text:
    A97A1292.
    OWENS-BROCKWAY PACKAGING, INC. v. HATHORN.
    (488 SE2d 495)
   Johnson, Judge.

In this workers’ compensation case, claimant Terry Hathorn, an employee of Owens-Brockway Packaging, Inc., sustained a compensable injury to her back in 1990. In 1993 Hathorn missed work for approximately six months due to problems with her back which were unrelated to any specific job-related incident, returning in November 1993. In January 1994 she left work again, but returned a month later after receiving a full-duty release from her treating physician. She received disability benefits on both occasions. After returning to work in February 1994 Hathorn worked continuously on a full-time, full-duty basis without missing any time from work due to physical problems until January 1995 when she was involved in an automobile accident unrelated to her employment. The accident caused disabling injuries to the same area of her back as had been injured in 1990.

The ALJ found that because Hathorn was unable to successfully perform regular-duty work even before the 1995 automobile accident due to a continuation of symptoms related to her 1990 injury, she was entitled to income benefits for a change in condition as of the accident date. The appellate division reversed, finding that the preponderance of competent and credible evidence demonstrated that Hathorn’s present disability was a direct result of her automobile collision and not due to her condition prior to the accident. The superior court, in turn, reversed the decision of the appellate division and reinstated the ALJ’s award, holding that the ALJ’s finding “that the claimant was symptomatic and unable to perform regular duty work” due to her original, work-related injury was supported by the preponderance of the evidence. Owens-Brockway filed an application for discretionary review of the superior court’s judgment arguing that the superior court erred by weighing evidence to determine the preponderance of the evidence rather than applying the “any evidence” standard of review to the appellate division’s decision. We granted the application and, for the reasons that follow, reverse the judgment of the superior court.

When the superior court decided this case, the role of the appellate division in reviewing an ALJ’s order was in a state of some uncertainty as a result of a 1994 amendment to OCGA § 34-9-103 (a). Recently, however, the Supreme Court of Georgia interpreted and clarified the General Assembly’s revision of OCGA § 34-9-103 (a). In Bankhead Enterprises v. Beavers, 267 Ga. 506 (480 SE2d 840) (1997), the Supreme Court held that OCGA § 34-9-103 (a), as amended in 1994, authorizes the appellate division of the Workers’ Compensation Board to vacate an ALJ’s findings of fact and conclusions of law as unsupported by a preponderance of the competent and credible evidence, and to substitute its own alternative findings. That is precisely what was done in this case.

The 1994 amendment to OCGA § 34-9-103 (a) did not change the standard of review to be applied by the superior court in reviewing the findings of the appellate division. On appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to weight of the evidence or the credibility of the witnesses. American Intl. Adjusting Co. v. Davis, 202 Ga. App. 276, 277-278 (1) (a) (414 SE2d 292) (1991). The role of the superior court in reviewing a decision from the appellate division then is not to return to the original findings of the ALJ and evaluate whether that decision was supported by a preponderance of the evidence, but to review the appellate division’s order and make a determination as to whether it is supported by any evidence. If the appellate division’s reweighing of the evidence led to a conclusion different from that reached by the ALJ, the superior court is obligated to affirm it if there is any evidence to support it. Because there is some evidence in the record in this case to support the appellate division’s finding of fact that Hathorn was released to full duty in February 1994 and worked full time for almost a year prior to the automobile accident which aggravated her preexisting condition and to support the appellate division’s conclusion of law that no liability arises from disability resulting from a new accident unrelated to the worker’s employment, the superior court erred in reversing the decision of the appellate division. See Shuman v. Engineered Fabrics, 220 Ga. App. 636 (1), 637 (2) (469 SE2d 847) (1996).

Judgment reversed.

Pope, P. J., and Blackburn, J, concur.

Decided June 16, 1997

Reconsideration dismissed July 2, 1997

Wilson, Strickland & Benson, Earl B. Benson, Jr., Carolyn A. Seabolt, for appellant.

Morris L. Richman, for appellee.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A0695.
    SPRINKLES v. THE STATE.
    (488 SE2d 492)
   Johnson, Judge.

A jury found Jimmie Sue Sprinkles guilty of possession of methamphetamine and possession of marijuana with intent to distribute. She appeals from the convictions entered on the verdict.

1. In two separate enumerations of error, Sprinkles contends the trial court improperly denied her motion to suppress evidence seized from an overnight bag she was carrying at the time of her arrest. We disagree.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996).

Viewed most favorably to the trial court’s decision, the evidence shows that an officer from the City of Norcrbss Police Department responded to a call that a white male with stringy hair was attempting to enter a black truck near room 219 of the Apartment Inn. The officer arrived at the address and saw a man fitting that description run from a black truck into room 215. The officer went to room 215, knocked on the door and waited two or three minutes until Sprinkles and another woman opened the door. When the officer asked where the man was, the women denied that any man had run into their room. Noticing that the bathroom door was closed, the officer asked if the man was in the bathroom. The women replied that he was. The officer advised the women that he was investigating a report that someone matching the description of the man he saw run into their room had been attempting to enter a black truck in the parking lot. After stating that the truck was hers, Sprinkles told the officer that she wanted to leave. The officer told Sprinkles she could not leave until he confirmed the truck was hers, met with the man in the bathroom and talked to the person who called the police. Within “a couple of minutes,” a second officer arrived and the man came out of the bathroom. As they waited for the arrival of the person who called police, Sprinkles took her purse and an overnight bag, pushed the second officer out of the doorway and began walking down the sidewalk. One of the officers told Sprinkles that if she did not come back so he could complete his investigation, she would be arrested for obstruction. Sprinkles stated she was leaving and kept walking. The officer advised her that she was under arrest and grabbed her arm in order to handcuff her. Sprinkles began yelling at and fighting the officers. They forced her to the ground, handcuffed her and placed her in the back of the police car. While she was in the police car, one of the officers looked in Sprinkles’ purse for identification and, finding none, looked in her luggage. In it, he found envelopes containing $3,000 in cash and plastic bags containing substances which later tested positive for methamphetamine and marijuana. He found an additional $915 in cash in her purse.

Flight after a lawful command to halt constitutes obstruction of an officer. See Tankersley v. State, 155 Ga. App. 917, 919-920 (4) (A) (273 SE2d 862) (1980). And a person may commit obstruction where he knowingly and wilfully hinders an officer in investigating an offense committed by another. See Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861) (1992). The officers had grounds to arrest Sprinkles for obstruction when she pushed an officer aside and left after being told the officer needed to talk to her as part of the investigation and being ordered to wait. Since the arrest was lawful, the search of items within her immediate possession was lawful as a search incident to a lawful arrest. See Wade v. State, 184 Ga. App. 289, 291 (361 SE2d 266) (1987); Harley v. State, 183 Ga. App. 253, 254 (358 SE2d 653) (1987). That Sprinkles was already in the police car and no longer had immediate control over the purse or the overnight bag she had just been carrying does not require a different, result. The decisive factor is whether she was, at the time of the arrest, in recent possession of the object being searched. See generally State v. Tinsley, 194 Ga. App. 350, 351 (1) (390 SE2d 289) (1990). The search was also lawful as part of an accepted police practice to inventory an arrestee’s personal effects, turn them in, and account for them. See Harley, supra; see Garner v. State, 154 Ga. App. 839, 842 (2) (269 SE2d 912) (1980).

2. The trial court did not abuse its discretion in permitting the state to introduce evidence of chain of custody in reverse order. “The order of presentation of evidence is a matter that rests within the trial court’s discretion which will not be controlled unless abused.” (Citations and punctuation omitted.) McKinney v. State, 218 Ga. App. 633, 636 (4) (463 SE2d 136) (1995). “The only burden on the state is to show with reasonable certainty that the evidence examined is the same as that seized and that there has been no tampering or substitution. The state met this burden, and it was not error to admit the [evidence]. Any confusion about the [evidence] goes to its weight, not its admissibility.” (Citation and punctuation omitted.) Marshall v. State, 213 Ga. App. 186, 187 (2) (444 SE2d 130) (1994). We find no error with the admission of the evidence.

Decided June 16, 1997

Reconsideration denied July 3, 1997

Kenneth D. Webb, Jerome C. Ware, for appellant.

Daniel J. Porter, District Attorney, Karen E. Reed, Assistant District Attorney, for appellee.

3. Sprinkles’ final enumeration, that the trial court erred in denying her motion for directed verdict of acquittal, is not supported by argument or citation of authority and is deemed abandoned. See Court of Appeals Rule 27 (c) (2). In any event, because there was conflicting evidence and the evidence introduced did not demand a verdict of acquittal, this enumeration is without merit. See Duckworth v. State, 223 Ga. App. 250, 254 (3) (477 SE2d 336) (1996).

Judgment affirmed.

Pope, P. J, and Blackburn, J, concur.


author: McMurray, Presiding Judge.

text:
    A97A0053.
    In the Interest of M. L. et al., children.
    (488 SE2d 702)
   McMurray, Presiding Judge.

This is a termination of parental rights proceeding grounded on parental misconduct or inability. OCGA § 15-11-81 (b) (4) (A). The mother appeals the juvenile court judgment of termination of her parental rights, contending that the evidence is insufficient to satisfy the applicable standard of proof that a rational trier of fact could find clear and convincing evidence that her rights to custody have been lost. Held:

1. “Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is ‘clear and convincing evidence of parental misconduct or inability.’ For purposes of this case, a finding of ‘parental misconduct or inability’ must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If the first prong of the test is met, the trial court then considers whether the termination of parental rights is in the child’s best interests.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243).

Appellant and these two children initially became involved with the Department of Family & Children Services (“DFCS”) in August 1990 when a complaint was received that M. L., then 20 months of age, was wandering unsupervised in the street near appellant’s home. At that time and at most times prior to the filing of the petition for termination in January 1996, appellant resided with her mother.

An initial caseworker visit to appellant’s home in August 1990 found the home unsafe, unsanitary, and without usable cooking facilities. The children were removed from appellant’s custody but returned within a few days as an incentive to encourage a continuation of efforts to clean the home. However, a further home visit a few days later revealed that conditions had been allowed to deteriorate in that trash and clothes were strewn about the home in piles reaching the ceiling, and the kitchen stove was rendered unusable due to debris stacked on top of it. The children were once again removed from the home and a deprivation petition filed based on the living conditions in the home, the failure to supervise M. L., and upon the history of appellant’s mother who had a record of physical neglect and abuse of her own children.

Thereafter, a succession of reunification plans were developed. The common themes reflected in these reunification plans required an improvement in the living conditions in appellant’s home and the acquisition by appellant of essential skills for independent living and for child care. While there is some evidence that appellant was at least sporadically motivated and successfully completed some portions of the reunification plans, the overall environment appellant was able to provide for the children was never sufficient to permit the return of these two children to her custody. Meanwhile, three younger children were removed from appellant’s custody.

Appellant was born deaf and communicates primarily through the use of a non-standard sign language. Nonetheless, appellant was provided with sign language interpreters in many instances, and communication was accomplished by handwritten notes in others. While there may have been some failures to communicate effectively with appellant and the record shows specific instances in which the value of the services provided by DFCS was diminished by the absence of an interpreter, on balance the record shows that the communication problems were adequately addressed and that extensive services were provided to appellant over a five-year period designed to enable her to reunite with these children. There is evidence of some recent improvement in the appellant’s circumstances, particularly since the filing of the termination petition. Nonetheless, the evidence sufficiently supports the juvenile court’s order and judgment terminating appellant’s parental rights as to these two children.

In examining the four parts of the test for parental misconduct or inability, we find that appellant has explicitly conceded the first two issues, that is, appellant admits that the children were deprived when taken from her custody and that the cause of that deprivation was a lack of proper parental supervision and control. These admissions are corroborated by evidence presented during the termination hearing.

Addressing the question of whether there is clear and convincing evidence that the cause of the deprivation is likely to continue or will not likely be remedied, we note that appellant remains unable to demonstrate adequate parenting skills or any substantial capability for independent living. The director of a parenting skills program, in which appellant had recently participated with the aid of an interpreter, opined that appellant did not appear prepared to care for the children because she did not appear to understand the complexity of the children’s needs and what was required to properly care for them. The program director also referred to appellant’s low scores on an objective comprehension questionnaire and her lack of questions or participation in discussions during the parenting program. Although a DFCS community worker who had some knowledge of appellant’s circumstances opined that appellant could acquire the ability to care for the children if accomplished gradually over a period of two or more years and with the continued extensive assistance of extensive services provided by DFCS, this optimism finds little support in appellant’s past conduct. Appellant.has visited sporadically with the children, appearing for more than one-half of the scheduled visits but not infrequently skipping scheduled visits without any communication to the children or DFCS. Visits to appellant’s residence by the children were terminated after they both were injured in the course of such visits. During the time that the children have been in DFCS custody, appellant has not provided any support or gifts for the children.

During a lengthy recess in the termination hearing, appellant married and now lives in an apartment she shares with her husband. During most of appellant’s involvement with DFCS, she had continued to share her mother’s home, except for brief intervals, and it was usually the mother’s home where DFCS found the extremely unsanitary conditions which were not remedied. In contrast, DFCS has inspected appellant’s present apartment and found that the cleanliness of this residence is not an issue and that it would be adequate for the children. Nonetheless, the juvenile court was authorized to infer from the evidence of past conduct that it is unlikely that appellant will be able to sustain the improvements in her residence environment. In the Interest of R. N., 224 Ga. App. 202, 204 (1) (c), supra; In the Interest of B. J., 220 Ga. App. 144, 146 (1) (469 SE2d 313). Appellant had moved from her mother’s home on three prior occasions, and in each instance appellant returned to reside in her mother’s home within a brief period of time. The evidence sufficiently supported the juvenile court’s finding that the deprivation is likely to continue.

Decided July 3, 1997.

Carla J. Friend, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Rubin, Winter, Rapoport & Hall, Robert E. Hall, for appellee.

The record also sufficiently supports the juvenile court’s fourth finding, that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children. The deprivation is of such a nature as to naturally cause injury to the children. In the Interest of J. R., 202 Ga. App. 418 (414 SE2d 540). Additionally, a psychologist who evaluated the children testified that R. L. had developmental problems involving speech and language and M. L. appeared to have some depression and to be experiencing situational stress.

2. “[T]he same factors which show parental inability may also show that termination would be in the children’s best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). Although the mother contends she has now changed, judging the credibility of her good intentions was a task for the juvenile court. ‘(T)he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ (Citation and punctuation omitted.) [In the Interest of] D. I. W., [215 Ga. App. 644, 646 (451 SE2d 804)].” In the Interest of R. N., 224 Ga. App. 202, 205 (2), supra. Additionally, the juvenile court was authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care. In the Interest of M. R., 213 Ga. App. 460, 464 (1) (b) (444 SE2d 866). There was evidence that the children were very bonded with their foster mothers who desired to adopt them. The juvenile court did not err in terminating the parental rights of the mother to these two children.

Judgment affirmed.

Beasley and Smith, JJ, concur.


text:
    A97A0709.
    HARALSON v. THE STATE.
    (488 SE2d 497)
   Johnson, Judge.

Lee Haralson was charged with armed robbery. His first trial resulted in a hung jury. During the second trial, Haralson moved for a mistrial on the ground that the prosecutor impermissibly placed his character into issue when she elicited testimony intimating that he was a member of a street gang. The trial court granted his motion for mistrial but denied his subsequent plea of double jeopardy. Haralson appeals from the denial of his double jeopardy plea.

1. Haralson claims the trial court erred in failing to bar a retrial because the prosecutor intentionally provoked him into moving for a mistrial. We hold that the record supports the trial court’s finding that the prosecutor’s conduct was sufficient to justify the grant of a mistrial, but did not bar retrial.

"The general rule is that where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless the governmental conduct in question is intended to goad the defendant into moving for a mistrial.” (Citations and punctuation omitted.) Mobley v. State, 262 Ga. 808, 809-810 (1) (426 SE2d 150) (1993). In determining whether retrial is barred, the court looks to the intent of the prosecutor in the misconduct; such intent is a fact question for the trial court to resolve. Reed v. State, 222 Ga. App. 376, 378 (1) (474 SE2d 264) (1996). Even where a prosecutor’s conduct is sufficient to justify a grant of mistrial, the conduct nevertheless "does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the [djouble [jjeopardy [cjlause. ... To authorize the grant of a plea of double jeopardy, the facts must warrant the conclusion that there was such an instigative intention.” (Citations and punctuation omitted.) Williams v. State, 207 Ga. App. 124, 125 (427 SE2d 59) (1993).

The following events occurred during the second trial: A co-defendant who had pleaded guilty to participating in the armed robberies for which Haralson was being tried was called as a witness for the state. This witness testified that he, Haralson, and two other men committed the crimes. On cross-examination, the witness admitted that he did not tell law enforcement officers about Haralson’s involvement in the crimes until he decided to plead guilty. On redirect, the prosecutor asked the witness why he had not told the police about Haralson’s involvement in the crimes earlier. The witness responded that Haralson had threatened to kill him if he did. The prosecutor then asked the witness why he believed Haralson would follow through with the threat; in response the witness stated: “I’m in a gang, right?” The prosecutor asked the witness to state the name of the gang. At that point, defense counsel objected, and the jury was sent out. Defense counsel argued that the inquiry into alleged threats and gang membershipi placed Haralson’s character into issue. The court ruled that questions regarding the threats were permissible as being relevant to explain why the witness waited before telling police about Haralson, but instructed the prosecutor not to “go into anything about gangs.” The court added that the prosecutor was not to pursue any matters “which might even arguably put the man’s character in issue.” The court told the prosecutor not to question the witness about his reasons for believing the threat would be carried out. The prosecutor responded that the gang membership questions should be permitted because the reason the witness hesitated to cooperate was that he and Haralson were in the same gang, and gang members will harm other members who “snitch” on each other. The prosecutor also argued that the relationship between the witness and the defendant is always relevant. After a brief recess, the court ruled that testimony of the threat would be allowed, but that testimony concerning gang membership would not be permitted. The prosecutor then asked the court if she could examine the witness concerning bandannas, the colors of bandannas, and whether Haralson wore a blue bandanna that night, since there was evidence that the perpetrators were wearing bandannas. The court ruled that the prosecutor could ask the witness who wore bandannas, but that that had “nothing to do with gangs.” The court added that the question of why the men had bandannas relates to Haralson’s character and implied that such an inquiry was not permissible.

When the trial resumed, the prosecutor asked the witness a series of questions regarding bandannas and gang membership. Specifically, she asked the witness whether he was a member of a gang, which gang, if he had a bandanna, whether two other co-defendants were gang members, whether they had bandannas, what color the bandannas were, and whether Haralson had a bandanna that night and what color it was. The witness’ answers indicated that each of Haralson’s co-defendants had a blue or black bandanna and was a member of a gang, and that Haralson had a blue bandanna. Defense counsel moved for a mistrial.

In the hearing on the motion for mistrial, the prosecutor defended her line of questioning by arguing that she did not ask if Haralson was in a gang. She explained that she asked who had bandannas and what colors they were because the information was relevant to other evidence identifying the perpetrators. The prosecutor stated that she asked the witness about his and the other co-defendants’ gang affiliations because she wanted to disclose this information reflecting on the credibility of the state’s witnesses before the defense did. The prosecutor added that she had previously informed the court in a bench conference, which was not transcribed, that she intended to show that the co-defendants testifying for the state were members of a gang. She added that the court had given her permission to do so. As noted below, the trial court did not deny this. The prosecutor argued further that the court authorized her to ask about bandannas, and that no one told her she could not ask the questions about bandannas and other witnesses’ gang membership “back to back.” The court responded that the prosecutor “may be technically correct but [was] being disingenuous.” In granting the motion for mistrial, the trial court acknowledged that it had authorized the prosecutor to inquire into the “status” of the state’s witnesses and to question witnesses about the bandannas. However, the trial judge held that a mistrial was required because the order in which the questions were posed constituted character evidence.

At the subsequent hearing on the motion to bar retrial, the prosecutor pointed out that she sought, and understood that she had received, prior approval from the trial court to ask the questions at issue. After hearing argument from both sides, the trial court found that the questions at issue had been approved by the court before being posed to the witness and, though the sequence of the questions was problematic, concluded that the questioning did not amount to prosecutorial misconduct. Noting that it had considered the totality of circumstances surrounding the trial, the court found that the intention of the prosecutor was to convict Haralson, not to cause a mistrial.

The trial court’s finding of fact that the prosecutor did not intend to cause a mistrial is supported by the record. The trial court did tell the prosecutor that she could inquire into the gang membership of the state’s witnesses and the wearing of bandannas by the witness, Haralson and the co-defendants. The prosecutor asked permissible questions in a manner which had the same effect as asking the impermissible questions. We do not condone the prosecutor’s conduct. While she may or may not have violated the letter of the trial court’s instruction not to delve into issues of Haralson’s gang membership or his character, she certainly violated the spirit of the ruling. As Judge Birdsong pointed out in Oliver v. State, 216 Ga. App. 76, 78 (453 SE2d 746) (1995), “there often exists a thin line between legitimate prosecutorial tactics and prosecutorial overreaching.” Here the prosecutor deliberately chose to challenge that line. While the trial court in this case found that the prosecutor “skirted,” rather than crossed, the line and did not intend to cause a mistrial, the court could have just as well been authorized by the record to reach the opposite result. However, because there is evidence to support the trial court’s finding of fact that the prosecutor lacked instigative intent, Haralson’s plea in bar based upon double jeopardy grounds was properly denied. See generally Sanders v. State, 197 Ga. App. 867 (399 SE2d 734) (1990).

Decided July 3, 1997

Viveca B. Farnber, for appellant.

Lewis R. Slaton, District Attorney, Carla E. Young, Kirby Clements, Jr., Assistant District Attorneys, for appellee.

2. Haralson argues the trial court erred in failing to articulate the standard it used in determining there was no prosecutorial misconduct barring retrial. In the written order, the trial court denied the plea in bar “based upon the Court’s finding that the State did not deliberately engage in any misconduct with the intent of securing a mistrial. Reed v. State, [Cit.]” As discussed above, in Reed, supra, this Court specifically set out the applicable double jeopardy standard as being the intent of the prosecutor in the misconduct, with intent being a fact question. Thus, the trial court did indicate the standard it applied in reaching its decision. Although Haralson complains that the trial court gave no indication as to how it evaluated the prosecutor’s intent, he cites no authority requiring that the court include such information in the order. In any event, the court specifically stated that it considered the totality of circumstances surrounding the trial in reaching its decision. This enumeration is without merit.

Judgment affirmed.

Pope, P. J, and Blackburn, J., concur.


author:
Birdsong, Presiding Judge.
      ELDRIDGE, Judge,

text:
    A97A0710.
    DRUG EMPORIUM, INC. v. PEAKS et al.
    (488 SE2d 500)
   Birdsong, Presiding Judge.

After appellees Joann Peaks and Eric Jackson filed their complaint for false imprisonment, false arrest, slander, intentional infliction of emotional distress, loss of consortium, and bad faith against Drug Emporium, Inc. and Super Discount Markets d/b/a Cub Foods and both defendants were served with the summons and complaint, appellant Drug Emporium did not file a timely answer. Defendant Super Discount Markets filed its answer, but appellees dismissed the complaint against Super Discount Markets. On December 29, 1995, default judgment was entered against appellant.

Appellees pled in some 46 paragraphs the averred facts that set forth two theories of recovery that were ultimately presented to the jury: (1) false imprisonment; and (2) false arrest. Such averments set forth that Mary Wilson attempted to pass a forged check with appellant but that it was detected as being forged; Wilson disappeared from the store, and appellant’s employees began a search including going next door to Cub Foods where they incorrectly identified Peaks, had the Atlanta Police Department called, had Cub Foods security detain Peaks and her husband, had them taken to appellant’s store by the police, had them identified incorrectly by its store employees, and caused Peaks to be arrested for forgery which caused her to be held for 14 hours in custody. The complaint also pled that Wilson was arrested and confessed which led to the release of Peaks.

The complaint also averred that appellant’s employees did not merely report the felony but searched the premises of Cub Foods, twice falsely identified Peaks as the perpetrator, caused others to detain not only Peaks but also her husband, Jackson, and then had them taken to the manager’s office of appellant where they were detained while a second identification was made and a discussion took place about the arrest of Peaks. The complaint alleged that appellant “acted in bad faith, ha[s] been stubbornly litigious, and/or ha[s] caused plaintiffs unnecessary trouble and expense.” The complaint prayed “that plaintiff Joann Peaks be awarded punitive damages as a result of defendant Super Discount Market, Inc.’s wilful or grossly negligent conduct, which indicated a wanton disregard for the rights of plaintiff, in an amount not less than $500,000; that plaintiff Eric Jackson be awarded punitive damages as a result of defendant Super Discount Market, Inc.’s wilful or grossly negligent conduct, which indicated a wanton disregard for the rights of plaintiff, in an amount not less than $250,000; that plaintiff Joann Peaks be awarded punitive damages as a result of defendant Drug Emporium, Inc.’s wilful or grossly negligent conduct, which indicated a wanton disregard for the rights of plaintiff, in an amount not less than $500,000.”

The complaint alleged inter alia that the arrest of the plaintiffs was instigated and effectuated at the direction of employees of Drug Emporium, Inc. The body of the complaint, however, does not aver that the facts averred constitute aggravated circumstances authorizing the imposition of punitive damages under OCGA § 51-12-5.1 (b); that is, it is not averred in the body of the complaint that the facts alleged constituted “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

On January 10, 1996, appellant filed its answer and moved to open the default. Attached to the motion to open default was the affidavit of Monique Jobs. The affidavit stated that she was the employee of C T Corporation Systems (“C T”) whose job it was to receive service; that C T was the agent for service of appellant; that service was made on September 5, 1995; that she had the complaint and summons delivered by Federal Express to appellant at 155 Hidden Ravine Drive, Powell, Ohio 43065; that a receipt from appellant was returned to C T on September 7, 1995; and that C T did not notify local counsel for appellant or appellant’s insurance carrier. The affidavit of Donna Talley, assistant to the vice-president of appellant, stated that the complaint was received from C T; that it was facsimiled to Daniel James Insurance Agency, Inc., Toledo, Ohio, general agent for its liability carrier General Insurance; that C T forwarded various other pleadings over the next several months; that on January 3, 1996, a default judgment was received; and that until the default judgment was received, it did not know that no answer had been filed. The affidavit of Patricia K. Page, senior claims representative for Daniel James Insurance Agency, Inc., indicated that she received the facsimile but she does not have any transmission report to the Atlanta office of General Insurance. The affidavit-of Neita Conley, claims supervisor for General Insurance, states that it never received notice of the suit from its agent.

The trial court heard the motion to open default on February 29, 1996. On June 11, 1996, the motion to open default was denied.

The suit came to jury trial on the issue of damages on June 11, 1996; a verdict was returned on June 14, 1996; and a judgment was entered on July 2, 1996, in the amount of $4,000 for necessary expenses, $82,000 for pain and suffering, $7,500 for loss of consortium, and $150,000 for punitive damages.

Although appellant filed its motion for new trial after oral argument on the motion, the trial court denied appellant’s new trial motion. Thereafter, appellant timely filed its notice of appeal. Held:

1. Appellant’s first enumeration of error is that the trial court erred in denying appellant’s motion to open default.

Appellant admitted receipt of the summons and complaint on September 5, 1995. Appellant then waited 117 days until after a default judgment was entered against it, before filing its motion to open the default under OCGA § 9-11-55. After the initial service, C T received additional subsequent pleadings for appellant, which were passed on to appellant and which appellant placed in its files without further inquiry as to the suit until it received the default judgment.

Where a defendant has been properly served and relies upon the insurer, the insurance agent, or counsel to file an answer timely, the failure of the defendant’s agent, counsel, or insurer is imputable to the defendant in determining the presence or absence of excusable neglect. See Pulliam v. Nichols, 202 Ga. App. 95 (413 SE2d 215); U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707). Excusable neglect means a reasonable excuse or justification for failure to answer timely; it is “ ‘ “that neglect which might have been the act of a reasonably prudent person under the same circumstances.” ’ ” (Citations omitted.) Ezzard v. Morgan, 118 Ga. App. 50, 53 (3) (162 SE2d 793); see Security Mgmt. Co. v. Keasler, 131 Ga. App. 230 (205 SE2d 515).

The failure of the insurance agent to deliver the summons and complaint to the insurer and the failure of the defendant to check timely on the suit within the 45 days are omissions which the trial court, in its discretion, can find do not constitute “excusable neglect.” Conversely, the trial court in its discretion could have found that the case sub judice was an “appropriate case” to open default, but it did not.

The affidavit of the claims agent stated conclusions, not facts, upon which the trial judge could exercise sound discretion; the affidavit failed to set forth a “ ‘good and meritorious defense.’ ” Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 229 (202 SE2d 698); see also Town of Thunderbolt v. River Crossing Apts., Ltd., 189 Ga. App. 607 (377 SE2d 12). Where the conditions precedent to the opening of default have not been met, the trial court does not abuse its discretion in denying a motion to open the default. See Taurus Productions v. Maryland Sound Indus., 155 Ga. App. 147 (270 SE2d 337); B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131 (230 SE2d 331); Ga. Hwy. Express Co. v. Do-All Chem. Co., 118 Ga. App. 736 (165 SE2d 429).

The role of the appellate court, in reviewing a grant or denial of a motion to open default is the determination of whether all the conditions have been met and, if so, whether the trial court abused its discretion under the facts and circumstances. Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223 (438 SE2d 686). We find that the trial court did not abuse its discretion in denying the motion to open the default judgment in the case sub judice.

2. Although the trial court did not abuse its discretion by denying Drug Emporium’s motion to open the default, this case is so procedurally and substantively defective that the judgment of the trial court awarding punitive damages cannot be affirmed. We cannot affirm an award of punitive damages in which the trial court declined to follow the procedures and standards now required by OCGA § 51-12-5.1, awarded punitive damages against appellant Drug Emporium to a party who did not pray for them, and charged the jury based on an outdated punitive damage Code section.

(a) Prejudicial error occurred in this case by the giving of an outdated charge on punitive damages consistent with the provisions of OCGA § 51-12-5. In charging the jury regarding the basis for an award of punitive damages, the court stated that “the jury may give additional damages either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiffs” (Emphasis supplied.) While this is an accurate statement of the former law, see OCGA § 51-12-5, the current punitive damages statute, applicable to this case, expressly does not allow punitive damages as compensation for wounded feelings or otherwise, but solely to “punish, penalize, or deter a defendant.” OCGA § 51-12-5.1 (c). Thus, the trial court’s charge plainly was incorrect. The only issues remaining, regarding this matter, are whether appellant properly excepted to the charge and whether the error was harmless.

Appellant expressly objected to the trial court’s charge on punitive damages on the ground that the punitive damages statute had been changed. Appellant’s attorney specifically referred to the new statute, OCGA § 51-12-5.1, and stated that he had believed the court would charge portions of the new statute. The trial court responded: “I would have charged [the new statute] but [the plaintiff] wanted to insist on his position on the request he made. I gave it the way he wanted it.” Appellant’s exception clearly was sufficient to bring the issue to the trial court’s attention and preserve the issue for appeal. Appellant’s third enumeration of error on its face unequivocally is broad enough to assert this error to this Court. While appellant’s argument of this issue is not so apparent in its appellate brief, when viewed in its totality, we find that the argument advanced, although not a model to be followed,, did suffice to prevent this issue from being abandoned.

However, pretermitting whether appellant adequately preserved this question on appeal by taking a timely, adequate exception to the trial court’s charge of the old statute rather than the new statute and by sufficiently arguing this particular issue in its appellate brief, is the issue whether this was an error of such nature and magnitude as to constitute a plain error of which an appellate court can take notice sua sponte. It clearly is such. It is a general appellate rule that in “exceptional circumstances . . . appellate courts may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633). Recently our Supreme Court, after holding that both errors not raised and errors not timely raised generally are waived, stated: “In the future, however, except in cases of ‘plain error,’ enumerations of error not timely raised and/ or argued shall be waived.” (Footnote omitted.) Lynd v. State, 262 Ga. 58, 60-61 (8) (414 SE2d 5). “ ‘Plain error’ is that which is ‘so clearly erroneous as to result in a likelihood of a grave miscarriage of justice’ or which ‘seriously affects the fairness, integrity or public reputation of a judicial proceeding.’ ” (Citation omitted.) Id. at 61, n. 2. Inherent in this holding is that “plain error” is not so waived.

In Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547), our Supreme Court listed four types of erroneous jury charges as to which reversal will occur though no exception thereto was taken. Among those erroneous charges are those which are of a kind likely to influence a jury either to find against a defendant or to return a larger verdict than it might have otherwise done and those which are blatantly apparent and prejudicial to the extent the erroneous charge raises the question of whether the losing party has to some extent at least been deprived of a fair trial because of it. The erroneous charge here at issue was of a kind likely to influence a jury to find an award in favor of plaintiffs merely to compensate for their wounded feelings and also is so blatantly in error as to raise the question whether, as to at least the award of punitive damages, appellant was deprived of a fair trial because of the erroneous charge. Thus, on either of these two Foskey grounds, the charge here at issue constituted plain error within the meaning of Lynd, supra, and the error is preserved for appellant’s consideration and correction.

The correct legal basis (as distinguished from the correct legal standard — an issue discussed in subsequent subdivisions in this opinion), which would support an award of punitive damages by the jury, was a substantial issue in these proceedings. It is beyond dispute that “ ‘the trial court has a duty, even in the absence of a request, to charge the jury the law as to every substantial and vital issue in the case. . . .’ [Cit.]” Agnew v. State, 267 Ga. 589, 591 (2) (481 SE2d 516). Notwithstanding speculation unsupported by the record regarding the effect of this error, it cannot be said this critical charging error was harmless, as the erroneous charge (purporting to address the proper legal basis for an award of punitive damages) erroneously allowed the jury to award punitive damages merely for the wounded feelings of the plaintiffs. It also did not address the correct legal basis supporting an award and inform them that punitive damages no longer could be awarded as compensation. OCGA § 51-12-5.1 (c). Moreover, as held by Foskey, supra at 737 (2), “‘“[wjhenan error in the charge of the court is shown to exist, it is presumed to be' prejudicial and harmful, and this court will so hold unless it appears from the entire record[, which as to this error it does not,] that the error is harmless.” ’ ” (Citations omitted.) Based on this error alone, reversal of the punitive damage award is required.

(b) Secondly, although not enumerated as error or argued in Drug Emporium’s appellate brief, appellee Jackson is not entitled to punitive damages because the complaint’s prayer for relief contains no specific prayer for punitive damages (OCGA § 51-12-5.1 (d) (1)) on his behalf from Drug Emporium. Instead, his prayer for relief sought punitive damages only from a co-defendant who was dismissed from the case after Drug Emporium’s default. Therefore, he failed to meet the requirement of OCGA § 51-12-5.1 (d) that his complaint specifically pray for punitive damages. This error is subject to appellate review for the reasons stated in Division 1, supra. Lynd, supra; Foskey, supra; Kearney, supra.

This error was not cured by the charge to the jury. At various times the charge discussed punitive damage awards to both appellees/plaintiffs for false arrest or false imprisonment but, at a later point, instructed the jury that appellee Jackson’s only claim was for loss of consortium. Because the charge to the jury was so misleading as to create a fair risk the jury would conclude that punitive damages could be awarded to both plaintiffs against Drug Emporium, because the verdict form was so ambiguous as to allow a lump sum award of punitive damages to both plaintiffs, and because the verdict and judgment on their face awarded punitive damages to both plaintiffs jointly, we cannot sever the punitive damages awarded Jackson from the punitive damages awarded Peaks. Therefore, the verdict and judgment are tainted and the judgment on punitive damages must be reversed. Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3 (102 SE2d 492); Eastern Foods v. Foreman, 202 Ga. App. 347, 348 (415 SE2d 1). Compare Mock v. Wrigley, 178 Ga. App. 660, 661 (344 SE2d 482).

(c) In asserting that prejudicial error did not occur regarding the award of punitive damages, appellees rely substantially on the precedent of this Court in Hill v. Johnson, 210 Ga. App. 824 (437 SE2d 801). However, Hill is distinguishable. Of particular significance is that in Hill, unlike the case before us, Johnson included in his complaint a separate count for punitive damages expressly averring that “ ‘such actions merit the award of punitive damages to plaintiff under OCGA § 51-12-5.1.’ ” Id. at 824, 825. Hill held that the allegations in the complaint, including this express averment, must be taken “ ‘as if every item and paragraph of the complaint . . . were supported by proper evidence,’ (OCGA § 9-11-55 (a)), [and when] coupled with the default judgment granting judgment to [plaintiffl on liability, are sufficient to satisfy the requirement in OCGA § 51-12-5.1 (d) that ‘the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made.’ ” Id. at 825. Thus, the express and unrestricted averment in the complaint in Hill that an award of punitive damages was merited under OCGA § 51-12-5.1 would perforce be sufficient to satisfy the higher statutory standard of proof of clear and convincing evidence (OCGA § 51-12-5.1 (b)) and the requirement that punitive damages must be specifically prayed for in the complaint. OCGA § 51-12-5.1 (d) (1).

In this case, because no evidence on liability for punitive damages was presented at the hearing, appellee Peaks’ entitlement to punitive damages depends solely upon the allegations in her complaint. As the complaint averred no viable claim for punitive damages, the default alone was not sufficient to authorize an award of punitive damages.

“A judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law[ ] and facts not well pleaded and forced inferences are not admitted by a default judgment.” (Citations and punctuation omitted.) Stroud v. Elias, 247 Ga. 191, 193 (1) (275 SE2d 46). Although appellees’ prayer for relief requested the award of punitive damages, the prayer is not an allegation in the complaint which requires an answer (OCGA § 9-11-8 (d)) and is not part of plaintiffs’ cause of action. See Mitchell v. City of Atlanta, 217 Ga. 202, 205 (121 SE2d 764); Kinzy v. Waddell, 203 Ga. 689, 692 (47 SE2d 872); Empire Banking Co. v. Martin, 133 Ga. App. 115 (210 SE2d 237).

In the case at bar there exists no separate count in the complaint for punitive damages, and particularly, there exists no averment that an award of punitive damages was merited under OCGA § 51-12-5.1. Thus, appellees cannot rely upon Hill, supra, to render harmless their failure to comply with the statutory requirements of OCGA § 51-12-5.1, particularly as to the higher standard of proof therein required to support an award of punitive damages. Hill did not hold that deviating from the procedures in OCGA § 51-12-5.1 was not error; Hill held that in that particular case it was harmless error. Moreover, Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656 (402 SE2d 753) held that it was error to disregard the procedures established in OCGA § 51-12-5.1. Under these circumstances, Chrysler Credit Corp. v. Brown requires reversal of the award of punitive damages in this case.

(d) Although the complaint contained allegations that Drug Emporium caused appellees’ false arrest, false imprisonment, slander, and intentional infliction of emotional distress, this case was submitted to the jury only on appellees’ claims of false arrest and false imprisonment. (The record does not reveal how or why the other allegations against Drug Emporium were removed from the jury’s consideration.) Therefore, it is wrong to conclude that punitive damages were authorized on one basis and then decide the amount of punitive damages to be awarded on another basis. This is particularly true when the allegations submitted to the jury regarding false imprisonment and false arrest do not allege facts sufficient to state a claim authorizing the award of punitive damages based only upon Drug Emporium’s default.

The complaint, which did not accompany the jury to the deliberations room, merely averred allegations of false arrest and false imprisonment, torts which in themselves have no element of malice. See Williams v. Smith, 179 Ga. App. 712, 713-714 (348 SE2d 50): The only essential elements in an action to recover damages for illegal arrest or false imprisonment are the arrest or detention and the unlawfulness thereof. Malice and lack of probable cause need not be shown. Adams & Adams, Ga. Law of Torts (1996 ed.) § 29-4, False Imprisonment & False Arrest, p. 498: “Some cases have confused the tort of false arrest with that of malicious arrest, but malicious arrest involves the initiation of criminal proceedings.” Compare Adams & Adams, supra at § 29-5, Malicious Prosecution & Malicious Arrest, pp. 503-504. As no averment asserts that Drug Emporium’s employees acted maliciously, the complaint in this case did not allege counts of malicious arrest or malicious prosecution. Further, the trial court clearly interpreted the allegations as constituting false arrest and not malicious arrest because the trial court advised the jury that false arrest and false imprisonment were used interchangeably in the charge.

Hence, the complaint does not authorize an award of punitive damages because there is no specific allegation that Drug Emporium’s actions showed wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. See OCGA § 51-12-5.1 (b). Further, nothing in the matters alleged authorized one to infer or conclude as a matter of fact (see Stroud v. Elias, supra at 193) that Drug Emporium’s actions róse to that level. The contention that Drug Emporium somehow satisfied the elements of the tort of intentional infliction of emotional distress is a conclusion of law that is not admitted by a default judgment. Id.

A default judgment only “operates as an admission, by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations.” (Citations and punctuation omitted.) Id. at 193 (1). Consequently, even excluding the fact that the trial court submitted the issue of damages solely as to appellees’ claims of false arrest and false imprisonment and appellee Jackson’s claim of loss of consortium, the default still does not support the award of punitive damages to the appellees. Notwithstanding that Drug Emporium’s default admitted each and every material allegation of the complaint except the amount of damages suffered by Peaks (Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181)), these admissions were not sufficient to authorize a charge on punitive damages because they contained no allegations concerning punitive damages within the meaning of Stroud, supra.

3. Further, the statement in the prayer that appellee Peaks be awarded punitive damages because of Drug Emporium’s “wilful or grossly negligent conduct, which indicated a wanton disregard for the rights of plaintiff” is no substitute for an allegation in the complaint seeking punitive damages. Even though “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally” (OCGA § 9-11-9 (b)), because of the present requirement in OCGA § 51-12-5.1 that punitive damages be specifically prayed for in the complaint, OCGA § 9-11-9 (b) is no longer applicable in punitive damages cases. Otherwise the requirement in OCGA § 51-12-5.1 (d) requiring that an award be specifically prayed for has no meaning. Such a result would violate the rule of statutory construction of Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476). Further, because this prayer in this complaint is stated in the alternative, it adds nothing to the complaint as gross negligence alone will not support an award of punitive damages.

In another context, to state specifically special damages means that they must be pleaded with particularity. Signal Oil & Gas Co. v. Conway, 126 Ga. App. 711, 717 (3) (191 SE2d 624), rev’d on other grounds, 229 Ga. 849 (194 SE2d 909). The same rule applies when praying for punitive damages. Therefore, in this case, the default, standing alone, was not sufficient to support a determination that Drug Emporium was liable for punitive damages.

4. Moreover, we reject the contention that appellant’s mere failure .to move for a directed verdict or to strike the evidence, based upon a failure to prove aggravating circumstances by “clear and convincing evidence,” constituted an express waiver of this higher statutory standard of proof. Contrary to any implicit contention, Hill, supra, did not address this particular issue and did not so affirmatively hold. Likewise, the case of Floyd v. First Union Nat. Bank &c., 203 Ga. App. 788 (417 SE2d 725) did not consider the appellate issues here under contention. Rather, one of the major issues addressed in Floyd was the effect of a default judgment on an averment by plaintiffs which demanded judgment as to both claims for punitive damages and attorney fees “ ‘in an amount to be determined at trial’ rather than in a specific dollar amount.” Id. at 788 (1). Hill and Floyd are not dispositive of these matters as “ ‘ “[questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” ’ [Cits.]” Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529).

5. Appellant took exception to the giving of both appellees’ Requests to Charge Nos. 4 arid 5 and to the charging remarks given by the trial court immediately following the giving of appellees/plaintiffs’ Request to Charge No. 5. In these charging remarks, the trial court emphasized that it was for the jury “to look at the evidence and make [its] determination” whether there exists evidence of the elements necessary to support an award of punitive damages. After reemphasizing the element of “an entire want of care and indifference to the consequences [by the defendants],” the trial court gratuitously stated: “Those are the circumstances in which punitive damages would be allowed in this case, or I should say substantially punitive damages would be allowed. They would be entitled to at least nominal damages” (Emphasis supplied.) This latter instruction on its face is both confusing and misleading, and a fair risk exists that the jury would interpret it as mandating them to return an award of punitive damages at least in some nominal amount. “Instructions not warranted by the evidence are cause for a new trial unless it is apparent that the jury could not have been misled thereby.” (Citations and punctuation omitted.) Dept. of Transp. v. Davison Investment Co., 267 Ga. 568, 570 (481 SE2d 522).

This charge created a fair risk that the jury would believe they were compelled to award punitive damages to the appellees/plaintiffs, at least in some “nominal” amount. Thus, under the precedent of Foskey, supra, this charging error was not waived by a failure to take exception thereto. Further, it was of such nature as to bring them within the protective mantle of OCGA § 5-5-24 (c). Accordingly, this charging error was not waived on appeal, and it must, under the facts of this particular case, be presumed harmful. Foskey, supra; OCGA § 5-5-24 (c). As our Supreme Court recently held in Dept. of Transp. v. Davison Investment, supra at 570, “[w]e are unable to say that the erroneous charge, as vague as it was, could not have misled the jury.”

6. Wal-Mart Stores v. Forkner, 221 Ga. App. 209, 210 (1) (471 SE2d 30), where the trial court determined that Wal-Mart’s conduct was malicious and wilful during a bench trial on damages and which relied upon Hill, supra, is distinguishable and is not controlling as to this issue. Also distinguishable is Shaw v. Ruiz, 207 Ga. App. 299, 300 (2) (428 SE2d 98), where both counsel in response to the trial court’s inquiry affirmatively stated they had no objections to the charges thereby waiving, due to specific acquiescence, any objection to the charging of OCGA § 51-12-5 rather than OCGA § 51-12-5.1.

For these reasons, the judgment can be affirmed only on the condition that appellees/plaintiffs in error agree to strike therefrom the $150,000 punitive damage award within ten days from the date the remittitur of this Court is made the judgment of the trial court; otherwise, judgment is reversed in its entirety and the case remanded for a new trial. See generally Cullen v. Novak, 201 Ga. App. 459, 460 (411 SE2d 331); Marriott Corp. v. American Academy &c., 157 Ga. App. 497, 501 (2) (277 SE2d 785).

Judgment affirmed on condition.

Andrews, C. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Eldridge, J., concurs in part and dissents in part.

ELDRIDGE, Judge,

concurring in part and dissenting in part.

I concur in the majority’s Division 1 and respectfully dissent as to the remainder of the opinion.

1. OCGA § 51-12-5.1 (b) provides that where a “defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to the consequences,” the jury may consider additional damages “solely to punish, penalize, or deter a defendant,” under OCGA § 51-12-5.1 (c). Actions for “false imprisonment,” “false arrest,” “slander,” and “intentional infliction of emotional distress,” are all intentional torts which come under “willful misconduct,” “malice,” “wantonness,” or “entire want of care” and that authorize the jury to consider punitive damages.

Appellees chose to submit the case to the jury on the theories of false imprisonment and false arrest. “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. “ ‘The restraint constituting a false imprisonment may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit, and it is sufficient if they operate upon the will of the person threatened and result in a reasonable fear of personal difficulty or personal injuries.’ ” Sinclair Refining Co. v. Meek, 62 Ga. App. 850, 851, hn. 3 (10 SE2d 76) (1940). Since this is a default situation, then the elements of those theories of intentional tort have been satisfied from the detailed facts pled in the complaint, which constitute the aggravating circumstances and which authorize a jury to find aggravating circumstances and to award punitive damages as appropriate additional damages in this intentional tort action. See OCGA § 51-12-5.1 (b); Stroud v. Elias, 247 Ga. 191, 193 (1) (275 SE2d 46) (1981).

“Wanton and wilful conduct differs from gross negligence. Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness in spirit to actual intent.” (Citations and punctuation omitted.) Hendon v. DeKalb County, 203 Ga. App. 750, 758 (5) (417 SE2d 705) (1992); see also Dyches v. McCorkle, 212 Ga. App. 209, 216 (2) (441 SE2d 518) (1994). The facts stated in the complaint and the failure of appellant to put up any evidence at trial as to punitive damages, either to mitigate the imposition of punitive damages or to refute that its conduct was wilful or wanton in order to mitigate the imposition of punitive damages under OCGA § 51-12-5.1 (d) (2), created a jury question as to whether punitive damages should be awarded.

“False imprisonment is an intentional tort, not a tort of negligence.” Williams v. Smith, 179 Ga. App. 712, 713 (2) (348 SE2d 50) (1986); see also Stewart v. Williams, 243 Ga. 580 (255 SE2d 699) (1979). The cause of action does not require as an essential element malice to constitute false arrest or false imprisonment. See Williams v. Smith, supra at 714. OCGA § 51-7-2 provides that malice, in false arrest or prosecution actions,' consists of “personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” See Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 130 (2) (397 SE2d 563) (1990); Worn v. Warren, 191 Ga. App. 448, 449 (1) (382 SE2d 112) (1989); Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (282 SE2d 393) (1981). However, a jury may reasonably infer the presence of malice as an aggravating factor from the facts pled and admitted by the default, although the complaint never used the “magic” word malice, because malice was not a necessary element of the theory of recovery.

By the default judgment, appellant is barred from showing that there was probable cause for the detention and arrest, and the complaint shows a complete absence of probable cause. “Malice may be inferred if‘defendant’s acts were wanton or were done with a reckless disregard for or conscious indifference to the rights of the plaintiff.’ Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984).” Willis v. Brassell, 220 Ga. App. 348, 352 (3) (469 SE2d 733) (1996). Therefore, the jury may infer malice from the complete absence of probable cause. See generally inference of malice in malicious prosecution cases id. at 353; Fuller v. Jennings, 213 Ga. App. 773, 776 (1) (445 SE2d 796) (1994); Garmon v. Warehouse Groceries &c., 207 Ga. App. 89, 92 (2) (427 SE2d 308) (1993); McMillan v. Day Realty Assoc., 159 Ga. App. 366, 368 (2) (283 SE2d 298) (1981). Appellant’s silence as to the aggravating circumstances and failure to put up any defense evidence in mitigation of the punitive damages could be construed by the jury as an admission of plaintiffs’ assertions regarding punitive damages.

In the caption of Ga. L. 1987, pp. 915, 916, the General Assembly set out the purpose “to provide trial procedures for pleadings, evidentiary standards, findings of fact, and judgments for awards of punitive damages.” In Ga. L. 1987, pp. 917, 918, § 5, OCGA § 51-12-5.1 (d) (1), “[a]n award of punitive damages must be specifically prayed for in a complaint.” The act sets no pleading requirements other than “notice pleadings” for the complaint, i.e., pleadings which put the defendant on notice as to what damages will be sought. Punitive damages are not special damages within the meaning of OCGA § 9-11-9 (g); neither does it come within any of the other special pleading requirements. Instead, punitive damages are additional damages, which are limited by the provisions of OCGA § 51-12-5.1. The requirement that “[a]n award of punitive damages must be specifically prayed for in a complaint” must be read in pari materia with the Civil Practice Act and, specifically, with OCGA § 9-11-8 (a) (2) (B), which requires a claim for relief to contain “[a] demand for judgment for the relief to which the pleader deems himself entitled”; such demand is generally called the prayer or prayer for relief which comes at the end of the complaint, counter or cross-claim, and puts the court and parties on notice as to the relief sought. See Wagner v. Wagner, 238 Ga. 404, 405 (1) (233 SE2d 379) (1977); Cross v. Cross, 230 Ga. 91 (195 SE2d 439) (1973); Seibers v. Morris, 226 Ga. 813, 814-815 (3) (177 SE2d 705) (1970). The prayer for relief at the end of the claim in the complaint “constitutes no part of the pleader’s cause of action.” (Citations and punctuation omitted.) Empire Banking Co. v. Martin, 133 Ga. App. 115, 120 (210 SE2d 237) (1974). “Appellants specifically prayed for both punitive damages and attorney fees, and their complaint demanded judgment on both those claims”; this Court held that it was error for the trial court to refuse to allow the plaintiff to put up evidence as to such claims prayed for in the complaint. Floyd v. First Union Nat. Bank, 203 Ga. App. 788 (1) (417 SE2d 725) (1992). Thus, the language requiring punitive damages to be specifically prayed for in the complaint, as used under OCGA § 51-12-5.1 (d) (1), means that a request for punitive damages must be set forth in the prayer for relief, with which requirement appellee fully complied.

In a default judgment, the aggravating factors under OCGA § 51-12-5.1 (b) have been deemed admitted; therefore, it is for the trier of fact, the jury in the case sub judice, to determine specifically if such damages are appropriate and to decide within the limits of the act how much to award. OCGA § 51-12-5.1 (d) (2); see generally Hill v. Johnson, 210 Ga. App. 824, 825 (437 SE2d 801) (1993); see also Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656-657 (3) (402 SE2d 753) (1991). After appellees presented evidence, appellant did not move for directed verdict or to strike the evidence based upon a failure to prove the aggravating circumstances by “clear and convincing evidence” under OCGA § 51-12-5.1 (b). Thus, appellant waived such higher standard of proof. Hill v. Johnson, supra at 825; see also Shaw v. Ruiz, 207 Ga. App. 299, 300-301 (428 SE2d 98) (1993).

Unlike Clarke v. Cotton, 263 Ga. 861 (440 SE2d 165) (1994), a case upon which appellant relies, appellant failed to object and to request that the jury be charged that the burden of proof is by clear and convincing evidence and that such standard be defined. Under OCGA § 51-12-5.1 (b), the “clear and convincing evidence” standard applies to proof that the “defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

“[W]e pointed out that, in Georgia, the purpose of punitive damages is to deter the repetition of reprehensible conduct by the defendant. OCGA § [51-12-5.1]. Because deterrence is based on factors other than the actual harm caused, we rejected the notion that punitive damages must necessarily bear some relationship to the actual damages awarded by the jury. . . . The purpose of punitive damages, after all, is to deter such conduct. . . . Society’s interest would seem better served by deterring objectionable conduct at the first opportunity so that the potentially greater injury which might otherwise be caused by such conduct might be avoided.” (Footnotes omitted.) Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614-615 (1) (409 SE2d 501) (1991); see generally Banks v. ICI Americas, 266 Ga. 607, 610 (469 SE2d 171) (1996); Mack Trucks v. Conkle, 263 Ga. 539, 543 (2) (436 SE2d 635) (1993). Under OCGA § 51-12-5.1 (c), the statutory purpose is to “punish, penalize, or deter.” Banks v. ICI Americas, supra at 610; Stone Man v. Green, 263 Ga. 470, 472 (1) (435 SE2d 205) (1993).

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton. There is general agreement that, because it lacks this element, mere negligence is not enough, even though it is so extreme in degree as to be characterized as gross. Still less, of course, can such damages be charged against one who acts under an innocent mistake in engaging in conduct that nevertheless constitutes a tort.” (Citations and punctuation omitted.) Banks v. ICI Americas, supra at 610 (3), quoting Colonial Pipeline Co. v. Brown, 258 Ga. 115, 121-122 (4) (365 SE2d 827) (1988).

When a party is in default on an intentional tort which falls within the ambit of OCGA § 51-12-5.1 (b), the elements of punitive damages that must be proven by “clear and convincing evidence” are deemed admitted. However, the trier of fact still must make a specific determination from such admitted facts and circumstances as to whether or not punitive damages are appropriate. See Hill v. Johnson, supra at 824-825; Chrysler Credit Corp. v. Brown, supra at 656-657. In the case sub judice, the jury, by their action in separately filling out the space on the verdict form for punitive damages and inserting a specific award for punitive damages, made a specific finding thereby that “an award of punitive damages shall be made”; the jury’s actions satisfied OCGA § 51-12-5.1 (d) (1). Appellant failed to object at any time to such procedure or verdict form and waived any issue as to a procedure created for the defendant’s protection. See Hill v. Johnson, supra at 825; Shaw v. Ruiz, supra at 300-301.

The admitted facts of the complaint showed “[t]here was no harm with regard to punitive damages against [appellant] because the overwhelming [admissions in the default] showed a ‘conscious indifference to consequences’ on [its] part, more than meeting the clear and convincing standard of OCGA § 51-12-5.1 (b).” Clarke v. Cotton, supra at 862.

The provisions of OCGA § 51-12-5.1 set forth specific procedural requirements, i.e., that the standard of proof is clear and convincing evidence; that there must be a specific finding by the trier of fact of aggravating circumstances such as to warrant the imposition of punitive damages; and that there must be a bifurcation of the trial, with the trier of fact making findings of liability and as to some damages, prior to hearing evidence in aggravation. Such procedures are for the protection of the defendant and can be waived. However, nowhere in the record, either prior to the jury receiving the case or after the verdict was received but before the jury was dispersed, did counsel for appellant make any objection or motion before the trial court raising the issue of failure to follow the procedures of OCGA § 51-12-5.1. This enumeration of error was not raised at the trial and passed upon by the trial court in order to preserve it for appellate review. Thus, such issue was raised for the first time on appeal and is not appropriate for appellate review by this Court. Such issue is waived by failure to timely object. See Hill v. Johnson, supra at 825.

2. Appellant submitted no written request to charge on OCGA § 51-12-5.1. The trial court gave appellees’ Request to Charge No. 5, which embodied OCGA § 51-12-5 and which deviated from the principles of OCGA § 51-12-5.1 in stating that punitive damages are both to compensate for wounded feelings, as well as to deter the wrongdoer. The rest of the charge included language present in both statutes.

“Assuming without deciding that it is always error for the trial court not to comply exactly with the requirements of OCGA § 51-12-5.1 in a default judgment action ([cit.]), we find the failure to do so in this case was harmless error.” Hill v. Johnson, supra at 825. Appellant failed to show that the charge was harmful or to properly except to the charge as given so that the trial court could timely correct any harmful error. See Johnson v. State, 148 Ga. App. 702, 703 (2) (252 SE2d 205) (1979); see also Smaha v. Moore, 193 Ga. App. 23 (387 SE2d 13) (1989); Stone v. Burell, 161 Ga. App. 369 (2) (288 SE2d 636) (1982). The jury returned compensatory damages of $4,000 for expenses of litigation, $82,000 for pain and suffering, and $7,500 for loss of consortium, which fully compensated appellees’ general and special damages; however, the jury returned more than one and one-half times that amount, $150,000, as additional damages to punish the appellant. There is nothing to indicate that the jury gave any of the punitive damages as compensation. Had the charge been given that punitive damages are to penalize, to punish, and to deter the wrongdoer from repeating the wrongful conduct in the future, the outcome would have been the same. Obviously the jury was outraged at the appellant’s conduct and lack of contrition.

Decided July 3, 1997

Sharon C. Barnes, for appellant.

Paris & Peterson, Richard J. Paris, Jr., Stephen D. Peterson, for appellees.

3. Appellant’s exception to Request to Charge No. 4 is based upon possible confusion to the jury with regard to pain and suffering and for loss of capacity to labor and earn money. However, the charge was a correct statement of the law. See Williams v. Vinson, 104 Ga. App. 886, 892-893 (6) (123 SE2d 281) (1961); Langran v. Hodges, 60 Ga. App. 567, 569-571 (3) (4 SE2d 489) (1939).

For reversal of a case based upon a jury charge or failure to charge, there must be a showing of harmful error, which causes such gross injustice that the question of whether the party has been deprived of a fair trial can fairly be raised. See Greenhill v. State, 199 Ga. App. 218, 222 (404 SE2d 577) (1991); Wisenbaker v. Warren, 196 Ga. App. 551, 555 (5) (396 SE2d 528) (1990); Hamrick v. Wood, 175 Ga. App. 67, 68 (2) (332 SE2d 367) (1985).

Moreover, appellant’s exception to the charge did not set forth harmful error so that the trial court could correct any alleged error. The exception was so vague, indefinite, and lacking in specificity that it failed to point out any alleged error. Therefore, the exception was deficient. See Smaha v. Moore, supra; Stone v. Burell, supra; McGaha v. Kwon, 161 Ga. App. 216 (288 SE2d 289) (1982); Jackson v. Meadows, 157 Ga. App. 569 (278 SE2d 8) (1981).


text:
    A97A0757.
    NATIONSBANK, N.A. (SOUTH) v. PEAVY.
    (488 SE2d 699)
   McMurray, Presiding Judge.

This is an interlocutory appeal from a denial of summary judgment in a suit on a note. The original plaintiff, Bank South, sought and obtained permission to file an appeal from the state court’s order entered May 30, 1996. However, in the interval of time following the filing of the interlocutory application, Bank South merged into NationsBank, N.A., which filed a notice of appeal as successor in interest to Bank South. But the record sent up for that appeal did not show any assignment of interest from Bank South or any other indication that NationsBank, N.A. was a party to the action. The case was remanded to the state court in order to permit NationsBank, N.A. to seek an order of the state court pursuant to OCGA § 9-11-25 (c), by which it was substituted in the action as party plaintiff. This Court’s remand order authorized NationsBank, N.A., to initiate the present appeal upon being substituted as party plaintiff. No cross-appeal has been taken challenging the substitution order.

We conclude that summary judgment should have been granted in favor of plaintiff and reverse. In August 1988, defendant Peavy executed a promissory note, payable to the predecessor of plaintiff NationsBank, that was secured by an automobile. Defendant defaulted on the note and in June 1989 surrendered possession of the car. The car was sold for less than the remaining indebtedness, and under threat of a lawsuit, defendant signed an unsecured second note on March 5, 1990. Defendant also defaulted on the second note, and this action was commenced to collect on that note. Defendant raised a number of defenses including a failure to pay intangible taxes on the note and failure of consideration. A counterclaim asserted claims for fraud and for violation of the federal Fair Debt Collection Practices Act. Held,'.

1. “ ‘On a motion for summary judgment, the movant carries the burden of proving that there are no genuine issues of fact requiring jury resolution and that he is entitled to judgment as a matter of law. (Cit.) . . . The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. (Cit.)’ Kelly v. American Fed. Savings &c. Assn., 178 Ga. App. 542-543 (1) (343 SE2d 755) (1986).” Phillips v. Plymale, 191 Ga. App. 338, 340 (1) (381 SE2d 580). A prima facie case was proven by showing that defendant signed the promissory note and was in default. Summary judgment must follow unless defendant has provided rebuttal evidence which raises a genuine issue of material fact. Id.

Defendant has presented no such evidence in support of its contention that former OCGA § 48-6-32 bars plaintiff’s action. This statute, which was repealed effective March 21, 1996, by Ga. L. 1996, p. 117, provided that a failure to return any property for taxation as required thereunder would be a bar to any action on the property. Application of this bar resulted in the reversal of a grant of summary judgment to the plaintiff in Lagrone v. Telecash Investments, 220 Ga. App. 876 (470 SE2d 445), but that case may be distinguished on the facts since it involved a defendant who presented evidence that the plaintiff had failed to pay the intangible taxes required under the statute. The defendant in the case sub judice has continued to rely solely upon his allegations so that even if this theory of defense survived the repeal of the statute, the absence of any supporting evidence is fatal.

Similarly, defendant has failed to provide any support for the defense of laches by failing to show prejudice from the delay. Therefore, this defense must be presumed to lack merit. Troup v. Loden, 266 Ga. 650 (469 SE2d 664).

2. Defendant’s allegation that he was fraudulently induced to sign the note which plaintiff seeks to collect must fail. The source of the alleged fraud is plaintiff’s predecessor’s insistence that defendant was required to sign the note and failure to inform defendant that it was not entitled to a judgment against defendant for the deficiency on the first note. However, defendant admits that he took no steps to determine his rights prior to the execution of the note but relied upon the representations of plaintiff’s predecessor. Thus, defendant has clearly conceded his lack of diligence and seeks to excuse it by contending that there was a confidential relationship involved. But there is no evidence to support such a hypothesis. The record reveals nothing more than an arms-length money lending transaction which does not constitute a confidential relationship. Saffar v. Chrysler First Business Credit Corp., 215 Ga. App. 239, 240 (2) (450 SE2d 267).

3. Also, defendant’s reliance upon the defense of failure of consideration is not well founded. The defense' of failure of consideration is not available where the note has been renewed. First State Bank &c. Co. v. Young, 202 Ga. App. 566 (415 SE2d 18); Richards v. Southern Finance Corp., 171 Ga. App. 268 (319 SE2d 103). Furthermore, “ ‘[t]he renewal cuts off all defenses of which the maker then had knowledge.’ [Cits.]” Id. at 269 (1). In the case sub judice this includes defendant’s defenses and counterclaims based on the first note, on an alleged oral agreement with plaintiff’s predecessor, and arising from the repossession and sale of the automobile. Defendant had knowledge of all these circumstances when he executed the renewal or second note which is the basis of this action. Also, a negotiable note given in liquidation of a disputed claim is not without consideration. Littlegreen v. Gardner, 208 Ga. 523 (3) (67 SE2d 713).

Nor does defendant’s denial that the second note was a renewal of the first note present a jury issue. Defendant’s inconsistent statements as to the facts must be construed against him. Kersey v. U. S. Shoe Corp., 211 Ga. App. 655, 657 (440 SE2d 250). Therefore, his admission that the second note was signed under threat of suit for the deficiency on the first note and that he expected there to be a deficiency following the repossession is sufficient to establish that the second note was a renewal of the first note, as well as an accord and satisfaction resolving any dispute over any deficiency under the first note. See also Mobley v. Fulton Roofing Co., 173 Ga. App. 563, 564 (1) (327 SE2d 540).

Decided July 3, 1997.

King & Carragher, Joseph R. Carragher, for appellant.

Berrien L. Sutton, for appellee.

4. Additionally, defendant’s reliance upon the Fair Debt Collection Practices Act, 15 USC § 1692 et seq., is misplaced. This statute does not apply to an “officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor.” 15 USC § 1692a (6) (A).

Judgment reversed.

Beasley and Smith, JJ, concur.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A97A0795.
    BROWN et al. v. MOBLEY et al.
    (488 SE2d 710)
   McMurray, Presiding Judge.

Plaintiffs Ruby Brown, individually and as next friend of Eldrowdo Bloodworth, and Eldrowdo Bloodworth, individually, brought this action alleging Eldrowdo Bloodworth was injured in a single car collision because defendants Sharon C. Mobley, the car’s driver, and Dora Colson, the car’s owner, allowed Tony Mobley to ride in the car’s front seat while he was grossly intoxicated. The evidence adduced upon defendants’ joint motion for summary judgment reveals that Dora Colson loaned her car to Sharon Mobley, late in the evening on January 15, 1994, to drive Tony Mobley and his family home. While en route, Tony Mobley — already grossly inebriated — lost his remaining composure because another passenger refused to give him more liquor. After threatening the car’s occupants, Tony Mobley reached over a passenger that was seated next to him in the car’s front seat, grabbed the steering wheel and pulled the vehicle off the road. The car hit a tree and flipped, injuring Eldrowdo Blood-worth and killing another passenger. Tony Mobley was later convicted for several offenses, including involuntary manslaughter and reckless conduct. Finding that Tony Mobley’s criminal behavior was the sole proximate cause of the collision, the trial court granted defendants’ joint motion for summary judgment. We affirm because Tony Mobley’s intervening criminal conduct was not a reasonably foreseeable consequence of Dora Colson’s and Sharon Mobley’s alleged negligence.

Although the details of the incident are somewhat clouded, Eldrowdo Bloodworth’s affidavit provides the proper perspective for appellate review. See Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Bloodworth deposed, in pertinent part, as follows: “On or about January 15,1994,1 was a passenger in a 1990 Pontiac 6000 LE automobile being driven by Sharon C. Mobley which was involved in a one car wreck. [Before] the wreck, Robert James Colson brought Tony Mobley, Joann Jenkins and Denise Jenkins to the home of Sharon Mobley. Sharon Mobley lived next door to Dora Colson and I was at Sharon Mobley’s home that evening.

“Tony Mobley was drinking when he came to Sharon Mobley’s home. He had a big bottle of liquor, that I believe was gin, with him that he was drinking at Sharon Mobley’s home.

“Tony Mobley was stumbling, staggering and shouting. He was drunk and was acting mad at Sharon Mobley and her boyfriend, Glen Bloodworth. Tony Mobley got in Glen Bloodworth’s face and was cussing and shouting at Glen Bloodworth while Glen Bloodworth was sitting at a table with Sharon Mobley. He called Glen Bloodworth bad names with cuss words and was being very loud and aggressive. Tony Mobley said he was mad that Glen Bloodworth was living in his deceased brother’s home (Samuel Mobley, who is deceased, was the husband of Sharon Mobley and the brother of Tony Mobley). Tony Mobley’s actions made Sharon Mobley and Glen Bloodworth stop the card game that they had been playing at the table.

“Tony Mobley then left Sharon Mobley’s home and went to the home of Dora Colson and began 'raising a ruckus’ with Dora Colson at her house. He was still staggering and stumbling and being loud and aggressive and he fell down the front steps of Dora Colson’s home in front of Dora Colson.

“My grandmother, Dora Colson, and Sharon Mobley decided for Sharon Mobley to take Tony Mobley, Joann Jenkins and Denise Jenkins home. . . . Sharon Mobley’s daughter . . . was in the car at first, but Dora Colson and Sharon Mobley told her to get out and told me to go instead and help Sharon Mobley get Tony Mobley into the car and out of the car when he got home. . . . While we were getting into the car, Joann Jenkins carried the bottle of liquor that Tony had been drinking from into the car in plain view of Sharon Mobley.

“Shortly after we left, Tony Mobley began asking for the bottle of liquor that Joann Jenkins had in the back seat. He said that if they did not give him his bottle of liquor, ‘I’ll kill all of you,’ in a very mean and aggressive manner. Sharon Mobley did not attempt to stop the car or pull over at that time or at any time. Tony Mobley continued to demand his bottle of liquor several more times. He then made a threatening gesture toward the steering wheel. Sharon Mobley did not attempt to stop the car or pull over at that time or at any time. He continued to demand his bottle of liquor, and he eventually grabbed the steering wheel and the car ran off the road.” Held:

In four enumerations of error, plaintiffs contend the trial court erred in granting Dora Colson’s and Sharon Mobley’s motion for summary judgment, arguing that genuine issues of material fact remain as to these defendants’ liability for allowing Tony Mobley to ride in the car’s front seat.

“ ‘Generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury . . . superseding any negligence of the defendant. . . (unless) the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent (act). . . .’ Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983); see also OCGA §§ 51-12-8; 51-12-9; Henderson v. Dade Coal Co., 100 Ga. 568 (28 SE 251) (1897). Although under Georgia law questions of negligence and proximate cause are ordinarily for the jury, plain and indisputable cases may be decided by the court as a matter of law. Hercules, Inc. v. Lewis, supra; Williams v. Kennedy, 240 Ga. 163 (240 SE2d 51) (1977); Bussey v. Dawson, 224 Ga. 191 (160 SE2d 834) (1968). In such plain cases ‘(t)he inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.’ Hercules, Inc. v. Lewis, supra at 689; McAuley v. Wills, 251 Ga. 3 (303 SE2d 258) (1983); Henderson v. Dade Coal Co., supra.” Collie v. Hutson, 175 Ga. App. 672, 673 (2) (334 SE2d 13).

In the case sub judice, Dora Colson’s and Sharon Mobley’s knowledge that Tony Mobley was drunk and ill tempered before the fatal collision provides no basis for allowing a jury to decide whether defendants could have, or should have, reasonably anticipated the intervening criminal behavior which caused Sharon Mobley to lose control of Dora Colson’s car. Specifically, we reject — as a matter of policy — plaintiffs’ premise (with regard to Dora Colson’s liability) that it is inherently dangerous to arrange for the home transport of an ill-tempered, irrational drunkard. Any such holding would discourage responsible citizens from preventing intoxicated individuals from driving on Georgia’s roads and highways. Further, the record does not indicate that Sharon Mobley should have or could have reasonably anticipated Tony Mobley’s interference with her operation of Dora Colson’s vehicle. Sharon Mobley deposed that “[o]n ten to fifteen separate occasions prior to January 15, 1994, Tony Mobley had been a front seat passenger in a car with [her] while [she] was driving^ that] on at least three of those occasions he was intoxicated [and that] on those previous occasions he did not attempt in any way to interfere with [her] driving.” Plaintiffs, nonetheless, argue that Tony Mobley’s “threatening gesture toward the steering wheel” before commandeering the car and his threat, “ ‘I’ll kill all of you,’ ” raise genuine issues of material fact as to Sharon Mobley’s knowledge of Tony Mobley’s impending criminal behavior. We do not agree.

Decided July 3, 1997.

Williams, Sammons & Sammons, George L. Williams, Jr., Walter G. Sammons, Jr., for appellants.

Although Eldrowdo Bloodworth deposed that Sharon Mobley observed Tony Mobley, before the collision, when he “got in Glen Bloodworth’s face and was cussing and shouting at Glen Blood-worth,” there is no proof that Tony Mobley carried out any violence against Glen Bloodworth or any other person before the fatal collision. Indeed, Eldrowdo Bloodworth’s own affidavit reveals that Tony Mobley’s “threatening gesture toward the steering wheel” and his threat, “ Til kill all of you,’ ” were nothing more than a continuation of Tony Mobley’s “aggressive” posturing and idle profanity. There is no evidence that Sharon Mobley should have anticipated Tony Mobley’s suicidally criminal act before the fatal collision. Since plaintiffs have not shown that Tony Mobley’s criminal behavior was reasonably foreseeable, we cannot say the trial court erred in granting Dora Colson’s and Sharon Mobley’s joint motion for summary judgment.

Judgment affirmed.

Beasley, J., concurs. Smith, J., concurs specially and in the judgment only.

Smith, Judge,

concurring specially and in the judgment.

I concur in the judgment only. In my opinion, whether a severely intoxicated, angry, verbally abusive individual might act in an irrational manner, as did Tony Mobley on the night of the collision, might ordinarily be an issue of fact. In this circumstance, however, even assuming that the driver had knowledge that Mobley might act in an irrational dangerous manner, Bloodworth should not recover. He testified by affidavit that Mobley was drinking and had a “big bottle of liquor” that Bloodworth believed to be gin; that Mobley was “stumbling, staggering, and shouting” and was- “acting mad”; and that Mobley was cursing, shouting, and was being very loud and aggressive prior to entering the front seat of the car driven by Sharon Mobley. Bloodworth clearly possessed as much knowledge as did the driver or anyone else of Mobley’s condition, yet he chose to ride in the car as well. To that extent, Bloodworth assumed the risk of riding in the car with an obviously intoxicated, irrational individual, who was a front seat passenger. Bloodworth cannot recover.

Miller & Towson, Wallace Miller III, John D. Raines III, for appellees.

       Tony Mobley is also a defendant in this action, but he is not a party to this appeal.