author: McMurray, Presiding Judge. Sognier, Judge,

text:
    74643.
    STUDDARD v. THE STATE.
    (363 SE2d 837)
   McMurray, Presiding Judge.

Defendant was indicted, tried and convicted of armed robbery. He appeals. Held:

1. Defendant contends the trial court erred in refusing to give his requested charge on the lesser offense of theft by taking. In this regard, defendant argues that the theft by taking issue was raised by his testimony and that the refusal of the trial court to charge the jury on that issue deprived him of his sole defense. We disagree.

The evidence relied upon by the State can be summed up from testimony by the victim, assistant manager of a Majik Market, as follows: “I noticed the feet coming, the lower part of the person. I looked up and I seen his mask and sunglasses; and when he come in the door he had the gun on me. He says, give it to me. I said, give you what. He said give me all your money, and I mean all your money ... I said, I don’t know how you want it, but here it is. I opened the cash drawer and set the cash drawer, the inside of the cash drawer, on the counter. He picked it up and he backed out with the gun.” It was about 2:15 a.m.

The victim recognized defendant’s voice because she had had previous problems with him. On other occasions, defendant picked up items in the store and left without paying for them. Defendant’s mother or grandmother paid for the items on those occasions.

Defendant testified on his own behalf. He acknowledged that he entered the Majik Market in the early morning hours with a bandanna and sunglasses on his face, and admitted that he made a demand for the money: “I said, give me the money, I want the money . . . She gave it to me. She just handed me the cash drawer.” He denied that he used a gun; but he admitted that he had one on his person: “I had the gun in my back pocket. I didn’t pull the gun out.”

In our view, the evidence did not warrant a charge on the lesser offense of theft by taking. Although defendant denied pointing a gun at the victim, he admitted that he entered the Majik Market at a wee hour, that his face was covered and that he demanded the money in the cash register. This evidence is indicative of robbery by intimidation; it does not suggest theft by taking: “Intimidation is constructive force, ‘and where property is extorted by fear, it is robbery, although it be taken under color of a gift.’ See Long v. State, 12 Ga. 293, 320, 321. We quote further from this case (p. 321): ‘The taking must be against the will of the person robbed, yet it may seem to be with his consent, when it is really delivered from fear. If it is apparently voluntary, yet from the facts and circumstances it is from fear, it is still robbery.’ In Johnson v. State, 1 Ga. App. 729, 730 (57 S. E. 1056), Judge Powell quotes from the Long case as follows: ‘The rule laid down gives the safest criterion for their ascertainment, that is, the circumstances of terror are such as in common experience are likely to create apprehension of danger. If, according to common experience, the apprehension of danger, growing out of the circumstances, is so great as to constrain a man to part with his property for the safety of his person, then they are sufficient to make the taking violent, and a robbery. The place, the time, and the number of the assailants are to be considered — as a retired place, at night, and a number so great as to make the idea of resistance impracticable. . . . Threats by word or gesture are of themselves sufficient to imply violence, and are the most usual means of intimidation.’ ” Edenfield v. State, 41 Ga. App. 252, 254-255 (152 SE 615).

The trial court instructed the jury on the lesser included offense of robbery by intimidation. Since evidence of theft by taking was lacking, it cannot be said that the refusal to charge the jury on theft by taking was error. Grant v. State, 161 Ga. App. 403, 404 (4) (288 SE2d 118). Compare Hensley v. State, 228 Ga. 501, 502 (2) (186 SE2d 729). “A charge which is not applicable to the facts should not be given. Collins v. Dixon, 72 Ga. 475 (2) (1884).” Todd v. State, 149 Ga. App. 574, 575 (2) (254 SE2d 894).

2. Defendant assigns error upon the refusal of the trial court to charge the jury: “[A]n essential element of an armed robbery is that an offensive weapon be used concomitant to a taking which involves the use of actual force or intimidation against another person. The mere presence of an offensive weapon is insufficient. The State must prove this element beyond a reasonable doubt. If the State fails to do so, then it is your duty to return a verdict of not guilty as to armed robbery.” We find no error.

The trial court charged the language of the armed robbery Code section: “A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). The court also instructed the jury that it was the State’s burden to prove each and every element of the offense beyond a reasonable doubt.

The language of the Code section “clearly contemplates that the offensive weapon be used as a concomitant . . .” Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30). Coupled with the trial court’s charge on the burden of proof, it fairly covered defendant’s request. Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218).

3. In his final enumeration of error, defendant contends that an in-custody statement made approximately one hour after his arrest was admitted into evidence improperly. In this regard, defendant argues that the statement was not made voluntarily because his state of mind was altered by drugs and alcohol. In view of the investigating officer’s testimony that defendant responded coherently to questioning, that he appeared to know what was occurring, that no odor of alcohol emanated from his person and that he did not appear to be under the influence of drugs, it cannot be said the trial court erred when it determined that defendant’s statement was admissible. Durden v. State, 250 Ga. 325, 327 (2) (297 SE2d 237); Stephens v. State, 170 Ga. App. 342, 343 (317 SE2d 627).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Parley, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.

Sognier, Judge,

dissenting.

I respectfully dissent. The majority holds that the evidence in this case is indicative of robbery by intimidation, and does not suggest theft by taking. This overlooks the fact that appellant’s sole defense was that he committed theft by taking, not armed robbery. Further, I find no evidence of intimidation in the record. The victim did not testify that she was frightened or intimidated by appellant; on the contrary, she recognized appellant, who had come in the store on previous occasions and taken items without paying for them. On those occasions, appellant’s grandmother or mother would pay for the items.

Our Supreme Court has held that OCGA § 16-8-41 (a), which defines the offense of armed robbery, “clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person.” (Emphasis supplied.) Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974); Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983). Since appellant was tried for a violation of § 16-8-41 (a), robbery by actual force or intimidation would involve use of the weapon. Id. Therefore, appellant’s testimony that he did not use a weapon could only raise the issue of theft by taking.

Decided December 2, 1987

Rehearing denied December 16, 1987

John W. Lawson, Stephen P. Fuller, for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Barbara Conroy, Assistant District Attorneys, for appellee.

As stated by this court in another case, “[w]hile we, like the trial court or jury, might find [appellant’s testimony] incredible, issues of credibility are for the factfinder, the jury, not for the court as a matter of law. The failure to give the requested charges which in reality formed the basis of [appellant’s] sole defense, effectively removed this issue from the jury’s determination. ‘An instruction which, while stating the nature of the charge or of the evidence against the accused, omits to charge the jury as to the defense set up by him is error, unless the defense upon which the accused relies is properly submitted to the jury in other parts of the charge .... Where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense, so specifically that the jury will . . . do so intelligently, under pertinent rules of law and evidence, practically withdraws that defense, and to that extent prejudices the defendant’s right to a fair and impartial trial.’ [Cit.]” Anglin v. State, 182 Ga. App. 635, 637 (2) (356 SE2d 564) (1987).

Since appellant’s sole defense was that he committed the offense of theft by taking, not robbery, the trial court’s failure to give his requested charge on the lesser offense effectively withdrew appellant’s defense and deprived him of his right to a fair and impartial trial. Id. Accordingly, I would reverse appellant’s conviction and remand the case for a new trial.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    74733, 74769.
    LEADER NATIONAL INSURANCE COMPANY v. GAYDON et al.
    (363 SE2d 859)
   Carley, Judge.

On March 14, 1984, appellee Carter Gaydon obtained an insurance policy from appellant Leader National Insurance Company, financing his policy through a premium finance company, Siuprem, Inc. On May 19, 1984, Siuprem, Inc. cancelled the policy as the result of appellee’s failure to pay the premium. In so doing, Siuprem, Inc. utilized the provisions of former OCGA § 33-22-13 (Ga. L. 1969, pp. 561, 568).

As the result of an incident which occurred on September 1, 1984, a personal injury action was filed against appellee. Appellee then filed this third-party action against appellant, alleging that there had been no effective cancellation of his insurance policy. Appellee and appellant filed cross-motions for summary judgment. The trial court granted summary judgment in favor of appellee and denied appellant’s motion for summary judgment. Although the evidence of record showed that Siuprem, Inc. had acted to cancel appellee’s policy pursuant to and in full compliance with former OCGA § 33-22-13, the trial court held that the effective cancellation of appellee’s policy would also have required compliance on the part of appellant with the notification provisions of former OCGA § 33-24-44 (Ga. L. 1975, p. 1242). Since appellant had failed to comply with that provision, the trial court found that there had been no effective cancellation of appellee’s policy.

Pursuant to OCGA § 9-11-56 (h), appellant filed a direct.appeal from the grant of summary judgment to appellee. Although appellant’s separate application to this court for an interlocutory appeal from the denial of its cross-motion for summary judgment was superfluous (see Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980), we granted it. Accordingly, the two appeals from the trial court’s order are hereby consolidated for disposition in this single opinion. The sole issue for resolution is whether, absent appellant’s compliance with former OCGA § 33-24-44, there was an effective cancellation of appellee’s policy of insurance.

1. As previously indicated, only Siuprem, Inc. acted to cancel appellee’s policy. Premium finance companies, such as Siuprem, Inc., are not in the business of insurance. However, it has been recognized that their role forms an “ ‘integral part of the insured-insurer relationship.’ [Cit.]” Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 86-87 (2) (354 SE2d 852) (1987). As also previously indicated, it is former OCGA § 33-22-13 that constitutes the applicable statutory provision with regard to the procedure for cancellation of such policies as were financed by premium finance companies. That former provision provided, in relevant part, as follows: “(a) When a premium finance agreement contains a power of attorney enabling the premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be canceled by the premium finance company unless the cancellation is effectuated in accordance with this Code section, (b) Not less than ten days’ written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract unless the default is cured within such ten-day period. A copy of said notice shall also be sent to the insurance agent or insurance broker indicated on the premium finance agreement, (c) After expiration of such ten-day period, the premium finance company may thereafter in the name of the insured cancel such insurance contract or contracts by mailing to the insurer a notice of cancellation; and the insurance contract shall be canceled as if the notice of cancellation had been submitted by the insured himself, but without requiring the return of the insurance contract or contracts. The premium finance company shall also mail a valid notice of cancellation to the insured at his last known address and to the insurance agent or insurance broker indicated on the premium finance agreement.” (Emphasis supplied.) Appellee’s premium financing agreement did contain a power of attorney whereby Siuprem, Inc. was authorized to cancel, in the name of appellee, the policy with appellant. In acting to cancel appellee’s policy, Siuprem, Inc. fully complied with all requirements of former OCGA § 33-22-13.

However, appellee urges and the trial court found that the cancellation of the policy was ineffective because there had not been additional compliance on the part of appellant with former OCGA § 33-24-44. That statute provided, in relevant part, that an insurer was to give written notice hot less than 10 days prior to the cancellation of a policy “for failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums for the policy or any installment of premiums, whether payable directly to the insurer or indirectly under any premium finance plan or extension of credit. . . .” Former OCGA § 33-24-44 (e). However, subsection (a) of former OCGA § 33-24-44 provided: “Except as otherwise provided in this chapter, cancellation of a policy which by its terms and conditions may be canceled by the insurer shall be accomplished as prescribed in this Code section.” (Emphasis supplied.) Appellee’s policy was, of course, not cancelled by appellant, but by Siuprem, Inc., acting in appellee’s name pursuant to the power of attorney. Thus, we must decide if compliance by appellant with former OCGA § 33-24-44 (e) was required even though it had not initiated the cancellation of appellee’s policy.

The requirements of former OCGA § 33-24-44 “were designed to place upon the insurer the responsibility of taking adequate steps to do all within its power to make certain [its] insured was placed on notice that [his] insurance coverage had been cancelled.” Favati v. Nat. Property &c. Ins. Co., 153 Ga. App. 723, 724-725 (266 SE2d 359) (1980). Any need for the insurer to notify the insured of the cancellation of his policy would not exist where the cancellation had been initiated by the insured himself rather than by the insurer. Clearly, former OCGA § 33-22-13 provided a means whereby a cancellation on behalf of the insured could be accomplished. That statute provided that a premium finance company, which had secured a power of attorney to cancel a policy, could do so by acting in the name of the insured after giving at least 10 days’ notice to the insured that he was in default of his obligation to pay premiums for the coverage he had secured. On the other hand, former OCGA § 33-24-44 clearly provided a means whereby the insurer could take the initiative and cancel a policy for failure of the insured to pay for his coverage. Thus, if the premium finance company lacked the authority to cancel the policy pursuant to former OCGA § 33-22-13 or if the premium finance company had that authority but had failed to use it, the insurer could avail itself of the provisions of former OCGA § 33-24-44 and undertake the cancellation of a policy for which it had not been paid.

Under the trial court’s interpretation of the former statutory provisions, before any cancellation initiated by a premium finance company could become effective, a defaulting insured would be entitled to notice from the premium finance company pursuant to OCGA § 33-22-13 that he had 10 days within which to cure the default, a notice pursuant to the same Code section that the policy had been cancelled, and an additional 10-days’ notice from the insurer pursuant to former OCGA § 33-24-44 (e). It is clear that compliance by the premium finance company with former OCGA § 33-22-13 would obviate any necessity for the insurer’s compliance with former OCGA § 33-24-44 (e). Pursuant to former OCGA § 33-22-13, the premium finance company was authorized to give the defaulting insured 10-days’ notice prior to cancellation of his policy for failure to pay premiums. If the defaulting insured did not then cure his default after such notice had been sent, the premium financing company was then authorized, in the name of the insured himself, to cancel the policy and “the insurance contract shall be canceled as if the notice of cancellation had been submitted by the insured himself. . . .” (Emphasis supplied.) Former OCGA § 33-22-13 (c). It would be illogical to require that an insurer in receipt of an authorized notice of cancellation in the name of the insured himself also give 10-days’ notice to that insured that the insurer proposed to cancel his policy.

Former OCGA § 33-22-13 simply provided a method by which cancellation of an insurance policy could, in effect, be initiated on behalf of an insured, which method was intended to be an alternative to the insurer’s initiation of cancellation of the policy on its behalf pursuant to former OCGA § 33-24-44. “ ‘[I]t is well established that a policy of insurance may be cancelled at any time before loss, by an agreement between the parties, and that such cancellation may be by the consent of the parties, express or implied from the circumstances, independently of the terms of the policy.’ [Cit.] This is the rule in Georgia. . . .” Davidson v. State Farm &c. Ins. Co., 161 Ga. App. 21, 24-25 (2) (288 SE2d 832) (1982). Cancellation of a policy pursuant to subsection (c) of former OCGA § 33-22-13 was based upon the consent of the parties, as evidenced by the submission of an authorized notice of cancellation in the name of the insured after failure of that insured to cure the default within 10 days from the date of notification pursuant to subsection (b) of that Code section. That being true, it would not be necessary that the parties comply with any other provision, such as former OCGA § 33-24-44 (e), “ ‘ “applicable to unilateral cancellation.” [Cit.]’ [Cit.]” Davidson v. State Farm &c. Ins. Co., supra at 26 (2).

Reliance by appellee and by the trial court upon Balboa Ins. Co. v. Hunter, 165 Ga. App. 273 (299 SE2d 91) (1983) and Thico Plan v. Ashkouti, 171 Ga. App. 536, 538 (3) (320 SE2d 604) (1984) is misplaced. Both of those cases dealt with subsection (c) of former OCGA § 33-24-44 and the requirement established therein for the return of unearned premiums following cancellation initiated by the insurer. Neither case involved subsection (e) of former OCGA § 33-24-44 and its requirement that the insurer give the insured 10-days’ notice of its intent to cancel. Appellee makes no contention that the cancellation of his policy is ineffective for any reason involving the return of unearned premiums to him and the consequent application of subsection (c) of former OCGA § 33-24-44. In Balboa, the policy was can-celled by the insurer, not the premium finance company. Balboa merely stands for the proposition that when an insurer elected to cancel a policy pursuant to former OCGA § 33-24-44, it was required to comply with all applicable provisions of that statute, including the provisions for the return of unearned premiums. Entirely unlike Balboa, supra, appellee’s policy was cancelled by the premium finance company acting in his own name because, after notice, he did not pay the premiums that were earned by appellant. Entirely unlike Thico Plan, supra, appellee makes no contention that Siuprem, Inc.’s cancellation of his policy was wrongful and that Siuprem, Inc. failed to return to him unearned premiums that he had paid to it. Appellee’s only contention is that he was not sent notice from appellant pursuant to former OCGA § 33-24-44 (e) in addition to the notice that he was sent by Siuprem, Inc. pursuant to former OCGA § 33-22-13. Nothing whatsoever in either Balboa, supra, or Thico Plan, supra, is inconsistent with our previous analysis that appellee’s contention in this regard is erroneous.

Existing OCGA § 33-24-44 (e) now provides, in part, as follows: “Notice to the insured shall not be required by this Code section when a policy is canceled by an insurance premium finance company under a power of attorney contained in an insurance premium finance agreement which has been filed with the insurer in accordance with the provisions of Chapter 22 of this title.” From the fact that the existing statute now specifically negates any requirement of such duplicative notice as was urged by appellee, it does not necessarily follow that such notice was an affirmative element of the former statutory provision. “ ‘From the addition of words it may be presumed that the legislature intended some change in the existing law; but it is also presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication. [Cit.]’ [Cit.]” C. W. Matthews Contracting Co. v. Capital Ford Truck Sales, 149 Ga. App. 354, 356 (254 SE2d 426) (1979). Our previous discussion of the extent to which appellant was obligated to give notice to appellee of the cancellation of his policy is based entirely upon an interpretation of the former statutory provisions that were in effect at the times applicable to these appeals. As indicated in that discussion, under those former statutory provisions, there was no requirement that appellant give appellee an additional 10-days’ notice prior to the effective cancellation of his policy. It follows that the effect of the General Assembly’s enactment of existing OCGA § 33-24-44 (e) “was merely to make explicit that which the [former] statutory provisions had previously made only implicit. Thus, the result of the enactment of [existing] OCGA § [33-24-44 (e)] was only to change the clarity with which the statute originally spoke. . . .” Colwell v. Voyager Cas. Ins. Co., 184 Ga. App. 842, 844 (363 SE2d 310) (1987).

Decided December 4, 1987

Rehearing denied December 16, 1987

Adele P. Grubbs, J. Milton Grubbs, George A. Edmund, for appellant.

William R. Johnson, Hall F. McKinley III, for appellees.

It is clear that appellee’s policy of insurance was effectively can-celled by the premium finance company for his nonpayment of premiums pursuant to former OCGA § 33-22-13. The trial court erred in granting summary judgment in favor of appellee and in denying appellant’s motion for summary judgment.

2. Our holding in Division 1 of this opinion addresses the applicability of former OCGA § 33-24-44 because the parties and the trial court in this case relied exclusively upon that provision. However, all that we have held would likewise be applicable had reliance been upon the provisions of .former OCGA § 33-24-45.

Judgments reversed.

Benham, J., concurs. Banke, P. J., concurs in judgment only.


author: Banke, Presiding Judge.

text:
    74766.
    MARTINI v. NIXON et al.
    (364 SE2d 49)
   Banke, Presiding Judge.

The appellant sued the appellees to recover for personal injuries she allegedly sustained when a vehicle she was driving was struck by a vehicle being driven by appellee Nixon. The case was tried before a jury, which returned a verdict for the appellees. The trial court denied the appellant’s subsequent motion for new trial, and this appeal followed. Held:

1. The appellant asserts that the evidence demanded a verdict in her favor because there was no evidence of negligence on her part, whereas there was evidence that Nixon had pled guilty to the offense of improper lane usage in connection with the collision. Nixon testified that the driver of the car in front of her made an abrupt left turn without giving a turn signal, forcing her to apply her brakes suddenly to avoid a collision with that vehicle, with the result that her vehicle went out of control and collided with the appellant’s vehicle. The jury could conceivably have inferred from this testimony that the collision occurred notwithstanding the exercise of due care on Nixon’s part. Since her plea of guilty to improper lane usage did not constitute an irrebuttable admission that the collision was the proximate result of negligence on her part, see Williams v. Calhoun, 175 Ga. App. 332 (333 SE2d 408) (1985), and since the evidence must be viewed in the light most favorable to the jury’s verdict, see Warren v. Cox, 168 Ga. App. 818, 819 (310 SE2d 569) (1983), we therefore conclude that the trial court did not err in denying the appellant’s motion for directed verdict, nor in denying her motion for new trial on the general grounds.

2. The appellant contends that the trial court erred in charging the jury on the doctrine of legal accident. We agree. In Chadwick v. Miller, 169 Ga. App. 338 (312 SE2d 835) (1983), we held that a charge on legal accident is not authorized where a defendant contends that the negligence of any other person, whether or not a party to the suit, was a proximate cause of the plaintiff’s injuries. The appellees’ defense in the present case was that the driver immediately in front of appellee Nixon had caused the collision by making an abrupt left turn without giving a turn signal. However, citing Jackson v. Martin, 89 Ga. App. 344 (79 SE2d 406) (1953), they assert that a charge on accident was nevertheless authorized because the jury could have determined from the evidence that the collision resulted from the wetness of the roadway rather than from negligence on the part of any individual. We find the appellees’ reliance on Jackson v. Martin to be inapposite. In that case, the evidence showed that the collision occurred when “for some unexplained reason,” the defendant’s car slid across the wet pavement into the plaintiff’s lane of traffic. In the case before us, the appellees have consistently asserted that the precipitating cause of the collision was the failure of the driver in front of Ms. Nixon to make a left hand turn signal, thereby forcing Ms. Nixon to apply her brakes suddenly to avoid a collision with that vehicle.

“The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error.” Chadwick v. Miller, supra, 169 Ga. App. at 344. Under the appellees’ version of events, the collision did not take place in the absence of negligence on the part of another person. It follows that the charge on accident constituted reversible error.

We reject the appellees’ contention that the appellant waived this asserted error by failing to make a proper objection to the instruction in accordance with OCGA § 5-5-24 (a). An examination of the transcript reveals that at the conclusion of the charge the appellant made the following objection: “We except to the charge on accident. We think that the facts couldn’t possibly justify a charge that the accident happened as a result of causes not due to the negligence of either party.” While not technically perfect, this language was sufficient to enable a “reasonable” trial judge to understand that the charge was objected to on the ground that it was not adjusted to the evidence, so as to “enabl[e] [the judge] to rule intelligently on [that] specific point.” Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976).

3. The appellant further contends that the trial court erred in charging the jury on the doctrine of sudden emergency. Such an instruction is authorized where there is evidence that a party “was required to make quick judgments on the immediate action to be taken without having time for mature reflection.” Reece v. Callahan, 164 Ga. App. 131, 132 (296 SE2d 425) (1982). As there was such evidence in this case, this enumeration of error is without merit.

4. The appellant contends that the trial court erred in charging the jury on contributory and comparative negligence. A review of the transcript reveals that the trial court did not in fact instruct the jury on contributory negligence. The charge on comparative negligence was apparently based on evidence introduced by the appellees tending to show that at least some of the injuries sustained by the appellant were attributable to her failure to use her seatbelt.

It has been strongly suggested by this court that a charge on comparative negligence is appropriate under such circumstances, where the jury is clearly instructed “that it [cannot] consider the failure to use an available seatbelt on the issue of liability” but only on the issue of “the amount of damages to be recovered.” Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154, 155 (342 SE2d 352) (1986). The charge on comparative negligence given by the trial court in the present case was not limited in such manner, nor was it tied directly to the evidence relating to the effect of the appellant’s failure to use her seatbelt. As a result, “this instruction could have led the jury into determining that the fault of the [appellant] and [appellees] was equiponderant, resulting in a finding for the [appellees].” Steedley v. Snowden, 138 Ga. App. 155 (1), 158 (225 SE2d 703) (1976). We must accordingly agree that the charge on comparative negligence, as given, was erroneous.

Decided November 5, 1987

Rehearings denied November 19, 1987 and December 15, 1987

Taylor W. Jones, Kathleen V. Duffield, for appellant.

William S. Goodman, Benjamin H. Terry, for appellees.

5. The appellant contends on appeal that the trial court erred in allowing the appellees to call as a witness a physician who had not been listed as a witness on the pre-trial order. However, it appears that the appellant waived this objection by failing to raise it at trial. See Boatwright v. Eddings, 180 Ga. App. 742 (350 SE2d 291) (1986).

6. Finally, the appellant contends that the trial court erred in allowing the appellees to introduce three exhibits. One of these was a personal history sheet which had been compiled by the appellant in connection with a psychiatric evaluation and which allegedly contained a prejudicial reference to her insurance coverage. The other two were medical records which allegedly contained inadmissible hearsay. Having reviewed these exhibits, we conclude that, in the context of the evidence and of the issues being tried, it is unlikely that their admission contributed to the jury’s verdict. Since the appellant must show harm as well as error to prevail, see Ideal Pool Corp. v. Champion, 157 Ga. App. 380 (6) (277 SE2d 753) (1981), this enumeration of error consequently establishes no independent ground for reversal.

Judgment reversed.

Carley and Benham, JJ., concur.


author: Sognier, Judge. McMurray, Presiding Judge,

text:
    74874.
    ALIMENTA PROCESSING CORPORATION v. SOUTH GEORGIA PECAN COMPANY.
    (364 SE2d 84)
   Sognier, Judge.

Alimenta Processing Corporation (Alimenta) brought suit to recover for water damage to peanuts stored by Alimenta in a cold storage warehouse owned and operated by South Georgia Pecan Company (South Georgia), the complaint alleging both negligence and breach of contract. The trial court granted summary judgment in favor of South Georgia, and Alimenta appeals.

The record reveals that large quantities of peanuts were stored by appellant in appellee’s warehouse, over 900,000 pounds of which sustained moisture damage from rainwater which penetrated the warehouse through the roof. The parties’ rights and responsibilities in regard to the loss were governed by a written lease contract, the interpretation of which the trial court found was controlled by the Supreme Court’s holding in Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27 (262 SE2d 794) (1980). We do not agree- that Tudexo Plumbing is controlling here, and we therefore reverse.

In Tuxedo Plumbing the Supreme Court held that in the circumstances presented there, “ ‘where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of loss and not to liability on the part of the opposing party.’ ” Id. at 28. We do not find that the evidence in this case demonstrates without conflict a mutually exculpatory agreement. Paragraph 7 of the lease agreement contains three distinct provisions. The first provides that appellant “shall keep its inventory and property insured against damages from all perils in such amounts as [appellant] shall deem necessary and adequate.” The word “shall” as used in this context is mandatory, and thus appellant was required to insure its stored property. Had paragraph 7 ended here, we would agree with the trial court that Tuxedo Plumbing is controlling. However, because of the remaining portions of paragraph 7, we cannot agree with the trial court that the rule enunciated in Tuxedo Plumbing applies to a contract such as the one here, where a contrary intent is so obviously expressed. The court in Tuxedo Plumbing, supra at 28, adopted a rule which it acknowledged had been recognized by numerous authorities, and which was itself formulated to give effect to that construction of a contract between “reasonable businessmen” which is “sensible and reasonable.” Mayfair Fabrics v. Henley, 234 A2d 503, 507 (3, 4) (N.J. 1967). It does the rule no justice to apply it in circumstances where its application fractures the meaning of an otherwise sensible agreement.

The second portion of paragraph 7 purports to release and indemnify appellee from liability for damage to appellant’s stored property not covered by insurance, when the damage is due to external causes, provided that appellee’s own failure to comply with contract provisions did not contribute to the damage. This bespeaks the intention of the parties to hold appellee liable for damage not covered by appellant’s insurance if appellee’s actions or omissions did contribute to the damage. After all, had the parties contemplated that in the event of loss they would look solely to appellant’s required property insurance in all circumstances, this portion of paragraph 7, as well as various other provisions in the lease (imposing a duty on appellee to maintain and repair the roof, provide safeguards against damage from condensation, and the like) would not have been necessary. “The cardinal rule of construction is to ascertain the intention of the parties to the contract; and this intention is to be gathered from the entire contract, considering each provision in connection with the others, and not giving the contract a construction which entirely neutralizes one provision if it is susceptible of another which gives effect to all of its provisions. [Cit.]” Drake v. Wayne, 52 Ga. App. 654, 660 (184 SE 339) (1936). See also OCGA § 13-2-2 (4). Construing the first and second portions of paragraph 7 so as to harmonize them, we find the agreement contemplated that appellant was required to purchase property insurance, and should loss or damage occur, the parties would look solely to the insurance so long as the loss or damage was not occasioned or contributed to by appellee’s failure to carry out its contractual duties. However, should the insurance not cover the entire loss, if appellee caused or contributed to the loss or damage by breaching a contractually imposed duty, appellee may not escape liability. It follows that appellee is not entitled to judgment as a matter of law.

Moreover, the third portion of paragraph 7 may not be ignored. That provision requires appellee to provide and maintain both “general liability insurance and a warehouse legal liability insurance policy in form and substance acceptable to [appellant] . . .” (Emphasis supplied.) It is clear that “general liability insurance” does not cover the type of loss sustained here. However, we are unable to discern from the present record whether appellee’s required “warehouse legal liability insurance” covers losses to appellant’s property, as appellant argues, or merely protects appellee against liability from third parties, as argued by appellee (and if the latter, how it differs from “general liability insurance,” since both are specifically required). An issue of fact remains in this regard, which is material, because if the “warehouse legal liability insurance” provided by appellee covers damage to appellant’s property, it may be looked to by appellant even if it was the intent of the parties to look solely to insurance, as envisioned in Tuxedo Plumbing, supra. This issue may perhaps be resolved by looking at the policy actually purchased by appellee. Further, when this factual issue is decided, if the “warehouse legal liability insurance” is found to cover damage to appellant’s property, an ambiguity exists in the lease agreement as to how the parties intended the risk to be allocated between the two required insurance policies which cover the loss.

Since appellee is not entitled to judgment as a matter of law, and issues of fact remain to be resolved, we reverse the trial court’s grant of summary judgment to appellee. See generally Bland v. Ussery, 172 Ga. App. 131, 132 (322 SE2d 335) (1984).

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

Provision 7 of the lease agreement provides: “TENANT shall keep its inventory and property insured against damages from all perils in such amounts as TENANT shall deem necessary and adequate. To the extent not covered by said insurance policy, TENANT does hereby release and indemnify LANDLORD from any and all damages that may occur to TENANT’S inventory and property on the leased premises due solely to external causes (other than insects, rodents, vermin, or damages from failure to maintain the temperature or humidity levels specified herein), and provided that LANDLORD’S failure to comply with the provisions of this contract did not contribute to such loss or damage. LANDLORD will provide and maintain general liability insurance and a warehouse legal liability insurance policy in form and substance acceptable to TENANT with limits acceptable to TENANT and naming TENANT as an additional insured thereunder. Certificates of such insurance shall be delivered to TENANT upon request.”

In view of the provision requiring plaintiff to insure its inventory and property against damages “from all perils,” I find the case of Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27 (262 SE2d 794), to be controlling. Thus, I would affirm the grant of defendant’s motion for summary judgment.

The majority takes the position that Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, supra, is inapplicable because of a substantial difference in the language of the lease agreement. In this regard, the majority points to additional language in provision 7: (a) the language whereby plaintiff releases defendant from liability for damage to plaintiff’s property to the extent not covered by insurance provided the damage is due to external causes only and defendant’s failure to comply with the provisions of the lease agreement did not contribute to the damage and (b) the language requiring defendant to purchase insurance for the protection of plaintiff. I am not persuaded.

(a) Generally speaking, the release language does not conflict with the exculpatory insurance language in provision 7 — it complements it. It further demonstrates the parties’ intention to look to the insurance for protection against loss. Insofar as the release language can be said to conflict with the exculpatory insurance requirement (by reserving a right of action for damage to the extent plaintiffs property was not covered by insurance under certain circumstances), the exculpatory insurance language must control. In effect, the release language in provision 7 is no different from the hold harmless language set forth in provision 4.4 of the Lie-Nielsen contract. Just as the hold harmless language gave way to the exculpatory insurance provision in Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, supra, so too must the release language give way to the exculpatory insurance language in the case sub judice.

Decided December 3, 1987

Rehearing denied December 15, 1987

Gary W. Hatch, Donald A. Loft, W. G. Elliott, for appellant.

J. Converse Bright, Wade H. Coleman, for appellee.

(b) With regard to the requirement that defendant purchase insurance for the protection of plaintiff, it must be observed that defendant was not required to purchase property insurance for the protection of plaintiff’s property and inventory. Rather, the insurance to be purchased by defendant was of other kinds (general liability insurance and warehouse liability insurance) and plaintiff was to be a named insured thereunder. It cannot be said, therefore, that this additional language contravenes the exculpatory intent of the lease agreement.

In my opinion, the evidence demonstrated without conflict a mutually exculpatory agreement. Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, supra. Accord Island Villa Developers, Inc. v. Bonner Roofing &c. Co., 175 Ga. App. 713 (334 SE2d 41); Pettus v. APC, Inc., 162 Ga. App. 804 (293 SE2d 65). Accordingly, I respectfully dissent.

       This contractual language can be found in the opinion of the Court of Appeals, Lie-Nielsen v. Tuxedo Plumbing &c. Co., 149 Ga. App. 502 (254 SE2d 729), which was reversed by the Supreme Court in Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, supra. In its opinion, the Court of Appeals determined that the hold harmless language controls and that the insurance provision had no effect upon liability. Lie-Nielsen, 149 Ga. App. 502, 503, supra. Reversing, the Supreme Court held that the insurance provision prevailed and that the parties could look only to the insurance to cover a loss.


author: Birdsong, Chief Judge. Deen, Presiding Judge,

text:
    74759.
    SAVAGE v. FLAGLER COMPANY et al.
    (364 SE2d 52)
   Birdsong, Chief Judge.

Summary Judgment — Wrongful Death — Duty to Licensee. The pertinent facts of this unfortunate incident show that in 1979-80 an entity known as Interstate North owned raw land adjacent to Windy Hill Road. The land was sold in 1980 to the Borel Restaurant Corporation, a wholly owned subsidiary of The Stouffer Corporation, for the purpose of building a restaurant to be called the Rusty Scupper. Borel/Stouffer engaged the services of D. E. Hill Engineer, Inc./ Hill Fister Engineers, Inc. as the project engineer to draw necessary land preparation grading requirements to prepare the real estate for a restaurant site with appropriate parking area. Edmond Stevens/Edmond Stevens Associates was engaged as the project architect and designer. The Flagler Corporation was engaged as the contractor charged with construction of the restaurant and parking lot. Hill Fister Engineers drew plans for the parking lot to the north side of the restaurant site. The raw land upon which this project was to be completed was in effect a flat area with access from Windy Hill Road. On the north side, or front of the lot, there was a sharp decline in elevation denominated as a precipice, a cliff or drop-off. From the level land to the bottom of the decline was a distance of approximately 70 feet.

When Flagler drove stakes to commence the land preparation in accordance with the drawings of Hill Fister, Flagler determined the parameters of the parking lot on the north side extended out over the decline. Hill Fister had recommended that a retaining wall be built to retain necessary fill dirt to support the edge of the parking lot on the north side. However because the lot actually extended over the void of the decline, recommendations were obtained from the architect, Stevens. It was decided rather than to build a retaining wall at the north side of the lot, the parking lot would be slightly reduced in size and moved to the south. As a result no retaining wall was necessary and no fill dirt was required to support the completed parking lot.

At the north edge of the parking lot, Flagler constructed a curb in accordance with the engineering drawings to act as a boundary of the parking lot. Beyond the north edge of the curb extending to the precipice, there was a flat grassy strip ranging in width from a few feet to at least 16 feet. At the edge of the steep decline, undergrowth and trees grew prolifically, thus tending to so obscure the edge of the steep decline so that from the parking lot one was not aware that a steep decline existed a few feet beyond the edge of the parking lot.

It further appears that after the restaurant and parking lot had been completed by Flagler and inspected and accepted by Borel/ Stouffer, Borel sold the underlying real estate and improvements to Krause who in turn apparently leased the restaurant business back to Borel/Stouffer for a period of 25 years. This lease was executed in July 1981.

On August 16,1982, a group of employees from Kennestone Hospital decided to rendezvous at the Rusty Scupper after they got off work at about 10:00 p.m. The Rusty Scupper had a two-for-one “happy hour” and a free sandwich-type supper that evening. This group included Ron Savage. Contrary to Ms. Savage’s (the victim’s mother’s) contention, the evidence showed that the Rusty Scupper closed at about 2:00 a,m. on the morning of August 17. Prior to that time or as the restaurant was closing, the Kennestone group decided to go to another restaurant club to have further drinks and/or entertainment. There apparently were six persons in the group and they all loaded into one car to go to the new club. Sometime around 2:45-3:00 a.m., the group returned to the Rusty Scupper’s parking lot to redeem the cars of the other members of the group. Everyone left except Ron Savage and a young woman. The evidence shows that the young woman believed the Rusty Scupper was closed as the parking lot lights were not burning and the restaurant appeared to be closed. Savage and the young woman stood on either side of Savage’s car and talked over the top. After a few minutes, Savage excused himself to go to the “bathroom.” Savage’s companion saw him step over the curb on the north side of the lot, walk across the grass strip and enter “what [she] thought was the edge of the woods.” After waiting for a few minutes and when Savage did not return, the young woman called out but Savage did not answer. After a call to the police, a search revealed Savage’s body at the base of the precipice after falling over 70 feet and striking his head on a large boulder causing his death.

Savage’s mother brought this wrongful death action against Krause the present owner, Hill Fister the land engineers, Stevens the architect-designer, Borel/Stouffer the restaurant owner and builder, Flagler the contractor-builder, Interstate North the original owner, and the restaurant itself. The court granted a motion to dismiss in favor of Interstate North and that action is not a part of this appeal. Krause, Borel/Stouffer and Flagler all moved for summary judgment which was granted by the trial court. It is the grant of summary judgment to these three defendants that forms the basis for the appeal filed in this case by Ms. Savage. Held:

1. Ms. Savage predicates her complaint upon the negligence of Krause in failing to correct an inherently dangerous defect in the land, i.e., a hidden peril; upon the negligence of Flagler in not providing a safety shield of some sort when recognizing the inherent danger in the precipice so close to the parking lot; and negligence of Borel/ Stouffer in inviting guests to its establishment and exposing guests to a hidden peril without taking adequate precaution to correct the defect or warn the invitees of the peril.

Although the duties and responsibilities of appellees are related, they are distinguishable and different. Mullis v. Southern Co. Svcs., 250 Ga. 90, 92 (296 SE2d 579). Krause, Borel, and Stouffer are either owners or occupiers of the land and have the duty to exercise ordinary care to keep the premises safe for all invitees. OCGA § 51-3-1. Flagler was the general contractor and presumably constructed the premises in accordance with the plans and guidance of the architect. There is no allegation of negligent construction, only that the contractor was negligent in not providing a safety shield after constructing an obvious hazard.

2. We first will address the obligations of Krause, Borel and Stouffer. As they were either owners or occupiers of the realty, under OCGA § 51-3-1 they had the duty to exercise ordinary care to keep the premises safe for all invitees. However, the duty of an owner or occupier of land is entirely different as to a licensee. That obligation, under OCGA § 51-3-2 imposes liability only for wilful or wanton injury. The accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with one other than the owner or occupier. Brown v. Hall, 81 Ga. App. 874, 880 (60 SE2d 414); Pries v. Atlanta Enterprises, 66 Ga. App. 464, 467-468 (17 SE2d 902); Cook v. Southern R. Co., 53 Ga. App. 723, 725 (187 SE 274).

Savage first entered the premises of the Rusty Scupper at a time when the premises were open and availed himself of their services. Without question, Savage was an invitee during his first visit to the Rusty Scupper. It is equally clear that the services formerly tendered to Savage and his companions were withdrawn at closing time. Because those services were no longer being offered by the Rusty Scupper, Savage and some of his friends left at closing time and went to another establishment. When Savage and his friends returned about 45 minutes to one hour later, the Rusty Scupper was no longer open for business and there existed no express or implied invitation to use the facilities, and “one who uses the premises of a merchant at a time beyond that to which an implied invitation extends is a mere licensee.” Armstrong v. Sundance Entertainment, 179 Ga. App. 635, 636 (347 SE2d 292); accord Clark v. Rich's, 114 Ga. App. 242 (1) (150 SE2d 716). When Savage and his companions returned to the Rusty Scupper’s parking lot at or about 3:00 a.m., his entry thereon was after closing hours, was not for the mutual benefit of the parties, but was for his sole convenience. He was a mere licensee, and the owners and occupiers of the premises owed him only the duty not to wilfully or wantonly injure him. Frankel v. Animan, 157 Ga. App. 26, 27 (276 SE2d 87).

“In comparing the status of the licensee with that of a mere trespasser this court has held ‘In the case of a licensee there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and wilfully injure the licensee; and since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated. The fundamental concept in this class of cases, as in that of trespassers, is of a liability only for wilful or wanton injury; but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done.’ ” Barry v. Cantrell, 150 Ga. App. 439, 440 (258 SE2d 61). “ ‘ “An owner owes to a licensee no duty as to the condition of the premises . . . save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm.” ’ Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331) (1968). An owner or occupier is subject to liability to a licensee for injury caused by a condition on the property if the owner (a) knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensee, and should expect the licensee will not realize the danger; and (b) fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and risk involved, and (c) the licensee does not know or have reason to know of the condition and the risk.” Robinson v. Turner, 164 Ga. App. 515, 516 (297 SE2d 522). Of course, this rule is but a restatement of Restatement, Torts, 2d § 342. See Sims v. Willoughby, 179 Ga. App. 2, 3 (345 SE2d 626). This Restatement rule is the basis for the legal liability of an owner or occupier because of his superior knowledge of the risk or danger, i.e.: “ ‘The basis of the proprietor’s liability is his superior knowledge and if his [licensee] knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the [licensee] has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. [Cits.] It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ ” Bunch v. Stanton, 174 Ga. App. 233, 235 (329 SE2d 538).

3. Next we turn to the obligation of Flagler, the general contractor. “While, as a general rule, an independent contractor is liable for injuries caused by his own negligence or that of his servants in the course of his performance of the work or in failing to leave the premises in as safe a condition as they were found [cit.], it is a well established general rule that, where the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. [Cits.]

“There are, of course, well recognized exceptions to this general rule. One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. . . . [Cits.]

“If the work performed by the contractor is not shown to come within one of the exceptions to the general rule, when the work is finished by him and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective conditions of the work.” Queen v. Craven, 95 Ga. App. 178, 183-184 (97 SE2d 523); accord Hawkins v. Turner, 166 Ga. App. 50, 54 (303 SE2d 164); Wilner's v. Fine, 153 Ga. App. 591 (1) (266 SE2d 278); PPG Indus. v. Genson, 135 Ga. App. 248 (2) (217 SE2d 479); Peachtree North Apts. v. Huffman-Wolfe Co., 126 Ga. App. 594 (191 SE2d 485). In determining whether the contractor is to be held liable for damages resulting from work he has been employed to do, “ ‘it is usually necessary to look for guidance to the question whether the injury resulted from the improper plans or directions by which his employment was defined, or from the improper execution of work properly planned. In such cases, if it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskilful or negligent execution of the work the contractor (and usually not the employer) is liable. . . .’ ” PPG Indus., supra at 251; accord Bell & Son v. Kidd & Roberts, 5 Ga. App. 518, 520 (63 SE 607). Where the construction has resulted in a latent peril or hazard, we have held that “[w]e do not agree that a contractor is entitled to put on blinders and ignore serious and dangerous defects in a design given to the contractor to execute. [Cit.] . . . Under those circumstances, we are not willing to hold that [a contractor] can, as a matter of law, escape liability when the evidence could authorize a conclusion that the design was defective and that [the contractor] should have known that the design would result in [construction] dangerous to its users.” Shetter v. Davis Bros., 163 Ga. App. 230, 231 (293 SE2d 397); accord Cooper v. Garmon Bros. Contractors, 166 Ga. App. 839, 840 (305 SE2d 499).

4. Of course, there is another duty to which all contractors, owners and occupiers of land are subject, that is “the general duty one owes to all the world not to subject them to an unreasonable risk of harm. This has been expressed as follows: ‘. . . negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ Restatement, Torts, 2d, § 282.” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693); accord Sutter v. Hutchings, 254 Ga. 194, 197 (327 SE2d 716). Hence, “[t]here are well recognized exceptions to the general rule of non-liability of contractors who execute plans furnished by others. One such exception is that the contractor is liable where the work is inherently dangerous to third parties. [Cits.]” Powell v. Ledbetter Bros., 251 Ga. 649, 651 (307 SE2d 663). This obligation of a contractor is essentially the same as that stated earlier in the Restatement, § 342, as applying to occupiers of land. Thus, at issue in the instant appeal is whether it was error for the trial court to hold as a matter of law that there was no material issue as to whether the construction of the Rusty Scupper and its parking lot, which was only a few feet, at one point, from a precipice 70 feet in height, was neither a “hidden peril,” “inherently dangerous” to others, nor did it “subject [others] to an unreasonable risk of harm.”

We must consider one further critical piece of evidence submitted to the trial court. Joel Mabry, the superintendent for the general contractor, testified that he had discussions with representatives of the architect and the owners and occupiers of the realty: “We talked about the insurance rate and again, since it was a bar that served alcoholic beverages, people have a tendency that drink a lot of beer to urinate pretty often, so we did say something jokingly about a guy walking out in the parking lot, and too much to drink, might step off [the cliff] trying to take a leak in the bushes there.” Mabry also stated that he had discussed with the representatives of the architect and the owners the fact that “the areas approaching the cliff where they were so close to the cliff ... if someone, you know, pulled up out in the parking lot there and left his headlights on, that there were some places that it would have been difficult to step in front of the automobile to raise the hood to try to jump the battery off.” Hence, from the evidence presented to the trial court, the exact incident that occurred in the instant case was foreseen by the contractor and discussed with the architect and owners. The peril was recognized but not remedied. Neither the trial court nor this court can hold, as a matter of law, that the placement of the parking area of a business establishment that sells alcoholic beverages so near to a 70-foot cliff, without a warning sign, or a safety barrier of some type, does not subject patrons of that establishment to an “unreasonable risk of harm,” and was not a “hidden peril,” nor “inherently dangerous.” These types of issues involving negligence, which “is a matter of risk — that is to say, of recognizable danger of injury . . . [or] ‘conduct which involves an unreasonably great risk of causing damage’ ” (Prosser, Law of Torts (4th ed.), p. 145, § 31) are for the jury, and a trial court should not remove the issue from a jury except in plain and indisputable cases. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25). Further, the issue of foreseeability as to injury caused by this hazard, and the duty to exercise ordinary care to protect another from injury is generally for a jury’s determination rather than summary adjudication by the courts. Lay v. Munford, Inc., 235 Ga. 340, 341 (219 SE2d 416). On motion for summary judgment, the respondent is to be given the benefit of all reasonable doubts and inferences toward creating an issue (Blount v. Seckinger Realty Co., 167 Ga. App. 778 (1) (307 SE2d 683)), and neither the presence nor absence of negligence should be summarily adjudicated unless only one conclusion is permissible. Tanner v. Ayer, 150 Ga. App. 709, 710 (258 SE2d 545). We find that more than one reasonable conclusion is permissible as to whether or not the general contractor, the owners and occupier of the realty, were negligent in constructing a parking lot in such close proximity to a recognized hazard, without any warning signs or safety shield of any type. Shetter, supra at 231. The trial court erred in granting summary judgment to the defendants.

Judgment reversed.

McMurray, P. J., Banke, P. J., Pope, Ben-ham, and Beasley, JJ., concur. Deen, P. J., Carley, and Sognier, JJ., dissent.

Deen, Presiding Judge,

dissenting.

While concurring with the majority opinion’s exposition of the law concerning the duty of care an owner or occupier of land owes a licensee, I disagree with the conclusion that a factual issue exists concerning the observance of that duty and foreseeability of the injury in this case.

Savage was an invitee when he first entered the restaurant’s property for the mutual benefit of the restaurant and himself as patron. Somewhere in the process of going to another bar because the Rusty Scupper closed for the night, leaving his automobile parked in the restaurant’s lot for approximately an hour, and then returning and talking with a friend for a while in the parking lot, Savage’s status changed from invitee to licensee. At the time he went into the adjoining woods to urinate, his status may even have been that of trespasser. Compare Ginn v. Renaldo, Inc. 183 Ga. App. 618 (359 SE2d 390) (1987), wherein the bar patron arrived as an invitee but departed as a trespasser.

In a somewhat similar situation, a Yale graduate left a class reunion party (held in a building formerly occupied by the Wolfs Head Society) to urinate. He had attended the party for approximately two hours, and when he left, the party was over and the building was closed. After talking to others for five or ten minutes, he proceeded towards a grassy plot by a tree, intending to urinate by a bush, but he tripped over a parapet on top of a retaining wall. He fell to a lower level and was injured. Guilford v. Yale Univ., 128 Conn. 449 (23 A2d 917) (1942). The court in Guilford upheld a jury verdict, in part because Guilford had not exceeded the limits of his invitation. Even the majority opinion acknowledges that Savage was no longer an invitee at the time he fell to his death.

Decided November 9, 1987

Rehearings denied December 16, 1987

Mike Treadaway, for appellant.

Michael J. Goldman, Lisa H. Ihns, Anthony J. McGinley, Tommy T. Holland, J. Kenneth Moorman, Alan L. Newman, for appellees.

Jonathan M. Engram, amicus curiae.

Under the circumstances of the instant case, the only reasonable conclusion is that the appellees did not unreasonably subject Savage to a risk of harm. The restaurant provided rest room facilities on the premises for its patrons, and the appellees should not be held to a standard of expecting its patrons instead to seek relief in the areas adjoining the restaurant parking lot, much less expecting a former patron who had gone to another bar to continue drinking after the restaurant closed and who had returned to the restaurant parking lot an hour later only to retrieve his car. The majority opinion misplaces its reliance upon the deposition testimony of the contractor’s foreman, who remembered that they had jokingly reflected about the possibility of someone urinating in the bushes and falling, because the real issue is whether the appellees unreasonably dismissed this contingency as unlikely.

It is plain and indisputable that what happened in this case was not reasonably to be expected. For the sake of all the Savages of the world seeking relief, no doubt it would have been better for the appellees to have erected some kind of fence, hand rail, barrier or riprap (volley-ball sized rocks). However the appellees breached no duty by failing to do so, and the trial court properly granted summary judgment for the appellees.

Accordingly, I must respectfully dissent. I am authorized to state that Judge Carley joins in this dissent.


text:
    75004.
    BANK SOUTH, N.A. v. MIDSTATES GROUP, INC.
    (364 SE2d 58)
   Carley, Judge.

David Williams was the president of Air Carrier Express Services, Inc. (ACES). He was also the president and the treasurer of appellee-plaintiff The Midstates Group, Inc. (Midstates). Williams, in his capacity as president of ACES, sought to obtain a loan from appellant-defendant Bank South, N.A. (the Bank). The purpose of the loan was to enable ACES to purchase an airplane. The Bank informed Williams that it would require additional collateral in the amount of $200,000 as well as a security interest in the airplane. Williams advised the Bank that Midstates would provide any necessary additional collateral on behalf of ACES. The Bank suggested that such additional collateral take the form of a certificate of deposit. The Bank also informed Williams that, insofar as the loan transaction he proposed would involve collateral which belonged to Midstates rather than to ACES, the actual borrower, the consent of Midstates’ Board of Directors to the pledge of its certificate of deposit as security for ACES’s debt would be required.

Apparently at Williams’ direction, $200,000 in funds belonging to Midstates was transferred to the Bank and, with those funds, a certificate of deposit was purchased from the Bank payable to the order of Midstates. Midstates had two directors, Williams and Joe Guy. Williams presented to the Bank, as it had requested, a document which purported to evince the written consent of both of Midstates’ directors to a pledge by Midstates of its certificate of deposit as security for ACES’s debt. The signature of Williams on this document was genuine. However, Guy’s purported signature to the document had been forged by Williams. The Bank accepted the document containing Guy’s forged signature as genuine and made no further inquiry into Midstates’ consent to the pledge of its certificate of deposit as security for ACES’s debt. Williams, as president of Midstates, then indorsed to the order of the Bank the certificate of deposit which was payable to Midstates. The loan from the Bank to ACES was consummated, and ACES purchased the airplane with the loan proceeds. Subsequently, the airplane was completely destroyed in a crash. As a result, ACES defaulted on its note to the Bank. Accordingly, the Bank claimed the proceeds of the certificate of deposit as security for ACES’s debt and, when Midstates subsequently made a demand for payment of that instrument, the Bank refused that demand.

Midstates then brought this suit, alleging the following: that the certificate of deposit belonged to it; that the Bank had converted the instrument; and, that the liability of the Bank for that conversion was $200,000, the face amount of the instrument. Midstates filed a motion for summary judgment. The Bank filed a cross-motion for summary judgment, asserting that it was a holder in due course of the certificate of deposit and that, having acted in good faith and in a commercially reasonable manner, its liability, if any, should be limited pursuant to the provisions of OCGA § 11-3-419 (3). As to the issue of liability, the trial court granted summary judgment in favor of Mid-states and denied the Bank’s motion for summary judgment, holding that, as the result of the forgery of Guy’s signature, the Bank was not a holder of the certificate of deposit. As to the issue of the extent of liability, however, the trial court granted the Bank’s motion and denied Midstates’, holding that the Bank’s liability would be limited by its good faith and its commercially reasonable acts. The Bank appeals from the trial court’s order granting summary judgment to Midstates as to the issue of liability.

1. The face of the certificate of deposit evinces the Bank’s original acknowledgment of its receipt of $200,000 belonging to Midstates and the Bank’s engagement to repay Midstates. See OCGA § 11-3-104 (2) (c). As the instrument was issued by the Bank to the order of Midstates, it is clear that Midstates was the original holder thereof. “ ‘Holder’ means a person who is in possession of ... an instrument . . . drawn, issued or indorsed to him or to his order or to bearer or in blank.” OCGA § 11-1-201 (20). The Bank asserts that the instrument was transferred back to it from Midstates, so that the Bank then became the holder of its own certificate of deposit. See generally Federal Deposit Ins. Corp. v. West, 244 Ga. 396 (260 SE2d 89) (1979). However, for the Bank to have become the holder of the instrument which it issued to the order of Midstates, the indorsement of Mid-states would have to appear thereon. “Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary indorsement. . . . [The] indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.” OCGA § 11-3-202 (1, 2). On its back, the certificate of deposit contains the purported special indorsement of Midstates to pay the instrument to the order of the Bank (see OCGA § 11-3-204 (1)), which indorsement reflects that it was made by Williams acting in his capacity as a corporate official of Midstates. See generally Larry's Mobile Homes v. Robins Fed. Credit Union, 161 Ga. App. 822, 823 (2) (288 SE2d 800) (1982). The issue thus becomes whether this special indorsement made by Williams was “written by or on behalf of’ Midstates so as to render the Bank the holder of the instrument.

“A signature may be made by an agent . . and his authority to make it may be established as in any other cases of representation. . . .” OCGA § 11-3-403 (1). “Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it. . . .” OCGA § 11-3-404 (1). The Bank asserts that Williams was authorized to make the corporate indorsement to the instrument, while Midstates asserts that the indorsement in its name was unauthorized. “ ‘Unauthorized’ signature or indorsement means one made without actual, implied or apparent authority. . . .” OCGA § 11-1-201 (43). A review of the record shows that Midstates, as the movant for summary judgment, did not produce any evidence that Williams, as a corporate official of Mid-states, lacked actual, implied or apparent authority to place the corporate indorsement on negotiable instruments of which Midstates was the holder. To the contrary, the unrebutted evidence of record shows that, as the president and treasurer of Midstates, Williams had at least apparent authority — if not actual authority under the corporate by-laws — to place the corporate indorsement upon negotiable instruments held by Midstates. See generally Stubbs v. Fourth Nat. Bank of Macon, 12 Ga. App. 539, 540 (5) (77 SE 893) (1913). Since Williams had at least apparent authority — if not actual authority — “to execute the indorsements, [Midstates] could not have defeated such indorsements merely by alleging that in truth and in fact he had no such authority and that his act in indorsing the paper had not been ratified.” Massell v. Fourth Nat. Bank of Macon, 38 Ga. App. 601, 604 (1) (144 SE 806) (1928).

In determining that the Bank was not a holder, the trial court erred in focusing upon the question of whether Williams had authority to pledge Midstates’ certificate of deposit as security for the debt of ACES. The question of to what use Williams was ultimately authorized to put an instrument held by Midstates after he had placed the corporate indorsement on it is separate and distinct from the question of whether he was authorized to indorse the instrument in the first instance. Under the unrebutted evidence of record, the indorsement made by Williams “was an authorized [indorsement. [Cits.] What [may] not [have been] authorized was the use to which [he subsequently] put the [indorsed instrument].” (Emphasis in original.) Bank South v. Grand Lodge, 174 Ga. App. 777, 781 (1) (331 SE2d 629) (1985). Williams “did not lack the authority to [i]ndorse the [instrument], but he [may have] abused his authority. [Even assuming that] he unquestionably breached his fiduciary duties to [Midstates by pledging its instrument as security for ACES’s debt], he did so using the authority [that Midstates had apparently if not] specifically conferred upon him.” (Emphasis in original.) Bank South v. Grand Lodge, supra at 782 (2). It follows that the trial court erred both in granting summary judgment in favor of Midstates and in failing to grant summary judgment in favor of the Bank as to the issue of the Bank’s status as a holder of the certificate of deposit.

2. It does not necessarily follow from Division 1 of this opinion that the trial court erred in denying summary judgment in favor of the Bank with regard to its status as a holder in due course. “A holder in due course is a holder who takes the instrument: For value; and In good faith; and Without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” (Emphasis supplied.) OCGA § 11-3-302 (1).

The only “value” that the Bank asserts on appeal that it gave for the certificate of deposit is that it took the instrument as security for the loan to ACES. However, the act of merely taking an instrument as security for a loan is not the equivalent of taking it for value. “A holder takes the instrument for value: To the extent that ... he acquires a security interest in or a lien on the instrument otherwise than by legal process. . . .” (Emphasis supplied.) OCGA § 11-3-303 (a). “[A] security interest is not enforceable against. . . third parties with respect to the collateral and does not attach unless: . . . The debtor has rights in the collateral.” OCGA § 11-9-203 (1) (c). Accordingly, for the Bank to have acquired an enforceable security interest in the instrument which belonged to Midstates and thus to have given value for it, then ACES, as the debtor, must have had “rights” therein.

When the evidence of record is construed most strongly against the Bank, as the moving party, it appears that ACES had no “rights” in the certificate of deposit. The instrument, which belonged to Mid-states, was merely in the possession of Williams, who also happened to be a corporate officer of ACES. “What kinds of ‘rights in the collateral’ may the debtor acquire that will suffice under [OCGA § 11-9-203 (1) (c)]? If the [collateral is] entirely owned by a third party, mere acquisition of possession by the debtor will not be enough. ... Of course, an owner may authorize a debtor to use his (the owner’s) assets as collateral for the debtor’s obligation.” White & Summers, Handbook of the Law Under the Uniform Commercial Code, § 23-4, p. 916 (2d ed. 1980). “One cannot encumber another[’s] . . . property in the absence of consent, estoppel, or some other special rule. [Cit.]” First Nat. Bank &c. Co. v. Smithloff, 119 Ga. App. 284, 290 (5) (167 SE2d 190) (1969). See also Northwestern Bank v. First Va. Bank of Damascus, 585 FSupp. 425 (W.D. Va. 1984) (citing First Nat. Bank &c. Co. v. Smithloff, supra, as controlling authority). Construing the evidence most strongly against the Bank, the instrument belonging to Midstates was merely in possession of Williams, who also happened to be a corporate officer of ACES. The Bank produced no unrebutted evidence that Midstates had consented to the pledge of its instrument as security for ACES’s debt or that estoppel •or some other special rule demanded a finding, as a matter of law, that the certificate of deposit had been taken for value. Accordingly, the trial court did not err in denying the Bank’s motion for summary judgment with regard to the issue of its status as a holder in due course.

Our holding that the evidence of record would not demand a finding that the Bank gave “value” for the instrument renders moot any consideration of the issues of the Bank’s good faith and notice.

3. Midstates has filed no cross-appeal from the trial court’s ruling that, pursuant to OCGA § 11-3-419 (3), the Bank’s liability for any alleged conversion of the certificate of deposit is limited to the amount of proceeds remaining in its hands. Accordingly, this issue is not before us at this time and this opinion should not be construed as either affirming or reversing that ruling.

Decided November 20, 1987

Rehearing denied December 16, 1987.

Susan A. Cahoon, Stephen E. Hudson, for appellant.

Deborah S. Ebel, Marian Exall, for appellee.

4. With regard to the Bank’s status as a holder of the certificate of deposit, the trial court’s orders granting summary judgment to Midstates and denying summary judgment to the Bank are reversed. With regard to the Bank’s status as a holder in due course, the trial court did not err in denying the Bank’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge. Banke, Presiding Judge, Beasley, Judge,

text:
    74513.
    DOE v. STATE OF GEORGIA et al.
    (364 SE2d 78)
   McMurray, Presiding Judge.

On April 28, 1986, a search warrant was issued for the seizure of blood and urine specimens which the Rockdale County Hospital had taken from the body of John Doe on February 27, 1986. Two days later, the hospital filed a “motion to quash” the search warrant on the grounds, inter alia, that the specimens constitute confidential information which is protected by federal regulations governing the records of alcohol and drug abuse patients. John Doe joined the battle via a “motion to intervene and motion to quash.” Therein, he asserted that the warrant was constitutionally defective and that it violated his Fourth Amendment rights. He also asserted that the specimens constituted confidential information which could not be seized in the absence of compliance with federal regulations. On May 9, 1986, the trial court determined that John Doe did not have standing to quash the search warrant. The court pointed out that he could move to suppress the fruits of the search at a later time if such a motion became necessary. With regard to the hospital, the trial court stated that in order to obtain the specimens, the State should comply with the federal regulations set forth in 42 CFR Section 2.1 et seq. (confidentiality of alcohol and drug abuse patient records).

Thereafter, on May 15, 1986, the State filed an “application for court order to authorize disclosure of hospital records.” Following a hearing upon the State’s application, the trial court determined that the federal regulations do not apply after all. On November 24, 1986, the court granted the State’s application and directed the hospital to comply with the search warrant. The trial court certified its order for immediate review and John Doe made application for interlocutory appeal. The application was denied by this court on January 2, 1987. In the meantime, John Doe filed a notice of appeal and this direct appeal followed. Held:

1. We are without jurisdiction to entertain this appeal and it must, therefore, be dismissed. We find no provision in the laws of this State authorizing an attack upon a search warrant which has not been executed (i.e., where no evidence has been seized pursuant to the warrant). Moreover, appeals from orders overruling such attacks have not been authorized. See generally B.T. Productions v. Barr, 388 NYS2d 483, 486 (1976). Of course, when evidence is seized pursuant to the execution of a search warrant and it is unlawfully seized, a motion to suppress will lie. OCGA § 17-5-30 (a). But such a motion is not ripe unless evidence is obtained pursuant to the warrant. In the case sub judice, no evidence has been obtained pursuant to the search warrant. Accordingly, any attack upon the warrant must be deemed premature.

Even if we construed appellant’s attack upon the search warrant as a motion to suppress, we would still be compelled to dismiss this appeal. An order denying a motion to suppress cannot be appealed directly. Such an order is not a final judgment and must be reviewed under the interlocutory appeal procedure. Holton v. State, 173 Ga. App. 249 (326 SE2d 240); Cody v. State, 116 Ga. App. 331 (157 SE2d 496). Compare OCGA § 5-7-1.

2. The motion to assess a frivolous appeal penalty is denied.

Appeal dismissed.

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

Banke, Presiding Judge,

concurring specially.

I do not believe that a superior court would be powerless under any circumstances to prevent the execution of an unlawfully issued search warrant, although it would be the rare case indeed in which the opportunity for such judicial intervention would exist. Moreover, I believe the issuance of the search warrant under consideration in this case was totally inappropriate. What could be more outrageous than the prospect of law enforcement officers rummaging through the confines of a legitimately run hospital in an attempt to locate a blood, urine, or tissue sample left behind by a suspect who was once treated there?

Under Georgia law, the appropriate tack for the state to have taken in this case would have been to obtain a subpoena duces tecum ordering the production of the particular blood and/or urine sample in question in connection with a grand jury proceeding. See generally OCGA § 24-10-22; In re Lester, 77 Ga. 143 (e) (1886). The use of a notice to produce pursuant to OCGA § 24-10-26 would be inappropriate because that statute applies only to “books, writings, or other documents or tangible things in the possession, custody, or control of another party. . . .” See generally Phillips v. State, 146 Ga. App. 423 (5) (246 SE2d 438) (1978). (Emphasis supplied.)

Nevertheless, I agree that the present appeal should be dismissed, due to the appellant’s lack of standing to challenge the proposed search. The hospital obviously does not belong to him, nor is he staying there any longer. Consequently, there would appear to be no basis upon which he could assert a violation of his Fourth Amendment rights in connection with the proposed search.

I am authorized to state that Presiding Judge Deen, Judge Carley and Judge Pope join in this special concurrence.

Beasley, Judge,

dissenting.

This case is rife with procedural issues, but they need not be addressed in order to reach the point of dissent.

The appeal does not involve a pending criminal prosecution in which items seized are challenged as having been unlawfully seized. Nor is it simply an appeal from an order authorizing the execution of a search warrant. It is much more. It is an appeal from an order in a proceeding brought by a hospital to challenge a search warrant authorizing any law enforcement officer to search hospital premises to look for and seize the bodily substances removed from a car passenger, John Doe, two months earlier when he was brought to the hospital as a victim in a collision. The order appealed from does not allow the execution of the warrant in that it does not authorize officers to search the hospital for the blood and urine specimens sought. Instead, it purportedly allows execution of the search and seizure warrant by requiring the hospital to produce and turn over to the state’s agents those specimens.

This far exceeds the office of a search warrant. There is a big difference between overruling a motion to quash a search warrant and allowing law enforcement officers to proceed with a search for specified items, on the one hand, and ordering the owner of premises to locate and surrender sought items, on the other hand.

The trial court’s basis for requiring such a bringing forth and relinquishment of the specimens taken in connection with the emergency-induced medical treatment is the granting of a state’s application under 24 CFR § 2.1 et seq., especially section 2.65, which authorizes the disclosure of otherwise confidential information from patient records under certain circumstances. Yet the court ruled in the order that the cited federal regulations did not apply to these specimens. The court had recognized the standing of the patient to challenge the so-called “disclosure,” i.e., the relinquishment by the hospital of his specimens, as targeted by the state pursuant to the federal regulations application procedure. It is the patient here who seeks to protect the confidentiality of his specimens in the possession of the hospital. He asserts that the federal regulations do apply and that the object of the “search” cannot be reached without a divulgence of his confidential patient records which will yield the identity and precise whereabouts in the hospital of his specimens. Thus the issue is whether or not they apply, a question which is ripe and properly raised. The hospital has filed a brief siding with the patient, fearful that its use of the records to locate and produce the specimen without a federal regulation order, or its assistance to the law enforcement officers for such use, would violate the federal regulations, but it did not file a notice of appeal.

In addition, the search warrant had been quashed earlier by the court on the hospital’s motion, with the court’s qualification that it is quashed “solely to the extent that the state, seeking production of the bodily substances, must petition for a court order for production of those substances in accordance with 42 CFR Section 2.1 et seq. . . .” The court subsequently concluded that the federal regulations did not apply. This left the search warrant, issued almost seven months earlier, unexecuted. Even if it was only conditionally quashed, and even if it was not infirm for staleness, it could do no more than authorize search of the hospital for specimens. This, as shown by the record, would require a search of patient records to ascertain the identity of the precise specimens of John Doe and then their precise location. This runs headlong into the federal protection of confidential patient records which may be governed by 24 CFR 2.1 et seq.

To require the hospital to identify, locate, and produce the specimens in response to the April 1986 search warrant may be a practical solution. But whether it is a legal one is the question before this Court.

The issues raised on appeal should be addressed, else the rights of confidentiality, if any, sought to be protected by the patient will have evaporated. It is patent that a later motion to suppress, should the specimens constitute or lead to incriminating evidence resulting in a criminal prosecution, will be totally ineffectual in protecting the rights asserted at this stage when the state is seeking evidence which may or may not authorize criminal prosecution. The federal regulations, if they apply, will have been irretrievably violated.

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

Decided December 2, 1987

Rehearing denied December 17, 1987

Victoria D. Little, for appellant.

John T. Strauss, District Attorney, Harger W. Hoyt, Assistant District Attorney, for appellees.