text:
    A94A2097.
    COCA-COLA COMPANY v. NICKS.
    (450 SE2d 838)
   Johnson, Judge.

Sonya Nicks was injured when she stepped into a partially uncovered manhole on the sidewalk adjacent to the headquarters of the Coca-Cola Company (“Coca-Cola”). The accident occurred as Nicks was leaving her job at Coca-Cola, where, as she asserts in her complaint, she had been working for several months as an employee on loan from Volt Temporary Agencies. Nicks collected workers’ compensation benefits from Volt, including a $20,000 lump sum settlement prior to initiating this premises liability action against Coca-Cola, Coca-Cola Enterprises and the City of Atlanta alleging negligent maintenance of the sidewalk. Coca-Cola Enterprises and the City of Atlanta were later dismissed from the suit. Coca-Cola moved for summary judgment asserting that, as a “borrowed servant,” Nicks’ sole remedy, as a matter of law, lay in workers’ compensation. We granted Coca-Cola’s application for interlocutory review of the trial court’s denial of the motion which concluded that , genuine issues of fact remain regarding Nicks’ employment status.

“In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant. All of these elements must exist and the element of the right to control relates specifically to the occasion when the injury occurred.” (Citations and punctuation omitted.) Sheets v. J. H. Heath Tree Svc., 193 Ga. App. 278, 279 (387 SE2d 155) (1989). See also Stephens v. Oates, 189 Ga. App. 6 (374 SE2d 821) (1988). Volt, the general employer in this case, assigned Nicks to work at Coca-Cola. Nicks was trained, supervised, and given assignments by Coca-Cola personnel, and worked alongside Coca-Cola employees at the same tasks. Nicks enjoyed the same privileges as those employees, including eating in the cafeteria, shopping at the Coca-Cola store, and using the credit union. She was subject to the same dress code and rules of the company. Coca-Cola had the exclusive authority to terminate her employment, a right which it ultimately exercised. We disregard the hearsay testimony proffered by Nicks in her affidavit given in opposition to Coca-Cola’s motion for summary judgment regarding who could control her work at Coca-Cola, as it directly contradicts her sworn deposition testimony. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). The record clearly establishes that Nicks was a borrowed servant at the time of her injury.

An employee, working as a borrowed servant, may recover for injuries sustained in connection with his work from either his general or special employer, or in some instances, both. Such recovery, however, is limited to those benefits available under workers’ compensation law. A plaintiff may not recover compensation benefits from one of the employers and maintain an action against the other employer in tort. U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182, 185 (196 SE2d 133) (1973). Nicks elected to recover workers’ compensation benefits from Volt. She cannot now recover in tort from Coca-Cola.

Alternatively, Nicks now suggests that she was employed by Coca-Cola Enterprises, Inc. rather than Coca-Cola. In so doing, she would transform Coca-Cola into nothing more than the owner of the premises on which she was injured. The record however does not support this metamorphosis. In her affidavit, Nicks states that she is unclear “as to the company I was assigned to, I am sure I handled accounts for both Coca-Cola Company and Coca-Cola Enterprises.” Because she admits to having been employed at least in part by Coca-Cola, this case is not controlled by our Supreme Court’s decision in Yoho v. Ringier of America, 263 Ga. 338 (434 SE2d 57) (1993), or this court’s recent decision in Dye v. Trussway, Inc., 211 Ga. App. 139 (438 SE2d 194) (1993), which applies Yoho. “In combination, OCGA §§ 34-9-8 (a) and 34-9-11 grant tort immunity to contractors who are secondarily liable for workers’ compensation benefits. Our law, however, does not grant tort immunity to owners, who are not contractors, even though they are in control of premises and are actively involved in the enterprise in which an employee was injured. [Cit.] An owner who is not a contractor owing an obligation of performance to another is not a secondary employer even if a subcontractor owes a duty of performance to the owner.” Id. at 140. In this case, by Nicks’ own admission, she worked at least partially for Coca-Cola. As an employer and not merely the owner of the property on which Nicks was injured, Coca-Cola is entitled to tort immunity. For the foregoing reasons, the trial court’s denial of Coca-Cola’s motion for summary judgment was error.

Decided November 18, 1994

Reconsideration denied November 30, 1994.

Freeman & Hawkins, Joe C. Freeman, Jr., Charles R. Beans, for appellant.

Ronald J. Freeman, Martin C. Jones, for appellee.

Judgment reversed.

Andrews and Ruffin, JJ., concur. Beasley, P. J., not participating.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A2499.
    GEORGIA POWER COMPANY v. LEONARD.
    (451 SE2d 74)
   Birdsong, Presiding Judge.

This is a discretionary appeal of the order of the superior court reversing the award of the State Board of Workers’ Compensation.

Appellee James E. Leonard suffered an on-the-job injury on August 17, 1992, when workers dropped their end of a steel rebar leaving appellee supporting the entire weight of the bar. Appellee began receiving compensation on August 19, 1992; however, benefits were suspended on November 4, 1992 on the grounds that on October 21, 1992, appellee was released to return to work, without restriction, by an authorized treating physician. Appellee sought a hearing to determine whether he had undergone a change of condition and to obtain resumption of total disability benefits from that date forward. The ALJ issued an award in favor of appellee and ordered resumption of benefits. Appellant Georgia Power Company appealed the award to the full board which in a 2-to-l decision reversed the award of the ALJ and determined benefit resumption was not appropriate. Appellee Leonard appealed to the superior court which set aside the decision of the board and remanded the case to the full board for further consideration of medical testimony. Held:

1. “In order for an employer to justify a unilateral suspension of an injured employee’s workers’ compensation income benefits based upon a change in condition for the better, the employer must show that the employee is able to return to work and that suitable work is available.”-Freeman v. Continental Baking Co., 212 Ga. App. 855, 856 (1) (443 SE2d 520). However, in satisfying its burden of proof in such an instance, the employer “is not required to show that a specific job offer has been made to the injured employee.” Id. Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) and related cases where a claimant returned to work following a period of disability are distinguishable and not controlling in this case.

Weight and credibility to be given testimony of witnesses and conflicts in evidence are for determination of the Workers’ Compensation Board and not the courts. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (4, 5) (224 SE2d 65).

2. Appellee argues that in arriving at its decision, the full board relied, at least in part, upon the medical records of Doctors Bholé and Cooper. With this assertion we agree. Appellee contends that these medical records, being hearsay, were erroneously admitted in evidence and that the records failed to comply with OCGA § 34-9-102. OCGA § 34-9-102 (e) (2) pertinently provides that “[a]ny medical report on a form prescribed by the board or in narrative form signed and dated by an examining or treating physician or other duly qualified medical practitioner shall be admissible in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, and prognosis by the person signing the report, as if that person were present at the hearing and testifying as a witness, subject to the right of any party to object to the admissibility of any portion of the report and subject to the right of an adverse party to cross-examine the person signing the report and provide rebuttal testimony within the time allowed by the administrative law judge.” Those medical records which were offered in evidence over objection at trial and which do not bear the signature of the examining or treating physician (such as the letter of Dr. Cooper of October 13, 1992) would not comply with the provisions of OCGA § 34-9-102 (e) (2). The letter from Dr. Bholé of October 26, 1992 is not a medical report within the meaning of OCGA § 34-9-102 (e) (2), rather that letter merely notifies appellant/ employer of the doctor’s “recommendation” that appellee/claimant “is advised” to return to his regular working duties without restriction. The letter at issue in Foster v. Continental Cas. Co., 141 Ga. App. 415 (233 SE2d 492) is factually distinguishable from the letter of Dr. Bholé and, therefore, Foster is not controlling. The letter of Dr. Bholé and the unsigned medical reports being hearsay were subject to objection and “should have been excluded.” Turner v. Baggett Transp. Co., 128 Ga. App. 801, 803 (2) (198 SE2d 412). Moreover, hearsay evidence is without probative value and will not establish a fact in issue even in the absence of timely objection. Williams v. Piggly Wiggly Southern, 209 Ga. App. 490 (433 SE2d 676); Feagin v. State, 198 Ga. App. 460, 461 (1) (402 SE2d 80). Without the benefit of this medical information, there does not exist in the record sufficient legal evidence to support the findings and award made by the full board; appellant/employer would be unable to carry his burden under Freeman, supra. To the extent that the full board relied upon inadmissible medical information, this would constitute in effect a misstatement of significant admissible evidence of record; a misstatement of significant evidence by the full board would be grounds for referral back to the board of an award even if otherwise supported by evidence where, as here, it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion. Fidelity &c. Ins. Co. v. Cigna/Pacific Employers Ins. Co., 180 Ga. App. 159, 162 (2) (348 SE2d 702). “Based upon the foregoing, we do not reach the question of whether . . . the award may have been supported by ‘any’ evidence and whether the superior court may have erred in reversing it for insufficient evidence.” Id. Accordingly, the trial court did not err in setting aside the award by the full board denying appellee a resumption of benefits based on change of condition and remanding the case for further consideration of medical evidence. On remand, however, the board will continue to exercise exclusive authority to weigh the evidence and judge witness credibility.

Decided November 9, 1994

Reconsideration denied November 30, 1994

Hugh B. McNatt, Troy L. Green, for appellant.

Wesley Williams, for appellee.

Swift, Currie, McGhee & Hiers, Robert R. Potter, Murphy, Murphy & Garner, Stephen E. Garner, Saveli & Williams, Michael Ryder, Byars & Slappey, E. Scott Slappey, amici curiae.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Smith, Judge.

text:
    A94A1469.
    MASSACHUSETTS BAY INSURANCE COMPANY v. WOOTEN et al.
    (450 SE2d 857)
   Smith, Judge.

Appellant Massachusetts Bay Insurance Company brought this action for declaratory relief to determine whether a driver killed in an automobile collision while driving a company vehicle was an insured person under a policy appellant issued to the driver’s employer. Appellees are the administrator of the decedent’s estate and tort claimants against that estate. The insurer’s position at trial was that the driver had exceeded the scope of his employer’s permission to use the vehicle and therefore did not fit the definition of an insured person under the policy. See generally Select Ins. Co. v. Register, 192 Ga. App. 145 (384 SE2d 238) (1989). At the close of the insurer’s case, the trial court directed a verdict in favor of appellees. This appeal followed. We reverse.

1. First and foremost, the trial court found the insurance company’s permission clause, “when taken in conjunction with the varying and elastic terms of permission promulgated by the decedent’s employer for use of its company vehicles” (emphasis omitted), violates public policy in that it circumvents legislative requirements for mandatory liability insurance. We agree with appellant that this ruling is in error. Whether the employer’s actions were sufficient to establish a definitive scope of permissive use of the vehicle, and whether the decedent was outside the scope of that permission, are questions separate and distinct from whether a “permission clause” is violative of public policy.

Even since the advent of compulsory liability insurance in 1977 the appellate courts of this state have upheld the validity of such clauses, holding that they may be relied upon under circumstances where an employee used a company vehicle in an expressly forbidden manner. Register, supra at 147; see also Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983) (Motor Safety Responsibility Act, OCGA § 40-9-1 et seq., reflects policy that “innocent persons who are injured should have adequate recourse for the recovery of their damages.”). Therefore, while it may be argued that the “first instance permission” rule should now be adopted in cases where an expressly forbidden use is not involved (a question avoided in Register, supra), this does not implicate the validity of permissive use clauses per se. The provision in question, which is identical in pertinent part to the one addressed in Register, supra, does no more than extend coverage to “[a]nyone [other than you] while using with your permission a covered ‘auto’ you own. ...”

In support of the court’s judgment, appellees argue that the insurer’s reliance on the employer’s formulation of intricate rules and policies regarding specific behaviors of their employees is nothing more than a way of “manipulating” the policy’s permission clause to avoid coverage. Examples cited by appellees include “wear seat belts” and “operate vehicles safely.” However, the insurer is not relying on the fact that the decedent was driving in an intoxicated condition at the time of death as the reason to deny coverage, but instead is arguing that he was driving the vehicle for a purpose expressly forbidden by his employer at the time of the collision.

Appellees also note that the employer tended to allow employees to drive vehicles for personal purposes with permission. Moreover, appellees point out that the decedent’s gasoline receipts reveal that he drove his company vehicle on days when he was not scheduled to work. While such evidence is arguably relevant to the question of whether decedent can be said to have been operating his vehicle with “permission” at the time of the collision, it in no way implicates the validity of the policy’s “permission clause.” We therefore agree with appellant that the trial court erred in directing a verdict on the ground that the permission clause is violative of public policy.

2. We likewise agree with appellant that the trial court erred in holding that an application of the first instance permission rule mandates a directed verdict in favor of appellees. “A directed verdict is authorized only where ‘there is no conflict in the evidence as to any material issue and the evidence (adduced), with all reasonable deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a).” Lawson v. Athens Auto Supply &c., 200 Ga. App. 609, 613 (5) (409 SE2d 60) (1991). Without question, the insurer presented evidence indicating that the decedent was expressly forbidden to use company vehicles for personal transportation. Moreover, the evidence offered regarding the circumstances surrounding decedent’s activities on the evening of his death was certainly sufficient to authorize a jury to find that the decedent was not driving directly from the job site to his home.

Specifically, viewing the evidence to support the existence of a jury question on the issue, we note that the collision occurred after 2:00 a.m.; that decedent’s workday ended at 5:30 p.m. that evening; that a fellow employee drove the decedent to a nude dance club immediately after work and returned him to the job site to pick up his company truck at about 9:40 p.m.; that it was the fellow employee’s understanding that decedent was intending to return immediately from the job site to the club; that decedent’s blood alcohol level registered .265 less than an hour after the collision; and that decedent must have continued drinking after 9:40 p.m. to have registered such a high blood alcohol level at 2:55 a.m.

Decided November 30, 1994.

Drew, Eckl & Farnham, Hall F. McKinley III, Douglas M. Baker, for appellant.

James A. Goldstein, Marci R. Rosenberg, Richardson & Chenggis, George G. Chenggis, for appellees.

The insurer presented a prima facie case authorizing a jury to find both that the decedent was driving the vehicle for a personal use at the time of the collision and that such personal use was expressly forbidden by the employer. The trial court therefore erred in directing a verdict in favor of appellees on this basis. Register, supra. Under the facts as urged by the insurer, we need not reach the question of whether the first instance permission rule, should be adopted as the law of this state. Id.

3. To the extent not addressed in Divisions 1 and 2, appellant’s remaining enumerations are moot.

Judgment reversed.

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

       Under the first instance permission rule, “permission granted to use a vehicle at the time of delivery to another extends to any and all use made of it by the bailee until it is returned to the owner, thereby affording coverage under the permissive use or omnibus clause of the policy.” Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 518 (3) (160 SE2d 844) (1968).


author: Blackburn, Judge.

text:
    A94A2412.
    LANE et al. v. CORBITT CYPRESS COMPANY, INC.
    (450 SE2d 855)
   Blackburn, Judge.

Appellants, William H. Lane and Barbara B. Lane, commenced the underlying action against appellee, Corbitt Cypress Company, Inc. (Corbitt Cypress), to recover damages for the replacement of the roof on their principal residence based upon a breach of contract and of warranty and by amendment, in tort. The trial court granted summary judgment for Corbitt Cypress and this appeal followed.

The record reflects that the Lanes purchased “80 squares” of cypress shake shingles from Corbitt Cypress in early January 1983. These were for use in roofing their new home which was then under construction. The shingles were shipped with installation instructions which prohibited the use of felt between the shingle courses. The instructions specifically warned that the use of felt between shingle courses would result in the retention of moisture, causing roof deterioration. By 1990, shingle deterioration on the Lanes’ roof necessitated the replacement of individual shingles. In late 1993, the deterioration was so extensive that the roof had to be replaced in its entirety at a cost of more than $27,000. A 1992 inspection of the roof conducted by Corbitt Cypress, at the Lanes’ request, resulted in a determination that the deterioration was attributable to improper installation in that felt had been used between shingle courses.

The Lanes contend that the grant of summary judgment was improper in that genuine issues of material fact exist on the issue of fraud. In particular, they assert that jury questions exist as to whether Corbitt Cypress passively defrauded plaintiffs by representing its shingles to be of “tidewater” quality, thereby tolling the applicable statute of limitation sufficiently to permit suit. We disagree.

“A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied.” (Emphasis supplied.) OCGA § 51-1-1. “Generally, a mere breach of a valid contract amounting to no more than a failure to perform in accordance with its terms does not constitute a tort or authorize the aggrieved party to elect whether he will proceed ex contractu or ex delicto.” Mauldin v. Sheffer, 113 Ga. App. 874, 877 (150 SE2d 150) (1966). In other words, “in the absence of injury to life or limb or damage to other property, only a cause of action in contract [is] available.” Kaiser Aluminum &c. Corp. v. Ingersoll-Rand Co., 519 FSupp. 60, 69 (S.D. Ga. 1981). See also E & M Constr. Co. v. Bob, 115 Ga. App. 127, 128 (153 SE2d 641) (1967).

In their original complaint, the Lanes asserted breaches of contract and warranty due to Corbitt Cypress’ representations that its cypress shingles were of “tidewater” quality and would last 40 to 45 years. They then contended by amended complaint that “[defendant], either negligently or intentionally, failed to deliver to the plaintiffs prime, tidewater red cypress as he had agreed to do, thereby defrauding and damaging the plaintiffs.”

The Lanes have not averred any injury independent of the contract or any damages other than to the shingles which were the subject matter of the underlying contract. They have not alleged or established any duty owed to them by defendant independent of the contract and the court properly granted summary judgment as to the tort claim and its tolling effect. Kaiser, supra at 69.

Plaintiffs failed to produce any evidence in support of their claim that defendant had specifically warranted that the shingles were “tidewater” cypress roofing shakes, or that they would last 45 years. Even if such warranties had been given, it is undisputed that defendant provided written installation instructions which specifically prohibited the use of felt between shingle courses and advised that such condition would result in the felt retaining moisture and the ultimate deterioration of the roof. The trial court did not err in granting defendant’s motion for summary judgment.

At summary judgment a movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences therefrom in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to an essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Decided November 30, 1994.

Bynum & Lewis, Joe H. Bynum, Jr., for appellants.

Macey, Wilensky, Cohen, Whittner & Kessler, Susan L. Howick, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Andrews, Judge.

text:
    A94A0965, A94A0966.
    KNOX ENTERPRISES v. TIMBERMEN, INC. et al.; and vice versa.
    (450 SE2d 834)
   Andrews, Judge.

Knox Enterprises appeals from the trial court’s grant of partial summary judgment to Timbermen, Inc. denying Knox Enterprises the right to recover “present value of future growth of timber.” Timber-men, Inc. cross-appeals from the trial court’s denial of its motion to compel production of the federal gift tax returns of Knox, Sr., the transferor of the real property to the partnership.

In 1983, 1984, and 1985, Knox, Sr., transferred to his four children by deeds of gift various parcels of real estate totaling over 500 acres. The children formed Knox Enterprises for the purpose of owning and managing the property.

On March 26, 1991, approximately 176 acres of this tract suffered wildfire damage. Knox contends that four separate fires were caused by sparks created by a tractor-trailer rig driven by a Timbermen employee down a road adjacent to Knox property. The tractor-trailer, used for hauling heavy equipment, was driven with the steel loading ramps in the down position, grating on the asphalt and causing sparks.

The complaint alleged that the fires “caused damage to certain real property . . . and damage to and/or the destruction of numerous trees growing on the Property.”

As a result of the fires, the trees from 154 acres were totally harvested and sold. The trees on the remaining 22 acres had to be thinned and the culled trees sold. There is no evidence in the record that any marketable timber was completely destroyed. Knox claims $22,709 in damages for the diminution of the market value of the cut timber. This item is not in dispute in this appeal.

Additionally, Knox claims at least $130,000 for the “present value of the future growth of the trees [harvested and sold].” Alfriend, a forestry consultant who had managed the property for Knox, deposed that the average age of the timber when it burned was 31 years and that this type of pine timber did not reach maturity until 41 years. There was evidence that trees add their greatest growth in their last ten years.

Case No. A94A0965

1. All five of Knox’s enumerations attack the trial court’s grant of partial summary judgment and its reliance on Southern R. Co. v. Crowe, 186 Ga. App. 244, 245 (1) (366 SE2d 846) (1988) as authority for it. They will be addressed together.

In Crowe, a fire caused by sparks from railroad equipment burned 83 acres of property containing timber of various sizes and 20,000 two-year-old seedlings two inches in diameter planted throughout the tract. A jury awarded Crowe $18,000 for the loss of her timber and $7,500 for the cost of reforestation of the 20,000 seedlings as incidental damage to the property. Southern appealed, contending that this was a double recovery.

The court charged the jury that damage sustained by Crowe was “the difference in the value of the land immediately before the fire and the value of the land immediately after the fire, that is, how much less was the land worth after the fire than before, having reference to the injury done by the fire. . . . The true measure of damages in a case of this kind is the diminution in the market value of the realty unless the value of the trees at the time and place of their being felled or burned, plus the incidental damages to the realty, exceeds the diminution in market value of the land. In which event the plaintiff in this case is entitled to recover the higher measure of damages.” The court further instructed the jury that Crowe could not recover her costs of reforesting the entire tract, i.e., the marketable trees which were cut and sold as timber, because “[t]o permit such a recovery would be a double recovery for the landowner, as the costs of replanting after timber has been removed is a part of normal business costs which are borne by the landowner.” Crowe, supra at 246 (1), citing Henderson v. Easters, 178 Ga. App. 867, 869 (1) (345 SE2d 42) (1986).

In the present case, the trial court rejected Knox’s attempt to extend the Crowe rationale to allow recovery, as an item of incidental damage to realty, of the anticipated value of future growth of the trees which had been harvested and marketed by Knox. We concur.

The Central R. &c. Co. v. Murray, 93 Ga. 256, hn. 1 (20 SE 129) (1893) established the rule that where “growing timber, much of it young and immature, is destroyed by fire as a consequence of a negligent tort, and there is no depreciation in the market value of the land by reason of the destruction of the timber, the measure of damages is the value of the timber destroyed in its then state as attached to the land on which it grew, which value is to be ascertained by evidence as to what the owner of the premises could, under all the circumstances, have realized from the timber destroyed, by appropriating it to use himself, to the extent of any demand for it made by his own wants at and about the time of the fire, and by selling it to others to the extent of any demand for it which then existed; the value to be reckoned at the worth of the timber as it stood upon the land when it was destroyed, not computing anything additional thereto for the increase which would have resulted from severing it from the realty, removing it to the place of use or sale, and putting it in condition to be used or sold. [Standing marketable timber such as this is called ‘stumpage.’]

2. Timber injured by the fire but not destroyed, is to be dealt with on the same basis, to the extent of the difference between its value as it was before the fire and as the fire left it.” Id. (Emphasis supplied.) See L. & N. R. Co. v. Kohlruss, 124 Ga. 250 (52 SE 166) (1905) (fences and ornamental trees burned, recovery allowed for diminution in value of the park, as a park, caused by a fire).

In Western &c. R. Co. v. Tate, 129 Ga. 526 (59 SE 266) (1907), the Supreme Court concluded that the principles set out in Murray and Kohlruss were not contradictory because “[e]ach was applicable to a peculiar phase of the evidence. If the jury should have found, from the testimony submitted, that the burning of the timber on the land diminished the market value of the land, then the measure of damages was the diminution of the value of the land resulting from the injury caused by the fire. L. & N. R. Co. v. Kohlruss, [supra]. On the other hand, if the jury should find that the growing timber was destroyed by the fire . . . , and there was no depreciation in the market value of the land by reason of the destruction of the timber, the measure of damages in such a case is the value of the timber destroyed in its then state as attached to the land on which it grew. Central R. Co. v. Murray, [supra]. The evidence was conflicting as to the effect of the fire on the market value of the land; and in such a case it is proper for the court to give in charge the measure of damages appropriate to either of these phases of the evidence.” See also, e.g., Milltown Lumber, supra at 349 (2); Wrightsville &c. R. Co. v. Barrett, 39 Ga. App. 612 (147 SE 916) (1929); Southern R. Co. v. Taylor, 76 Ga. App. 745, 758 (2) (47 SE2d 77) (1948).

Likewise, in Crowe, supra, there were two types of injury, incidental injury to the land suffered because of loss of the two-year-old seedlings which had no value as marketable timber, and damage to marketable timber. See also Davis v. Davidson, 175 Ga. App. 451 (333 SE2d 648) (1985).

Likewise, we must reject Knox’s contention that a “lost profits” analysis under DeVane v. Smith, 154 Ga. App. 442, 443 (1) (268 SE2d 711) (1980), is applicable to the anticipated future growth of harvested timber. DeVane involved the spraying of a cotton field with an improper insecticide which destroyed a single cotton crop. Such a crop is statutorily defined as “personalty,” OCGA § 44-14-101, because it is the fruit or product of a plant or tree, not the plant or tree itself, and the lost profit from that crop was recoverable. Id.; see also Crosby v. Spencer, 207 Ga. App. 487 (428 SE2d 607) (1993) (upon destruction of a peach orchard by improper spraying, grower allowed to recover profits for years the trees would have born fruit); Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 738 (3) (320 SE2d 863) (1984) (decline in production of dairy herd, also personalty, OCGA § 44-1-8, caused by poisoned feed allows recovery of lost production of living animals, not for ones which died).

Therefore, the partial grant of summary judgment as to the future growth of harvested trees was not error, since there is no legal basis for such a recovery.

Case No. A94A0966

3. In its cross-appeal, Timbermen alleges that the trial court’s refusal to grant its motion to compel production of federal gift tax returns from Knox, Sr., a non-party, was error.

The request sought production of returns for 1983, 1984, and 1985 (dates of gifts) for two tracts of land, one 96.7 acres and one 485 acres, as well as any appraisals of the property. After a hearing, the court conducted an in camera review of the requested documents and found “no information derived from the documents inspected is relevant to the issues in this case.”

In Borenstein v. Blumenfeld, 151 Ga. App. 420 (1) (260 SE2d 377) (1979), this court held that, while tax returns are not privileged, “this does not mean that income tax returns are automatically discoverable upon a de minimis showing of relevancy. Certainly the competing interest in an individual’s right to privacy must be accommodated in the discovery process.”

Here, Timbermen contends that the valuation of the entire tract in gift tax returns made six years and longer prior to the 1991 fire on a portion of the tract is relevant to valuation of the affected portion or likely to lead to such evidence. In State Hwy. Dept. v. Raines, 129 Ga. App. 123, 126 (2) (199 SE2d 96) (1973), this court found inadmissible evidence of a five-year-old sale to prove current value of condemned property because, among other factors, the sales were too remote in time.

Decided November 14, 1994

Reconsideration denied December 1, 1994

Macon & Knox, Barclay T. Macon, Jr., for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, Robert C. Hagler, David P. Dekle, for appellees.

“ ‘Trial courts have broad discretionary powers under the discovery provisions of the Civil Practice Act and appellate courts have consistently refused to interfere with the exercise of a trial court’s discretion except in cases of clear abuse. (Cit.)’ Opatut v. Guest Pond Club, 188 Ga. App. 478, 482 (9) (373 SE2d 372) (1988). There is no abuse evident here.” Travel Agency Group v. Henderson Mill Travel, 193 Ga. App. 882, 888 (3) (389 SE2d 511) (1989).

Judgments affirmed in Case Nos. A94A0965 and A94A0966.

Beasley, P. J., and Johnson, J., concur.

       See also Smith v. Gonder, 22 Ga. 353 (1857); Parker v. Waycross &c. R. Co., 81 Ga. 387 (8 SE 871) (1889); and Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 349 (2) (63 SE 270) (1908) for the genesis of OCGA § 51-12-50 dealing with damages for “timber cut and carried away” by a tortfeasor.


author: Ruffin, Judge.

text:
    A94A1358.
    SUTTON v. B & L EXPRESS et al.
    (450 SE2d 859)
   Ruffin, Judge.

Leon Sutton appeals the denial of his claim for workers’ compensation benefits against his former employer, B & L Express (“B & L”).

At the time of his injury, Sutton had been employed by B & L as a truck driver. While driving his truck one afternoon, Sutton began to feel sick, and after completing his delivery, he went home early. During the early morning hours he went to the emergency room and was diagnosed with congestive heart failure. The administrative law judge ruled Sutton’s claim for workers’ compensation benefits compensable.

On appeal, the full board denied Sutton benefits, finding Sutton’s claim of job-related stress was not a precipitating factor leading to the onset of symptoms; therefore, he did not suffer an accident arising out of or in the course of his employment with B & L Express. The superior court affirmed the board’s award and Sutton appealed.

1. Sutton asserts there is insufficient evidence to support the decisions of the board and the superior court. OCGA § 34-9-1 (4) provides in pertinent part that injuries shall not include “heart disease [or] heart attack . . . unless it is shown by a preponderance of competent and credible evidence that any of such conditions were attributable to the performance of the usual work of employment.”

“ ‘The question of preponderance of the evidence is a matter resting with the trier of facts and where the trier finds either way, it will not be set aside on appeal if there is any evidence to support the finding. (Cits.)’ [Cit.]” Gallman v. Coronet Indus., 182 Ga. App. 649, 650 (356 SE2d 654) (1987). “[U]pon appeal, the evidence will be construed in a light most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court. Neither the superior court nor this court has any authority to substitute itself as a fact-finding body in lieu of the board; an appellate body is bound by the ‘any evidence’ standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses.” (Citations and punctuation omitted.) A & P Transp. v. Warren, 213 Ga. App. 60, 62 (443 SE2d 857) (1994).

In this case there was ample evidence to support the board’s decision. Specifically, the board found the medical evidence showed Sutton had multiple risk factors for coronary disease, including hypertension, cigarette abuse, and obesity with adult onset glucose intolerance, none of which was shown to be attributable or related to his employment. While Sutton’s physician stated stress could have been a causative factor, he did not reach any conclusions regarding this point. Furthermore, the board found Sutton was not under any stress on the day in question. Therefore, the superior court did not err in affirming the full board’s decision.

2. We also do not find the decisions of the board and superior court contrary to law. Sutton contends that since OCGA § 34-9-1 (4) only requires the injury to be attributable to the “usual work of employment,” the board and superior court erred as a matter of law by relying on the fact that he was not engaged in “heavy physical activity” at the time he sustained his injury. This contention “is founded upon a mere misconstruction of the thrust of the board’s award.” Kaiser v. Great American Ins. Co., 130 Ga. App. 629 (204 SE2d 375) (1974). Although the board’s decision stated Sutton was not engaged in heavy physical activity, the thrust of its decision and the conclusion it came to was that the job stress Sutton complained of was not a precipitating factor in his heart failure.

Sutton also argues that our ruling in Colonial Stores v. Hambrick, 176 Ga. App. 544, 546 (3) (336 SE2d 617) (1985), that an “employer takes his employee as it finds him and assumes the risk of a diseased condition aggravated by injury” precluded the board from considering his pre-existing risk factors for heart disease. We disagree. Sutton would only be entitled to benefits if he could show his employment either directly caused his heart disease or aggravated his pre-existing condition to cause the heart disease. See id. at 545. In making this determination, the board would be authorized to consider whether Sutton’s existing risk factors alone caused his heart disease, whether any of those risk factors were caused by his employment, or whether any job-related conditions aggravated those risk factors to cause the heart disease. See A & P Transp. v. Warren, supra. Accordingly, we find no error.

Decided December 1, 1994.

Linzie F. Bogan, for appellant.

Anderson, Walker & Reichert, Elton L. Wall, Brown W. Dennis, Jr., for appellees.

3. Sutton’s remaining enumeration of error contending the board and superior court acted in excess of their powers is unsupported by argument, reference to the record, or citation to legal authority; it therefore is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). See Asbury v. Ga. World Congress Center, 212 Ga. App. 628 (3) (442 SE2d 822) (1994).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A2265.
    TUTTLE v. THE STATE.
    (450 SE2d 863)
   McMurray, Presiding Judge.

Defendant Tuttle entered pleas of guilty to two counts of aggravated child molestation, two counts of aggravated sodomy, and five counts of child molestation. The victim of each offense was defendant’s daughter. In this appeal, defendant raises two enumerations of error which relate only to his sentencing. Held:

1. In the first enumeration of error, defendant contends that the superior court erred in considering a report based in large part upon results of penile plethysmograph testing in determining defendant’s sentence since evidence of the results of such testing has been held inadmissible. Gentry v. State, 213 Ga. App. 24, 25 (2) (443 SE2d 667). However, we are unable to reach the merits of defendant’s contention since this issue was not preserved for appellate review by any objection below. While there was some reference at the sentence hearing to the report of which defendant now complains, and it was clearly apparent that the superior court had received and would consider the report, there was no objection to consideration of the report on the grounds now stated by defendant. This court will not consider issues raised for the first time on appeal. Chalker v. State, 184 Ga. App. 596 (1) (362 SE2d 152).

2. Defendant’s remaining enumeration of error maintains that the superior court erred in imposing as a condition of probation that defendant have no direct or indirect contact with his seven-year-old daughter until she reaches the age of majority. While defendant acknowledges that this court has upheld conditions of probation which restricted contact between family members for brief periods of time, he argues that the duration of the ban on contact imposed upon him is an abuse of the superior court’s discretion and a violation of his rights under the Fifth and Fourteenth Amendments of the Constitution of the United States.

“The trial judge is expressly authorized by OCGA § 17-10-1 (a) to ‘suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. . . .’ OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. Parkerson v. State, 156 Ga. App. 440 (274 SE2d 799) (1980). ‘A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.’ (Citations and punctuation omitted.) Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992).” Ballenger v. State, 210 Ga. App. 627, 628 (1) (436 SE2d 793). See also State v. Collett, 232 Ga. 668, 670 (208 SE2d 472).

In some instances a condition of probation involves a waiver of a defendant’s rights including those protected by state or federal constitutions. However, the conditions of probation are not imposed involuntarily, but are accepted by convicted criminals as a condition necessary to avoid incarceration in the penitentiary. Falkenhainer v. State, 122 Ga. App. 478, 480 (177 SE2d 380). Whether the waiver of rights required under the condition of probation amounts to an abuse of discretion depends upon whether it is “related to a legitimate purpose underlying the criminal justice system ... [or whether defendant’s] loss of rights relates in a rational way to the purpose underlying the sentencing objective, to prevent his involvement in criminal activity by monitoring his conduct while he serves the probationary part of his sentence.” Allen v. State, 258 Ga. 424, 425 (3) (369 SE2d 909). See also Land v. State, 262 Ga. 898, 901 (5) (426 SE2d 370).

A condition of probation which precludes contact between the perpetrator of a sexual crime and his victim bears a reasonable relation to future criminality especially where a family relationship provided the opportunity for the past criminal conduct. Potts v. State, 207 Ga. App. 863, 866 (3) (429 SE2d 526); Hardman v. Hardman, 185 Ga. App. 519, 521 (5) (364 SE2d 645) (overruled on other grounds Pender v. Witcher, 196 Ga. App. 856 (397 SE2d 193)); West v. State, 160 Ga. App. 855, 856 (4) (287 SE2d 694). As to the duration of the conditions of probation, we find that the general rule is that the conditions may remain in force for the period of probation and find no authority which would require curtailing the conditions of probation at an earlier date in the case sub judice. See Ballenger v. State, 210 Ga. App. 627, 629 (3), supra; Wyche v. State, 197 Ga. App. 148, 149 (3) (397 SE2d 738).

Decided December 1, 1994.

Summer & Summer, Daniel A. Summer, Chandelle Summer, for appellant.

Lydia J. Sartain, District Attorney, W. M. Brownell, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A2363.
    NOAKES v. ATLANTA CASUALTY COMPANIES.
    (450 SE2d 861)
   Birdsong, Presiding Judge.

Appellant Steven Lee Noakes filed suit against Maxine Thorpe and Allen Thorpe for injuries received while Noakes was a passenger in a Jeep driven by Allen Thorpe, who was an insured person under Maxine Thorpe’s automobile insurance policy. The insurer, Atlanta Casualty Company, refused to defend the lawsuit or pay the judgment, contending that Maxine Thorpe did not, as the policy requires, “ask us to insure [the vehicle] within thirty days after [she became] the owner and pay an additional premium if requested by [us].”

When Maxine Thorpe bought the Jeep from an individual on February 21, 1991, it was not operational. She says she did not want to notify the insurer and pay a premium until she determined whether her husband could repair the Jeep. The accident occurred on or about March 28, 1991, when Allen Thorpe took appellant Noakes on a test ride in the Jeep. This appeal is from a grant of summary judgment to Atlanta Casualty Company on the issue of coverage. Held:

Maxine Thorpe contends she did not “[become] the owner” of the vehicle when she acquired it on February 21, 1991, because it was not operational. She further argues she did not become the owner until the State of Georgia issued a certificate of title on March 26, 1991, because OCGA § 40-3-32 (d) provides that “as between the parties, a transfer by an owner is not effective until [the provisions of this Section] have been complied with.” Paragraph (a) of that statute requires that an owner transferring his interest in a vehicle “shall, at the time of delivery of the vehicle, execute an assignment and warranty of title to the transferee in the space provided therefor on the certificate of title . . . and cause the certificate and assignment to be delivered to the transferee”; Thorpe contends this means the transfer was effective only “as between the parties [to the sale]” (id. at (d)), and not as to a third party such as appellant Noakes.

We reject these contentions. Whether and when the vehicle was considered by any person to be “operational” is not a condition of the policy. The key to coverage under the policy was the date Thorpe became the owner, not the date the car came into service as a means of transportation. See Lumbermens Mut. Cas. Co. v. Commercial Union Assurance Co., 155 Ga. App. 908 (273 SE2d 649).

The full pertinent provisions of OCGA § 40-3-32 (d) are that “as between the parties, a transfer by an owner is not effective until this Code section .. . [has] been complied with; and no purchaser or transferee shall acquire any right, title, or interest in and to a vehicle purchased by him unless and until he shall obtain from the transferor the certificate of title thereto, duly transferred in accordance with this Code section.” (Emphasis supplied.) This Code section means that “as between the parties” (buyer and seller) the transfer is not effective unless and until the buyer obtains “from the transferor” the certificate of title. Maxine Thorpe got a certificate of title from the transferor on February 21, 1991. Moreover, the dispute in this suit is not “between the parties” to the sale. See American Mut. Fire Ins. Co. v. Cotton States Mut. Ins. Co., 149 Ga. App. 280 (253 SE2d 825).

Further, the “Certificate of Title” issued by the State of Georgia shows registration of the certificate of title already transferred by the seller. It is a statutory method of proving ownership but it is not the only proof of ownership (see Hightower v. Berlin, 129 Ga. App. 246 (199 SE2d 335); and see OCGA § 11-2-401 (2)), and it is not the sole determinant of ownership. The plain terms of the insurance policy concerning when the insured “becomes the owner” must be given their ordinary significance. Horace Mann Ins. Co. v. Drury, 213 Ga. App. 321, 322 (445 SE2d 272); OCGA § 13-2-3. No genuine issue of material fact remains that Maxine Thorpe “became the owner” of the Jeep on February 21, 1991; she did not within 30 days ask appellee to insure it and pay an additional premium as required by the policy. Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the respondent, we find the trial court correctly found no genuine issue of material fact exists to submit to a jury. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474); OCGA § 9-11-56.

Decided December 1, 1994.

John E. Pirkle, for appellant.

Brennan, Harris & Rominger, Richard A. Rominger, Julie D. Majer, Gabrielle M. Mann, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2579.
    CONQUEST CARPET MILLS v. HUGHES.
    (450 SE2d 865)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to determine whether the trial court erred in reversing the Workers’ Compensation Board’s finding that claimant’s injury occurred while he was on a personal errand and did not arise out of and in the course of his employment, and that this injury did not aggravate his previously existing condition. Held:

“The issue on appeal to the superior court is whether there is ‘any evidence’ to authorize a finding in accordance with the contentions of the prevailing party before the Full Board.” Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631 (331 SE2d 23). If there is, the superior court is bound to affirm the award. Mintz v. Norton Co., 209 Ga. App. 109, 110 (432 SE2d 583).

Appellee contends that as the evidence was stipulated and undisputed, the superior court could conclude as a matter of law, contrary to the board’s findings, that the injury arose in the course of employment and not while appellee was on a personal errand, and that the injury aggravated his previous condition. An inference from evidence is generally evidentiary in nature; even if evidence invokes certain legal or factual presumptions, such presumptions, are not absolute but may, in the opinion of the board, lead to one conclusion or another. See OCGA § 24-1-1 (6) as discussed in Zippy Mart v. Fender, 170 Ga. App. 617, 619 (317 SE2d 575). As to evidentiary inferences and legal inferences, see Wallace v. Higgs, 262 Ga. 437 (421 SE2d 69). At worst, the board’s findings on undisputed evidence were mixed questions of law and fact; review of those findings is controlled by the “any evidence” rule, which requires the superior court to construe the evidence in favor of the party prevailing before the board. See Cobb Gen. Hosp., supra. In the absence of precedential law that under identical evidence a certain legal conclusion, or “legal inference” (see Wallace, supra) is demanded, we reject appellee’s contention in this case that because the evidence is undisputed, the superior court could substitute its judgment for the board’s judgment as to whether the injury arose in the course of employment or during a personal errand, and whether the injury aggravated appellee’s previous condition. The superior court erred in reversing the award of the board.

Decided December 1, 1994.

Mitchell & Mitchell, Michael C. Cherof, for appellant.

McCamy, Phillips, Tuggle & Fordham, James T. Fordham, for appellee.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A94A1910, A94A1911.
    THE STATE v. BARRETT (two cases).
    (451 SE2d 82)
   Beasley, Presiding Judge.

In May 1991, Barrett, then Mayor of the City of Baldwin, was charged in indictment 91-CR76 with one count of interference with property of a municipality, OCGA § 16-7-24 (a), and two counts of misdemeanor theft by taking, OCGA § 16-8-2. He was also charged in indictment 91-CR77 with one count of felony theft by taking, OCGA § 16-8-2, one count of first degree forgery, OCGA § 16-9-1, and one count of theft by deception, OCGA § 16-8-3.

Barrett and the State negotiated a plea in return for first offender treatment on the felony theft by taking and forgery counts of 91-CR77 and orders of nolle prosequi on all other counts. The court accepted the plea and sentenced Barrett to five years probation as a first offender. See OCGA § 42-8-60 et seq. As part of the bargain, Barrett signed an agreement with the district attorney which provided that “the defendant, Tommy Lee Barrett, hereby agrees that he will resign as Mayor of Baldwin, and he will never again seek, run for, nor accept election or appointment to any public office. Should [he] ever default in this agreement, the State shall have the right to prosecute the defendant and the defendant shall be subject to prosecution in the Courts of this State or the United States, on any of the above cases, counts or alleged crimes regardless of any statute of limitations, right to speedy trial, or any other bar to prosecution.” The court’s order specified as a condition of probation that Barrett would not “seek, run for, nor accept election or appointment to any public office.” He did resign as mayor.

Barrett was granted discharge from probation on December 26, 1992, well before the designated five years had passed. In December 1993 he was again elected Mayor of Baldwin. On January 10, 1994 he was reindicted on all charges, with indictment 94-CR1S corresponding to original indictment 91-CR76, and indictment 94-CR2W corresponding to original indictment 91-CR77.

Barrett moved to dismiss the first two counts of indictment 94-CR2W on the basis of double jeopardy and the First Offender Act, OCGA § 42-8-60 et seq., and moved to dismiss all counts on both indictments on the grounds that he had successfully completed his sentence on the charges and that the reindictments were violative of due process and contrary to his plea agreement. After a hearing, the court dismissed all charges on indictment 94-CR1S and the first three charges of indictment 94-CR2W (i.e., the two counts of theft by taking and the count of first degree forgery). The court determined that the plea agreement’s prohibition on Barrett’s seeking public office did not survive the discharge of probation and that the two charges on 94-CR2W to which Barrett had originally pled guilty were barred by double jeopardy. The court analyzed the remaining charges on both indictments under the statute of limitation and all were dismissed except for the theft by deception count on 94-CR2W.

In Court of Appeals Case No. A94A1910, the State appeals from the dismissal of the charges in indictment 94-CR1S. In Case No. A94A1911, the State appeals from the dismissal of the charges in indictment 94-CR2W. Barrett does not challenge by cross-appeal the court’s refusal to dismiss the fourth count of indictment 94-CR2W.

In attempting to enforce the provisions of the plea agreement, the State cannot rely on the court-imposed condition of probation that Barrett not seek office; this was a condition of probation and ceased when probation ended. See Whitehead v. State, 207 Ga. App. 891 (429 SE2d 536) (1993). The question is the effect of the “Agreement” between the State and the defendant on the renewed charges.

The issues in these cases are distinguished not by their procedural separation, but by whether the separate charges were dismissed because of double jeopardy or the statute of limitation. The two appeals are combined and the two issues are addressed separately.

1. On the first two counts of 94-CR2W, Barrett had already pled guilty, been sentenced, and completed sentence for the crimes. The court properly dismissed these charges on the grounds of double jeopardy notwithstanding any outside agreement to the contrary. See Ga. Const. 1983, Art. I, Sec. I, Par. XVIII; OCGA § 16-1-7 (a). The State seeks to impose punishment not for the original crimes but for the later lawful act of seeking and obtaining public office. Reindictment on charges for which Barrett has completed sentence is merely a vehicle to fulfill that end. A person obviously cannot be twice convicted and punished for certain crimes because he did some other subsequent act. Barrett’s agreement to submit to such prosecution by waiving any bar to prosecution, regardless of the failure to mention double jeopardy, is ineffectual in regard to double jeopardy. The court could not impose additional punishment for these two crimes as punishment for seeking public office. Nor is it even reasonable to construe the agreement to mean that the parties agreed for Barrett to be prosecuted and punished twice for the same crime if he committed a different and lawful act.

The State’s attempt to extract additional punishment for these crimes would invade the court’s authority in sentencing. See OCGA § 17-10-1. It had already once determined the appropriate punishment, which had been carried out. It was not error to dismiss the two charges upon which Barrett had already served sentence.

2. The court relied upon the statutes of limitation in dismissing all counts of indictment 94-CR1S and Count 3 of 94-CR2W. After an order of nolle prosequi, a second indictment can properly be returned within the applicable statute of limitation. See State v. Davis, 201 Ga. App. 533 (411 SE2d 555) (1991). “ ‘The period of limitation runs from the commission of the offense to the date of the indictment.’ [Cit.]” Wiggins v. State, 208 Ga. App. 757, 759 (2) (432 SE2d 113) (1993). Both indictments at issue were returned on January 10, 1994. The period of limitation for the felonies in the indictments was four years, OCGA § 17-3-1 (c), and it was two years for the misdemeanors, OCGA § 17-3-1 (d).

The first count in indictment 94-CR1S was felony interference with property of a municipality, alleged to have occurred on June 30, 1989, more than four years before the January 10, 1994 indictment. The second count was misdemeanor theft by taking, alleged to have occurred March 14, 1990, more than two years before the indictment. The third and final count was also misdemeanor theft by taking, alleged to have occurred between April 12, 1990 and May 14, 1990, also more than two years before indictment.

On indictment 94-CR2W the first two counts were felony theft by taking and first degree forgery, the charges to which Barrett pled guilty and served sentence. The third count was felony theft by taking, alleged to have occurred on June 19, 1989, more than four years before the indictment. The fourth and final count was felony theft by deception, alleged to have occurred on March 23, 1990, within four years of the indictment; this was the only count the court did not dismiss.

The State concedes that, were it not for the plea agreement, the court was correct in concluding that the respective periods of limitation had run. It contends, however, that the plea agreement continued in effect after the discharge of probation and included an express waiver of the statutes of limitation or any other bar to the prosecution. Barrett contends that the statutes of limitation cannot be waived; the State asserts that they can and were.

OCGA § 17-3-1 (d) provides that “[p]rosecution for misdemeanors must be commenced within two years after the commission of the crime.” OCGA § 17-3-1 (c), which provides the four-year limitation period for the felonies at issue here, is similarly worded and equally silent on waiver. Barrett does cite decisions from other jurisdictions for the proposition that the criminal statute of limitation is jurisdictional and controls the court’s power to proceed. People v. Sweet, 254 Cal. Rptr. 567 (2nd Dist. 1989); People v. Superior Court (Jennings), 228 Cal. Rptr. 357 (2nd Dist. 1986); State v. McKinney, 768 SW2d 178 (Mo. App. 1989).

In the Georgia case of Dorsey v. State, 237 Ga. 876 (230 SE2d 307) (1976), it was held that the statutory provision currently found in OCGA § 16-1-8 (c), barring prosecution for a crime already prosecuted in the federal courts, established a procedural right and therefore did not unconstitutionally divest the superior courts of their constitutional “exclusive jurisdiction” over the trial of felonies. See Ga. Const. 1983, Art. VI, Sec. IV, Par. I. That case also stated “a statutory bar to a criminal prosecution and a statutory limitation upon a criminal prosecution are procedural prohibitions that do not affect jurisdiction in any way.” Dorsey, supra at 878. We conclude that in Georgia a statute of limitation on criminal prosecution does not affect the trial court’s subject matter jurisdiction.

Although the statute of limitation does not divest the court of jurisdiction, that does not resolve whether the protection can be waived in the manner attempted here. The issue does not seem to have been directly addressed. See Taylor v. State, 44 Ga. App. 64, 74-75 (2) (160 SE 667) (1931) (analyzed statute of limitation under the assumption it was a personal right which defendant could “insist upon, or abandon, as may suit his purpose”).

In examining whether Barrett’s waiver of the statutes of limitation was effective, it must be noted that he received first offender treatment for crimes for which he could have been barred from seeking public office for ten years. Ga. Const. 1983, Art. II, Sec. II, Par. III. We need not decide whether the waiver’s provision that he would “never” seek office would be enforceable beyond the ten-year period set out in the constitution because the State is attempting to enforce the agreement less than four years after the guilty plea.

The State argues that Barrett made a bargain with the district attorney and must be kept to it. As the State notes, agreements between the State and criminal defendants can be considered as “contracts.” State v. Hanson, 249 Ga. 739, 746 (3) (295 SE2d 297) (1982) (agreement not to prosecute in exchange for testimony primarily enforced); Martin v. State, 207 Ga. App. 861 (429 SE2d 332) (1993) (agreement to accept mandatory life sentence for two crimes enforced against defendant and constituted notice of “prior conviction” of mandatory life). Cases considering such agreements to be contracts, however, do not require the infusion of civil contract law into all criminal cases involving plea agreements. When examining plea agreements, “slavish adherence to contract law should be avoided.” Hanson, supra at 746 (3).

Considering this agreement as a contract is appropriate here. Barrett received first offender treatment for crimes for which he could have been barred from seeking public office for ten years. Ga. Const. 1983, Art. II, Sec. II, Par. III. It was not mandatory that he receive first offender treatment; whether to grant first offender treatment to any defendant is in the discretion of the court. OCGA § 42-8-60; Head v. State, 203 Ga. App. 730, 731 (3) (417 SE2d 398) (1992). Thus, Barrett was relinquishing a right he could retain only if he was found not guilty, in exchange for more lenient treatment he was not guaranteed to receive. There was consideration.

Treating the plea agreement as a contract, however, does not establish whether the protection of the statutes of limitation is a right that Barrett could waive. The only argument Barrett puts forth for the proposition that the statutes of limitation cannot be waived concerns the court’s jurisdiction, rejected above. Nor does the State advance any argument that the statutes of limitation may be waived, apparently relying solely on the position that they were waived in the agreement.

We see no absolute bar to a defendant’s waiver of the protection afforded him by the statutes of limitation. “‘“[A] defendant may waive rights which exist for his own benefit, [but] he may not waive those which belong to the public generally.” ’ [Cits.]” Collett v. State, 131 Ga. App. 411, 417 (2) (206 SE2d 70) (1974), rev’d on other grounds, State v. Collett, 232 Ga. 668 (208 SE2d 472) (1974). The statutes of limitation do not affect the jurisdiction of the court and does not benefit the public generally; the only person who will ever enjoy this protection is a criminal defendant. If that defendant wishes to waive the protection, no other party is harmed. As the protection afforded by OCGA § 17-3-1 is statutory in origin, does not affect the court’s jurisdiction, and is personal to an individual defendant, it is comparable to the speedy trial provisions of OCGA § 17-7-171, which can be waived. See Mize v. State, 262 Ga. 489, 490 (2) (422 SE2d 180) (1992). This comparability suggests that OCGA § 17-3-1 can also be waived.

In addition to the waiver of statutory rights such as OCGA § 17-7-171, a defendant’s ability to waive various rights given by the federal or state constitution is recognized. See Doggett v. City of Manchester, 201 Ga. App. 425 (411 SE2d 288) (1991) (waiver of right to jury trial); Collins v. State, 200 Ga. App. 71 (1) (406 SE2d 520) (1991) (waiver of right to confrontation). “Criminal defendants possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered ‘fundamental’ and personal to defendant, waivable only by the defendant. . . . Examples of fundamental decisions which only the defendant is empowered to waive are entry of a guilty plea, [cit.], waiver of a jury trial, [cit.], and whether to pursue an appeal, [cit.].” United States v. Teague, 953 F2d 1525, 1531 (11th Cir. 1992). Barrett himself waived the right to the protection of the statutes of limitation.

If the stringent standard used to determine whether a criminal defendant has effectively waived his right to jury trial is applied to Barrett’s purported waiver of the protection afforded him by the statutes of limitation, it appears the waiver was effective. “ ‘A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.’. . . [Cits.]” White v. State, 197 Ga. App. 162 (398 SE2d 35) (1990).

The record shows that Barrett signed a plea agreement, signed also by his counsel, explicitly waiving the right. Thus, we conclude that he was cognizant of the right waived and that the waiver was knowingly and voluntarily made. As Barrett can and did waive the statutes of limitation, the indictments can proceed without regard to the periods of limitation.

In ruling that the plea agreement’s prohibition had no effect after the termination of Barrett’s sentence, the court relied upon two cases. In Wyche v. State, 197 Ga. App. 148 (397 SE2d 738) (1990), the defendant was banished from five specific counties as a condition of his probation and was not to return “anytime.” On appeal, the defendant argued that the banishment was unlimited and therefore void. Although the language of the condition suggested it could be construed to be indefinite, we held that it was a condition of probation and was in effect only during the four years of probation. Id. at 148-149 (1). In Kerr v. State, 193 Ga. App. 165 (387 SE2d 355) (1989), it was held the trial court had erred in banishing defendants indefinitely from certain abortion clinics as a court-imposed condition for suspending their sentences.

Decided November 17, 1994

Reconsideration denied December 2, 1994

Michael H. Crawford, District Attorney, for appellant.

James N. Butterworth, for appellee.

The court’s reliance on these cases was misplaced. Each one dealt with conditions imposed by the court in sentencing rather than the enforceability of a separate agreement between the district attorney and defendant. Barrett, while represented by counsel, waived his right to rely upon the statutes of limitation in exchange for first offender treatment. This waiver, as part of an agreement between him and the State, is enforceable beyond the execution of his sentence.

In conclusion, then, in Case No. A94A1910, concerning indictment 94-CR1S, the court erred in dismissing the charges because of the statutes of limitation. In Case No. A94A1911, concerning indictment 94-CR2W, the court properly dismissed the first two charges because of double jeopardy, but it erred in dismissing the third charge because of the statute of limitation.

Judgment reversed in Case No. A94A1910; judgment affirmed in part and reversed in part in Case No. A94A1911.

Andrews and Johnson, JJ., concur.

       Although one charge remains pending, this case is directly appealable by the operation of OCGA § 5-7-1 (a) (1). See State v. Tuzman, 145 Ga. App. 481, 482 (1) (243 SE2d 675) (1978).

       Although the court’s order stated that these two charges were barred by “res judicata” the substance of the order was a finding of a bar by double jeopardy. See Ga. Const. 1983, Art. I, Sec. I, Par. XVIII; OCGA §§ 16-1-7; 16-1-8.


author: Birdsong, Presiding Judge..

text:
    A94A1973.
    MNM 5, INC. v. ANDERSON/6438 NORTHEAST PARTNERS, LTD.
    (451 SE2d 788)
   Birdsong, Presiding Judge..

Anderson/6438 Northeast Partners, Ltd. leased certain premises off Interstate 85 in Atlanta to MNM 5, Inc. d/b/a Mattress & More, commencing April 1, 1993. A large number of disputes immediately arose. Another tenant complained that MNM 5 was parking its delivery truck so as to obscure the road view of that tenant’s store; the landlord and the other tenants agreed what were “designated areas” for parking but according to an affidavit by MNM 5’s president Amjad W. Agha, MNM 5 decided the spaces in front of the stores were the “designated area” for parking; the landlord towed MNM 5’s delivery truck more than once; MNM 5 asserted a right to place mattresses in front of its store; there were disputes over renovations and a sign; MNM 5 did not provide a certificate of insurance; and appellee had to give notice of nonpayment of rent.

Anderson/6438 filed this dispossessory action in Gwinnett County on October 8, 1993. MNM 5 counterclaimed for damages for malicious interference, breach of contract, economic harm, trespass, breach of implied covenant of quiet enjoyment, and punitive damages not less than $1,000,000.

MNM 5 then filed a motion to dismiss contending that a suit MNM 5 filed against Anderson/6438 in Fulton County on September 17, 1993 is a prior pending action and should abate this dispossessory action. According to MNM 5, that suit alleges the same causes of actions as are alleged in this suit. Anderson/6438 filed a motion for summary judgment on its dispossessory claim. By order of January 20, 1994, the trial court denied MNM 5’s plea in abatement. The hearing on appellee’s motion for summary judgment was held February 14, 1994, and on February 15, 1994, the trial court granted judgment to Anderson/6438 on its dispossessory claim. MNM 5 filed a notice of appeal on March 9, 1994.

MNM 5 contends the trial court erred in denying MNM 5’s plea in abatement and in finding no issues of fact as to whether an effective tender of the $5,500 security deposit was made by MNM 5 and accepted by appellee, and as to other claims by MNM 5. Held:

1. The trial court’s denial of MNM 5’s motion to dismiss and plea in abatement was not a final judgment and was subject to interlocutory appeal. OCGA § 5-6-34 (b); see Atlanta Airmotive v. Newnan-Coweta Airport Auth., 208 Ga. App. 906 (432 SE2d 571). If meritorious, appellant’s plea would have abated these proceedings under OCGA § 9-2-44 (a); but instead of appealing the denial of its plea, MNM 5 let this dispossessory suit go to judgment, and now seeks to have that judgment overturned on the basis of a prior pending action.

When a direct appeal is properly taken from a judgment we must address all rulings which may affect the proceedings, but we are not required to address moot issues. OCGA § 5-6-34 (d). Even assuming these proceedings would properly have been abated for a prior pending action under such cases as Schoen v. Home Fed. Savings &c. Assn., 154 Ga. App. 68, 69 (267 SE2d 466) and Atlanta Airmotive, supra, it is too late to assert the plea now. The law of abatement for prior pending action is based on the doctrine that no one should be twice harassed for one and the same cause (Schoen, supra at 69; Atlanta Airmotive, supra); where a suit has gone to judgment without a final adjudication on a plea of abatement, the point of abatement is lost. Moreover, the judgment becomes the law of the case and if the judgment is upheld, prior ancillary rulings cannot be reviewed. See Bennett v. Caton, 154 Ga. App. 515, 517 (268 SE2d 786). Particularly with a denial of a plea in abatement for prior pending action, which the losing party did not seek to appeal so as to abate the later case and prevent himself from being “twice harassed,” we will not overturn a judgment against that party so that he can “twice harass” the winning party.

MNM 5 contends that after appellee moved for summary judgment on its dispossessory claim, MNM 5 “reasserted its plea in abatement.” But by going forward on the hearing on appellee’s motion for summary judgment on the dispossessory issue, MNM 5 embarked on a hearing on the merits of what it says is that “one and the same cause” for which abatement was denied, in an order which it did not seek to appeal. Even if the trial court could reconsider its ruling on the plea of abatement at the hearing on motion for summary judgment on the merits of the case (but see Williams-East v. Weeks, 156 Ga. App. 861 (1) (275 SE2d 801)), MNM 5 will not be heard to complain that the trial court then proceeded with the case, for by making no effort to appeal the first denial of its plea in abatement, MNM 5 facilitated the hearing on the merits. MNM 5 slept on its right to seek appeal of the denial of its plea in abatement, so MNM 5 has only itself to blame that these proceedings went forward. The question of abatement became moot when the proceedings moved to a judgment which we affirm.

Moreover, the transcript of the summary judgment hearing shows the plea was in fact not reasserted or reconsidered at that hearing.

2. The trial court did not make the specific ruling alleged by appellant, but granted summary judgment without giving its reasons. If the grant is right for any reason, it will be affirmed. Albany Oil Mill v. Sumter EMC, 212 Ga. App. 242 (3) (441 SE2d 524). The grant of summary judgment on appellee’s dispossessory claim is correct. There is no material issue of fact that appellant was in default for failing to pay the security deposit.

The lease required MNM 5, on or before April 1, 1993, to pay a security deposit of $5,500 to be held by landlord “into a regular business checking account, without liability for interest and as security for the performance by tenant of tenant’s covenants and obligations under this lease, it being expressly understood that such deposit shall not be considered an advance payment of rent or a measure of landlord’s damages in case of default by tenant.” The record and transcript of the summary judgment hearing show that MNM 5 did not pay the security deposit on April 1, 1993. On June 17, 1993, appellee sent a certified letter naming several defaults including failure to respond to a demand for a security deposit. This default was not cured within five days as required by the lease. On July 8, 1993, MNM 5’s agent sent appellee’s attorney a letter stating several contentions as to various ongoing disputes and enclosing a check for the security deposit in the amount of $5,500 “to hold in escrow until we present you with bills from the contractor we select and the landlord approves . . . the work on the premises.”

The lease requires an unconditional tender of the security deposit. A tender of money in payment of a debt must be equivalent to performance, certain and unconditional. See Smith v. Bank of Acworth, 218 Ga. 643 (129 SE2d 857). Appellant’s tender of a check to be held in escrow until it submitted bills for improvements which appellee approved, is evidently based on a lease provision that if tenant improved the premises as detailed in another provision, landlord would reimburse tenant for up to $5,500. But that provision could not take effect, and there could be no “reimbursement” by appellee, unless and until the security deposit had been paid, and it was never paid or tendered. A party may by his conduct waive a legal right but where the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless his acts or omissions to act are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of his conduct is possible. Marsh v. Wright Mem. Mortuary, 197 Ga. App. 736 (399 SE2d 232); Jones v. Roberts Marble Co., 90 Ga. App. 830 (2) (84 SE2d 469). The lease does not provide that the landlord’s failure to make demand on April 1, 1993 or on default waives the right to declare default. The notion that the landlord intended to waive its right to demand the security deposit is not the “only reasonable explanation” (id.) of its forbearance to demand payment on April 1, 1993. No unconditional tender of the security deposit was made, and the fact that the landlord did not immediately return the check did not amount to acceptance of it as payment of the security deposit. At best the requirement to pay a security deposit was suspended by the landlord’s indulgence, and the landlord gave reasonable notice of its intention to rely on the lease terms. OCGA § 13-4-4.

3. Summary judgment being correct for MNM 5’s default in paying the security deposit, we need not consider the remaining enumerations of error. Albany Oil Mill, supra. However, with regard to those issues, we find it in the interests of judicial economy to note that MNM 5’s dispute as to its right to the parking spaces is without bona fide controversy. OCGA § 9-15-14. The lease provides tenant may park one truck “in the designated parking area”; MNM 5 decided “designated parking area” meant any space MNM 5 designated. In common understanding a commercial landlord has the right to “designate” parking spaces unless the lease expressly provides otherwise. Further, there is no bona fide controversy whether MNM 5’s conditional tender of $5,500 complied with the unconditional requirement to pay the security deposit. See OCGA § 9-15-14. Further, the 796-page record in this dispossessory action shows MNM 5’s failure to pay the security deposit on demand and its pretense of paying the deposit while placing conditions on its tender which would hold the landlord hostage to approve whatever MNM 5 chose to do, may indicate such bad faith in its performance of the lease from its inception on April 1, 1993 and such contentiousness and litigiousness by MNM 5 as to bring into question the design with which it entered the lease. See OCGA §§ 13-6-11; 51-7-80. Further, by its own default in failing to make an unconditional tender of the security deposit even after notice of default, MNM 5 deprived itself of any right in the premises and any hope of economic benefit therefrom. Upon its failure to cure default within five days after notice on June 17, 1993, MNM 5 had no more right in the premises and disputes such as the disputes about a monument sign, parking rights, and the right to put mattresses outside the store became moot, if not pointless contentiousness.

Decided October 31, 1994

Reconsideration denied December 2, 1994

Slutzky, Wolfe & Bailey, Ray S. Smith III, Brookins & Cook, 0. Jackson Cook, Gray, Gilliland & Gold, Charles Ratz, for appellant.

Stribling, Cunningham, Newlin & Porter, John C. Porter, Jr., Lori S. D’Alessio, Warren N. Sams III, Thomas E. McCarter, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2236.
    PRIMUS PHARMACEUTICALS, INC. v. GLOVIER.
    (450 SE2d 832)
   Birdsong, Presiding Judge.

Primus Pharmaceuticals, Inc. appeals from a jury verdict and judgment finding in favor of Ralph Glovier in his suit claiming that Primus agreed to provide $200,000 in benefits to his estate on his death, payable out of a life insurance policy procured by Primus. Appellee Glovier initiated plans to start Primus as a company selling prescription drugs, and he served as president of the company. Through its board of directors Primus purchased a $1,000,000 “key man” life insurance policy on Glovier’s life, with Primus as beneficiary. According to Glovier, part of his company benefits included the agreement that out of the proceeds received by Primus from this insurance policy, Primus would pay Glovier’s estate $200,000. After Glovier learned he had cancer, he retired from employment with Primus. Thereafter, because of its declining business, Primus sold its “key man” insurance policy for $500,000. Primus then declared it had no obligation to pay Glovier’s estate $200,000 on his death because there was no insurance agreement in writing and, further, because a condition of the agreement was that Glovier must be in the employment of Primus at the time of his death. The jury returned a verdict finding that there was no such condition on Glovier’s entitlement to that money for his estate, and that he is entitled to it.

Primus contends the trial court erred in failing to charge the jury that a contract of life insurance must be in writing to be binding, and in failing to charge the definition of a contract of life insurance pursuant to OCGA § 33-25-1; erred in admitting testimony evidence of Glovier’s medical condition; and erred in denying Primus’ motions for directed verdict, judgment n.o.v., and new trial. Held:

1. The trial court did not err in failing to charge on the definition of a life insurance contract under OCGA § 33-25-1. Glovier’s suit is not a suit claiming breach of a life insurance contract. Rather, he claims Primus breached an oral agreement to pay his estate certain money, which happened to be a portion of the proceeds of a policy of which Primus was beneficiary. Glovier does not contend that Primus agreed to insure his life for him as beneficiary. According to OCGA § 33-25-1, a contract of life insurance is one whereby the “insurer” assumes an obligation to be performed on the death of the insured; an “insurer” is one who issues insurance. OCGA § 33-1-2 (4). As the evidence establishes conclusively that Primus was not an insurer, and this is not a claim against the insurer on a life insurance contract, a charge on OCGA § 33-25-1 was not authorized.

2. Neither was the trial court required to charge that a life insurance policy must be in writing to be binding (see Thomas v. Union Fidelity Life Ins. Co., 168 Ga. App. 267 (308 SE2d 609)); this suit was not filed to enforce a life insurance policy. This suit was filed to enforce Primus’ oral agreement to pay Glovier’s estate $200,000.

3. Primus asserts that as this agreement could not be enforced within a year, it was barred by the statute of frauds. However, the statute of frauds is not applicable to an agreement for an indefinite period terminable at will or where there is a possibility of performance in one year. Blum v. Air Center Gwinnett, 201 Ga. App. 313, 315 (411 SE2d 88).

4. Primus contends the evidence that Glovier retired from employment because of his “serious illness” was irrelevant to the enforceability of this agreement and highly prejudicial. However, inasmuch as the jury concluded that the agreement was not conditioned on a requirement that Glovier be employed by Primus at the time of his death, the admission of evidence that he retired because of his serious illness was, at worst, harmless. Moreover, the evidence was relevant to the jury’s consideration of the reasonableness of such a condition on the agreement and whether Glovier would reasonably have agreed to such a condition. See similarly Kolb v. Holmes, 207 Ga. App. 184 (2) (427 SE2d 562). Generally the law favors admissibility of any relevant evidence, however slight its probative value. Id.; Daras v. State, 201 Ga. App. 512, 513 (411 SE2d 367).

Decided October 31, 1994

Reconsideration denied December 2, 1994

Phillips & Messer, Arthur L. Phillips, for appellant.

Daryl J. Morton, for appellee.

5. As there is evidence to support the verdict, it cannot be said that the evidence and all reasonable inferences therefrom demanded a contrary verdict, and the trial court did not err in denying appellant’s motions for judgment n.o.v. and directed verdict (Moore v. American Suzuki Motor Corp., 211 Ga. App. 337, 341 (439 SE2d 43)), and for new trial.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Pope, Chief Judge.

text:
    A94A1093.
    SMITH et al. v. TRUST COMPANY BANK et al.
    (450 SE2d 866)
   Pope, Chief Judge.

Plaintiff Curtis Smith brought suit against his former employer, defendant Genuine Parts Company, d/b/a Rayloc (Rayloc), and defendant Trust Company Bank (Trust Company), alleging malicious prosecution, false arrest, libel, slander and negligence. Additionally, plaintiff’s wife, Carrie Smith, asserted a claim for loss of consortium. The trial court granted defendants’ motions for summary judgment on all claims, and plaintiff and his wife appeal.

On or about February 26, 1991, Trust Company was notified by account holder Robert Lee Smith, an employee of Rayloc, that an unidentified person had forged his signature and cashed his Rayloc paycheck. Upon preliminary investigation, Trust Company identified the check in question and obtained surveillance photographs which it believed were taken at the time the forged check was cashed. These photographs, along with canceled checks and the teller tape for February 21, 1991, indicated that on said date three Rayloc paychecks were cashed within approximately a ninety-seven second period. Specifically, a check made out to Richard Lewis Hines and endorsed by Hines and plaintiff was date-stamped as being cashed at 12:09 p.m. Plaintiff’s paycheck was date-stamped at 12:11 p.m. and was endorsed by plaintiff. The forged check also was date-stamped at 12:11 p.m. and contained only the forged signature of Robert Lee Smith. The record shows that these checks also were marked on the back by the bank teller who had cashed them with a number indicating the sequence in which they were presented.

All of the above information was given to Trust Company’s security department where it was assigned to one of the bank’s investigators, Gene Sorrells. According to Sorrells, he contacted Rayloc’s manager and was told that the manager believed that a Rayloc employee must have perpetrated the theft and forgery of the check in question. Upon review of the surveillance photographs, Sorrells determined that there was approximately a five-minute discrepancy between the precise time the forged check was cashed and the time printed on the photographs themselves. However, upon review of the photographs in their correct time sequence it is undisputed that Sorrells came to the conclusion that one of two men pictured at the time the check was presented was the perpetrator. The record shows that Sorrells asked the teller who cashed the check if she could identify either of the two men. The teller was only able to identify plaintiff, whom she said she recognized as a Rayloc employee. Moreover, the bank teller informed Sorrells that she would not have cashed a Rayloc paycheck for an individual who was not the named payee unless she personally knew the individual cashing the check was an employee of Rayloc. The record also shows that during his investigation Sorrells met with at least two Rayloc management employees, who also identified plaintiff as a Rayloc employee. Sorrells testified that at this point he believed he had conducted as thorough an investigation as he could as a bank employee, and that any further investigation required the participation of law enforcement personnel.

On March 26, 1991, Sorrells filed a report with Detective Brumbelow of the Atlanta Police Department and provided Brumbelow with the results of the bank’s investigation. The record shows that Brumbelow, a 30-year police veteran, reviewed the information and discussed the matter with Sorrells, and-then decided that there was sufficient information to issue an arrest warrant. Brumbelow testified that the decision as to whether to seek an arrest warrant rested with the Atlanta Police Department, and that having determined that probable cause existed, he sought and obtained a warrant for plaintiff’s arrest from the Atlanta Municipal Court.

Shortly after obtaining the warrant, Brumbelow, Sorrells and several Rayloc management employees met with plaintiff in a closed office at the Rayloc warehouse. Plaintiff was questioned about the incident and denied having forged and cashed Robert Smith’s paycheck. Plaintiff also claims that during the questioning he informed Brumbelow and Sorrells that the man behind him in the photographs also was a Rayloc employee and that they should investigate him. It is undisputed that after plaintiff was questioned he was arrested by Detective Brumbelow. Plaintiff was read his rights, handcuffed and taken out of the office to Brumbelow’s police car. The record also shows that plaintiff was fired by Rayloc after being arrested.

It is undisputed that on April 3, 1991, plaintiff and his attorney waived plaintiff’s right to a preliminary probable cause hearing. It also is undisputed that plaintiff was indicted on the charge of forgery in the first degree on May 3, 1991. On October 28, 1991, the district attorney nolle prossed the case, dismissing the charges against plaintiff. Approximately one year later, on October 27, 1992, plaintiff and his wife filed suit against Trust Company and Rayloc. Trust Company and Rayloc both filed motions for summary judgment and on November 1, 1993, the trial court granted their motions.

1. In their first enumeration plaintiff and his wife argue that the trial court erred in granting summary judgment to Trust Company and Rayloc as to the false arrest and malicious prosecution claims. Specifically, they contend that there are genuine issues of material fact regarding the existence of malice and lack of probable cause in this case. We disagree.

“Actions for false arrest and malicious prosecution both require evidence of malice and lack of probable cause to obtain a verdict. OCGA §§ 51-7-1, 51-7-40.” El-Amin v. Trust Co. Bank, 171 Ga. App. 35, 37 (318 SE2d 655) (1984). “Probable cause is absent when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused.” (Citation and punctuation omitted.) Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 92 (2) (427 SE2d 308) (1993). “Generally, lack of probable cause shall be a question for the jury, under the direction of the court. OCGA § 51-7-43. But, what facts and circumstances amount to probable cause is a pure question of law.” (Citation and punctuation omitted.) Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 129 (2) (b) (397 SE2d 563) (1990). In determining whether probable cause existed in this case, “the question is, not whether [plaintiff] was guilty, but whether [defendants] had reasonable cause to so believe — whether the circumstances were such as to create in the mind of [defendants] a reasonable belief that there was probable cause for the [arrest and] prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was [arrested and] prosecuted.” (Citation and punctuation omitted; emphasis in original.) McQueary v. Atlanta Airlines Terminal Corp., 198 Ga. App. 318, 319 (1) (401 SE2d 333) (1991).

Upon review of the record in this case, we conclude that there was probable cause to believe that plaintiff was guilty of the crime for which he was arrested. The fact plaintiff waived his preliminary hearing and the fact that he was subsequently indicted by a grand jury is prima facie evidence of the existence of probable cause. See Garmon, 207 Ga. App. at 93; see Parks v. Norred & Assoc., 206 Ga. App. 494, 497 (426 SE2d 12) (1992). Although such evidence is not conclusive, it does shift the burden to plaintiff “to come forward with specific facts tending to show that probable cause did not exist for his arrest and that the charges against him were instead motivated by malice.” Parks, 206 Ga. App. at 497. In this case, we conclude that plaintiff failed to meet this burden.

Additionally, the record evidence in this case clearly demonstrates the existence of probable cause. The investigation performed by Sorrells on behalf of Trust Company showed that plaintiff was in the bank at the time the forged check was cashed. Plaintiff’s check, the check plaintiff cashed for Mr. Hines and the forged check all were cashed within a very short period of each other. Moreover, it is undisputed that the date-stamp on both plaintiff’s paycheck and the forged check was 12:11 p.m. These checks all were cashed by the same teller and this teller was only able to identify plaintiff in the surveillance photographs Sorrells showed her. Additionally, the uncontroverted evidence shows that the teller specifically told Sorrells that she would not have cashed an endorsed Rayloc paycheck for a person that was not the named payee unless she personally knew that the person was a Rayloc employee. It is undisputed that plaintiff’s identity as a Rayloc employee was corroborated by at least two Rayloc management employees prior to the time Sorrells went to the police. Such evidence would excite the belief in a reasonable mind that plaintiff was guilty of the crime for which he was arrested and subsequently indicted. Consequently, the trial court properly granted summary judgment to Trust Company and Rayloc as to the claims for false arrest and malicious prosecution.

2. In his second enumeration, plaintiff contends that the trial court erred in granting summary judgment to Trust Company and Rayloc as to plaintiff’s claims of libel and slander. In addressing this enumeration, we note that there is no record evidence indicating that Trust Company or Rayloc ever directed or authorized any of their employees to slander plaintiff. It is well settled law in Georgia that “[t]he doctrine of respondeat superior does not apply in slander cases, and a corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.” (Citation omitted.) Lepard v. Robb, 201 Ga. App. 41, 42 (410 SE2d 160) (1991). Without evidence of such direction or authorization in this case, plaintiff’s slander claim must fail. We also note that plaintiff has not cited to any specific written evidence of record that would support his claim of libel. Consequently, we conclude that the trial court properly granted summary judgment to Trust Company and Rayloc on plaintiff’s libel and slander claims.

Decided December 2, 1994.

Lawrence E. Diamond, for appellants.

Kirwan, Goger, Chesin & Parks, P. Bruce Kirwan, Ed J. Novotny, Freeman & Hawkins, William H. Major III, for appellees.

3. In his final enumeration of error, plaintiff argues that the trial court improperly granted summary judgment to defendants as to plaintiff’s claims of negligence. In this appeal, plaintiff contends that both Trust Company and Rayloc were negligent in the way they handled the investigation of the incident in question. Specifically, plaintiff claims that Trust Company and Rayloc were negligent in failing to further investigate the incident. Additionally, plaintiff contends that his arrest and prosecution resulted from Trust Company’s negligence in cashing the forged check and Rayloc’s negligence in not having adequate safeguards to prevent the theft of the check. We disagree.

As set forth in Division 1 of this opinion, Sorrell’s investigation established the existence of probable cause in this case. As a result of the investigation, a reasonable mind would have believed that plaintiff was guilty of the crime for which he was arrested and prosecuted. Consequently, further investigation by Sorrells or Rayloc was not required and no duty allegedly owed to plaintiff was breached. Additionally, we conclude that neither Trust Company’s cashing of the forged check nor Rayloc’s alleged failure to take adequate steps to safeguard the check could be said to have had a reasonably close causal connection to plaintiff’s arrest and subsequent prosecution. Plaintiff’s arrest resulted from the finding of probable cause by Sorrells, Detective Brumbelow and a magistrate judge. Plaintiff’s subsequent prosecution resulted from his waiver of the preliminary probable cause hearing, the district attorney’s decision to present the case to a grand jury and the grand jury’s decision to indict plaintiff. Thus, the trial court properly granted summary judgment to Trust Company and Rayloc as to all of plaintiff’s negligence claims.

In light of the foregoing, we affirm the trial court’s grant of summary judgment to Trust Company and Rayloc as to plaintiff’s claims of false arrest, malicious prosecution, libel, slander and negligence. Based on the above, we also conclude that plaintiff’s wife’s claim for loss of consortium is meritless.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.