author: Carley, Judge.

text:
    72969.
    72970.
    72971.
    72972.
    72973.
    72974.
    72975.
    72976.
    SMITH v. HAWKS et al. FIRST BANK OF SAVANNAH v. HAWKS et al. ABBOTT v. HAWKS et al. SAVANNAH BANK & TRUST COMPANY v. HAWKS et al. SMITH v. GILL et al. SMITH v. BRUNSON et al. SMITH v. ANDREWS et al. SMITH v. HINELY et al.
    (355 SE2d 669)
   Carley, Judge.

These eight companion cases arise from the following set of facts:

In 1963, the Pine Forest Utility Corporation (Corporation), as settlor, created an express trust. The Industrial Bank of Savannah was named as the trustee. The trust document conveyed to the Industrial Bank the title to such property of the Corporation as was being used to provide water and sewerage services to the Pine Forest Subdivision. The purpose of the trust was to secure the Corporation’s obligation to furnish water and sewerage services to the properties located in the subdivision. See OCGA § 53-12-31. In 1972, the Industrial Bank merged with appellant-defendant First Bank of Savannah (First Bank). In 1974, appellant-defendant T. A. Smith, Jr. (Smith) became the sole shareholder and chief executive officer of the Corporation.

In 1979, the Corporation, as settlor, again entered into an agreement for the purpose of creating an express trust pursuant to OCGA § 53-12-31. However, on this occasion, the agreement purported to convey the title to the Corporation’s property to appellant-defendant Savannah Bank & Trust Company of Savannah (Bank & Trust) as trustee. This 1979 transaction was undertaken without any regard to the trust previously created in 1963, wherein the Industrial Bank had been named the trustee and had been conveyed title to the Corporation’s property.

In 1983, the Corporation yet again entered into what was denominated as a trust agreement. However, OCGA § 53-12-31 was not the authority relied upon for this 1983 agreement. In the agreement, the Corporation did not attempt to convey title to its property outright for the purpose of securing its obligation to furnish water and sewerage services to the properties located in the Pine Forest Subdivision. Instead, the Corporation conveyed the title to its property “subject to existing Trust Indentures.” The Corporation thereby, in effect, transferred only its possession and control of the Pine Forest water and sewerage systems to appellant-defendant Laurie Abbott (Abbott) who, as “trustee” and for a fee, agreed to assume the Corporation’s obligation with regard to the operation and maintenance of the systems. This agreement between the Corporation and Abbott was terminated in May of 1984, at which time the Corporation resumed the actual operation and maintenance of the system.

The event which led to the filing of these eight separate cases is the contamination and pollution of the Pine Forest water system. As the result of this contamination and pollution, one or more of the appellee-plaintiff property owners in the Pine Forest Subdivision filed each of these suits against one or more of the appellant-defendants, seeking damages and such other relief as might be appropriate. In each of the cases, the respective appellant-defendant filed a motion for summary judgment which was denied by the trial court. The orders were, however, certified for immediate review and these appeals result from this court’s grant of appellants’ applications for interlocutory review. The eight cases are hereby consolidated for disposition in this single opinion.

Case Nos. 72970, 72972.

1. The first issue to be resolved is which, if either, of the appellant-defendant banks, the First Bank or the Bank and Trust, occupies the capacity of trustee of the Corporation’s property.

“A trust may be created to hold title to properties used or useful in furnishing utilities or other services in order to secure an obligation to furnish the utilities or services to other property to be benefited by the utilities or services. Title to the property conveyed to the trustee shall vest and remain in the trustee for the benefit of the several owners from time to time of the property for the benefit of which the trust is created. . . .” (Emphasis supplied.) OCGA § 53-12-31. It is thus apparent that the res of a trust that is created pursuant to OCGA § 53-12-31 is the title to property. Under the facts of record, it is also clear that the title to the Corporation’s property vested in the Industrial Bank when it was named the trustee in 1963. The statute provides that vested title is to “remain in the trustee.” The issue thus becomes whether the title that vested in the Industrial Bank in 1963 subsequently passed to First Bank or to the Bank and Trust or to neither.

In the 1963 trust agreement, the Corporation did provide a method for securing the appointment of a successor trustee, but did not reserve the right to divest the Industrial Bank of its capacity as trustee by the act of unilaterally naming a successor trustee. Accordingly, the Corporation’s act of entering into a new trust agreement in 1979 would be totally ineffective to confer upon the Bank and Trust the capacity of lawful successor trustee. “ ‘One who creates a trust has a right to provide a method for filling vacancies and for the appointment of successors in trust; and where the trust deed provides the particular manner in which a substituted trustee shall be appointed, the directions must be carefully followed.’ [Cit.]” (Emphasis supplied.) Griffin v. Haden, 172 Ga. 478 (1) (157 SE 686) (1931).

It is urged that the Corporation’s entry into the 1979 agreement constitutes the creation of an entirely new trust with Bank and Trust serving as the trustee. The res of the purported 1979 trust was the title to the Corporation’s property. However, the title to that property had vested in the Industrial Bank in 1963. The title to the property had not revested in the Corporation in 1979 by virtue of its exercise of any right to revoke the 1963 trust. The Corporation could not, in 1979, create a valid trust having as its res property the title to which the Corporation did not have. “As to the rules governing the creation of trusts, an elementary one is that a transfer of identifiable subject matter for the benefit of another is essential. [Cits.]” Wolfe v. C & S Nat. Bank, 221 Ga. 412, 415 (144 SE2d 735) (1965). “A deed from a grantor, when no title in him is shown, although good as color of title, is insufficient to transmit title to the grantee.” Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80, 81 (5) (3 SE2d 91) (1939). “There being no trust [res] at the time of the . . . appointing [of the Bank and Trust as] trustee, [its] appointment as such was inoperative. . . .” Smith v. Frost, 144 Ga. 115, 116 (2a) (86 SE 235) (1915). Accordingly, the Corporation’s act of entering into a new trust agreement did not have the effect of creating a new trust in 1979.

It is also urged that a trust by estoppel was created in 1979 when the Bank and Trust agreed to serve as trustee. If there were no issue concerning the creation of an otherwise valid trust in 1979, the Bank and Trust would, under the evidence, be estopped to disclaim its trusteeship. See OCGA § 53-13-1. However, the Bank and Trust’s ostensible acceptance of a trusteeship in 1979 cannot give rise to a valid trust if, as a matter of law, no such valid trust was then capable of being created by the Corporation. “ ‘Not even estoppel can legalize or vitalize that which the law declares unlawful and void.’ [Cit.]” Dobson v. Brown, 225 Ga. 73, 76 (2c) (166 SE2d 22) (1969). As discussed above, the Corporation did not have title to the property when it purported to convey that title in trust in 1979. “[A]n estoppel [can] not, in and of itself, operate to convey title to the [Corporation’s] property to the [Bank and Trust]. Estoppels do not convey title in this state. [Cit.] ” Kennedy v. Hannans, 246 Ga. 55-56 (1) (268 SE2d 646) (1980). See also Bussey v. Bussey, 157 Ga. 648 (3) (121 SE 821) (1923). Accordingly, no trust by estoppel was created in 1979.

Under the evidence of record, title to the Corporation’s property vested in the Industrial Bank in 1963 and the Corporation’s efforts in 1979 to convey that title to the Bank and Trust as trustee were void and ineffective. It follows that the trial court erred in denying summary judgment in favor of the Bank and Trust in Case No. 72972. The judgment in that case is therefore reversed.

2. First Bank asserts that it cannot be the trustee because it has no trust agreement with the Corporation and has never specifically been named as a trustee. It is undisputed, however, that the Industrial Bank was the valid trustee as to the title to the Corporation’s property when, in 1972, it merged with First Bank. The law in effect at the time of the Industrial Bank’s merger with First Bank provided, in relevant part: “Such bank into which the other or others shall be merged, or the consolidated bank, as the case may be, shall succeed to all obligations, trusts, and liabilities, and be held liable to pay and discharge all such debts and liabilities and to perform all such trusts in the same manner as though such bank into which the other or others shall have become merged, or the consolidated bank had itself incurred the obligation or liability. . . .” (Emphasis supplied.) Former Code Ann. § 13-1407. See also Former Code Ann. § 13-1406; Existing OCGA § 7-1-536 (e). Under the authority of these former statutory provisions, First Bank succeeded by operation of law to the trusteeship upon the merger with the Industrial Bank. Accordingly, the trial court did not err in denying summary judgment to First Bank on the ground that it never was and is not now the trustee of the Corporation’s property.

3. As another ground of its motion for summary judgment, First Bank urged that, as the uncompensated trustee of a trust created pursuant to OCGA § 53-12-31, it had incurred no liability for which damages would be recoverable by appellee-plaintiff property owners.

The underlying purpose of the trust was neither to transfer to the uncompensated trustee immediate possession of the Corporation’s property nor to impose any immediate duty on the trustee to undertake the operation and maintenance of the Corporation’s water system. The possession and operation of the water system were to remain with the Corporation and the purpose of the trust was merely to vest title to the property in the trustee as a means to secure the Corporation’s continuing obligations to operate and maintain the system. As for the trustee’s duties to effectuate the underlying purpose of securing the settlor’s obligation to furnish utility services, the applicable statutory provision provides that the “trust may authorize the trustee to take possession and operate the property conveyed to him and to exercise the power of sale or conveyance or other powers therein set out, on the terms and conditions therein set out. The trust shall be valid, executory, and enforceable according to its terms.” (Emphasis supplied.) OCGA § 53-12-31. It is thus clear that the trustee’s duties under a trust created pursuant to OCGA § 53-12-31 do not include any on-going obligation to possess, operate or maintain the utility for the beneficiaries and the duties that a trustee does owe to the beneficiaries are to be determined exclusively by reference to the terms of the trust agreement. It follows that the statutory provisions of OCGA § 53-13-51, imposing a general duty to exercise ordinary care in the preservation and protection of trust property in the possession of the trustee, and of OCGA § 51-1-19, imposing general liability upon a compensated trustee for his negligence, are inapplicable here. Compare C & S Nat. Bank v. Haskins, 254 Ga. 131, 137 (4) (327 SE2d 192) (1985).

According to the terms of the trust agreement sub judice, no mandatory duty whatsoever is imposed upon the trustee. The trustee’s duty is limited exclusively to the exercise of a discretionary power. The agreement provides: “Should [the Corporation] fail to operate and manage the water . . . [system], in the manner and under the conditions specified . . . and should [the Corporation] fail, after notice in writing from the Trustee, to correct such failure with reasonable dispatch, then Trustee shall have the right to immediate possession of the water . . . [system] for the purpose of operating and maintaining the same, and the right to hold, use, operate, manage, and control the same either itself or by or through [those] for whose benefit this trust is created and it may take possession thereof for the purpose of operating the same. . . .” (Emphasis supplied.) Thus, by way of securing the Corporation’s obligation to furnish water to appellee-property owners, First Bank, as trustee, has the right, under certain terms and conditions, to oust the Corporation from possession and to undertake the operation of the water system but First Bank is given discretion as to whether it will exercise that right.

The issue thus becomes what remedy would be available against First Bank, as trustee, for a failure to exercise its discretionary power to oust the Corporation from possession and operation of the water system. “Discretionary powers of . . . trustees are not beyond the reach of judicial inquiry. The discretion of . . . [a] trustee may be controlled by a court of equity when the . . . trustee has abused his authority or his trust. [Cits.]” (Emphasis supplied.) Powell v. Thorsen, 253 Ga. 572, 573-574 (3) (322 SE2d 261) (1984). “Where the trustee commits or threatens to commit a breach of trust by an abuse of his discretion, either in acting or in refusing to act, the court may interpose in various ways. It may (1) direct the trustee to act where his failure to act is an abuse of discretion; or (2) enjoin him from acting where his action would be an abuse of discretion; or (3) compel him to make reparation where he has acted in abuse of discretion; or (4) remove him as trustee because of his failure properly to exercise the discretion conferred upon him.” Scott, Law of Trusts, § 187.1 (3d ed. 1967). There is no contention that First Bank threatens to commit or has already committed an act such as would constitute an abuse of its discretion under the trust agreement. The sole contention is that First Bank’s failure to exercise its discretionary power to oust the Corporation from possession and operation of the water system is actionable. Under these circumstances, appellees have no right to recover monetary damages from First Bank. They would have only the right to seek the equitable remedy of specific performance or removal of First Bank from its trusteeship. See generally C & S Nat. Bank v. Haskins, supra at 139 (9). Accordingly, the trial court erred in Case No. 72970 insofar as it denied summary judgment in favor of First Bank as to all claims for money damages asserted by appellees.

Case Nos. 72969, 72973, 72974, 72975, 72976.

4. The actions against appellant-Smith were predicated upon two theories. First, appellees alleged that Smith had himself personally undertaken the performance of certain acts in connection with the operation and maintenance of the Corporation’s water system. As the result of those acts, appellees alleged they had been damaged and Smith should be held personally liable. Second, appellees alleged that Smith was the alter ego of the Corporation. Accordingly, appellees alleged that Smith should be held personally liable for any liability that would otherwise be attributable to the Corporation. In support of his unsuccessful motion for summary judgment, Smith adduced uncontroverted evidence that, notwithstanding his sole ownership thereof, he had operated the Corporation as an entirely separate entity.

A corporation is a separate and distinct legal entity from its officers, stockholders or agents. See generally Casey v. Carrollton Ford Co., 152 Ga. App. 105, 106 (1) (262 SE2d 255) (1979). Nevertheless, a corporation is held to be vicariously liable for the torts of its agent that are committed in the prosecution of and within the scope of its business. See OCGA § 51-2-2. Accordingly, one who is damaged as the result of a tort that is actually committed by a corporate agent may sue either the individual agent, seeking to establish the agent’s personal liability for the damages, or the corporation, seeking to establish its vicarious liability for the torts of its agent, or the injured party can sue both. As a general rule, however, one who merely occupies the capacity of a corporate officer cannot be held to be vicariously liable for such damages as would otherwise be recoverable from his corporate principal. “ ‘[A]n officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, but an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein.’ [Cit.]” Lincoln Land Co. v. Palfery, 130 Ga. App. 407, 411 (1a) (203 SE2d 597) (1973). There is a recognized exception to this general rule of non-liability for a non-participating corporate officer: “[I]f the individual who is the principal shareholder or owner of the corporation conducts his private and corporate business on an interchangeable or joint basis as if they were one, then he is without standing to complain when an injured party does the same. ‘Under such circumstances, the court may disregard the corporate entity.’ [Cits.]” Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (4) (250 SE2d 851) (1978).

When these principles are applied in the cases sub judice, it appears that Smith has carried his evidentiary burden of demonstrating the inapplicability of the “piercing the corporate veil” exception to the general rule of non-liability for a non-participating corporate officer. Accordingly, if Smith has any personal liability to appellees as the result of the Corporation’s operation and maintenance of the water system, it can only be for such tortious acts as he personally committed or specifically directed be done. Genuine issues of material fact remain as to Smith’s personal liability under this applicable theory. It follows that the trial court erred insofar as it denied partial summary judgment in favor of Smith and thereby failed to eliminate as a triable issue that of Smith’s liability under an alter ego theory. The judgments in these cases are therefore affirmed in part and reversed in part.

Case No. 72971.

5. As noted above, the agreement of 1983 between the Corporation and Abbott did not purport to create a trust pursuant to OCGA § 53-12-31. The purpose of the agreement was not to secure the Corporation’s obligation to provide water to appellees’ property and appellees were not named as beneficiaries therein. What the agreement does show is that, by contract, the Corporation’s responsibilities for operation and maintenance of the water system were delegated by the Corporation to, and assumed by, Abbott. Accordingly, any viable claim against Abbott must be predicated upon his assumption of the operation and maintenance of the Corporation’s water system, and not upon his asserted capacity as the appellees’ trustee.

Events that occurred or conditions which existed prior to Abbott’s assumption of control over the water system are irrelevant to his liability. If Abbott is liable to appellees, it is only as the result of his own acts or omissions after he assumed control. The fact that appellees were not supplied with uncontaminated water after Abbott assumed the control would not necessarily show that he was negligent in failing to correct the pre-existing problem. Abbott did not assume the capacity of insurer of the purity of appellees’ water. As the operator of the water system, he was only obligated to exercise ordinary care under the existing circumstances in order to avoid liability in negligence. See City of Tallapoosa v. Goebel, 63 Ga. App. 1 (3) (10 SE2d 201) (1940). However, merely because Abbott may have undertaken some actions as operator of the water system to correct the preexisting contamination problem would not necessarily show that he is not liable in negligence to appellees. “[N]egligence consists of either an omission to do an act which ought to be done, or the omission to perform properly what one undertakes to perform. [Cits.]” (Emphasis supplied.) Johnson v. Landing, 157 Ga. App. 313, 315-316 (1) (277 SE2d 307) (1981). Construing the evidence most strongly against Abbott as the moving party, it would appear that genuine issues of material fact remain with regard to whether his actions undertaken during the relevant period demonstrate the exercise of ordinary care by one operating the water system under the then-existing circumstances. Accordingly, the trial court did not err in denying his motion for summary judgment. The judgment in this case is therefore affirmed.

Judgments reversed in Case Nos. 72970 and 72972. Judgments affirmed in part and reversed in part in Case Nos. 72969, 72973, 72974, 72975, and 72976. Judgment affirmed in Case No. 72971.

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

On Motion for Rehearing.

Appellee First Bank urges that the denial of its motion for summary judgment should be reversed upon the basis that it lacks the legal authority to serve as a trustee. First Bank relies upon OCGA § 7-1-310 (c), which provides, in part: “Every bank . . . operating pursuant to this chapter shall possess all of the rights, privileges, powers, and responsibilities herein conferred upon trust companies; provided, however, that no such bank . . . shall exercise such powers and privileges without the prior written approval of the [Department [of Banking and Finance (Department)] after a careful consideration of the factors enumerated in Code Section 7-1-394, relating to the chartering of trust companies.” First Bank urges that, pursuant to OCGA § 7-1-310 (c), it has never sought nor received any official written approval from the Department regarding its operation of a trust department and has never operated such a department. Thus, according to First Bank, it is not authorized under the laws of this State to serve as a trustee and therefore cannot be held to be a trustee in this case.

Decided March 3, 1987

Rehearings denied March 31, 1987

Alex L. Zipperer III, James B. Ashby, for Smith.

Leamon R. Holliday III, for First Bank of Savannah.

Luhr G. C. Beckmann, Jr., Joseph H. Barrow, for Abbott.

Roland B. Williams, for Savannah Bank & Trust.

A. Martin Kent, for Hydraulics Supply.

H. Sanders Carter, Jr., for Thomas & Hutton.

Notwithstanding First Bank’s lack of an official trust department as such, OCGA § 7-1-310 (c) contains the further provision: “Any bank exercising or partially exercising trust powers prior to February 27, 1976, authorized by its articles may continue to exercise or partially to exercise those powers to the extent approved by the [Department without the necessity of obtaining a new approval. Such powers may be exercised only if authorized by the articles of incorporation of the financial institution.” (Emphasis supplied.) First Bank does not contend that its articles of incorporation do not authorize it to exercise trust powers. The evidence of record shows that First Bank was chartered for the purpose of conducting “a general trust and banking business. . . .” The evidence of record further shows that First Bank was exercising or partially exercising trust powers prior to February 27, 1976, and was doing so with the approval of the Department. In 1972, First Bank secured the Department’s approval to merge with Industrial Bank and Industrial Bank was at that time the valid trustee as to the title to the Corporation’s property. The effect of this merger with Industrial Bank was to confer the trusteeship upon First Bank by operation of law. See Former Ga. Code Ann. §§ 13-1406; 1407; OCGA § 7-1-536 (c), (e). Thus, the absence of authorization for a full-blown trust department is irrelevant under the circumstances of this case. Since First Bank was already exercising the trust power that is here in issue and was doing so with the prior approval of the Department on the date that OCGA § 7-1-310 (c) became effective, securing “new approval” to continue to exercise that power was unnecessary. Accordingly, we adhere to our ruling that First Bank has been the trustee of the title to the Corporation’s property since 1972 but, for the reasons discussed in Division 3 of the opinion, it was error to deny its motion for summary judgment.

Brent J. Savage, George L. Lewis, for appellees.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    73300.
    CURTIS v. THE STATE.
    (355 SE2d 741)
   Benham, Judge.

Appellant Curtis was convicted of vehicular homicide. He appeals from the denial of his motion for new trial.

1. Appellant contends in his first enumeration of error that the verdict is contrary to the law and against the weight of the evidence. The record reveals that on May 2, 1985 appellant was driving his vehicle on a rain-slickened road at an excessive speed. The posted speed limit was 35 miles per hour. Appellant’s passenger, who asked him to reduce his speed, testified appellant was going about 55 to 60 miles per hour. A witness standing nearby testified that appellant was traveling about 70 to 75 miles per hour. Appellant lost control of his car and skidded across the centerline slamming into a pickup truck, killing the driver. The investigating officer testified that he inspected the interior of appellant’s car and smelled alcohol in the car. The nurse who attended appellant in the ambulance testified that she smelled alcohol on appellant. Upon arriving at the hospital, appellant told the emergency room nurse that he had been drinking a lot of beer and whiskey. The evidence presented was amply sufficient to enable a rational trier of fact to find the appellant guilty of homicide by vehicle beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Shadix v. State, 179 Ga. App. 644 (347 SE2d 298) (1986).

2. Appellant asserts in his second enumeration of error that the admission of the results of his blood-alcohol test was error because he was “addled” from the accident, and therefore was not aware of his right to an additional test and did not give knowing consent to the extraction of his blood. The testimony of the nurse and police officer who saw him at the hospital refutes appellant’s claim. The nurse testified that he witnessed two police officers tell appellant that they wanted to “draw blood-alcohol” and that he consented after they read his rights. One police officer testified that he read the implied consent warning from a card he carried for that purpose, a portion of which stated that, under Georgia Code § 40-6-392, a suspect has the right to additional tests. “ ‘Where there is a conflict over whether a defendant was advised of his right to an additional test, resolution of the question of credibility is for the trial courts.’ [Cit.j The trial court did not err in resolving that question in favor of the State. [Cit.] Even if, as appellant seems to contend, he was unconscious or semi-conscious and thus incapable of refusing to consent to blood tests, the results of the tests were nonetheless admissible. OCGA § 40-5-55 (b).” Rogers v. State, 180 Ga. App. 310 (1) (348 SE2d 888) (1986).

3. Appellant’s third and eighth enumerations are not argued and are therefore deemed abandoned. Court of Appeals Rule 15 (c) (2). Williams v. State, 178 Ga. App. 80 (3) (342 SE2d 18) (1986).

4. In his fourth enumeration of error, appellant asserts that the State failed to prove an adequate chain of custody of his blood samples. This enumeration is without merit. The blood was drawn by a nurse at Gordon Hospital who sealed the vial and placed appellant’s name on the label. Escorted by a police officer, the nurse took the vial of blood to the lab and handed it to the lab technician who, with the assistance of the police officer, locked the vial in a box to prevent tampering. A few days later a police officer picked up the vial and transported it to the State Crime Lab where he turned it over to the forensic toxicologist. The forensic toxicologist testified that she received the vial in good condition and sealed with paraffin and a rubber stopper. “There was nothing to cause [her] to believe that anyone had tampered with the tubes . . . [W]hen a blood sample is routinely handled and ‘nothing in the record raises a suspicion that the blood tested was other than that taken from the defendant, the evidence of tests on such blood is admissible.’ ” Cunningham v. State, 255 Ga. 35 (5) (334 SE2d 656) (1985). See also Holmes v. State, 180 Ga. App. 787 (3) (350 SE2d 497) (1986).

5. In appellant’s fifth enumeration of error, he complains of the admission of a doctor’s testimony that appellant had a high level of alcohol in his blood. The basis for appellant’s complaint is that the blood test from which the doctor got information about appellant’s blood alcohol level was not conducted by the State Crime Lab or in accordance with its standards, and that the doctor’s testimony was hearsay. We agree that the testimony was hearsay (compare McCall v. Parker, 177 Ga. App. 774 (341 SE2d 303) (1986)), and that the record does not show whether the test was conducted in accordance with the standards of the State Crime Lab, but we do not find the admission of the testimony to be cause for reversal. The exact blood-alcohol level revealed by the test was not mentioned, just that appellant had a high level of alcohol in his blood. That testimony was merely cumulative of other evidence of appellant’s intoxication, including a properly introduced blood-alcohol test, testimony that appellant told a nurse that he had been drinking heavily, and testimony that appellant smelled of alcohol in the ambulance. Under those circumstances, the erroneous admission of the testimony does not require reversal. Caston v. State, 178 Ga. App. 752 (1) (344 SE2d 725) (1986).

6. Appellant’s sixth, seventh, ninth, and eleventh enumerations of error all concern the trial court’s refusal to give requested charges. “It is not necessary to give the precise language of a request to charge when the principles upon which the jury must make its decision are clearly explained. [Cits.]” Jackson v. State, 249 Ga. 751 (2) (295 SE2d 53) (1982). That being the situation in the present case, the cited enumerations of error are without merit.

Decided March 17, 1987

Rehearing denied March 31, 1987.

Howard W. Jones, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

7. The trial court’s recharge on criminal negligence was a correct statement of the law (see Johnson v. State, 170 Ga. App. 433 (3) (317 SE2d 213) (1984)) and did not, as appellant urges, overly emphasize the principles given therein.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    73124.
    REPUBLIC INSURANCE COMPANY v. MARTIN et al.
    (355 SE2d 694)
   Beasley, Judge.

Martin, his ex-wife Johnson, and their daughter Crawford filed suit against Republic Insurance Company to recover the proceeds of a fire insurance policy which insured real property once the marital residence of Martin and Johnson and which subsequently was destroyed by two fires. Crawford joined in the suit because she claimed entitlement to recover the insurance proceeds from her father as transferee of her mother’s rights under her parents’ divorce decree.

The plaintiffs sought recovery under the policy plus statutory penalties for bad faith and attorney fees based upon Republic’s having lulled them into believing that it would pay the fire insurance claim until such time as the policy’s statute of limitation on actions had run and then refusing to pay the claim. The case went to trial by jury and after the court directed a verdict in favor of Martin and Johnson on the issue of insurable interest, the jury returned a verdict for plaintiffs in the amount of $26,000 actual damages, $6,500 bad faith penalty and $4,780 attorney fees; the court entered judgment on the directed verdict and judgment on the jury award of $37,280 plus interest and costs of the action.

The insurer brings the present appeal from the denial of its amended motions for new trial and for judgment notwithstanding the verdict.

1. Republic challenges the standing of Martin, Johnson, and Crawford to file a claim for the insurance proceeds. The insurer maintains that at the time of the fires Martin had no insurable interest in the property, having conveyed his interest to Johnson in the prior divorce settlement, that although Johnson was the owner of the property at the time of the fires she was not the named insured or otherwise insured under the policy because there was never any endorsement making her such, and that because Johnson had no claim under the policy, there was no valid transfer of rights under the policy from Johnson to daughter Crawford.

Construing the evidence in favor of the verdict, Progressive Rural &c. Co-op v. Austin, 179 Ga. App. 84 (345 SE2d 113) (1986); Springfield Ins. Co. v. Harris, 106 Ga. App. 422 (126 SE2d 920) (1962), the following scenario gave rise to the present litigation:

Martin purchased the subject property in 1966 and executed a deed to secure debt in favor of Advance Mortgage Corporation to secure a loan made for the purchase. In 1967, Advance transferred its note and security deed to the Bronx Savings Bank. Later, Martin secured a second loan from AVCO Finance to make improvements on the property. On January 26, 1977, Martin and his wife executed a divorce settlement which provided that contemporaneously with the divorce decree, Martin was required to convey by quitclaim deed all title and interest in the marital residence to the wife. Martin executed the quitclaim deed on February 11, but it was never recorded or given to Martin’s ex-wife. The decree which incorporated the settlement was entered on February 16. The fires which destroyed the residence occurred on November 22 and 27, 1978. At the time of the fires, the property was insured for such loss by Republic under a policy bearing Martin as the named insured.

Martin was not then living on the premises but was paying the premiums on the insurance and was obligated to make the installments on the second note to AVCO. The house was being occupied by the Martins’ daughters who were making the payments on the note to Advance as their rental obligation tó their parents.

On November 21, just prior to the first fire and at the request of Johnson’s attorney, Martin’s insurance agent directed Republic to endorse the fire insurance policy on the property to reflect Johnson as the named insured, effective on that date. Shortly after the fires, Republic conducted an investigation and examination of the premises. On November 22, and November 29, it secured the signatures of mother, father and daughter on non-waiver agreements. Then on the 30th, it mailed Martin a notice of policy cancellation effective January 1, 1979. The stated reason for the cancellation was that the property was not owned by Martin, the named insured. Apparently subsequent to the fires but prior to filing suit (this conclusion as to timing is derived from a reasonable construction of the record favorable to the verdict, there being no direct evidence of an exact date), the mother, Johnson, executed a quitclaim deed to the property in favor of the parties’ eldest daughter, Crawford. The deed stated that its purpose was to release any and all interest that Johnson had in the property to the daughter.

In August 1979 Republic paid Eastern Savings Bank (formerly Bronx Savings Bank) c/o Advance Mortgage Corporation in exchange for an assignment of the note and deed to secure debt originally given to Advance. The insurer never refunded any portion of the premiums to Martin, never formally by letter or otherwise denied any claims by Martin, Johnson, or Crawford prior to 1982, nor did it make any payment whatsoever to the parties for the fire loss, principally upon the bases on which it still relies, i.e., no insurable interest or contractual obligation to father, mother, or daughter.

By virtue of the quitclaim deed to his ex-wife as well as by the divorce decree itself, Richardson v. Park Ave. Bank, 173 Ga. App. 43 (325 SE2d 455) (1984), Martin was divested of equitable title to the property, the legal title still being held by Advance and AVCO. But “title is not the sole test for determining an insurable interest. It may be a special or limited interest, disconnected from any title, lien or possession, whereby the holder of the interest will suffer loss by its destruction, etc., and that will entitle him to protect the interest by insurance. [Cits.]. . .

“Whether owned or non-owned, the insured must have an insurable interest in the subject matter of the contract, . . .” Gordon v. Gulf American &c. Co., 113 Ga. App. 755, 760 (2) (149 SE2d 725) (1966); see also Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589 (307 SE2d 107) (1983). “ ‘[I]nsurable interest’ means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” OCGA § 33-24-4.

Under this standard, while it is clear that Martin no longer had equitable title to the property, it is also clear that he retained an equitable interest in it because of his continuing liability on and payment of the second priority note to AVCO. Though Martin had given a written statement to the insurer on November 29, 1978, that AVCO had been fully paid, this was not the case. A letter from the insurer’s own attorney, dated January 23, 1979, stated that checking with AVCO revealed that Martin had not fully paid the debt. Moreover, the only evidence of release of AVCO’s. interest in the property for satisfaction of the debt is a quitclaim deed executed in April 1982, by AVCO in favor of Martin and Crawford.

“The grantor in a deed to secure debt retains the right of possession and the right of redemption by payment of the debt, and consequently, an equitable interest in the property which may be assigned or subjected to payment of his debts. [Cits.]” Pendley v. Brooks, 119 Ga. App. 268, 270 (166 SE2d 898) (1969). Inasmuch as this is so, though what title Martin possessed passed to Johnson, he could still have suffered a direct pecuniary loss on the property, see Cherokee Ins. Co. v. First Nat. Bank, 181 Ga. App. 146, 147 (351 SE2d 473) (1986), because he was still liable on the second priority note which was secured by the property.

Furthermore, the insurer itself negates its assertion of no contractual liability to Martin by its steadfast contention that Martin remained the sole named insured under the policy.

It is clear from the evidence that Johnson, too, had an insurable interest in the property at the time of the fires through her acquisition of equitable title to the residence. In addition, the insurer had a contractual obligation to her because prior to the fires, affirmative steps were taken to change the named insured from Martin to her, and the insurer by its agent represented in writing that the change would be effected by way of endorsement, although before the formal change was made on the policy it was cancelled by the insurer following the fires. Under these circumstances, there was evidence of a valid change of the named insured to Johnson. See Maxwell v. Britt, 171 Ga. App. 230 (319 SE2d 88) (1984). Even if the policy had not been transferred to Johnson, this would not affect her insurable interest by virtue of her equitable title to the property so that she would be divested of any entitlement to proceeds under the policy. This would be equally true in regard to Martin, that is, an effective transfer of the policy over to Johnson did not divest him of his insurable interest in the property.

As to the daughter, she had acquired an insurable interest in the property by the quitclaim deed to her from her mother prior to suit. There is no dispute as to the appropriate execution and delivery of the deed. See Barkley v. Nat. Security Fire &c. Co., 170 Ga. App. 17 (315 SE2d 923) (1984); Barrett v. Simmons, 235 Ga. 600 (221 SE2d 25) (1975). Nor is it disputed that the deed purported to quitclaim any interest whatsoever in the property held by the mother to the daughter. In addition, at the time of the fires, the daughter had an equitable interest and thus an insurable interest in the property in her own right not derivative of the mother’s rights. This arose from her obligation on the first priority note to Advance which, although there may not have been a formal assumption of the note, is not disputed, coupled with her occupancy of the residence. American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652 (239 SE2d 543) (1977); Splish Splash Waterslides v. Cherokee Ins. Co., supra; Pendley v. Brooks, supra; see also Townsend v. Morris, 222 Ga. 242 (149 SE2d 464) (1966) as to the insurable interest of a lessee.

Furthermore, it is undisputed that the mother intended for the daughter to succeed to any benefits, which would include insurance proceeds from the fires, to which the mother would be entitled under the insurance policy.

Thus, at the time of the fires, and consequently when the insurance policy was in full force and effect and should have covered the loss, both Martin and Johnson had insurable interests relating to the policy, and the trial court correctly directed a verdict on this issue.

2. Republic next maintains that the court should have dismissed the action for plaintiffs’ failure to join a necessary party, namely Eastern Savings Bank as successor of the first priority security deed to Advance.

This question was not properly raised below nor ruled upon and thus we do not address it. We note, however, that prior to suit the interest of Eastern Savings Bank was bought by the insurer and the bank no longer had any interest in the property so as to render it a proper party to the suit. We also note that misjoinder of parties is not a ground for dismissal of an action. OCGA § 9-11-21.

3. The insurer further claims that there was no evidence of its bad faith so as to support the award of penalties and attorney fees.

“ ‘In an action to recover penalties and attorney fees for the refusal of an insurer to pay a claim it must be shown that the refusal was in “bad faith,” [OCGA § 33-4-6, further citations omitted], and the burden is on the insured to show that such refusal was made in bad faith. [Cits.] “Bad faith” . . . means “any frivolous and unfounded refusal in law or in fact to comply with the demand of the policyholder to pay according to the terms of the policy.” [Cits.] . . .’

“ ‘ “[T]he proper rule is that the judgment (for bad faith penalties and attorney fees) should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” ’ ” Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703 (1) (302 SE2d 605) (1983).

The evidence in support of the verdict, Progressive Rural &c. Coop v. Austin and Springfield Ins. Co. v. Harris, supra, shows that the insurer had knowledge immediately after the fires of the potential insurable interests of the mother, father, and daughter; it procured their signatures on non-waiver agreements. The insurer made no effort to attempt to refund any premiums if indeed it believed that for some time it had no contractual obligation to Martin for lack of an insurable interest. It gave no reasonable explanation for not following through on its representation that it would change the named insured on the policy. Nor did it inform any of the parties that it would not pay the claim until well past the time for filing suit under the policy. In fact, the evidence supports the finding that the insurer alternately led the father and daughter, who inquired frequently about the status of the claim, to believe that the claim would be paid, until 1982, and thus lulled them into forbearing suit to protect their interests.

Decided March 9, 1987

Rehearing denied March 31, 1987

Sam F. Lowe, Jr., for appellant.

John E. Robinson, for appellees.

This authorized the jury to award plaintiffs bad faith penalties and attorney fees. See International Indent. Co. v. Coachman, 181 Ga. App. 82 (351 SE2d 224) (1986).

4. Any further claims by the insurer raised in its amended motions for new trial and for judgment notwithstanding the verdict have not been argued on appeal and therefore are deemed abandoned. Court of Appeals Rule 15 (c); Turner v. Taylor, 179 Ga. App. 574 (346 SE2d 920) (1986). Also, we note that the question of the proper allocation of the judgment among the plaintiffs is a question not before us.

5. Appellees have moved this court to impose upon appellant damages for a frivolous appeal pursuant to OCGA § 5-6-6. Inasmuch as “[i]t does not appear that there was any valid reason for the appellant to anticipate reversal of the superior court’s judgment, ... we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, the appellee [s’] request for award of damages in the amount of 10 percent of judgment is granted.” Hanover Ins. Co. v. Scruggs Co., 162 Ga. App. 640, 641 (292 SE2d 493) (1982). The trial court is directed to enter an award of 10 percent damages in favor of plaintiffs upon the remittitur.

Judgment affirmed with direction.

Benham, J., concurs. Deen, P. J., concurs in the judgment only.


author: Benham, Judge. Beasley, Judge, Deen, Presiding Judge,

text:
    73399.
    GLOBE OIL COMPANY, USA v. DeLONG.
    (356 SE2d 47)
   Benham, Judge.

Appellee James DeLong drove his truck to the fuel pumps at appellant’s self-service gas station and convenience store. When he got out of the truck and walked around to the fuel pump, he tripped and fell over the uneven payment where the fuel pad, elevated slightly higher than the asphalt, joined the asphalt. The asphalt and surrounding concrete were crushed and filled with cracks. There were no signs or notices alerting customers of the existing conditions. Appellee testified that he had never patronized appellant’s station prior to his fall. The manager of the station on duty at the time of the incident testified she had had knowledge of the uneven, cracked pavement for almost a year before the incident.

The jury returned a verdict for appellee in the amount of $65,000. On appeal, appellant contends that the trial court erred in denying its motions for directed verdict on liability and damages, for judgment notwithstanding the verdict, and for new trial. The contention raised by appellant in each of its enumerations is that the law on superior knowledge precluded appellee’s recovery.

1. “Construing the evidence most favorably to upholding the jury verdict, the verdict was not contrary to law or the evidence. ‘The basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury. [Cit.]’ ” Great Atlantic &c. Co. v. Turner, 180 Ga. App. 533 (1) (349 SE2d 537) (1986). “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.]” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (2) (349 SE2d 241) (1986). The testimony by appellant’s former manager that the broken and uneven pavement had existed for almost a year was sufficient to impute superior knowledge to appellant. Id. Nevertheless, appellant contends that appellee had equal knowledge of the uneven pavement because he had walked across the pavement at least once. “The mere fact that one has been in the area before will not preclude him from recovery for injuries received from defective premises unless his failure to observe the defect amounts to a lack of that care which an ordinarily prudent person would exercise under the circumstances.” Kreiss v. Allatoona Landing, 108 Ga. App. 427 (2b) (133 SE2d 602) (1963). See also Shackelford v. DeKalb Farmer’s Market, supra. Such is the situation here. Appellee testified that while he was unsure what his foot hit to make him fall, when he fell he saw the cracked asphalt and uneven pavement. However the incident occurred, testimony by appellant’s former manager showed that appellant had prior knowledge of the existing dangerous conditions and did nothing to warn customers. “We cannot say that under these circumstances that a conclusion, as a matter of law, is demanded that the [appellee] should have had a full appreciation of the danger, and that in the exercise of ordinary care he should have avoided the injury to himself. This, we think was properly presented to the jury.” Robinson v. Western Intl. Hotels, 170 Ga. App. 812, 815 (318 SE2d 235) (1984).

Moreover, the distraction doctrine is applicable in this case. Appellee testified that tractor trailer trucks surrounded him and the diesel pump where he fell. “A possible confrontation with vehicular traffic on the property may be a significant ‘distraction’ for a pedestrian-invitee on the premises.” Shackelford v. DeKalb Farmer’s Market, supra at 351; Robinson v. Western Intl. Hotels Co., supra at 815-816. “The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. . . . The doctrine . . . cover [s] situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur. [Cit.]” Robinson v. Western Intl. Hotels Co., supra at 815. The evidence authorized a finding that appellee was distracted “by reason of present or reasonably to be anticipated dangers, resulting from being subjected to extremely close proximity to vehicular traffic. [Cit.]” Id. at 816.

2. As to the damages issue, there was sufficient testimony elicited from medical experts who gave their opinions on appellee’s condition. Appellee broke his thumb when he fell and subsequently suffered from pain in his side and hip. Appellant argues that appellee’s hip pain was from a pre-existing condition and not the result of his fall. However, appellee’s physician testified that the pain experienced by appellee was a result of his injury from the fall. The doctors also testified to past and future pain and suffering. “[Qjuestions concerning the amount of damages to be awarded for pain and suffering, past, present and future are for the enlightened conscience of the jurors. [Cits.] We decline to substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses.” Southern R. Co. v. Oliver, 177 Ga. App. 729 (5) (341 SE2d 270) (1986).

“In summary, [appellee] presented evidence of fault on the defendant’s part and ignorance of the hazard on [his] part, and the trial court thus properly declined to direct a verdict for [appellant] or grant judgment notwithstanding the verdict [or a motion for new trial].” Great Atlantic &c. Co. v. Turner, supra, Division 1.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., and Pope, J., concur. Carley and Beasley, JJ., concur specially. Deen, P. J., dissents. Sognier, J., concurs in judgment of dissent.

Beasley, Judge,

concurring specially.

I concur because liability was ultimately a question of whether plaintiff exercised reasonable care for his own safety in the circumstances. Goldsmith v. Hazelwood, 93 Ga. App. 466, 468 (92 SE2d 48) (1956). Cf. Pound v. Augusta Nat., 158 Ga. App. 166 (279 SE2d 342) (1981).

This was the first time plaintiff went to these premises. He could see that the asphalt parking lot was not smooth and testified that it was “all busted up.” When he fell at the junction of the asphalt and the smooth concrete pad around the fuel pump island, he was looking up at the gas price sign on the pump. Because he was not looking at where he was placing his feet, he did not see the unevenness on which-he tripped.

There was no evidence that the invitee could not have seen the hazard if he had looked where he was walking. Thus it is straining logic to say that the proprietor had superior knowledge of it, because it was plainly visible. The invitee even testified unequivocally that he could see it when he glanced up from the ground after he fell.

With regard to the element of superior knowledge, the proprietor is charged with constructive knowledge, i.e., what he should have known, as well as with actual knowledge. Shannon v. Bigelow-Sanford Carpet Co., 96 Ga. App. 458, 461 (100 SE2d 478) (1957). In measuring the relative knowledge of the invitee, he too is charged with constructive knowledge, which relates to his duty to use reasonable care for his own safety in walking about. Amear v. Hall, 164 Ga. App. 163, 167 (296 SE2d 611) (1982). That is why “superior knowledge” is not a foregone conclusion in this case.

The invitee’s duty is also related to the element of his ignorance of the defect and danger. If the ignorance is caused by his failure to look and see what is patent, it may not be legally justified.

These matters were subject to jury determination, given the total evidence relevant to liability in this case, although that itself is a close question. See Bell v. Abercorn Toyota, 175 Ga. App. 668 (333 SE2d 880) (1985). Compare Pound, supra, and Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (349 SE2d 241) (1986).

I am authorized to state that Judge Carley joins in this special concurrence.

Deen, Presiding Judge,

dissenting.

The majority opinion relies upon such cases as Robinson v. Western Intl. Hotels, 170 Ga. App. 812 (318 SE2d 235) (1984). The cited case is correct with respect to the facts in that case. “These factors were: (1) the narrowing of the walkway at the entrance to the booth; (2) the 3-to-4 inch slope of the walkway toward the driveway; (3) the dim lighting in the area; (4) the close proximity of vehicular traffic to the booth; and (5) the 16-inch stepup into the booth with ‘no handhold, no rail or nothing other than the door frame to hold onto.’ According to appellants’ expert, as the result of these ‘hazardous factors,’ ‘a person coming out of the booth . . . would have a tendency to surge forward . . . , and end up in the drive.’ ” Robinson, supra at 814.

The facts there are grossly dissimilar to those of the instant case, where appellee fell as soon as he got out of his truck in the daylight, with all conditions of the uneven pavement visible. These conditions were evident to all.

Decided March 12, 1987

Rehearing denied March 31, 1987

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

Linda B. Carlisle, Charles W. Lane, for appellee.

The case of Pound v. Augusta Nat., 158 Ga. App. 166 (279 SE2d 342) (1981), where the plaintiff fell on some rocks which were visible and out in the open, and where summary judgment was granted to the defendant, is more similar to this case and would seem to control it. I would reverse on the basis of the fact that the trial judge erred in denying the motions for directed verdict on liability and damages, and failed to enter the judgment notwithstanding the verdict.

As the late Judge Powell observed, “[I]t is nothing new for us to say that the jurisdiction of the jury to settle the facts is as final as is this court’s jurisdiction to determine the law; and their finding of fact is entitled to the same respect from us as our decision on the law is entitled to receive from them. And no doubt, if a reciprocity of criticism were allowable, some of our decisions as to the law would seem as absurd to the jurors as their finding of facts seem to us in this case. There is a point at which facts cease to be issuable and the jurisdiction of the jury is withdrawn for the lack of anything for them to decide; when all the evidence and all the inferences to be drawn therefrom so irresistibly point to only one way as to leave no ‘scope for legitimate reasoning by the jury,’ and the only conclusion deducible from the facts is a matter of law, which the court may declare. . . .”

I respectfully dissent.


text:
    73447.
    CHRYSLER CORPORATION v. MARINARE
    (355 SE2d 719)
   Beasley, Judge.

This is the second appearance of this case involving claims by a purchaser of a Chrysler van that Chrysler committed acts of fraud and breach of warranty. The facts giving rise to the litigation are in our decision on Chrysler’s appeal from the judgment entered on the first jury’s verdict in favor of plaintiff, Chrysler Corp. v. Marinari, 177 Ga. App. 304 (339 SE2d 343) (1985). We now address Chrysler’s appeal from judgment entered on a second jury verdict unfavorable to it.

1. Chrysler enumerates as error the trial court’s denial of its “Motion for Directed Verdict or in the Alternative, Motion for Reconsideration of the Directed Verdict Previously Made” which Chrysler filed just prior to the start of the second trial of the case.

Following this court’s determination that reversal of the judgment on the first jury verdict was required, Chrysler Corp. v. Marinari, supra, and the denial of rehearing and certiorari to the Supreme Court, Chrysler moved this court to direct that judgment in its favor be entered below pursuant to OCGA § 9-11-50 (e). This court denied the motion on the ground that although judgment entered on the verdict was reversed both as to the fraud count and the breach of warranty count, neither ruling was based upon an enumeration that it was error to deny a motion for directed verdict or a motion for judgment notwithstanding the verdict under OCGA § 9-11-50 (e). Accordingly, the effect of the reversal of the judgment was to require a new trial. The trial court, in proceeding with a second trial, was following the law as directed by this court and the court was correct in denying Chrysler’s motions to direct a verdict as a result of our reversal of the initial judgment. OCGA § 9-11-60 (h).

2. Chrysler also maintains that the trial court erred in denying its motion for directed verdict made at the conclusion of the second trial. It argues that Marinari failed to establish the existence of each element of his fraud claims so as to support a verdict against the company for fraud, that he failed to establish his measure of damages so as to support a verdict for breach of warranty, and that there was no evidence to support the award of attorney fees pursuant to OCGA § 13-6-11.

After the verdict, Marinari was required to elect between recovery on fraud or breach of warranty. He elected to recover under fraud and the $3,099 awarded for breach of warranty was stricken from the verdict and not made a part of the final judgment. Thus the assertion of error in regard to the breach of warranty claim has become moot. Reinhardt v. Parker, 129 Ga. App. 312 (199 SE2d 638) (1973).

The question then is whether or not there was any evidence to support the jury’s verdict as to fraud. Little v. Little, 173 Ga. App. 116 (325 SE2d 624) (1984). “Our duty is to construe the evidence most favorably toward the party opposing the motion [for directed verdict] [cit.], and we will labor to retain intact the verdict returned by the jury to whom our system has entrusted the dispensing of justice. [Cits.]” Eddie Parker Interests v. Booth, 160 Ga. App. 15, 17 (285 SE2d 753) (1981).

“ ‘ “To recover in tort for fraud the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.” [Cit.]’ [Cit.]” Plough Broadcasting Co. v. Dobbs, 163 Ga. App. 264 (1) (293 SE2d 526) (1982). “Although fraud may not be presumed, ‘slight circumstances may be sufficient to carry conviction of its existence.’ [Cits.]” Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497) (1982). “ ‘[F]raud is “in itself subtle,” [cit.], and . . . “circumstances apparently trivial or almost inconclusive, if separately considered, may be their number and joint operation . . . be sufficient to constitute conclusive proof.” [Cit.]’ [Cit.]” Plough Broadcasting Co. v. Dobbs, supra at 265 (1).

In his second amended and restated complaint, Marinari alleged (a) fraud prior to the delivery of the van; (b) fraud at delivery; (c) fraud in issuing the warranty; and (d) fraud in servicing the van. The jury returned a special verdict in which it found, inter alia, that Chrysler had committed all four types of fraud and that Marinari had been damaged as a result thereof.

a.) Marinari maintained that Chrysler, prior to delivery of the van, committed fraud by representing that it manufactured and installed the van conversion package and air conditioning system when it knew these representations to be untrue. Chrysler contends that there was no evidence that it made any representation that the air conditioner or van conversion package was made and installed by it, that even if the representations were made there was no evidence that the representations were false, that if no representation was made, there could be no intention to defraud by the making of the representation, and that there was no detrimental reliance by Marinari as to the air conditioner in that he testified that he knew it was an ARA air conditioner prior to purchase.

There was evidence that when Marinari ordered the van, he was shown a brochure of the models, that nothing on the brochure indicated that the conversion package was manufactured by anyone other than Chrysler; that nothing on the invoice indicated a different manufacturer; that at the time of order, Marinari believed that Chrysler did the conversion package; that the package was not manufactured by Chrysler; that Marinari did not know of the different manufacturer until after delivery; that throughout his ownership of the van Marinari experienced problems with portions of the conversion package; that Chrysler refused to repair these portion of the conversion package; and that he was still having problems with the conversion package at the time of sale of the van.

As to the air conditioner, there was evidence that Marinari requested factory-installed Chrysler air conditioning; that a Chrysler representative told Marinari that he was purchasing a factory-installed air conditioning when reviewing the invoice; that initially there was nothing to indicate that the air conditioning was not installed by Chrysler; that Marinari did not learn that it was not factory-installed until problems with the air conditioning developed over a year after purchase; that the dealership informed Marinari that it could not repair the air conditioning because it was not factory-installed by Chrysler; and that the air conditioning never properly worked or was improperly fixed. We find that there was evidence to support the jury’s determination that Chrysler committed fraud in selling the van to Marinari. See Preiser v. Jim Letts Oldsmobile, 160 Ga. App. 658, 660 (1) (288 SE2d 219) (1981).

b. ) Marinari also maintained that Chrysler committed fraud at delivery when it represented the van as new with no previous repairs when it knew that the van had been repaired prior to delivery. Chrysler admitted that prior to delivery the van was repaired on three different occasions and that Marinari was not told of these repairs at delivery, but it contends that Marinari was not able to establish a cause and effect relationship between the repairs and any damages he may have suffered.

Contrary to Chrysler’s assertion, there was evidence that Marinari continued to have problems with the van similar to those which Chrysler attempted to repair prior to delivery. Moreover, “[i]t may be considered an intrinsic quality of a car sold as new that it had been neither damaged nor used to any significant extent, [cits.],” ánd when it is shown that the car was used or damaged to a significant extent and sold as new after attempted repair, such circumstances may be used to show intentional deception. Horne v. Claude Ray Ford Sales, supra at 329 (1).

c. ) Marinari further asserted that Chrysler had committed fraud in issuing a new vehicle warranty which purported to cover the conversion portion of the van and the air conditioning system which in fact were not covered because they were not factory-installed by Chrysler. Chrysler maintains that there was no evidence that it knowingly made representations that certain components were covered by the warranty when they were not.

There was evidence that the warranty purported to cover those components and that the dealership balked at repair of those items because they were not Chrysler-made and installed. “ ‘ “Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” ’ [Cit.]” Horne v. Claude Ray Ford Sales, supra at 330 (4). The jury was authorized to find that Chrysler had committed fraud in issuing the warranty.

d. ) Finally, Marinari contended that Chrysler had committed fraud in servicing the van by concealing the three prior repairs and by concealing the fact that the air conditioning was not factory-installed and manufactured by Chrysler. Again, Chrysler maintains that there was never any misrepresentation as to the source of the air conditioner and that there was no evidence that the three prior repairs related to subsequent defects. We have already decided these contentions adversely to appellant.

Decided March 12, 1987

Rehearing denied March 31, 1987

Charles C. Carter, for appellant.

Kenneth M. Henson, Jr., for appellee.

Douglas E. Smith, Gregory C. Sowell, Manley F. Brown, amici curiae.

3. Plaintiff Marinari was awarded $23,721.36 in attorney fees pursuant to OCGA § 13-6-11. Chrysler now argues that the trial court erred in failing to direct a verdict in its favor as to the issue of attorney fees.

The record shows that in its motion for directed verdict, Chrysler did not move the trial court to direct the verdict specifically as to the question of attorney fees. Consequently the trial court made no ruling in this regard which we can properly consider, for “this court will review and correct only such error as was made in the trial court and only on the specific basis on which it was presented to the trial court. [Cit.]” Morse v. MARTA, 161 Ga. App. 405, 406 (2) (288 SE2d 275) (1982).

4. Appellee Marinari moves this court for damages for frivolous appeal pursuant to OCGA § 5-6-6 and for attorney fees pursuant to OCGA § 9-15-14.

We do not address the merits of appellee’s motion for attorney fees under OCGA § 9-15-14 for such a motion properly addresses itself to the trial court for disposition. However, we grant appellee’s motion for damages for frivolous appeal pursuant to OCGA § 5-6-6, inasmuch as “[i]t does not appear that there was any valid reason for the appellant to anticipate reversal of the superior court’s judgment, . . . we must conclude that the appeal to this court was for the purpose of delay only.” Hanover Ins. Co. v. Scruggs Co., 162 Ga. App. 640, 641 (292 SE2d 493) (1982). The trial court is directed to enter an award of 10 percent damages in favor of plaintiff upon the remittitur.

Judgment affirmed with direction.

Been, P. J., and Benham, J., concur.


text:
    73508.
    HOWARD v. THE STATE.
    (355 SE2d 772)
   Benham, Judge.

On August 29, 1985, a jury found appellant guilty of driving under the influence (OCGA § 40-6-391 (a)); improper driving on the roadway (OCGA § 40-6-40 (a)); and driving too fast for conditions (OCGA § 40-6-180).

1. The State seeks dismissal of the appeal on the ground that appellant’s motion for new trial was not timely filed under OCGA § 5-5-40, thereby depriving this court of jurisdiction to entertain this appeal. See Smith v. Forrester, 145 Ga. App. 281 (243 SE2d 575) (1978). The trial court in the case at bar entered an order on August 29,1985, the day the jury returned its verdicts, in which order it “considered, ordered, and adjudged that the defendant is guilty.” Appellant’s sentence was entered on October 21, 1985, and he filed a motion for new trial ten days later. He filed his notice of appeal within thirty days of the denial of his motion for new trial. Asserting that judgment was entered against appellant on August 29, the State argues that appellant’s motion for new trial filed on October 31 was untimely because it was not filed “within 30 days of the entry of the judgment on the verdict. . .” OCGA § 5-5-40 (a). However, the entry of sentence upon a convicted defendant is necessary for a final judgment, from which an appeal may be taken, to be entered. Pace v. City of Hazlehurst, 9 Ga. App. 203, 204 (70 SE 967) (1911). See also Eaves v. State, 113 Ga. 749 (1) (39 SE 318) (1901); Easterling v. State, 11 Ga. App. 134 (1) (74 SE 899) (1912). Inasmuch as appellant’s motion for new trial was filed within thirty days after his sentence was entered, it was timely (compare Stone v. State, 144 Ga. App. 843 (a) (242 SE2d 749) (1978)), and extended the time within which appellant had to file his appeal to this court. Smith v. Forrester, supra. The State’s motion to dismiss appellant’s appeal is denied.

2. The trial court refused to give a charge on reckless driving submitted by appellant. Appellant cites the refusal as error, contending that reckless driving is an offense factually included, in this case, in driving under the influence. “The uncontradicted evidence showed completion of the greater offense ... so that the charge on the lesser offense was not required. [Cits.]” Jordan v. State, 239 Ga. 526 (2) (238 SE2d 69) (1977). See also Mallory v. State, 166 Ga. App. 812 (2) (305 SE2d 656) (1983).

3. Appellant also cites as error the admission into evidence of testimony concerning appellant’s refusal to submit to a chemical analysis of his blood after a ruling adverse to the State in a Jackson-Denno hearing. Pretermitting a discussion of the application of the holding in Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to the refusal of appellant to submit to a blood-alcohol test is the fact that appellant failed to object timely to the testimony at trial. Therefore, we cannot consider appellant’s contention. Glisson v. State, 165 Ga. App. 342 (5) (301 SE2d 62) (1983).

4. The jury found appellant guilty of three misdemeanors: driving too fast for conditions, improper driving, and driving under the influence of alcohol so as to make him a less safe driver. The trial court imposed a sentence of 18 months upon appellant, with six months to be served in confinement. Appellant argues that driving too fast and improper driving are offenses included within driving under the influence since it was the former conduct which made him a “less safe” driver under the DUI statute. In conjunction with this argument, he maintains his sentence is improper. The State argues that only one of the two included offenses was necessary to prove the “less safe” aspect of DUI and, therefore, one of the included offenses remains as a separate and independent offense. Under the State’s theory, appellant was convicted of two misdemeanors and legally sentenced to serve 18 months. However, the jury did not reveal which of the included offenses served as its foundation for finding appellant to have been a less safe driver, and we may not speculate as to the jury’s ruminations. See Barlow v. Veber, 169 Ga. App. 65 (3) (311 SE2d 501) (1983). Therefore, appellant’s convictions for the included offenses must be stricken, and he may not be sentenced for either of the included offenses. McNabb v. State, 180 Ga. App. 723 (5) (350 SE2d 314) (1986).

Decided March 19, 1987

Rehearings denied March 31, 1987

Rowland R. Castellanos, for appellant.

Patrick H. Head, Solicitor, Jane P. Manning, Melodie H. Clayton, Assistant Solicitors, for appellee.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Beasley, J., concur.


text:
    73511.
    HOLLAND v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (356 SE2d 50)
   Beasley, Judge.

Holland, the insured under a policy issued by State Farm, was injured by an uninsured motorist in March 1982. She was paid $5,000 under her PIP coverage and this litigation ensued over her claim that she had an additional $45,000 in PIP coverage. State Farm was granted a summary judgment on this issue, from which Holland appeals. Although having the earmarks, this is not an ordinary Jones/Flewellen case, if there is such a thing. It contains, however, the procedures instituted by the insurance industry to comply with their requirements.

Holland was originally insured by State Farm in 1974. At that time, the automobile insured was a 1971 Capri. Holland requested and was issued $50,000 in PIP coverage. According to State Farm’s records, in 1981 Holland changed her PIP coverage to the minimum $5,000. That form also reflects a different car, a 1973 Pontiac. While Holland acknowledged changing cars over the years with State Farm, she denied that the signature on the 1981 form was hers. That form, in any event, did not comply with the requirements of OCGA § 33-34-5 (c), Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), cert. dismissed 248 Ga. 46 (280 SE2d 837) (1981), and Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983).

In November 1981, State Farm sent Holland an accept/reject form and explanatory brochure concerning optional PIP coverage along with her renewal notice. This was done in connection with her upcoming renewal date, December 7, 1981, and was apparently part of State Farm’s effort to comply with Jones/Flewellen. Holland acknowledged that she did not timely pay her premium, as a result of which State Farm notified her that her policy lapsed on December 21, 1981.

Upon State Farm’s receipt of her premium payment on January 7, 1982, her policy was renewed beginning January 8. As was its standard policy with lapsed policies, State Farm sent Holland another accept/reject form. Although Holland had no specific recall of receiving the November mailing, she did receive and return an accept/reject form received by State Farm on February 9, 1982. That form is marked to accept the minimum $5,000 PIP and to reject all optional coverages. Holland signed that form.

Viewing the evidence in her favor, as we must on appeal from the grant of summary judgment, Holland stated that she checked those accept/reject boxes referring only to the form as sent to her, which stated on its face her previous coverage, i.e., the $5,000 based on the September form. In other words, she relied on the company’s statement of her previous coverage and made no effort to verify that for herself. The parties are in agreement that she had received her new policy, prior to the accident, and that it reflected her PIP as being only $5,000. She had not notified State Farm that this was not correct. In granting State Farm’s summary judgment motion and denying hers, the trial court relied on Parris & Son v. Campbell, 128 Ga. App. 165 (196 SE2d 334) (1973) which imposes upon an insured the obligation to read the policy issued and to take steps to correct anything in it that is not accurate.

Holland does not contend that she was not informed of her privilege to obtain optional coverages, as required by OCGA § 33-34-5 (b) 6 (c) in its pre-1982 form. Instead, she argues that her 1974 election of $50,000 PIP was binding and could not be changed by her checking the $5,000 minimal coverage box on the form received in February 1982 (assuming the signature on the 1981 change document was not hers and not authorized by her). Her argument in this regard seems to be premised on the fact that her policy was a renewal policy and State Farm did not have to obtain another form. Accepting her premise and ignoring the facts that her policy had lapsed and that there was no contract between the parties for parts of December and January, the insurer is not precluded from offering the optional coverage upon renewal of a policy even if it is not required to do so. OCGA § 33-34-5 (d). Even if it is regarded as a “renewal” of a lapsed policy, State Farm’s procedure was to obtain another form when a policy was renewed or lapsed, and it did so in part to ascertain whether the premium should be increased. The point is that she signed the new form showing $5,000 and she received a policy reflecting $5,000 coverage.

“Insurance is a matter of contract law and contract rules and interpretations will apply. [Cit.] A party to a contract who can read, must read or show a legal excuse for not doing so, and ordinarily if fraud is an excuse, it must be such fraud as would prevent the party from reading the contract. [Cit.] One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. [Cit.] There is no fiduciary relationship existing between an insured and an insurer. . . . ‘Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.’ ” Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152 (351 SE2d 498) (1986); Barnes v. Levenstein, 160 Ga. App. 115, 116 (286 SE2d 345) (1981). Thus, to the extent that Holland’s position is based on a constructive fraud theory, it must fail.

The decision in Enfinger v. Intl. Indent. Co., 253 Ga. 185 (317 SE2d 816) (1984) does not dictate a different result. That was a situation where there had been no compliance with the signature requirements of OCGA § 33-34-5 (b) on an existing policy of insurance (applied for in August 1980 before Jones was ^decided in October 1980), and the issue was whether a section 33-34-5 (c) mailing would “cure” this failure. The insured had made no response to the mailing, thus never acknowledging that he was aware of the optional coverages. Here, there is no question that Holland was aware of the availability of $50,000 coverage and that she had responded to at least one of State Farm’s mailings in this regard and had at one time had the optional coverage. Her problem is that she signed the new acceptance-rejection form in February 1982 which showed the limit as $5,000 and could not rely on the fact that at some earlier time she had $50,000 coverage which she thought she had not changed. Even if she did not sign the change document, as she asserts, she was obligated to read the renewed policy. Whatley v. Universal Security Ins. Co., 177 Ga. App. 424, 425 (339 SE2d 398) (1986).

Decided March 12, 1987

Rehearing denied March 31, 1987

Benjamin W. Beazley, for appellant.

Mack T. Elder, W. Gordon Hamlin, Jr., for appellee.

Thus there was a valid policy in existence in March 1982 reflecting that only $5,000 in PIP was in effect. Holland had signed and returned the accept/reject form establishing her desire for only the minimum. She may not now rely on her own ignorance of the $5,000 provisions of her lapsed policy as a way to obtain that which she specifically rejected in 1982. At least twice she had notice that it was $5,000: on the accept/reject form and on the policy itself.

There being no dispute as to these material facts, and State Farm being entitled to judgment as a matter of law, the trial court was correct in granting State Farm’s motion for summary judgment and denying Holland’s on the same ground.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    73516.
    WHIDBY et al. v. MR. B’S FOOD MART et al.
    (356 SE2d 78)
   Benham, Judge.

Janet Whidby was killed when the car she was driving collided with a tractor-trailer. Appellants, her parents, brought suit against appellees D. C. and Mattie Childs, d/b/a/ Childs Wrecker Service and Childs Used Cars (“the Childses”), and against appellee Mr. B’s Food Mart (“Mr. B’s”). Appellants’ theory of recovery was that a tow truck parked on the Childses’ property and a lighted sign located on Mr. B’s property prevented their daughter from seeing oncoming traffic after she stopped at a stop sign, causing her to pull out in front of an approaching truck.

The controlling authority for this case is Smith v. Hiawassee Hardware Co., 167 Ga. App. 70 (305 SE2d 805) (1983). This court held in that case that “[structures on private property adjoining road rights-of-way only become unlawful under OCGA § 32-6-51 ... if they obstruct a clear view of roads in such a manner as to constitute a traffic hazard, and they are unauthorized. There is no per se lack of authorization as obtains in structures placed in public road rights-of-way, and the party asserting that a structure placed on private property is unauthorized has the burden of establishing the fact of the assertion by showing that the structure was erected or maintained in violation of some statute, code, or local ordinance.” Id. at 71. Although this court spoke only of structures because that case involved a building, the statute involved concerns “any unauthorized sign, signal, device, or other structure . . .” which is visible from a public road. OCGA § 32-6-51 (b).

Decided March 18, 1987

Rehearing denied March 31, 1987

Lester Z. Dozier, Jr., A. Burton Lee, for appellants.

Charles L. Ruffin, Rufus D. Sams III, Thomas W. Talbot, R. William Buzzell II, Leland M. Malchow, for appellees.

In order to show that the placement of the sign on the property of Mr. B’s and of the truck on the Childses’ property was unauthorized, appellants first assert that the truck was a sign because of the conjunction of its positioning near the roadway and the presence of the business name painted on the side of the truck, and then assert that both signs were in violation of OCGA § 32-6-75 (9) and (16). It is there that appellants’ argument breaks down. The cited Code section is part of a series of laws regulating the placement of outdoor advertising within specified distances of interstate highways and “roads of the state highway system which also form a part of the interstate and primary systems of highways declared by the Congress in Title 23, Section 103, United States Code.” OCGA § 32-6-70. The record in this case is wholly devoid of any evidence that Highway 96 in Houston County is part of the “primary systems of highways” mentioned in § 32-6-70 and defined in OCGA § 32-6-71 (16). There is, therefore, no showing that OCGA § 32-6-75 is applicable. Without that showing, appellants cannot show that the placement of the sign and of the truck was “unauthorized,” which in turn prevents them from showing that appellees could be liable for the positioning of the allegedly obstructing objects. Smith v. Hiawassee Hardware Co., supra. Appellants have not, therefore, demonstrated on appeal that the grant of summary judgment to appellees was error.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    73580.
    ATLANTA DAIRIES COOPERATIVE v. GRINDLE.
    (356 SE2d 42)
   Carley, Judge.

Appellee initiated an action to recover for appellant’s alleged breach of a “franchised contractual relationship.” At trial, appellant moved unsuccessfully for a directed verdict and the case was submitted to a jury. The jury returned a verdict in favor of appellee. Judgment was entered on the jury’s verdict and the trial court denied appellant’s subsequent motion for judgment notwithstanding the verdict. Appellant appeals, enumerating as error the denial of its motions for directed verdict and for judgment n.o.v.

1. The evidence admitted at trial, construed most favorably for appellee, showed that the “franchised contractual relationship” consisted of an oral agreement whereby appellee was to serve as the distributor for appellant’s dairy products in a designated geographic area. Although appellee contends that his distributorship was exclusive and “permanent,” it is clear that, as a matter of law, it was for an indefinite period and terminable at will and that appellee therefore had no viable claim for appellant’s alleged “wrongful termination” of the relationship. The Statute of Frauds would render appellee’s alleged oral contract for a “permanent” distributorship unenforceable. “Such a contract must be in writing.” American Standard v. Jessee, 150 Ga. App. 663 (1) (258 SE2d 240) (1979). Furthermore, even if appellant could demonstrate that the Statute of Frauds would not otherwise bar the enforceability of his “permanent” distributorship, “the contract is nevertheless for an indefinite hiring and for that reason is unenforceable. ‘A contract for permanent employment has been held to be a contract to continue indefinitely, and terminable at any time by either of the parties.’ [Cit.]” Ely v. Stratoflex, Inc., 132 Ga. App. 569, 571 (1) (208 SE2d 583) (1974).

Appellee had “no written contract of employment and was, thus, an employee terminable at will. In the case of an employee terminable at will, there can be no cause of action for wrongful termination. [Cit.]” Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125 (2) (329 SE2d 208) (1985). “[A] hiring indefinite as to time is terminable at the will of either party and creates no executory obligations. [Cits.]” Lowe v. Royal Crown Cola, 132 Ga. App. 37, 40-41 (1) (207 SE2d 620) (1974). See also Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701 (331 SE2d 75) (1985). Accordingly, insofar as appellee asserted a “wrongful termination” claim, appellant’s motion for a directed verdict should have been granted and the trial court erred in denying the motion for judgment n.o.v.

2. However, simply because appellee had no viable “wrongful termination” claim, it does not necessarily follow that he had no viable claim whatsoever based upon his oral contractual relationship with appellant. A writing would be a threshold requirement to the enforceability of any executory elements of appellee’s alleged distributorship relationship, but not as to any of the executed portions. “The provisions of [the Statute of Frauds] do not extend to . . . cases: Where there has been performance on one side, accepted by the other in accordance with the contract.” OCGA § 13-5-31 (2). See also OCGA § 11-2-201 (3) (c) which provides that the Statute of Frauds does not render a contract for the sale of goods unenforceable “[w]ith respect to goods for which payment has been made and accepted or which have been received and accepted. . . .” Thus, the Statute of Frauds would have no application in cases involving “a contract to begin in praesenti, for an indefinite period, terminable at will, and the employee thereunder [is] suing on the contract for the amount of compensation due him, based upon services actually performed by him up to the time of his discharge, and not for damages or for compensation for services not performed or for any breach of contract. In such a case it [is] not necessary that the plaintiff sue on a quantum meruit for services actually performed.” (Emphasis supplied.) Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471-472 (180 SE 853) (1935). See also Spindel v. Nat. Homes Corp., 110 Ga. App. 12, 15 (137 SE2d 724) (1964); Trade City G.M.C. v. May, 154 Ga. App. 371, 372 (2) (268 SE2d 421) (1980); Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 840 (2) (315 SE2d 51) (1984).

In addition to his non-viable claim for wrongful termination, appellee was apparently also advancing a claim for unpaid consideration that was due him under the contract as it had been executed. Appellee presented evidence that, in the course of the relationship, appellant orally agreed that the price at which it had made its dairy products available to him in the past had been too high and that, as the result, appellee would be afforded a “credit” against his future purchases. Appellant’s Statute of Frauds defense would not be viable as against enforcement of the alleged oral “modification.” See generally Dan Gurney Indus. v. Southeastern Wheels, 168 Ga. App. 504, 505 (2) (308 SE2d 637) (1983). Likewise, there was sufficient evidence of consideration for appellant’s alleged agreement to modify the contract price of its previously sold goods. See generally Hans Godo Frabel, Inc. v. Brennan’s of Atlanta, 151 Ga. App. 379 (259 SE2d 649) (1979); Giant Peanut &c. Co. v. Long Mfg. Co., 129 Ga. App. 685, 687 (201 SE2d 26) (1973). Accordingly, the trial court did not err in denying appellant’s motion for a directed verdict as to appellee’s viable non-executory claim based upon the oral “modification” of the terms of the distributorship.

3. For the reasons discussed in Division 1, the trial court erred in failing to grant appellant’s motion for a directed verdict or for judgment n.o.v. as to appellee’s “wrongful termination” claim. For the reasons discussed in Division 2, the trial court correctly denied appellant’s motions for a directed verdict as to appellee’s “modification” claim. However, the verdict returned by the jury does not indicate whether it was based upon the viable or the nonviable claim. Under these circumstances, the denial of the motion for judgment n.o.v. as to appellee’s “wrongful termination” claim is reversed with direction that judgment be entered for appellant and the denial of the motion for judgment n.o.v. as to the “modification” claim is reversed with direction that a new trial as to that claim be held. See OCGA § 9-11-50 (d). “A new trial must be had because it can not be determined from the jury’s verdict on which count it was based.” Perry v. Poss, 86 Ga. App. 169, 174 (1) (71 SE2d 283) (1952). “Since ‘it is impossible to determine whether part or all of the award was [authorized] . . . the case must be reversed . . . and a new trial had’ solely as to the issue of the recovery by appellee . . . based upon the [modification claim]. [Cit.] It is so ordered.” Sanders v. Brown, 178 Ga. App. 447, 453 (5) (343 SE2d 722) (1986).

Decided March 11, 1987

Rehearing denied March 31, 1987

Paul Webb, Jr., William C. Gentry, Philip S. Coe, for appellant. J. Nathan Deal, for appellee.

Judgment reversed with direction.

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