satisfied. Reece’s counsel told Gorlin that the statute of limitation on the notes had run anyway. Gorlin wrote and signed the release because he felt that as long as he did not sign off on the notes themselves, he would not be releasing Reece’s obligation to pay them but only as related to the collateral.

Thus it is without dispute that the quid pro quo for the $15,000 loan was the release of all Reece’s obligations under the stock agreement which included the two notes, and that Gorlin thought he could circumvent this by executing release language merely on the agreement rather than on the notes themselves.

Even without consideration, the holder of an instrument may discharge any party by renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged. OCGA § 11-3-605 (1) (b). Although the holder may accomplish the discharge on the instrument itself, see OCGA § 11-3-605 (1) (a), there is no requirement that the holder do so. Nor are there any specific words which must be written to effect the cancellation and renunciation.

While the $90,000 debt itself was created by the two promissory notes, the agreement, erroneously now limited by Gorlin to designation as only a “stock escrow agreement,” evidenced the terms of the entire transaction. The court correctly read the release on the face of the agreement to relate to all of the obligations thereunder, including the $90,000 debt which was the only monetary obligation which remained after execution of the agreement. Gorlin’s unilateral mistakes of law do not avoid the effect of the blanket release. OCGA § 13-5-4; Malin v. Servisco, 172 Ga. App. 418 (1) (323 SE2d 278) (1984).

Decided June 21, 1988.

Taylor W. Jones, Rickman P. Brown, for appellant.

Geoffrey H. Cederholm III, for appellee.

Judgments affirmed.

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


author: Birdsong, Chief Judge.

text:
    76386.
    WILLIAMS et al. v. PERRY et al.
    (370 SE2d 836)
   Birdsong, Chief Judge.

Carolyn and Benjamin Williams bring this appeal from the judgment of the Dade County Superior Court, denying their petition to adopt a minor child, Roger Justin Garman. Named as defendants in the adoption action were Tina Garman Perry, the mother, Ben Perry, Tina’s former husband, and Randy Rayley, listed as the putative father. Ben Perry answered and filed a counterclaim requesting custody of Justin, claiming he was the natural father of the child. Tina Gar-man had given birth to Justin Garman out of wedlock. Thereafter, she married Ben Perry and he legitimated Justin in judicial proceedings. The appellants’ adoption petition alleged that Perry was not the father and that the mother, in a sworn petition in the Juvenile Court of Hamilton County, Tennessee, identified Randy Rayley as the father.

While Tina and Ben Perry were married and living together in Tennessee, she became involved in criminal activity, and without the knowledge of her husband, she took her son to Benjamin and Carolyn Williams, her aunt and uncle, and asked them to care for Justin because she might be going to jail. Because Justin had severe medical problems, the Williamses refused to care for Justin unless they could receive legal custody. A petition was filed in the Juvenile Court of Hamilton County, Tennessee, on October 16, 1985, by Tina Perry, Benjamin and Carolyn Williams, requesting that Tina be divested of custody of Justin and temporary custody be vested in the Williamses. The putative father was listed as Randy Rayley “whose address is unknown” and the action alleged the putative father had never legitimated or supported the child in any way. The mother and the Williamses executed a sworn affidavit that these averments were truthful. On October 16, 1985, the juvenile court entered an order granting temporary custody and legal guardianship of Justin to the Williamses.

Ben Perry filed for and was granted a divorce from Tina in Tennessee and the court granted him custody of Justin. In this adoption action, the Williamses contend the legitimation of Justin and the divorce proceedings which granted custody of Justin to Perry were procured through collusion of the parties and constituted a fraud on the court involved in each case. The adoption court noted that Perry had filed an action in the Juvenile Court in Hamilton County, Tennessee, to regain custody of Justin and that the court had directed that blood tests be performed to determine the true paternity of the child. The Williamses requested a continuance of the adoption action until the results of the blood tests were known, arguing that such test “has a high degree of reliability in determining biological parentage” and if Ben Perry is not the father, he would not have standing to bring his counterclaim for custody of Justin. The results of the blood tests were stipulated in evidence and showed that “relative chance of paternity” of Ben Perry being the father of Justin was 97.59 percent.

The trial court found that Tina Garman and Ben Perry were the natural parents of Justin, and that the Williamses had pending an action in the Juvenile Court of Hamilton County, Tennessee, seeking custody of Justin, in which they alleged that Randy Rayley was the father of the child. The adoption court also found that Perry had filed a petition in the Hamilton County Juvenile Court alleging that he was the natural father of Justin and that the child’s custody should be returned to him. The court also noted that Perry had been granted a divorce from Tina Garman and had been granted custody of Justin by a Tennessee court. The trial court found that Perry had attempted to utilize the court to regain custody and visitation rights of his son, and had attempted to visit with the child but had not supported the child. Based upon these facts, the court found the father had not abandoned his child and had not failed to establish a father-son relationship with his child. The trial court stated that it had been in personal contact with the judge of the Juvenile Court in Hamilton County, Tennessee, and wanted to continue the jurisdiction of that court over an award of custody of the child. Accordingly, the court declined jurisdiction to decide the counterclaim of Perry requesting custody of Justin and denied the Williamses’ petition for adoption. This appeal followed. Held:

1. Appellants contend the findings of the trial court, that Ben Perry had not abandoned Justin, had not failed to establish a father-son relationship with the child, and the trial court’s failure to find Perry had failed significantly for a period of one year or longer next preceding the filing of the adoption petition, to visit, support, or make a bona fide attempt to communicate with his child, were clearly erroneous. We do not agree.

Construing the evidence on appeal in favor of upholding the judgment, as an appellate court is required to do, see McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777), we find the evidence supports a finding that Tina Garman gave birth to a child, Justin, out of wedlock. Thereafter, Tina married Ben Perry and she and Justin moved into his home in Tennessee. Perry then legitimated the child as his own through court action in Tennessee. The mother testified to the child’s birth defect which required almost constant medical attention and that Perry had driven the child to Emory University Hospital “five or six times . . . [and] hundreds and hundreds of times to Chattanooga.” It was also testified that Perry supported the mother and child while they were living with him. Through these actions prior to the legitimation suit, Perry perfected his “opportunity interest” in his illegitimate child and demonstrated “ ‘a full commitment to the responsibilities of parenthood by “com(ing) forward to participate in the rearing of his child.” ’ ” See In re Baby Girl Eason, 257 Ga. 292, 295 (358 SE2d 459). During this period, it is clear that Perry had formed a father-son relationship with his child.

Thereafter the mother, without the knowledge of Perry, took Justin from his father’s home in Tennessee to the Williamses. It is not clear where the Williamses were living at that time. When this action was filed, they were living in Trenton, Dade County, Georgia. Prior to that time when Tina was living with them, they were living in “LaFayette.” Presumably, this is LaFayette, Walker County, Georgia. The mother also testified that the Williamses assisted her in getting Justin to and from the hospital and they lived in LaFayette at that time. However, when Tina Perry and the Williamses filed the petition for temporary custody of Justin, they listed Chattanooga, Tennessee, as their home. Venue and jurisdiction aside, the mother and the Williamses perpetrated a fraud on the Hamilton County Juvenile Court in Tennessee. The petition failed to advise the court that the mother was married and her husband had legitimated her child as his own, and that the mother and the child were then living with the father. Rather the court was advised that Randy Rayley was the putative father, and the “father’s address [is] unknown in that he has never legitimated nor supported said child in any way. All parties are in agreement with this petition.” The petition alleged that the child was “dependent and neglected,” when in fact the child was then living with his father who was supporting the child and his mother, according to Perry’s testimony. This false and misleading information was sworn to by the mother and the Williamses.

The mother testified that she visited Justin in the Williamses’ home but was told he “was not mine, for me to get out of there and not to come back, and if I brought — if anyone came to get him, or I come to get him, he would shoot us.” Perry testified that after he found that his wife had taken Justin to the Williamses he told her that they would go get him and his wife told him: “Benny, he will kill you just as sure as you go over there.” Perry hired a lawyer and from that time forward attempted to regain custody and gain visitation rights through the courts. Two lawyers stated that they had represented Perry for the past two years in attempting to regain custody of Justin through the courts. The second counsel for Perry stated that he had been trying for two years to gain custody and visitation rights for Perry because of “threats made to” Perry if he attempted to visit with his child. Williams denied making any “threats,” but when Mrs. Williams was asked if her husband had threatened anyone, she responded: “I know that he has said a few things. . . . My husband is a hot-head, when he gets angry, and this is — this child — my husband is so attached to this child that he will fight for him.” Mrs. Williams denied that her husband had made any threats to Perry personally.

The first point that we will consider is that the right of natural parents to the custody of their children is a joint right, and neither can substitute a third person for himself, and without the consent of both parents, a third person cannot gain the right of custody over a minor child, for the consent of only one parent is a nullity. Coleman v. Way, 217 Ga. 366, 367 (122 SE2d 104).

Our Code, OCGA § 19-8-3, provides generally that, except as specified in OCGA § 19-8-6, no adoption of a child will be permitted who has a living parent or parents except where the parent or parents have voluntarily, and in writing, surrendered all of their rights to the child to another, or their parental rights have been terminated by a court of competent jurisdiction. However, OCGA § 19-8-6 (a) provides that surrender or termination of parental rights under § 19-8-3 is not a prerequisite to adoption if the child has been abandoned. Also, OCGA § 19-8-6 (b) states that surrender or termination of parental rights is not a prerequisite to adoption pursuant to paragraph (4) or (5) of OCGA § 19-8-3 if the parent has failed significantly, for a period of one year or longer immediately prior to the filing of a petition for adoption (1) to communicate or make a bona fide attempt to communicate with the child, or (2) to provide for the care and support of the child as required by law or judicial decree, where the court is of the opinion that the adoption is for the best interests of the child.

It is not clear which of these methods is being utilized by appellants. They enumerate as error the finding of the trial court that Perry had not abandoned his minor child and the failure of the court to find that Perry has failed significantly, for a period of one year or longer next preceding the filing of the adoption petition, to visit, support, or make a bona fide attempt to communicate with his child. The petition for adoption alleges that the mother voluntarily agreed to give them custody of the child. However, we note in this connection that the consent of one parent is a nullity. Coleman, supra. Appellants attempt to deal with the father’s claim for custody by alleging that he has abandoned his child.

We will first address the issue of the allegation of error as to the trial court’s failure to find that Perry had failed significantly to visit, support or communicate with his child. These facts are significant only if the “petition for adoption [is made] pursuant to paragraph (4) or (5) of subsection (a) of Code Section 19-8-3 . . which deals with a “parent of a child [who] has voluntarily and in writing surrendered all of his rights to the child to the spouse of the other parent” or to a listed relative. Neither of these grounds was alleged to be a basis for the adoption. Hence, this allegation for a claim of error is not meritorious as to the father. See Howell v. Gossett, 234 Ga. 145, 147 (214 SE2d 882).

This leaves at issue the claim of abandonment by Perry. “ ‘ “In order to find an abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims.” ’ ” In the Interest of S. H., 181 Ga. App. 438, 439 (352 SE2d 621). Whether the evidence was sufficient to establish abandonment is a question in the first instance for the trier of fact, the trial court. In re B. D. C., 256 Ga. 511, 512 (350 SE2d 444). And on appeal, the appellate standard of review is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parents’ rights to custody were lost. Id. We find that a rational trier of facts could have found by clear and convincing evidence that the appellee father did not abandon his child, or otherwise forfeit his right to the custody of his child.

2. Because we have found no error of the trial court as to appellee Perry, the natural father of the child, any issue as to the natural mother is moot. Whether the mother is an unfit parent, has voluntarily terminated her rights, or has abandoned her child is immaterial as to the denial of the appellant’s petition for adoption, where one natural parent refuses to consent to the adoption, and has not voluntarily terminated his rights to his child nor otherwise forfeited his rights to his child under applicable statutes. See OCGA §§ 19-8-3; 19-8-6.

3. The trial court did not reach a finding of “best interest of the child,” but we find no error in the trial court’s refusal to affirm the adoption petition.

Judgment affirmed.

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

Decided June 21, 1988.

Barbara S. Arthur, for appellants.

Herbert E. Franklin, Jr., for appellees.


text:
    76406.
    LEWIS v. SUN MANAGEMENT, INC.
    (370 SE2d 840)
    Decided June 21, 1988.

      Walter L. Forison, for appellant.
   Carley, Judge.

This is the second appearance before this court of a direct appeal in this dispossessory case. In Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526) (1987), we dismissed appellant’s direct appeal, holding that “[a]ppellant’s only available remedy was to file a motion to set aside the default judgment [which was entered against him]. [Cit.]” Lewis v. Sun Mgt., supra. We further held that any appeal by appellant from the trial court’s ruling on such a motion to set aside could properly be brought before this court only by first securing the grant of an application for discretionary appellate review. OCGA § 5-6-35 (a) (8).

Subsequent to our dismissal of appellant’s first appeal, he did file a motion in the trial court to set aside the default judgment. He also filed other extraneous pleadings which could have no substantive legal effect in the case unless and until his motion to set aside was first granted. The trial court denied appellant’s motion to set aside and, as the consequence of that action, it also struck appellant’s extraneous pleadings. Appellant then filed both an application for a discretionary appeal from the trial court’s order and also a direct appeal from that order. Appellant’s application for discretionary appeal was denied by this court.

Thus, by the instant direct appeal from the trial court’s order, appellant is now seeking to invoke an appellate remedy which differs from that which this court has previously held to be the only one which is available to him. Under the applicable statutory provisions, as well as the law of the case rule, we are without jurisdiction to entertain such a direct appeal by appellant. See OCGA §§ 5-6-35; 9-11-60 (h); Redmond v. Blau, 153 Ga. App. 395 (265 SE2d 329) (1980). Accordingly, this direct appeal must be dismissed.

Appeal dismissed.

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

Edward W. Killorin, for appellee.


text:
    76423.
    ALLISON et al. v. NATIONAL ASSOCIATION FOR THE SELF-EMPLOYED, INC.
    (370 SE2d 841)
   Carley, Judge.

A collision occurred between appellant-plaintiff Mrs. Inez Allison’s car and another vehicle. Appellant Mrs. Allison, seeking damages for her physical injuries, and her appellant-plaintiff husband, seeking damages for loss of consortium, initiated this tort action against the driver of the other vehicle. As the result of information obtained during discovery, appellants subsequently amended their complaint so as to add appellee National Association for the Self-Employed, Inc. as a named party defendant in the action. Appellee was added as a defendant in its alleged capacity as the employer of the driver of the other car. Subsequently, appellee moved for summary judgment on the ground that the driver of the other car was an independent contractor and not its servant. Appellee supported its motion with affidavits and a copy of the relevant employment contract. Appellants, in opposition to appellee’s motion for summary judgment, asserted that there remained a genuine issue of material fact as to the employment status of the driver of the other car. However, in support of their assertion, appellants submitted no evidence other than the conclusory statement by the driver of the other car that he was appellee’s “employee.” The trial court granted appellee’s motion for summary judgment, and appellants appeal from that order.

1. In support of their enumeration of the trial court’s grant of appellee’s motion for summary judgment as error, appellants contend that a genuine issue of material fact remains concerning the employment status of the driver of the other car. In specific, appellants urge that the trial court erroneously found that, as a matter of law, the driver of the other car was employed by appellee as an independent contractor.

“ ‘The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer.’ [Cits.] ‘In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract.’ [Cit.] ‘Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control. [Cits.]’ [Cit.] On the other hand, where the contract specifies that the employee’s status shall be that of independent contractor but at the same time provides that he shall be subject to any rules or policies of the employer which may be adopted in the future, no such presumption arises. [Cits.]” McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982).

The express terms of the contract under present consideration purport to create the relationship of employer-independent contractor and not that of employer-servant. See American Family Life Assur. Co. v. Welch, 120 Ga. App. 334, 338-339 (1, 2) (170 SE2d 703) (1969). The contract explicitly denominates the driver of the other car as an independent contractor, and nothing therein purports to reserve to appellee the right of such control over the time, method, and manner of the performance of his contractual duties as would render the characterization of his status as an independent contractor erroneous as a matter of law. Therefore, in order to show that a genuine issue of fact remains as to whether the relationship was not that of employer-independent contractor, it would be necessary for appellants to offer evidence that, notwithstanding the actual terms of the contract, appellee had assumed such control over the time, method, and manner of the performance by the driver of the other car of his contractual duties as would render him its servant. McGuire v. Ford Motor Credit Co., supra.

Appellants offered no such evidence in opposition to appellee’s motion for summary judgment. Compare American Security Life Ins. Co. v. Gray, 89 Ga. App. 672 (80 SE2d 832) (1954). Instead, appellants merely relied upon the other driver’s statement which was to the effect that he was appellee’s “employee.” However, the other driver was appellee’s employee. Under the evidence of record, however, he was employed by appellee as an independent contractor. Moreover, the test of the other driver’s legal status is not premised upon his own belief as to his status. The test requires consideration of the actual terms of the contract and of appellee’s compliance with those terms. As previously discussed, the status of the other driver under the terms of the contract was that of an independent contractor and there is no evidence that appellee deviated from those terms so as to render him its servant.

2. Appellants further urge that, even if the other driver was an independent contractor, a genuine issue of material fact would still remain as to appellee’s liability. In this regard, appellants rely upon the statutory exceptions to the general rule of an employer’s non-liability for the acts of an independent contractor. See OCGA § 51-2-5. In the trial court, however, appellants neither alleged nor presented any evidence as to the applicability of this theory of recovery against appellee. Instead, they relied solely on their allegations and contentions that the other driver was appellee’s servant. As discussed in Division 1, the unrebutted evidence showed that the other driver was not appellee’s servant, but was its independent contractor.

Decided June 21, 1988.

Emory A. Schwall, Lee S. Alexander, for appellants.

H. Sanders Carter, Jr., Christopher N. Shuman, for appellee.

“When the movant for summary judgment presents evidence apparently destroying the plaintiff’s cause of action, the movant has met his burden, and the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain. [Cits.] No pleadings or action below by the [appellants] gave even the faintest notice that [they were] relying in any way on any cause of action other than [appellee’s vicarious liability for the negligence of its alleged servant]. That cause of action was foreclosed by [appellee’s] evidence; thus, the appellant [s] having failed then to respond with [their] . . . alternative [independent contractor] theory, the summary judgment was proper.” Gerald v. Ameron Auto. Centers, 145 Ga. App. 200, 203 (2) (243 SE2d 565) (1978).

Judgment affirmed.

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