author: Beasley, Judge.

text:
    A90A0012.
    SOUTHERN RAILWAY COMPANY v. MINOR.
    (395 SE2d 845)
   Beasley, Judge.

Defendant Southern Railway appeals a FELA judgment entered on a jury verdict for plaintiff Minor in the amount of $275,000. Four grounds of error are asserted: 1) charging plaintiff’s requested instruction on assumption of the risk; 2) overruling defendant’s objections to a doctor’s deposition; 3) striking a juror for cause; 4) denying defendant’s motion for new trial predicated on excessive damages awarded by the jury.

On July 6, 1983, Minor was working as a “crankhand” for Southern Railway. He had to bend over in order to make curve elevation readings. He heard his supervisor shout a warning and turned to see what was happening when he was struck by a hy-rail truck. The force of the blow propelled him several feet in the air. He landed in the ballast and then rolled down the embankment. Liability was contested, but the primary issue was whether Minor’s condition at the time of trial was the result of this on-the-job accident or was caused by other factors.

1. Southern contends that there was no evidence as to assumption of the risk and thus a charge that such principle was inapplicable in a FELA case was error. This belies the ruling in Atlantic Coast Line R. Co. v. Smith, 107 Ga. App. 384 (2) (130 SE2d 355) (1963), that a similar charge was permissible as a cautionary instruction. Accord Atlantic Coast-Line R. Co. v. Blount, 116 Ga. App. 86 (1) (156 SE2d 409) (1967). Because Southern’s defenses included the theories that Minor failed to exercise ordinary care for his own safety and avoidance of the risk, defenses which, although distinct from assumption of the risk, are often confused with it even by lawyers, the charge was not reversible error.

2. Southern made pre-trial objections to a physician’s deposition which was to be, and was, utilized at the trial. The principal thrust of its arguments was that portions of the doctor’s opinion testimony were based on hearsay because he relied on reports containing other physicians’ opinions. See Mallard v. Colonial &c. Ins. Co., 173 Ga. App. 276 (326 SE2d 6) (1985). The stricture is against opinions based upon other opinions, not facts. See Hyles v. Cockrell, 169 Ga. App. 132, 134 (4) (312 SE2d 124) (1983). Southern also objected on the grounds that certain portions of the testimony were speculative and irrelevant. The original objections were addressed to specific but rather large segments of the doctor’s testimony, often covering several pages. Before trial, the court thrashed through the objections and the testimony and struck what it believed to be the offending portions. Southern recognizes this but in its second enumeration of error complains that as to seven of its objections the trial court should have gone on and struck the balance of the testimony it specified for exclusion.

Two pertinent principles are applicable. 1) “ ‘Where a portion of the evidence is admissible and a portion inadmissible, objection to the evidence as a whole which does not limit itself to objectionable parts is insufficient.’ ” Armstrong v. Vallion, 187 Ga. App. 380 (1) (370 SE2d 215) (1988). 2) Appellate decision is limited to those grounds presented to and ruled upon by the trial court. Where a different basis is urged either in brief or argument it will not be considered. Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986); MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1a) (275 SE2d 142) (1980).

Grounds (a), (b), (c) and (d) are all based on pre-trial objections of inadmissible hearsay to certain deposition testimony. In each instance the trial court weeded through and excluded those parts which it believed to be based upon hearsay. Southern made no further objection at trial. The testimony does not reveal that it was based solely on hearsay and thus was not subject to the general objections contained in the record. Contrary to Southern’s contentions there was testimony that the doctor diagnosed a degenerative disc condition from his examinations and x-rays. The specific arguments made now by Southern were not offered below. These grounds reveal no reversible error.

Ground (e) recites the basis of objection as “speculation.” The testimony that lifting would aggravate Minor’s back problem was within the ambit of the doctor’s expertise and appropriate in view of the diagnosis of a back problem based upon the doctor’s prior examinations.

Ground (f) involves an objection that the testimony as to the possibility of back surgery was speculative and irrelevant. The doctor clearly stated that back surgery was not planned and would become necessary only if Minor was so disabled by pain that there was no alternative for him. Southern states that the trial court did not present the issue of future medical or wage loss to the jury. Southern has not carried its burden of showing not only error but harm. Pope v. Propst, 179 Ga. App. 211, 217 (10) (345 SE2d 880) (1986).

Under ground (g), testimony about a discogram was objected to on the basis of form of question and answer. This has been abandoned and Southern argues that it was irrelevant. Such argument, not having been raised, fails.

3. A juror on voir dire admitted that he had issued life insurance covering counsel for defendant; that he serviced the policy and receives two percent of the premium paid. The trial court struck him for cause over defendant’s objection. Defendant contends that it was forced to use a peremptory strike to remove another juror who was subsequently placed on the panel.

In order to insure impartiality of prospective jurors (see Whitlock v. State, 230 Ga. 700, 705 (198 SE2d 865) (1973)), the trial court is vested with great latitude in exercising its discretion to determine whether an individual juror can decide the case without bias and in accordance with the evidence. Holtsinger v. Scarbrough, 71 Ga. App. 318, 322 (3) (30 SE2d 835) (1944). Unless there is a manifest abuse of that wide discretion, the determination by the trial court will not be disturbed. Hill v. Hospital Authority, 137 Ga. App. 633, 636 (1) (224 SE2d 739) (1976). To achieve impartiality, the trial court did not err in striking the prospective juror. Morris v. Bonner, 183 Ga. App. 499 (1) (359 SE2d 244) (1987).

Furthermore, while a party is entitled as a matter of right to an array of impartial jurors to which peremptory challenges may be directed, “a party is entitled to no more. Having no legal right to a jury which includes those who because of scruple or bias he thinks might favor his cause, he suffers no prejudice if jurors, even without sufficient cause, are excused by the judge. Only if a judge without justification overrules a challenge for cause and thus leaves on the panel a juror not impartial, does legal error occur. . . . The entitlement of a party extends only to a fair and impartial jury; the right to reject, not select.” Jones v. State, 139 Ga. App. 824, 825 (2) (229 SE2d 789) (1976). As succinctly stated in Morris, supra at 500 (1): “ ‘ “A party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury.” ’ ” See Grasham v. Southern R. Co., 111 Ga. App. 158, 161 (5) (141 SE2d 189) (1965). There was no error, merely because the particular juror defendant sought did not serve.

4. The last enumeration of error is that the jury verdict of $275,000 was excessive in view of the fact that Minor only established about $3,000 in special damages. The remainder of the amount awarded must rest upon pain and suffering.

Questions as to the proper measure of damages in FELA cases are governed by general principles of law established by the federal courts. Seaboard System R. v. Taylor, 176 Ga. App. 847, 849 (2) (338 SE2d 23) (1985). Accord Hepner v. Southern R. Co., 182 Ga. App. 346, 351 (356 SE2d 30) (1987). “ ‘[T]he jury’s determination of the amount of damages to be awarded is . . . inviolate, “absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial.” ’ ” Southern R. Co. v. Montgomery, 192 Ga. App. 308, 311 (3) (384 SE2d 907) (1989) (physical precedent only), quoting from Taylor, supra.

It is often noted that Georgia has a standard of review consistent with that of the federal judiciary. CSX Transp. v. Darling, 189 Ga. App. 719, 721 (1) (377 SE2d 217) (1988). With the revision of OCGA § 51-12-12 in 1987 the trial courts apply a different standard or measuring device from that formerly included in the code section. Even if this affected appellate review of excessive damage assertions in other types of cases, it would not serve to modify the well-established principles applicable to FELA cases.

Decided June 20, 1990

Rehearing denied July 3, 1990 — Cert, applied for.

Greene, Buckley, DeRieux & Jones, Keith J. Reisman, Harold S. White, Jr., for appellant.

Kerry R. McDonald, for appellee.

Under the whole court decision in Darling (to which the author dissented), the amount of compensation for pain and suffering is a matter left within the virtually exclusive province of the jury. When there is no direct proof of improper cause, the issue of excessiveness is, by law, governed by judicial subjectivity in a realm absent objective criteria.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Beasley, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    A90A0144.
    ANDERSON v. HUGHES et al.
    (395 SE2d 623)
   Beasley, Judge.

Plaintiff Anderson appeals the grant of summary judgment to defendants Hughes, individually and d/b/a Saf-Ez Archery Products, Inc., in this product liability action. It alleged negligence, breach of implied warranty, and strict liability in the manufacture of a climbing/safety belt. Anderson maintained that he was using the device while climbing a tree when the stitching holding the tree strap to the safety belt broke, causing him to fall and sustain injury.

Defendants moved for summary judgment on the grounds that (1) plaintiff’s claims were time-barred because of late service; (2) plaintiff’s claim under OCGA § 51-1-11 was barred because there was no “sale” of the climbing/safety belt; (3) plaintiff’s claims against Hughes individually were barred because the belt was manufactured by the corporation; and (4) plaintiff’s claims of breach of warranty were barred by reason of lack of privity between plaintiff and defendants. The trial court’s order did not specify the basis for the grant of summary judgment.

Plaintiff contends that he was not guilty of laches in perfecting service of process, that OCGA § 51-1-11 did not require a “sale” of the product, and that claims against Hughes personally were not barred by the corporate existence in that Hughes personally designed and manufactured the belt. Plaintiff does not challenge the lack of privity ground and hence the granting of summary judgment on the breach of warranty claims.

1. The procedural time-bar is dispositive.

“A civil action is commenced by filing a complaint with the court.” OCGA § 9-11-3. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (3) (307 SE2d 134) (1983). See also Brumbalow v. Fritz, 183 Ga. App. 231, 232 (2) (358 SE2d 872) (1987).

If a plaintiff has taken no action to perfect service, then a petition to permit belated service should be denied as a matter of law. Gulf Oil Corp. v. Sims, 112 Ga. App. 68, 69 (143 SE2d 776) (1965). If the plaintiff has taken some action, “[t]he trial judge must determine, exercising a legal discretion, whether the plaintiff was diligent in his efforts. [Cits.]” Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977). See also Gulf Oil Corp., supra at 69. The burden of showing lack of fault is on the plaintiff. Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978). See also Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988).

Construed in favor of plaintiff, the facts surrounding service of process were the following. The mishap occurred on October 10, 1986. Plaintiff filed suit on September 30, 1988, against “Robert Hughes, individually and d/b/a Saf-Ez Archery Products,” ABC and XYZ corporations, and three “John Doe” defendants. Hughes went by the nickname of “Bob” and appellant mistakenly named “Robert Hughes” as defendant when Hughes’ correct name was “Herbert A. Hughes.” Hughes was listed in the telephone directory as “Bobby” and “Herbert A.” Hughes.

On October 8, the sheriff attempted service on “Robert” Hughes at Hughes’ residence. Hughes was not at home and the sheriff spoke with Hughes’ wife. The next day the sheriff again attempted service at Hughes’ residence. Hughes was at home and informed the deputy that his name was not “Robert” but “Herbert A.” Hughes and that he also went by the name of “Bob” Hughes. The deputy asked to see Hughes’ driver’s license, wrote down information from the license and drove off. Even though Hughes had never seen a lawsuit before and did not know what he was looking at, he had an idea that the documents were for him because they also bore the name “Saf-Ez Archery Products.” He told others that the sheriff was trying to serve him but had the wrong name.

The return of service, dated October 20, showed that service had not been accomplished on “Robert Hughes” and bore a notation that the subject at the given address was “Herbert A. Hughes.” Plaintiff amended his complaint on December 15 to reflect “Herbert A. Hughes, A/K/A Robert Hughes” and service on Hughes was accomplished by the sheriff the following day, nearly two months after the initial return of service indicating Hughes’ correct name and more than two months after expiration of the statute of limitation.

Hughes answered the suit on January 11, 1989, raising the defense that the belt was not manufactured by him individually but rather by his corporation, “Saf-Ez Archery Products, Inc.” Plaintiff again amended his complaint on February 14. Although there was no change in the style of the complaint to reflect that the business was incorporated, portions of the body of the complaint named Saf-Ez as a corporate entity. The amended complaint was served on “Herbert A. Hughes d/b/a Saf-Ez Archery Products” more than four months after the statute of limitation had run, on February 23.

Plaintiff had the burden to investigate and learn where defendants might be located. See Watters v. Classon, 193 Ga. App. 493 (388 SE2d 397) (1989). Of necessity this would entail ascertaining defendants’ proper identities. What is more, once defendants asserted by their summary judgment evidence the belated service and the plaintiff’s lack of diligence in this regard, it was up to plaintiff to come forward with evidence of his lack of fault and reasonable diligence or suffer judgment in favor of defendants based on a finding of laches. A finding of laches in regard to service may be made as a matter of law even when the plaintiff has made some attempt at service. See, e.g., Land v. Casteel, 195 Ga. App. 455 (393 SE2d 710) (1990).

There was no evidence that plaintiff made any initial investigation to ascertain Hughes’ correct name, i.e., whether or not “Bob” or “Bobby” stood for “Robert.” He just assumed defendant’s name was “Robert.” If there was an identity of address for Hughes’ two telephone listings, a look in the telephone directory would have indicated that “Bob” or “Bobby” was “Herbert A.” and not “Robert.” Hughes had resided at the same residence for over twenty-five years. Moreover, even though plaintiff knew that Hughes was called “Bob” he neglected to initially add that name to the suit and request that service be made on the defendant bearing that alternate name. Furthermore, plaintiff initially made no attempt to serve the corporate defendant.

Although suit was filed close to the expiration of the statute of limitation, appellant made no effort to expedite the initial service of process by having a special agent appointed or by any other means. Even though the October 20 return of service indicated the name problem, appellant likewise made no effort to expedite service of the amended complaint but chose to let it be served in due course by the sheriff. At that belated point plaintiff still made no attempt to serve the company. No explanation was offered for the two-month delay in finally serving Hughes under his real name.

Contrary to plaintiff’s assertion, there is no evidence that Hughes tried to evade service of process. Rather, the evidence is that he told the deputy the truth that he was not “Robert” Hughes and what his correct name was. The fact that Hughes suspected that the documents might be intended for him and that he related such information to others did not show evasion. There was no evidence that Hughes denied to the deputy that the suit was intended for him or that he hid from service or affirmatively refused service. Moreover, actual knowledge by a defendant that a complaint has been filed does not cure a defect in service. See Adams v. Gluckman, 183 Ga. App. 666, 667 (1) (359 SE2d 710) (1987). See also Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). Atlanta Veterans Transportation v. Westmoreland, 123 Ga. App. 466 (181 SE2d 504) (1971), cited by plaintiff, differs because service was completed on the misnamed defendant.

The evidence on summary judgment authorized the determination that plaintiff failed as a matter of law to exercise reasonable diligence in effecting service of process on both the individual and corporate defendants. Summary judgment on all claims in favor of defendants was warranted on this basis.

2. It is therefore unnecessary to address plaintiff’s remaining contentions.

Judgment affirmed.

Pope, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

I must reluctantly agree that the majority opinion is correct in saying that the plaintiff did not adequately explain his delay in serving the defendants properly. The facts do not support a finding that Hughes evaded service; all he did was tell the process server that he was not Robert Hughes, and showed the sheriff his driver’s license showing he was Herbert Hughes. Hughes acknowledged that he had a good idea that the suit was meant for him because he saw the name of his corporation on the complaint as well, but I am not sure we may declare a duty upon someone to go out of his way to clarify such a situation. Also, Hughes certainly did not refuse to accept the process; the sheriff did not leave it there.

Decided June 21, 1990

Rehearing denied July 3, 1990 — Cert, applied for.

Jordan & Bodner, H. Garold Jordan, for appellant.

G. Thomas Davis, William F. Mitchell, Drew, Eckl & Farnham, Stevan A. Miller, Haas, Bridges & Kane, Stephen R. Kane, for ap-. pellees.

More importantly, the appellant offers no excuse for the two-month delay in finally serving Hughes under his real name. It could be argued that Hughes contributed to the delay by not telling the sheriff that the plaintiff must have meant to sue him, but there appears to be no excuse for waiting two months before perfecting service after that. Hughes never concealed his real name. In fact, the record shows that the appellant’s lawyer asked the sheriff to serve “Robert Hughes” again, even after the sheriff returned the process with the explanation that the resident at that address was named Herbert Hughes, not Robert Hughes.


author: McMurray, Presiding Judge.

text:
    A90A0233.
    EDMONDS v. THE STATE.
    (395 SE2d 566)
   McMurray, Presiding Judge.

Defendant was indicted for violating Georgia’s Controlled Substances Act (possession of cocaine with intent to distribute), driving under the influence of alcohol and obstructing a law enforcement officer.

On October 8, 1988, defendant’s case was called for trial. After voir dire and while the State’s attorney and defense counsel were outside the presence of the jury panel making “final determinations as to which jurors to strike . . . ,” the trial court began “answering general questions raised by members of the jury panel . . . .” The trial court’s remarks were not being taken down by the official court reporter and, when defense counsel returned to the courtroom and noticed this omission, he immediately requested that the “remaining comments be recorded. . . .” The official court reporter complied and the following was recorded:

“THE COURT: . . . the plea bargain process has been approved and recognized and is recommended by the Supreme Court as an expeditious way of disposing of cases. Now, in a trial we have a two part — two parts in any criminal trial. Those of you who are selected on the jury for the trial of this case or any other case, we have two phases: first is the guilt/innocence phase. The guilt or innocence of the defendant is determined, and that’s what the trial jury does. The jury determines thé guilt or innocence. Following that, and if the person is found guilty, then you move into the sentencing phase. Now the jury doesn’t have anything to do with that, the Judge imposes the sentence. Only in a death penalty case does the jury have anything to do with sentencing, but the jury determines the guilt or innocence. If found guilty, then we move to the sentencing phase and the Judge determines that.
“Now, whether or not a person has a prior criminal record, whether or not they have committed any criminal offenses in the past, has no bearing whatsoever on the trial for which the person — for the charges for which the person is being tried. Now there are some exceptional circumstances to that; if it’s a similar transaction, similar in occurrence, time of occurrence — and there are some situations where prior offenses or prior conduct might be admitted, but basically the fact that a person may or may not have a prior criminal record has no bearing on the guilt or innocence of the charges on which he is being tried. Only after he has been found guilty by the jury, if the jury finds him guilty, does that then become a part of the case, and that is for the Judge’s benefit in sentencing the person. As far as the jury is concerned, they have nothing to do with that.
“Going back to the plea bargaining now, that I was telling you about, I got off on the other. Once the person has entered his plea of guilty, that completes the guilt/innocence phase of the trial, even though it’s without a jury. He just plead guilty, so now he is found guilty; that part of the trial is over. We then move to the sentencing phase. At that point, then, the Judge has the right to see his prior record, to see whether he has any previous criminal offenses, and what they are, when it was, and all the circumstances surrounding that. The Judge, as I said, has a right to reject the plea bargaining agreement. If, for example, the State and the defense agree on a plea bargain for burglary, and five years probation is going to be the recommended sentence, when he enters the plea of guilty the State recommends five years probation. That’s all according to their agreement, everybody’s done what they were supposed to do or agreed to do and the Judge looks at the record, and the fellow has been in prison four times for armed robbery and been in prison three times for burglary, some other type situations like that; folks, ain’t no way the Judge is going to accept five years probation on a fellow that’s got that kind of a record, so the Judge says, ‘I’m not going to accept that agreement’, and we’re back to square one. If, after looking at his prior record, the Judge feels that the agreed upon sentence is appropriate and in line, and he accepts it, he sentences him to whatever that agreement was, and that disposes of the case.
“That’s how .the plea bargain process works. As soon as we finish picking juries for the cases to be tried today,, we will begin taking pleas this afternoon, and we have, I think, about forty cases that have announced they will be disposed of by plea, through the plea bargaining process. So that’s what we’ll be doing when you all leave when we get through picking juries, we’ll still be here disposing of other cases in that manner. All right, that’s a little, real quick, ten minute primer on plea bargaining and how it works. Any other questions?”

Defense counsel then stated that he “would like to reserve [his] right for later argument on a motion to dismiss the jury panel based on [the trial court’s] comments on guilt or innocence.” The trial court informed defense counsel that he could “make that motion . . .” and jury selection continued. After the jury was impaneled, but before it was sworn, defense counsel proceeded as follows:

“[DEFENSE COUNSEL]: There is one other matter I want to make sure the record is perfected on. Prior to jury selection in this case I made a motion to dismiss the panel regarding statements that the Court made at the time the State and defendant were excused from the courtroom. Judge, I don’t know what all was said, and I hate to bring this up as an issue, because I have a lot of respect for you. But I feel that I have a duty to my client to assure him that the words spoken to the jury will not in any way prejudice or influence this jury against him. I don’t know what was said. I understand that part of it was not transcribed, because when I came back in I signaled to [the court reporter] and I understand that he began transcribing at that time. He is shaking his head up and down that’s correct. Judge, something quite frankly Pm scared to bring up to you, I have a lot of respect for you, and I don’t want you getting down on me for doing it, but I’ve got to tell you, I think that’s wrong.
“THE COURT: All right, sir, you have that right. Make your motion.
“[DEFENSE COUNSEL]: I am moving to dismiss the jury panel on the ground the Court communicated with them outside the presence of counsel. Counsel was excused from the room. ... I further make this motion on the basis of the statements that I did hear the Court make as to the plea bargaining system, and as to the record of an accused not being able to be brought into evidence. . . . My concern is that this jury panel sitting out here prior to the time that they were selected as jurors could infer, from your statements, which I’m sure were not intended for this purpose, and I don’t accuse you of intending them for this purpose, that, ‘Here we are about to get selected on this jury, the Judge has just told us that the defendant’s prior record is not admissible in evidence. Why is he telling us this at this time? Is he sending us a message? Hey, this guy has got a prior record.’ Now, Judge I don’t want to get on your bad side . . . [b]ut I just feel that that is impermissible, and I have to continue my motion that it impermissibly tainted this jury panel. I don’t think a motion for mistrial is appropriate. I think the proper procedure is to move to dismiss the panel on three grounds, the fact that I can’t tell the client what was said, because we weren’t in here and the record doesn’t contain it. On the grounds you told them about the plea bargaining — and I don’t remember if you told this or not, to tell you the truth, I’ll try to remember it — but most criminal cases end up being resolved by plea bargaining, and that, they can infer from that, Judge, that most criminal defendants are guilty. I think that’s an improper statement to give to them, because it could allow them to infer that. And that, in affect [sic], could be a comment from one on the judicial system to people who were to come down here charged with a crime. And thirdly as to the stuff about the defendant’s prior record at the time that we were about to select the trial jurors in this case.”

The trial court denied defendant’s “motion to dismiss” the jury panel and, in so doing, informed defense counsel that the court’s comments to the jury panel were “just an explanation to the jurors as to the plea bargain process and how it is utilized, and how it has been sanctioned, approved and recommended by the Supreme Court of the United States.” The trial court further explained that the remarks were made in a “general context” and that “there was no reference made at any time to this particular defendant.” The trial court then advised defense counsel that “[i]f you, at a later time, within the proper time frame, elect to appeal from the denial of your motion, we will perfect the record as to what comments I did make to the jury. I could take the time right now and tell them to you, because I’ve done it for six years in six different counties, and it’s almost a tape recorded dialogue that I have with the jury. But we will perfect the record. I don’t want to take the time now to do it. But, at such time as you would choose to appeal from my ruling denying your motion, we will perfect the record as to what was said, to the best of my recollection. I can pretty well tell you what it was, because as I said, I’ve done it dozens of times in the last six years.” (The trial court’s unrecorded comments to the jury were not made part of the record.) A jury was then empaneled and sworn and the trial proceeded. Defendant was found guilty of violating Georgia’s Controlled Substances Act (the lesser included offense of possession of cocaine), driving under the influence of alcohol and obstructing a law enforcement officer. This appeal followed the denial of his motion for new trial. Held:

1. In his first enumeration, defendant contends “[t]he trial court’s recorded remarks to the jury panel, outside the presence of counsel, were improper and reversible error.” More specifically, defendant argues that the trial court’s remarks regarding the inadmissibility of a defendant’s prior criminal record and remarks regarding the “40 cases [that] would be disposed of by guilty pleas that afternoon” impermissibly left the jury with the impression “that a majority of criminal defendants are guilty.” In opposition, the State argues that defendant acquiesced to the trial judge’s comments by failing to press the court for an immediate ruling on either his “motion to dismiss” the jury panel or his motion to reserve argument on the motion. The State also argues that defendant’s failure to challenge the poll, move for a continuance or question the prospective jurors as to the impact of the trial judge’s comments resulted in a waiver.

First, we find no acquiescence. Defense counsel promptly requested the court reporter to take down the trial court’s remaining comments; he immediately reserved his “argument on a motion to dismiss the jury panel ...” and, most importantly, he argued his point before the jury was sworn. See OCGA § 15-12-167. Next, we turn to the issue of waiver. The usual response to improper remarks made prior to a jury being sworn is a challenge to the poll or a motion for continuance. Hill v. State, 221 Ga. 65, 66 (1, 2) (142 SE2d 909). However, failure to respond with these specific objections will not always result in a waiver. “[I]t is an elementary rule of pleading that substance, not mere nomenclature, controls. [Cits.]” Birt v. State, 256 Ga. 483, 484 (3), 485 (350 SE2d 241).

In the case sub judice, defense counsel did not respond to the trial court’s comments to the prospective jurors by saying, “I challenge the poll” or “I move for a continuance.” Instead, he made a “motion to dismiss the jury panel. . . .” The object of this motion was clear. He wanted a full panel of prospective jurors who had not been tainted by the trial court’s pre-trial briefing. Under these circumstances, we find no waiver.

Turning now to the substance of defendant’s complaint, we recognize that juror orientation, whether it be through preliminary instructions to the entire array or through responses to questions raised by members of a panel, serves a useful function. “Jurors are generally unfamiliar with the mechanics of a trial, civil or criminal, and may enter upon their duties with little or no idea as to how an actual trial is conducted, save those impressions garnered from television. It is quite helpful to the court, counsel, and even the parties, for the jurors to be reasonably well-informed about their duties and the conduct of a trial. . . . Where . . . such a charge is informative, accurate, and not prejudicial to the rights of the parties, then it is to be encouraged, not discouraged.” Decker v. State, 139 Ga. App. 707, 708 (4), 709 (229 SE2d 520). However, “it is important that nothing take place in the presence of the panels which might cause the jurors to form an opinion as to the guilt or innocence of any defendant. [Citations omitted.]” William W. Daniel’s Georgia Criminal Trial Practice (1989 ed.) § 18-3, pp. 509, 510.

We do not question the sincerity and good intentions of the trial court in seeking to enlighten the jury panel by giving the complained of preliminary instructions in the case sub judice. However, under the particular facts and circumstances in the case sub judice, the trial court’s preliminary remarks regarding plea-bargaining and the admissibility of a defendant’s prior criminal record were inappropriate.

Consequently, we cannot find it highly probable that the error committed by the trial court’s broad reference to criminal defendants did not impair the prospective jurors’ view of “this particular defendant,” and did not contribute to the guilty verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). Under different circumstances, and at another place and time, it would be commendable for familiarizing instructions to be presented to enlighten and educate citizens in the operation of this State’s judicial system. However, we feel that it was inappropriate for the trial court to have done so, in the manner conducted, to a panel of prospective jurors from which a jury was in fact selected to try the defendant in the case sub judice. Consequently, the trial court erred in denying defendant’s “motion” (to empanel another jury). Compare Collins v. State, 73 Ga. 76, 77 (3) (1884); Johnson v. State, 179 Ga. App. 21, 22 (2) (345 SE2d 123); Bearden v. State, 159 Ga. App. 892, 893 (3) (285 SE2d 606); and Finch v. State, 138 Ga. App. 668 (226 SE2d 779).

2. Defendant’s remaining enumerations are either rendered moot by our holding in Division 1 or present error which is unlikely to occur upon retrial.

Decided May 17, 1990

Rehearing denied July 3, 1990 — Cert, applied for.

Hackel & Hackel, Thomas M. Hackel, for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.

       “There are two general kinds of challenges to a jury panel: (1) Challenge to the array and (2) challenge to the poll. [See Bryan v. State, 124 Ga. 79, 80 (52 SE 298).] Challenges to the array go to the form and manner of making up the entire panel without regard to objection to the individual jurors. A challenge to the poll is directed to an individual or individuals who make up a panel.” William W. Daniel’s Georgia Criminal Trial Practice (1989 ed.), § 18-7, p. 512. A challenge to the array must generally be made in writing. OCGA § 15-12-162. See Mincey v. State, 180 Ga. App. 263 (349 SE2d 1), affirmed State v. Mincey, 256 Ga. 636 (353 SE2d 814).

       See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, § 3.1.

       Preliminary instructions which are useful in informing prospective jurors of their duties and responsibilities and which place the criminal trial process in a proper perspective can be found in Suggested Pattern Jury Instructions, Volume 2, Criminal Cases, by the Council of Superior Court Judges of Georgia, pp. 2-8. These optional preliminary jury instructions explain: (a) the function of the indictment, (b) the presumption of a defendant’s innocence, (c) the State’s burden of proof, (d) the functions of the court and counsel, (e) the function of the jury as sole judges of the facts and the jury’s responsibility to apply the law, as given by the court, to the facts, (f) matters concerning credibility, (g) the importance of an impartial jury and the function of voir dire in achieving this goal, (h) criminal jury trial procedure, and (i) terms which will be used by the court and counsel.


author: Birdsong, Judge.

text:
    A90A0325.
    ECONOMOU v. ECONOMOU.
    (395 SE2d 830)
   Birdsong, Judge.

Appellant Stavros P. Economou appeals from the grant of summary judgment to appellee Dea Economou in her action to domesticate the judgment of a California court in their divorce proceeding. Held:

1. The record shows that the parties were residents of California, subject personally to the jurisdiction of the California court, and that the court had jurisdiction over the subject matter of their divorce. When suit is brought in this state to domesticate a foreign judgment, it is well settled that the judgment may be attacked only if the foreign court lacked jurisdiction over the person of the defendant or of the subject matter of the action, or if the judgment was procured by fraud. Osborne v. Bank of Delight, 173 Ga. App. 322, 323 (326 SE2d 523); Paris v. Cooper, 158 Ga. App. 212 (279 SE2d 507). As the record demonstrates that no such objections are warranted, the appellant has evaded those grounds, and in both the trial court and this court has urged a number of other arguments, most of which lack even surface persuasiveness. This conduct is consistent with the defensive tactics which the appellant pursued in the California courts and the lower courts of this state throughout this action. The record shows the California court made specific findings that the appellant defrauded appellee, misappropriated community assets and with those misappropriated assets obtained his Georgia property, absconded to a foreign country to avoid the jurisdiction of that court, and engaged in tactics designed to frustrate the court in the exercise of its jurisdiction.

2. Appellant’s first enumeration of error contends that personal jurisdiction was required to domesticate the California judgment. The record of this appeal shows plainly that this is an in rem action against appellant’s property in this state. Accordingly, personal jurisdiction is not required. Williamson v. Williamson, 247 Ga. 260, 263 (275 SE2d 42).

3. The second enumeration alleges that the trial court erred in denying appellant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. OCGA § 9-11-12 (b) (6). The basis for this argument is that the complaint filed in the court of this state asked that the appellee be awarded the “sum of $3,762,314.77, in addition to one-half of all of defendant’s property which may be found in the State of Georgia,” while the California judgment purportedly provided only that “the parties have a present and equal interest in real and personal property in Georgia.” Appellant argues, therefore, that relief cannot be granted on the complaint because it is not supported by the California judgment. This argument is without merit. Other portions of the California judgment, not quoted by appellant, award the relief requested. Moreover, even if the appellant was correct, such a discrepancy would not entitle him to a dismissal because the complaint failed to state a claim upon which relief may be granted. See Wehunt v. ITT Bus. Comm. Corp., 183 Ga. App. 560, 561 (359 SE2d 383).

4. Appellant also asserts that the trial court erred by granting appellee’s motion for summary judgment because the California judgment was too vague and uncertain to be given full faith and credit. We have examined the judgment in light of appellant’s arguments and do not find the uncertainty which appellant asserts. The judgment clearly finds that appellee is entitled to recover from appellant, gives appellant credit for certain transfers, and then awards appellee a specific money judgment and recognizes an interest in property located in this state. Accordingly, the judgment is neither vague nor uncertain, and this enumeration is without merit.

5. Appellant also argues that the trial court erred because it awarded appellee greater relief than that given in the California judgment. This argument is based upon the contention that the California judgment awarded appellee an interest in only certain designated properties in this state, while the trial court’s judgment awarded appellee a one-half interest in all of appellant’s property in this state. Appellant’s argument, however, does not describe accurately the California judgment which, although listing certain specific property, expressly stated that its effect was not limited thereto. Since there was no showing that there are any actual differences between the two judgments, we find this argument to be without merit. An appellant must show harm as well as error to gain a reversal. Kolman, Inc. v. Burns, 191 Ga. App. 758, 759 (382 SE2d 702). Moreover, we note that the California judgment was based upon the community property laws of that state, and appellant’s fraud in removing certain community property assets from California and converting them to his individual property in this state. Accordingly, the judgment would properly apply to all such property which can be located in this state, and the appellant has not so much as alleged on appeal that he owned separate property in this state which should not be subject to the California judgment.

6. Appellant contends that the trial court erred by granting summary judgment to appellee because the California court was without jurisdiction to adjudicate the appellee’s interest in the appellant’s real property in Georgia. This contention is based on King v. King, 203 Ga. 811 (48 SE2d 465), which holds that a foreign court may not adjudicate and vest title to Georgia real property. Although this may be an accurate statement of the law generally, it has no application to this case. Examining the California judgment on its four corners, we do not construe it as an attempt to change the title to the Georgia real property directly. Rather, the California court, as it was authorized to do, applied California community property law to determine whether appellee had an interest in the appellant’s real and personal property in Georgia, which he attempted to obtain as separate property by the unauthorized conversion of community property. See Wallack v. Wallack, 211 Ga. 745, 747 (88 SE2d 154). Although the trial court determined that the appellee was entitled to a one-half interest in the appellant’s real property, it is through the domestication of the California judgment that title will vest in appellee. See Chidsey v. Brookes, 130 Ga. 218, 220 (60 SE 529); OCGA § 53-3-47.

The result urged by appellant would mean that all divorce actions involving real property in another state as a marital asset must be filed in every state in which a spouse owned real property, that the parties’ divorce and disposition of the marital property would be subject to the laws of states of which they were not residents, and that the party seeking the division of the marital property would be forced to obtain personal jurisdiction over the other party in each state in which there was real property. Not only would such a process result in the expenditure of unnecessary time and expense, but such a procedure would favor parties who have absconded to avoid the reach of the law. Moreover, such a procedure, at a minimum, would run contrary to the spirit of the “full faith and credit” clause of the Constitution of the United States.

7. Appellant argues that the trial court erred in granting appellee summary judgment because he contends that the judgment has been partially satisfied. This argument is based upon the California judgment directing that certain sums under the control of a court-appointed receiver be paid to appellee. We note, however, the judgment expressly acknowledged that such payments had been paid and that the amounts claimed in this state are for the remainder of the amounts awarded by the California judgment. Additionally, this argument, in any event, would not require that summary judgment on liability be denied. See Sun First Nat. Bank v. Gainesville 75 Ltd., 155 Ga. App. 70, 73 (270 SE2d 293).

Decided June 12, 1990

Rehearing denied July 3, 1990 — Cert, applied for. '

Steering & Seidenberg, Jerry L. Steering, for appellant.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Ronald R. Coleman, Jr., for appellee.

8. Although appellant asserts that the trial court erred by granting judgment to appellee because the California judgment fails to describe adequately the Georgia real property in question, examination of the record shows that the judgment describes the real property sufficiently. Not only were certain properties described, but the California judgment also applied to “all” such property. Therefore, this enumeration of error is also without merit.

9. Appellant’s eighth and ninth enumerations assert that the California judgment cannot be enforced in Georgia because the judgment does not specifically describe the property concerned or because the judgment is too uncertain and vague to be enforced. These arguments are but versions of other arguments considered and rejected elsewhere in this opinion. In the main, they are supported mainly by tortured logic and deliberate efforts to make complicated what is not. Accordingly, these enumerations are also without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Carley, Chief Judge.

text:
    A90A0442.
    EASON v. BOWIE et al.
    (395 SE2d 600)
   Carley, Chief Judge.

After appellee-plaintiffs filed suit, two attempts at personal service were made by leaving a copy of the summons, complaint and attached interrogatories with non-resident adults at appellant-defendant’s residence. Thereafter, appellees moved the trial court for the appointment of a special process server, on the ground that, “[d]espite the best efforts of the Sheriff, [appellant] has not been served.” The trial court granted the motion and, according to the return of service, the special process server personally served the summons and complaint on appellant on December 7, 1988. However, the return of service did not indicate that any interrogatories had also been personally served on appellant, even though the return of service form contained a space wherein the service of interrogatories could have been noted. Appellant filed a timely answer to the complaint within 30 days of December 7, 1988. However, when no answers to the interrogatories were forthcoming within 45 days, appellees moved to strike appellant’s answer and enter default judgment in their favor. The trial court granted appellees’ motion and it is from that order that appellant brings this appeal.

Decided June 18, 1990

Rehearing denied July 3, 1990.

OCGA § 9-11-37 (d) (1) provides, in relevant part, that, “[i]f a party . . . fails to serve answers or objections to interrogatories submitted under Code Section 9-11-33, after proper service of the interrogatories, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just. . . .” (Emphasis supplied.) “If the party totally fails to respond, sanctions can be imposed directly under [OCGA § 9-11-37 (d)]. . . .” Hiney v. Bennaman, 177 Ga. App. 753, 755 (1) (341 SE2d 284) (1986). Prior to the trial court’s order striking appellant’s answer and entering default judgment against him, there was a total failure on his part to have answered any interrogatories. However, unless the interrogatories had previously been properly served on appellant, his failure to have responded thereto would not authorize the imposition of any sanctions against him. Appellant urges that there is nothing in the record which could authorize the trial court to find that there had ever been proper service upon him of the unanswered interrogatories.

Clearly, the record shows that appellant was never properly served with interrogatories prior to December 7, 1988. As appellees themselves acknowledged in their motion for the appointment of a special process server, the act of merely leaving the summons, complaint and attached interrogatories with non-resident adults at appellant’s residence was not proper service. Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). Likewise, there is nothing in the record to show that appellant was ever properly served with the interrogatories on December 7, 1988. As noted, the return of service by the special process server did not indicate that anything other than the summons and complaint had been personally served on appellant. Since there was no evidence that appellant had ever been properly served with the interrogatories, it follows that the trial court was not authorized to strike appellant’s timely filed answer and enter default judgment in favor of appellees. See generally Simpson v. Applegarth Supply Co., 153 Ga. App. 446 (265 SE2d 357) (1980). Compare Freeman v. Nodvin, 181 Ga. App. 663, 664 (2) (353 SE2d 546) (1987).

Judgment reversed.

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

Eason, Kennedy & Associates, Carolyn J. Kennedy, for appellant.

Larry K. Butler, Frank F. Seigel, for appellees.


text:
    A90A0470.
    CITY OF PEACHTREE CITY v. BYARS.
    (395 SE2d 613)
    Decided June 20, 1990
    Rehearing denied July 3, 1990.

      Sanders, Mottola, Haugen & Mann, A. Mitchell Powell, Jr., for appellant.

      Rich, Bass, Kidd & Witcher, Casper Rich, Merck K. Smith, for appellee.
   Beasley, Judge.

Byars was convicted in the Municipal Court of Peachtree City of possession of less than an ounce of marijuana, a misdemeanor violation of State law (OCGA §§ 16-13-30 (a); 16-13-2 (b)).

Upon certiorari to the superior court, that court held that the municipal court was without jurisdiction to try the charges and declared the conviction null and void.

The application of Peachtree City to appeal was granted.

Pretermitting the alleged procedural irregularity in the certiorari process, the substantive issue raised as to the power and authority of a municipal court to convict for violations of State law has been answered by Kolker v. State, 260 Ga. 240 (391 SE2d 391) (1990). The ruling of the superior court is reversed and the conviction of the municipal court on the State offense is reinstated.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


text:
    A90A0476, A90A0477.
    BARNETT v. MORROW et al.; and vice versa.
    (396 SE2d 11)
   Beasley, Judge.

Defendant Barnett appeals from the award of attorney fees pursuant to OCGA § 13-6-11, while plaintiffs Ronald and Bonnie Morrow cross-appeal on the ground that the same award was insufficient.

The Morrows brought a complaint against Barnett in two counts, one for specific performance of a-real estate sales contract and the other for damages for breach of the sales contract. Under both counts plaintiffs sought to recover the expenses of litigation including attorney fees.

Plaintiffs had entered into the contract in November 1987 whereby they were to sell their residence to Barnett, a developer, for $120,000. As part of the agreement, Barnett deposited $5,000 as earnest money. Under the terms of the contract if purchaser Barnett defaulted then seller could elect to either require purchaser to specifically perform his obligations or retain the earnest money as liquidated damages because seller’s actual damages were difficult, if not impossible, to ascertain. The contract also provided that purchaser would give seller written notice of any objection to the marketability of title. No notice was sent to plaintiffs prior to the date of closing. When the time for closing arrived, defendant refused to honor the agreement and also refused to close at a subsequent time offered by plaintiffs. Suit followed.

Barnett answered and counterclaimed on the basis of fraudulent misrepresentations. He demanded the return of his earnest money. During the pendency of the proceedings, plaintiffs obtained a buyer for their property and sold it. After discovery, they moved for summary judgment both as to their claim and as to defendant’s counterclaim. The trial court held there were no grounds for the counterclaim and no basis for defendant’s refusal to honor the contract. Summary judgment was granted in favor of plaintiffs as to the counterclaim and partially as to count two of their complaint. The only damage ruled recoverable was the earnest money; litigation expenses, including attorney fees, were ruled not recoverable under that count. As to count one, the court decided that specific performance had been eliminated as a remedy because of the sale of the property but that a jury issue remained regarding litigation expenses. The issue was tried by the bench by agreement, and the court awarded $6,119.

Defendant contends the court erred in holding that plaintiffs could recover expenses associated with the specific performance count of their complaint and in awarding the sum ordered.

OCGA § 13-6-11 states that expenses of litigation generally shall not be allowed as a part of the damages, but may be allowed where specially pleaded and prayed for and where defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense. They are ancillary and recoverable only in cases where other elements of damages are recoverable. Cleary v. Southern Motors, 142 Ga. App. 163, 165 (1) (235 SE2d 623) (1977); Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136) (1988); Liberty Mut. Ins. Co. v. Coburn, 132 Ga. App. 859, 862 (209 SE2d 655) (1974); Terry v. Wonder Seal Co., 120 Ga. App. 423 (4) (170 SE2d 745) (1969). As held in Willis v. Kemp, 130 Ga. App. 758, 761 (7) (204 SE2d 486) (1974): “plaintiff was not entitied to attorney fees, for he had to recover other elements of damage before he could recover attorney fees.”

Decided June 21, 1990

Rehearing denied July 3, 1990 — Cert, applied for.

Zachary & Segraves, J. Ed Segraves, for appellant.

Edwin A. Tate II, for appellees.

The Supreme Court has permitted the recovery of attorney fees in equity cases where there was no monetary recovery but where equitable relief was granted, such as specific performance or injunction. Clayton v. Deverell, 257 Ga. 653, 655 (4) (362 SE2d 364) (1987); Golden v. Frazier, 244 Ga. 685, 687 (2) (261 SE2d 703) (1979); Adams v. Cowart, 224 Ga. 210, 215 (6) (160 SE2d 805) (1968). See C & S Nat. Bank v. Haskins, 254 Ga. 131, 137 (4) (327 SE2d 192) (1985); Jones v. Spindel, 239 Ga. 68, 72 (3) (235 SE2d 486) (1977); Grant v. Hart, 197 Ga. 662, 671 (2) (30 SE2d 271) (1944). In these cases plaintiffs prevailed and obtained the relief sought. There is no authority for the proposition that merely seeking equitable relief, which for whatever reason is unobtainable, entitles one to recovery under OCGA § 13-6-11. Plaintiffs could not recover damages for the breach and obtain specific performance; they were required to elect their remedy. Clayton, supra at 654 (3). They elected by action, eliminating specific performance and preventing a judicial determination of the issue. They did obtain relief under the count for breach, in effect an adjudication as to the escrowed earnest money, but they were not permitted attorney fees.

Because the correct principle is that plaintiffs must prevail on their basic cause of action in order to obtain litigation expenses, it was error to award attorney fees based upon the mooted specific performance count. This ruling renders moot the cross-appeal on the amount of attorney fees awarded. The Morrows did not appeal the refusal to allow attorney fees on the breach of contract count.

Judgment reversed in Case No. A90A0476; appeal dismissed in Case No. A90A0477.

Deen, P. J., and Pope, J.; concur.


text:
    A90A0562.
    PATEL v. GINGREY ASSOCIATES et al.
    (395 SE2d 595)
   Birdsong, Judge.

Patel appeals from the grant of summary judgment to the appellees (“the Gingreys”) on their claims against Patel arising from the purchase of a motel. Although Patel admits that he defaulted on the note, he contends that he is not liable because the Gingreys violated their father’s agreement to consent to a sale of the motel by unreasonably withholding their consent to a proposed sale of the motel to a qualified buyer.

The documents in the record show that in 1979 Patel and his brother purchased all the stock in the motel from James F. Gingrey, Sr. (“Mr. Gingrey”). The Patels and Mr. Gingrey executed a promissory note, a deed to secure debt, a hypothecation agreement, an agreement on certain financial adjustments, and a seller’s warranties and a hold harmless agreement. Additionally, Mr. Gingrey also executed an agreement concerning granting his consent to a future sale.

According to Patel, this agreement was executed because the Patel brothers were buying the motel as investment to hold and then resell, and a “due on sale” clause would have prevented them from doing that. Therefore, Patel contends he told Mr. Gingrey that they would not purchase the motel unless Mr. Gingrey agreed to let them sell the property. Thus, Mr. Gingrey agreed that he would “allow a future sale of the stock of [the motel] and or the property ... to a qualified buyer if the purchaser is first approved by [him], and to not unreasonably withhold [his] approval.”

In. 1980 Mr. Gingrey died. For federal tax purposes and to convert the motel corporation to a partnership, Patel and his brother agreed with Mr. Gingrey’s sons to, in essence, “resell” the motel from the Gingrey sons to the Patels. Contrary to the documents prepared in 1979, the parties agreed to treat the 1979 sale as one from the Gingrey sons to the Patels, by Mr. Gingrey as his sons’ agent.

Therefore in 1980, the parties entered into an agreement and a loan and security agreement. The agreement recited that the 1979 sale was from the Gingrey sons to the Patel brothers, and that the documents concerning the 1979 sale were given to Mr. Gingrey, as agent for his sons, and that the Patels were dissolving the corporation and distributing the assets to the Patel brothers and the partnership. The agreement, however, did not mention the 1979 agreement by Mr. Gingrey about giving his approval of future sales. In the loan and security agreement, the Patels and the partnership assumed the outstanding liabilities of the motel corporation. The Patels also issued a new note for the outstanding balance of the 1979 note and a new deed to secure debt, which had no due on sale clause. In 1981, at the request of the Gingrey sons, the Patels executed a corrected deed to add a due on sale clause.

According to Patel, he sought to sell the motel in 1983 to purchasers who owned and operated other motels in the southeast, however, the Gingreys refused to consent to the sale. He contends that, although the holder of the first mortgage agreed to the sale, the Gingrey sons refused to consent unless the holder of the first mortgage agreed to subordinate its lien to that of the Gingreys. Patel contends that when the holder of the first mortgage refused, the deal fell through. The Gingreys deny this version of the events. They maintain that although they were approached about a possible sale, they did not refuse to consent.

Thereafter, the Patels continued to make payments on the note until November 1987. After they quit making payments, the Gingrey sons foreclosed on the property, confirmed the deficiency, and filed the present action to recover the amount still due. Although not disputing that the note was in default, Patel asserted that the Gingrey sons’ violation of Mr. Gingrey’s 1979 agreement was a defense to the suit. After the Gingreys’ motion for summary judgment was granted, Patel appealed.

Patel contends the trial court erred by granting summary judgment because genuine issues of material fact remain for trial. Patel also contends that the trial court erred by holding the agreement was invalid when written, or if valid then, merged into the agreements entered into in 1979 and 1980. Held:

1. Pretermitting the other issues in this appeal is whether, in the first instance, breach of Mr. Gingrey’s agreement would excuse future performance of Patel’s obligations on the note. We find that it would not. This agreement by Mr. Gingrey, assuming its validity, is independent of Patel’s obligations. Neither the documents executed in 1979 or 1980 nor the corrective security deed executed in 1981 referred to this, agreement, and certainly none incorporated the separate agreement. Also, the terms of Mr. Gingrey’s agreement do not purport to modify, amend, or incorporate the note or any document executed in 1979 or thereafter. With these facts, we must conclude that the parties did not intend that Mr. Gingrey’s agreement and the note and other documents would be integrated with and dependent on the other. Instead the agreement plainly is a separate agreement aifecting how Mr. Gingrey would exercise his consent to any future sale of the motel’s stock or property. Therefore, since the two agreements are independent and not conditional upon the other, a breach of Mr. Gingrey’s agreement would not be a defense to Patel’s default on the note. See OCGA § 13-1-7; Hartrampf v. Citizens &c. Investors, 157 Ga. App. 879, 881 (278 SE2d 750).

2. Moreover, we do not find Mr. Gingrey’s agreement to be enforceable in any event. “A contract is an agreement between two or more parties for the doing or not doing of some specific thing,” (Emphasis supplied.) OCGA § 13-1-1. Mr. Gingrey’s agreement shows that the specific thing he agreed to do was in the future not “unreasonably withhold [his] approval” of a qualified buyer of the motel’s stock or property.

The agreement provides no definition of its terms and provides no standards of reasonableness or qualification, either subjective or objective, that Mr. Gingrey was to apply. Although, as Patel suggests, the term “qualified buyer” may have an accepted definition in real estate sales, nothing in the agreement suggests that the parties intended that definition, and further, Mr. Gingrey did not agree to consent to a sale to any qualified buyer. The agreement shows that he reserved his right to consent or not, and that he agreed only “to not unreasonably withhold [his] approval.”

An agreement merely not to be “unreasonable” in the future is so uncertain, indefinite, and vague that it cannot be an enforceable contract. See Farmer v. Argenta, 174 Ga. App. 682, 683 (331 SE2d 60). To be valid an agreement must be expressed plainly and explicitly enough to show what the parties agreed upon, and an agreement expressed in incomplete or incomprehensive terms cannot be enforced. West v. Downer, 218 Ga. 235, 241 (127 SE2d 359). The agreement not to be “unreasonable” does not convey with reasonable certainty what Mr. Gingrey was obligated to do (see Green v. Zaring, 222 Ga. 195, 198 (149 SE2d 115)), and whether there had been performance. Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659, 662 (164 SE2d 229). This agreement is subject entirely to conjecture and, consequently, cannot be enforced. Hughes v. McMichen, 164 Ga. App. 304, 305 (296 SE2d 233).

3. Finally, even assuming that the agreements had been dependent and that Mr. Gingrey’s agreement was enforceable, Patel cannot disregard the alleged breach of that agreement, comply with his obligations for three years, and then assert the breach as a defense to this action. We find as a matter of law that Patel waived his right to assert the purported breach of Mr. Gingrey’s agreement and cannot assert that breach as a defense to this action. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (381 SE2d 322); James v. Mitchell, 159 Ga. App. 761, 762 (285 SE2d 222). Kelly v. Morris, 46 Ga. App. 353, 355 (167 SE 716). Although waiver can be a jury issue when the evidence is conflicting, under the facts of this case, no such issue is presented.

4. Accordingly, the trial court did not err by granting summary judgment to the Gingreys. A judgment right for any reason will be affirmed. Farmer v. Argenta, supra.

Judgment affirmed.

Banke, P, J., and Cooper, J., concur.

On Motion for Rehearing.

Patel contends that our determination that Mr. Gingrey’s agreement, which promised only not to unreasonably withhold his consent to a proposed sale, was unenforceable is inconsistent with our earlier opinion in Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586 (337 SE2d 29), Stern’s Gallery found enforceable a provision in a commercial lease not to unreasonably withhold consent to a sublease. We find Stern’s Gallery to be distinguishable because the provision in that case was subject to enforcement on commercial reasonableness standards. Such standards are inapplicable to the agreement in this case since Mr. Gingrey’s agreement reserved his right of approval of even qualified, i.e., commercially reasonable, buyers, and thus eliminated commercial reasonableness as a standard for determining what was unreasonable.

Decided June 11, 1990

Rehearing denied July 3, 1990 — Cert, applied for.

J. Patrick Claiborne, for appellant.

Broyles, Dunstan & Dunstan, Mark A. Cleary, for appellees.

Further, since we found as a matter of law that under the facts of this case Patel had waived any rights he may have had under Mr. Gingrey’s agreement, no jury issue was created on this issue. Kusuma v. Metametrix, Inc., 191 Ga. App.. 255 (381 SE2d 322).


text:
    A90A0564.
    SEARS v. THE STATE.
    (396 SE2d 1)
   Beasley, Judge.

Sears was charged with driving under the influence in violation of OCGA § 40-6-391 (a) (1) & (4) and was to be tried by the probate court pursuant to OCGA § 40-13-21. He filed a “Motion to Dismiss and Plea in Bar” which was denied after a hearing. Sears appealed to the superior court, which held that the appeal was untimely filed because the case had not reached final disposition in the probate court. It transferred the case back for final disposition.

Did the court err in deciding the appeal was premature? Appellant relies solely on OCGA § 5-3-2, without further argument, taking the position that the statute gave the right to appeal.

The denial of defendant’s motion challenging the language of the citation/accusation was an interlocutory ruling, leaving the case pending for trial before the probate court. See Boyd v. State, 191 Ga. App. 435 (383 SE2d 906) (1989); Bruce v. State, 122 Ga. App. 159 (176 SE2d 515) (1970). OCGA § 5-3-2 provides a general right of appeal from probate courts to the superior court “from any decision made by the probate court, except an order appointing a temporary administrator.” This has been interpreted to apply only to final judgments rendered by the probate court. See Harnesberger v. Davis, 86 Ga. App. 41, 46 (1) (70 SE2d 615) (1952) which addressed the issue under predecessor Ga. Code § 6-201. See also Hartley v. Holwell, 202 Ga. 724, 726-728 (44 SE2d 896) (1947). OCGA § 40-13-28 likewise, and clearly, conveys the right of appeal to the superior court to only a convicted defendant. Both statutes contemplate an ordérly progressive appellate process, not a delaying, costly, and cumbersome shuttling of such a case back and forth between two courts. See also Ga. Const. 1983, Art. VI, Sec. IX, Par. I, which affirms the spirit reflected in these statutes.

Decided June 7, 1990

Rehearing denied July 3, 1990 — Cert, applied for.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A0580.
    BANGS et al. v. FARM CREDIT BANK OF COLUMBIA.
    (396 SE2d 6)
   Beasley, Judge.

Defendants, the Bangses, appeal the grant of summary judgment to plaintiff The Farm Credit Bank of Columbia (FCB) in this suit for judgment on a promissory note. Applicable is the Agricultural Credit Act of 1987, Farm Credit Act of 1971, §§ 1.1-8.14, as amended, 12 USCA § 2001 et seq., particularly § 2202a.

James Bangs and his sons, Kenneth and Roger, executed a promissory note for $952,800 in favor of FCB’s predecessor, to obtain a loan. The indebtedness was collateralized by a security deed on approximately 1,272 acres of land. The note provided for forty annual installment payments. The Bangses paid the installments for five years but, because of financial difficulty with their farming operation, they stopped.

After some time, FCB, through its servicing agent the Southwest Georgia Farm Credit Service (SGFCS), declared the loan in default and informed the Bangses that foreclosure action had been recom- . mended and that they were entitled to submit an application for restructuring their loan under 12 USCA § 2202a (b) (2). The Bangses submitted a restructuring application along with financial and annual cash flow statements and tax returns and, as subsequently required, more financial information.

Without rejecting the Bangses’ restructuring plan, a SGFCS loan officer submitted a counter proposal. The Bangses rejected it and submitted a revised plan of restructure. Further communications and negotiation were unsuccessful.

SGFCS’s special asset manager thereafter informed the Bangses that their restructuring application was denied because an analysis of the cost of the plan showed it was more than the cost of foreclosure and because a restructuring of the loan would require a pledging of additional collateral which the Bangses had indicated was unacceptable. The letter included a summary of SGFCS’s cost analysis and informed the Bangses of their right to review of the denial by the Credit Review Committee.

The Bangses requested a review and a complete restructure plan analysis. The Committee hearing was held with James and Kenneth Bangs and their attorneys present. The Committee unanimously affirmed the denial of the Bangses’ restructuring application. Later, SGFCS on behalf of FCB notified the Bangses that the entire unpaid principal and interest on the note was due and payable and that the loan had been called for foreclosure because of default.

FCB did not proceed to foreclose but filed the present action seeking to reduce the balance under the note to judgment. The trial court granted summary judgment to FCB in the principal sum of $936,492 together with pre- and post-judgment interest, attorney fees, and costs. The court appended to its order comprehensive memoranda discussing applicable federal decisions. It explained why it rejected the Bangses’ contention that they had the right under 12 USCA § 2202a to assert as an affirmative defense that FCB did not exercise good faith in denying restructuring of their loan, which they rested on the theory that 12 USCÁ § 2202a (e) (1) made restructuring mandatory when the cost of restructuring would not exceed the cost of foreclosure. The court concluded that borrowers’ rights under the federal statutes were limited and did not afford the right to litigate an unfavorable Committee ruling on their restructuring plan.

1. The gravamen of appellants’ contentions is that under Section 2202a borrowers have an implied private right of action and thus the right to assert the affirmative defense of the lender’s failure to exercise good faith in its analysis of cost of restructure versus cost of foreclosure.

In foreclosure actions involving the Agricultural Credit Act of 1987, federal decisions are not in complete accord on the question of borrowers’ rights. See Zajac v. Fed. Land Bank of St. Paul, 887 F2d 844 (8th Cir. 1989): Borrower has an implied cause of action to enforce the Act’s independent appraisal procedures; Harper v. Fed. Land Bank, 878 F2d 1172 (9th Cir. 1989): There is no implied private right of action to enforce the Act; In re Reilly, 105 B. R. 59 (Bkrtcy.D.Mont. 1989): Debtors had no right to seek private claim for relief under the Act, citing Harper, supra; Neth v. Fed. Land Bank of Jackson, 717 FSupp. 1478 (S.D.Ala. 1988): No express or implied private right of action under the Act exists.

We do not reach the question of appellants’ private right of action or right of asserting defenses under 12 USCA § 2202a. We assume, without deciding, that an issue of compliance with the statute is relevant in this suit on a note. The undisputed evidence, considered in the context of the statutory language, pierces the merits of appellants’ contention that the lender failed to act in good faith by noncompliance with the statutory provisions mandating restructure and thus in denying appellants’ loan restructure application.

The relevant provision, 12 USCA § 2202a (e) (1), states: “If a qualified lender determines that the potential cost to such qualified lender of restructuring the loan in accordance with a proposed restructuring plan is less than or equal to the potential cost of foreclosure, the qualified lender shall restructure the loan in accordance with the plan.”

The uncontroverted evidence, largely via the affidavit of SGFCS’s special asset manager, established that in deciding to deny the Bangses’ restructuring application, SGFCS considered each of the factors listed in 12 USCA § 2202a (d) (1), as required. This included whether or not “the cost to the lender of restructuring the loan [was] equal to or less than the cost of foreclosure” and “whether the borrower [was] applying all income over and above necessary and reasonable living and operating expenses to the payment of primary obligations.” The lender specifically found that restructuring as requested would exceed the foreclosure cost, and that while the Bangses were asking FCB to write down their indebtedness by more than $400,000, the Bangses owned 368.26 acres of unencumbered real property and substantial equity in an additional 679.8 acres which they refused to pledge as additional collateral. The Bangses’ proposals along with the conclusory statement in James Bangs’ affidavit that the cost of restructuring under the Bangses’ proposal was less than the cost of foreclosure, did not meet the evidence of the validity of the lender’s consideration.

Therefore, even if appellants’ “affirmative defense” were permissible under the Act, it was not substantially viable in the face of the lender’s evidence on summary judgment.

2. The decision in Division 1 makes it unnecessary to address appellants’ contentions that they have the right to assert their defense under the due process protection of the Fifth Amendment and under OCGA § 13-5-8.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided June 19, 1990

Rehearing denied July 3, 1990 — Cert applied for.

Ralph L. Phillips, for appellants.

Kirbo & Bridges, David A. Kendrick, for appellee.


text:
    A90A0985.
    PATE v. GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY.
    (395 SE2d 604)
   Birdsong, Judge.

Appellant, Michael A. Pate, appeals the order of the trial court granting summary judgment to appellee railroad.

Appellant and his passenger, Spires, were en route to visit some friends when appellant’s vehicle struck appellee’s train at the 117th car at a railroad crossing. The evidence is in conflict whether the train was moving or stationary at the time; appellant asserts the train was stopped or he would have heard it.

It was about 1:15 a.m. and cloudy. It had rained two or three hours earlier, and appellant testified in his deposition that the pavement was still wet. There was no fog, and there were no other atmospheric conditions which would aífect a driver’s visibility. Appellant had not driven down the road before. He was unsure whether he was driving using his high or low beams, but believed he probably was using high beams. He testified he was traveling at 40-45 miles per hour.

Before approaching the railroad crossing there are three rolling hills but no curves or embankments that would block the view of the crossing. The railroad crossing lies on the road at the bottom of the third hill; the road from the third hill to the tracks is straight and a relatively level downgrade. By appellant’s calculations, it is at least one-tenth of a mile from the top of the third hill to the track. In daylight a train can be seen at the crossing at a distance of approximately 1,100 feet; but in the evening there are no street lights or secondary lights once a driver has crested the third hill. Shrubbery has been cleared from the area since the accident, and the whole train track can now be seen.

At a distance of approximately 579 feet from the crossing there was a refiectorized orange railroad warning sign. Appellant makes no claim that this sign either was not visible from the road or was not in good condition. Appellant made a judicial admission in his deposition that he did not see this sign, and that if he had seen it, he would have recognized the sign, realized there were tracks ahead, slowed down, and stopped. The only reason appellant advances as to why he did not see this warning sign is that he and the passenger were talking.

The next warning sign painted in white paint on the right-lane side of the road was approximately 345 feet from the crossing; this sign was about 52 feet in length. Appellant admits that he did not see this sign and asserts that because it was dark and the pavement was still wet from the rain, “everything was . . . reflecting off the road.”

At a distance of approximately 60-75 feet from the crossing, there was a sign on the right-lane side of the road, since removed, that read “Georgia Law Stop Unsafe R. R. Crossing.” Appellant contends this sign was so old, faded, and full of gunshot holes that appellee concedes it might not have been visible that night. Appellant did not see this sign.

At 43 feet from the crossing, there was a reflectorized red stop sign on the right-lane side. Appellant did not see this sign before the collision.

A white stop bar also was painted across the right lane approximately the same distance from the track as the stop sign, and approximately 30 feet from the track, there was a standard, white, reflectorized, railroad crossbuck sign. Appellant did not see these signs before the collision.

The record also contains a series of photographs showing a train visible at the crossing, during daylight hours, at various distances ranging from 100 to 1,100 feet.

Although appellant was unsure whether his vehicle left any skid marks, the uncontradicted evidence of record reflects that his vehicle left approximately 69 feet of skid marks from the point on the road where the marks started to the point where appellant’s car left the road. The vehicle then traveled, at a slight angle, from the point where it left the road for approximately 42 feet more, crossing a culvert and going airborne before hitting the train; traveling an approximate distance, not counting the distance traveled during perception, recognition and reaction time, of 111 feet.

Although appellant testified in his deposition that there were small trees and high shrubbery near the tracks and that the land has been cleared since the collision, he did not testify that this foliage prevented him from seeing the crossing on the evening of the collision.

At the time of the collision, appellant admits in judicio, by way of his deposition testimony, that he had turned his head toward and was talking with his passenger. The passenger suddenly hollered “[t]here’s a train.” Appellant claims that although he saw only the shadow of the train, and not the train itself, he locked the brakes. He further testified that “when [he] got close enough for [his] headlights to hit [the train], [he] turned to the left to keep from hitting it”; and that he “didn’t actually see [the] train until [his] headlights hit it.” (Emphasis supplied.)

Appellant opined that the reason for the accident was because the train was motionless on the tracks, it was dark at the crossing, and the railroad had not placed any type of flashing lights at the crossing. Held:

1. On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the case sub judice, movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. In ruling upon a motion for summary judgment, the benefit of all reasonable doubt should be given to the opposing party, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. At the onset, we note that appellant first testified unequivocally in his deposition that in getting directions to his friend’s house “[tjhey told me to cross the railroad tracks and go down to the dirt road on the right.” And when asked, immediately thereafter, if he had been told to “[cjross the railroad tracks and [the location] would be the first dirt road to the right,” appellant gave an affirmative reply. But after being confronted with the fact that he then knew about the tracks that night, appellant apparently attempted to recant this testimony. Thereafter he testified, “I’m not saying they definitely told me, because I don’t remember them telling me,” “I’m not going to say they did,” and that he “didn’t remember there [were] railroad tracks there.”

We find that, as to the issue whether appellant had prior knowledge of the existence of railroad tracks on the route he was traveling before he would reach his destination, appellant’s testimony is contradictory within the meaning of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (2) (343 SE2d 680). In a summary judgment case, where either a movant’s or a respondent’s explanation for a contradiction in his evidence is determined to be unreasonable (or no explanation is presented at all), the court must eliminate the favorable portions of the contradictory testimony as it then stands, and construe the evidence as to that issue in favor of the other party. Prophecy Corp., supra; Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383). Accordingly, as to the issue of whether he had been informed, before the collision, of the existence of the railroad crossing somewhere on the route, we will apply the rule of Prophecy Corp. against appellant.

3. Appellant makes no assertions that appellee railroad either failed to erect and maintain the statutorily required crossbuck sign at the highway grade crossing, or failed to give an adequate warning signal as its locomotive approached the crossing. See generally OCGA §§ 46-8-190; 46-8-194; 46-8-196. Nor does the record establish such deficiencies.

In Georgia, “there must be unusual or special circumstances at a crossing before a railroad has the duty to warn of something as starkly obvious as a train; or, conversely, before a driver is excused from not seeing something plainly visible within the range of the statutory headlights requirement. In the absence of such special circumstances, the duty to warn does not arise and the sole proximate cause of the collision is the negligence of the driver.” (Emphasis supplied.) Seaboard Coast Line R. Co. v. Sheffield, 127 Ga. App. 580, 581 (194 SE2d 484).

In determining whether unusual or special circumstances existed within the meaning of Sheffield, the issue whether the train was moving is not dispositive. The most that can be said is that a moving train is easier to hear, and can, under certain conditions, be easier to see due to the intermittent blocking and unblocking of the skyline behind the train as the railroad cars move. But this is merely a factor to be weighed and does not per se render the circumstances existing at a crossing “unusual or special.” “The mere act of stopping railroad cars on a crossing for such a length of time as might be reasonably necessary in the conduct of the railroad’s business would not constitute negligence on the part of the [appellee]. Other facts must be shown, to place on a railroad and its employees the duty to give the traveling public warnings of the presence of the train on the crossing, in addition to that which is given by the train itself.” Atlantic Coast Line R. Co. v. Marshall, 89 Ga. App. 740, 743 (2) (81 SE2d 228). See Wood v. Atlantic Coast Line R. Co., 192 FSupp. 351, 355 (4) (M.D. Ga.), affd. 290 F2d 220 (5th Cir.)

Thus assuming for purposes of the summary judgment issue before us that the train was stopped on the tracks at the time of the collision, this factor standing alone establishes no negligence on the part of appellee railroad. Incidentally, the record is totally silent of any evidence that such stopping, assuming as we do that it in fact occurred, was for any length of time other than that reasonably necessary to perform necessary railroad business.

Appellant, in essence, claims that the totality of the circumstances, including the darkness of the night, the cloudy sky, the wet pavement, the stopped train, and his unfamiliarity with the road, created a jury question as to whether “unusual or special circumstances” existed within the meaning of Sheffield.

We have held in cases where atmospheric conditions of fog, murk, smoke, mist, or rain affected the driver’s vision so as to prevent him from seeing a crossing already occupied by a train until it was too late to stop, that the driver’s familiarity or lack of familiarity of the presence and location of the crossing is a determinative factor; but, where there is nothing shown which prevented the driver from seeing the crossing in time to stop if it was occupied and obstructed, whether the driver was familiar with the crossing is hardly material. Georgia Northern R. Co. v. Stains, 88 Ga. App. 6, 11-12 (75 SE2d 833), overruled on other grounds, Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159, 164 (91 SE2d 135); compare Georgia Northern R. Co. v. Dalton, 133 Ga. App. 34, 36 (209 SE2d 669). In this instance, we find appellant’s unfamiliarity with the road to be merely an additional factor to be weighed in determining whether a genuine issue exists as to whether the crossing was “unusual or special.” In this regard, while appellant may have been unfamiliar with the road, he was on notice that a railroad crossing would be situated across the road before he reached his destination. See Division 2 above. Moreover, a driver who is unfamiliar with the road he is traveling, as a general rule, should exercise even greater caution and alertness, so as to be prepared for the unknown and unexpected.

Further, the evidence is uncontradicted that it was the passenger and not appellant who first saw the train and sounded the warning, and that the train was visible at a distance beyond the statutory headlight requirement for low beams. See generally OCGA § 40-8-30 (2) (low beams must reveal vehicles at a distance of at least 100 feet).

Additionally, appellant admits that he was talking with and looking at the passenger when the train was spotted by the passenger. Appellant further maintains even then that he saw only the train’s shadow, and could not actually see the train until it subsequently was within the range of his headlights, at which time he veered his car left to avoid a head-on collision. These admissions uncontrovertedly establish that the train was visible to an alert person before appellant saw it; and, that the presence of the train could be detected before the train was in the range of headlights being used on appellant’s vehicle. Compare Suib v. Seaboard Systems R., 185 Ga. App. 713 (365 SE2d 842) and Wood v. Atlantic Coast Line R. Co., supra at 353 .(2). See generally OCGA § 40-8-30 (2).

Viewing the attendant circumstances in their entirety, we find, as a matter of law that “unusual or special circumstances” did not exist at the crossing, within the meaning of Sheffield, supra; and accordingly, appellee railroad had no duty to warn appellant of something as starkly obvious as a train.

“[S]ummary judgment law does not require the defendant to show that no issue of fact remains, but rather tha[t] no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Citations and punctuation omitted.) McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795).

Decided June 19, 1990

Rehearing denied July 3, 1990.

P. Dewey Gill, Robert H. Malone III, for appellant.

J, Steven Stewart, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper. J., concur.


text:
    A90A0094.
    PROCTOR & GAMBLE PAPER PRODUCTS COMPANY v. YEARGIN CONSTRUCTION COMPANY.
    (396 SE2d 38)
   Beasley, Judge.

McDowell, an employee of Yeargin Construction Company, was injured while working as a welder at Proctor & Gamble’s (P&G) plant. McDowell sued P&G for failure to properly maintain its premises. P&G filed a third party complaint against Yeargin seeking indemnification pursuant to the contract between them. Yeargin won summary judgment.

The indemnification clause states: “Seller [Yeargin] agrees to protect, defend, indemnify and save Buyer [P&G] harmless from any and all judgments, . . . settlements and claims on account of . . . personal injury, . . . which may be sustained by . . . its employees . . , arising out of or in connection with work done whether such loss, damage, injury or liability is contributed to by the negligence of Buyer [P&G] or its employees (except that this indemnity shall not apply to damages, injuries, or the costs incident thereto found to be caused by the sole negligence of Buyer [P&G]). . . .” (Emphasis supplied.)

The evidence favoring P&G as the summary judgment opponent shows that McDowell and another Yeargin worker were going to the basement of a P&G building to weld a pipe. The building was used to manufacture paper and the process resulted in water being splashed onto the floor. Before entering the basement, where a drain had apparently clogged, McDowell was told by P&G employees that there were 2 to 3 inches of standing water and toilet paper clumps on the floor.

McDowell walked through the water at least once before he fell and was injured. He felt grease under the water when he fell. McDowell and his co-worker had discussed returning to the Yeargin work shack to get rubber boots but did not do so. He had never been specifically told by Yeargin that rubber boots should be worn in water covered areas, but he was wearing Wolverine work boots with rubber neoprene soles. He knew he should not weld in water without rubber soles.

The claim is that injury was caused by negligent maintenance of the floor by P&G. The initial defense was contributory negligence of McDowell. After Yeargin’s motion for summary judgment was filed, P&G expanded its defense to assert that injury was the result of “negligence on the part of a person or persons other than defendant-third party plaintiff, and plaintiff is not entitled to a recovery from defendant-third party plaintiff. ...”

P&G also contends that “construction safety,” or site safety, was the sole responsibility of Yeargin, that failure to have an effective safety program was at least partly to blame, and that a factual issue remained as to whether this was a 'cause of the injury. The referenced contract clause provides: “Construction safety is solely the responsibility of the construction contractor. This will include the establishment and execution of an effective safety program incorporating the best safety practices known to the industry and/or required by applicable regulatory or advisory agencies.”

P&G’s answers to interrogatories state: “There is no one other than P&G and its employees responsible for maintenance, repair and/or ‘clean-up’ of the areas in which Yeargin Construction employees were working on November 25, 1985, with the exception of Year-gin employees being responsible for cleaning up.their own areas in which they were working at the time. . . . Yeargin Construction Company employees are responsible for clean-up in whatever area they are working at the P&G plant, and if Yeargin Construction Company were responsible for any backup of the drains in the basement of the P&G plant, they would be responsible for the clean-up of said area.” (Emphasis supplied.)

McDowell deposed that his understanding of the cleanup requirements was that Yeargin employees were only responsible for cleaning up the area where they actually worked. No welding had been done in the area where he fell. They were merely preparing to work.

There was no evidence to support P&G’s allegation that McDowell or other Yeargin employees might have been responsible for the stopped drain. Instead, it is undisputed that as McDowell was first entering the building, several P&G employees advised him the room was covered with several inches of water.

1. “In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a [third party] defendant-movant is required to pierce the allegations of the [third party] complaint and to establish as a matter of law that the [third party] plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981) ; [cits.]” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

Decided July 3, 1990.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, for appellant.

Gardner, Willis, Sweat & Goldsmith, Robert D. Goldsmith, Hodges, Erwin, Hedrick & Kraselsky, William A. Erwin, for appellee.

“The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cit.]” Kelly v. American Fed. Savings &c. Assn., 178 Ga. App. 542 (1), 543 (343 SE2d 755) (1986); Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); Coleman v. McDonald’s Corp., 185 Ga. App. 628, 629 (365 SE2d 282) (1988).

P&G produced bare allegations that a better safety program would have made a difference. On the other hand, McDowell was wearing rubber-soled work shoes. Neither did P&G produce any evidence that the clogged drain was due to any action or inaction by Yeargin.

2. “Construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.” OCGA § 13-2-1. Generally questions of negligence and proximate cause are reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176 (1) (342 SE2d 497) (1986).

P&G’s only evidence was of contributory negligence of McDowell. “If only contributory negligence on the part of the employee [of the indemnitor] ... is shown and no showing is made that the employer [indemnitor] is negligent in any other way, then the contract may not be construed in such a manner as to indemnify the [indemnitee] for its own acts of negligence. [Cit.]” Binswanger &c. Co. v. Beers &c. Co., 141 Ga. App. 715, 719 (6) (234 SE2d 363) (1977); American Cyanamid Co. v. Carter, 164 Ga. App. 538, 540 (2) (298 SE2d 276) (1982) ; cf. Terrace Shopping Center Joint Venture v. Oxford Group, 192 Ga. App. 346 (384 SE2d 679) (1989); compare Central of Ga. R. Co. v. Ga. Ports Auth., 190 Ga. App. 518, 519 (379 SE2d 540) (1989).

Yeargin was entitled to summary judgment.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.