text:
    77516.
    HOLLAND v. THE STATE.
    (378 SE2d 513)
   Pope, Judge.

Defendant Steve Randy Holland was convicted of burglarizing two houses on Sand Mountain in Dade County and appeals.

1. Defendant objects to the admissibility of testimony by three different witnesses concerning statements they heard him make. According to one who witnessed defendant’s arrest, while defendant was being held in the back of the patrol car at the scene of the crime he exhibited belligerent behavior and, upon hearing statements made by the victim, hollered out: “[D]on’t pay any attention to the old woman, she’s lying.” Defendant objected to the testimony on the ground the substance of defendant’s statement was not furnished to his counsel prior to trial.in response to his demand for such statements pursuant to OCGA § 17-7-210. Said code section “protects an accused from the introduction at trial of incriminating or inculpatory statements made by him while in custody unless he has been furnished with written copies of these statements prior to trial.” Wallin v. State, 248 Ga. 29, 32 (279 SE2d 687) (1981). We find no error in admitting this testimony concerning defendant’s statement, even though it was not furnished to defendant’s counsel, because it was not inculpatory. See Ledesma v. State, 251 Ga. 487 (5) (306 SE2d 629) (1983), cert. denied 464 U. S. 1069 (1984); Hilburn v. State, 166 Ga. App. 357 (304 SE2d 480) (1983).

The arresting officer testified that defendant confessed to the crimes after defendant was taken to the sheriff’s office and fully advised of his rights. Defendant objects to the admissibility of his confession because he claims it was the product of an illegal arrest. The officer testified that while he was at the scene of the crime, he saw defendant walking down the road approximately 350 yards from one of the houses burglarized. When he approached defendant, he smelled the odor of alcohol and observed other indicia of intoxication. He also observed that defendant had a cut on one of his hands. The officer had earlier learned that the victim’s house had been entered through a broken window and a stain resembling blood had been found on the curtains. The officer informed defendant he was under arrest for public drunkenness and that he wished to ask him about the burglary that had occurred at the victim’s house. In response, defendant shoved the officer in the chest, turned and ran. The officer tackled the defendant in order to restrain and place him in handcuffs.

Decided February 6, 1989.

Hatcher, Johnson & Meaney, James A. Meaney III, for appellant.

David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

When questioned at the Jackson-Denno hearing, the officer admitted the defendant’s intoxication was manifested only by the smell of alcohol, slurred speech and a staggering gait. He did not exhibit boisterousness, vulgarity or profanity. Consequently, defendant argues his arrest was illegal and the statements made subsequent to arrest were inadmissible. However, the officer testified that before interrogating defendant he informed him he was under arrest not only for public drunkenness, but also for burglary, obstruction of an officer and possession of marijuana. The testimony clearly established probable cause for arresting defendant for burglary and for obstruction of an officer. Thus, defendant’s confession was not inadmissible as the product of an illegal arrest. Cf. State v. Harris, 256 Ga. 24 (1) (343 SE2d 483) (1986) (where the defendant was locked in a cell before being interrogated without probable cause to arrest him prior to his making the incriminating statement).

Defendant also objects to the admissibility of statements made by defendant to the court officer who transported him from jail to appear at a preliminary hearing because at the time he had exercised his right to counsel. The officer testified that the statements were made freely and not in response to any questions posed by him. Under these circumstances, the defendant’s statements were not inadmissible. See Rhode Island v. Innis, 446 U. S. 291 (100 SC 1682, 64 LE2d 297) (1980).

2. Because we hold that the court did not err in admitting testimony concerning the defendant’s confession, we need not address his remaining enumerations of error asserting the general grounds and asserting that the court erred in denying his motion for directed verdict.

Judgment affirmed.

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


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    77624.
    TATUM v. TURRENTINE.
    (378 SE2d 515)
   Benham, Judge.

Tatum appeals from an adjudication adverse to him in his negligence action based on an unsatisfied workers’ compensation claim. Appellant was injured while working as an employee of Harry Ray, d/b/a Harry’s Plumbing (Harry’s), a subcontractor of Turrentine Development Company (TDC). At the time of the accident, neither Harry’s nor TDC had workers’ compensation coverage in effect. Appellee Turrentine, President of TDC, had paid his insurance agent, Tom Preston of Preston & Company, sufficient funds to purchase the workers’ compensation insurance policy and had instructed him to do so; however, Preston failed to do so, and therefore TDC had no policy in force when appellant suffered his injury. Preston acknowledged that he was primarily liable to appellant for the full award of the State Board of Workers’ Compensation, and had paid some benefits to appellant for his injury. In its award the Administrative Law Judge directed Preston to “add to those medical expenses he must pay on behalf of [appellant] all future medical expenses incurred necessary to effect a cure or give relief from the injury of April 17, 1985, including any expense to . . . rehabilitate [appellant]. Further, should Mr. Preston not pay these future claims and those already covered by the Award of July 8, 1986, then, it shall be the responsibility of Harry Ray, d/b/a Harry’s Plumbing, and Turrentine Development Co., employers, to make these payments.” Appellant, seeking to recover payment for the additional expenses, sued Turrentine in his individual capacity, alleging that his company was insolvent and that he “negligently failed to procure” the workers’ compensation insurance, and so was personally liable to appellant for the unsatisfied award. Tatum and Turrentine moved for summary judgment, and the trial court denied Tatum’s motion and granted Turrentine’s. Tatum appeals and we affirm.

In Samuel v. Baitcher, 247 Ga. 71 (274 SE2d 327) (1981), the Supreme Court held that under certain limited circumstances an employee may pursue a claim at law against the agent of his employer for an amount equal to the award of the workers’ compensation board. The circumstances are that (1) a valid claim must be made under the Workers’ Compensation Act; (2) a valid award must have been granted by the board; and (3) the award must not have been collected for only two reasons—first, that the employer carried no workers’ compensation insurance, and second, that the employer is insolvent. Id. In the case before us, appellant has met the first two criteria, but not the third. While it is undisputed that the employer carried no workers’ compensation insurance and that it is insolvent, appellant has not shown that those are the only two reasons for his inability to collect the award. The board’s award specifically holds Preston liable for the payments due, and only in the event of his inability to pay can appellant recover from TDC and Harry’s. Appellant makes no showing that the debt is uncollectable from Preston, and so has failed to meet the requirement necessary to come within the purview of Samuel v. Baitcher, supra. Compare Myers v. Wilson, 167 Ga. App. 340, 342 (306 SE2d 401) (1983), in which this court held that the “cause of action arose only when the Board’s award in favor of [claimant] became uncollectable because of the employer’s insolvency. ...” (Emphasis supplied.) See also Kelly v. China One Restaurant, 161 Ga. App. 600 (289 SE2d 28) (1982), which stated that to support the action in question, “it must be shown that the award cannot be enforced.” Since appellant did not make that showing as to the party that the board designated as primarily liable, i.e., Preston, the trial court did not err in denying appellant’s motion for directed verdict and in granting appellee’s motion.

Decided February 6, 1989.

Charles L. Day, for appellant.

Wasson, Sours & Harris, W. Hensell Harris, Jr., for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    77688.
    JOHNSON v. THE STATE.
    (378 SE2d 700)
   Pope, Judge.

Appellant was convicted of attempted armed robbery and aggravated assault. He was sentenced to serve ten years on each count, with the terms to run concurrently. The only enumeration of error is that the offense of aggravated assault should have merged into the attempted armed robbery as a matter of fact and that the trial court erred in sentencing appellant on the aggravated assault count. Held:

“While it is settled that aggravated assault is not included in robbery, armed robbery or attempted armed robbery as a matter of law, [cits.], it may be included as a matter of fact.” Hambrick v. State, 256 Ga. 148, 150 (344 SE2d 639) (1986).

The facts adduced at trial showed that the victim opened his motel door to find appellant advancing on him with a gun and demanding his money. Although the victim denied having any money, appellant insisted that he did and he had better give it to him or he would kill him. The victim decided that appellant would not shoot and decided to “try him.” Appellant shot the victim in the hand and leg. The victim then told appellant that his money was outside and led him about half a mile down the street where the victim ran into some bushes and escaped. During the escape, appellant fired two more shots at the victim, but missed.

While we agree with appellant that the shooting of the victim was an aggravated assault that merged into the attempted armed robbery because the shooting was the act that caused the victim to agree to lead appellant to his money (see Moreland v. State, 183 Ga. App. 113 (1) (358 SE2d 276) (1987)), we find that appellant’s conviction for aggravated assault should stand nonetheless. When the victim escaped, the attempted armed robbery came to an end; the shots subsequently fired by appellant at the victim constituted a separate offense. See Harvey v. State, 233 Ga. 41 (1) (209 SE2d 587) (1974); Loumakis v. State, 179 Ga. App. 294 (4) (346 SE2d 373) (1986); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981).

Decided February 6, 1989.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, for appellee.

Judgment affirmed.

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


text:
    77760.
    CURTIS v. THE STATE.
    (378 SE2d 516)
   Benham, Judge.

Appellant was convicted of theft by receiving stolen property; two counts of aggravated assault; and possession of a firearm during the commission of a felony.

1. Appellant questions the sufficiency of the evidence. Two police officers stated that, while on patrol, they ran through their car NCIC computer the license tag number of a dark-colored Pontiac Trans Am or Firebird, and were informed it was a stolen automobile. They followed appellant a short distance and then turned on their car’s blue lights, at which point appellant accelerated and a high-speed chase ensued. The chase ended when appellant ran the car into a telephone box. He exited the car and ran from the police officer who gave chase. The officer caught up with appellant and they struggled, causing the officer’s service revolver to dislodge from its holster and fall to the ground. Appellant picked it up, pointed it at the officer, and threatened to kill him if the officer followed him. Appellant left the scene of the struggle, came upon a woman, and fired the gun at her. Shortly thereafter he was apprehended. The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of aggravated assault of the woman and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA §§ 16-5-21 (a) (2); 16-11-106 (b) (1). See Williams v. State, 249 Ga. 6 (4) (287 SE2d 31) (1982). While the police officer did not testify that he was placed in reasonable apprehension of immediately receiving a violent injury when appellant pointed the gun at him, and the threat accompanying the use of the revolver may have been indicative only of a conditional threat to inflict bodily harm, “the circumstances also clearly disclose a situation whereby the jury could determine that the alleged victim, with a [gun] pointed at him, was in reasonable apprehension of immediately receiving a violent injury.” Johnson v. State, 122 Ga. App. 542 (1) (178 SE2d 42) (1970). Thus, the evidence was sufficient to authorize a guilty verdict on the count alleging aggravated assault upon the police officer.

2. The indictment charged appellant with unlawfully receiving and retaining a 1984 Pontiac Trans Am automobile owned by Sandra Sams and stolen from her the day before appellant was arrested. Ms. Sams testified that her dark, charcoal-gray car with license tag number HPY452 was stolen from her at a gas station, and that she did not recognize anyone in the courtroom as the perpetrator. She did not know who had returned the car to her, but the front end was “crunched” and the four tires “mutilated” when she got it back. No photos of the car appellant was driving were shown to Ms. Sams.

The police officers involved could recall neither the license tag of the dark-colored, late-model Pontiac Trans Am or Firebird appellant was driving, which tag number they entered into their NCIC computer, nor the name of the person from whom the computer reported the car had allegedly been stolen. However, traffic tickets issued to appellant and admitted into evidence reflect that appellant was driving a “1984 Pont TA” with registration number HPY452 when he was cited for driving recklessly; speeding; no license; possession of a firearm during the commission of a crime; fleeing or attempting to elude police; aggravated assault; and theft by receiving stolen property.

“A person commits the offense of theft by receiving stolen property when he receives ... or retains stolen property which he knows or should know was stolen unless the property is received ... or retained with intent to restore it to the owner. ‘Receiving” means acquiring possession or control ... of the property.” OCGA § 16-8-7 (a). “[I]f the goods found in the possession of the defendant are not shown to be that which has in fact been stolen, proof of larcenous taking is absent.” Causey v. State, 139 Ga. App. 499 (1) (229 SE2d 1) (1976). Cf. Ladson v. State, 248 Ga. 470 (3) (285 SE2d 508) (1981).

Appellant’s conviction for theft by receiving stolen property cannot stand, because the State failed to prove that the car recovered from appellant’s possession was, in fact, the auto stolen from Ms. Sams. While the physical descriptions of the two vehicles were similar, Ms. Sams never identified as hers the car appellant drove and subsequently wrecked. She recited the license tag number of her car, but the testifying officers were unable to recall the tag number of the car appellant was driving. As stated earlier, the traffic citations issued to appellant described the vehicle he was driving as having the identical tag number that Ms. Sams said was affixed to her auto. However, both officers involved in the chase of appellant denied writing the traffic citations. In the absence of authentication by the issuing officer or testimony of the witness officers that the license tag number on the ticket accurately reflected the license tag number of the car they saw appellant driving, the citations were hearsay as to the identity of the license tag number. Cf. Davenport v. State, 165 Ga. App. 299 (300 SE2d 549) (1983). Since the proper foundation was not laid, the tickets did not qualify for the business record exception to the hearsay rule. OCGA § 24-3-14. See Johnson v. State, 168 Ga. App. 271 (1) (308 SE2d 681) (1983). Compare Williams v. State, 178 Ga. App. 216 (4) (342 SE2d 703) (1986). Hearsay, wholly without probative value, was the only evidence establishing that the car found in appellant’s possession was the car stolen from Ms. Sams. Without that link, appellant’s conviction for theft by receiving must fall for insufficient evidence. Causey v. State, supra. Even though appellant did not object to the admission of the traffic citations into evidence, “[sjince ordinary hearsay testimony is not only inadmissible but wholly without probative value, its introduction without objection does not give it any weight or force whatever in establishing a fact. [Cits.]” Duke v. State, 205 Ga. 106, 110 (52 SE2d 455) (1949). See also Roberson v. State, 187 Ga. App. 485, 487 (370 SE2d 661) (1988).

Decided February 6, 1989.

A. Nevell Owens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Linda S. Finley, Assistant District Attorneys, for appellee.

3. We need not address appellant’s remaining enumeration of error.

Judgment affirmed in part and reversed in part.

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


text:
    77765.
    JONES v. THE STATE.
    (378 SE2d 518)
   Pope, Judge.

Appellant Jones was convicted of armed robbery, two counts of aggravated sodomy and two counts of rape for which he received five life terms to be served consecutively. His sole enumeration of error is that the trial court erred in failing to grant his motion to sever his trial from that of his co-defendant Johnson. Held:

Decided February 6, 1989.

Michael R. Schumacher, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.

The evidence at trial showed a strange series of events in which the victim was kidnapped, transported to an apartment where she was raped and sodomized, and then transported to a motel where she was further raped and sodomized. The ordeal lasted approximately twenty hours. The evidence showed that appellant participated only in the criminal activities at the apartment.

Appellant argues that his trial should have been severed from that of his co-defendant because appellant’s participation in the criminal activity covered only a small part of the time the victim was held, and that evidence against his co-defendant might be considered against him. This is the second standard set out in Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). However, the court in Cain also stated that “the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. [Cit.] He must make a clear showing of prejudice and a consequent denial of due process. [Cits.]” Cain at 129.

Appellant here has not met that burden. The evidence presented through the State’s first witness, appellant’s sister, related only to events with which appellant was involved and was sufficient to sustain the verdict against him. Appellant was charged with kidnapping along with his co-defendant; however, the evidence showed that appellant did not join the activities until the victim arrived at his apartment. In addition, the State’s theory included a conspiracy to commit the crime charged. Thus, the acts of appellant’s co-defendant were also imputable to him. Montgomery v. State, 156 Ga. App. 448 (1) (275 SE2d 72) (1980). The fact that the jury acquitted appellant on the kidnapping charge shows that the jury separated the evidence presented against each defendant.

Judgment affirmed.

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


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77831.
    FIELDS v. THOMPSON.
    (378 SE2d 390)
   Sognier, Judge.

Steve Fields brought suit against William Thompson seeking damages for injuries Fields incurred when he was attacked and bitten by Thompson’s mixed breed dog. The trial court granted Thompson’s motion for summary judgment and Fields appeals.

OCGA § 51-2-7, as amended effective July 1, 1985, provides: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.” The subject incident occurred August 8, 1987 in the parking lot at Ridgeview Institute in Cobb County. It is uncontroverted that the incident occurred off the premises of the dog’s owner (appellee) and that at the time of the occurrence appellee’s dog was not on a leash.

Appellee argues summary judgment was properly granted to him because the evidence was uncontroverted that appellee had no knowledge of his dog’s vicious propensity, citing numerous cases applying the “first bite” rule such as Harvey v. Buchanan, 121 Ga. 384 (49 SE 281) (1904); Brown v. Pierce, 176 Ga. App. 787 (338 SE2d 39) (1985); Gilbert v. Hudspeth, 182 Ga. App. 898 (357 SE2d 601) (1987). All the opinions cited by appellee involved incidents which predated the effective date of the amended version of OCGA § 51-2-7 and, as noted in both Brown and Gilbert, relied on rulings the applicability of which after the effective date of the statute was specifically questioned. See also Fellers v. Carson, 182 Ga. App. 658 (356 SE2d 658) (1987). Appellee argues, however, that OCGA § 51-2-7 as amended did not abrogate the scienter requirement which is the basis for the “first bite” rule in the earlier cases.

We did not have to address directly this issue in Evans-Watson v. Reese, 188 Ga. App. 292, 294 (372 SE2d 675) (1988), but we do so now. The clear and unambiguous language of OCGA § 51-2-7 establishes that the vicious propensity of an animal may be proved by showing that the animal was required to be “at heel or on a leash by an ordinance” of the applicable governmental body and that the animal at the time of the occurrence was not at heel or on a leash. By this language the General Assembly has abrogated in situations meeting the statutory requirements the prior case law of this court and the Supreme Court requiring proof in all instances that the owner of the animal had knowledge of the animal’s vicious propensity.

Decided February 6, 1989.

Nicholas E. Bakatsas, for appellant.

Long, Weinberg, Ansley & Wheeler, Suzanne M. Trexler, Earl W. Gunn, for appellee.

Since, unlike the situation in Evans-Watson, supra, there is no evidence that the dog’s owner possessed actual knowledge of the animal’s vicious propensity, the question is whether proof of that vicious propensity has been provided by evidence that the animal was required to be either at heel or on a leash by Cobb County ordinance and that the animal was not at heel or on a leash at the time of the incident. Included in the record is a certified copy of Cobb County Ordinance § 3-5-9 which provides: “(a) It shall be unlawful for the owner of any animal to permit such animal to be out of his immediate control and restraint, or to be left unattended oif the premises of the owner . . . . (b) Subject to the provisions of subsection (a) hereof, control and restraint of dogs shall be maintained as follows: ... (2) When off the premises of the owner, by an appropriate chain, leash or tie not exceeding six (6) feet in length, and in the hands of a person capable of directly controlling the movements of such dog . . . .” By presenting evidence that appellee’s animal was required to be on a leash by an ordinance of the applicable governmental body and that the animal was not on a leash at the time of the occurrence, appellant has presented sufficient evidence to prove the vicious propensity of appellee’s dog under OCGA § 51-2-7. The trial court erred by granting summary judgment in appellee’s favor.

Judgment reversed.

Carley, C. J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

In the case of Gilbert v. Hudspeth, 182 Ga. App. 898 (357 SE2d 601) (1987), Presiding Judge McMurray concurred in the judgment only. If the case was not then binding, in my opinion, it is not now binding and should be omitted as authority in the majority opinion. Otherwise, I concur fully.


text:
    77861.
    DAVIS v. THE STATE.
    (378 SE2d 519)
   Benham, Judge.

Appellant challenges his judgment of conviction for burglary, contending that his statutory and constitutional rights were violated when the trial court denied his motion for a continuance of his trial. We find no error in the trial court’s ruling and affirm the judgment.

Decided February 6, 1989.

Sinreich & Francisco, John R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

Several days before the trial in question, appellant was tried on the same two counts of burglary, but when the jury was unable to reach a verdict, the trial court declared a mistrial. The next day, appellant filed a request for the transcript of the mistried case. Four days later appellant’s case was again called for trial, and he responded by moving for a continuance, arguing that the transcript of the earlier trial was not available and that he needed it to properly cross-examine witnesses who would be called to testify. The trial court found that appellant had made a timely request for the transcript and that the court reporter had not had an opportunity to prepare it, but denied appellant a continuance. The denial was based in part on the fact that the court reporter was in the courthouse and if it became necessary at any point in the trial, she could be called as a witness to testify for appellant regarding what a particular witness had testified to at the previous trial, and that the trial court gave assurance that it would accommodate the defense in that regard. The trial transcript shows that during the trial when appellant requested testimony from the previous trial, it was made available to him.

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. OCGA § 17-8-22; Wilson v. State, 158 Ga. App. 174 (1) (279 SE2d 345) (1981). Appellant has not shown how additional time would have benefited him or how the lack of time harmed him. Since the testimony that he sought was provided for him, we find no error in the trial court’s denial of the motion for continuance. Id.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    77868.
    WOOD v. THE STATE.
    (378 SE2d 520)
   Sognier, Judge.

Charles Lee Wood appeals from the denial of his motion to withdraw a plea of guilty to a charge of driving under the influence of alcohol.

The record reveals that appellant was arrested on February 25, 1987 and charged with two violations of OCGA § 40-6-391, driving under the influence of alcohol and driving with .12 percent or more by weight of alcohol in his blood. He retained the same attorney who had represented him for two prior DUI charges, and they agreed appellant would plead not guilty, which his counsel testified was done primarily to delay the case while appellant raised money to pay the statutory fine. Appellant met again with his attorney in April 1988, and they determined that, because of the seriousness of the allegations and the likelihood of a twelve-month prison sentence if appellant were convicted by a jury, appellant would enter a plea of guilty to the charge of driving under the influence of alcohol. Appellant then scheduled three character witnesses for the sentencing hearing and arranged to use vacation time from his job to serve the anticipated ten-day jail term.

The trial judge sentenced appellant to twelve months, eleven of which were to be served on probation provided appellant paid a $1,000 fine and performed eighty hours of community service. Upon subsequent motion by appellant’s counsel, the trial court reduced the jail term to twelve days. After appellant completed the incarceration portion of his sentence, he hired new counsel and filed the instant motion.

1. Appellant contends in two enumerations of error that the trial court erred by accepting his guilty plea and denying his motion for withdrawal of the plea on the grounds that his constitutional rights were not explained to him and he was confused and misled by his attorney.

Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant “ ‘intelligently and understanding^’ ” waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982). When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered “ ‘by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) filling] a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.’ [Cit.]” Dean v. State, 177 Ga. App. 123, 125 (2) (338 SE2d 711) (1985).

We agree with the trial court that the second prong of the Dean test was met by a showing that appellant’s first attorney fully explained to appellant the nature of the charges against him and the significance of his plea, see Bailey v. Baker, 232 Ga. 84, 86-88 (2, 4) (205 SE2d 278) (1974), and that appellant’s own testimony that he agreed to enter the plea “[b]ecause I knew it was a serious matter if I was convicted, and that I could probably spend a year in jail” indicated appellant’s action was knowing and voluntary. Further, as the trial court found, appellant had made arrangements in advance to take time off from work to serve his jail sentence, and had been through the plea process for DUI charges with the same attorney at least twice before, and as his prior counsel explained, appellant “was very familiar with the process, as we had gone through it a number of times prior to this case and in the two prior cases,” and he asked no questions. Although appellant, a twenty-seven-year-old high school graduate who had served four years in the Army, testified at the motion hearing that he did not understand what was happening during the sentencing and did not receive an explanation of his constitutional rights, the trial court found otherwise, and it is the final arbiter on all factual questions. Dean, supra at 126 (2). Moreover, appellant’s contention that he was misled by his counsel is without merit, as it is unsupported by the record, and “ [t]he mere contention that [appellant] did not understand or was misled by his own counsel affords no basis for withdrawal of his plea of guilty. [Cit.]” Marshall v. State, 128 Ga. App. 413, 414 (2) (197 SE2d 161) (1973).

Decided February 6, 1989.

H. Samuel Atkins, Jr., for appellant.

Ken Stula, Solicitor, for appellee.

2. Appellant also enumerates as error the trial court’s failure to comply with Uniform State Court Rules 33.7, 33.8, and 33.9, which set forth procedures for the court to follow when determining the voluntariness and accuracy of a plea, and asserts that this flaw in his sentencing hearing requires reversal of the lower court’s ruling. Although the record reveals that the trial court did not comply fully with the requirements of Rule 33.8, which require the court to inform the defendant of the nature of the charges, the scope of the constitutional rights waived, and plea terms and sentencing possibilities, this error was harmless here because appellant’s counsel satisfactorily explained his constitutional rights and the consequences of his plea, and the record as a whole demonstrates that appellant’s action was knowing and voluntary. See Bailey, supra at 85-88 (2, 4). Accordingly, we find no abuse of discretion in the trial court’s acceptance of appellant’s plea of guilty and denial of his motion to withdraw the plea. See generally Dean, supra at 125-126 (2, 3).

Judgment affirmed.

Corley, C. J., and Deen, P. J., concur.


author:
Birdsong, Judge.
      Beasley, Judge,

text:
    77117.
    77118.
    WHELCHEL et al. v. LAING PROPERTIES, INC. et al. E & G ENTERPRISES, INC. v. WHELCHEL et al.
    (378 SE2d 478)
   Birdsong, Judge.

Appellants appeal the trial court’s grant of summary judgment to Laing Properties, Inc. (hereinafter Laing) and the grant of partial summary judgment to E & G Enterprises, Inc. (“E & G”) as to the issue of respondeat superior. Cross-appellant/appellee E & G cross-appeals the denial of its motion for summary judgment. These appeals involve issues of so-called “dram shop” liability.

Appellee Sheliah Warren was employed by appellee E & G as one of the store managers of an E & G dry cleaning business. In December 1985, E & G hosted an office “Christmas party” at a banquet room of a Hilton Hotel operated by appellee Laing.

Employees were not required to attend the party, although the appellee Warren attended at least in part because of her personal sense of responsibility as a manager. The Hilton Hotel was not serviced by any form of public transportation; however, taxi service was available. Appellee Warren drove her car to the party. The party was held from 2:00 p.m. to 5:00 p.m., although the appellee Warren did not depart until between 5:30 p.m. and 6:00 p.m. The E & G hosted party included an “open bar.” As a matter of routine business practice the Hilton Hotel posted a sign during parties, encouraging those who might be driving to spend the night with the hotel instead for $45. Appellee Laing had offered E & G the option to contract for hospitality rooms as part of the furnished party facilities, but appellee E & G declined the option.

As appellee Warren was leaving the party, she was invited by the vice-president of E & G and his wife to attend another private party being hosted by a friend of the vice-president. This party was not related in any way to the dry cleaning business. Appellee Warren voluntarily elected to go to the second private party, although she testified in her deposition both that she “liked ... to go” and that she “probably was indecisive because [she] really didn’t want to go, but it’s your boss.”

Appellee Warren was at the second party less than an hour. She had one drink at this party, which may or may not have contained alcohol. Appellee Warren offered to drive another employee back to the Hilton Hotel on her way home. She ran through a stop sign en route and killed the driver of another automobile. Eyewitness testimony indicates that appellant was traveling at an apparently high rate of speed at the time. She smelled strongly of alcohol, could not focus her eyes, and would overreach the steering wheel. Blood/alcohol tests were taken of appellee Warren at 10:00 p.m. and 11:00 p.m. Test results were “blood is positive for ethyl alcohol” at 0.22 grams percent and 0.20 grams percent respectively. A urine specimen also tested positive for the presence of marijuana.

Appellants subsequently filed suit for wrongful death against appellees Warren, Laing and E & G. Held:

Case No. 77118 (Cross-Appeal)

1. Cross-appellant/appellee E & G asserts that the trial court erred in denying its motion for summary judgment because under the attendant circumstances it owed no duty to plaintiffs under Georgia law. We disagree.

OCGA § 3-3-22 expressly provides that “[n]o alcoholic beverage shall be sold, bartered, exchanged, given, provided, or furnished to any person who is in a state of noticeable intoxication.” The term “provide” means to make, procure, or furnish for future use; to prepare; to supply; to afford; to contribute. Black’s Law Dictionary (5th ed.), p. 1102. It also means to make ready; to make available. The American Heritage Dictionary (2d Col. ed.), p. 997. The acts of E & G, including contracting with appellee Laing to obtain and pay for its services in actually furnishing and giving alcoholic beverages to guests at the E & G hosted party, fall at least within the act of providing alcohol as contemplated by the legislature in enacting OCGA § 3-3-22.

In Sutter v. Hutchings, 254 Ga. 194, 197 (327 SE2d 716), the Supreme Court pertinently stated, “in view of risks involved and the General Assembly’s efforts to control drunk driving for the protection not only of those drivers but others on the highways, we conclude that these statutory duties protect third parties as well as those noticeably intoxicated and under 19. OCGA §§ 3-3-22; 3-3-23, supra, provide the duty, not the cause of action.” Thus, “the defendant hostess .. . owed a duty to those using the highways not to subject them to an unreasonable risk of harm by furnishing alcohol to a person under 19 who was noticeably intoxicated and who these defendants knew would soon be driving his car.” (Emphasis supplied.) Id. The duty “is to stop serving alcohol to the driver who is noticeably intoxicated (or share the intoxicated driver’s liability to injured third persons).” Id. If this duty is breached, OCGA § 51-1-6 provides the cause of action. Id.

The statutory duty recognized by Sutter has been broadly construed to provide Georgia citizens with a modicum of protection from the varied reasonably foreseeable and life-threatening risks involved in continuing to serve alcoholic beverages to noticeably intoxicated persons. We believe this was the legislature’s intent in enacting OCGA § 3-3-22. See, e.g., Ga. Const. Art. 1, Sec. 1, Par. 2. Thus, in Brumbelow v. Shoney’s Big Boy, 174 Ga. App. 160 (329 SE2d 319), where the manager hosted a company party at his personal residence for company employees, Sutter was found to be controlling although Shoney’s had furnished alcoholic beverages to the minor only through its agent manager. See also Dobozy v. Cochran Airport Systems, 174 Ga. App. 625, 626 (330 SE2d 815) (company-hosted picnic for its employees). Likewise Sutter was found controlling by a majority of this court in Southern Bell Telephone &c. Co. v. Altman, 183 Ga. App. 611 (359 SE2d 385) (5-4 decision), cert. den. In Southern Bell, however, it was found that the action taken by the host company sponsoring a company awards banquet at a restaurant was sufficient to satisfy its duty to third parties. Id. at 612. In Divecchio v. Mead Corp., 184 Ga. App. 447 (1) (361 SE2d 850), it was held that a Suiter-type cause of action “would lie where one provides alcoholic beverage to [an] adult who is about to drive a vehicle. In both instances, the provider has a duty not to subject third parties to an unreasonable risk of harm caused by such an intoxicated driver.” (Emphasis supplied.) See also Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642 (a) (362 SE2d 377), cert. den., holding the Sutter rationale applicable to a commercial establishment serving alcohol to adults.

We conclude that the statutory duty imposed by OCGA § 3-3-22, as interpreted by Sutter and its progeny does apply to E & G.

2. Cross-appellant/appellee E & G asserts that the trial court erred in denying its motion for summary judgment because there was no breach of any existing duty established as cross-appellees/appellants failed to submit any reliable evidence that E & G had provided alcohol to Sheliah Warren at a time when she was in a state of noticeable intoxication. In particular, we find the evidence regarding the results of Sheliah Warren’s blood/alcohol tests and the eyewitness testimony of those who observed her conduct and condition at the scene of the collision, when coupled with the expert opinions contained in the affidavit of Dr. Burton, a medical doctor specializing in forensic pathology, to be sufficient to preclude the grant of summary judgment on this issue. See Dickson v. Dickson, 238 Ga. 672, 675 (235 SE2d 479). Accordingly we find cross-appellant’s enumerated errors to be without merit.

Case No. 77117 (Main Appeal)

3. Appellants assert that the trial court erred in ruling that Tibbs v. Studebaker’s, supra, “dram shop” liability extends to instances where the providers and furnishers of alcoholic beverages serve noticeably intoxicated persons who they “subjectively know will be driving.” Appellants also assert that the trial court erred in holding that a hotel providing space and alcohol operates under a different “notice” standard than does the host who hires the hotel to cater the company party.

In Tibbs, supra at 643 (a), the principal opinion, citing both Sutter, supra and Southern Bell, supra, concludes “ ‘one who provides alcoholic beverages to a noticeably intoxicated person, knowing that the person will soon be driving a vehicle, may be liable for a third party’s injuries caused by the negligence of the intoxicated driver.’ ” However, neither Sutter nor any of its progeny expressly determined whether knowledge required by the rule is actual or constructive. The basic concept of constructive knowledge is, “[i]f one by exercise of reasonable care would have known a fact, he is deemed to have had constructive knowledge of such fact. . . .” Black’s Law Dictionary (5th ed.), p. 284.

In Sutter, the Supreme Court determined “dram shop” liability relying on recognized tort principles. The court listed the four tort elements of duty, breach, causation (actual and proximate) and damages. Sutter v. Hutchings, supra at 196-197. The court found that the defendant had statutory duties not to provide or furnish alcoholic beverages to persons noticeably intoxicated (OCGA § 3-3-22) and to persons under 19 years of age (OCGA § 3-3-23). Sutter v. Hutchings, supra at 197. The case facts in Sutter reflect that these duties were breached. Thus, the defendant alcohol provider was negligent per se. See Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (333 SE2d 829), citing Sutter v. Hutchings, supra at 196-197. As “negligence per se supplies only the duty and breach of duty elements of a tort, the plaintiffs must still prove a causal connection (proximate cause) between the breach of this statutory duty and the injuries sustained . . . ,” Central Anesthesia, supra at 730. The Supreme Court in Sutter next turned “to the question of proximate cause.” Sutter v. Hutchings, supra at 197. The court concluded that “where one provides alcohol to a noticeably intoxicated 17-year-old knowing that he will soon be driving his car, it is foreseeable to the provider that the consumer will drive while intoxicated and a jury would be authorized to find that it is foreseeable to the provider that the intoxicated driver may injure someone.” (Emphasis supplied.) Sutter v. Hutchings, supra at 198.

On close scrutiny, it is apparent that the Supreme Court limited the scope of its holding to those cases where the provider had actual knowledge that the recipient of the alcohol would be driving. Previously, the Sutter opinion had cited the case of Keaton v. Kroger Co., 143 Ga. App. 23, 26 (237 SE2d 443), as precedent for the proposition that in certain circumstances “the act of furnishing the alcohol is too remote to be the proximate cause of an injury caused by the negligence of the consumer.” Sutter v. Hutchings, supra at 198, 200. Thus, Sutter tacitly approves the holding in Keaton. In Keaton, the facts reveal that a store sold alcohol to certain minors under circumstances where, although actual knowledge that one of the minors would be driving apparently was not established, the store by exercise of reasonable care could have ascertained readily that the youths would depart the store premises in a motor vehicle. See generally Keaton v. Kroger, supra at 23-24. Thus, we are satisfied that the trial judge correctly interpreted existing appellate court precedent as requiring a showing of actual knowledge that the recipient of alcohol would be driving in order to support a jury finding of proximate cause. Actual knowledge may be established either by direct or circumstantial evidence.

Thus, if appellee Laing succeeded in piercing appellants’ pleadings as to the issue of knowledge, it would be entitled to summary judgment if it carried its burden of showing that there is no genuine issue as of actual knowledge of driving. OCGA § 9-11-56 (c). This same standard of proof applies equally in a summary judgment case to both the party host and his hired alcohol purveyor.

We agree with the trial judge that as to appellee E & G there exists sufficient evidence to raise a genuine issue of actual knowledge of driving. Further, for the following reasons, appellee Laing was not entitled to summary judgment. This court will consider neither mere allegations of fact found in the parties’ pleadings nor unsupported assertions of fact contained in their briefs. Behar v. Aero Med. Intl., 185 Ga. App. 845 (1) (366 SE2d 223). The affidavits by Laing employees contained in this record are insufficient to pierce the pleadings as to this issue. The affidavits do not expressly negate the existence of actual knowledge on the part of all Laing employees, who were working in the hotel that day and who may have observed the party attendees, that Sheliah Warren would be driving. For example, the record does not establish that all Laing employees who may have observed the party attendees have executed affidavits. The affidavit of the food and beverage director on the date of the party does not assert any lack of actual knowledge as to which attendees were driving or lack of ability to observe such facts, although he was duly employed by the hotel on that date. There exists no affidavit from the then general manager of the hotel. Accordingly, we find that the trial court erroneously concluded that Laing has pierced appellants’ pleadings.

4. Appellant asserts that the trial court erred in ruling that attendance by managerial employees at an office Christmas party is “as a matter of law” never within the scope of employment. The trial court found “that at no time within the factual circumstances alleged was [Sheliah] Warren acting within her scope of employment at E & G.” Under certain limited circumstances, an employee who becomes intoxicated at a company sponsored party may be found to be within scope of employment. See, e.g., Southern Bell, supra at 614 (dissenting opinion) and cases cited therein. Generally, when a servant injures another, “the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.” (Emphasis supplied.) Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186). The circumstances of this case establish that Sheliah Warren was not in the scope of her employment with E & G at the time of the collision. Neither was she in the scope of her employment at either party. See Divecchio v. Mead Corp., supra at 448-449; Dobozy v. Cochran Airport Systems, supra at 625; Healthdyne Inc. v. Odom, 173 Ga. App. 184 (1) (325 SE2d 847), cert. den. Thus, we are satisfied that the trial court correctly granted summary judgment on the issue of respondeat superior.

5. Appellant asserts that the trial court erred in ruling that the specifics of a conspiratorial agreement must be proved upon summary judgment rather than applying the prevailing standard of passive mutual understanding. We disagree.

In this case there is evidence of a lawful contractual relationship between E & G and Laing; there is also circumstantial evidence that a Laing-employed bartender served alcoholic beverages to Sheliah Warren, an employee and guest of E & G, after she was noticeably intoxicated in violation of OCGA § 3-3-22. However, while this and other circumstances may arouse one’s suspicion, we find no evidence of the requisite “mutual understanding” between Laing and E & G. First Fed. Savings Bank v. Hart, 185 Ga. App. 304, 305-306 (363 SE2d 832); see Cook v. Robinson, 216 Ga. 328 (5) (116 SE2d 742). Accordingly, this enumerated error is without merit.

Based on the above, the trial court did not err in granting partial summary judgment to appellee E & G on the issue of respondeat superior; did not err in denying the remainder of appellee E & G’s motion for summary judgment; and, did err in granting summary judgment to appellee Laing. This case will be remanded to the trial court for further proceedings consistent with this opinion. This determination, however, should not “be construed as authority for the proposition that [appellants’] evidence would, had it been offered at trial, necessarily be sufficient to withstand a motion by [appellees’] for directed verdict.” Winn-Dixie v. Ramey, 186 Ga. App. 257, 258 (366 SE2d 785). Such a determination would be controlled by the posture of the evidence at such time.

Judgment in Case No. 77118 affirmed. Judgment in Case No. 77117 affirmed in part and reversed in part and case remanded with direction.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

Case No. 77118 (Cross-Appeal)

I concur in the disposition but not in all that is said in Divisions 3 & 4, for reasons which will appear below.

Case No. 77117 (Main Appeal)

1. As to Division 3, in Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), the Supreme Court of Georgia coupled OCGA § 3-3-22 with OCGA § 51-1-6 to hold that in Georgia, a civil cause of action lies in certain circumstances to recover for a breach of the duty derived from the prohibition in OCGA § 3-3-22. (That case also held that the additional duty specified in OCGA § 3-3-23 relating to minors who also breached because the consumer was a minor.)

OCGA § 3-3-22 simply states: “No alcoholic beverage shall be sold, bartered, exchanged, given, provided, or furnished to any person who is in a state of noticeable intoxication.” It does not limit this prohibition to serving drivers of motor vehicles. It clearly states that serving anybody who is noticeably intoxicated is prohibited.

OCGA § 3-3-22 is a criminal law. Ga. L. 1980, pp. 1573, 1596, 1649. See Nunn v. Comidas Exquisitos, 166 Ga. App. 796 (305 SE2d 487) (1983); Riverside Enterprises v. Rahn, 171 Ga. App. 674 (320 SE2d 595) (1984). The Act provided, in former Code § 5A-509, that furnishing alcoholic beverages to intoxicated persons (and minors) is prohibited, and in Code § 5A-9901 it gave enforceability to prohibiting that forbidden activity by making it a misdemeanor if it is done “knowingly and intentionally.” The prohibition appeared in Chapter 5A-5, which set out regulatory provisions applicable to alcoholic beverages and began: “The businesses of manufacturing, distributing, selling, handling, and otherwise dealing in or possessing alcoholic beverages are declared to be privileges in this state and not rights.” Code § 5A-501 (OCGA § 3-3-1). The chapter then imposes controls, including licensing requirements, primarily on the commercial establishments described. The dissent in Southern Bell Telephone &c. Co. v. Altman, 183 Ga. App. 611, 613 (359 SE2d 385) (1987) noticed this and regarded the related OCGA § 3-3-23 to have been “enacted by the Legislature to apply to commercial purveyors of alcoholic beverages,” as demonstrated by OCGA § 3-3-1. See also Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642, 643 (a) (362 SE2d 377) (1987).

Although the section regarding intoxicated persons appears in this business context, the Court in Sutter both declared it a civil as well as a criminal duty and extended it beyond businesses to private persons furnishing gratuitous alcoholic beverages, such as Mrs. Hutchings.

But the civil duty was not as broad as stated in the statute. Instead of matching the civil duty with the criminal duty insofar as who could be served is concerned, the Court limited it to motor vehicle drivers. This newly recognized actionable duty was founded on the Court’s taking judicial notice of 1) “risks involved” when an intoxicated person drives, and 2) “the General Assembly’s efforts to control drunk driving for the protection not only of those drivers but others on the highways, . . . .” Id. at 197. These two factors, then, are what gave rise to the articulation of a civil duty in OCGA § 3-3-22 (formerly Code § 5A-509) and to its limitation to drivers. That is, the statutory criminal duty of commercial establishments not to serve an intoxicated person was made the civil duty of purveyors and hosts alike, when it was known the drinker would drive. Breach by continuing to serve such a person who was noticeably intoxicated would constitute negligence per se. Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 SE2d 829) (1985), discusses the negligence per se principle. See also Note, 9 Ga. L. Rev. 239, 258 (1974).

Thus the Supreme Court narrowed the civilly actionable duty even further. The criminal law, as stated, prohibits at least the businesses described in OCGA § 3-3-1 from “knowingly and intentionally” furnishing alcoholic beverages to intoxicated persons. Never mind what the liquor purveyor knows or does not know the intoxicated person will or might do afterwards; that is irrelevant. What matters is whether the purveyor knowingly and intentionally furnished an alcoholic beverage to a noticeably intoxicated person, period.

In addition to the statutorily required knowledge, that the person was intoxicated when another alcoholic beverage was about to be served, the Court required another knowledge before a civil duty arose: knowledge that the intoxicated person would soon be driving a motor vehicle. That, of course, would require a present knowledge of a future happening, a future fact. No human being has such a capacity, so the Supreme Court could not have meant actual knowledge in that sense. This is so also because when turning to the element of proximate cause, the Court concluded that proximate cause will exist if the provider could, when furnishing that beverage to an intoxicated person, reasonably foresee that the person would be driving and also that someone may be injured as a result. Id. at 198.

The legislature cannot be said to be concerned only with drunk drivers, either by this prohibition or even because of the existence of the drunk driving laws. Common sense and experience demonstrate that intoxicated persons often get into fights, are disorderly, hurt themselves, batter their spouses and partners, assault their children, and act in other ways injurious to members of the general public. The majority acknowledges this by stating: “The statutory duty recognized by Sutter has been broadly construed to provide Georgia citizens with a modicum of protection from the varied reasonably foreseeable and life-threatening risks involved in continuing to serve alcoholic beverages to noticeably intoxicated persons. We believe this was the legislature’s intent in enacting OCGA § 3-3-22.”

However, the Supreme Court found the only declared public policy involving drinking and harm to third persons to be in the D.U.I. laws. It did not say a person harmed by an intoxicated person in a non-motor vehicle confrontation would likewise have a cause of action. In any event, such a question is not before us in the circumstances of this case, because a driver is involved, and since the Supreme Court has limited the civil duty, so that it does not arise unless the provider at that time has some knowledge that the intoxicated person will drive, we must do the same.

I do not agree with the majority that this knowledge of a future fact must be actual. It involves instead the prediction of conduct, as Keaton v. Kroger Co., 143 Ga. App. 23, 28 (237 SE2d 443) (1977) recognized. In applying the principles inherent in Sutter, the duty must be found to arise when, under all the circumstances, a person in the shoes of the provider would reasonably foresee that the intoxicated person to whom he is about to furnish an alcoholic beverage will drive while intoxicated to the degree that harm is reasonably foreseeable (or “that the intoxicated driver may injure someone,” in the words of Sutter, supra at 198.) Circumstantial, and not only direct, evidence would suffice.

As quoted in the dissent in Southern Bell, supra at 617, issues of “ ‘lack of ordinary care in failing to foresee or observe the negligence of another, are ordinarily not susceptible of summary adjudication [Cit.] and unless only one conclusion is permissible [Cits.], the issue should be resolved by the jury . . . , and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man.’ ”

As in Brumbelow v. Shoney’s Big Boy, 174 Ga. App. 160, 161 (329 SE2d 319) (1985), there is a genuine dispute as to the defendants’ knowledge “that [Warren] would be driving.”

Just because in the cases following Sutter the intoxicated person’s imminent driving was fairly foreseeable does not mean that it has to be an absolute certainty. (In Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642, supra at 644, e.g., it was uncontroverted that defendant, “through its agents, knew [the patron] would be driving a vehicle.”) While the duty may only devolve on one who actually knows the person he is furnishing the beverage to is then intoxicated in the sense that it is, in the words of the statute, “noticeable,” at that point in time the most that the host or purveyor would know with respect to driving is that it was reasonably foreseeable that the person would drive. For the actionable duty to arise, the potential defendant must be on present notice that the drinker would soon drive. To say that the purveyor must actually know this fact before it is fact eliminates the duty, for all practical purposes. The same demise would result from saying that only direct evidence of knowledge would raise the duty.

Here, of course, there is evidence that E & G’s vice-president knew Warren would be driving when she was served drinks, as this is a reasonable inference from the circumstances, including the fact that arrangements were made for her to drive his wife to the second party in Warren’s own car. So I agree that E & G, as host, was not entitled to summary judgment.

As to the purveyor Laing, it would appear that if the statute as such is viewed as raising the civil duty, it would not matter whether the purveyor had knowledge that the intoxicated person would drive, and whether that knowledge was actual or constructive, direct or indirect, or even reasonably foreseeable. The duty would be founded solely on the presentation to a business, as described in OCGA § 3-1-1, (referred to as a “commercial establishment” in Tibbs, supra, 643-644), of a noticeably intoxicated person who sought another drink. The duty will have arisen from the desire to protect the general public from whatever that intoxicated person would do if he had another drink. But since the Supreme Court limited the civilly actionable duty itself, to one where there is knowledge of imminent driving, the knowledge element also applies to Laing. Thus, whether it was reasonably foreseeable to Laing that Warren would drive must be determined by the jury from the circumstances known by the employee who served Warren.

It is to be noted that, by the 1988 enactment of OCGA § 51-1-40, which was not yet in effect when the death here occurred, the General Assembly expressly created a civil duty with respect to those intoxicated persons whom the purveyor or host knows “will soon be driving a motor vehicle.” The breach, followed by proximate cause and damage, will give a statutory cause of action in tort. Under this enactment, as under Sutter but not under OCGA § 3-3-22 itself, knowledge of imminent driving is made a prerequisite before a provider has a duty to stop serving.

2. As to Division 4, I cannot go so far as to say that, as a matter of law, the circumstances shown establish that Warren was not in the scope of her employment while at the E & G party at the hotel. See Divecchio v. Mead Corp., 184 Ga. App. 447, 448 (361 SE2d 850) (1987). Whether she was or not is not material, however, because as the majority states, it is her status at the time the injury is inflicted that is determinative.

Decided January 23, 1989

Rehearings denied February 7, 1989

Hylton B. Dupree, Jr., Mark A. Johnson, for appellants (case no. 77117).

Malcolm P. Smith, G. Melton Mobley, for appellees.

Neely & Player, Taylor Tapley Daly, Richard K. Hines V, for appellants (case no. 77118).

Hylton B. Dupree, Jr., Mark A. Johnson, for appellees.


text:
    77217.
    FORNEY et al. v. PURVIS.
    (378 SE2d 470)
   Pope, Judge.

In January 1986, plaintiff and over one hundred other employees of Outboard Motor Corporation of Calhoun, Georgia, were laid off after they staged a labor strike. Plaintiff and all other laid-off employees were members of a labor union. Shortly after they were laid off work, the employees discontinued the strike and became eligible for unemployment insurance benefits. To facilitate the registration process of the large number of applicants, the Calhoun office of the Georgia Department of Labor (hereinafter referred to as “DOL”) scheduled a mass claims registration assembly at the Armory in Calhoun on January 24, 1986. The former striking employees completed the necessary forms for filing a claim for unemployment benefits.

Many of the claimants also completed DOL Form 511, a form used in registering for the employment services of the DOL, a service which refers registrants to potential job openings. In order to be registered on the computer for employment services, an applicant must not only file Form 511 but must also obtain a personal interview by a member of the DOL staff. Because the purpose of the mass claims registration at the Armory was to register the applicants for unemployment benefits, the personal interviews necessary for registering for employment services were not conducted. It is disputed whether the applicants were informed of the necessity of reporting to the DOL office for an interview. The 511 forms turned in by these applicants were kept in a stack on the desk of one of the DOL staff members with the expectation that registration for employment services would be completed at such time as the applicant visited the DOL office.

To receive unemployment benefits, a claimant must show he is actively seeking work (OCGA § 34-8-151 (a) (3)) and that he has “registered for work” at an employment service office (OCGA § 34-8-151 (a) (1)). Those making their claims through local offices of the DOL, referred to internally as “satellite” offices, are automatically sent a computerized Form 854 letter with their first benefit check. The letter informs the claimant that in order to continue to receive benefits, he or she must register in person for job referrals through the employment services of the DOL. According to evidence presented by appellants, individuals making their claims through those offices, referred to internally by the DOL as “itinerant” offices, are not sent the Form 854 letter because these claimants may live too far from an office offering employment services to require them to register in person. Prior to July 1985, the Calhoun office of the DOL was operated as an itinerant office. In July 1985, the Calhoun office was to have become a satellite office with its own connection to the central computer of the DOL headquarters in Atlanta. At the time of the change, because of administrative oversight, the central computer was not programmed to send Form 854 letters to unemployment benefits claimants filing through the Calhoun office. Consequently, neither the former striking employees of Outboard Motor Corporation nor any other claimants through the Calhoun office were notified by letter of the necessity for registering for employment services in person.

The record reflects that plaintiff completed a Form 511 when she registered for unemployment benefits at the Armory on January 24, 1986. Plaintiff made repeated visits to the Calhoun DOL office between February and June 10, 1986, to inquire about her unemployment benefits and to ask whether jobs were available. On each occasion, plaintiff was told that no jobs were available. The record also reflects that fifty-two former striking employees completed their registration for employment services between January and June 1986, but only thirty-three job referrals were extended to these employees during that period. We note that twenty-eight of these referrals were made in May and June, after a union official had written a letter to the DOL complaining of alleged unfair treatment of the former striking employees. Defendant Gladys Johnson, an internal investigator for DOL, conducted an investigation and concluded that 210 jobs were available through employment services from January through June for which some or all of the striking employees would have been qualified for referral.

When plaintiff visited the DOL office on June 10, 1986, to inquire about employment, an employee of DOL discovered she was not on the computerized job referral list. Plaintiff completed a second Form 511 and was properly registered for job referrals. After June 10, plaintiff was referred to several job interviews but plaintiff claims she has been denied referral to other better paying jobs which she believes have been referred to others through DOL. Plaintiff’s complaint, as amended, was brought against four employees of the DOL and alleges the defendants negligently or alternatively, intentionally, deprived her of her rights guaranteed by the First and Fourteenth Amend-merits of the United States Constitution. Essentially, plaintiff claims that defendants discriminated against her because of her affiliation with a labor union and that defendants are liable for violating her civil rights pursuant to 42 USC § 1983. Defendants appeal the trial court’s denial of their motion for summary judgment.

1. Defendants first argue that they are entitled to “judgment on the pleadings” because the plaintiff’s complaint does not state a cognizable claim under 42 USC § 1983. In fact, defendants did not file a motion for judgment on the pleadings but filed a motion for summary judgment, which was denied. We affirm.

Plaintiff alleges that from January to June 1986, defendant Bobby Cochran (senior employee of the Calhoun office of the DOL) improperly refused to refer her to job opportunities through the DOL’s employment services because of her affiliation with a labor union. In June she was finally placed on the job service listing and was referred to several jobs. However, plaintiff further alleges that from June 1986 to the time of her amended complaint, she was improperly denied referral to better paying jobs for which she was qualified. Plaintiff alleges the remaining defendants, who are also employees of the DOL and are Cochran’s superiors, were made aware of defendant Cochran’s alleged illegal conduct but refused to stop him and, instead, aided in the furtherance of said conduct. Discrimination against members of a labor organization is actionable pursuant to 42 USC § 1983. Thomas v. Younglove, 545 F2d 1171 (9th Cir. 1976); Orr v. Thorpe, 427 F2d 1129 (5th Cir. 1970). Thus, to prevail on a motion for summary judgment, defendants must present uncontroverted evidence sufficient to pierce plaintiff’s allegations. See Ringer v. Lockhart, 240 Ga. 82 (239 SE2d 349) (1977). This defendants have failed to do.

Defendants presented evidence that, due to inadvertent error, the computers serving the Calhoun office were not programmed to send the Form 854 letter to any applicants for employment benefits. Thus, defendants argue plaintiff was not discriminated against because of her union affiliation but was treated exactly as any other applicant to the Calhoun office. “Inadvertent errors, honest mistakes, agency confusion, even negligence in the performance of official duties, do not warrant redress under [42 USC § 1983].” Silverman v. Barry, 845 F2d 1072, 1080 (D.C. Cir. 1988). However, the failure to inform plaintiff of the necessity of registering for employment services is not the gist of plaintiff’s complaint.

According to defendant Cochran, the written applications for employment services filled out by the former striking employees at the Armory were kept together in a stack on the desk of one of the DOL employees. Typically, the recipients of unemployment benefits are periodically called into the office for review of eligibility for benéfits. According to defendant Cochran, when an applicant who had registered for benefits at the mass claims assembly at the Armory reported to the DOL office, the stack of applications for employment services should have been checked so that registration for employment services could have been completed. Plaintiff’s undisputed deposition testimony indicates plaintiff visited the DOL repeatedly between January and June 1986 and always asked for job referrals. However, she was never registered for employment services and was repeatedly told no jobs were available for referral. The record reflects that approximately one hundred applications for employment services were contained within the stack of applications on the desk. However, only fifty-two former OMC employees were registered for employment services between January and June 1986 and only thirty-three referrals were extended to these registrants during that period, most of which were extended only after a complaint was registered lay a union official in May. Defendant Johnson concluded in the report of her investigation of said complaint that one or more of the striking employees were qualified for referral to 210 job openings referred by the DOL employment services during this period. This and other circumstantial evidence contained within the record raises an issue of fact concerning whether defendant Cochran’s failure to register and refer the former striking employees was the result of anti-union animus. See Missouri Nat. Educ. Assn. v. New Madrid County &c. School Dist., 810 F2d 164, 167 (8th Cir. 1987); N.L.R.B. v. Wal-Mart Stores, 488 F2d 114, 116-117 (8th Cir. 1973). The remaining defendants were made aware of these facts and circumstances as a result of an internal departmental investigation but apparently took no steps to correct the situation. Where a superior officer is cognizant of conflicts and discrepancies in evidence, but ignores them or fails to act on the information, then a jury may infer the officer implicitly approved or authorized the unconstitutional conduct of the offending officer. Bell v. City of Milwaukee, 746 F2d 1205 (31, 33) (7th Cir. 1984). We conclude that defendants’ motion for summary judgment was properly denied.

2. Defendants next argue that they are entitled to judgment as a matter of law because they are protected by the doctrine of official qualified immunity. It is uncontested that defendants’ immunity defense is governed by federal law. See Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317) (1982) cert. denied, 475 U. S. 1122 (106 SC 1640, 90 LE2d 185) (1983). According to the United States Supreme Court, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (102 SC 2727, 73 LE2d 396) (1982). Thus, the test for determining whether a defendant is protected from suit by the doctrine of qualified immunity is the objective reasonableness of the defendant’s conduct “as measured by reference to clearly established law . . . .’’Id. “[T]he appealable issue [on a claim for qualified immunity] is a purely legal one: whether the facts alleged (by the' plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law.” Mitchell v. Forsyth, 472 U. S. 511, 528 n. 9 (105 SC 2806, 86 LE2d 411) (1985). On a motion for summary judgment, if the applicable law was clearly established at the time the defendant acted, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U. S. at 818-819. The courts have long established that First Amendment protection of freedom of speech and association extends to membership in labor unions. See, e.g., Thomas v. Collins, 323 U. S. 516 (65 SC 315, 89 LE 430) (1945). If, as plaintiff alleges, defendants denied her equal protection of the law because of her union membership, then their conduct was violative of clearly established law and would not be protected by qualified immunity from suit.

Defendants’ reliance upon the holding in Childress v. SBA, 825 F2d 1550 (11th Cir. 1987), is misplaced. In Childress, the Eleventh Circuit Court of Appeals held that to withstand the defense of qualified immunity, the alleged violation must be of constitutional rights, not merely regulatory rules. In Childress, the court ruled that the plaintiff had been afforded due process in the denial of a government loan, even though the federal employees administering the loan program did not strictly comply with federal regulations requiring written notice of denial. In the case at hand, plaintiff alleges a denial of constitutional rights, and not merely a failure to follow departmental rules or procedures. As discussed in Division 1, above, defendants have not pierced these allegations. Therefore, the defendants are not entitled to qualified immunity from plaintiff’s claims.

3. In addition to the Section 1983 claim, plaintiff’s amended complaint also alleges common law negligence against the defendants. Defendants argue they are entitled to judgment as a matter of law as to plaintiff’s state law claim pursuant to the doctrine of quasi-judicial immunity. The record shows that at the time of the alleged acts, the Department of Labor was insured by a comprehensive general liability policy which expressly covers the negligent acts of the department’s employees while acting in their official capacities. “Because negligence in performing official acts is covered by this insurance, these officers’ official immunity is waived to the extent to which this coverage will pay for the claims asserted.” Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 303 (357 SE2d 569) (1987); see also Swofford v. Cooper, 184 Ga. App. 50 (5) (360 SE2d 624) (1987), aff’d 258 Ga. 143 (368 SE2d 518) (1988). Thus, summary judgment was also properly denied in regard to plaintiff’s negligence claim.

Decided January 13, 1989

Rehearing denied February 7, 1989.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Rita J. Llop, Assistant Attorney General, for appellants.

Harold D. Corlew, Walbert & Hermann, Paul D. Hermann, David H. Bedingfield, for appellee.

Judgment affirmed.

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


text:
    77462.
    MEDICS PHARMACEUTICAL CORPORATION v. NEWMAN.
    (378 SE2d 487)
   Pope, Judge.

Plaintiff Carol Lynn Newman was born June 23,1964. During her pregnancy, Mrs. Newman’s mother took a drug commonly known as DES. The drug was prescribed by Dr. Arthur A. Smith, an obstetrician, to prevent miscarriage. Dr. Smith testified he specifically prescribed Diastyl, a brand of DES marketed in the Atlanta area by defendant Medics Pharmaceutical Corporation. Defendant Medics did not manufacture the drug but purchased it from a manufacturer with the brand name and Medics’ corporate name on the label of each stock bottle. Medics marketed Diastyl to Dr. Smith and other physicians. Medics denied it ever promoted the drug for use in preventing miscarriage. The printed information included with each stock bottle, known as the “product insert,” listed several indicated uses for Diastyl but did not mention use for prevention of miscarriage. Nevertheless, evidence was presented that DES was commonly prescribed by physicians for preventing miscarriage at the time plaintiff was born.

In the early 1970’s a correlation was discovered between use of DES during pregnancy and subsequent development of genital cancer in the female offspring of mothers treated with DES, In 1980, at the age of sixteen, defendant was diagnosed as having clear cell adenocarcinoma and underwent surgery for the removal of her uterus, cervix and vagina. Plaintiff brought an action against defendant to recover for her injuries. Although the original complaint alleged causes of action for negligence, strict liability and breach of warranty, the sole issue presented at trial was defendant’s alleged negligence. Judgment was entered on the jury verdict awarding plaintiff $811,692.50 in damages. Defendant appeals.

1. Defendant contends the trial court erred in denying its motion for directed verdict because no evidence was presented by which defendant could be held liable to plaintiff in negligence. Defendant argues it cannot be held liable for injuries arising out of the use of Diastyl to prevent miscarriages because it did not recommend or market its product for that purpose. However, evidence was presented from which the jury could conclude that defendant knew or should have known that physicians were regularly prescribing DES to prevent miscarriages. Whether a manufacturer or distributor of DES should have foreseen it would be used for preventing miscarriages is a question of fact for the jury. Burel v. Berlex Labs., No. C84-1624A, slip op. at 7 (N.D. Ga. 1986). “The maker of an article for sale or use by others must use reasonable care and skill in designing it. . .so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable .... (Emphasis supplied.)” (Punctuation and citations omitted.) Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (319 SE2d 470) (1984). Because a jury issue was presented as to the foreseeability of the drug’s use to prevent miscarriages, a jury issue was also presented as to whether defendant used reasonable care in determining whether the drug was safe for that use.

During closing argument, plaintiff’s attorney stated to the jury that plaintiff does not claim defendant “did anything wrong in failing to tell the doctors that it could cause cancer.” Instead, plaintiff’s attorney based his closing argument on the theory that defendant was negligent in failing to inform the medical profession that the drug was not effective in preventing miscarriages. Dr. Smith testified that he was aware of studies questioning the efficacy of DES for preventing miscarriages but nevertheless prescribed the drug for that purpose because he had found it to be effective in his practice. Thus, defendant argues that its failure to warn the physician about the ineffectiveness of the drug was not the proximate cause of plaintiff’s cancer. Defendant further argues that the statement by plaintiff’s attorney in closing argument was an admission in judicio which would preclude plaintiff from recovering for defendant’s failure to warn of the danger of cancer. Even if plaintiff were precluded from recovering for defendant’s failure to warn of the specific, unknown danger of cancer, plaintiff was not precluded from recovering for breach of the general duty of a manufacturer to use reasonable care to provide a product which is reasonably safe for those purposes for which it could foreseeably be used.

“Negligence has no precise legal meaning. Among the best has been declared to be ‘the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.’ [Cit.] ” Ford Motor Co. v. Carter, 239 Ga. 657, 662 (238 SE2d 361) (1977). The issue raised by the evidence in this case was not whether defendant should have warned of a yet unknown danger but whether defendant used reasonable care and vigilance to discover whether any dangers were posed by using the drug, to prevent miscarriages. Regardless of the theories argued by the attorneys to the jury, sufficient evidence was presented to submit the issue of defendant’s negligence to the jury. Thus, the trial court did not err in denying defendant’s motion for directed verdict.

Decided January 24, 1989

Rehearing denied February 7, 1989

B. J. Roberts, Jack Dorsey, Peter J. Krebs, for appellant.

Gary E. Jackson, A. Russell Blank, for appellee.

2. We have considered defendant’s remaining eleven enumerations of error and find them to be meritless.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Pope, Judge,

text:
    77835.
    HENDERSON v. CAM DEVELOPMENT COMPANY.
    (378 SE2d 495)
   McMurray, Presiding Judge.

Plaintiff filed a petition in the probate court to remove an ob- .. struction from a private way. See OCGA § 44-9-59. It was alleged that plaintiff’s property is served by a private way which lies in part upon' land owned by defendant; and that defendant obstructed the private way by placing a fence across it. Defendant answered the petition, denying that plaintiff was entitled to a right of private way upon de-. fendant’s land.

The case was tried by the probate court sitting without a jury. Upon the conclusion of the case, the probate court denied plaintiff’s petition for removal. It determined that defendant’s property was . “wild land” and that plaintiff did not demonstrate 20 years use of the private way by prescription. See OCGA § 44-9-1.

Plaintiff’s motion for new trial was denied and he now appeals. ■ Held:

In order to remove an obstruction from a private way over im-' proved land, the user must demonstrate uninterrupted use for a period of seven years or more. OCGA § 44-9-59. In order to remove an-, obstruction from a private way over wild land, the user must demonstrate 20 years use. Watkins v. Country Club, 120 Ga. 45 (47 SE 538); OCGA § 44-9-1.

Determining that the private way was over wild land and that plaintiff used the way by prescription for less than 20 years, the probate court denied plaintiff’s petition for removal. Was the private way over wild land or was it over improved land?

“The descriptive words, ‘wild lands,’ as used in this section [OCGA § 44-9-1], are employed in contradistinction to the words ‘improved lands.’ Watkins v. Country Club, 120 Ga. 45. If a tract of land is cultivated in part, and a road through the entire tract traverses both field and woodland, the woodland adjacent to the field is not to be treated as ‘wild’ land. Kirkland v. Pitman, 122 Ga. 256. The land which the statute designates as ‘wild’ is that which is located separate and apart from lands which are partly in cultivation; it is a segregated tract of land remaining, as it were, in a state of nature, unenclosed, and with no indicia pointing to use by the owner. ...” Hopkins v. Roach, 127 Ga. 153, 154 (56 SE 303). Accord Smith v. E. B. Burney Constr. Co., 231 Ga. 772, 777, 778 (204 SE2d 93).

Defendant purchased its property in March 1986. It was situated in DeKalb County, Georgia and consisted of approximately 50 acres. Defendant developed the land into a subdivision.

Plaintiff resides on adjacent property. The property had been in plaintiff’s family for years. Plaintiff’s father built a house on it in 1955.

Plaintiff testified that the land which defendant purchased was “developed” previously. The land had been cleared and used as a picnic area by members of the community. Buildings and a barn were placed upon it. At one point, plaintiff used the barn for storage.

The buildings and barn were old and dilapidated and they had not been used for some time. But they had been there, nonetheless.

One of defendant’s officers testified that at the time defendant purchased the property there were no signs that it had been “utilized within recent years.” He saw “no sustained development or anything that would indicate any continued use or development of the property.” Another officer concurred: There were no “permanent” signs of development on the property. Asked if there were any old, dilapidated buildings, however, the officer allowed: “There was something that resembled trash piles down in there. There may have been part of a foundation that may have existed at one time somewhere in the center of the property, but nowhere in question right here.”

We think the foregoing evidence is susceptible to but one conclusion — defendant’s property was “improved” land. The evidence demonstrates that the land did not remain in a “state of nature.” See Hopkins v. Roach, 127 Ga. 153, 154, supra. It was cleared and built upon. The mere fact that the property may not have been used at the time it was purchased by defendant does not render it “wild land.” Indicia pointing to use by the previous owners remained. See Hopkins v. Roach, 127 Ga. 153, 154, supra.

Decided January 27, 1989

Rehearing denied February 7, 1989

Weeks & Candler, Terri A. Candler, for appellant.

Lawson & Fuller, John W. Lawson, for appellee.

Judgment reversed.

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

Pope, Judge,

dissenting.

As reflected in the majority opinion, conflicting evidence was presented at trial concerning whether defendant’s property had, at any time in the past, been developed. “The ‘any evidence’ rule applies in cases where the trial judge acts as the fact finder, and his judgment will not be disturbed if there is any evidence in the record to sustain it.” Harrison v. Harrison, 159 Ga. App. 578, 578-579 (284 SE2d 83) (1981); accord Barrell v. Gibson, 153 Ga. App. 621 (266 SE2d 308) (1980). Where evidence exists to support the verdict, it will not be disturbed unless clearly erroneous. Mullins v. Oden & Sims Used Cars, 148 Ga. App. 250 (251 SE2d 65) (1978); Evans v. Marbut, 140 Ga. App. 329 (231 SE2d 94) (1976). The verdict here, which was supported by testimony, was not clearly erroneous. The probate court judge in this case heard the testimony, was in a position to judge the credibility of the witnesses and was presented with demonstrative evidence in the form of photographs of the land in question which do not appear in the record on appeal. The trial court was in a better position to rule upon conflicting evidence than is this court and thus the verdict should not be disturbed.

       In view of its ruling, the probate court deemed it unnecessary to determine whether plaintiff used the way by prescription for seven or more uninterrupted years.


author: Banke, Presiding Judge.

text:
    77922.
    KIENEL v. LANIER.
    (378 SE2d 359)
   Banke, Presiding Judge.

The appellee sued the appellant to recover $65,000, plus interest, allegedly owed him pursuant to a promissory note and stock purchase agreement. The appellant denied liability, contending that he had signed the documents in question in reliance upon the appellee’s fraudulent misrepresentations that they did not obligate him to purchase the stock but merely gave him a 60-day option to do so. The appellant maintains that he was justified in relying on these alleged misrepresentations because a confidential relationship existed between himself and the appellee. This appeal is from the grant of the appellee’s motion for summary judgment.

The parties were directors, officers, and equal 25 percent shareholders of two corporations — KLM Precision, Inc., and LLMK Leasing Services, Inc. Prior to its incorporation in 1984, at least one of the companies, Leasing Services, Inc., had operated as a partnership in which the two parties had each held a one-fourth interest. The transaction which is the subject of the present action took place in 1986 and involved all of the appellee’s stock in both corporations. The purchase agreement and promissory note signed by the appellant unequivocally obligated him to pay the appellee $65,000, plus interest, for the stock within 60 days. The stock was placed in escrow pending such payment; and pursuant to the terms of a security agreement which the appellant executed along with the note and purchase agreement, the appellee was entitled to retain the stock in satisfaction of the indebtedness in the event the appellant defaulted in the payment of the note. However, the two corporations subsequently initiated bankruptcy proceedings, with the result that the appellee had no interest in exercising this remedy. Consequently, when the appellant defaulted on the note, the appellee initiated the present action to recover the purchase price of the stock.

The appellant maintains that during the closing the appellee assured him that he was not obligating himself to purchase the stock by signing the documents in question but was merely obtaining an option to do so. The appellee denies having made any such misrepresentations but contends that, even if such representations were made, the appellant would not have been justified in relying upon them under the circumstances. Held:

1. In his brief on appeal, the appellant refers to certain deposition testimony in which he claimed to be “super weak in English.” However, in that same deposition he testified that he had graduated from high school and attended college for approximately one year. Thus, the record contains no basis whatever for a finding that he was unable to read and understand what he was signing.

2. “The rule in this state is that where one who can read signs a contract without reading it, he is bound by the terms thereof, unless he can show that an emergency existed at the time of signing that would excuse his failure to read it, or that the opposite party misled him by an artifice or device which prevented him from reading it, or that a fiduciary or confidential relationship existed between the parties upon which he relied in not reading the contract.” Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421) (1975), citing Morrison v. Roberts, 195 Ga. 45 (23 SE2d 164) (1942). See also Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 59-60 (239 SE2d 381) (1977).

A fiduciary or confidential relationship arises “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” OCGA § 23-2-58. The law recognizes “that a confidential relationship may exist between businessmen, depending on the facts.” Cochran v. Murrah, supra, 235 Ga. at 307. However, the mere fact that two persons have transacted business in the past based on oral commitments or understandings and that they have come to repose trust and confidence in each other as the result of such dealings is not sufficient, in and of itself, to warrant a finding that a confidential relationship exists between them within the contemplation of the Code section. See, e.g., Davis v. Carpenter, 247 Ga. 156 (274 SE2d 567) (1981); Dixie Belle Mills, Inc. v. Specialty Machine Co., 217 Ga. 104, 105-6 (120 SE2d 771) (1961). “The mere fact that one reposes trust and confidence in another does not create a confidential relationship. ‘In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.’ Dover v. Burns, 186 Ga. 19, 26 (196 SE 785) (1938).” Lewis v. Alderman, 117 Ga. App. 855 (1) (162 SE2d 440) (1968).

In support of his contention that the evidence in this case would authorize the inference that a confidential relationship existed between himself and the appellee, the appellant places great reliance on this court’s decision in Vitner v. Funk, 182 Ga. App. 39 (2) (354 SE2d 666) (1987). There; a physician sued three other physicians, with whom he had formerly practiced medicine as a one-third shareholder in a professional corporation, to recover damages for the alleged wrongful appropriation of his share in a business venture undertaken by the parties involving the establishment of a “birthing center.” Although the plaintiff contributed both time and financial support towards the venture, he was not given any stock in the corporation which was ultimately formed to operate the birthing center. We held that a jury was authorized to award him damages under such circumstances for the breach of an implied partnership agreement, concluding that “the entire business structure of the parties, their interactions and dealings over the course of several years and their common goal, all furnished a basis for a jury to find a relationship in fact which justified the reposal of confidence on the part of one party and good faith on the part of the others.” Id. at 42.

The case before us is distinguishable from Vitner v. Funk in that it does not involve a transaction in which the parties joined together, as partners, promoters, joint venturers, or otherwise, to achieve a common business objective. Rather, the parties were engaged in a transaction with each other in an effort to further their own separate business objectives. Under such circumstances, the appellee was not under any duty to represent or advance the appellant’s interests. Compare Crosby v. Rogers, 197 Ga. 616 (30 SE2d 248) (1944) (wherein the parties jointly provided the funds to purchase certain real estate, but the defendant procured a deed naming himself as the sole grantee). Cf. Lariscy v. Hill, 117 Ga. App. 152, 154 (159 SE2d 443) (1968) (holding that the director of a corporation, in transactions with other directors involving the purchase of sale of the corporation’s stock, is not under a fiduciary duty to disclose all material facts relative to the value of the corporation’s property, as would be the case if he were dealing with a shareholder who was not a director).

Although the parties may have owed each other a fiduciary duty in other respects, there is no basis in this case for an inference that a fiduciary or confidential relationship existed between them with respect to the transaction at issue. It follows that the appellant was not entitled to disregard the plain language of the documents which he was signing. Accord Charles v. Simmons, 215 Ga. 794, 796 (113 SE2d 604) (1960); Thomas v. Eason, 208 Ga. 822, 827 (3) (69 SE2d 729) (1952). None of the remaining cases cited by the appellant can be considered authority for a contrary conclusion. In Cochran v. Murrah, supra, the parties were not business associates. Rather, the plaintiff was a farm laborer who had worked for the defendant for many years, living in a house provided by him and accepting without question whatever wages the defendant determined were due him. An employer-employee relationship was also involved in Capriulo v. Bankers Life Co., 178 Ga. App. 635 (344 SE2d 430) (1986), where the plaintiff was persuaded by his former boss to leave his existing job and come to work for the employer for whom the former boss now worked. We held that the plaintiff was entitled under the circumstances to rely on assurances made by his former boss to the effect that the new employer’s group health insurance plan would cover a pre-existing medical condition from which he was known to suffer. The relationship under consideration in Sutton v. McMillan, 213 Ga. 90 (97 SE2d 139) (1957), was that of brother and sister and was marked by a great disparity in education and business experience. The case of Sanders v. Looney, 247 Ga. 379 (276 SE2d 569) (1981), similarly involved a close blood relationship, as well as application of the principle that “ ‘(E)quity will not permit a person who is or is about to become, an administrator to profit from his transactions with the hiers to their prejudice.’ (Emphasis supplied.) (Cit.)” Id. at 381.

Decided January 24, 1989

Rehearing denied February 7, 1989

Alston & Bird, G. Conley Ingram, Walter G. Elliott II, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Scott F. Norberg, Mary G. Diehl, for appellee.

3. The appellant’s contention that he did not understand the legal effect of the documents which he signed is, in any event, refuted by undisputed evidence that after signing the closing documents, but prior to his default on the promissory note, he contracted to sell the shares of stock in question to the corporations’ remaining shareholder, pursuant to a written agreement in which he claimed unequivocally to be the owner of the shares. The evidence in this case thus affords no basis upon which the appellant can escape his obligation under the note and stock purchase agreement, with the result that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.