text:
    A90A2335.
    FRANCIS v. HAYGOOD CONTRACTING, INC.
    (404 SE2d 136)
   McMurray, Presiding Judge.

On May 19, 1988, an office park was being developed in Cobb County, Georgia, and defendant Haygood Contracting, Inc., was engaged in the construction of a roadway at the office park. Although gravel had been placed on the roadway, it was far from complete. More gravel work was needed and asphalt work was needed.

Access to the office park was blocked by a barricade at the entrance. But plaintiff gained access to the park many times, riding a motorbike along a dirt path.

Plaintiff had been seen often by construction workers at the office park. He was never told by anyone that he had to leave the premises. No signs were posted on the property warning the public to stay away.

Plaintiff was aware that the office park roadway was under construction. He knew that more work needed to be done on the road.

On the day in question, plaintiff was injured seriously when he rode his motorbike over piles or rows of gravel which defendant placed on the roadway. Plaintiff stated that he could not see the piles or rows of gravel because they blended in with the gravel which defendant levelled off previously.

Plaintiff brought this personal injury action against defendant, alleging the piles or rows of gravel constituted a hazard to the “motoring public” and defendant failed to protect the “motoring public” from that hazard. Defendant answered the complaint and moved for summary judgment. The trial court granted defendant’s summary judgment motion and plaintiff appeals. Held:

1. We need not decide whether plaintiff was a licensee or a trespasser. Even if plaintiff were a licensee, it cannot be said that the trial court erred in granting defendant’s motion for summary judgment.

“ ‘A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved. . . .’ [Cits.]” Patterson v. Thomas, 118 Ga. App. 326, 328 (163 SE2d 331). Accord London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (267 SE2d 214).

“A licensee cannot recover by showing that the defendant was merely negligent, but must show that the defendant wilfully and wantonly injured [him].” Laurens v. Rush, 116 Ga. App. 65, 67 (156 SE2d 482); OCGA § 51-3-2. As it is said: “ ‘An owner owes to a licensee no duty as to the condition of the premises . . . save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm.’ ” Atlantic Coast Line R. Co. v. O’Neal, 180 Ga. 153, 156 (178 SE 451). “To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, man-traps, and things of that character.” Mandeville Mills v. Dale, 2 Ga. App. 607, 610 (58 SE 1060). Accord Higginbotham v. Winborn, 135 Ga. App. 753, 756 (218 SE2d 917); Central of Georgia R. Co. v. Ledbetter, 46 Ga. App. 500, 504 (168 SE 81).

“What is a mantrap? In Crosby v. Savannah Electric Co., 114 Ga. App. 193, 198 (150 SE2d 563), it is held: ‘The doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury. [Cit.] A typical example is the setting of a spring or trap gun to stop or prevent depredations by animals or humans. ... In that situation the owner expects that a trespasser will come, and deliberately sets a trap designed to do injury. It may result from the knowledge on the part of the owner of the existence of a dangerous or hazardous condition coupled with a conscious indifference to the consequences, so that a deliberate intent to inflict injury is inferable [cit.]; or from a dangerous condition hidden with sufficient cover to obscure it or to render it unobservable to one who approaches it. [Cits.]’ ” McKinsey v. Wade, 136 Ga. App. 109, 110 (5) (220 SE2d 30).

It cannot be said that the placement of gravel on a private roadway which is under construction constitutes a pitfall or mantrap. Nor can it be said to be a dangerous or hazardous condition from which a deliberate attempt to inflict injury can be inferred. Therefore, we hold that, as a matter of law, defendant did not breach the duty which it owed to plaintiff: defendant did not wilfully or wantonly injure plaintiff.

Besides, the rule imposing liability for harm caused to licensees “presupposes that the licensees do not know or have reason to know of the risks involved. [Cits.]” Wren v. Harrison, 165 Ga. App. 847, 849 (303 SE2d 67). In the case sub judice, plaintiff knew or had reason to know the risks of riding a motorbike on the roadway. He rode a motorbike on the roadway many times. He was aware that the roadway (indeed, the entire office park) was under construction and that more work needed to be done. Thus, plaintiff knew or should have known that he would encounter obstacles on the roadway.

Decided February 26, 1991

Rehearing denied March 14, 1991

Bedford, Kirschner & Venker, Thomas J. Venker, E. Graydon Shuford, for appellant.

John C. Grabbe IV, for appellee.

Plaintiff should not have been surprised by the presence of gravel piles on the roadway; he should have been on the lookout for such things. “The plaintiff went into the situation with his eyes wide open. He saw the whole picture; he had the opportunity to measure the risks, if any. . . .” Simmons v. Classic City Beverages, 136 Ga. App. 150, 151 (4) (220 SE2d 734). The trial court did not err in granting defendant’s motion for summary judgment.

2. Plaintiff contends the trial court erred in failing to take into account the affidavit of an expert who opined that defendant did not meet the standard of care pertaining to warnings or barricades on roadbeds under construction. (The trial court ruled that the affidavit failed to set forth the applicable standard of care and how defendant deviated from it.) We cannot accept this contention. The expert did not describe the standard of care pertaining to the construction of roadways on private property. He simply referred to a general standard of care and to a manual which obviously pertains to public, not private, roadways.

Besides, the standard of care in the road construction industry has little, if any, bearing upon the real issue in this case: whether defendant wilfully or wantonly injured plaintiff. (Deviation from a standard of care may show simple negligence; it does not show wilful or wanton conduct.) We determined that, as a matter of law, defendant did not wilfully or wantonly injure plaintiff. See Division 1. Nothing in the expert’s affidavit would lead us to a different conclusion.

Judgment affirmed.

Sognier, C. J., and Car ley, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A0049.
    CHAN v. W-EAST TRADING CORPORATION.
    (403 SE2d 840)
   Birdsong, Presiding Judge.

This court granted appellant’s application for discretionary appeal on the issue of whether appellant, as an additional party defendant, is required to answer plaintiff’s second amended complaint when the consent order adding the appellant as an additional party defendant did not require applicant to file an answer.

Appellee W-East Trading Corporation brought a suit on account against Cháñese, Inc. d/b/a Chan & Chan Market. Appellant Herbert C. Chan was the president of the corporation at all times relevant to this action. During the course of the relatively stormy litigation, ap-pellee filed a motion for sanctions and a motion to add appellant as a party defendant to the litigation. Subsequently, a consent order on motion for sanctions and motion to add party defendant was issued by the trial court which ordered inter alia that appellant be added as a party defendant to the litigation, that appellee is “allowed” to file a second amended complaint, and that appellant’s counsel acknowledge service of the second amended complaint on behalf of appellant. The consent order did not contain any express order requiring appellant to answer the second amended complaint. Appellant did not answer the complaint, and the trial court subsequently entered default judgment against him on the grounds appellant “filed no defensive pleadings in this matter, and that he is in default, pursuant to OCGA § 9-11-55 (a).” Appellant subsequently filed a motion by new counsel to set aside default judgment, which was denied. Held:

1. This court cannot condone dilatory conduct during the course of litigation; nevertheless, appellant is entitled to a fair adjudication of the issue before us on appeal.

2. Appellant importunes us to address the asserted conflict he perceives arising between OCGA § 9-11-12 (a) and OCGA § 9-11-15 (a), regarding the time period an additional party would have to file an answer if a trial court orders such answer. This court does not render advisory opinions. Norman v. Walker, 123 Ga. App. 413 (3) (181 SE2d 310).

3. Appellee has erroneously attempted by means of an appendix to its appellate brief to introduce a certain document, purporting to be appellee’s brief in Gordy v. Sumner, 151 Ga. App. 430 (260 SE2d 384) for our consideration. “[A] brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.” Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33). Moreover, notwithstanding their paucity, it is the facts contained within an officially reported case which have legal significance when applying the case as precedent, not bare assertions of facts found within the briefs of the parties and not contained in the text of the reported case.

4. Appellee asserts that appellant Chan “was served with a new complaint as to him,” and in essence argues that although stylized as an “amended complaint” as to appellant the pleading in effect was an original “complaint” therefore requiring an answer. There is no magic in the nomenclature of a pleading; it is to be construed to serve the best interests of justice, judging the pleading by its function and substance rather than its name. Gully v. Glover, 190 Ga. App. 238 (1) (378 SE2d 411). Applying this test to the pleading in question, construing the consent order and the second amended complaint on their four corners and in pari materia, and recognizing a proper pleading vehicle for adding an additional party defendant is by way of an “amended complaint” (see Horne v. Carswell, 167 Ga. App. 229 (306 SE2d 94); Pascoe Steel Corp. v. Turner County Bd. of Ed., 139 Ga. App. 87, 89 (2) (227 SE2d 887); see generally Davis & Shulman, Ga. Prac. & Proc. (5th ed.), § 13-3), we find the “Second Amended Complaint,” which gave effect to the provision in the consent order adding appellant Chan as a party defendant, serves the exact function as captioned. It is not an “original complaint” either in form or substance.

Further, appellee’s reliance on Jesup Carpet &c. v. Ken Carpets &c., 142 Ga. App. 301 (235 SE2d 684) is misplaced. Jesup, supra, is distinguishable on its facts. Compare Diaz v. First Nat. Bank &c., 144 Ga. App. 582 (3) (241 SE2d 467). In Jesup there was a substitution of the defendant accomplished by means of a consent judgment, and the substituted defendant could not rely on the original defendant’s answer; in this case there was an addition of a party defendant by way of a second amended complaint following entry of a consent order announcing such addition and authorizing filing of the amended pleading. The consent order could have been crafted to fit within the circumscriptions of Jesup but this was not done. Appellee cannot complain of a procedural deficiency which his own participation helped bring about. Cf. West v. Nodvin, 196 Ga. App. 825, 829 (3) (e) (397 SE2d 567).

Teamsters Local 515 v. Roadbuilders &c., 249 Ga. 418 (291 SE2d 698) also is distinguishable, as defendants, unlike in the case sub judice, did not file an answer to the original complaint which sought injunctive relief but was amended subsequently to claim money damages. Moreover, the dicta in Teamsters, supra at 420, “that judgment by default is necessary and proper where a defendant ignores a court’s summons or order commanding the defendant to respond to a complaint” pertains to original complaints and does not on its face purport to be dispositive in instances involving amended complaints, the rules pertaining to which hereinafter will be discussed.

5. Appellant asserts that in pari materia Adams v. First Nat. Bank &c., 170 Ga. App. 490 (317 SE2d 301); Gordy, supra; Diaz, supra, and Wolski v. Hayes, 144 Ga. App. 180 (240 SE2d 720), hold: “An added party defendant, once having been properly added by order of court and properly served with summons and complaint, whether added as a defendant in counterclaim under OCGA § 9-11-13 (h) or as an additional party defendant under OCGA § 9-11-21, has until the time of trial, or the hearing on a motion, or the filing of some discovery device to formulate a response unless the trial court orders the added party defendant to file an answer, and that the summons issued by clerk of court under OCGA § 9-11-4 is not an order of court [for the purpose of] requiring the added party defendant to answer.” We agree.

In this regard, OCGA § 9-11-4 (a) states that upon filing the complaint the “clerk” shall forthwith issue a summons. OCGA § 9-11-4 (b) prescribes the form of the summons to include inter alia it “state the time within which this chapter requires the defendant to appear and file appropriate defensive pleadings . . . and shall notify the defendant that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint.” (Emphasis supplied.) Thus, the statutory authority vested, by this Code section, in the clerk when issuing summons regarding the filing of responsive pleadings is that of stating the time in the body of the summons within which Chapter 11 of Title 9, OCGA requires a particular defendant to appear and file appropriate defensive pleadings; and, where “otherwise provided by statute” a defendant need not answer within 30 days after service of summons and complaint upon him. OCGA § 9-11-12 (a).

Construing the pertinent provisions of OCGA §§ 9-11-7; 9-11-8; 9-11-12; 9-11-15, and 9-11-21 in pari materia, it is clear that the Civil Practice Act authorizes the addition of parties, by order of the court, and that an “amended complaint” effecting such an addition does not require a responsive pleading, unless the trial court orders a reply thereto. Considering this court’s holding in Adams, Diaz, Gordy and Wolski, the above cited statutes, including the general provision of OCGA § 9-11-7 (a) that no other pleadings shall be allowed (other than those therein listed) except upon order of the trial court, and the holding in Grand Lodge &c. v. City of Thomasville, 226 Ga. 4, 6 (4) (172 SE2d 612) that no responsive pleadings are required to an amendment, we conclude appellant was not required to file an answer to the second amended complaint at the time he was found to be in default, as the trial court itself, had not affirmatively ordered such answer. See generally Ga. Prac. & Proc., supra at § 10-14.

OCGA § 9-11-55 (a), pursuant to which appellant was found in default, pertinently provides “[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default. . . .’’ As appellant was not required by statute nor affirmatively ordered by the trial court to answer the amended complaint, “it follows that [he] was never in default” and default judgment was void. Gordy, supra at 430; see Adams, supra at 493; Wolski, supra at 183; Diaz, supra at 583-584.

Appellee tacitly asserts that it would be fundamentally unfair to construe the pleadings in this case as other than a new complaint requiring an answer, as a “newly added party may have defenses to a complaint that are entirely different from those of the original defendant, and, the newly added party should be required to reveal those defenses.” However, it is well-established that “[ajverments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” OCGA § 9-11-8 (d); Grand Lodge, supra at 9. If the interest of justice demands that answer be given, a party’s remedy is to make timely request of the trial judge to affirmatively order an answer to the amended complaint. See OCGA §§ 9-11-7 (a); 9-11-12 (a); 9-11-15 (a) and (d); 9-11-21, and 15-1-13 (4) and (6).

Decided February 25, 1991

Rehearings denied March 7, 1991 and March 14, 1991

Salem & Wong, Alvin T. Wong, for appellant.

Freed & Freed, Gary S. Freed, Ross J. Adams, for appellee.

Appellee’s other arguments also lack suasiveness.

Judgment reversed.

Pope and Cooper, JJ., concur.

On Motion for Rehearing.

Appellee W-East Trading Corporation has filed a motion for rehearing. We find the argument therein as being unpersuasive. Further Chrysler Credit Corp. v. Brown, 198 Ga. App. 653 (402 SE2d 753) (1991) is not controlling. In Chrysler no appellate decision was rendered regarding the issue of whether an answer was required to be filed in response to the amended complaint. “There was no principle of law laid down as a result of [our decision in Chrysler] which would dictate a given result in the [case sub judice].” See Norris v. Atlanta &c. R. Co., 254 Ga. 684, 686 (333 SE2d 835). Nor will an appellate court cull a particular record on behalf of one of the adversary parties in search of instances of error not adequately raised through proper appellate procedure. See generally Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895); Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709).

Motion for rehearing denied.


author: Pope, Judge.

text:
    A90A1963.
    GAY v. THE STATE.
    (403 SE2d 895)
   Pope, Judge.

Defendant Travis Gay was convicted of aggravated assault, possession of a firearm during the commission of a crime and discharging a firearm on or near a highway. He appeals from the denial of his motion for new trial. We affirm.

Construed so as to support the verdict, the evidence adduced at trial shows the following. On May 21, 1989, at about 2:00 p.m. the 88-year-old victim, Mr. John Wall, was traveling in a wooded area along Highway 135 near Naylor, Georgia, in Lowndes County. Wall saw something in the road and stopped to investigate; he found a bucket filled with rocks and sand which he moved to the side of the road. Wall then got back in his truck and resumed his trip; however, after traveling a short distance (115 to 120 yards) he heard a blast and observed his rear window had been blown out. He felt a burning in his shoulder and saw blood running down his back. Wall drove to the nearest house and from there was transported to the local hospital for treatment of what was determined to be a gunshot wound to the back of his chest.

Although the victim did not see the person who shot him, several residents who lived nearby (near the intersection of Robinson Circle and Old State Road on Hwy. 135) testified that about the time the incident occurred they saw a black male walking south carrying something that looked like a stick or a gun. The witnesses further testified that the person they saw acted suspicious because he kept walking into the woods and then back out onto the road.

Law enforcement officials who investigated the incident testified at trial that they found extremely fresh, isolated footprints near where the shooting occurred. According to investigators the person making the prints was wearing Reebok athletic footwear (the logo was visible in the prints). Officers began following the footprints, which veered at certain intervals into the adjacent woods. Continuing to track the footprints visually, and with the aid of a dog tracking by smell, the officers turned west on Robinson Circle, then south on Grand Bay Road and proceeded towards Hwy. 84 until they came to a house. Officers knocked on the door and defendant, who was wearing a pair of Reebok athletic shoes, answered the door. Defendant was taken into custody and a .22 caliber rifle was taken from his home.

While in custody defendant made both written and oral statements to the officers. Defendant, who said he was looking for his lost wallet, admitted that he had been walking in the area where the shooting occurred and that he had a rifle with him at that time. Defendant also confirmed that he was the person the residents of the area saw walking down the road and that he ducked into the woods when he saw them. Defendant stated he got bored so he set up a bucket in the road and started taking “pot” shots at it. According to defendant’s statement, the victim then came along in his truck and got out and moved the bucket and that “for some reason at that point [defendant] shot at the truck.” In his written statement defendant also stated that he shot at the truck as it passed.

1. Defendant argues the trial court erred in denying his motion for mistrial urged on the basis that the trial court impermissibly allowed Deputy Adkins to testify concerning an oral in-custody statement made by defendant because the State failed to furnish him that statement prior to trial as mandated by OCGA § 17-7-210. According to the assertion the prosecutor made at trial in response to defendant’s motion, the State provided defendant with all his oral and written in-custody statements when he was arraigned on July 25, 1989. Defendant filed a motion in limine to exclude his oral and written statements and a motion for disclosure pursuant to OCGA § 17-7-210 on August 1, 1989. Although no transcript of the hearing appears in the record on appeal, a hearing was held on defendant’s motions on August 22, 1989, and defendant’s statements apparently were found to be admissible at trial. According to the prosecutor’s statements at trial, Adkins testified at this hearing concerning the statements defendant now complains of on appeal. Defendant contends, however, that he was never provided with a copy of this particular statement.

We find no error. “ ‘In the absence of a transcript we must assume as a matter of law that the evidence adduced at the hearing [on defendant’s motions] supported the findings of the court.’ [Cits.]” Evans v. State, 166 Ga. App. 602, 603 (305 SE2d 121) (1983). Moreover, the testimony to which defendant objected (that defendant admitted he shot at the truck) merely was cumulative of testimony to which defendant did not object concerning other oral and written in-custody statements. “[S]ince [the objected to statement] was not significantly different in substance from [defendant’s other oral and written] statements, we find no error in the denial of the [motion for mistrial]. Rhodes v. State, 170 Ga. App. 473 (2) (317 SE2d 285) (1984); Tyson v. State, 165 Ga. App. 22 (1) (299 SE2d 69) (1983).” Hillman v. State, 184 Ga. App. 712, 714 (2) (362 SE2d 417) (1987).

2. Defendant next cites as error the trial court’s failure to give his request to charge number 11, on admissions and confessions, in its entirety. Defendant, arguing that his in-custody statement was a “confession” as opposed to an “admission,” contends the trial court should have charged the jury that “a statement uncorroborated by any other evidence is not sufficient to justify a conviction.” See OCGA § 24-3-53. “[Defendant’s] statement, while an admission, was not a confession to the crime of [aggravated assault], inasmuch as he contended that [he intended to shoot at the truck, not the victim]. The court’s charge, taken as a whole, informed the jury that [defendant’s statements] should be examined closely for voluntariness. Additionally, we have noted previously the perils inherent in the use of the term ‘confession,’ Golden v. State, 250 Ga. 428, 429 (297 SE2d 479) (1982), Johnson v. State, 242 Ga. 822, 825 (251 SE2d 563) (1979), in cases such as this. It was not error to fail to charge the language of the Code section, and this enumeration is without merit.” (Paragraph indention omitted.) Houston v. State, 253 Ga. 696 (2) (324 SE2d 183) (1985). Richardson v. State, 256 Ga. 746, 748 (6) (353 SE2d 342) (1987).

Decided March 14, 1991.

Bennett, Wisenbaker & Bennett, C. Richard Williams, Jr., for appellant.

H. Lamar Cole, District Attorney, Catherine H. Helms, Assistant District Attorney, for appellee.

3. Contrary to the argument presented in support of defendant’s final enumeration of error, the evidence adduced at trial was sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Banke, Presiding Judge.

text:
    A90A2078.
    KING v. JAVELIN SOUTHEAST, INC.
    (403 SE2d 886)
   Banke, Presiding Judge.

The appellee sued the appellant in magistrate’s court seeking to recover the purchase price of a set of tires it had sold him for a 1970 pickup truck. The appellant counterclaimed to recover for certain property damage which the appellee had allegedly caused in installing another set of tires on another vehicle and to recover punitive damages based on allegations that the appellee had “attempted on numerous occasions to extort from [him] the amounts claimed in [the complaint].” Because the punitive damages sought by the appellant exceeded the jurisdictional limits of the magistrate’s court, the case was transferred to state court, where it was tried before a jury. The trial court entered a directed verdict against the appellant on his counterclaims, and the jury thereafter returned a verdict in favor of the appellee on its complaint for $317.84, the entire amount sought. The appellant contends on appeal that the trial court erred in granting the appellee’s motions for directed verdict on the two counter-daims.

In February of 1987, the appellant purchased a set of tires from die appellee for his 1984 pickup truck. He alleged in his counterclaim ;hat in mounting these tires, the appellee’s employees tightened the lug nuts excessively, thereby damaging the stud bolts and wheel rims. When the appellant brought the matter to the appellee’s attention, the appellee disagreed with him about the extent of the damage and suggested that he take the vehicle to Lee Tire Company for another opinion. The appellant did so, and Lee Tire Company found no damage. The appellant then took the truck to another of the appellee’s business locations for yet another inspection but left before any such inspection was performed.

The appellant’s next contact with the appellee occurred approximately five months later, when he returned to purchase a set of tires for a 1970 truck. The appellant stopped payment on the check which he gave to the appellee for the purchase price of these tires, assertedly because the appellee had installed the wrong size tire on one of the wheels and had refused to correct the mistake. However, when one of the appellee’s employees telephoned the appellant to inquire about the matter, he indicated that he had stopped payment on the check to get “even ... for the damage you did to the other truck.”

The appellee filed a series of three actions in magistrate’s court seeking to collect for these tires. The first suit was apparently dismissed on the ground that it had not been filed in the name of a legal entity. The appellee then refiled in its correct name, but the marshal was unable to perfect service in that action, and the magistrate consequently entered an order appointing one of the appellee’s employees as special agent for service of process. A default judgment was subsequently entered in the action; however, the appellant obtained an order setting aside that judgment based on improper service of process. The appellee then instituted the present action. Held:

1. The trial court properly directed a verdict against the appellant on his counterclaim for the alleged damage to his 1984 truck, due to his failure to introduce evidence from which the jury could have calculated the amount of such damages. The appellant’s proof in this regard consisted of his own testimony and the testimony of a friend who was a mechanic to the effect that, some two years after the alleged damage occurred, he had paid the mechanic-friend $609 to replace all of the wheel rims, stud bolts, and lug nuts on the vehicle. However, the appellant conceded that he had continued to drive the truck during the two years before this work was performed; and according to the mechanic-friend, the reason the wheel rims needed to be replaced was because “the lugs had been tightened so tight they actually wallowed the holes that the lugs seat on.” (Emphasis supplied.) It is thus apparent from the appellant’s own evidence that the damage to the rims was not attributable solely to the alleged over-tightening of the lug bolts but also to his conduct in continuing tc drive the vehicle in that condition. Moreover, the mechanic-frienc testified that only about 20 of the 32 stud bolts were actually damaged. We hold that this evidence was insufficient to enable the jury tc determine with reasonable certainty the extent to which the repairs in question were necessitated by the appellee’s alleged negligence. Furthermore, the appellant failed to present any evidence from which the jury could have determined that the amount of the repair bill did not exceed the value of the vehicle before the occurrence of the alleged tort. See Knight v. Stevens Logging, 173 Ga. App. 359, 360 (326 SE2d 494) (1985); Dixon v. Williams, 177 Ga. App. 702, 703 (340 SE2d 286) (1986). But see Simmons v. Boros, 255 Ga. 524 (341 SE2d 2) (1986).

2. “[0]rdinarily, the question of imposition of punitive damages is for the jury. However, the controlling question ... is whether there was any evidence to support such an award. . . . Absent wilful misconduct, malice, fraud, wantonness or oppression, there can be no recovery of punitive damages. [Cit.]” Moon v. Ga. Power Co., 127 Ga. App. 524, 527 (194 SE2d 348) (1972). “Allegations of simple negligence, absent a showing of an aggravating circumstance, will not support a claim for exemplary damages.” Ticor Constr. Co. v. Brown, 255 Ga. 547, 548 (340 SE2d 923) (1986).

The appellant contends in his brief on appeal that “there was sufficient evidence that the cause of damage to the appellant’s truck was more than mere negligence, but that there may have been an intent by appellee’s employees to cause the injury.” However, we have been cited to no support whatever for this contention in the transcript. Accordingly, we hold that the trial court did not err in directing a verdict for the appellee on his claim for punitive damages.

3. The appellant enumerates as error the trial court’s refusal “to allow [him] to introduce evidence going to appellee’s acts tending to show acts of bad faith while pursuing a civil action against the appellant.” The evidence which the appellant sought to introduce was to the effect that the appellee had obtained a default judgment against him in the second action which it had filed against him in magistrate’s court, although he was never actually served in that action. The appellant contends that it could be inferred from this evidence that the appellee’s employee who was appointed to act as special agent for service of process in that action had executed a false return of service; and he argues that under the Supreme Court’s decision in Yost v. Torok, 256 Ga. 92, 93 (344 SE2d 414) (1986), such evidence would support an award of damages for malicious abuse of process. However, the default judgment was not set aside based on a determination that the appellant had not been served. Rather, it was set iside based on a determination by the magistrate that “[t]he purported service by plaintiff’s agent [was] ineffective as to perfect ser-fice on defendant.” Furthermore, the Supreme Court’s decision in Yost v. Torok abolished the tort of malicious abuse of process, substi-;uting for it the tort of abusive litigation, which is defined therein as ,he assertion of a claim, defense, or other position which “lacks substantial justification,” and/or the “unnecessary expansion of] the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures. . . Id. at 96. Obviously, the appel-lee’s suit against the appellant for the purchase price of the tires was not lacking in “substantial justification,” inasmuch as a jury ultimately returned a verdict in its favor on that claim. Indeed, it strikes this court that if anyone was guilty of abusive litigation in connection with this case, it was the appellant.

Decided March 14, 1991.

Thomas L. Washburn III, for appellant.

Greene, Buckley, DeRieux & Jones, Francis S. Schenck, for appellee.

4. The appellant contends that the trial court erred in admitting, over his hearsay objection, a written statement from an employee of Lee Tire Company to the effect that he had found no damage to the wheel rims on the appellant’s 1984 truck. Inasmuch as this evidence was relevant only to the appellant’s counterclaim for such alleged damage, and inasmuch as we have previously held that the trial court properly directed a verdict against the appellant on this counterclaim, we find this enumeration of error to be moot.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A2167.
    CHASTAIN v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    (403 SE2d 889)
   Pope, Judge.

The question presented on appeal is whether appellant John Timothy Chastain is entitled to coverage under the uninsured motorists provision of a policy of insurance issued by appellee United States Fidelity & Guaranty Company (USF&G) to Chastain’s employer, Chastain & Majors, Inc. Chastain is president of Chastain & Majors, Inc., and owns 50 percent of the stock. USF&G intervened in the present case after filing a declaratory judgment in another county, In Chastain v. U. S. Fid. &c. Co., 190 Ga. App. 215 (378 SE2d 397) (1989), this court held that a declaratory judgment action would no1 lie because all rights had accrued and all obligations had attached The trial court granted summary judgment to USF&G in the presen) case and Chastain brings this appeal.

Chastain was seriously injured in an accident involving an uninsured motorist on September 25, 1986. At the time, he was on th( business of Chastain & Major, Inc., and was driving a 1985 Nissar pick-up truck he owned individually. The Nissan pick-up was insured by Chastain through a policy issued by another insurance company. The Nissan pick-up was not a listed auto on the Chastain & Major, Inc., policy issued by USF&G. Chastain argues he is covered under the corporation’s policy because he was on the corporation’s business and where a corporation is the named insured all individuals about the corporate entity’s business would be covered. He also argues that he leased his vehicle to the corporation, thus making it a covered auto under the policy. Held:

We look to the contract of insurance to determine coverage. In Item One of the declarations page, the named insured is listed as Chastain & Major, Inc. Part I of the policy defines words and phrases with special meaning. Paragraph A of Part I reads: “ ‘You’ and ‘your’ mean the person or organization shown as the named insured in ITEM ONE of the declarations.” Item Two, Schedule of Coverages and Covered Autos, states: “This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those autos shown as covered autos. Autos are shown as covered autos for a particular coverage by the entry of one or more of the symbols from Item Three next to the name of the coverage.” The policy lists the symbol “2” in the column describing the covered autos having uninsured motorists insurance. Item Three of the declarations defines the symbol “2” as follows: ‘OWNED AUTOS ONLY. Only those autos you own. . . .” The schedule of covered autos attached to the declarations page lists a 1970 Ford van, a 1972 International Loadster and a 1979 GMC P/U. The endorsement for uninsured motorists insurance provides in perti-rent part: “WHO IS INSURED. 1. You or any family member. 2. Anyone else occupying a covered auto or a temporary substitute for a covered auto.”

Applying the facts to the language of the insurance contract, we ¡onclude that Chastain was not covered under the uninsured motor - sts provisions. Only the named insured, the corporation, or a person iccupying a covered auto as defined by the policy were insured under he policy for uninsured motorists coverage. Chastain was not an inured under the policy for purposes of uninsured motorists insurance >ecause he was neither the named insured nor did he occupy a cov-red auto pursuant to the policy. We cannot agree with Chastain that ie and the corporation are the same because he was on corporate business at the time of the accident. Even accepting Chastain’s abstractly orrect statement that a corporation can only act through its officers r employees, we cannot conclude this means they are one and the (ame. See Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671 (2), (3) nd (5) (320 SE2d 555) (1984). The corporation was the only named isured listed on the policy. Thus, Chastain was not a named insured under the policy.

Decided March 14, 1991.

Weiner, Dwyer, Yancey & Mackin, J. Matthew Dwyer, Jr., foi appellant.

Alexander & Vann, William C. Sanders, William E. Cannon, Jr. for appellees.

William K. Oliver, pro se.

Nor was Chastain’s 1985 Nissan a covered auto under the policy. It was not listed as one of the three vehicles listed on the schedule of covered autos attached to the policy. The provision for uninsured motorists insurance on the declarations page designated coverage only for autos owned by the insured. The corporation did not own the 1985 Nissan pick-up; Chastain did, individually. Chastain argues he rented or leased the 1985 Nissan pick-up to Chastain & Majors and this makes the vehicle covered because “owned vehicle” is not defined in the policy. However, the policy specifies categories for autos that are “leased” and “hired,” and thus contemplates a clear difference between those categories. Under the policy, the only provision that would have covered Chastain’s truck is if the corporation used Chas-tain’s truck without leasing it or renting it. Item Three of the declarations provided a category that might have fit: “9 = NONOWNED AUTOS ONLY. Only those autos you do not own, lease, hire or borrow which are used in connection with your business. This includes autos owned by your employees or members of their households but only while used in your business. ...” However, nothing in the policy provides uninsured motorists coverage for an auto owned by an employee which is leased to the corporation. It is not a risk covered by the policy. Nor is such coverage mandated by OCGA § 33-7-11. “An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” (Citation and punctuation omitted.) Wilson v. Cotton States &c. Ins. Co., 183 Ga, App. 353, 354 (358 SE2d 874) (1987). The language of the policy is clear. Summary judgment in favor of USF&G was proper.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A90A2288.
    MERCEDES-BENZ CREDIT CORPORATION v. SHIELDS.
    (403 SE2d 891)
   Cooper, Judge.

On January 27, 1984, appellee entered into an agreement with appellant for the lease of a 1984 Mercedes-Benz, imported, sold and warranted by Mercedes-Benz of North America, Inc. (“MBNA”). The evidence is undisputed that over the course of the lease, appellee developed an inconsistent payment history, repeatedly falling behind and having to catch up past due payments months at a time, each missed payment constituting a default under the lease. Moreover, for a time, appellee’s insurance was cancelled for non-payment, also a default under the lease. In a modification letter, appellee declared that the car would be primarily used for personal, family or household purposes. However, Ralph McClure (“McClure”), a real estate agent in appellee’s employ, admitted using the car “95% of the time” to show properties and in performance of his duties as “office manager” of appellee’s real estate business. In March 1985, while driving the car, McClure detected the smell of gasoline. He opened the trunk and discovered gasoline floating in the trunk, one quarter of an inch deep. The car was returned to the original dealership, in accordance with the lease, where repair technicians discovered that the underside was thickly covered with a large amount of mud and dirt, in a quantity never before seen on a car and so thick it could be chiseled away in luge chunks with a screwdriver. Cakes of mud were also in the engine compartment. The car had to be cleaned before the source of the iroblem could be determined. The charcoal canister located under ;he hood, which ventilated the gas tank, was clogged with mud result-ng in a build up o.f pressure in the tank causing the tank to rupture. The canister and the gas tank were replaced under the warranty at no cost to appellee. Two weeks later, the car was brought back, heavily ¡ncrusted with mud, with the same problem. The car was cleaned, md the tank and canister were again replaced at no cost to appellee, ^fter another two weeks the car was again returned for repair, the ventilation system blocked with mud. The car was repaired; however, ppellee never returned for the car and did not make the April pay-nent on the lease. Appellee made no further payments on the lease. Appellant repossessed the car from the dealership. It was sold at an uto auction, and the proceeds of the sale were applied to appellee’s Balance due under the lease. Subsequently, appellant brought this ac-Bion to recover the deficiency. Appellee answered the complaint and Brought a third-party action against MBNA for failure to repair the Bar. The third-party complaint was dismissed before the trial com-Bienced. At the close of appellee’s case, appellant moved for a directed verdict, and the motion was denied. The jury returned a ver-diet for appellee. The trial court’s entry of a judgment on the verdict was followed by appellant’s motion for j.n.o.v. or a new trial. The court denied the motion, and this appeal followed, appellant enumerating as error the denial of its motions for a directed verdict, j.n.o.v. and a new trial.

The evidence is undisputed that the lease signed by appellee listed appellant as lessor of the vehicle, that the vehicle was provided to appellee, and that contrary to the lease agreement, appellee stopped making payments to appellant.- “Therefore, the issue presented for resolution is whether [appellee] produced sufficient evidence to create a jury question as to the existence of any viable de fense to [his] obligation to appellant under the lease agreement. If [he] did, the trial court did not err in denying appellant’s motion for a directed verdict. If [appellee] did not produce such evidence, the trial court erred in failing to grant a directed verdict in favor of appellant.” Citicorp Industrial Credit v. Rountree, 185 Ga. App. 417 (1) (364 SE2d 65) (1987).

Appellee relied on OCGA § 44-12-63 (3), as a defense to his suspension of payments on the lease, which requires a bailor, such as appellant, “[t]o warrant the right of possession and that the thin£ bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.” Appellee contended that the “flooding of gaso line in the trunk area” was a secret fault and that a representation bj a mechanic that the car could not be repaired justified his action However, the lease agreement provided that appellee acknowledges that appellant “[made] no express warranties regarding the vehicle a,' to its condition, merchantability or fitness for use, that [appellant disclaim [ed] any implied warranties, and that [appellee was] leasinj [the vehicle] from [appellant] ‘as is.’ ” The agreement also stated tha “[t]he monthly rent shall be paid for the full term of the lease with out notice or demand and without setoff, counterclaim, reduction abatement, suspension, deferment or any other defense because of th disappearance, theft, destruction, levy, judicial seizure or unsatisfac tory performance of the vehicle or for any other reason whatever, un less this lease is terminated under an express provision of this agree ment.” (Emphasis supplied.) “ ‘[P]arties are free to contract and ma by express agreement enlarge, abridge, qualify, or supersede obliga tions that otherwise would arise from the bailment by implication c law — so long as the contract does not violate statutory law or contra vene public policy — and, so long as such restrictions are expressed ifl clear and unambiguous language.’ [Cit.]” Id. at 422. “A contract car* not be said to be contrary to public policy unless the General Assert! bly has declared it to be so, or unless the consideration of the contra! is entered into for the purpose of effecting an illegal or immorJj agreement or doing something which is in violation of law. [Cits.]! Hall v. Gardens Svcs., 174 Ga. App. 856, 857 (332 SE2d 3) (1985). A contract in which a lessor or bailor exculpates himself from liability with a disclaimer clause, as in the instant case, is not prohibited by law or public policy. Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 860 (338 SE2d 63) (1985). Moreover, the disclaimer and abatement clauses were “explicit, prominent, clear and unambiguous,” evidencing an intentional waiver of the statutory warranties of OCGA § 44-12-63. See Hall v. Skate Escape, 171 Ga. App. 178, 180 (319 SE2d 67) (1984). “Thus, as a matter of law, [appellee] [had] no viable claim for the breach of those warranties. It follows that the trial court erred in failing to direct a verdict in favor of appellant. . . .” Cit-icorp, supra at 423. Based on the foregoing we need not consider appellant’s second contention that a directed verdict or j.n.o.v. should have been granted because appellee failed to offer sufficient evidence of a “secret fault.”

Decided March 14, 1991.

John H. Watson, for appellant.

Horne & Rice, M. Barton Rice, Jr., for appellee.

Judgment reversed.

Banke, P. J., and Birdsong, P. J., concur.


author: Andrews, Judge.

text:
    A91A0010.
    DUNWOODY-WOODLANDS CONDOMINIUM ASSOCIATION, INC. v. HEDQUIST.
    (403 SE2d 893)
   Andrews, Judge.

Dunwoody sued Hedquist to collect past due condominium association assessments. The trial court rendered a judgment in favor of Hedquist. Dunwoody claims the court erred by excluding evidence of the debt.

1. In its first two enumerations of error Dunwoody argues the trial court improperly refused to admit certain documentary evidence of the debt. Since the excluded documents have not been made a part )f the record on appeal for our review, we cannot consider these mumerations. Hunnicut v. Ga. Power Co., 168 Ga. App. 525, 527-528 '309 SE2d 862) (1983); Travelers Ins. Co. v. Johnson, 118 Ga. App. 316, 617 (164 SE2d 926) (1968).

2. In its third enumeration of error Dunwoody claims the trial ;ourt erroneously prevented its property manager from testifying rom her own personal knowledge to prove the debt. The trial court •efused to allow this testimony apparently on the basis that the docu-nents reflecting the debt were the best evidence. Where oral testi-nony is offered regarding a debt of which a documentary record is kept, “ ‘ “the testimony of a person who has knowledge of the facts from which [the documents] are made up is as to those facts primary evidence, and is admissible, whether or not the [documents] themselves are put in evidence.” ’ ” WGNX v. Gorham, 185 Ga. App. 489, 490 (364 SE2d 621) (1988). Accordingly, the best evidence rule provided no basis for the court’s ruling.

Decided March 14, 1991.

Hyatt & Rhoads, Kathy K. Dorough, Anthony W. Oxley III, for appellant.

John H. Hedquist III, pro se.

However, this testimony was properly excluded as hearsay because the property manager did not have personal knowledge of the facts from which the documents were compiled. OCGA § 24-3-1. In WGNX, supra at 490, the trial court erroneously excluded testimony about a past due debt from the collections manager, who was “in charge of collecting all monies owed to the station and thus would have been testifying from her own knowledge had she been allowed to answer the question.” Dun woody’s property manager lacked any immediate and independent personal knowledge of the debt. Although she was familiar with the excluded documents reflecting the debt, she did not prepare the documents, or personally supervise preparation of the documents, or make any entries of the underlying facts used to compile the documents. Rather, a third party in the accounting department actually prepared the documents. “Testimony concerning information acquired solely through books and records kept by a third person is inadmissible, as hearsay.” Sabo v. Futch, 226 Ga. 352 (175 SE2d 16) (1970); State v. Speir, 189 Ga. App. 254, 255 (375 SE2d 298) (1988). Although the trial court apparently excluded the testimony for other reasons, a judgment right for any reason will be affirmed. Simmons v. Boros, 255 Ga. 524, 525 (341 SE2d 2) (1986).

Judgment affirmed.

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


text:
    A89A1579.
    PHOENIX AIRLINE SERVICES, INC. et al. v. METRO AIRLINES, INC. et al.
    (403 SE2d 832)
   Banke, Presiding Judge.

Metro Airlines, Inc., and its wholly-owned subsidiary, Metro Ex press, Inc., sued certain former employees of Metro Express alleging that they had conspired to establish another airline in a manne which violated their fiduciary duties of loyalty to the plaintiff corpo rations. The case was tried before a jury, which returned a verdict ii the plaintiffs’ favor, awarding them damages in excess of $30,000,000. This court subsequently reversed the resulting judgment as to damages while affirming as to liability. See Phoenix Airline Svcs. v. Metro Airlines, 194 Ga. App. 120 (390 SE2d 219) (1989). On certiorari, the Supreme Court reversed that decision, holding that Metro Airlines, Inc., did not have standing to sue because it had failed to allege in its complaint a “special and distinct injury” which would allow it to bring a direct suit against the defendants rather than a shareholder derivative action. Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 586 (397 SE2d 699) (1990). In addition, the Supreme Court held that the trial court had given an erroneous charge on the legal standards governing the liability of corporate officers for misappropriation of a corporate business opportunity.

Decided February 22, 1991

Rehearing denied March 15, 1991.

Schreeder, Wheeler & Flint, David H. Flint, Alexander J. Sim-nons, Jr., Alston & Bird, G. Conley Ingram, Robert D. McCallum, Tr., for appellants.

Hishon & Ranney, Jonathan D. Moonves, William W. Gardner, Smith, Gambrell & Russell, David M. Brown, for appellees.

The case is currently before us on remittitur from the Supreme Court for implementation of its decision. The defendants have filed a “Motion on Remand for Judgment Notwithstanding the Verdict,” contending that the Supreme Court did not intend for the case to be retried but intended for judgment to be entered in their favor. The plaintiffs, on the other hand, contend that the case should be remanded for a new trial limited to the issue of damages, asserting that there is nothing in the Supreme Court’s decision which conflicts with our prior determination that the defendants’ liability was conclusively established by the jury’s verdict in the first trial.

We find both of these positions to be without merit. The Supreme Court specifically held, in footnote 3 of its decision, that a new trial was required. Id. at 587. That the Supreme Court intended for the retrial to include the issue of liability as well as the issue of damages is evident from its reversal of our judgment in the case, as well as from its conclusion, in Division 2 of its opinion, that the trial court ?ave an erroneous jury instruction concerning the issue of liability.

In accordance with what we perceive to be the mandate of the Supreme Court, the prior opinion of this court is vacated, and the udgment of the trial court overruling the defendants’ motion for new ;rial is reversed.

Judgment reversed.

Sognier, C. J., and Pope, J., concur.


text:
    A90A1567.
    MOON v. THE STATE.
    (404 SE2d 273)
   Pope, Judge.

Defendant Walter Ted Moon was charged with intimidation of a court officer (OCGA § 16-10-97 (1)), carrying a concealed weapon and loitering or prowling. He was found guilty of intimidation of a court officer and not guilty of the remaining two counts.

The evidence adduced at trial, construed so as to support the verdict, showed the following: On February 11, 1988, defendant appeared before Judge Howard Cook, the Chief Judge of the State Court of Gwinnett County, on criminal trespass charges. At that time defendant was not represented by counsel, and Judge Cook questioned the defendant about his understanding of the nature of a jury trial so as to ascertain defendant’s ability to represent himself. During the course of this discussion the defendant became argumentative and belligerent; consequently, Judge Cook held defendant in contempt and ordered the deputy to take him into custody. However, as the deputy approached the defendant, the defendant either struck the deputy or “jerked away,” and both defendant and the deputy fell tc the floor. Other officers present in the courtroom stepped in to assist the deputy and, following a struggle, the defendant was subdued anc removed from the courtroom. Defendant was incarcerated for 20 days for contempt, and Judge Cook transferred all matters concerning the defendant, including the criminal trespass charges, to Judge Bishop From that time forward, except for signing an order scheduling í hearing, Judge Cook did not preside over any matters involving the defendant.

Defendant subsequently was sentenced to 24 months probation however, in May of 1989 defendant’s probation was revoked and h< was incarcerated. Defendant visited the office of his probation super visor in September 1989 after being released from jail. According t< testimony presented at trial, defendant became very agitated and hos tile during this meeting because his home had been broken into whili he was incarcerated. Defendant apparently blamed Judge Cook Judge Bishop, his probation officer and others for his problems, am made the statement that he could not rest until he “got even.” Whei defendant was asked if he was making a threat, he responded, “Yoi know what I mean.” Defendant also met with Linda Wood, his proba tion officer’s supervisor, and, according to her testimony, made state ments that he was unhappy with the system, which he described a corrupt. Defendant also referred to Judges Cook and Bishop a “weasels” and stated that he would “get even” with them. Wood testified that at one point during the meeting defendant became hostile and violent and had to be handcuffed because of his aggressive behavior. Wood testified, however, that defendant eventually became calmer and agreed he would submit to probation supervision and whatever instructions he was given.

Robert Greenwald, an assistant Gwinnett County solicitor, testified that defendant also visited his office in September of 1989 and stated “I’m going to get those weasels, I’m going to get them, I’m going to get even with [Judges Cook and Bishop].” Defendant further explained that he was going to get even with Judge Cook because he had sentenced him to 20 days for contempt and with Judge Bishop because he was Judge Cook’s “stooge” and had revoked his probation. When asked how he was going to get even, defendant responded “Well, I’m not going to tell you how I’m going to, do it, but I have my ways of getting even.” Defendant also stated that “this is all I think about” and according to Greenwald, was irate, red in the face and hostile.

Both Judge Cook and Judge Bishop were notified of defendant’s statements concerning them. As a result of defendant’s statements Judge Cook obtained photographs of the defendant and a description of the vehicles he drove and gave this information to his staff and family. On the night of October 2, 1989, Judge Cook’s wife and daughter were returning home from a church service when Mrs. Cook noticed a light blue pick-up truck matching the description of defendant’s vehicle parked inside the entrance to their subdivision. The truck began following her as she drove past her house to a neighbor’s house. Defendant then turned around in her driveway and proceeded back towards the entrance to the subdivision. Mrs. Cook telephoned her husband, who was at her parents’ house, and told him what had happened. Judge Cook drove home and as he turned into the subdivision, defendant pulled in behind him and followed him to his driveway; however, when Judge Cook proceeded past his driveway defendant again turned around and went back to the entrance to the subdivision. Judge Cook drove to his neighbor’s house and notified the police. When the police arrived, they requested that Judge Cook come to the subdivision entrance to identify the defendant and because the defendant stated he wanted to talk to Judge Cook. According to Judge Cook, defendant told him he had been unable to eat, sleep, drink, think or work because he was totally consumed by what the Judge did to him, that the Judge had “wronged” him and that he was going to bring it to an end so he could lead a normal life. Defendant stated he was going to do whatever it took to bring it to an end, and the Judge also was going to have to pay him damages. Judge Cook asked defendant if he was going to harm him physically, and defendant responded that he was “not dumb enough to say something like that.” In order to placate the defendant, the Judge told defendant to call him if he wanted to talk and then left the scene and went home.

Douglas Maddox, a patrolman with the Gwinnett County Police Department, testified defendant initially stated that he was parked at the entrance to the subdivision because he was waiting for his girl friend; defendant, however, could not provide the officer with his girl friend’s address. The defendant subsequently told the officer he was there because he wanted to talk to Judge Cook about his case and that he was trying to get Judge Cook’s tag number so he could ascertain when Judge Cook was at church, because he felt that would be a good place to confront the Judge. The officer further testified he arrested defendant after discovering a loaded .44 magnum pistol concealed under some clothes on the front seat of defendant’s truck.

At trial defendant denied he threatened Judge Cook, and stated he had no intention of physically harming Judge Cook or his family. Defendant also testified he had contacted both the ACLU and the Judicial Qualifications Commission about his grievances against Judge Cook.

1. In related enumerations of error, defendant argues the trial court erred in overruling his pre-trial motion to dismiss because the charges as stated in count one of the indictment (intimidation of a court officer) did not fall within the purview of OCGA § 16-10-97 (1), and in denying his motion for directed verdict on the basis that the evidence was insufficient to support his conviction under that section.

Subsection 1 of OCGA § 16-10-97 makes it a crime punishable by a fine of not more than $5,000 or imprisonment for not more than five years, or both, to “(1) [Endeavor] to intimidate or impede [by threat or force or by any threatening letter or communication] any grand juror or petit juror or any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court while in the discharge of such juror’s or officer’s duties. . . .”

Defendant argues that his conviction under OCGA § 16-10-97 (1) cannot stand because Judge Cook had recused himself in early 1988 and thus was not in the discharge of any official duty concerning the defendant at the time the offense allegedly occurred in October 1989. However, we do not think the phrase “while in the discharge of such . . . officer’s duties” should be read so as to restrict the application of that section only to those threats or other attempts to intimidate or impede which occur while the case is actually pending before the court officer. Rather, we think the legislature intended by this language simply to limit the application of OCGA § 16-10-97 (1) to those situations which arise out of or are related to the performance of the court officer’s official duties, whether the proscribed activities occur while the court officer is actively engaged on the matter giving rise to the offense or whether the proscribed activities occur at some other juncture. Here the threats and other actions of the defendant were the direct result of his dissatisfaction with the manner in which Judge Cook handled his case and thus clearly arose out of and were related to the “discharge of [Judge Cook’s] duties [as an officer of the court].” Consequently, we find no merit to defendant’s first two enumerations of error.

Decided January 31, 1991

Rehearing denied March 15, 1991

L. David Wolfe & Associates, L. David Wolfe, for appellant.

Thomas C. Lawler III, District Attorney, Stephen E. Franzen, Debra K. Turner, Assistant District Attorneys, for appellee.

2. Defendant next argues he was entitled to a mistrial on the basis that Judge Bishop’s testimony constituted improper evidence of similar transactions because the State had failed to give him the required notice of its intent to introduce evidence of similar acts. The record shows, however, that defendant did not urge this basis below, but instead objected on the basis that the testimony in question was irrelevant and prejudicial. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Iglesias v. State, 191 Ga. App. 403, 404 (381 SE2d 604) (1989). Moreover, the evidence at issue was cumulative of other evidence presented at trial, and for this reason also its admission does not constitute reversible error.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs in judgment only.


text:
    A90A1721.
    LEWIS v. THE STATE.
    (403 SE2d 814)
   Cooper, Judge.

Appellant and his co-defendant were convicted by a jury of armed robbery.

1. Appellant first contends that the trial court erred in denying lis motion for new trial because the verdict was against the weight of the evidence. The evidence construed in favor of the verdict shows hat appellant and his co-defendant went to a pool hall owned by the /ictim and played pool. As the victim racked the balls for the third game, the co-defendant hit him in the back of the head with an object, grabbed him around the neck, straddled his chest, choked him until he was unconscious and took a large sum of money from him. The victim recognized appellant as someone he had known for years and who had been in the pool hall on several occasions, and testified that while he was being attacked by the co-defendant, appellant stood by the end of one of the pool tables and did nothing to help the victim. Appellant testified that he did not know the co-defendant; that he picked up the co-defendant as he was hitchhiking; that the co-defendant pulled a gun on him and forced him to go to the pool hall; and that he did nothing to help the victim because he was afraid of the co-defendant. A rebuttal witness testified that on the night of the crime he was hitchhiking and was picked up by appellant. The witness further testified that he did not see a gun and that appellant and the person in the car with him appeared to be friends. “ ‘Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.]” Lunz v. State, 174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985). Appellant and the co-defendant arrived at the pool hall together and spent time playing several games of pool. Appellant did not attempt to leave the scene while the co-defendant was strangling the victim and did nothing to assist the victim or deter the co-defendant. We find that the State’s evidence was sufficient for a rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the trial court’s admission into evidence of a letter allegedly written by appellant to his co-defendant, which contained statements contradicting appellant’s testimony at trial. A witness for appellant testified on cross-examination by the co-defendant’s attorney that she was familiar with appellant’s handwriting and that the letter looked like it was in appellant’s handwriting! but not as neat as he would write. Appellant testified that he did not write the letter. “[T]he genuineness of [a] writing may be proved byl circumstantial evidence. [Cit.]” Carter v. State, 252 Ga. 502, 507 (10)1 (315 SE2d 646) (1984). One of the investigating officers testified dur-l ing the State’s rebuttal that when he asked appellant whether hel wrote the letter, appellant admitted writing the letter. We conclude! that a sufficient foundation was laid for the admission of the letted and we find no error with the admission of the letter into evidence! See Ross v. State, 255 Ga. 1 (4) (334 SE2d 300) (1985). I

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur. I

Decided February 1, 1991

Rehearing denied March 15, 1991.

Richard A. Diment, for appellant.

William G. Hamrick, Jr., District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.


author: Sognier, Chief Judge.

text:
    A90A1901.
    MOSELEY v. COASTAL PLAINS GIN COMPANY, INC.
    (404 SE2d 123)
   Sognier, Chief Judge.

Coastal Plains Gin Company, Inc. brought suit against W. Grant Moseley, Sr., d/b/a Moseley & Associates seeking actual and punitive damages for Moseley’s failure to procure requested insurance coverage. The jury returned a verdict in favor of Coastal Plains, and Moseley appeals.

Evidence was adduced at trial that when appellee came into existence and began construction in February 1985 on its ginning facilities, appellant approached appellee’s president, Randy Dunn, told Dunn that he was an expert in the area of insuring cotton gin facilities, and solicited appellee’s insurance business. Dunn testified that due to his own inexperience in the area, he decided in May 1985 to place appellee’s insurance through appellant because of appellant’s expertise. Dunn testified that among the many coverages he requested was a gin stock floater policy, which he stated encompassed cotton on the yard and baled cotton until deposited at a bonded warehouse, excluding only the period when the cotton was actually being processed in the gin. Appellee paid the premium requested by appellant, including an amount Dunn testified he thought represented a premium for the gin stock floater policy. Appellee’s employees were instructed by appellant regarding maintenance of the extensive records needed for gin stock floater coverage. When appellee determined it would enter the module business (whereby cotton is packed on cotton wagons in the fields), Dunn testified he checked with appellant and was advised the gin stock floater policy also would insure appellee from any damage to the cotton in the field, and recalled appellant telling him that appellee was “covered like an umbrella.” Appellant also inspected appellee’s facilities, which were completed in September 1985, and gave advice to Dunn and others regarding the treatment of the cotton, at one point advising Dunn to keep the newly baled cotton out of the warehouse for 48 hours. Pursuant to appellant’s instructions, the baled cotton was stored at the loading docks to the gin house. In November 1985 the gin house burned, along with most of the baled cotton inside. Although the evidence conflicted whether appellee had received a binder from appellant indicating no gin stock floater policy had been purchased, it is uncontroverted that appellee did not receive the insurance policies themselves from appellant until after the fire, at which time appellee discovered appellant had not obtained the gin stock floater policy appellee had requested.

The major issues in this case were (1) whether appellant undertook to procure gin stock floater coverage for appellee; (2) if so, whether appellant was guilty of fraud or negligence in his performance of that undertaking; (3) and if so, whether appellee knew from viewing the binder or otherwise that the coverage had not been procured; (4) but if not, whether the policy appellant was to obtain pursuant to the terms agreed upon by the parties would have covered the loss suffered by appellee. It thus appears that appellant’s expertise in the area of insurance for cotton gin facilities was relevant only in regard to the fourth issue because had appellee learned of the policies obtained by appellant it could have determined for itself the presence or absence of the gin stock floater policy and the limits of coverage under that policy. See Greene v. Lilburn Ins. Agency, 191 Ga. App. 829 (383 SE2d 194) (1989).

1. We find no error in the trial court’s denial of appellant’s motions for judgment notwithstanding the verdict and new trial.

(a) Appellant’s main argument is that the policy the parties agreed appellant would procure would not have covered the loss for which appellee brought suit, so appellee failed to prove it was damaged by appellant’s negligence. Appellant bases this argument on a standard industry gin stock floater policy and the terms of appellee’s current policy, neither of which apparently would have covered the damage appellee sustained. However, the issue was not the extent of coverage appellee’s requested gin stock floater policy might have provided had appellant obtained a standard industry policy, or whether appellee, upon receiving the nonexistent policy, would have realized the coverage did not apply to the cotton on the loading docks and perhaps requested additional coverage. Since it is uncontroverted that appellee never received any of its policies so that it could have determined for itself what a gin stock floater policy covered, the relevant coverage is not what is or may be provided in standard industry policies but rather what coverage appellee requested and appellant represented had been provided in the policy the parties agreed upon, which appellee never received.

“Where one undertakes to procure insurance for another and is guilty of negligence in his undertaking, he is liable for loss or damage to the limit of the agreed policy.” (Citations and punctuation omitted.) Ga. Farm &c. Ins. Co. v. Arnold, 175 Ga. App. 850, 851 (1) (334 SE2d 733) (1985). Since there is some evidence that the policy the parties agreed appellant would procure would have covered the loss sustained by appellee, the trial court did not err by denying appellant’s motions for judgment n.o.v. and new trial. See generally Milam v. Attaway, 195 Ga. App. 496, 497-498 (1) (393 SE2d 753) (1990).

(b) In view of the testimony by appellee’s employee, Norma Jean Warren, that the records detailing the cotton destroyed by the fire excluded the 47 bales of burnt cotton, which Warren testified was the only cotton appellee was able to salvage from the fire, we find no merit in appellant’s argument that the trial court should have granted its motions because appellee failed to prove the after value of the damaged goods.

(c) We find no merit in appellant’s arguments that the trial court erred by denying its motions as to the award of punitivo damages and expenses of litigation. See Speir Ins. Agency v. Lee, 158 Ga. App. 512, 514 (3), (4) (281 SE2d 279) (1981).

2. Appellant contends the trial court erred by giving the jury ap-pellee’s requested charge, which provided that “should you find that [appellant] held himself out to [appellee] as an expert and highly skilled insurance adviser and further that he undertook to advise the insured who relied on such advice, he would be obligated to provide to [appellee] a higher standard of care that could reasonably be expected of someone possessing such expertise.” We agree that the giving of this charge was reversible error.

First, even giving the jury credit for ordinary intelligence, see Smaha v. Moore, 193 Ga. App. 23, 24 (387 SE2d 13) (1989), we cannot agree with appellee that the average juror could possibly have interpreted “higher standard of care” to mean the higher “level of performance” appellee expected appellant to provide because of his alleged expertise. We note that the use of the “higher standard of care” language did not qualify as a verbal slip of the tongue since the record reveals that trial court’s charge tracked the language in appellee’s request to charge no. 7.

Second, the authorities cited by appellee in support of the giving of its charge reveal that the charge was not requested as a discussion of the performance level expected from an expert. Appellee cited European Bakers v. Holman, 177 Ga. App. 172, 175 (4) (338 SE2d 702) (1985) and the federal district court case discussed therein, which involve the standard of care to which an insurance expert is held, not the quality of service an insurance expert should provide. However, we do not agree with appellee that as to the standard of care of insurance agents representing themselves as experts, that anything in European Bakers supports giving of the above charge in the language employed.

In European Bakers, this court reversed the denial of a motion for directed verdict made by the client of an insurance agent and his agency, on the basis that they were acting as the client’s agent, thereby creating a fiduciary relationship between the parties. Id. at 174 (2). In the course of discussing other matters that would possibly recur upon retrial of the case, we disapproved an instruction which reflected an incomplete statement of the law as asserted in two foreign authorities. Id. at 175 (4). European Bakers did not change the well established law that “[t]he standard of ordinary and reasonable care is invariable, such care being that of every prudent man. [Cit.] But the care of a prudent man varies according to circumstances dependent upon the degree of danger. [Cits.] ‘What is the precise legal intent of the term “ordinary care” must, in the nature of things, depend upon the circumstances of each individual case. It is a relative and not an absolute term.’ ” Central R. &c. Co. v. Ryles, 84 Ga. 420, 430 (11 SE 499) (1890). Consistent with the relative nature of ordinary care we have held that “[t]he law imposes upon persons of professional standing performing . . . skilled services, pursuant to their contracts made with their clients, an obligation to exercise a reasonable degree of care, skill and ability, such as is ordinarily exercised under similar conditions and like circumstances by persons employed in the same or similar professions. [Cits.]” Mauldin v. Sheffer, 113 Ga. App. 874, 880 (150 SE2d 150) (1966). We find the language relied upon by appellee in European Bakers, supra, to be a consistent, but incomplete, statement of the above law. Hence, while an agent who holds himself out as possessing expertise over and above that possessed by the average insurance agent may be held, relative to the nonexpert insurance agent, to a higher standard of care than the non-expert, nonetheless the standard of care as to the expert is that of ordinary care employed by like experts. Indeed, rather than creating a higher standard of care for insurance experts, as the given charge seems to indicate, European Bakers actually was seeking only to add to the list of professionals and specialists who are held to the degree of care ordinarily exercised under similar conditions by other professionals in that area, such as those set forth in Mauldin, supra, those insurance agents who hold themselves out as possessing particular skill or expertise. See Hardt v. Brink, 192 FSupp. 879, 880-881 (W.D. Wash. 1961) and Nowell v. Dawn-Leavitt Agency, 617 P2d 1164, 1167 (Ariz. App. 1980), both cited in European Bakers, supra.

Although the trial court subsequently charged the jury on the standard of ordinary care, no instruction explaining the “higher standard of care” language in the contested charge was given so as to make that improper charge comply with the correct law, as discussed above. “When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.” (Citation and punctuation omitted.) Hopkins v. First Union Bank, 193 Ga. App. 109, 112 (2) (a) (387 SE2d 144) (1989). We hold that a reasonable jury may have construed the standard of care erroneously because of the contested charge or may have construed the sentence to render askew the standard of care set forth subsequently in the trial court’s proper charge on that issue. Compare Clemons v. Atlanta Neurological Institute, 192 Ga. App. 399, 402 (384 SE2d 881) (1989). We therefore conclude the giving of this charge constituted reversible error.

3. Appellant enumerates error regarding the giving of three other charges.

(a) Our review of the evidence adduced at this trial reveals that all of appellant’s actions, advice, and representations in issue in this case were undertaken by appellant for the purpose of obtaining or maintaining appellee’s business, for which appellant expected compensation. We therefore agree with appellant there was no evidence to support the giving of a charge on gratuitous promise, and the giving of such a charge under the facts adduced at this trial was error. See generally Don Swann Sales Corp. v. Edward, 194 Ga. App. 807, 808 (2) (392 SE2d 29) (1990).

(b) Read and considered as a whole, see generally Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (3) (385 SE2d 746) (1989), we find no error in the trial court’s charge on compensatory and punitive damages.

(c) As to' the charge based on OCGA § 33-23-79, regarding an agent’s treatment of premiums, we note that it is not reversible error to charge an entire Code section even though only a part of it may be applicable. Kelley v. Foster, 192 Ga. App. 95-96 (2) (383 SE2d 646) (1989). In view of the evidence regarding appellee’s possible overpayment of premiums and appellant’s failure to return the excess funds to appellee, we cannot say there was no evidence to support the giving of this charge. It is well settled that “an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. [Cit.]” Ellis v. Dalton, 194 Ga. App. 114 (1) (389 SE2d 797) (1989).

4. Appellant contends the trial court erred by failing to give three requested charges. Contrary to appellant’s contention, the transcript reveals that the trial court did charge the jury on avoidance and comparative negligence and that the language it employed was substantially similar to that in appellant’s requested charges. No error is therefore presented. See generally Hornsby v. Phillips, 190 Ga. App. 335, 341 (6) (378 SE2d 870) (1989). Because the evidence was undisputed that appellee never received any insurance policies prior to the fire, there was no evidence to support appellattt’s requested charge regarding the duty of an insured to read his policy. A requested charge need be given only when it embraces a correct and complete principle of the law and is pertinent and adjusted to the facts of the case, see Money v. Daniel, 188 Ga. App. 215, 216 (1) (372 SE2d 305) (1988), and thus no error is presented. In view of the conflicting evidence on appellee’s access to the insurance binder we note that the giving of a modified version of appellant’s charge regarding such binders, as appellant admits in his brief the trial court charged the jury in this case, would be proper on retrial.

Decided February 20, 1991

Rehearings denied March 13, 1991 and March 15, 1991 —

Dennis, Corry, Porter & Thornton, Robert E. Corry, Jr., William E. Gray II, for appellant.

Reinhardt, Whitley & Wilmot, Bob Reinhardt, Glenn Whitley, for appellee.

Judgment reversed.

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


text:
    A90A1952.
    HEAD v. HEAD et al.
    (403 SE2d 835)
   Banke, Presiding Judge.

In 1965, the appellant filed suit against his mother and five siblings seeking a division of the property which had belonged to his deceased father, J. C. Head. In 1974, the parties to that litigation entered into a settlement agreement which was adopted by the court through the entry of a consent judgment. Pursuant to that judgment, the majority of the real property owned by J. C. Head was conveyed to the appellant, while the remainder, consisting of approximately 285 acres was declared to be owned by “the defendants in the above-styled action.” The appellant’s mother had died by the time the agreement was entered into and consequently did not sign it. However, one of the appellant’s brothers, Ralph Head, purported to sign the document as executor of her estate, although her will had not yet been probated and although no personal representative had been substituted for her as a party defendant in the case.

Approximately a month after the 1974 consent judgment was entered into, the appellant moved to set it aside, contending, among other things, that the agreement had not reflected the actual intention of the parties. While the appellant acknowledged at that time that the agreement as drafted purported to divide the 285 acres among his five siblings and/or their heirs, he contended that the actual intention of the signatories had been to convey a share of this property to his mother’s estate, as well. Following an evidentiary hearing, the trial court denied the motion to set aside, and that decision was affirmed by the Supreme Court in Head v. Head, 234 Ga. 807 (218 SE2d 598) (1975).

In 1976, the appellant attempted to probate his mother’s will, but a caveat was filed on the ground that Ralph Head, the named executor, had died. The probate court thereafter named one of the other children, Adele Head, as administratrix with will annexed, on the ground that she was the person most beneficially affected by the will, having been bequeathed the entire estate. In completing the probate proceedings, Adele Head filed an inventory of property which specified that her mother had owned “[o]ne fifth of undivided 285 acres . . . as described in consent agreement of Sept. 11, 1974”; and she subsequently executed a deed purporting to convey this interest — described as “57 acres, more or less, that being the surviving spouse’s (Testatrix) one-fifth interest in the estate of her late husband” — to herself as beneficiary under the will. Then, on August 31, 1976, she executed a quitclaim deed purporting to convey this interest to the appellant. No one objected that these purported transfers contradicted the consent judgment, and the appellant subsequently began paying the property taxes on this portion of the 285-acre tract.

On January 3, 1989, the 285-acre tract was sold. Eighty percent of the purchase price was paid to the appellees herein, consisting of the appellant’s four surviving siblings and the heirs of a deceased fifth sibling, while 20 percent was placed in escrow. The appellees then filed the present action to obtain, inter alia, a judicial declaration of their entitlement to the escrow funds. The trial court awarded them partial summary judgment on this claim, concluding that the 1974 consent judgment “unambiguously provided that the subject property be conveyed to ‘defendants’ (a group which includes each of the [ap-pellees] in the instant suit),” and that as a result of the denial of the appellant’s 1974 motion to set aside this judgment and the subsequent affirmance of that decision by the Supreme Court, the dispute was res judicata. The present appeal is from that ruling.

Appellant concedes that any issue as to the validity of the 1974 agreement is res judicata but argues that the present dispute is not over the validity of the agreement but over its proper construction — specifically, whether the term “defendants,” as used therein to designate the persons entitled to share in the distribution of the 285 acres, should be construed to include his mother’s estate, given that his mother was one of the named defendants in that litigation. In the alternative, he argues that the conduct of the parties subsequent to the execution of the 1974 agreement constituted a mutual departure therefrom, resulting in a modification of it. Held:

We find these arguments to be without merit. The transcript of the hearing on the motion to set aside the consent judgment, which has been made a part of the record in the present case, reveals that one of the appellant’s contentions at that hearing was that some portion of the property “should have been conveyed back to Mrs. J. C. Head estate,” so that he “would have an opportunity to participate in the inheritance right” by virtue of his status as one of her heirs. The trial court quite clearly rejected this contention in denying the motion to set aside. As for the appellant’s contention that subsequent events evidenced a mutual departure from and modification of the 1974 agreement, it ignores the fact that the agreement was made the judgment of the court. We are aware of no authority for the proposition that an otherwise valid and enforceable judgment may be invalidated merely by subsequent conduct of the parties which is inconsistent with it. “Georgia law provides that ‘(a) judgment in a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ OCGA § 9-12-40.” Helmuth v. Life Ins. Co. of Ga., 194 Ga. App. 685 (391 SE2d 412) (1990). Accord Liner v. North, 194 Ga. App. 175 (1) (390 SE2d 263) (1990). See also Holbrook v. Gen. Elec. Capital Corp., 196 Ga. App. 382 (1) (396 SE2d 253) (1990). For these reasons, we hold that appellees’ motion for partial summary judgment in the present action was properly granted.

Decided February 25, 1991

Rehearing denied March 15, 1991

William C. Bushnell, for appellant.

Smith, Gilliam & Williams, Steven P. Gilliam, Catherine H. Hicks, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A2120.
    GREER v. THE STATE.
    (403 SE2d 825)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault and appeals from the denial of his motion for new trial.

Viewed in a light favorable to the jury verdict, the evidence reflects that the victim and a friend had been driving around together all day, and as they stopped to speak to two women, appellant approached their car on his bicycle. Apparently, there was an ongoing dispute between appellant and the victim and the two had argued earlier that day. Appellant and the victim began to argue again and during the course of the argument, appellant took out a knife and stabbed the victim.

1. Appellant first contends that the trial court erred in admitting into evidence the statement he made while in custody. In appellant’s custodial statement, he told the officer that he did not go out to start any trouble with anyone because he was on probation and had just gotten out of prison. Appellant argues that the statement’s reference to a prior record improperly placed his character in issue. We disagree. The references of appellant to probation and prison were made as part of his explanation for the reasons he did not commit the offense as alleged. Because those references went to motive, intent and course of conduct, they were material and admissible. Dampier v. State, 245 Ga. 427, 433 (10) (265 SE2d 565) (1980). “Material evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. [Cit.]” Dampier v. State, supra; see also Bethea v. State, 172 Ga. App. 598 (324 SE2d 202) (1984). Robinson v. State, 192 Ga. App. 32 (383 SE2d 593) (1989), relied on by appellant, is distinguishable. In Robinson, the defendant gave a statement to police which referred to a prior sale of cocaine. The trial court held that the statement was admissible and did not constitute a similar transaction. We reversed the trial court, concluding that “ ‘the only possible evidentiary function which the [statement could have served] as far as the state was concerned was an impermissible one, i.e., to impugn the appellant’s character before the jury by showing that he was generally prone to criminal conduct.’ [Cit.]” Robinson, supra at 34. In the case sub judice, appellant’s statement and his references to “prison” and “probation” serve the permissible purpose of showing motive, intent and course of conduct. Dampier, supra. Appellant’s contention that the court should have given a limiting instruction is also without merit inasmuch as the record does not reflect that appellant requested such an instruction. “A criminal defendant is relieved of the duty to request instructions only ‘in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.’ [Cit.]” Kelly v. State, 189 Ga. App. 67 (2) (375 SE2d 81). Accordingly, we find no error with the admission of appellant’s statement or the failure of the court to give a limiting instruction.

2. In his final enumeration of error, appellant contends that the evidence was insufficient to support the conviction. Appellant’s defense was that he acted in self-defense in stabbing the victim, because he thought the victim was reaching for a gun. The evidence did not reveal the presence of a weapon in the victim’s possession. Furthermore, there was evidence from at least one witness that the victim was just standing by the car door when appellant stabbed him. There was ample evidence from which the jury could have determined that appellant was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 13, 1991

Rehearing denied March 15, 1991

Leon M. Braun, Jr., for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2123.
    ANCHOR MOTOR FREIGHT, INC. v. DEPARTMENT OF TRANSPORTATION.
    (404 SE2d 148)
   Banke, Presiding Judge.

The appellant is a trucking company involved in transporting automobiles. It has invested in a fleet of automobile-carrying trailers equipped with three axles, the first of which — the axle which would be located immediately behind the drive axle of the truck — is referred to as the “tag axle.” The amount of weight borne by this axle can be adjusted by the driver from inside the truck through the manipulation of a switch which causes an air bag located between the axle and the frame of the trailer to inflate or deflate. The more this bag is inflated, the more weight the axle bears. At issue in this case is whether these axles constitute “lift axles” within the contemplation of OCGA § 32-6-26 (c) (3), with the result that they are required to be disregarded in computing the maximum weight the trailers can carry. The term “lift axle” is defined by OCGA § 32-6-26 (a) (2), to mean “any axle on any vehicle manufactured after July 1, 1978, which axle may be raised or lowered with respect to the horizontal plane of the vehicle.” (Emphasis supplied.)

The legislation at issue is designed to protect the state’s highways by limiting the amount of weight bearing on the pavement at any specific point. Generally speaking, the amount of weight a vehicle is permitted to carry increases with the number of axles because the greater the number of axles the more the load is spread out over the road. Over a period from June 27, 1988, through December 8, 1988, the Georgia Department of Transportation issued 19 overweight citations to the appellant based on a determination that its tag axles constituted lift axles. The appellant filed an administrative appeal; and a DOT hearing officer ruled in its favor, concluding that tag axles were not lift axles because they could not be raised and lowered with respect to the horizontal plane of the trailer in the manner, for example, of the axle on a dump truck. After viewing a demonstration of the mechanism, the hearing officer determined that while the inflation and deflation of the air bag caused the frame of the trailer to be raised and lowered with respect to the tag axle, this movement of the frame did not constitute a raising or lowering of the tag axle within the contemplation of the statute. However, the DOT Commissioner reversed that determination, concluding as follows: “Although the visual inspection of the vehicle during the course of the hearing appeared to indicate that there was no movement of the air axle, it can be assumed that movement existed even if it was infinitesimal because the change in the axle weight was evidence of that movement. Once it is concluded that the weights are shifted by the change in air pressure on the air bags, then a corresponding shift in the air axle with respect to the horizontal plane of the vehicle occurs even if such change is only visible in the deflection of the wheels on the vehicle.” The Commissioner’s ruling was affirmed by the superior court under the “any evidence” rule, and we granted the appellant’s application for a discretionary appeal.

It is apparent that the General Assembly’s concern in enacting the lift axle statute was the ability of a truck driver to adjust the weight on an axle from inside the truck, in such a manner as to frustrate enforcement of the statutory weight restrictions. In Lance Trucking Co. v. Harris, Case No. 2:88-CV-0044-WCO (decided 2/23/ 89) the United States District Court for the Northern District of Georgia rejected a constitutional challenge to the statute, based in part on evidence that drivers of trucks equipped with lift axles often operated with the lift axle in the up position in order to facilitate steering but were able to avoid detection by quickly lowering the axle upon approaching a weigh station or seeing an enforcement official. However, no similar evidence was presented in the present case concerning driver abuse of the air axle system used by the appellant; and the hearing officer noted that the appellant had made an unrebutted showing that failure to pressurize the air bag on a loaded trailer would give the driver less rather than more steering control and would also be uneconomical. Held:

Under the plain wording of the statute, it is the ability of the axle to be “raised or lowered with respect to the horizontal plane of the vehicle” which is determinative of whether it is a lift axle. The administrative hearing officer determined as a matter of fact in this case that the inflation and deflation of the air bags on the appellant’s vehicles resulted in no observable movement of the tag axle. The Commissioner did not dispute that observation but based his decision entirely on the assumption “that movement existed” even if it was infinitesimal because the change in the axle weight was evidence of that movement.” We believe that to sanction the imposition of a fine by the department based solely on the metaphysical assumption that an “infinitesimal” movement of the axle was caused by the inflation and deflation of the air bag even though it was not observable would violate the rule of statutory construction that “ ‘forfeitures and penalties are not favored and statutes relating to them must be strictly construed, and in a manner as favorable to the person against whom the forfeiture or penalty would be exacted as is consistent with fair principles of interpretation. (Cits.)’ [Cit.]” TEC America v. DeKalb County Bd. of Tax Assessors, 170 Ga. App. 533, 536 (317 SE2d 637) (1984). Accordingly, we reverse the judgment of the superior court and remand the case with direction that the decision of the hearing officer be reinstated.

Decided March 5, 1991

Rehearing denied March 15, 1991

Hicks, Maloof & Campbell, Bruce M. Edenfield, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Eric A. Brewton, Assistant Attorney General, for appellee.

Robert P. Farrell, pro se.

Judgment reversed with direction.

Birdsong, P. J., and Cooper, J., concur.