author: Banke, Presiding Judge.

text:
    74111.
    BUILDERS TRANSPORT, INC. v. HALL.
    (360 SE2d 60)
   Banke, Presiding Judge.

Appellee Hall was employed by the appellant, Builders Transport, Inc., as a salaried truck driver until 1979, when Builders Transport offered him the opportunity to purchase a 1973 Kenworth truck tractor and to begin driving for the company as an independent contractor. The parties entered into two contracts governing the new arrangement — a “Contractors Operating Agreement” and an “Installment Conditional Sales Contract.” By its terms, the operating agreement could be terminated by either party for any reason upon 10 days’ notice, or it could be terminated immediately in the event of a material breach. While it was in force, it obligated Hall to comply with all safety regulations applicable to the company’s drivers. Pursuant to the sales contract, the company was authorized to repossess the tractor immediately in the event of the termination of the operating agreement, whether upon 10 days’ notice or upon a material breach. The sales contract additionally authorized Builders Transport to repossess the vehicle in the event it deemed itself “insecure for any reason.”

Hall drove for Builders Transport as an owner-operator pursuant to the new arrangement until July of 1980, when he complained of being assigned unprofitable trips and not being provided return loads to his home city. It was Builders Transport’s position that, during a meeting with a company vice-president called for the purpose of discussing this complaint, Hall acted in an angry and “irrational” manner. After investigating his complaint, the company concluded that Hall had been treated fairly, but because of his demeanor at the meeting a decision was made to inquire further into his general conduct and attitude.

Less than three weeks later, while Hall was in “the fuel line” refueling his truck, he had a conversation with the company’s safety director, wherein he asked why he had not been paid additional compensation under the company’s safety bonus program for the prior quarter, as he always had in the past. According to Hall, the safety director told him that, as an independent owner-operator, he was no longer eligible for such bonuses, to which he (Hall) responded that he could not understand why a distinction was made between company drivers and owner-operators since they were all required to abide by the same safety regulations. The safety director’s version of this conversation differed considerably from Hall’s. It was his position that when Hall was informed of his ineligibility for the bonus, he stated that he no longer intended to comply with the company’s safety regulations.

Based on his own conversation with Hall during their July meeting and on the safety director’s account of his discussion with Hall, the company’s vice-president conferred with counsel and made a decision to terminate Hall’s employment. On July 17, 1980, prior to being informed of his termination, Hall made a routine telephone call to the company’s dispatcher to inquire if there was a load for him to pick up. The dispatcher instructed him to drive his truck to the company’s office in Savannah for a meeting with company officials. Hall did so and, after arriving in Savannah and refueling and parking his truck, was told by the dispatcher that his employment had been terminated. Hall then asked to see the vice-president, who confirmed the termination of his contract and advised him that his tractor had been seized. A letter formally notifying Hall of the termination of the contractor’s operating agreement was prepared that same day, i.e., July 17, 1980, and was subsequently delivered to him. It is undisputed that all installments then due under the sales contract had been made as of that date.

Five months later, Builders Transport notified Hall that the sales contract was deemed to be in default. Subsequently, on February 2, 1981, the company sought a writ of possession for the tractor based on Hall’s alleged delinquency in making the installment payments. Hall counterclaimed, seeking actual and punitive damages for breach of contract, unlawful conversion, and wrongful repossession. Builders Transport’s claim fór a writ of possession was disposed of by a consent judgment, leaving the counterclaims to be tried before a jury. The jury awarded Hall $11,454.90 on the breach of contract claim and actual damages in the amount of $830.95 on the tort claim, the latter award apparently reflecting the value of certain tools left in the truck. Additionally, the jury awarded punitive damages in the amount of $100,000. Builders Transport filed this appeal from the denial of its motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. Held:

1. Builder’s Transport contends that the award of damages in the amount of $11,454.90 for breach of contract was contrary to the evidence.

The trial court correctly charged the jury that if they found Builders Transport to be in breach of the sales contract, they would be authorized to award Hall the fair market value of the truck, less the indebtedness still owed under the sales contract. The sole evidence presented by Hall concerning the market value of the vehicle at the time of the alleged breach consisted of his testimony that he had paid $12,000 for it and that he had expended approximately $8,000 on maintenance and repairs during the time it had been in his possession. Builder’s Transport countered this testimony by introducing a sworn statement which Hall had given in connection with prior bankruptcy proceedings valuing the tractor at $5,000. The jury’s award of $11,494.90 evidently reflected a valuation of approximately $20,000, less the approximately $10,000 still owing on the contract, plus an award of $1,494.90 for 10 days’ loss of use of the vehicle resulting from the company’s breach of the 10-day notice requirement set forth in the operating agreement.

“Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also he must have had an opportunity for forming a correct opinion. [Cits.]” Ricker v. Hopkins Chevrolet, 147 Ga. App. 358, 361 (248 SE2d 720) (1978). See also OCGA § 24-9-66. No such foundation was established in this case, and, indeed, no opinion was ever offered by Hall as to the vehicle’s value at the time of its repossession. While the purchase price of a motor vehicle is relevant and admissible to establish its value at the time of purchase, it is obviously not, standing alone, sufficient to establish the value of the vehicle at some later point in time. See Nail v. Hiers, 116 Ga. App. 522, 524 (157 SE2d 771) (1967). Similarly, the value of a motor vehicle cannot be established merely by adding to its purchase price the cost of maintaining and repairing the vehicle. In the absence of any opinion testimony concerning the actual market value of the vehicle at the time of its repossession and in the absence of any evidence which might have enabled the jury to reach its own conclusions as to such value, the award of $11,459.90 as damages for breach of contract must consequently be reversed.

2. The appellant contends that the court erred in charging the jury that the company’s liability in tort was not contingent upon whether it had acted in good faith. Specifically, the court charged as follows: “Generally speaking, the owner of personal property is entitled to its possession. Any wrongful deprivation of such possession is a tort for which an action lies. When one meddles with another’s property, he does so at his own peril. If he had a right to do it, what he did was legal; if he had no right to do it, what he did was illegal. And it makes no difference as to the legality or the illegality of it that he acted in good faith. Good faith may be relevant to the damages, if any, as I will explain later, but good faith is not relevant to deciding whether or not a conversion or trespass to chattels was or was not legal. Either it was or it wasn’t.”

We agree that this portion of the jury instruction, while abstractly a correct statement of the law of conversion, was misleading in the context of the facts of the present case. Builders Transport defended the tort claim in part on the basis that it had properly exercised its right to terminate the operating agreement under the provision permitting it to do so in the event it felt “insecure for any reason.” To establish a good-faith basis for its actions in this regard, it relied both on its version of the conversation between Hall and the safety director and on Hall’s alleged conduct during his initial meeting with the vice-president.

Pursuant to OCGA § 11-1-208, the right of a seller under a conditional sales contract to exercise an “at will” or “when he deems himself insecure” acceleration provision applies only where the seller “in good faith believes that the prospect of payment or performance is impaired.” However, in such a case, “the burden of establishing lack of good faith is on the party against whom the power has been exercised.” Id. See Ginn v. C & S Nat. Bank, 145 Ga. App. 175 (1) (243 SE2d 528) (1978). The issue is “not whether the [seller] was in fact insecure, but whether in determining the loan insecure the [seller] acted honestly, in good faith, and not arbitrarily or capriciously. [Where the evidence on the issue is contested], the contest must be resolved by the trier of fact. ‘Good faith ... is always a question for the jury. Even though the party may swear he acted in good faith, the jury may decide he acted in bad faith from consideration of facts and circumstances in the case.’ ” Ginn, supra at 177, citing Hodges v. Youmans, 129 Ga. App. 481 (200 SE2d 157) (1973). In view of the applicability of OCGA § 11-1-208 to this transaction, we must conclude that the trial court’s charge on the irrelevance of good faith was so misleading as to constitute reversible error with respect to the award of damages in tort. That portion of the judgment is accordingly reversed.

Decided July 14, 1987

Rehearing denied July 27, 1987

Griffin B. Bell, Jr., Andrew J. Hill III, Edward M. Hughes, for appellant.

Michael A. Lewanski, John R. Calhoun, for appellee.

3. It is well settled that a claim for punitive damages will not lie in cases arising on contracts. See OCGA § 13-6-10. “This is true even though the [breaching party] may be in bad faith.” Horne v. Drachman, 247 Ga. 802, 809 (280 SE2d 338) (1981). Having reversed the tort recovery, we must accordingly also reverse the award of punitive damages.

4. We do not reach the merits of the appellant’s remaining enumerations, as the alleged errors complained of are not likely to reoccur upon any retrial of the case.

Judgment reversed.

Carley and Benham, JJ., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    74257.
    SPELL et al. v. PORT CITY ADHESIVES, INC.
    (360 SE2d 63)
   Carley, Judge.

In this companion case to Fire & Cas. Ins. Co. of Conn. v. Spell, 183 Ga. App. 675 (359 SE2d 705) (1987), appellee Port City Adhesives, Inc. is one of the defendants named in appellant-plaintiffs’ action to recover for the death of their daughter. As against appellee, appellants’ complaint alleged two theories of recovery: appellee’s direct liability for its own alleged negligence and appellee’s vicarious liability for the alleged negligence of Slevin, the driver of the truck.

After a period of discovery which included the taking of Slevin’s deposition, appellee moved for summary judgment. Appellee’s motion was predicated upon the assertion that because Slevin did not occupy the status of its servant, it was not vicariously liable for any negligence attributable to him. The affidavit of appellee’s president was attached to its motion for summary judgment. Subsequent to the filing of appellee’s motion for summary judgment but prior to the trial court’s ruling thereon, the deposition of appellee’s president was taken. Thereafter, appellants moved that the trial court strike portions of the affidavit of appellee’s president and that, pursuant to OCGA § 9-11-56 (g), it assess reasonable expenses, including attorney’s fees, against appellee for having submitted the affidavit. The trial court denied appellant’s motions.

The trial court then undertook consideration of appellee’s motion for summary judgment. The trial court held that, under the evidence of record, Slevin was not appellee’s servant and that respondeat superior was not a viable theory under which appellants could recover against appellee. Appellants appeal from the order of the trial court granting summary judgment in favor of appellee.

1. Asserting that genuine issues of material fact remain as to Sle-vin’s status as a servant, appellants enumerate the grant of summary judgment to appellee as error.

“The test to be applied in determining whether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract. [Cits.]” Savannah Elec. & Power Co. v. Edenfield, 118 Ga. App. 531, 532-533 (164 SE2d 366) (1968). The deposition of Slevin himself shows that he was, as to appellee, an independent contractor and not a servant. Slevin was a self-employed trucker and was not a general employee of appellee. Appellee hired Slevin solely for the purpose of securing the transportation of several pieces of machinery from Valdosta, Georgia, to Wilmington, North Carolina. Appellee was to pay Slevin $1 per mile for the performance of this task and the only “control” retained by appellee was the right to expect that the machinery would ultimately be delivered to Wilmington within a reasonable time after Slevin had arranged for its pick up in Valdosta. See generally Piggly Wiggly Southern v. Hercules, Inc., 151 Ga. App. 238 (259 SE2d 219) (1979); Lamb v. Fulton Bag & Cotton Mills, 26 Ga. App. 572 (1) (106 SE 607) (1921). Such “control” over the ultimate result to be achieved by Slevin is entirely consistent with his status as an independent contractor rather than a servant. “Where one ‘contracts with an individual exercising an independent employment, for him to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor’s own methods and not subject to the employer’s control or orders except as to results to be obtained, the employer is not liable for the wrongful or negligent acts of such independent contractor or his servants.’ [Cits.]” Zurich Gen. Accident &c. Ins. Co. v. Lee, 36 Ga. App. 248 (1) (136 SE 173) (1926).

Appellants themselves produced no evidence to show that Slevin was not an independent contractor. They rely upon the alleged contradictory testimony of appellee’s own president, given in his affidavit and deposition, as showing the existence of a genuine issue of fact as to Slevin’s status as a servant. However, the alleged contradictions between the affidavit and deposition of appellee’s president do not concern the material fact of whether appellee retained or exercised control over the time, manner, and method of Slevin’s performance of the single job that he was hired to do, but relate to other elements entering into Slevin’s employment. As to the material element of control, the affidavit and deposition of appellee’s president are consistent with each other, and both are consistent with Slevin’s own testimony. When the evidence is construed most strongly against appellee as the moving party, it is the more unfavorable portions of the allegedly contradictory testimony of appellee’s president that must be given consideration. Under this construction of the evidence, the material fact as to appellee’s lack of control over Slevin nevertheless remains undisputed. The most that can be said is that the alleged contradictions create an issue of fact as to the credibility of the entirety of the testimony of appellee’s president, including such uncontradictory portions thereof as concern the lack of the requisite control over Slevin. See generally Swift & Co. v. Lawson, 95 Ga. App. 35, 54 (6) (97 SE2d 168) (1957). “ ‘Where a question of credibility arises as to a material issue, summary judgment should not be granted. [Cits.]’ [Cits.]” Ash v. Spear, 137 Ga. App. 12, 13 (223 SE2d 26) (1975). However, even assuming the existence of such a genuine issue as to the overall credibility of appellee’s president, the record nevertheless contains the unimpeached testimony of Slevin himself. Accordingly, even if both the affidavit and the deposition of appellee’s president are totally disregarded, the record nevertheless contains probative and undisputed evidence which would demand a finding as to Slevin’s status as an independent contractor.

Construing all the evidence most strongly against appellee as the moving party, no genuine issue of material fact remains as to Slevin’s status as an independent contractor. Since appellants offered no evidence which would authorize a finding that appellee would be liable for the negligent acts of Slevin under any of the exceptions enumerated in OCGA § 51-2-5, it follows that the trial court did not err in granting summary judgment in favor of appellee as to appellants’ re-spondeat superior theory of recovery.

Decided July 14, 1987

Rehearing denied July 27, 1987

Thomas C. Bordeaux, Jr., for appellants.

Stephen H. Harris, for appellee.

2. Error, if any, in the trial court’s failure to strike portions of the affidavit of appellee’s president was harmless. As discussed above, even if the affidavit of appellee’s president is eliminated from consideration, the remaining evidence of record as to Slevin’s status was undisputed and would authorize the grant of summary judgment in favor of appellee. As to appellee’s submission of the affidavit, we likewise find no reversible error in the trial court’s refusal to assess reasonable expenses pursuant to appellant’s invocation of OCGA § 9-11-56 (g). See generally Malloy v. Cauley, 169 Ga. App. 623, 624 (1a) (314 SE2d 464) (1984).

3. Although the trial court’s order purports to be an unqualified grant of summary judgment to appellee, the validity of a recovery by appellants based upon the direct negligence of appellee remains an unaddressed issue in the case. Only appellee’s vicarious liability for the acts of Slevin was raised in its motion and the record would authorize the grant of summary judgment to appellee only as to that theory. Accordingly, the order granting summary judgment in favor of appellee as against appellants is affirmed with direction that the trial court redenominate that order as constituting the grant to appellee of partial summary as against appellant’s respondeat superior theory of recovery.

Judgment affirmed with direction.

Banke, P. J., and Benham, J., concur.


text:
    74794.
    THOMAS v. THE STATE.
    (360 SE2d 75)
   Banke, Presiding Judge.

Eartha Elizabeth Thomas was indicted for murder but found guilty of felony-grade involuntary manslaughter in connection with the death of her two-year-old foster child. She filed this appeal from the denial of her motion for new trial.

On December 10, 1982, the Department of Family and Children Services (DFACS) placed the child in the appellant’s care as a foster parent. She remained there for approximately three months, until her death on March 24, 1983. A pediatrician who had begun treating the child when the child was 10 months of age, testified that although the child had been developmentally delayed due to fetal alcoholism syndrome, she had appeared to be well-nourished and to be progressing well after she began living in the appellant’s care. On March 23, 1983, the day prior to the child’s death, the appellant had brought her to the pediatrician’s clinic for a routine examination. The pediatrician testified that he had found the child to be in good health at this time, noting that she had taken her first unassisted steps.

The following day, the pediatrician was summoned to a hospital where the child had been pronounced dead. At this time, he observed that the child “had bruises covering almost her entire body, arms, legs, stomach, back, chest, [and] head [as well as] scratch marks [and] fingernail marks.” He testified that the bruises were not of the type that would be sustained by toddlers learning to walk and that the fingernail marks were of adult origin. Also, the physician observed lacerations in the child’s mouth and gums which had not been present the day before. A pathologist called by the state testified that there were numerous hematomas present on the child’s body and that, in his opinion, the immediate cause of death was “blood loss leading to shock due to all the injuries.” He further stated that in his opinion the injuries were the result of child battering.

On the evening of the child’s death, the appellant was arrested and charged with murder. After being advised of her Miranda rights, she signed a waiver-of-counsel form and made both an oral and a written statement which may be summarized as follows. On the morning of March 24th, the child had a second bowel movement which soiled her clothes. After cleaning the child for the second time that morning, the appellant lost her temper and “viciously” whipped the child with a belt. She then placed the child in a kitchen chair and went about her household chores. When she later noticed the child leaning in the chair as if falling asleep, she attempted unsuccessfully to revive her by placing her in a bathtub full of water. The appellant then telephoned the child’s DFACS caseworker, who in turn summoned an ambulance to the house. The child was pronounced dead on the scene by the ambulance attendant.

At trial, the appellant testified that the child, who was learning to walk, was constantly falling and tended to bruise easily. She stated that the child had in fact fallen on the way to the pediatric clinic the day before her death, lacerating her lip. She further testified that the child’s urine had a strong odor, which was consistent with the opinion of a defense-retained pathologist that the child had died from euremia resulting from renal failure. The appellant admitted having spanked the child with a belt on the morning of her death but denied having beaten her “viciously.” Held:

1. The appellant enumerates as error the denial of her motion to suppress as evidence a plastic bat seized from her yard some 12 days following the child’s death. The bat was seized pursuant to the execution of a search warrant authorizing the search of her residence for “a thin belt, or any other type object that could have been used in inflict physical damage on a human body.” The appellant contends that the affidavits submitted in support of the search warrant were insufficient to establish probable cause. See generally OCGA § 17-5-21.

“ ‘(B)efore a warrant may issue, the issuing magistrate must have sufficient reasons to believe that a crime was committed, that the items sought are connected with the crime, and that the items sought will be found in the place to be searched. [Cits.]’ ” Kennard v. State, 180 Ga. App. 522, 523 (349 SE2d 470) (1986). In the present casé, the affidavits contained information that the child had died of a severe beating at the appellant’s residence, that the appellant had admitted to investigating officers having spanked the child with a thin belt, that the investigators were of the opinion that other objects might also have been used to inflict the injuries, and that the appellant had been arrested and bound over for the offense of murder. This information was sufficient to establish probable cause for a belief that the weapon or weapons used to inflict the beating would be found at the appellant’s residence.

We reject the appellant’s contention that because the crime had occurred 12 days prior to the issuance of the warrant, the information on which it was based was stale. “The proper analysis to determine timeliness is to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant. [Cit.] ” Lewis v. State, 255 Ga. 101, 104 (335 SE2d 560) (1985). We conclude that the information set forth in the affidavits was sufficient to establish a reasonable probability that the item or items in question were still located at the appellant’s home. See generally State v. Fultz, 171 Ga. App. 886 (321 SE2d 381) (1984).

The appellant also attacks the search warrant for its failure to describe with sufficient particularity the items to be seized. A warrant must describe the items to be seized with sufficient particularity to enable a prudent officer to identify them with “reasonable certainty.” Tyler v. State, 176 Ga. App. 96, 97 (335 SE2d 691) (1985). However, “[w]hen circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking. [Cits.]” Id. at 97. We hold that the description contained in the warrant was sufficient to enable the items to be seized to be identified with “reasonable certainty.”

Decided July 16, 1987

Rehearing denied July 27, 1987.

Martin C. Puetz, John Fleming, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. The plastic bat was introduced into evidence over the appellant’s objection that there was no evidence connecting it with the child’s injuries. The bat had previously been examined by a forensic serologist at the State Crime Laboratory, who testified that blood was present in the watery fluid contained in the bat but that he could not determine whether the blood was of human origin. The pathologist called by the state described the child’s bruises as “horizontally . . . linear black markings.” It is well settled that the admission of any relevant evidence is favored, no matter how slight its probative value. Sprouse v. State, 242 Ga. 831, 833 (252 SE2d 173) (1979). “[E]vidence is relevant if it renders the desired inference more probable than it would be without the evidence. [Cit.]” Chance v. State, 172 Ga. App. 299 (5) (322 SE2d 741) (1984). It is inferable from the evidence in this case that at least some of the child’s bruises were inflicted with the bat. Consequently, the trial court did not err in admitting the bat, nor in refusing to strike the testimony of the serologist.

3. The appellant contends that, in view of the conflicting expert testimony with respect to the cause of death, the evidence was insufficient to support the verdict. Conflicts in the evidence are to be resolved by the finders of fact, upon proper instructions from the trial court. Our review on appeal is limited to a determination of the sufficiency of the evidence. Dowdell v. State, 180 Ga. App. 250 (1) (349 SE2d 10) (1986). Considering the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could reasonably have found the appellant guilty beyond a reasonable doubt of murder. Under such circumstances, the jury was certainly authorized to find her guilty of felony-grade involuntary manslaughter as a lesser included offense. See generally OCGA § 16-5-3 (b); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Arnett v. State, 245 Ga. 470 (3) (265 SE2d 771) (1980).

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    73626.
    SOUTHERN GENERAL INSURANCE COMPANY v. MATHIS et al.
    (360 SE2d 19)
   Carley, Judge.

This appeal arises from the following facts: In February of 1981, Paul Mathis submitted to appellant-defendant insurer an application for motor vehicle liability insurance. The section of appellant’s application form which related to optional no-fault PIP coverage contemplated that an applicant would check one of two boxes, either a box which indicated that he was applying for a policy to be issued “WITH THIS COVERAGE” or a box which indicated that he was applying for a policy to be issued “WITHOUT THIS COVERAGE.” Mathis checked the box signifying that he was applying for a policy to be issued “WITH THIS COVERAGE.” For the applicant who had checked the box indicating his election of optional no-fault PIP coverage, another series of three boxes was provided, ostensibly for the applicant to indicate that the optional no-fault PIP coverage in his policy should be issued “WITH [THE] LIMIT OF” either $10,000, $25,000, or $50,000. Mathis did not check any one of the three boxes which had been provided for him to signify an election of the limit of his optional no-fault PIP coverage.

Despite Mathis’ indication on his application that he wished to be issued a policy “WITH THIS COVERAGE,” the policy that appellant issued to Mathis contained no express provision for any optional no-fault PIP coverage and no premium for that coverage was charged. Mathis never objected to the absence of any express provision for optional no-fault PIP coverage in the policy that had been issued by appellant. The policy as it was thereafter renewed by Mathis and appellant continued to contain only a provision for $5,000 basic no-fault PIP coverage and only the premium for that coverage was ever charged. On August 15, 1984, Mathis was injured and, several months later, he died as the result of his injuries.

The appellee-plaintiffs in this case are Mathis’ widow and the executor of his estate. After Mathis’ death, appellees filed this action against appellant, seeking to recover optional no-fault benefits under Mathis’ policy, punitive damages and attorney’s fees. Appellant answered and raised, among its other defenses, a lack of any optional no-fault PIP coverage. Subsequently, cross-motions for summary judgment were filed and the trial court conducted a hearing on the motions. With regard to the issue of appellant’s liability for optional no-fault benefits, the trial court granted appellees’ motion and denied appellant’s motion. With regard to the issues of appellant’s liability for punitive damages and attorney’s fees, the trial court, in effect, denied summary judgment to both appellees and appellant. Appellant appeals from the order granting partial summary judgment in favor of appellees, enumerating both that ruling and the denial of its own motion as error.

1. Former OCGA § 33-34-5 was in effect when Mathis applied to appellant for insurance. Subsection (a) (1) of former OCGA § 33-34-5 provided: “Each insurer shall . . . make available on an optional basis the following coverage: An aggregate limit of benefits payable without regard to fault up to $50,000.00 per person, which may be rejected or reduced to not less than an aggregate limit of benefits payable without regard to fault of $5,000.00 per person by written consent of the policyholder.” (Emphasis supplied.) Former OCGA § 33-34-5 (a) (1) has been construed as establishing that “both the insurer and the policyholder face[d] a minimum requirement. The insurer [could] not offer less than $50,000 and the policyholder [could] not accept less than $5,000.” Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 711 (1) (300 SE2d 673) (1983). Subsection (b) of former OCGA § 33-34-5 further established the procedure by which the insurer was to make its offer of the minimum $50,000 no-fault PIP coverage to an applicant and through which the insurer was to secure the applicant’s written rejection or reduction of that offer. “[N]o . . . policy shall be issued in this state unless [the required signature] spaces [on an application form] are completed and signed by the prospective insured.” Former OCGA § 33-34-5 (b). Thus, former OCGA § 33-34-5 (a) (1) otherwise required an insurer to offer the ¡applicant a minimum of $50,000 coverage for optional no-fault PIP benefits and also to secure the applicant’s written rejection or reduction of that offer and a failure on the part of the insurer to have secured the rejection or reduction of its mandatory offer in the precise “manner provided in [former OCGA § 33-34-5 (b)] resulted] in [the applicant’s] acceptance of the minimum coverage required to be offered which [was] $50,000. The absence of a rejection [by the applicant] form[ed] a contract for $50,000 PIP from its inception.” Flewellen v. Atlanta Cas. Co., supra at 715 (3).

In this case, it is clear that appellant did purport to provide to Mathis an election as to optional no-fault coverage. Pursuant to subsection (a) (1) of former OCGA § 33-34-5, appellant’s efforts in this regard must be construed as its minimum offer to Mathis of $50,000 in optional no-fault coverage. “ ‘Existing and valid statutory provisions enter into and form a part of all contracts of insurance to which they are applicable. . . . [Cit.]’ [Cit.]” State Farm Mut. Auto. Ins. Co. v. Landskroener, 150 Ga. App. 308, 309 (1) (257 SE2d 376) (1979). However, it is immaterial in this case whether appellant’s application form afforded Mathis an election which complied with the procedural requirements of former OCGA § 33-34-5 (b). Mathis purported to make an express acceptance of appellant’s offer to issue a policy “WITH THIS COVERAGE” and, therefore, this case does not turn upon any issue of a procedural deficiency in an applicant’s ostensible rejection of appellant’s offer. Accordingly, former OCGA § 33-34-5 (b) is irrelevant here, in that appellees do not urge that, “[i]n the absence of such a rejection [as was required by former OCGA § 33-34-5 (b)], the policy . . . provided] $50,000 PIP coverage from its inception.” Flewellen v. Atlanta Cas. Co., supra at 712 (1). Rather than advancing this theory of coverage through appellant’s procedural default, ap-pellees rely entirely upon former OCGA § 33-34-5 (a) (1). They urge that it is Mathis’ express acceptance of appellant’s mandatory offer of the minimum $50,000 optional no-fault coverage which authorizes their recovery of benefits.

Since a recovery by appellees is ultimately dependent upon Mathis’ acceptance of appellant’s offer under former OCGA § 33-34-5 (a) (1) rather than upon appellant’s non-compliance with the procedural requirements of former OCGA § 33-34-5 (b) as interpreted in Flewellen, supra, it follows that the analysis in Mullins v. First Gen. Ins. Co., 253 Ga. 486 (322 SE2d 265) (1984) is not controlling in this case. In Mullins, our Supreme Court found that the legislative intent of the 1982 amendments to former OCGA § 33-34-5 “was to alter the law in order to bar claims for optional PIP benefits by insureds who held policies existing as of November 1, 1982 which were not in compliance with former OCGA § 33-34-5 (b). [Cit.]” (Emphasis supplied.) Mullins v. First Gen. Ins. Co., supra at 487. “Flewellen merely created a remedy for a violation of [former] OCGA § 33-34-5 [(b)], not an implied substantive contractual right. . . . That signature requirement was a procedure to be followed to indicate the [applicant’s] acceptance or rejection of optional coverages, and was thus not a vested right. [Cits.]” (Emphasis supplied.) Mullins v. First Gen. Ins. Co., supra at 488.

2. As discussed, former OCGA § 33-34-5 (a) (1) required that an insurer offer an applicant a minimum of $50,000 in optional no-fault PIP coverage. As previously indicated, appellant did purport to make such an offer to Mathis. The validity and the effect of Mathis’ purported acceptance of that offer are the controlling issues in this case.

Mathis checked the box on appellant’s application form which affirmatively indicated that he did want a policy issued with optional no-fault PIP coverage and he did not check any box which would indicate his “written consent” to a reduction in the limits of that coverage below $50,000. It is thus clear that Mathis’ application evinces his express acceptance of the minimum offer that, under former OCGA § 33-34-5 (a) (1), appellant was required to make to him. Since Mathis affirmatively “accepted” appellant’s required minimum “offer,” it would follow that he had a contractual right to have $50,000 in no-fault PIP coverage included in the provisions of any policy that appellant may have subsequently issued to him pursuant to his application. Mathis would also have a statutory right to a policy which afforded him that coverage. “All policies of motor vehicle liability insurance issued in this state must be in accordance with the requirements of this chapter. . . .” (Emphasis supplied.) OCGA § 33-34-3 (a) (1). Pursuant to Mathis’ affirmative acceptance of appellant’s offer, $50,000 was the minimum coverage that appellant was required to afford him under former OCGA § 33-34-5 (a) (1) and, pursuant to OCGA § 33-34-3 (a) (1), appellant was thereby obligated to issue a policy “in accordance with” that statutory requirement. “[W]hen an insurer issues a policy with provisions not in compliance with the law . . . the provisions of the statute will be grafted into the policy.” Flewellen v. Atlanta Cas. Co., supra at 714 (3).

Thus, by virtue of his affirmative acceptance of appellant’s offer, Mathis was vested with contractual and statutory rights to $50,000 in optional no-fault PIP coverage, not merely an inchoate remedy for any failure on the part of appellant to have secured his procedurally precise rejection of such coverage. It therefore follows that the 1982 amendments to former OCGA § 33-34-5 would have no negative effect on appellees’ entitlement to enforce those vested rights by seeking to recover the benefits under Mathis’ policy. Compare Mullins v. First Gen. Ins. Co., supra. “ ‘It is well settled that a statute affecting substantive rights operates prospectively. [Cit.]’ [Cit.]” Southern R. Co. v. A. O. Smith Corp., 134 Ga. App. 219, 220 (1) (213 SE2d 903) (1975).

3. Appellant urges that appellees still cannot recover because, under the uncontroverted evidence, Mathis breached his duty to examine his policy and to reject it as failing to provide him the minimum optional no-fault PIP coverage for which he had applied. “If the policy as . . . issued . . . did not conform to the application, it would constitute only a counter offer. . . . [Cit.]” Boswell v. Gulf Life Ins. Co., 197 Ga. 269, 272 (29 SE2d 71) (1944). “ ‘When a policy of insurance, duly delivered to the applicant differs materially from the kind of policy for which he applied or intended to apply, it is his duty, if he does not desire to accept the policy issued to him, to return or offer to return the same, within a reasonable time, . . . and if the applicant neglects to examine the policy delivered to him’ the contract is binding. . . . [Cit.]” Parris & Son v. Campbell, 128 Ga. App. 165, 173-174 (13) (196 SE2d 334) (1973).

The general legal principles upon which appellant relies are not applicable in this case. An insurer’s obligation with regard to its issuance of policies containing no-fault coverage is controlled by statute. Pursuant to former OCGA § 33-34-5 (a) (1), appellant was required to offer Mathis a minimum of $50,000 in optional no-fault coverage. Pursuant to Mathis’ express acceptance of that offer, any policy that appellant subsequently issued to him was statutorily required to provide optional no-fault PIP coverage in the amount that he had accepted. See OCGA § 33-34-3. “As we have already stated, when an insurer issues a policy with provisions not in compliance with the law . . . the provisions of the statute will be grafted into the policy.” Flewellen v. Atlanta Cas. Co., supra at 714 (3). Accordingly, under the applicable statutory provisions, appellant’s application form constituted its offer to Mathis, not Mathis’ offer to appellant and the policy that was subsequently issued pursuant to that application cannot be deemed to be appellant’s mere counter offer to Mathis which he then accepted by failing to reject it.

Moreover, appellees do not seek to recover benefits pursuant to such insurance coverage as Mathis mistakenly thought he had properly secured. Compare Turner, Wood & Smith, Inc. v. Reed, 169 Ga. App. 213 (311 SE2d 859) (1983). Mathis had secured $50,000 in optional no-fault PIP coverage as a matter of law when appellant issued him a policy of motor vehicle liability insurance pursuant to the application which contained his express acceptance of the minimum amount of such coverage as appellant was then required to offer to him. Compare Miller v. Allstate Indem. Co., 173 Ga. App. 114 (325 SE2d 599) (1984). That the policy as it was issued may have failed to contain a formal and express extension of the requisite coverage is an oversight or mistake which is attributable solely to appellant. That Mathis may not have discovered or objected to appellant’s oversight or mistaken failure to comply with its statutorily-mandated duty will not serve to bar appellees from seeking to recover benefits pursuant to such coverage as was provided to Mathis as a matter of law. Although they rely upon subsection (a) rather than subsection (b) of former OCGA § 33-34-5, appellees are nevertheless entitled to urge that, by virtue of Mathis’ express acceptance of appellant’s offer, his policy “provid[ed] $50,000 PIP coverage from its inception. [They have] the right to demand and receive the benefit of $50,000 coverage upon tender by [them] of such additional premium as may be due and filing of proof of loss. ...” Flewellen v. Atlanta Cas. Co., supra at 712 (1).

4. As to the issue of appellant’s liability for optional no-fault PIP benefits, the trial court correctly granted summary judgment in favor of appellees and denied appellant’s motion for summary judgment. The only ground urged in support of appellant’s motion for summary judgment as to its liability for punitive damages and attorney’s fees was its asserted non-liability for optional no-fault PIP benefits. Accordingly on the record that is now before us, the trial court did not err in denying appellant’s motion as to those issues.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Decided July 1, 1987

Rehearing denied July 28, 1987

Michael J. Goldman, for appellant.

Janice Thurmond, for appellees.


author: Beasley, Judge.

text:
    73754.
    ELLERBEE et al. v. INTERSTATE CONTRACT CARRIER CORPORATION et al.
    (360 SE2d 280)
   Beasley, Judge.

Mrs. Ellerbee was injured in a 1981 accident with a tractor-trailer driven by Gambel. The tractor was owned by Smith, who apparently leased it to Interstate Contract Carrier Corporation. Bankers and Shippers Insurance Carrier of New York was the insurer for Interstate. The Ellerbees sued all four, the driver, the owner/lessor, the lessee, and the lessee’s insurer.

Service on the first three, all but the insurer, was made on the Secretary of State, plaintiffs alleging that they were covered by the provisions of OCGA Title 46 as motor common carriers or motor contract carriers and had not designated agents for service in Georgia. The insurer was properly registered and served through its agent. The action went into default and was opened by the court. Thereafter, the four defendants answered and included insufficiency of service of process as a defense, a ground which persuaded the trial court to dismiss the suit.

1. In their fifth enumeration, the Ellerbees complain of the dismissal as to insurer Bankers. It had contended that, although it was properly served, dismissal of the other three defendants required its dismissal also, as it could not possibly have breached any legal duty owing to plaintiffs. Although not specified in the order, this is apparently the basis for the court’s ruling in Bankers’ favor.

We need only consider the status of the lessee Interstate and Bankers in order to determine whether the dismissal as to Bankers was proper. All seem to agree that Interstate is a motor common carrier and motor contract carrier and is so registered with the Georgia Public Service Commission. OCGA §§ 46-7-16 (a) (3) (common carriers) and 46-7-61 (a) (3) (contract carriers) provide that carriers engaged only in interstate commerce over Georgia highways must “[g]ive the bond or indemnity insurance prescribed by this article, . . .” The article requires that these carriers either post a bond or provide a policy of insurance “for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants, or its agents.” OCGA §§ 46-7-12 (a) (c); 46-7-58 (a) (c). The policy issued by Bankers serves this purpose.

We will assume, as argued by defendants, that Interstate has not been properly served. Does this mandate that Bankers also be dismissed, as argued by defendants? It does not. OCGA §§ 46-7-12 (e) and 46-7-58 (e) both provide that if a policy of insurance is maintained, it is permissible to join the motor carrier and the insurance carrier in the same action, whether in contract or tort. Because the action against the insurance carrier is based on contract, with the public as the third party beneficiary of the contract, Thomas v. Bobby Stevens &c. Contractors, 165 Ga. App. 710, 711 (1) (302 SE2d 585) (1983), the only prerequisite to an action against the insurer is an “actionable injury”; this is not disputed here. Thomas, supra; see Tuck v. Cummins Trucking Co., 171 Ga. App. 485, 487 (2) (320 SE2d 265) (1984); cf. Currahee Constr. Co. v. Rabun County School Dist., 180 Ga. App. 471, 472 (349 SE2d 487) (1986). So it is that dismissal of the action against the insurer because of the failure to obtain service on its insured was error. Griffin v. Johnson, 157 Ga. App. 657, 658 (3) (278 SE2d 422) (1981).

2. (a) As to Interstate only, plaintiffs urge in enumeration four that any defense based on insufficiency of process has been waived. The complaint was filed on January 27, 1983, and went into default although all defendants received copies of the complaint and process. Defendants filed a demand for jury trial in April and a motion to open the default in May. It was granted in June, and two days later the answer for all defendants was filed.

Plaintiffs contend that waiver was effected by an affidavit filed by a claims supervisor for the insurer in support of the motion to open default stating, “each defendant provided us [Bankers] with timely notice of the above styled case and perfection of service.” Assuming without deciding that the insurer’s agent could make such an admission for its insured, there was no waiver.

Plaintiffs rely on OCGA §§ 24-3-30 and 24-4-24. The first section provides that any party may avail itself of allegations or admissions made in the pleadings of the other. This statute, however, applies only to admissions of fact and “is not applicable to an admission which is merely an opinion on the part of the party making it as to its legal effect.” Scott v. Jefferson, 174 Ga. App. 651, 652 (1) (331 SE2d 1) (1985). The impression that service had been perfected was at best a lay opinion, not a fact, as to the legal effect of the delivery of the pleadings.

Since the second section, OCGA § 24-4-24, was not raised below, it will not be addressed on appeal. Bogan v. State, 177 Ga. App. 614, 619 (5) (340 SE2d 256) (1986).

This Bankers’ affidavit, then, did not constitute a waiver by Interstate of sufficiency of service on it.

(b) We address another question regarding service on Interstate. As a nonresident motor carrier engaged in interstate commerce, Interstate is required to register with the Public Service Commission and designate an agent with the Commission for service upon it of all processes “in any action or proceeding against such motor common [contract] carrier growing out of its carrier operations.” OCGA §§ 46-7-17 (a) and 46-7-62 (a). Failure to so designate allows service on the Secretary of State. Id. Although plaintiffs contend that a check was made with the Commission, apparently by telephone, and no agent was located for lessee Interstate (or owner Smith or driver Gambel), the record sports an uncontradicted affidavit from the Commission’s executive secretary reflecting that an agent for service on Interstate has been in place in Georgia since 1970. Had the records been adequately checked by plaintiffs, the listing of Interstate’s agent would have been found.

The complaint was filed just a few days before the statute of limitations expired. On the next day, service was made on the Secretary of State pursuant to OCGA §§ 46-7-17 (a) and 46-7-62 (a), and default was opened five months later. Fourteen months after that,, service was made by the sheriff’s deputy on the agent for Interstate who was registered with the Commission. This agent then wrote to plaintiffs’ counsel and acknowledged that he served as agent for lessee Interstate.

The proof of service shows service in the appropriate manner on Interstate, i.e., through the motor carrier’s registered agent on file with the Public Service Commission. In response to this second service, Interstate filed an answer asserting as defenses the statute of limitations and laches in the serving of process. Under OCGA § 9-11-4 (c), where the limitation accrues between the date of filing and the date of service and is more than five days after the filing, whether or not the service relates back is a question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff. Bible v. Hughes, 146 Ga. App. 769, 770 (2) (247 SE2d 584) (1978); Brumit v. Mull, 165 Ga. App. 663, 665 (3) (302 SE2d 408) (1983). Because the court did not consider this issue, the case is remanded for its resolution as to Interstate.

3. Enumerations two and three involve the trial court’s dismissal as to the tractor driver Gambel and owner/lessor Smith. The ground was that, although each was a motor contract/common carrier required to register with the Commission and to be served under OCGA §§ 46-7-17 and 46-7-62, separate registration was unnecessary and both were included in that of lessee Interstate, with the result that failure to serve them through this statutory mechanism aborted the suit as against them.

Copies of the complaint and summons were mailed by the Secretary of State’s office to each of them pursuant to OCGA §§ 46-7-62 (a) and 46-7-17 (a) because neither had an agent designated with the Commission. A Commission affidavit states that Interstate is a registered nonresident motor carrier and has designated and maintained an agent for service of process in any action arising out of its carrier operations. A second such affidavit states that there has never been a registered agent for either Smith or Gambel, and that neither is or has ever been registered as a “motor carrier” in Georgia. Later, in 1985, service was attempted on Smith and Gambel by sheriffs service on the agent registered for Interstate. When that agent acknowledged to plaintiffs’ counsel that he was agent for Interstate, he specifically stated “I am not the process agent for [owner/lessor] Gailon Smith, [driver] Gordon L. Gambel . . .”

Defendants’ argument hinges on the definitions of “motor common carrier” and “motor contract carrier” in OCGA § 46-1-1 (7) and (8) at the time the court made its decision. Since then, effective April 9, 1986, OCGA § 46-1-1 has been rewritten and controls our decision. In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987). It now reads: “(1) ‘Carrier’ means a person who undertakes the transporting of goods or passengers for compensation. (6) ‘For hire’ means an activity wherein for compensation a motor vehicle and driver are furnished to a person by another person, acting directly or knowingly and willfully acting with another to provide the combined service of the vehicle and driver, and includes every person acting in concert with, under the control of, or under common control with a motor carrier who shall offer to furnish transportation for compensation. (7) ‘Motor contract carrier and motor common carrier’ means as follows: (A) ‘Motor contract carrier’ means every person, except common carriers, owning, controlling, operating, or managing any motor propelled vehicle including the lessees or trustees of such persons or receivers appointed by any court used in the business of transporting persons or property for hire over any public highway in this state and not operated exclusively within the corporate limits of any city. (B) ‘Motor common carrier’ means every person owning, controlling, operating, or managing any motor propelled vehicle, and the lessees, receivers, or trustees of such person, used in the business of transporting for hire of persons or property, or both, otherwise than over permanent rail tracks, on the public highways of Georgia as a common carrier.”

The service of process provision reads: “Each nonresident motor [common] carrier shall, before any certificate or other authority is issued to it under this article or at the time of registering as required by Code § 46-7-61 [46-7-16] designate and maintain in this state an agent or agents upon whom may be served all summonses or other lawful processes in any action or proceeding against such motor [common] carrier growing out of its carrier operations. . .” OCGA §§ 46-7-62 (a) and 46-7-17 (a). Failure to so maintain an agent allows service through the Secretary of State.

The definition section, taken out of context, can be read to mean that all persons, including the lessor of a leased tractor and the driver of any given load, whatever his relation to the “carrier,” must each register and maintain an agent. But it must be considered in context and as part and parcel of the statutory scheme of which it is a part, keeping in mind the cardinal rule of statutory construction, which is to ascertain the true intention of the General Assembly in the passage of the law. See George C. Carroll &c. Co. v. Langford Constr. Co., 182 Ga. App. 258, 260 (355 SE2d 756) (1987); Record Truck Line v. Harrison, 220 Ga. 289, 290 (138 SE2d 578) (1964).

The history of the regulation of “carriers for hire” over public roads and highways in Georgia, shows that the activity sought to be regulated by the legislature is engaging in the business of carrying goods or persons “for hire,” whatever the makeup of the entity engaged in the activity, and that only activities involved in carriage for hire will submit the carrier to substituted service under these statutes. An early discussion of the issue appears in Self v. Dunn & Brown, 42 Ga. 529 (1871), which involved the standard of care on a ferry operation. The defendants ran a mill and, in an effort to attract customers who otherwise would have no access to the mill, operated a ferry across the river. The service was free, although defendants acknowledged an increase in their mill business because of the ferry. The Court held that the greater standard of care imposed upon a “common carrier” did not apply to this ferry operation, stating that “[t]o make one a common carrier, he must be entitled, either by the bargain or by implication, to toll or hire.” Self, supra at 530.

No matter how the participants in a transaction may label themselves, it becomes a matter for the factfinder to determine their role and which, if any, of the actors is a “carrier for hire.” Nobles v. H. W. Durham & Co., 226 Ga. 134 (173 SE2d 200) (1970) involved a pulpwood operation. Durham had a contract with Rayonier as one of its dealers from whom it would purchase pulpwood from a designated area. The actual transfer of title to the pulpwood could occur at different points in the transaction, depending on the arrangements made by Durham concerning the cutting and delivery of the wood to Rayonier. Branch, the driver of the truck involved in the accident at issue, had been cutting and hauling wood for Durham for years under an oral agreement at will.

Summary judgment was granted by the trial court to Durham, which was held not to be a motor carrier, thus precluding application of the venue provisions of the motor carrier act. The excellent analysis in the special concurrence to the opinion reversing this points out that Durham had made a contract for hire, because his agreement with Rayonier was such that the total price paid for the wood “included the cost of transportation. This is clearly an agreement to transport another’s property for hire as a contract carrier under the plain terms of Georgia law.” Nobles, supra at 138. The concurrence also points out that if Durham was the “carrier for hire,” driver Branch was its agent and the fact that Branch had no certificate was of no consequence.

Thus, in determining whether an entity is a “motor contract or common carrier” such that the substituted service provisions of OCGA §§ 46-7-17 (a) and 46-7-62 (a) apply, the inquiry must focus on the payment of money for the transportation of the goods or people. Southeast Shippers Assn. v. Ga. Public Svc. Comm., 211 Ga. 550 (1) (87 SE2d 75) (1955); see Radcliffe v. Boyd Motor Lines, 129 Ga. App. 725, 730 (4) (201 SE2d 4) (1973); Taylor v. Jones, 123 Ga. App. 476, 477 (1) (181 SE2d 506) (1971).

The record does not answer this question in regard to driver Gambel’s driving a tractor owned and leased by Smith under some arrangement with Interstate. These are matters of fact not yet decided, which are also remanded for determination. Thus, the validity of service on these two defendants remains open.

4. In enumeration one, the Ellerbees contend that the opening of default as to all defendants was error. The complaint was filed on January 27, 1983. Service was requested on the Secretary of State, for Interstate, Smith and Gambel (discussed in Division 2 as to Interstate and in Division 3 as to the other two), although Interstate was registered with the Commission. Service was perfected as to insurer Bankers on February 7, and a copy was admittedly received in their claims office on February 9. The complaint was received by mail from the Secretary of State by Interstate on approximately January 31, although, as discussed in Division 2, this was not legal service. Service on the agent identified in the Commission filing for Interstate was made on August 16, 1985, after the opening of the default. The question of the validity of the 1985 service remains for the trial court. Copies were received by Smith and Gambel by registered mail on February 14, 1983 and January 31, 1983, respectively. They were immediately forwarded to the lessee’s insurer. The validity of this service cannot be disposed of here. See Division 3.

The motion to open default (styled as a Motion to Open Default Judgment, although no judgment had been entered) was filed May 2, 1983 and the motion granted in June based on the “affidavits of Larry D. Freeman and Myrtle C. Ellerbee, as well as the entire file of record. . . .”

Freeman, a Bankers claims supervisor, acknowledged that a copy of the summons and complaint was received in his office February 9. He stated that “. . . I have been unable to determine what exactly happened to the Summons and Complaint after they were delivered to this office, but they obviously got misplaced or misfiled.” He also stated that at about that time, the then claims supervisor was in the process of terminating his job “resulting in reorganization efforts in our claims department and some redistribution of claims files.” Acknowledging that each of the three other defendants was entitled to a defense by Bankers under the terms of the policy, he stated in the affidavit that Bankers “acknowledged receipt of this notice [i.e., complaint and summons]; thereby causing each insured to rely upon us for a defense ... It is my feeling that the [four] Defendants have valid defenses to the Plaintiffs’ Complaint; namely, lack of negligence, comparative negligence, and last clear chance.”

In opposition, Mrs. Ellerbee averred in detail her recollection of the accident, that the tractor-trailer pulled from a cross street directly into the path of her car, that it happened so suddenly she could not avoid it, and that she was not negligent and did not cause or contribute to causing the collision. She further stated that Bankers had fully compensated her for loss of her automobile.

The accident report reflects that driver Gambel was ticketed for failure to yield the right-of-way. Although parts of his statement to the officer contained in the report are illegible, it states that he acknowledged “misjudging clearance and thought [the Ellerbee vehicle] was farther away ...”

Pursuant to OCGA § 9-11-55 (b), a prejudgment default may “be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. [Cit.]” Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199) (1984).

Opening a default is a matter resting within the sound discretion of the trial court which will not be disturbed absent an abuse of discretion. U. S. Elevator Corp. v. Smyrna Hosp., 182 Ga. App. 886, 3, 4 (357 SE2d 322) (1987). However, compliance with the four conditions is a condition precedent to the exercise of this discretion. Oculus Corp. v. Fred Chenoweth Equip. Co., 172 Ga. App. 547, 548 (2) (323 SE2d 836) (1984); Global Assoc. v. Pan American Communications, 163 Ga. App. 274, 275 (1) (b) (293 SE2d 481) (1982).

The trial court had before it an affidavit from the insurer’s claims supervisor which contained factual information concerning his explanation of the claimed “excusable neglect” upon which the defendants relied in attempting to open the default. As quoted above, the affidavit states absolutely no factual information concerning the “meritorious defense” which must be shown before excusable neglect is even an issue. While there is no requirement that the affidavit contain “great detail” concerning the defense, see Cohutta Mills v. Hawthorne Indus., 179 Ga. App. 815, 816 (1) (a) (348 SE2d 91) (1986), some factual information must be provided. See Muscogee Realty Corp., supra at 402; P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328, 329 (1) (329 SE2d 545) (1985); Cohutta Mills, supra at 816 (1) (a); American Liberty Ins. Co. v. Sanders, 120 Ga. App. 202, 206 (2) (a) (170 SE2d 249) (1969); rev’d on the ground that there was no reasonable excuse for the failure to file the answer, 225 Ga. 202.

Decided July 14, 1987

Rehearing denied July 28, 1987.

Joe L. Anderson, for appellants.

Edward W. Killorin, Robert W. Killorin, for appellees.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Patrick W. McKee, Senior Assistant Attorney General, H. Jeff Lanier, Assistant Attorney General, amici curiae.

The use merely of the names of given defenses, such as “lack of negligence, comparative negligence, and last clear chance,” more so when voiced by a layman, have no weight in these circumstances. In the accident report, driver Gambel acknowledged his own negligence and, as far as is decipherable, did not attribute any to Mrs. Ellerbee. Thus, lack of negligence is not available. The last clear chance doctrine also requires among other things that there be negligence on the part of the plaintiff before it comes into play. Harrison v. Feather, 178 Ga. App. 35, 36 (342 SE2d 1) (1986); Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159, 164 (2) (91 SE2d 135) (1955). The comparative negligence statute, OCGA § 51-1.1-7, does not, under the facts before us, bar a plaintiffs recovery, but merely serves to diminish the recovery if applicable. Smith v. American Oil Co., 77 Ga. App. 463, 488 et seq. (49 SE2d 90) (1948); see Wendlandt v. Shepard Constr. Co., 178 Ga. App. 153, 154 (1) (342 SE2d 352) (1986).

The court erred in allowing the opening of the default, no meritorious defense as to any defendant having been set up.

Judgment reversed with direction.

McMurray, P. J., and Sognier, J., concur.


author: Sognier, Judge. Beasley, Judge,

text:
    73909.
    CRAWFORD v. KROGER COMPANY.
    (360 SE2d 274)
   Sognier, Judge.

Daniel Crawford appeals from the trial court’s denial of his motion to reopen this slip and fall case. The motion was filed 59 days after summary judgment was entered in favor of The Kroger Company.

Notwithstanding appellant’s presence at the hearing on appellee’s motion for summary judgment, at which the trial court’s decision was announced in open court, appellant contends the trial court erred by denying his motion to reopen because the trial court did not mail him a copy of its order. In an affidavit attached to appellee’s brief, the trial judge swore that on the day of that hearing he instructed counsel for appellee to mail a copy of the signed order to appellant’s attorney. Appellant does not deny that such was done (although he denies receipt) but argues only that notification by the trial court of its decision from the bench and subsequent notice mailed by opposing counsel is statutorily insufficient.

1. Appellant filed this appeal directly and appellee has moved to dismiss the appeal on the grounds that an application for discretionary appeal was required under OCGA § 5-6-35 (a) (8) and (b). Although appellant denominated his motion a “motion to reopen,” no such motion is contemplated or addressed by the Official Code of Georgia Annotated. In Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980), the Supreme Court held that where no notice was sent by the trial court or the clerk to the losing party, an action may be brought under OCGA § 9-11-60 (g) to set aside the judgment. While the language in Cambrón recognizes the virtually interchangeable nature of motions to set aside a judgment, see OCGA § 9-11-60 (d), and motions under § 9-11-60 (g) to “correct” a judgment because of clerical error, § 5-6-35 (a) (8) specifies only appeals from orders under the former. Since appeals from orders under OCGA § 9-11-60 (g) are not enumerated in OCGA § 5-6-35 (a), no application for appeal is thereby required under § 5-6-35 (b). While we agree that basically, the import and result of both motions are in most instances identical, and that logically the legislature probably did not contemplate allowing direct appeals from orders under (g) while mandating a discretionary approach for those under (d), the clear language of the statute prevents an interpretation which would render both motions subject to § 5-6-35 (b). Therefore, constrained by established principles of statutory construction to hold that § 9-11-60 (g) motions do not require applications to appeal, we must entertain appellant’s direct appeal.

2. Accordingly, we turn to the merits of the appeal. In Cambron, supra, the Supreme Court found that a trial judge may set aside an earlier judgment “upon a finding [by that judge] that notice was not provided as required by [OCGA § 15-6-21 (c)] .... Of course, where notice was sent and received, and the trial judge so finds, he should refuse to set aside the earlier judgment.” Id. at 148-149 (1). The record in the case sub judice clearly reveals the trial court followed this procedure outlined and approved in Cambrón. A hearing was held on appellant’s “motion to reopen” but, unlike the lower court in Cam-brón, the trial court reached the conclusion that the evidence demanded a finding against appellant. As no transcript of that proceeding appears in the record, we must assume the trial court acted properly in that regard. Rivers v. Owen, 170 Ga. App. 166 (316 SE2d 579) (1984).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Carley and Benham, JJ., concur. McMurray, P. J., Pope and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

As noted, appellant’s “motion to reopen” was in effect a motion made pursuant to OCGA § 9-11-60 (g), which allows corrections “arising from oversight or omission.” Subsection (g) does not give a name for a motion seeking such relief, but in Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980), the Supreme Court called it an “action,” the purpose of which is to set aside the earlier judgment. Thus I fully agree that the case is properly before us.

However, I respectfully dissent with respect to the merits. In Cambrón the Supreme Court construed OCGA § 15-6-21 (c) as requiring that notice be sent “by the trial court or by the clerk to the losing party.” It is a duty, the ninety-year-old statute states, and the Court so recognized in expressing that it is not merely directory. One reason fulfillment of the duty is so crucial is that its entry sets the time running for appeal. That is precisely what concerned the Court in Cambron and is the situation here. See also Barthell v. State, 174 Ga. App. 459 (330 SE2d 180) (1985).

A lack of the statutorily mandated notice compels re-entry of the judgment and a resetting of the timeclock from that point so that the losing party has a fair opportunity to appeal. Of course, if he did have actual notice of the decision and entry, he has no cause to complain that the statute was not complied with exactly. So says Cambron. In such an instance, he would have had that fair opportunity and cannot ignore it else thereby forfeiting the right to appeal.

In the instant case the statute was not complied with and there is no evidence whatsoever that the losing party received notice. The court’s shifting of its duty to the winning party gains sufficiency of compliance with the statutory command, so as to avoid the necessity to re-enter, only where the losing party receives actual notice.

Decided July 10, 1987

Rehearing denied July 28, 1987

John L. Tracy, for appellant.

Hilliard P. Burt, Terry J. Marlowe, for appellee.

The facts compel reversal.

It is to be noted that we have pretermitted the problem of the record being improperly supplemented, see OCGA §§ 5-6-41 (d) and 5-6-48 (d); State v. Pike, 253 Ga. 304 (320 SE2d 355) (1984); Taylor v. Bentley, 166 Ga. App. 887 (305 SE2d 617) (1983); and Continental Fin. & Loan Co. v. Crystal Laundry & Cleaners, 214 Ga. 528, 531 (105 SE2d 727) (1958).

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.


author: Carley, Judge. Benham, Judge,

text:
    73937.
    CLARK v. THE STATE.
    (360 SE2d 447)
   Carley, Judge.

Appellant was indicted for trafficking in cocaine. He was tried before a jury and a guilty verdict was returned. The trial court, as it was authorized to do, granted a new trial on its own motion. See OCGA § 5-5-40 (h). Appellant then agreed to a bench trial and stipulated that the trial court could consider the evidence that was produced in appellant’s jury trial. The trial court, sitting as the trior of fact, found appellant guilty. Appellant appeals from the judgment of conviction and sentence that was entered on the trial court’s finding of guilt.

1. Appellant enumerates as error the denial of his motion to suppress.

Agent Paul Markonni, a federal drug enforcement agent as well as a Clayton County deputy sheriff, observed appellant as he deplaned from a flight from Fort Lauderdale, a known drug distribution center. Agent Markonni’s attention was attracted by unusual bulges on both of appellant’s legs, which led Agent Markonni to believe that appellant had something in his boots. Through his experience, Agent Markonni has gained knowledge that strapping drugs to one’s calves is a common way in which drug traffickers carry drugs while flying on commercial airlines. Based upon that knowledge, Agent Markonni continued to observe appellant. He noticed that appellant carried only a tote bag, a jacket and a book, and that no baggage claim checks were affixed to his ticket. Agent Markonni approached appellant, identified himself as a law enforcement officer, and asked appellant, who was showing signs of nervousness, to speak with him. Appellant agreed, and upon request, presented to Agent Markonni his ticket, as well as a driver’s license which bore the same name as that which was on the ticket. When asked about his leg bulges, appellant denied he had anything in his boots. Agent Markonni then arrested and searched appellant discovering 491 grams of cocaine strapped to appellant’s calves.

Appellant urges the search was illegal because Agent Markonni had no probable cause to arrest him. “In United States v. Mendenhall, 446 U. S. 544, 550 (100 SC 1870, 64 LE2d 497) (1980), a person’s Fourth Amendment . . . right to be secure from unreasonable searches and seizures was found to apply to the person and effects of travelers in an airport. Except in extremely rare instances the seizure of the person or his effects is considered unreasonable per se unless a warrant has been obtained from a neutral magistrate upon a showing of probable cause. [Cit.] An exception, however, has been made to permit a police officer to conduct a brief investigatory stop without a showing of probable cause where the officer observes unusual conduct which, when viewed in the light of his experience, causes him to conclude that the individual is involved in criminal activity. [Cit.] In other words, this type of stop is permitted based upon an ‘articulable suspicion’ which is ‘less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment.’ [Cits.]” (Emphasis in original.) Pullano v. State, 169 Ga. App. 377, 379 (312 SE2d 857) (1983). As in Scott v. State, 253 Ga. 147, 149 (317 SE2d 830) (1984), “[w]e hold that [A]gent Markonni’s brief investigatory stop of [appellant] was both reasonable and justified in light of the particular circumstances of this case. [Cits.] In order to ‘expand the scope’ of intrusion by a law enforcement officer, however, the officer must have either probable cause or the voluntary consent of the individual detained. [Cit.]” (Emphasis supplied.)

In this case, appellant did not voluntarily consent to lifting his pants leg upon Agent Markonni’s request. Compare Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986). However, insofar as the existence of probable cause is a determination which is to be based upon the “totality of the circumstances,” the events which occurred during the subsequent investigatory stop of appellant cannot be divorced from but must be considered in light of Agent Markonni’s experience and knowledge and the articulable suspicion which authorized the stop in the first instance. “It is . . . true that . . . appellant did not voluntarily lift his trouser legs. However, in this case, the agents immediately noticed that appellant had abnormally large bulges in both boots. . . . Furthermore, . . . the appellant answered Agent Markonni’s question in the negative when asked if he had anything in his boots other than his feet and socks. Based upon the agents’ observations, this answer was obviously untrue. . . . Appellant’s ‘false response to the inquiry about the object(s) in his (boots), coupled with (the agents’) observation and experience, provided the probable cause required for (appellant’s) warrantless arrest. Accordingly, the search incident to that arrest was not violative of the Fourth and Fourteenth Amendments and the fruits of that search were properly considered by the trial court in rendering its decision.’ [Cit.]” (Emphasis in original.) Miller v. State, 183 Ga. App. 702, 703 (359 SE2d 683) (1987). “The crucial consideration in the case at bar is the odd size and shape of the bulge[s] in [appellant’s boots] as observed by [Agent] Markonni and as evaluated and analyzed based upon [Agent] Markonni’s experience. The documentation provided by [appellant] was essentially accurate and did not arouse Agent Markonni’s suspicions, in contrast to the falsified airline tickets in [cited cases]. However, [appellant’s] false response to the inquiry about the object[s] in [both of] his [boots], coupled with [Agent] Markonni’s observation and experience, provided the probable cause required for [appellant’s] warrantless arrest.” (Emphasis supplied.) Reid v. State, supra at 148.

This Court’s decision in Miller v. State, supra, has not been reversed and cannot be distinguished factually. The Miller decision is, therefore, controlling on the issue of the existence of probable cause for appellant’s arrest and the correctness of the denial of appellant’s motion to suppress. The trial court did not err in denying that motion.

2. We have considered the remaining enumerations of error asserted by or on behalf of appellant and conclude that they are without merit.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Sognier, Pope, and Beasley, JJ., concur. Banke, P. J., and Benham, J., dissent.

Benham, Judge,

dissenting.

Being unable to agree with either the judgment or the reasoning of the majority opinion, and being frightened by the far-reaching implications of the majority opinion, I must respectfully dissent. Appellant contends the search was illegal because Agent Markonni had no probable cause to arrest him.

“ ‘The seven primary characteristics of the drug courier profile are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers.’ ” Bothwell v. State, 250 Ga. 573, 575 (300 SE2d 126) (1983).

Like the majority, I find the language in Scott v. State, 253 Ga. 147, 149 (317 SE2d 830) (1984), very instructive: “We hold that agent Markonni’s brief investigatory stop of the petitioner was both reasonable and justified in light of the particular circumstances of this case. [Cits.] In order to ‘expand the scope’ of intrusion by a law enforcement officer, however, the officer must have either probable cause or the voluntary consent of the individual detained. [Cit.]”

Unlike the situations in other drug courier profile cases where we determined that a consensual search had taken place (see Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986) and McAdoo v. State, 164 Ga. App. 23 (295 SE2d 114) (1982)), no such consensual search took place here since appellant was placed under arrest before the search and he did not give his consent to the search.

Taking into consideration the totality of the circumstances, there was an “articulable suspicion” to justify a stop of appellant. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). However, nothing occurred during the Terry stop to elevate the “articulable suspicion” to probable cause. See State v. McGee, 173 Ga. App. 287 (325 SE2d 899) (1985); State v. Smith, 164 Ga. App. 142 (296 SE2d 141) (1982); and Bowers v. State, 151 Ga. App. 46 (258 SE2d 623) (1979). Even the trial judge who denied the motion to suppress herein stated that this was an “extremely close case.” While I definitely see the need to closely monitor the activities of citizens at our airports to ferret out and prosecute those who deal in the disgustingly vile, illegal drug trade, I must stand sentinel to our constitutional and procedural safeguards and not allow law enforcement officers to make an impermissible leap from suspicion to probable cause. Just recently, this court affirmed the conviction in Miller v. State, 183 Ga. App. 702 (359 SE2d 683) (1987), a leg-bulge case, and I specially concurred. However, there is a considerable factual distinction between the case sub judice and Miller. Unlike Miller, where a vivid and detailed factual description by the law enforcement officer of the compelling circumstances outlined in the main opinion and special concurrence was sufficient for both a Terry stop and a probable cause arrest, the factual situation here was in no way compelling to the extent that it gave rise to a probable cause arrest. Therefore, I would reverse the trial court and grant the appellant’s motion to suppress.

I am authorized to state that Presiding Judge Banke joins in this dissent.

Decided July 16, 1987

Rehearing denied July 28, 1987.

Jerry L. Patrick, Jr., for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.


text:
    73996.
    ETHERIDGE v. FRIED.
    (360 SE2d 409)
   Carley, Judge.

Appellee-plaintiff filed suit against appellant-defendant, alleging claims for breach of warranty deed and for fraud. Appellant answered, denying the material allegations of appellee’s complaint. Subsequently, appellee moved for partial summary judgment as to appellant’s liability for breach of warranty deed. The trial court denied appellee’s motion. Appellant then moved for summary judgment. Ap-pellee not only opposed appellant’s motion on the merits, but also urged that the earlier denial of her own motion for partial summary judgment should be reconsidered by the trial court. The trial court conducted a hearing on appellant’s motion for summary judgment and denied it. The trial court also reconsidered its ruling on appellee’s previous motion and granted partial summary judgment in her favor as to appellant’s liability for breach of warranty deed. Appellant appeals from the trial court’s order which granted partial summary judgment in favor of appellee and denied appellant’s motion for summary judgment.

1. The trial court was authorized to reconsider and to grant ap-pellee’s motion for partial summary judgment after having previously denied it. “Consideration of a second motion for summary judgment lies within the discretion of the trial judge. . . . [Cit.]” Belcher v. Logan, 150 Ga. App. 249, 251 (2) (257 SE2d 299) (1979). This is true even though appellee had not refiled her motion but had merely requested the trial court to reconsider the denial of her previous motion for partial summary judgment. “ ‘[S]ummary judgment can be granted to a non-moving party provided that the grant is proper in all respects. [Cit.]’ [Cits.]” Eiberger v. West, 247 Ga. 767, 770 (1a) (281 SE2d 148) (1981).

2. Appellee urges that appellant did not have title to the entirety of the property that he purported to convey to her by warranty deed and that this constitutes a defect in title for which she can recover against appellant pursuant to OCGA § 44-5-36. Appellant, on the other hand, urges that there was, at most, a deficiency in the quantity of property that he conveyed to appellant and that, pursuant to OCGA § 44-5-35, she has no right to recover against him as a matter of law. Accordingly, the issue for resolution with regard to the grant of partial summary judgment to appellee or her claim for breach of warranty deed is whether OCGA § 44-5-35 or OCGA § 44-5-36 is the controlling statutory provision.

If the property “involved [is] described by boundaries and [if a portion of the property] within those boundaries [was] owned by someone other than [appellant,] [t]his amounts to a defect in title as contemplated by [OCGA § 44-5-36] rather than a deficiency in quantity as contemplated by [OCGA § 44-5-35].” Lawton v. Byck, 217 Ga. 676, 680-681 (3) (124 SE2d 369) (1962). The warranty deed that was delivered to appellee by appellant contained the following description of the property: “All that tract or parcel of land lying and being in Land Lot 342 of the 18th District, DeKalb County, Georgia, 1 acre as per plat recorded in Plat Book 55, Page 98, survey for [appellant], DeKalb County Records.” (Emphasis supplied.) “Where a deed or grant refers to a plat as furnishing the description of the land conveyed, the plat itself and the words and marks on it are as much a part of the grant or deed, and control, so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.” Westbrook v. Comer, 197 Ga. 433, 434 (2) (29 SE2d 574) (1944). The recorded plat to which reference was made in the deed from appellant to appellee had been prepared in 1970 and it delineates the boundaries of a single tract of property. At the time of the conveyance from appellant to appellee, however, appellant did not own all of the property within the boundaries that were shown on the plat. In 1977, he had conveyed .055 acres of the property to DeKalb County in fee simple absolute. Thus, appellant could not convey title to “[a]ll that tract or parcel” described in the deed that was delivered to appellee because he did “not have title to a part of it. This is a defect in title. The situation would be different if [appellant had been] able to convey the tract described to the boundaries described and it later appeared that, though [he] had title to the entire tract, the tract contained less land than described in the [deed]. The latter situation is covered by [OCGA § 44-5-35], the former is not.” Lawton v. Byck, supra at 681 (3).

Accordingly, OCGA § 44-5-36 is the controlling statutory provision in this case. It therefore follows that appellee’s right to recover for a breach of the warranty deed would not be “defeated by [her] constructive knowledge of the prior recorded deed to the county. ‘A general warranty of title in a deed against the claims of all persons covers defects in the title though known to the purchaser at the time of taking the deed.’ [Cit.]” Lunsford v. King, 132 Ga. App. 749, 750 (209 SE2d 27) (1974). The trial court correctly granted summary judgment in favor of appellee as to appellant’s liability for breach of warranty deed, leaving for jury resolution as to that claim only the issue of “the amount of the unliquidated damages [to which she would be entitled] for the ‘reduction of the price according to the relative value of the land so lost.’ [Cit.]” Lunsford v. King, supra at 750.

Decided July 2, 1987

Rehearing denied July 28, 1987.

George G. Chenggis, for appellant.

Larry Chesin, for appellee.

3. Appellant also enumerates as error the denial of his motion for summary judgment as to appellee’s fraud claim. The fraud attributed to appellant is his alleged representation that he still owned the entire tract and his failure to disclose that he had conveyed .055 acres to DeKalb County. However, it is undisputed that, in her purchase of the property, appellee ultimately placed no reliance upon appellant’s alleged representations concerning his title to the tract. Appellee had hired her own attorney to check the title to the property. Compare Zeeman v. Black, 156 Ga. App. 82 (273 SE2d 910) (1980). It is apparently undisputed that although appellee’s attorney discovered the recorded 1977 conveyance by appellant of .055 acres to DeKalb County, he simply failed to inform her of his discovery. Thus, in closing on the property, appellee was relying upon such information with regard to title as had been supplied by her own attorney, not any prior representation that had been made by appellant. Under these circumstances, appellee may have a viable cause of action for legal malpractice against her own attorney, but she does not have a viable cause of action for fraud against appellant. “ ‘(I)n order to sustain (a) cause of action for fraud the record must show that (the plaintiff) acted upon the misrepresentation of (the defendant). (Cit.)”’ (Emphasis supplied.) Moore v. Fla. Rock & Tank Lines, Inc., 183 Ga. App. 520, 522 (359 SE2d 356) (1987). Accordingly, the trial court erred in denying appellant’s motion for summary judgment as to appellee’s fraud claim.

4. Remaining enumerations of error have been considered but are either moot or without merit. The trial court correctly granted summary judgment in favor of appellee as to appellant’s liability for breach of warranty deed. The trial court erred in denying summary judgment to appellant on appellee’s fraud claim.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Benham, J., concur.


text:
    74260.
    WESTINGHOUSE ELECTRIC CORPORATION v. WILLIAMS et al.
    (360 SE2d 411)
   Beasley, Judge.

Westinghouse appeals from the orders denying its motion for summary judgment on the main complaint, granting the summary judgment motion of third-party defendant Dobbs-Paschal Midfield Corporation, and dismissing Westinghouse’s third-party complaint against Dobbs-Paschal. The pertinent background facts are set out in Westinghouse v. Williams, 173 Ga. App. 118, 121 (325 SE2d 460) (1984). We there held for the purpose of this case that the only basis for recovery by Williams was against Westinghouse on strict liability.

1. Our opinion on the prior appearance of this case found an issue of fact was raised as to whether the Automated Guideway Transit System was defective within the purview of OCGA § 51-1-11 (b) in two respects: “lack of seats in the AGTS car and the car’s deceleration rate for emergency stops.” After remand Westinghouse endeavored to eliminate the issues regarding defects by means of affidavits of two experts. It attempted to show that the force resulting from an emergency stop (the maximum, all-out stop by the AGTS) was not sufficient to injure plaintiff. However, plaintiff responded with two affidavits by her experts who disputed Westinghouse’s assertions.

Plaintiff was standing, facing sideways to the direction of travel and holding the vertical pole provided for passengers. Plaintiff’s engineering expert testified that braking the “train” exerts a force which bends the body of a passenger in the direction of travel and in an area through the body’s length between shoulders and feet; that in addition there is also a torquing or twisting of the passenger’s body.

Plaintiff’s medical expert stated that “torque is the most common cause of disc injury and the twisting, or whipping, motion need not be severe to cause a disc injury, even in a healthy person.” He also gave as his medical opinion based on experience and examination of plaintiff that “the incident of the train suddenly stopping and the forces applied to Mrs. Williams’ body during the lateral movement were the precipitating cause of the injury to the spine suffered by Mrs. Williams.”

All of the evidence presented, when considered in its entirety, did not negate the claim that the rate of deceleration for an emergency stop was a defect.

Genuine issues of material fact therefore still remain. Westinghouse has advanced persuasive argument regarding the existence of any defects at the time of manufacture and as to the lack of a showing that the injury resulted from a defective product. However, the record in Westinghouse, 173 Ga. App. 118, supra, reveals that these same issues and the same facts on which Westinghouse now relies were before the court in that appeal. We are bound by the previous decision that plaintiff is entitled to a jury trial on the issue of product liability. “[Rjulings of the appellate courts are binding in all subsequent proceedings in the trial or appellate courts.” Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646, 650 (297 SE2d 307) (1982); OCGA § 9-11-60 (h).

Westinghouse having failed to remove the factual issues this Court formerly found, the denial of summary judgment was compelled.

2. We turn next to the issues involving the third party, Dobbs-Paschal. Westinghouse sought by third-party complaint to bring in Dobbs-Paschal on the theory that it was obligated to Westinghouse because of an indemnity provision contained in a contract between the City of Atlanta and Dobbs-Paschal as the “principal concessionaire” at Hartsfield Atlanta International Airport. The indemnity provision was contained in Section 16 of the Agreement and reads as follows: “It is an express condition of this Agreement that, except where caused solely by its or their negligence, City, the Contracting Airlines, their elected officials and their officers, agents and employees shall be free from any and all claims, debts, demands, liabilities or causes of action of every kind or character, whether in law or in equity, by reason of any death, injury or damage to any person or persons or damage or destruction of property or loss of use thereof, whether it be the person or property of Principal Concessionaire, its subconcessionaires, agents or employees, or of any third persons, from any cause or causes whatsoever arising from any event or occurrence in or upon the Concessions Space or any part thereof or otherwise arising from Principal Concessionaire’s operations under and during the term of this Agreement; and Principal Concessionaire shall indemnify and save harmless City, the Contracting Airlines, their elected officials and their officers, agents, and employees, against and from any and all such claims, demands, debts, liabilities and causes of action (including attorney’s fees and costs). The obligation of Principal Concessionaire under this Section shall also cover any party who provides Maintenance and Operations services in the TBA pursuant to an arrangement with the Contracting Airlines.”

In granting Dobbs-Paschal’s motion for summary judgment the trial court noted: Westinghouse was not a party to the indemnity agreement; the agreement did not apply to the claims in this case; there was a serious public policy question raised by a manufacturer’s (Westinghouse) attempt to transfer liability to parties unrelated to the product in a products liability case.

“[T]he scope of . . . indemnity provisions . . . , manifested in the form of written contracts, is a question of law for the court.” Molly Pitcher &c. v. Central &c. R. Co., 149 Ga. App. 5, 8 (2) (253 SE2d 392) (1979). A contract of indemnification is construed strictly against the indemnitee. Foster v. Nix, 173 Ga. App. 720, 724 (1) (327 SE2d 833) (1985). “In the absence of explicit language to the contrary, courts will not interpret an indemnity agreement as a promise by the indemnitor to save the indemnitee harmless on account of the latter’s own negligence.” Batson-Cook Co. v. Ga. Marble &c. Co., 112 Ga. App. 226, 230 (144 SE2d 547) (1965).

Decided July 8, 1987

Rehearing denied July 28, 1987

Lawrence S. Burnat, Lynn C. Stewart, for appellant.

G. Michael Banick, Lowell S. Fine, for appellees.

Westinghouse was not a party to the contract and not, within normal parlance, an agent of the indemnitee. Westinghouse, however, argues that although it was an independent contractor, it was an agent within the meaning of the indemnity provision and covered by the language in the last sentence, i.e., “any party who provides maintenance and operations services in the TBA pursuant to an arrangement with the Contracting Airline.”

Simply stated, Westinghouse is not an indemnitee within the contemplation of the agreement. The AGTS by definition is expressly excluded as a part of the TBA. The provision indemnifies “causes whatsoever arising from any event or occurrence in or upon the Concessions Space or any part thereof or otherwise arising from Principal Concessionaire’s operations under and during the term of this Agreement.” AGTS operation does not fall within such categorization. Furthermore, Westinghouse is outside the agreement’s ambit, when the indemnity portion is strictly construed as must be done. Despite the fact that it may have close contacts with the City or Contracting Airlines, Westinghouse may be considered an agent only in a very specialized and strained sense of the term. This stretching we decline to do and thus we find no indemnification under the contract.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.