text:
    A90A0869.
    CARDIN et al. v. TELFAIR ACRES OF LOWNDES COUNTY, INC.
    (393 SE2d 731)
   Birdsong, Judge.

Donald and Sylvia Cardin sued Telfair Acres of Lowndes County, Inc., d/b/a Killeen Construction Company (Killeen) for the wrongful death of their 21-year-old son, Donald Todd Cardin. Mr. Cardin died in the collapse of a sewer trench which was not properly shored and sloped in compliance with OSHA regulations. Plaintiffs brought civil action against Killeen as a third-party independent contractor. Killeen defended by saying it was not an independent contractor but only rented an excavator and supplied a worker to Mr. Cardin’s actual employer, Altman Construction Company; and that Altman, by and through Mr. Altman or his brother, supervised and controlled the work done by Killeen’s heavy equipment operator.

On appeal, plaintiffs complain that the trial court erroneously excluded evidence of OSHA regulations which would have proved violations amounting to negligence; and that the trial court erred in failing to grant directed verdict against Killeen on the issue whether Killeen was an independent (third-party) contractor who could be liable in tort. Held:

1. The trial court made no reversible error, either in refusing to direct a verdict finding Killeen to be a third-party independent contractor who could be liable in negligence to the servant of another, or under the circumstances and outcome of this case, in declining to admit evidence of OSHA regulations regarding the shoring and sloping of trenches and excavations.

The jury heard all of the evidence as to the control and supervision of the respective builders, Altman and Killeen, and determined upon a fair and unchallenged charge that Mr. Cardin’s employer, Altman Construction, supervised and controlled the work of Killeen’s employer. The evidence amply supports the conclusions that Altman Construction merely hired Killeen’s heavy equipment and driver at $75 per hour, and that the driver was supervised by Altman’s employees. The driver was told to do whatever Mr. Altman (or Altman’s employee) told him to do; the manner of digging the trench and length of time was in Altman’s control; and, only Altman had a set of the plans for digging the sewer trench. Killeen’s driver was not experienced in digging a sewer line and only performed at Altman’s employees’ direction. Mr. Altman himself testified that the decision not to shore the ditch and have higher sides and a top for the trench box “was a decision that we didn’t think . . . was necessary. And that would have been my decision.”

The jury, having heard all the evidence, returned a verdict that is supported by evidence. We, like the trial judge, are not authorized to reweigh the evidence or to examine the credibility of any of the witnesses, for that would be to usurp the jury’s power and duty. Since the actual verdict was supported by evidence, and on appeal we are required to resolve all conflict in favor of the jury’s work, we cannot say that the evidence, and all reasonable deductions therefrom, demanded a contrary verdict. Therefore, a directed verdict finding Killeen a third-party independent contractor was not authorized. See OCGA § 9-11-50 (a). See also Church’s Fried Chicken v. Lewis, 150 Ga. App. 154 (256 SE2d 916) requiring evidence to be construed in favor of respondent when a motion for directed verdict is made, which would certainly authorize the trial court’s ruling when it was rendered.

2. Since, under the jury’s verdict, Killeen Construction could not be liable for the wrongful death of Mr. Cardin, we cannot find reversible error in the trial court’s exclusion of OSHA rules from evidence in this case. Generally, there is not much room to doubt that civil cause of action will lie for damages carried by a breach of a legal duty of diligence prescribed by a statute or by incorporated regulations enacted thereunder. Sims v. Hoff, 106 Ga. App. 626 (127 SE2d 679). Georgia statutory law gives a cause of action for breach of legal duty under the law requiring a person to perform an act or refrain from doing an act which may injure another. OCGA § 51-1-6. We have no doubt that OSHA regulations by definition constitute as much a duty under the law and are as enforceable as the laws authorizing their creation and promulgation (see 29 USCA § 651 et seq.), and breach of those regulations is a violation of law. They should be admissible not merely as “standards” of performance, but as evidence of legal duty, violation of which may give a cause of action under OCGA § 51-1-6.

The trial court in this case was confronted with the confusion of issues that would arise, to the plaintiff’s detriment, by the fact that OSHA violation citations were issued to Altman, Mr. Cardin’s employer who could not be sued in tort, and not to Killeen, whom plaintiffs did sue. Upon this ground, if Killeen had sought to introduce the evidence so as to open the way to prove its official non-responsibility, plaintiffs would surely object or else suffer proportionately. Moreover, since Killeen was not found in violation of OSHA regulations by OSHA enforcers, the burden upon plaintiffs to prove Killeen was liable for their violation would as easily defeat their case and form grounds for objection against prejudice which could not be overcome.

Decided April 25, 1990.

Samuel W. Oates, Jr., for appellants.

Blackburn, Bright & Edwards, J. Converse Bright, for appellee.

In this case, therefore, the trial court allowed parallel evidence of standards of ordinary diligence among contractors in shoring and sloping trenches and excavations, thus avoiding superfluous OSHA evidence that would have brought to light, to plaintiffs’ detriment, the fact that OSHA officials placed the blame not upon Killeen but upon Mr. Cardin’s employer. In this way, the trial court avoided certain prejudice against the plaintiffs while ensuring that applicable standards of care were placed before the jury. We find no reversible error in this action. Faced with evidence that investigative officials had not found Killeen responsible for the violation of OSHA regulations that might have caused the tragedy, the jury could more easily be prejudiced in favor of a finding that, on the issue of whether it was a third-party independent contractor, Killeen was not liable in tort. The trial court ruled judiciously in excluding evidence that was, after all, cumulative to the ordinary care evidence that was allowed.

We find no cause to reverse the judgment, particularly since the jury without knowing of the “official” action, found Killeen not responsible in tort.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A0443.
    SAARI v. GILLETT COMMUNICATIONS OF ATLANTA, INC.
    (393 SE2d 736)
   Banke, Presiding Judge.

The appellant, acting as administrator of the estate of Bradley Gerard Saari, sued the appellee for defamation, alleging that after the decedent had been found burned to death in his automobile the appellee broadcast a news report falsely describing his death as being “drug-related.” This appeal is from the grant of the appellee broadcaster’s motion for judgment on the pleadings. Held:

There is no common law right of action for defamation of a deceased person. See Restatement (Second) of Torts, § 560 (1977); 2 Harper, James & Gray, The Law of Torts, § 5.3 (1986); 50 AmJur2d, Libel & Slander, § 320 (1970). Since there is no Georgia statute altering the common law in this regard, the trial court did not err in granting the appellee’s motion for judgment on the pleadings. Accord Atlanta Journal Co. v. Farmer, 48 Ga. App. 273 (172 SE 647) (1933) (holding that the alleged defamation of a deceased person creates no cause of action in favor of his relatives). The appellant’s reliance on Johnson v. Bradstreet Co., 87 Ga. 79 (13 SE 250) (1891), is misplaced, as that case merely held that where a living person had brought an action for libel and then died while the action was pending, the action did not abate but survived to his representative. It clearly does not follow from this holding that a person can be libeled after he has died.

Decided April 27, 1990.

Rolader & Rolader, D. W. Rolader, for appellant.

Alston & Bird, Judson Graves, Bryan A. Vroon, for appellee.

Judgment affirmed.

Birdsong and Sognier, JJ., concur. Cooper, J., disqualified.


author: Birdsong, Judge.

text:
    A90A0797.
    TIME INSURANCE COMPANY v. LAMAR.
    (393 SE2d 734)
   Birdsong, Judge.

This is an interlocutory appeal by appellant, Time Insurance Company, of the order of the trial court partially denying appellant’s motion for summary judgment as to the claim of appellee for insurance policy proceeds.

Appellee/plaintiff. brought suit to recover the benefits under a policy of life insurance issued by appellant, insuring the life of her adult son who at the time of the insurance application was over the age of 18 and in prison. Respondent did not have the son’s written consent to obtain such insurance, and the son did not personally submit the insurance application. The evidence is in conflict whether appellee signed her son’s name on the application or whether some third person did so on her behalf. Construing the evidence and all reasonable inferences therefrom in appellee’s favor and against the movant appellant, we accept that the son’s signature was placed on the application by appellee in the presence of and at the direction of the insurance agent. We also find that the most favorable inference, which reasonably can be drawn from the record, including the admissions in judicio contained in appellee’s brief and pleadings, is that the insurance agent was at the time of the application a dual agent of both appellant and appellee. About nineteen months after the policy was issued, the insured died in an automobile accident. Appellant subsequently learned that the insured had not given his consent, written or otherwise, to the issuance of the policy, and appellant refused to pay appellee’s insurance claim, tendering a premium payment refund. Held:

1. Appellant asserts that the trial court erred in partially denying its motion for summary judgment by holding that appellant waived the statutory requirement prohibiting the issuance of a valid life insurance policy without the written consent of the insured, and by failing to recognize that appellant was entitled to judgment as a matter of law even if it could have and did waive the written consent requirement.

The trial court concluded, inter alia, that appellee had an insurable interest in her adult son’s life, within the meaning of OCGA § 33-24-3 (a), and therefore that the policy was not void within the meaning of OCGA § 33-24-3 (e). The court further found in essence that the policy was not void under the provisions of OCGA § 33-24-6 (a), as this statutory provision is not absolute and could be waived, and that OCGA § 33-24-6 (a) did not preclude petitioner from being es-topped by its conduct from contesting the validity of the policy.

With the exception of three statutory “cases” not here relevant, OCGA § 33-24-6 (a) pertinently provides: “No life . . . insurance contract upon an individual . . . shall be made or effectuated unless at the time of the making of the contract the individual insured, being of competent legal capacity to contract, applies for a life or accident and sickness insurance contract or consents in writing to the contract. . . .” (Emphasis supplied.) This code section contains a clear and unambiguous statement of the public policy of this state, and as such, this court has no authority to place a different construction upon the statutory requirements therein contained, but must construe the statute according to its terms. Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (368 SE2d 490).

In Wood v. N. Y. Life Ins. Co., 255 Ga. 300, 304 (336 SE2d 806), the Georgia Supreme Court, responding to a question certified by the United States Court of Appeals for the Eleventh Circuit (Wood v. New York Life Ins. Co., 783 F2d 990 (11th Cir.)), cited with approval and extensively from the order of the district court in the case of Connecticut Gen. Life Ins. Co. v. Wood, 631 FSupp. 9 (1) (N.D. Ga.), as follows: “ ‘In the context of life insurance ... it is against public policy to procure insurance on the life of another without his consent, even though the insurance was procured by one having an insurable interest. [Cits.] . . . Section 33-24-6 (a) [OCGA] is an expression of the public policy of Georgia and is an extension of the common law rule that a valid policy of insurance may not be issued on the life of an adult without the knowledge and consent of the person insured. [Cit.] The reason is to avoid extending to the beneficiary the temptation to hasten by improper means the time when he will receive the benefits of the policy. Insurance contracts which violate this common law rule are against public policy and are void. . . . [Cit.] . . . While the policy at common law dealt with ‘knowledge or consent,’ the Georgia Legislature has been even more restrictive by providing that the insured must either apply for the insurance or consent thereto in writing.’ ” (All but last emphasis supplied.) Compare Wren v. New York Life Ins. Co., 59 FRD 484 (N.D. Ga.), aff'd 493 F2d 839. The Supreme Court then concluded that “the failure of [insured] to sign the policies or consent in writing to their issuance renders the policies void ab initio as against the policy of the law of this state”; and, “an insurance contract that is void ab initio as against public policy is never ‘in force,’ cannot be ratified or affirmed, and is not subject to being enforced by the courts.” (Emphasis supplied.) Wood, supra at 255 Ga. 307; see generally Wood, supra at 783 F2d 990.

The public policy of this state is clear, regardless of the technical existence of an insurable interest under OCGA § 33-24-3, a life insurance contract issued insuring an adult, under circumstances not qualifying for an exception pursuant to OCGA § 33-24-6 (a) (1)-(4), is void ab initio, unless the adult to be insured, being of competent legal capacity to contract, either applied for the insurance personally or consented to it in writing. Accordingly, we find that the policy issued in the case sub judice, purporting to insure appellee’s adult son, was void ab initio and unenforceable by the courts.

2. Consistent with the above, we find the trial court erred in concluding that this public policy statute could be waived pursuant to OCGA § 1-3-7, or that the appellant insurance company is estopped to assert the contract is void.

Further, OCGA § 1-3-7 is not applicable for several reasons. First, the public policy, above discussed, unequivocally was enacted for the safety and protection of the citizens of this state. In this regard, “[protection to person and property is the paramount duty of government and shall be impartial and complete.” Ga. Const. of 1983, Art. I, Sec. I, Par. II. The public policy contained in OCGA § 33-24-6 (a) is one of the basic rights of security enacted for the benefit of the public at large, and of certain insured persons in particular, and thus, it was not a law “established in . . . favor” of insurance companies within the meaning of OCGA § 1-3-7.

Moreover, being enacted for certain basic security purposes, the public policy contained in § 33-24-6 (a) clearly was made for the preservation of public order or good morals and cannot either be “dispensed with or abrogated by any agreement.” OCGA § 1-3-7. Accordingly, appellant insurance company cannot abrogate, waive or renounce the provisions of OCGA § 1-3-7, and cannot otherwise dispense with the public policy provisions of OCGA § 33-24-6 (a), either by words of agreement or by acts or conduct of itself or its agent.

Decided April 27, 1990.

Fortson & White, Harvey S. Gray, Michael D. St. Amand, for appellant.

Friedberg, Stein & Goldstein, Stephen M. Friedberg, Charles I. Pollack, Sexton, Turner & Moody, Lee Sexton, Terry A. Carr, for appellee.

Further, no doctrine of estoppel, equitable or otherwise, can be invoked against the insurance company to allow appellee to enforce the terms of the insurance contract in the case sub judice. If an insurance contract which is void ab initio as against public policy is never “in force” and cannot be ratified or affirmed (Wood, supra at 255 Ga. 307), it is equally clear that it cannot be “effectuated,” contrary to the provisions of OCGA § 33-24-6 (a), merely by attempting to invoke the doctrine of estoppel. Regardless of the legal theory used, such a contract “is not subject to being enforced by the courts.” Wood, supra at 255 Ga. 307. “To reach a contrary conclusion would permit the unreasonable result that [the conduct of an insurance company or its agent] would breathe life into an insurance contract which the General Assembly [for reasons of individual and public protection] intended to have no life, and would frustrate the strong public policy that no contract for life insurance should be made unless the insured applies for or consents in writing to the contract.” Wood, supra 255 Ga. 307-308. This we decline to do.

In view of Divisions 1 and 2 above, we find that the insurance policy in the case sub judice is void and unenforceable. Accordingly, the judgment of the trial court must be reversed, and summary judgment entered for appellant/defendant as to appellee/plaintifFs claim under the insurance contract.

Judgment reversed and case remanded with direction.

Banke, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A90A0379.
    LAND v. CASTEEL.
    (393 SE2d 710)
   Beasley, Judge.

Defendant Land was driving Martin’s vehicle when she was involved in a collision with plaintiff Casteel. In this suit for personal injuries arising out of the collision, interlocutory appeal from the denial of Land’s motion for summary judgment or, in the alternative, motion to dismiss was granted. The foundation for the motions was a claim of staleness because service on Land was perfected approximately a year after complaint filing and more than ten months after statute of limitation expiration,, and reasonable diligence was not shown. After a hearing and consideration of the record, the trial court found that Casteel had exercised reasonable diligence in perfecting service of process upon Land.

“A civil action is commenced by filing a complaint with the court.” OCGA § 9-11-3. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (3) (307 SE2d 134) (1983). See also Brumbalow v. Fritz, 183 Ga. App. 231, 232 (2) (358 SE2d 872) (1987).

If a plaintiff has taken no action to perfect service, a petition to permit belated service should be denied as a matter of law. Gulf Oil Corp. v. Sims, 112 Ga. App. 68, 69 (143 SE2d 776) (1965). But if plaintiff has taken some action, “[t]he trial judge must determine, exercising a legal discretion, whether the plaintiff was diligent in his efforts. [Cits.]” Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977). See also Gulf Oil Corp., supra at 69. Plaintiff has the burden of showing lack of fault. Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978). See also Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988).

The collision occurred March 17, 1986. Martin and Land, who was Martin’s sister-in-law’s friend, had known each other since 1983, were dating and living together at the time of the mishap. They continued to reside together until three to six months thereafter. Casteel filed his complaint against Land and Martin on January 26, 1988. On that day Casteel’s counsel employed a special agent for service of process on the defendants. He served Martin with a copy of the complaint on February 13 and questioned Martin about Land’s location and identity. Martin gave him Land’s telephone number. Land was a lifelong resident of Forsyth County. Her parents resided in the same place in Gumming for seventeen years. Prior to and following her living with Martin, Land resided with her parents.

Due to Martin’s misunderstanding of the significance of the served papers and his failure to deliver them to his insurer, the claim against him went into default. On July 22, Martin and Casteel agreed to open the default. This was granted and Martin’s answer was filed the same day. Land still had not been served. Casteel did not serve any interrogatories on Martin nor inquire of Martin about Land’s whereabouts until Martin was deposed by Casteel on December 7, nearly five months after Martin’s answer was filed and nearly nine months after expiration of the statute of limitation.

During deposition, Martin stated he was employing Land’s brother in his roofing business; Land was living with her parents whom he knew and whose house he had been to; he was still dating Land and had seen her the previous evening. He provided the name of Land’s employer, the nature of her work, her hours, and the location of the business. He was not asked for Land’s home address.

Martin filed a motion for summary judgment on January 17, 1989, which was unopposed by Casteel and granted on April 10. Two days after Martin filed his motion, on January 19, Hardin served Land with the suit at her parents’ home.

“Plaintiff had the burden to investigate and learn where the defendant might be located. Jones v. Brown, 174 Ga. App. 632, 634 (331 SE2d 24) (1985).” Watters v. Classon, 193 Ga. App. 493 (388 SE2d 397) (1989). There is no evidence that defendant Land tried to secret herself so as to avoid service. She was a longtime resident of a small community. In addition to the ordinary and customary means of obtaining information about an individual’s whereabouts, the plaintiff had, in the person of Martin, a wealth of information about Land. Even if, as plaintiff asserts, Martin could not be readily utilized as a resource to locate Land until the claim against him was out of default and he had answered the suit, once this occurred plaintiff still failed to make an expeditious and meaningful effort to locate Land via Martin. Only after Martin made a meritorious motion for judgment in his favor did plaintiff accomplish service on Land as remaining defendant.

Plaintiff Casteel failed as a matter of law to carry his burden of showing lack of fault and reasonable diligence in perfecting service of process on Land. See McNeal v. Able, 135 Ga. App. 702 (218 SE2d 460) (1975). See also Brunswick Hardware Co. v. Bingham, 110 Ga. 526 (35 SE 772) (1900); Elwell v. Haney, 169 Ga. App. 481 (313 SE2d 499) (1984); Forsyth v. Brazil, 169 Ga. App. 438 (313 SE2d 138) (1984); Deal v. Rust Engineering Co., 169 Ga. App. 60 (311 SE2d 499) (1983). It was an abuse of discretion to deny Land judgment as a matter of law on the time-barred claim against her. See Childs v. Catlin, 134 Ga. App. 778, 782 (216 SE2d 360) (1975).

Judgment reversed.

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

Decided April 13, 1990

Rehearing denied April 30, 1990

Fain, Major & Wiley, Gene A. Major, Richard Kopelman, for appellant.

Richard E. Stark, John F. Sweet, for appellee.


author: Deen, Presiding Judge.

text:
    A90A0637.
    ALSTROM v. ALLSTATE ENTERPRISES, INC.
    (394 SE2d 801)
    Decided April 16, 1990
    Rehearing denied April 30, 1990.

      Levy & Adams, D. Marrill Adams, for appellant.

      Hayt, Hayt & Landau, Moshe Shopsin, for appellee.
   Deen, Presiding Judge.

The appellant filed this direct appeal from a denial of his motion to set aside a judgment pursuant to OCGA § 9-11-60 (d). Such an appeal requires the discretionary appeal procedure as provided by OCGA § 5-6-35 (a) (8), and the failure to comply with that procedure requires dismissal of this appeal. Parker v. Bellamy-Lunda-Dawson, 190 Ga. App. 257 (378 SE2d 502) (1989).

Appeal dismissed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A90A0374.
    DUGGAN INSURANCE AGENCY, INC. v. ALTSCHUL.
    (394 SE2d 119)
   Sognier, Judge.

Duggan Insurance Agency, Inc. brought suit against Steve Altschul seeking to recover commissions it had advanced Altschul prior to the termination of his employment at the insurance agency. Altschul counterclaimed for commissions to which he claimed entitlement, basing his claims on theories of quasi contract and quantum meruit. The jury found in favor of Altschul. The trial court denied Duggan Insurance Agency’s motion for new trial and this appeal ensued.

1. In its fourth, fifth, and sixth enumerations, appellant contends the trial court erred by admitting into evidence certain commission statements and a summarized statement, or “recap” sheet, which had been prepared by its employee based on these commission sheets. The record reveals, however, that it was appellee, not appellant, who objected to the admission of the “recap” sheet and asserted before the trial court that the commission statements should not be admitted because they were incomplete. This court will not consider objections not raised by the appellant on the trial of the case. DeBoard v. Schulhofer, 156 Ga. App. 158, 161 (273 SE2d 907) (1980); see also Boatner v. Kandul, 180 Ga. App. 234 (3) (348 SE2d 753) (1986). Regarding the sole objection properly made by appellant, even if we were to assume, arguendo, that the admission of the commission statements was error, the testimony of appellant’s bookkeeper established that the “recap” sheet was compiled based on all the commission statements at issue. Since appellant raised no objection to the admission of the “recap” sheet, the admission of the commission statements presents no reversible error. See generally Carter v. Ray, 70 Ga. App. 419, 428 (3) (28 SE2d 361) (1943).

2. The trial court granted appellee’s motion in limine to exclude testimony proffered by appellant from appellee’s other employers in the insurance business that the service appellee had rendered his customers during his employment with them was not valuable. The trial court excluded this proposed testimony on the basis that appellee’s conduct in transactions involving other employers was not relevant, see OCGA § 24-2-2, and would unduly prejudice the jury. Appellant contends this testimony was relevant and admissible as evidence that it was appellee’s habit and custom not to provide his customers with quality service.

We find no error. First, the evidence proffered by appellant failed to indicate that the services provided by appellee to his other employers, while in the same line of business, were substantially similar to those rendered by appellee to appellant. See Ware v. House, 141 Ga. 410 (1) (81 SE 118) (1914). Second, even had it appeared from the evidence offered and excluded that the services were similar, while “evidence of collateral matters may throw some remote light on the main issues of the cases, it is nevertheless necessary that trial judges be vested with some discretion as to the admissibility of this type of evidence. Otherwise the whole course and progress of the trial could become converted to the determination of collateral issues rather than the main one.” Ludwig v. J. J. Newberry Co., 78 Ga. App. 871, 876 (2) (52 SE2d 485) (1949). The evidence tendered by appellant not establishing in any reasonable degree the facts in controversy, the trial court did not err by excluding this evidence. Id. Since a requested charge need be given only when it is pertinent and adjusted to the facts of the case, see Sapp v. Johnson, 184 Ga. App. 603, 605 (1) (362 SE2d 82) (1987), it follows that the trial court did not err by refusing to give the jury appellant’s request to charge based on this properly excluded evidence.

3. In several enumerations of error appellant contends the verdict was contrary to the evidence or the weight of the evidence adduced at trial. “ ‘ “It is not the responsibility of this court to weigh the evidence in regard to the action brought. Our task is merely to determine if there is sufficient evidence to authorize the trial court’s judgment. If there is any evidence to support the jury’s verdict and the trial court’s judgment, then all conflicts in the evidence will be resolved to favor the verdict.” (Cit.)’ [Cit.]” Gold Kist v. Williams, 174 Ga. App. 849, 850 (1) (332 SE2d 22) (1985). Appellee testified that when he began working for appellant, there was no agreement between them regarding appellee’s entitlement to commissions generated on accounts created or serviced by appellee after appellee left appellant’s employ. However, appellee testified that Leonard Duggan, the president of appellant, told him that appellant “would continue to credit my account,” a statement which appellee testified meant that appellant would continue to pay appellee on his accounts after he left. Appellee testified that he estimated his damages based on the money due on his accounts for a one year time period after his departure. Appellee admitted that no agreement had been reached by the parties as to a specific time period for his commission to continue accruing, but explained that as it was his original efforts which generated the accounts on which appellant continued to receive payment, he considered a one year period to be reasonable. Appellee’s reasoning and the figures he used to arrive at the amount of damages claimed, including the method by which appellee applied the deductions for amounts appellant claimed for servicing appellee’s accounts upon his departure and the amounts appellant had advanced appellee, were detailed for the jury’s consideration. Since appellee’s claim sounded in quasi contract and quantum meruit, we cannot say that there was no evidence from which the jury could have decided that appellee was entitled to the recompense claimed, that the one year period after departure from appellant’s employ was reasonable, and that the amounts to which appellee testified accurately reflected the value of his services over that time period. Accordingly, the trial court did not err by making the verdict the judgment of this court. See generally id.

4. Appellant having presented no argument or citation of authority to support his enumeration nos. 8, 9, 15, and 17, they are deemed abandoned pursuant to Rule 15 (c) (2) of the Rules of the Court of Appeals.

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs in Divisions 1 and 2 and in the judgment.

Decided April 30, 1990.

Divine, Wilkin, Deriso & Raulerson, W. Douglas Divine, for appellant.

Bowles & Bowles, Jesse G. Bowles, for appellee.


text:
    A90A0790.
    COOK v. THE STATE.
    (394 SE2d 121)
   Birdsong, Judge.

Appellant, Keith Cook, appeals his sentence and judgment of conviction of armed robbery.

Ethel Mae LeCount and her friend Bossie Carter were given a ride by appellant and co-defendant, Roberts, to a grocery store where LeCount made certain purchases and cashed her Social Security insurance check receiving approximately $360 in change. Roberts was in the store and watched when the check was cashed. Appellant, who was the driver, was outside and did not witness this transaction. Roberts told LeCount that she owed him $50.

Thereafter, LeCount and Carter wanted to go to Midway and appellant was given $10 for gas to take them there. On the way, LeCount and Roberts argued about the alleged $50 debt. Appellant drove to Midway on a dirt road. LeCount wanted to get out of the car, but neither appellant nor Roberts would let her out. Both appellant and Roberts told LeCount, “You’re not getting out of this car.” Subsequently, appellant stopped the car. LeCount and Carter were ordered out of the car and when they exited, Roberts followed. Roberts had a screwdriver; he knocked Carter down and tried to stab LeCount in the back. Roberts took approximately $386 of LeCount’s money. A screwdriver subsequently was found on the floorboard on the passenger side of appellant’s car.

In an oral pretrial statement to the police, appellant claimed LeCount, Carter and Roberts exited the car after arguing with Roberts about the $50 debt; and, appellant admitted that he drove down the road, turned around and came back and picked up Roberts. Appellant also stated that he thereafter drove Roberts to a post office in Riceboro where Roberts’ wife gave him some money, and that thereafter Roberts gave him $40 of which $20 was for a past debt and $20 was for a ride to IGA to which they thereafter did not go.

Appellant testified that after Roberts exited the car with LeCount and Carter, he left the scene to drive to the railroad tracks where he could turn around. Appellant denied seeing or knowing anything about the robbery, and denied seeing Roberts with a screwdriver. He claimed that he was driving on the dirt road to Midway, rather than taking a main road, because his car had no license tag, and he had no insurance or driver’s license. Held:

1. Appellant asserts that the trial court erred when it failed to charge regarding the law of two equal theories, one of guilt and the other of innocence, as requested pursuant to appellant’s written request for instruction no. 3.

The record reflects that the jury was adequately charged as to the principles of law applicable in this case. The instructions given included: presumption of innocence; burden of proof on the State to prove guilt beyond a reasonable doubt; no burden of proof on defendant to prove his innocence — burden of proof never shifts to defendant; definition of reasonable doubt; duty to acquit if the State fails to prove guilt beyond a reasonable doubt; mere association by defendant with another person involved in a crime, without more, will not authorize the jury to find a person guilty; aiding and abetting; mere presence at scene of crime, without more, will not authorize finding of guilty; witness credibility; circumstantial evidence; and the elements of armed robbery. We are satisfied that these charges in their totality correctly informed the jury as to those circumstances under which the defendant in the case sub judice lawfully could be found guilty and the circumstances under which the jury would have to acquit the defendant. Accordingly, we find no error in refusing to give the requested charge. See generally Putman v. State, 251 Ga. 605 (7) (308 SE2d 145) (a requested instruction in the exact language requested is not grounds for reversal where the charge given substantially covers the same principles).

Further, the equal theories charge can be traced in origin to Davis v. State, 13 Ga. App. 142 (78 SE 866). “ ‘This decision was thoroughly discussed and discredited in Nolen v. State, 124 Ga. App. 593, 594 (184 SE2d 674), and-relegated to a role in cases “dependent solely upon circumstantial evidence.” ’ ” Gabbidon v. State, 184 Ga. App. 475 (3) (361 SE2d 861); accord Williamson v. State, 188 Ga. App. 307 (3) (372 SE2d 685); Wilkerson v. State, 183 Ga. App. 26 (2) (357 SE2d 814). As in Wilkerson, supra, the instant case is not dependent solely upon circumstantial evidence. Thus, the charge, as requested, was not adjusted to the evidence, was inappropriate, and was not applicable in the case sub judice. Williamson, supra; Wilkerson, supra.

2. On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer is shielded by a presumption of innocence. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849); Lance v. State, 191 Ga. App. 701 (2) (382 SE2d 726). Moreover, appellate courts determine evidence sufficiency and do not weigh the evidence or determine witness credibility. Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530).

Decided April 30, 1990.

Merritt & Rose, C. Nathaniel Merritt, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

Review of the transcript in the light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Appellant’s assertion that the trial court erred in denying his motion for a directed verdict of acquittal is equally without merit. The evidence in this case did not demand a verdict of acquittal as a matter of law within the meaning of OCGA § 17-9-1; Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0906.
    GRANT v. THE STATE.
    (393 SE2d 737)
   Birdsong, Judge.

Appellant, General Grant, appeals his sentence and judgment of conviction of driving under the influence. Officer Watts of the Doraville Police Department was on duty on the evening of the incident. He had completed the state-mandated training as a police officer. He observed a car that was failing to maintain lane control, that is, it was not staying in its own lane. It was “weaving into the other lanes”; it was “stopping, going, stopping”; it was “[j]ust swerving all over the road.” Officer Watts was within fifty feet of the vehicle, and he followed it for about one-half mile. Officer Watts stopped the car that appellant was driving. Officer Watts detected “a [very] strong odor of an alcoholic beverage upon [appellant].” Appellant responded in an abusive manner to routine questioning and said that he had had three or four beers. Appellant was asked to step to the rear of the vehicle for a sobriety check. Appellant’s “eyes were red and glassy looking and he kind of slurred his speech.” Because of appellant’s continued abusive behavior, Officer Watts elected not to proceed with the sobriety test and placed appellant under arrest for DUI.

At trial, Officer Watts testified, based on his experience as a police officer and his personal observations of appellant, that in his opinion he knew appellant “was under the influence.” Officer Watts also expressed his opinion that appellant was under the influence to the extent that it made him less safe to drive a car, and that Watts “felt like he shouldn’t be operating a motor vehicle.”

On cross-examination, Watts testified that on the date of the incident he had been a police officer for two years — one year of which he was on the road uncertified; and that on the date of the incident, he was certified and had been so for about six months.

Appellant testified that he had drunk two Bud Lights that evening and some NyQuil, that he was driving the car, and that he was not driving under the influence. Held:

1. Appellant asserts that the judgment of conviction is not supported by the evidence, and argues inter alia that an adequate foundation was not laid for the admission of the officer’s opinion as to appellant’s sobriety.

Appellant did not pose a timely specific objection to the opinion testimony of the officer. Failure to make a timely and specific objection at trial may be treated as waiver on appeal. Bennett v. State, 187 Ga. App. 234 (369 SE2d 552). In the case sub judice “[t]here is nothing for us to review since appellant failed to make his objection at trial on the specific ground he attempts to raise on appeal.” Weaver v. State, 179 Ga. App. 641 (7) (347 SE2d 295).

Moreover, the record reflects that adequate foundation exists for the opinion testimony, and that no error occurred in the admission of such evidence. Compare Chance v. State, 193 Ga. App. 242 (1) (387 SE2d 437) with Potts v. State, 191 Ga. App. 75 (1) (381 SE2d 99) and House v. State, 184 Ga. App. 724 (2) (362 SE2d 429).

On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530); Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). Review of the transcript in a light most favorable to the verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the DUI offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). This enumeration of error is without merit.

2. Appellant asserts that the sentence of the trial court is so confusing and ambiguous that the case should be remanded to state court for resentencing.

It is a general rule that “ ‘[i]f there is any doubt as to the effect of a criminal sentence the defendant will be given the benefit of such doubt. [Cit.] An accused is entitled to rely on the provisions set forth in the sentencing document if he is not informed to the contrary when the sentence is imposed.’ ” Parker v. State, 188 Ga. App. 738, 739 (374 SE2d 230). In determining whether a sentence is ambiguous this court may consider the entire record, including any announcement or explanation of sentence contained in the trial transcript. “However, the written sentence controls over the trial court’s oral pronouncements regarding sentencing.” Davis v. State, 172 Ga. App. 787, 791 (324 SE2d 767).

Decided April 30, 1990.

John D. McCord III, for appellant.

Ralph T. Bowden, Jr., Solicitor, R. Andrew Fernandez, Cliff Howard, Assistant Solicitors, for appellee.

Examining the trial record, we find that an ambiguity exists between the sentence orally announced and that subsequently written by the trial judge. This ambiguity we will resolve by finding the written sentence controlling. Davis, supra. Examining the written sentence announced by the trial judge, we find that it is, on its face, confusing and ambiguous, and that even with the aid of the oral sentence pronouncements made in open court, this ambiguity cannot be resolved with reasonable certainty. “Because we are unsure what the trial court intended to accomplish by this . . . written sentence, we will not attempt a determination of its ‘reasonableness’ at this time.” Davis, supra. Therefore, we will reverse the sentence, in effect causing its vacation, and remand this case to the trial court for appropriate resentencing.

Judgment of conviction affirmed; sentence reversed and case remanded with instruction,

Banke, P. J., and Cooper, J., concur.


text:
    A90A0025.
    HARWOOD v. THE STATE.
    (394 SE2d 109)
   Sognier, Judge.

Frank Eugene Harwood was convicted of child molestation, and he appeals.

1. Appellant contends the trial court erred by admitting the testimony of Dr. Jack Mirabile, a psychologist. Appellant was charged with sexually molesting his daughter, five years old at the time of trial. Appellant acknowledged that he had sexually molested his first daughter by a previous marriage over a ten-year period, ending only when the first daughter, at age fourteen, experienced a false pregnancy. At the time of trial the first daughter was thirty-five years old. Appellant denied having molested the victim, testifying that he had rehabilitated himself in the years prior to the birth of the victim. Appellant had received no treatment of any nature in order to become rehabilitated, but testified he had called upon his own conscience to end his behavior.

In rebuttal, the State called Dr. Mirabile and posited a hypothetical based on the evidence adduced at trial. The State asked Dr. Mirabile his opinion as to the likelihood that the man in the hypothetical could control his incestuous behavior with the present daughter. Dr. Mirabile testified that it was less likely for the hypothetical man to be able to control his impulses than for a man with no history of such sexual impulses. Pointing to the compulsive behavior which made the man commit incestuous acts despite a present knowledge that such behavior was wrong and the fact the man was unable to stop himself from committing the behavior with the first daughter until external constraints were placed on his behavior, Dr. Mirabile opined that when the opportunity presented itself with the present daughter, in the absence of treatment the mere passage of time meant the incestuous behavior was more likely to take place. Dr. Mirabile testified that no one “is simply going to learn how through the passage of simple time to control these types of actions. People with compulsivities, or compulsive behaviors do not just simply get well.”

We find no merit in appellant’s argument that the trial court erred by admitting Dr. Mirabile’s testimony because the mathematical probabilities regarding the self rehabilitation of pedophiles or persons with incestuous behavior have not risen to a level of scientific reliability sufficient to justify its admission at trial. “Expert opinion testimony on even the ultimate issue is admissible where the conclusion of the expert is one beyond the ken of the average layman. [Cits.]” Cohn v. State, 186 Ga. App. 816 (3) (368 SE2d 572) (1988). We find that the recurrence of compulsive behaviors and the likelihood of a person with compulsive behavior rehabilitating himself without treatment are subject matters not within the scope of the ordinary layman’s knowledge and experience, and thus evidence regarding these matters was properly admissible under OCGA § 24-9-67. See Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981).

2. Appellant contends the trial court’s exclusion of Ricky Towe’s testimony deprived appellant of his right to cross-examine witnesses and constituted reversible error. Appellant proffered Towe’s testimony that Sheila Harwood, appellant’s second wife and the mother of the victim, had previously accused Towe, her husband at the time, of sexually molesting her teenage sister. Appellant argues this evidence was relevant because it showed that Sheila Harwood, one of the persons who had accused him of molesting the victim, had falsely accused another of the same crime in the past and then utilized the false accusation to gain an advantage in her divorce from the man accused.

We agree with the trial court that the evidence appellant sought to introduce was irrelevant. “ ‘Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.’ OCGA § 24-2-1.” Robinson v. State, 182 Ga. App. 423, 428 (20) (356 SE2d 55) (1987). The record does not support appellant’s assertion that Sheila Harwood used her alleged accusation against Towe to gain custody over their son in the earlier divorce since Towe testified that there were no allegations during their divorce proceedings about any sexual misconduct on his part. While the evidence established that Harwood was in the process of divorcing appellant, there was no evidence she was attempting to gain any such advantage over appellant in the pending divorce proceedings. Questions of relevancy are generally matters within the court’s discretion, Queen v. State, 182 Ga. App. 794, 796 (2) (357 SE2d 150) (1987), and there was no error in the exclusion of this evidence not relevant to any issue at trial. See generally Wells v. State, 180 Ga. App. 133, 135 (4) (348 SE2d 681) (1986).

Decided April 16, 1990

Rehearing denied May 1, 1990

Whitmer & Law, James H. Whitmer, G. Hammond Law III, for appellant.

C. Andrew Fuller, District Attorney, W. M. Brownell, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs in Division 1 and in the judgment.


text:
    A90A0224.
    CAPES et al. v. BRETZ.
    (393 SE2d 702)
   Birdsong, Judge.

Marie Capes sued Virginia Bretz to recover damages for injuries sustained in an automobile accident. At the time of the accident, Capes was driving her husband’s car which was insured under an automobile insurance policy providing basic personal injury protection (PIP) coverage required by OCGA § 33-34-4 (a) (2). She was also an insured (within the policy definitions of that term) on another automobile insurance policy providing the required basic PIP coverage for her husband’s pickup truck.

Although the jury returned a verdict in her favor for $10,250, Capes appeals because the trial court “wrote down” the verdict by $5,000 since the trial court found that Capes received a $2,500 payment for her medical expenses from the PIP coverage on each policy, and because the trial court refused to permit a chiropractor to testify about his examination of Capes using a technique known as thermography. Held:

1. Although Capes admits she received PIP medical expense payments totalling $5,000 from the two policies, she asserts that Bretz was not entitled to a write down for the full amount because mere receipt of the payments is not controlling. Instead she contends that our Supreme Court’s decision in Cannon v. Lardner, 258 Ga. 332 (368 SE2d 730), only permits a write down under OCGA § 33-34-9 (b) for both payments if she was “eligible” to receive medical expense payments as an insured under both policies’ PIP coverage within the meaning of OCGA § 33-34-2 (5).

“The Cannon court held that the question of whether basic PIP coverage could be stacked under OCGA § 33-34-4 (c) must be determined by reference to the definition of ‘insured’ in OCGA § 33-34-2 (5). Although under that provision the ‘insured’ includes a resident relative of the named insured, the Supreme Court focused on the part of OCGA § 33-34-2 (5) denominating as an insured ‘any resident relative . . . while occupying ... a motor vehicle when such motor vehicle is not similarly insured as required by (OCGA § 33-34-4 (a) (2)).’ ” Thomas v. Ga. American Ins. Co., 193 Ga. App. 260, 261 (387 SE2d 401).

In this case, both motor vehicles had the basic PIP coverage required by OCGA § 33-34-4 (a) (2). Therefore, Capes was not “eligible” to receive the payment for the PIP coverage on the policy on the pickup truck under OCGA § 33-34-2 (5). Cannon v. Lardner, supra.

Although Bretz contends that the two vehicles in this case were not similarly insured within the meaning of OCGA § 33-34-2 (5), the record shows that the policies on both vehicles provided basic PIP coverage as required by § 33-34-4 (a) (2). Accordingly, that argument is not supported by the record.

Further, although the Supreme Court in Cannon noted that Cannon was occupying her vehicle and not one owned by her father, it is clear that the determinative factor in Cannon was whether the vehicles were similarly insured, and not ownership. Cannon v. Lardner, supra.

While perhaps Capes received a windfall from the second payment, Bretz is not entitled to write down what may have been a gratuitous payment from the insurance company any more than she would be entitled to write down other payments from collateral sources. (We note this cause of action arose prior to July 1, 1987, and OCGA § 51-12-1 did not apply. Polito v. Holland, 258 Ga. 54 (365 SE2d 273).) Although, as Bretz suggests, insurance companies do not frequently make payments without a perceived obligation to do so, the insurance company’s motives for making the second payment are not relevant to resolution of this issue. Accordingly, the trial court erred by writing down the verdict by the amount of the payment from the second policy.

2. Capes also contends the trial court erred by excluding the testimony of a chiropractor who examined her using thermography, a process that detects or locates injuries by measuring temperature differences between the parts of the body.

The trial court ruled, as a matter of law, the chiropractor was not competent to testify about “the process of thermography, its application to [Capes] . . . and the results thereof which he observed . . . during his diagnostic work with [Capes]” because thermography is not within the scope of chiropractic authorized in this state. The trial court further ruled that “any portion of [the chiropractor’s testimony] which deals with thermography and its interpretation with respect to [Capes] is incompetent testimony.” The trial court’s reasoning was that chiropractic practices in Georgia have been strictly regulated by the legislature (see, e.g., Foster v. Ga. Bd. of Chiropractic Examiners, 257 Ga. 409, 416-417 (359 SE2d 877); Metoyer v. Woodward, 176 Ga. App. 826, 829 (338 SE2d 286)) and nothing in OCGA §§ 43-9-1 (2) or 43-9-16 authorizes the use of thermography.

Since the record shows that Capes waived any error created by this ruling, we cannot consider this issue. The transcript of the hearing on the motion to exclude the chiropractor’s testimony shows that after the trial court’s ruling, Capes’ attorney immediately asked whether the chiropractor’s deposition could be used if the portions of the testimony concerning thermography were removed and the trial court answered affirmatively. Thereafter, the attorneys for both parties agreed which parts of the deposition could be read to the jury, and, pursuant to the agreement, the jury heard the chiropractor’s deposition, less those portions dealing with his qualifications in thermography and his examination of Capes using that process. Contrary to the trial court’s ruling, however, the jury heard the diagnosis, prognosis, and impairment rating which the chiropractor reached based upon his examination of Capes using thermography.

“No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. Ewing v. Johnston, 175 Ga. App. 760 (334 SE2d 703); J & F Car Care Svc. v. Russell Corp., 166 Ga. App. 888 (305 SE2d 504); Marlowe v. Lanier, 157 Ga. App. 184, 185 (276 SE2d 867).” Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536). Although we recognize that Capes’ attorney sought to preserve the issue by stating that by reading the deposition he did not waive his objection to the ruling and that the trial court acknowledged that statement, merely so stating is not sufficient. A party cannot acquiesce in a ruling, receive the full benefit of the acquiescence, and then complain on appeal when the jury fails to award what the party deems sufficient damages. See Bolden v. Car roll, 239 Ga. 188, 189 (1) (236 SE2d 270). Accordingly, this enumeration of error is without merit.

Decided April 10, 1990

Rehearing denied May 1, 1990.

Vinson, Osborne, Talley & Richardson, J. Glenn Richardson, for appellants.

Downey, Cleveland, Parker & Williams, William S. Allred, for appellee.

Judgment affirmed on condition that the trial court amend the judgment to restore the $2,500 erroneously written off.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0268.
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (394 SE2d 800)
    Decided April 13, 1990
    Rehearing denied May 1, 1990

      Arthur H. Glaser, for appellant.

      Greer, Klosik & Daugherty, Richard G. Greer, Jeffrey F. Leasendale, Thomas D. Harper, Eugene R. Kiser, for appellees.
   Beasley, Judge.

GEICO appeals from the grant of State Farm’s motion for summary judgment in a declaratory judgment action brought by State Farm.

This case is controlled by State Farm &c. Ins. Co. v. Astro Leasing, 194 Ga. App. 515 (390 SE2d 885) (1990). There this court held the trial court correctly dismissed a declaratory judgment action where the only question was whether the insurer was primary or excess because in such instance declaratory judgment will not lie.

It was error to grant the summary judgment and deny GEICO’s motion to dismiss the complaint.

Judgment reversed.

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


text:
    A90A0361.
    WEAVER v. CHESTER et al.
    (393 SE2d 715)
   Banke, Presiding Judge.

The Georgia Department of Human Resources (DHR) sued appellee Ronnie Chester pursuant to the Child Support Recovery Act, OCGA § 19-11-1 et seq., seeking reimbursement for certain public assistance benefits which it had paid to the appellant, Paula A. Weaver, for the support of a minor child alleged to be Chester’s son. Ms. Weaver was added as an additional plaintiff; and the issue of paternity was ultimately tried before a jury, resulting in a determination that Chester was in fact the biological father of the child. Based on this verdict, the trial court entered judgment against him in the amount of the public assistance benefits which had been paid to the appellant for the support of the child and also ordered him to make future child-support payments in the amount of $147.50 per week. However, the court denied a request by Ms. Weaver for an award of back support from Chester for those periods during the child’s life when she had not been receiving public assistance benefits, concluding that “no legal basis” existed for such a claim. The case is before us pursuant to our grant of Ms. Weaver’s application for a discretionary appeal from this latter portion of the court’s judgment. Although the DHR is styled as a co-appellee in the case, it has filed a brief supporting the appellant’s claim for back child support. Held:

There would appear to be no question that the father of a child born out of wedlock is under a legal obligation to support the child, regardless of whether there has been a prior adjudication of paternity. Pursuant to OCGA §§ 19-7-2 and 19-7-24, it is the duty of each parent, whether of a legitimate or an illegitimate child, “to provide for the maintenance, protection, and education” of the child until the child reaches the age of majority, “except to the extent that the duty of one parent is otherwise or further defined by court order.” Implicit in the latter language is the assumption that the parent’s duty to support his or her child exists prior to the entry of any such court order.

It is, of course, well settled that a putative father may be subjected to criminal sanctions for abandonment under OCGA § 19-10-1 without a prior paternity adjudication. See, e.g., Crayton v. State, 166 Ga. App. 544 (305 SE2d 19) (1983). If a father can be imprisoned for having failed to support his child during the period before a judicial determination of paternity was made, there would appear to be no bar to the entry of a civil judgment against him to enforce the same support obligation. Indeed, the Uniform Reciprocal Enforcement of Support Act expressly provides for the recovery of past support expenses from a putative father, as follows: “If the court of the responding state finds a duty of support, it may order the respondent to furnish support and to pay arrearages due under any existing court order or to furnish reimbursement for reasonable expenses actually incurred in the absence of a court order and may subject the property of the respondent to such order.” (Emphasis supplied.) OCGA § 19-11-63. We must agree with the appellant that the Legislature could not have intended to give out-of-state custodians of minor children a greater entitlement to recover child support from Georgia parents than is enjoyed by custodians who are residents of this state.

Chester argues that a putative father’s obligation to support his illegitimate child is expressly conditioned by the following emphasized language from the Child Support Recovery Act on a prior adjudication of paternity: “ Whenever a man has been adjudicated by a court of competent jurisdiction as the father of a child born out of wedlock ... he shall be legally liable for the support of the child in the same manner as he would owe the duty of support if the child were his legitimate child.” OCGA § 19-11-14. (Emphasis supplied.) See also OCGA § 19-11-43 (6). However, as we interpret this language it is not the father’s obligation to support the child which is made contingent upon an adjudication of paternity but simply the right to enforce that obligation through legal process. “The duty of the father of an illegitimate child to support such child is not created by the judicial determination of paternity. That determination is merely a procedural prerequisite to the enforcement of the duty by legal action. The father’s duty to support his child arises when the child is born.” Tidwell v. Booker, 290 N.C. 98, 116 (225 SE2d 816, 827) (1976).

In concluding that OCGA § 19-11-14 permits the recovery of back child support from a father upon an adjudication of his paternity, we are in harmony with the courts of several other jurisdictions which have been called upon to construe similar statutory provisions. For example, the North Carolina Court of Appeals, relying on the above-quoted language from the North Carolina Supreme Court’s decision in Tidwell v. Booker, supra, recently held that the mother of an illegitimate child was entitled to recover back child support from a putative father under a statute specifying that the support obligations of the father of an illegitimate child may be determined and enforced “[u]pon and after the establishment of paternity. . . .” Napowsa v. Langston, 381 SE2d 882 (N.C. App. 1989). Similarly, in Adams v. Stotts, 667 SW2d 798 (Tex. App. 1983), the Texas Court of Appeals allowed a recovery of back support upon an adjudication of paternity under a statute providing that “no alleged father denying paternity may be required to make any payment of the support of the child until paternity is established.” And in Nettles v. Beckley, 32 Wash. App. 606 (648 P2d 508) (1982), the Washington Court of Appeals affirmed an award of back support in a paternity proceeding under a statute providing for the recovery of support “[i]f existence of the father and child relationship . . . has been . . . adjudicated. . . .” See also Kathy L. B. v. Patrick J. B., 371 SE2d 583 (W.Va. 1988); Baugh v. Carver, 3 Ohio App. 3d 139 (444 NE2d 58) (1981).

Decided April 17, 1990

Rehearing denied May 1, 1990

Christina Petrig, Wendy J. Glasbrenner, Patricia D. Barron, Vicky O. Kimbrel, Phyllis J. Holmen, for appellant.

David E. Ralston, for appellees.

Based on the foregoing, we conclude that the trial court erred in the present case in refusing to award back support to the appellant for those periods prior to the adjudication of his paternity when she had been supporting the child without the benefit of public assistance payments. However, we cannot agree with the appellant’s contention that the amount of the back support to which she is entitled is to be measured by the father’s ability to pay during the periods in question rather than by the expenses actually incurred by her on the child’s behalf. OCGA § 19-6-13 provides that “[u]ntil otherwise provided voluntarily or by decree or order of a court, [parents are] liable to third persons for the board and support and for all necessaries furnished to or for [their] children.” It has been held that this Code section is applicable between parents who are not married, although not between parents who are married. See Smith v. Smith, 136 Ga. 531 (71 SE 869) (1911); Brown v. Brown, 132 Ga. 712 (64 SE 1092) (1909). In the absence of any legislative enactment expanding this liability for “necessaries” to include liability for items which were not actually furnished to the child but which would have been furnished had the child’s custodian been blessed with greater financial resources, we can conceive of no legal basis for awarding the appellant in this case back support in excess of the amounts she actually expended on the child’s behalf.

The judgment of the trial court is reversed with direction that, upon the return of the case to the lower court, Chester’s obligation to the appellant for back support be adjudicated in accordance with the standards set forth in this opinion.

Judgment reversed and case remanded with direction.

Birdsong and Cooper, JJ., concur.


text:
    A90A0013, A90A0014.
    RYBOS v. ST. MARY’S HOSPITAL et al. (two cases).
    (393 SE2d 739)
   Sognier, Judge.

Karen Nancy Rybos brought suit against St. Mary’s Hospital for recovery of accrued employee benefits she alleged were due but denied to her after she was wrongfully discharged. She also asserted claims against William Chrisohon and Wayne Kent for wrongful procurement of her discharge. Rybos appeals in Case No. A90A0013 from the trial court’s order granting summary judgment to the defendants and in Case No. A90A0014 from the judgment entered thereon.

Appellant was hired in June 1985 as director of the outpatient surgical center at appellee St. Mary’s Hospital (hereinafter the “Hospital”). The parties agree that she was an at will employee and was subject to the Hospital’s personnel policies as set forth in the employee handbook. While employed by the Hospital, appellant participated in noncontributory retirement, income protection, and group health and life insurance plans and was entitled to certain sick and vacation leave benefits. Appellant was discharged by the Hospital on October 7, 1987 for violation of a personnel rule proscribing discussion of confidential information about an employee with unauthorized persons. Appellee Kent, the Hospital personnel director, informed appellee Chrisohon, the senior assistant administrator and appellant’s immediate supervisor, of the unauthorized disclosure. Chrisohon then terminated appellant’s employment pursuant to personnel policy 4.4.3 (13), which permits dismissal without notice for violation of the nondisclosure rule. Relying on personnel policy 4.4.3, which provides that “[ejmployees who are dismissed without notice forfeit all accrued benefits,” and policy 6.1.5, which states that “[e]mployees terminated involuntarily . . . forfeit any and all vacation benefits earned,” the Hospital refused to compensate appellant for her accrued vacation and sick leave benefits.

1. In Case No. A90A0014, appellant contends summary judgment was erroneously granted to appellees Kent and Chrisohon on the wrongful procurement of discharge claim because a material fact question remains regarding whether appellee Chrisohon had authority to discharge her without consulting his superior. See Ga. Power Co. v. Busbin, 242 Ga. 612, 613-614 (2) (250 SE2d 442) (1978).

E. J. Fechtel, Jr., the Hospital’s administrator, testified by affidavit that appellee Chrisohon was appellant’s immediate superior, and that Chrisohon’s written job description as senior assistant administrator included the duty to “ ‘[r]ecruit, select, manage, terminate, or discipline department heads and other personnel assigned to him.’ ” Although appellant testified by deposition that because on prior occasions appellee Chrisohon had obtained Fechtel’s approval before terminating an employee, she assumed only Fechtel had the authority to fire her, “ ‘[i]n passing upon a motion for summary judgment, a finding of fact which may be inferred . . . but is not demanded by circumstantial evidence, has no probative value against positive and unrebutted evidence that no such facts as sought to be inferred do exist. (Cit.)’ [Cit.]” Southern Intermodal v. Smith &c. Co., 190 Ga. App. 584, 587 (379 SE2d 612) (1989). Since the positive and direct evidence shows appellee Chrisohon had the absolute right to discharge appellant without consulting his superior, he and appellee Kent could not be liable to appellant for wrongful procurement of discharge, regardless of their motives, Busbin, supra, and accordingly the trial court properly granted summary judgment to them on the wrongful procurement of discharge claim.

Decided May 1, 1990.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellant.

Blasingame, Burch, Garrard & Bryant, J. Ralph Beaird, Richard L. Brittain, Michael J. Bowers, Attorney General, for appellees.

2. Appellant contends the personnel policies providing for forfeiture of accrued benefits constitute an unenforceable penalty as set forth in Southeastern Land Fund v. Real Estate World, 237 Ga. 227 (227 SE2d 340) (1976), and as a result the trial court erred by granting summary judgment to the Hospital on appellant’s claim for recovery of accrued vacation and sick leave benefits. We do not agree. First, we note that this court has upheld benefits forfeiture provisions under virtually identical circumstances. Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125-127 (2) (329 SE2d 208) (1985); see Runyan v. Economics Lab., 147 Ga. App. 53 (1-3) (248 SE2d 44) (1978). Second, we find the liquidated damages analysis of Southeastern Land inapplicable here because the clauses at issue do not purport to establish a stipulated sum to be paid by an employee as liquidated damages for breach of the employment contract; instead, the policies simply provide that employees who are terminated are not entitled to certain benefits. See Royal Crown Co. v. McMahon, 183 Ga. App. 543, 545-546 (2) (359 SE2d 379) (1987). We find these provisions enforceable and accordingly affirm the trial court’s judgment.

3. The appeal in Case No. A90A0013 from the order granting summary judgment to appellees is dismissed as moot.

Judgment affirmed in Case No. A90A0014. Appeal dismissed in Case No. A90A0013.

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


author: Pope, Judge.

text:
    A90A0034.
    WILLIAMS v. THE STATE.
    (394 SE2d 123)
   Pope, Judge.

Appellant Leon Williams was indicted, tried and convicted of three counts of aggravated child molestation and one count each of child molestation, statutory rape, incest and aggravated sodomy, for sexually abusing his thirteen- and fourteen-year-old daughters. He was sentenced to life imprisonment plus 150 years to be served consecutively, and appeals.

The State introduced evidence showing that on November 20, 1987, I. W., the younger victim, reported to a school principal that defendant had been fondling her and had also been having sexual intercourse for some time with her older sister, N. W. The principal immediately notified the State Department of Family & Children’s Services, which sent Francis McKnight to interview I. W. Using anatomically correct dolls, I. W. revealed to McKnight that appellant had sexually fondled her since she was five years old, and that she had seen her father have sexual intercourse with N. W. on several occasions. When McKnight went to N. W.’s school to interview her, she told him that defendant had fondled her in the breast and vaginal area since she was five years old, and from the time she was ten had forced her to have sexual intercourse once or twice a week. N. W. said defendant had threatened to kill her if she told anyone, but that she had told her mother on two occasions and her mother did nothing to stop the abuse. N. W. also told McKnight that she had observed defendant having anal intercourse with her older brother, J. W.

McKnight reported this information to the Walker County Sheriffs Department and they obtained a court order allowing DFACS to take the girls into temporary custody. The girls were then taken to the Rossville Police Department to be interviewed, where they gave a detailed account of the years of sexual abuse. N. W. told the authorities that defendant would call her into his bedroom or the bathroom and force her to perform various sexual acts, and that he would beat her if she did not comply with his demands. She also knew that defendant had had sexual relations with her brother, J. W., and her older step-sister, C. C. Both she and C. C. had complained to their mother, who would not “say anything or do anything about it.” N. W. further stated that her father’s abuse had become so unbearable that she dreaded going home from school every day, and that the last incident had occurred on November 18, 1987. I. W. told a detective that she had been abused by defendant numerous times while living in Walker County, usually in defendant’s bedroom or the bathroom while her mother was away; that defendant had fondled her and forced her to have oral sex and masturbate him; that these incidents were becoming more frequent and the last one had occurred about three weeks ago. J. W., who was then twenty-one, reported to the investigators that defendant had sexually molested him from about age seven to eighteen by sodomizing him both orally and anally. He also knew that C. C. had been sexually abused and that their mother was aware of what was going on but did nothing about it. He stated that he was glad that “it’s all out [and] maybe something can happen now.”

The two victims were examined by a physician who found that the condition of N. W.’s vagina and her rectal tone were consistent with her statement that she had been engaged in regular vaginal and anal intercourse over a period of years. At a deprivation hearing in juvenile court both girls testified under oath, again recounting the sexual abuse forced upon them by defendant. The juvenile court judge released the girls into their mother’s custody following this hearing, defendant having been charged and placed in jail. The girls went to California with their mother where they stayed with their grandmother, and were also reunited with their older step-sister, C. C., who had just returned with her husband from Germany.

C. C. testified at trial that when she learned of the charges against defendant, she told her mother that she wanted to go to Georgia to testify against him, but that her mother became enraged and a week later she left with the victims. Before the younger girls left, C. C. was able to talk to them alone. N. W. did not say much, but I. W. said she had told someone at school about what was happening because N. W. had been crying all night; and that their mother had warned N. W. that they might be taken away from her if they testified against their father. Just before the start of the trial, J. W. called C. C. and told her that if she testified she would be the only one saying the two younger girls had been sexually abused because he and the two victims were going to deny it. He further stated that he and C. C. should have done something about the abuse earlier when it happened to them and “cussed” her out, telling her to “just leave it alone.”

The two victims and their mother apparently settled in the Chattanooga, Tennessee, area and, prior to the May 1988 term of court, the District Attorney’s office in LaFayette, Georgia, received documents from the victims identified as “affidavits,” declaring that their previous allegations of defendant’s sexual abuse were untrue and requesting that the charges pending against him be dismissed. On arraignment day in mid-May, the victims and their mother appeared in the office of an investigator for the District Attorney and gave him written statements to the effect that they had made up the allegations of sexual abuse in order to be sent to California.

The prosecution was not dismissed, and on May 27, 1988, defendant filed a demand for trial. However, neither the victims nor their mother could be found during the May or November terms of court and, because it appeared that they would be unavailable for trial, the State moved to allow the use of the transcript of the . victims’ testimony in the juvenile court deprivation hearing. After a hearing was held on this motion on January 27,1989, the trial court ruled that the transcript would be admissible if the victims were unavailable for trial. The trial was set for February 23, 1989, on February 16 the State learned the possible whereabouts of the victims in Chicago, Illinois, and began the statutory process of issuing summons for witnesses outside the state. On February 20, 1989, the jury was selected; on February 21 the two victims and their mother were subpoenaed in Chicago and brought to LaFayette, Georgia, arriving at about 10:30 p.m.

At trial, on February 24,1. W. and N. W. testified that they had made up the allegations of sexual abuse against defendant in order to get to go to California, although they did not explain how this would have enabled them to do so. J. W. testified that he had previously said he was sexually abused to protect the victims and that what defendant had done to him was nobody’s business. C. C. testified that on the morning of February 23 before the trial commenced she talked with the mother and the two victims, and although the mother did most of the talking, the two young girls did indicate that they wanted the charges against defendant dropped because they were afraid they would be taken away from their mother and separated. She described in appalling detail the years of sexual abuse she had endured with defendant, and that he had also forced her to have sexual relations with J. W., on occasion participating with them. One time she caught J. W. having anal intercourse with N. W. and stopped them. Although she had complained to her mother nothing was done. However, when she became pregnant by either defendant or J. W., her mother had arranged for her to have an abortion. Defendant denied that he committed any sexual abuse on any of the children.

1. In his first enumeration of error, defendant contends that the trial court erred in refusing to grant his motion for a continuance when the State intentionally concealed the whereabouts of the victims from him in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and similar provisions of the Georgia Constitution. He argues that his inability to interview these witnesses prior to trial deprived him of his fundamental right to plan and present a defense because his trial strategy had been based upon the proposition that the case would be tried on the juvenile court proceedings and hearsay evidence.

Contrary to defendant’s assertions, it appears that if anyone concealed the whereabouts of the victims, it was defendant and his wife, not the State. There is absolutely nothing to indicate that the State improperly misled defense counsel into believing that the girls would not appear at trial. Indeed, the trial judge noted that if defendant had known that the State had located these witnesses, “there was a good chance that that information may have been imparted to them before they were served of this notice under the statute and they may not have been [in court at all].” Furthermore, only one of defendant’s two attorneys had not previously interviewed the victims and he was provided that opportunity on the morning before the trial began. The other lawyer had been representing defendant for more than a year since the deprivation hearing was held and not only had he questioned the victims then, but also he had interviewed them several times after that. In any event, since the victims’ testimony was more favorable to defendant than to the State, he has not shown any harm or prejudice in the denial of a continuance so as to constitute an abuse of discretion. “The grant or denial of a continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. [Cits.] [Defendant] has not shown how additional time would have benefited him or how the lack of time harmed him. . . . [W]e find no error in the trial court’s denial of the motion for continuance. [Cit.]” Davis v. State, 190 Ga. App. 178, 179 (378 SE2d 519) (1989).

2. During the examination of the DFACS investigator Francis McKnight, the prosecutor sought to elicit information in regard to the custody disposition of the victims after the deprivation hearing in juvenile court by asking him what the result of the hearing was, to which McKnight replied: “the judge made a decision that the girls had been sexually molested.” Defendant’s motion for mistrial was denied and he cites this as error, contending that allowing the jury to base their verdict upon the decision of another tribunal was a violation of his constitutional rights. While denying a mistrial, the trial court inquired if defendant desired any curative instructions. Although defense counsel argued that curative instructions would be to no avail, he did request the court to instruct the jury to disregard McKnight’s statement. The trial court did so and further told the jury that McKnight’s statement was not to enter into their verdict whatsoever. When the judge also asked the jurors if any of them could not comply with his instructions none responded, and defendant did not thereafter renew his motion for mistrial or request additional instructions. “ ‘Since the rule requiring renewal of a motion for a mistrial following curative instructions has been retained in criminal cases, the issue has not been preserved for appellate review. (Cits.)’ [Cit.]” Williamson v. State, 188 Ga. App. 307, 308 (2) (372 SE2d 685) (1988).

3. Defendant contends that the trial court erred in refusing to merge certain offenses pursuant to OCGA § 16-1-7: (1) the charge of statutory rape with the incest charge; (2) the charge of child molestation with that of aggravated child molestation; and (3) the charges of aggravated sodomy and aggravated child molestation. Defendant was indicted for the statutory rape of N. W. on or about April 14, 1986, and for incestual intercourse with N. W. on or about November 16, 1987. He was accused of the molestation of I. W. by placing his hand onto and about her vagina on or about October 30, 1987, and the aggravated child molestation of I. W. by placing his penis in her mouth on or about the same date. He was charged with the aggravated molestation of N. W. by placing his penis in her mouth on or about April 14, 1986, and the aggravated sodomy of N. W. by performing a sexual act involving his sex organs and the mouth of N. W.

Decided May 1, 1990.

W. Davis Hentz, for appellant.

These multiple offenses did not merge as a matter of fact or law. “Each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. Under the circumstances of this case, the same conduct is not being punished twice nor is one act included in the other so as to proscribe the separate conviction and punishment for each act.” (Citations and punctuation omitted.) Jimmerson v. State, 190 Ga. App. 759, 762 (4) (380 SE2d 65) (1989). Accord Stander v. State, 193 Ga. App. 212 (2) (387 SE2d 422) (1989); Garrett v. State, 188 Ga. App. 176 (3) (372 SE2d 506) (1988); Kirby v. State, 187 Ga. App. 88 (2) (369 SE2d 274) (1988).

4. Defendant’s assertion that his motion for directed verdict of acquittal for the offense of aggravated child molestation of I. W. should have been granted is likewise without merit. “ ‘(A) motion for directed verdict in a criminal (case) should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.’ [Cit.] 'If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.’ [Cit.]” Lance v. State, 191 Ga. App. 701, 703-704 (3) (382 SE2d 726) (1989). There was testimony that on many occasions I. W. had been forced to commit oral sex, from which it can only reasonably be deduced that defendant forced her to place her mouth on his penis as charged in the indictment for aggravated child molestation. We find no grounds for reversal.

Judgment affirmed.

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

Ralph L. Van Pelt, Jr., District Attorney, for appellee.


text:
    A90A0141.
    SMITH v. INTEGON LIFE INSURANCE CORPORATION.
    (393 SE2d 741)
   Pope, Judge.

In July of 1985 plaintiff Bobby L. Smith and his wife Mary, now deceased, signed an application for mortgage life insurance with defendant Integon Life Insurance Corporation. An employee of the bank which extended the mortgage loan testified by deposition that she filled out the application to reflect the information Mrs. Smith provided her. In response to a question asking whether she had “ever had high blood pressure, cancer, a tumor, diabetes, any heart, lung, nervous, intestinal, kidney or liver disorder” (emphasis supplied), Mrs. Smith indicated she had high blood pressure and took medication to keep it regulated. In response to a question asking whether, during the last three years, she had been hospitalized or consulted a physician for any reason, Mrs. Smith disclosed only that she had been hospitalized in October 1984, for bronchial pneumonia. Mrs. Smith died in October of 1985 from a lung disorder known as chronic obstructive pulmonary disease. Defendant refused to pay death benefits under the policy pursuant to OCGA § 33-24-7 (b), on the ground that the application contained material misrepresentations or omissions of fact. The trial court granted summary judgment to defendant and plaintiff appeals.

The record shows Mrs. Smith had been hospitalized in March 1985, just four months prior to her signing the application, for treatment of chronic obstructive pulmonary disease. During the three years prior to the date of the application she had been treated on numerous occasions by a physician for respiratory problems including asthma and bronchitis. An officer of the defendant insurance company, who is a medical doctor, testified by deposition that the defendant would have declined coverage if the undisclosed information about Mrs. Smith’s medical history had been disclosed on the application.

“Ordinarily it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court.” United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 236 (248 SE2d 635) (1978). See also Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga. App. 704 (141 SE 498) (1928). We have examined the record and, contrary to plaintiff’s assertions, find no conflicting evidence sufficient to create an issue for the jury in this case. Where the evidence shows that the insurer would not have issued the policy if it had been aware of the applicant’s extensive history of medical problems, the evidence demands a finding that the omissions or misrepresentations of the applicant were material to the acceptance of the risk. Oakes v. Blue Cross &c. of Columbus, 170 Ga. App. 335 (1) (317 SE2d 315) (1984). Because the evidence demands a finding that misrepresentations were made on the application of insurance which were material as a matter of law, recovery under the policy is precluded. See Jefferson Standard Life Ins. Co. v. Bridges, 147 Ga. App. 5 (248 SE2d 5) (1978).

Decided May 1, 1990.

Bolton & Park, Arthur K. Bolton, Edd D. Wheeler, for appellant.

Beck, Owen & Murray, James R. Fortune, Jr., Evans & Evans, Larry K. Evans, for appellee.

The record shows that plaintiff and his deceased wife had negotiated four separate loans with the bank which extended the mortgage loan at issue in this case, dating back to 1971. At oral argument plaintiff’s attorney argued that on previous occasions the bank had offered the couple credit life insurance, which is extended automatically upon payment of the premium and does not require the submission of information on the debtor’s health. Plaintiff argued that the bank, as agent for defendant insurance company, negligently failed to obtain credit life insurance on behalf of the decedent instead of mortgage life insurance, for which coverage may be denied for health reasons. However, the officer of defendant insurance company testified that credit life insurance is usually issued for smaller loans such as automobile loans but that mortgage life insurance is usually issued for mortgage loans. We note that the earlier loan for which plaintiff purchased credit life insurance, while it apparently involved a second mortgage, was for an amount less than one-third of the amount financed by the loan which forms the basis for this complaint. No evidence was presented that plaintiff would have been eligible for a credit life insurance policy on this mortgage loan. Thus, the record does not create an issue of negligence in procuring the insurance.

Judgment affirmed.

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


text:
    A90A0243.
    FIRST FEDERAL SAVINGS BANK OF BRUNSWICK v. FRETTHOLD et al.
    (394 SE2d 128)
   Sognier, Judge.

After two materials suppliers filed lien foreclosure suits against Norman and Ruth Fretthold to recover sums due for materials supplied for the construction of the Frettholds’ residence, the Frettholds brought a third-party complaint against First Federal Savings Bank of Brunswick, their construction lender, alleging negligence in the bank’s disbursement of the construction funds without first obtaining affidavits of payment or partial lien waivers from the general contractor. The materials suppliers received summary judgments totalling $30,754.88, and the third-party claim was tried to a jury. The bank appeals from the judgment entered on the jury verdict awarding $16,814.31 to the Frettholds.

In May 1986, appellees entered into a contract with Bobby Crews d/b/a Gull Development for the construction of a house in McIntosh County. Appellees funded $52,000 of the total construction price and financed the balance of $40,000 with a construction loan from appellant secured by a deed to secure debt. The loan agreement, which was executed by appellant, appellees, and Crews, provided, inter alia, that appellees would deposit their portion of the construction funds with appellant and then authorize periodic disbursements by appellant to Crews from the construction account, which included the funds furnished by appellees and the money advanced by appellant pursuant to the loan agreement. The loan agreement authorized appellant to inspect the progress of the work and to obtain paid and receipted labor and materials bills from Crews before making disbursements, and provided that appellees “[a]ccept the sole responsibility for the selection of [the] Contractor . . . and for the purchase and payment of materials, supplies and equipment to be used in the construction.” The loan agreement further provided that appellees agreed to complete the project free of liens, and that appellant “SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY BILLS INCURRED ON ACCOUNT OF SAID CONSTRUCTION.”

After the first payment to Crews, appellees asked appellant to make all further disbursements directly to Crews without first obtaining a signed disbursement order from appellees because they planned to be out of town during much of the construction period and did not want their absences to hold up the project. As a result, a clause was added to the loan agreement providing that appellant was to “[m]ake checks payable to Gull Development,” and appellant processed the subsequent pay requests by inspecting the job site to ensure the work for which Crews sought payment had been performed and then disbursing funds from the construction account to Crews. The house was almost complete when appellees learned from a materials supplier that he had not been paid by Crews, who filed a bankruptcy petition a few days later. Upon investigation, appellant discovered the two liens sub judice had just been filed.

At trial, appellee Norman Fretthold, who acknowledged that he had never before had a construction loan and did not read the loan agreement with appellant, testified that he never checked to see whether Crews was paying the subcontractors and suppliers because his “experience with a bank has always been that they would take the proper precautions when they loaned the money out and when they paid it out.” Greg Strickland, appellant’s assistant vice-president, testified that appellant did not determine whether the subcontractors and suppliers had been paid before disbursing funds to Crews because Crews had a good reputation as a reliable contractor and because appellant’s interest in the property was secured by the deed to secure debt. In response to special interrogatories, the jury found that appellant was appellees’ agent for disbursement of construction funds and that appellant was negligent in its discharge of that obligation.

Appellant contends the trial court should have granted its motion for directed verdict made on the ground that appellant had no duty to ensure the subcontractors and materials suppliers were paid before disbursing funds to Crews. We agree and reverse. Although the relationship between the parties was created by contract, appellees’ claim alleged negligence rather than breach of the loan agreement. A tort is the unlawful violation of a private right other than a breach of contract, OCGA § 51-1-1, but “ ‘private duties may arise from statute, or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action [in tort].’ [Cits.] ... In such a case the liability arises out of the breach of duty incident to and created by the contract, but is only dependent upon the contract to the extent necessary to raise the duty. [Cits.] . . . [This principle] has been applied to contractual relations between principal and agent.... [Cits.]” Mauldin v. Sheffer, 113 Ga. App. 874, 878-879 (150 SE2d 150) (1966).

Here, the loan agreement, as amended, obligated appellant to disburse funds from the construction amount to Crews by checks payable directly to him. Assuming, without deciding, that this contractual obligation gave rise to an agency relationship, recovery in tort required proof of not merely a breach of a contract term, but breach of a duty imposed by law — i.e., “either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of [our] appellate courts.” Id. at 880. No applicable statutory duty is claimed; therefore, we must determine whether there exists a common law principle that could be interpreted to require appellant to obtain lien waivers or payment affidavits or otherwise ensure that the suppliers were paid before disbursing funds to Crews.

In Butts v. Atlanta Fed. Savings &c. Assn., 152 Ga. App. 40, 44 (262 SE2d 230) (1979), recognizing that “[t]he primary duty of a federal savings and loan association is to protect the assets of its members and depositors; it does not insure the assets of its borrowers [cit.],” we held that a construction lender has no duty to protect the homeowners from construction defects through its inspections of the progress of the work, and that any such inspections are made for the benefit of the lender. Id. at 42-43; see Harden v. Akridge, 193 Ga. App. 736 (389 SE2d 6) (1989). We have recognized an exception to this general rule only “when the lender’s financing activity extends beyond that of a conventional construction lender and engages [the lender] in activities actually connected to construction of the property. [Cit.]” Id. at 736. In Jordan v. Atlanta Neighborhood Housing Svc., 171 Ga. App. 467-468 (320 SE2d 215) (1984), we found such an exception and accordingly reversed a summary judgment entered in favor of the lender where the evidence showed the lender had prepared the documents defining the scope of work, solicited the bids, monitored the progress of the work, and assured the homeowner that the contractor’s deficiencies would be corrected once payment was made.

We find no basis for such an exception in the case at bar. Appellant’s activities were commensurate with those of a conventional construction lender. Although appellant did agree to accommodate appellees by making payments directly to Crews, there is no evidence appellees surrendered their contractual obligation to make certain that all labor and materials bills were paid and to keep the property free from liens. Cf. Henderson v. Mitchell Engineering Co., 158 Ga. App. 306, 307-308 (1) (279 SE2d 750) (1981). (The purpose of lien laws is to make owner’s property liable for payment for improvements thereon, and thus owner is responsible for ensuring that payments made to contractor are “properly disbursed by the contractor to those having valid claims for labor and materials.”) Given that the lender’s primary role is to protect its interest in the secured property, we find no basis for imposing upon the lender the duties of the owner and general contractor to pay for labor and materials supplied to the project. Absent clear evidence that the lender either expressly agreed to undertake this obligation or actively participated in the monitoring of payments made during the construction, the creation of such a burden would discourage construction lending. See Harden, supra at 737. Appellant’s obligation to exercise diligence and good faith in the disbursement of construction funds to Crews required that payment be made in a timely manner and for work actually performed, but did not compel appellant to undertake the duties of Crews and appellees, and certainly did not authorize appellees to abdicate their responsibility for ensuring payments to subcontractors and suppliers. See generally Butts, supra.

While issues of negligence and agency are ordinarily for the trier of fact, the question of duty is for the court, Adler’s Package Shop v. Parker, 190 Ga. App. 68, 72 (1) (378 SE2d 323) (1989), and if the court finds no duty was owed, no material question of fact remains for determination by the jury. Id. Since we have found no duty of appellant to ensure that suppliers were paid before disbursing funds to Crews, we hold the trial court erred by denying appellant’s motion for directed verdict.

Decided May 1, 1990.

Brannen, Searcy & Smith, Leesa A. Bohler, Wayne L. Durden, for appellant.

Raymond A. Majors, Jr., Thomas J. Lee, Neil L. Heimanson, for appellees.

Carlton M. Henson, amicus curiae.

Judgment reversed.

McMurray, P. J., and Birdsong, J., concur. Carley, C. J., disqualified.