author: Sognier, Judge. Deen, Presiding Judge,

text:
    77641, 77660.
    KING COTTON, LTD. v. POWERS et al.; and vice versa.
    (380 SE2d 481)
   Sognier, Judge.

Michael Scott Powers, individually, as executor of the last will and testament of his deceased wife, Vicki Saunderson Powers, and as next friend of his children, Erin and Megan Powers, brought suit against King Cotton, Ltd., the owner and operator of a cotton gin, Robert Frank Cobb, the driver of a tractor trailer truck, and Wayne Peavy d/b/a Peavy Trucking, Cobb’s employer, for damages incurred in an automobile accident. The case was tried before a jury, and after the close of the evidence, Cobb and Peavy settled with Powers and were dismissed from the suit. The jury returned a verdict against King Cotton, and it appeals. Powers, Cobb, and Peavy cross-appeal from certain rulings of the trial court.

The record reveals that in 1986, King Cotton opened a cotton gin in Lee County, Georgia. The property on which the gin is located is adjacent to State Route 32, a two-lane rural road. There is a dirt driveway known as the “main” or “western” drive leading from the highway to the gin on King Cotton’s property. There is also a field road located on abutting property which intersects State Route 32 just beyond the easternmost boundary of King Cotton. No clearly marked boundary lines exist between the gin property and the adjoining property, but it is uncontroverted that the field road is not on King Cotton’s property when it intersects the highway, and that some vehicles used this field road to approach and leave the gin.

Robert Cobb, who drove a tractor trailer rig for Peavy and had been driving trucks for 27 years, had pulled into and out of King Cotton’s gin approximately 20 to 30 times prior to October 11, 1986. Cobb testified that he could use the main drive to enter the gin property when his truck was empty, but that when the flatbed trailer was loaded with cotton bales the condition of the main road made it difficult to exit the property without tipping the trailer and losing some bales, and thus he used the field road to leave the gin. Cobb testified, however, that turning left from the field road onto the state road to travel east toward Cordele, his hauling destination, was a difficult maneuver in which he had to pull into the highway across both lanes, stop and back up a few feet to alter the angle of his approach to the eastbound lane, and then start forward again.

The evidence showed that on Saturday, October 11, 1986, Cobb came to the gin in the morning and hauled a load of cotton bales to Cordele. Later that day Cobb returned to the gin for his second haul of the day. After loading his truck, Cobb left the gin premises by the field road. Prior to beginning the turn onto the state road, Cobb noticed the headlights of a vehicle traveling toward him in a westerly direction, but estimated that vehicle was over a mile away, and calculated that he had sufficient time to complete the maneuver safely. The accident occurred when the approaching vehicle, a van driven by Vicki Powers in which the remaining members of the Powers family were passengers, struck the trailer of the truck driven by Cobb, which was positioned across both lanes of the state road.

1. Appellees Powers (hereinafter Powers) have moved this court to dismiss the appeal on the ground that the original notice of appeal was filed on behalf of King Cotton, Inc., rather than King Cotton, Ltd. There has never been any doubt or question that the correct name of King Cotton is King Cotton, Ltd. It is further uncontroverted, however, that although the original pleadings in the trial court referred to King Cotton as King Cotton, Ltd., during the course of the litigation it was referred to variously as “King Cotton,” “King Cotton, Inc.,” and “King Cotton Co.,” among other appellations. In fact, the verdict and judgment below refer to King Cotton, Inc., although there is no question that the intendment of the verdict and judgment was to hold King Cotton, Ltd. liable. “ ‘It is an elementary rule of pleading that substance, not mere nomenclature, controls.’ [Cit.]” Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539 (314 SE2d 903) (1984). In view of those facts, we grant King Cotton’s motion to amend the notice of appeal to correct the misnomer, and Powers’s motion to dismiss is denied. See Block v. Voyager Life Ins. Co., 251 Ga. 162-163 (1) (303 SE2d 742) (1983).

2. At the close of the evidence, the jury was informed by counsel for Powers that he had been instructed by the court to make the following statement to them: “In consideration of the payment of $750,000.00 to the Plaintiffs by Canal Insurance Company, the Plaintiffs have dismissed Robert Cobb and Wayne Peavy as Defendants.” In its charge, the trial court instructed the jury that “the settlement of this case by two of the Defendants should not be considered by you as having any effect whatsoever on the question of liability of the remaining Defendant [King Cotton]. The liability of [King Cotton], if any, is a matter for you to determine under the evidence and the charge given you by the Court. The matter of a payment to the Plaintiffs of any amount and the dismissal of those parties from this action is not a matter for consideration by the jury. If you find [King Cotton] liable in this matter, you are to determine in your enlightened conscience the amount of damages to which the Plaintiffs will be entitled without consideration of any amount previously paid to the Plaintiffs.” It is evident from various colloquies in the record between counsel and the court that the court and all parties intended that the court instruct the jury to bring in a total damage figure for Powers’s injuries, from which the amount paid by the other two defendants would be set off to arrive at the amount of King Cotton’s liability.

Before the jury returned its verdict, counsel for King Cotton informed the judge that he foresaw a problem in applying any setoff because there was more than one plaintiff and the jury would be unlikely to award them equal amounts, yet Powers had not informed the court how the settlement was to be allocated among the various plaintiffs. The court did not agree that it would be a problem, saying that it “thought we had resolved the issue of setoff by charging this jury . . . that they were to find the full value of the claims . . . [w]hich, obviously, is a ruling that says that we are going to set off the $750,000.00 against the full value of the claims.” (Emphasis supplied.) The jury returned its verdict for Powers in the total amount of $800,000, with $100,000 to Michael Powers, individually, for his own damages; $500,000 to Michael Powers for the value of his deceased wife’s life; $125,000 to Michael Powers as Executor under the will of his deceased wife; $50,000 to Erin Powers; and $25,000 to Megan Powers. Thereafter, counsel for Powers requested that the court inquire of the jurors whether they had, in fact, deducted the $750,000 settlement before arriving at the amount of their verdict, and the court refused. The court also refused King Cotton’s request that judgment be entered against it immediately for $50,000—the difference between the total amount of the jury’s verdict and the settlement—and took the matter under advisement for several hours. When the proceedings resumed, counsel for Powers advised the court that $720,000 of the $750,000 settlement was being allocated to Michael Powers individually. Because the bulk of the $800,000 jury verdict was allocated not to Michael Powers individually but to him for the value of the life of his deceased wife, and because the jury awarded only $100,000 to Michael Powers individually, the settlement allocation maximized the amount of the jury verdict for which King Cotton was liable.

Approximately one month after the rendition of the verdict Powers solicited affidavits from each of the members of the jury, all of whom averred (in identical language) that their $800,000 verdict against King Cotton was intended to be awarded in addition to the $750,000 settlement. Almost a month after considering these affidavits the trial court entered judgment against King Cotton for the full amount of the jury’s verdict and denied any setoff of the settlement, finding in its order that its charge regarding the settlement had been confusing to the jury, and “accepting” the juror affidavits as “curing” the ambiguity in the charge.

The trial court erred by so doing. We agree with the trial court that its charge on the jury’s consideration of the settlement was confusing. We can discern no purpose in disclosing to the jury the amount of the settlement if the jury was not to consider the settlement in awarding damages to the plaintiffs. Although it is certainly clear from the record that the intent of the trial court was to instruct the jury to return a verdict for the full amount of damages due Powers without setting off the settlement, the language employed by the court was ambiguous and, when coupled with the fact that the jury was informed of the exact amount of the settlement, tended to confuse and mislead the jury into thinking that the amount of the settlement disclosed to them should be considered and set off in arriving at their award. See generally Shugart v. Dept. of Transp., 184 Ga. App. 692-694 (1) (362 SE2d 474) (1987). As we conclude that the charge given could have confused a jury of ordinary capacity and understanding, it constituted reversible error. See Koppar Corp. v. Robertson, 186 Ga. App. 856, 857-858 (1) (368 SE2d 807) (1988).

We further find, as a matter of law, that this confusion could not have been “cured” by affidavits from the jurors. OCGA § 9-10-9 provides that “[t]he affidavits of jurors may be taken to sustain but not to impeach their verdict,” and although Powers and Cobb and Peavy argue (and the trial court found) that the affidavits in the case at bar sustain, rather than impeach, the verdict, it is uncontroverted that the jury was instructed to return a verdict for the full amount of damages due Powers without deducting the settlement. Consequently, because the verdict awarding $800,000 to Powers must be read as meaning that in the enlightened conscience of the jury, $800,000 was the total amount of damages due to Powers, see Ford Motor Co. v. Lee, 237 Ga. 554, 555-556 (2) (229 SE2d 379) (1976), the affidavits from members of the jury (averring that they deducted the settlement before making their award) work to impeach, rather than sustain, the verdict. The trial court’s entry of judgment in accordance with the affidavits thus impermissibly added to the jury’s verdict. “ ‘After the dispersal of the jury, the judge has no power either to add to or take from their finding.’ [Cit.]” Ryner v. Duke, 205 Ga. 280, 283-284 (53 SE2d 362) (1949).

Although King Cotton enumerates as error the trial court’s consideration of the juror affidavits, objected to below, it does not specifically enumerate the trial court’s charge, and did not object when the charge was given. Because of the magnitude of the error and its inextricable connection with King Cotton’s enumeration regarding the affidavits, we find the error in the charge falls within the parameters of OCGA § 5-5-24 (c), which provides that “[notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” We find that this is just such a “substantial error” which is so “blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it.” Hollywood &c. Church v. State Hwy. Dept., 114 Ga. App. 98, 100 (3) (150 SE2d 271) (1966).

Accordingly, because the trial court’s charge to the jury as to the settlement tended to confuse and mislead the jury, and that confusion could not have been cured by the juror affidavits, this case must be remanded to the trial court for a new trial. See generally Koppar, supra at 858 (1); Barnett v. State, 178 Ga. App. 685, 686 (1) (344 SE2d 665) (1986).

Upon retrial, either the settlement amount may be disclosed to the jury and the jury instructed to consider that amount in awarding its verdict against the remaining party, or the amount of the settlement must be withheld from the jury and the jury instructed to disregard any dismissals from the action and anything they may have heard regarding settlement and return a verdict for the total amount due each plaintiff as a result of the accident. If the latter option is elected, the court would then, of course, set off the amount of the settlement allocated to each plaintiff from the jury’s award. See generally Annot., 94 ALR2d 352.

3. Because it may recur at retrial, we consider King Cotton’s contention that the trial court erred by allowing into evidence photographs and testimony showing that subsequent to the accident, King Cotton placed a chain across the entrance to the field road and posted a “No Trespassing” sign. Although King Cotton is correct in stating that it is the rule under Georgia law, and virtually universally, that evidence of repairs, change of conditions, or precautions taken after an injury is not admissible as proof of negligence of the defendant in not having made the repairs, changed the conditions, or taken the precautions prior to the injury, “[s]uch evidence may, in the proper circumstances ... be admitted for other purposes, as for example to show defendant’s ownership or control of the premises . . .; but, if so admitted, the jury should be cautioned as to the limited purpose for which it is received and admonished not to consider it as evidence of negligence or as an admission thereof. [Cits.]” Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (1) (178 SE2d 543) (1970). See also Brooks v. Cellin Mfg. Co., 251 Ga. 395, 396-397 (306 SE2d 657) (1983).

4. In the cross-appeal, which is conditioned on the grant of a new trial, Powers contends the trial court erred by excluding from evidence on relevancy grounds documents showing a commercial driveway permit application from King Cotton and subsequent permit issued by the Georgia Department of Transportation (DOT) pursuant to OCGA § 32-6-131, and a conveyance of access rights from King Cotton’s predecessor in title granting to the DOT all rights to exit the gin property anywhere along State Route 32 at any point other than the main driveway (thus essentially relinquishing its right to access the highway except at the main drive). Powers contends the traveling public at large are third party beneficiaries of these contracts, and as such, Powers was harmed by the failure of King Cotton to honor the provisions of the conveyance, and by its failure to repair the main driveway according to the terms of the permit. We do not agree that Powers was a third party beneficiary of the agreements or the permit. It is well established that the mere fact that a person would benefit from the performance of a contract does not make him a third-party beneficiary. Rather, a third party beneficiary contract is one in which the promisor engages to the promisee to render some performance to the third person. Stewart v. Gainesville Glass, 131 Ga. App. 747, 752-753 (206 SE2d 857) (1974).

Moreover, these documents, which are included in the record, appear to have been executed before the gin began operating and were executed to grant King Cotton’s predecessor in title permission to construct a dirt driveway to effect ingress and egress to the property. We fail to see the relevance of these documents to the issues in the case at bar. Should the evidence at retrial be essentially the same, the documents would be similarly irrelevant, and it would not be error to exclude them. “ ‘Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.’ [Cit.]” Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749, 750 (1) (371 SE2d 231) (1988).

5. Powers’s second enumeration in the cross-appeal is rendered moot by our denial of the motion to dismiss the appeal. See Division 1, supra.

6. We agree with Powers that a jury question exists as to whether King Cotton’s actions constituted a nuisance under the circumstances of this case. Evidence proffered at trial which should have been admitted (and, upon proper tender, should also be admitted at retrial, see Division 3, supra) presented a jury question regarding control by King Cotton of the field road. Other evidence, however slight, was adduced to show that King Cotton, by the arrangement of cotton modules on its premises, may have encouraged drivers of tractor trailers to exit its premises via the field road. Assuming evidence is adduced at trial that King Cotton’s behavior was continuing, and that King Cotton had knowledge that use of the field road by loaded tractor trailer trucks was unsafe but failed to act to correct its behavior within a reasonable time, that evidence would authorize a verdict for Powers under the theory of nuisance. See generally City of Bowman v. Gunnells, 243 Ga. 809, 811 (256 SE2d 782) (1979). Accordingly, a directed verdict in favor of King Cotton on the issue of nuisance would not be proper.

7. Powers finally contends the trial court erred by granting a directed verdict to King Cotton on the cause of action alleging negligence in failing to prevent Cobb from leaving its premises when it knew or should have known that he was a danger to others because he was intoxicated. We do not agree. Even assuming there was a jury question as to whether Cobb was noticeably intoxicated (one former employee of the cotton gin testified that he smelled alcohol around Cobb, although both the foreman who checked Cobb out and Cobb’s employer denied this), we do not agree with Powers that King Cotton had a duty to the world to prevent Cobb from driving on the public roads because it suspected he might not have been a safe driver. Powers concedes there is absolutely no suggestion that King Cotton provided alcohol to Cobb so as to bring it within the purview of OCGA § 3-3-22 or Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), and we know of no other statute or case law imposing a duty on a business to prevent its licensees from exercising their right to leave the business premises under such circumstances. Further, contrary to Powers’s argument, the evidence did not reveal authority on the part of King Cotton’s employees to prevent Cobb from leaving the premises. Employees testified only that they believed they had authority to prevent Cobb from loading his truck with cotton bales if they considered his doing so deleterious to King Cotton’s property or interest. Powers introduced no evidence, nor has he directed this court to any evidence admitted, which suggested that King Cotton’s employees had the authority to prevent Cobb from leaving or from driving a truck not belonging to King Cotton upon the public highways. Accordingly, under the evidence adduced at trial, the trial court properly granted King Cotton’s motion for a directed verdict on this issue.

Decided March 2, 1989

Rehearing denied March 21, 1989

Perry, Walters & Lippitt, C. Richard Langley, for appellant.

Cannon & Meyer von Bremen, William E. Cannon, Jr., for appellees.

Judgment reversed and Case No. 77641 remanded. Judgment affirmed in part and reversed in part and Case No. 77660 remanded.

Carley, C. J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

Although I concur fully in the result of the captioned case, it is appropriate to observe that, in Division 4 of the majority opinion, appellee Powers would most accurately be characterized, under generally recognized legal principles, as an “incidental third-party beneficiary” as distinguished from an intended beneficiary of the agreements and permit. Powers was not a third-party beneficiary of the agreements or the permit in the sense that he would have standing to seek enforcement of the agreements and permit. The fact that he would benefit from the performance of a contract makes him, at best, an incidental beneficiary. See Corbin on Contracts, Vol. 1 (1952), § 779C; Calamari & Perillo, Contracts (1970), p. 380 et seq. Otherwise, I concur fully with the majority opinion.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    77767.
    BROOKINS v. BROOKINS.
    (380 SE2d 494)
   Carley, Chief Judge.

OCGA § 9-3-20 provides that “[a]ll actions upon judgments obtained outside this state shall be brought within five years after such judgments have been obtained.” The issue presented for resolution in this discretionary appeal is the applicability of OCGA § 9-3-20 in an action for child support arrearages instituted pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), OCGA § 19-11-40 et seq.

This issue arises from the following facts: Appellee-wife and appellant-husband were divorced in Ohio in 1974. In 1985, appellee instituted this URESA action against appellant, seeking to recover arrearages in child support awarded by the Ohio judgment. Relying upon OCGA § 9-3-20, appellant moved to dismiss the URESA petition, insofar as it sought a recovery of child support arrearages which had accrued more than five years prior to the initiation of the action. The trial court denied appellant’s motion and entered a judgment against him for the arrearages. Appellant’s application for a discretionary appeal to this court was granted in order that we might address the issue of the applicability of OCGA § 9-3-20.

URESA was enacted to “improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” (Emphasis supplied.) OCGA § 19-11-41. Accordingly, a URESA action for child support arrearages cannot be viewed as a traditional “action on a foreign judgment.” Compare Levine v. Seley, 217 Ga. 384 (123 SE2d 1) (1961). A URESA action for child support arrearages seeks enforcement of a duty of support and it is a proceeding wherein the foreign judgment does not constitute the gist of the action, but is merely evidence from which the extent of the child support obligor’s default in meeting his duty can be quantified. When consideration is given to the express legislative intent underlying enactment of URESA, it would be anomalous to hold that a URESA action for child support arrearages is nevertheless subject to the same principles that would be applicable in a traditional “action on a foreign judgment.” “The purpose of URESA is to improve the enforcement of the duty of support, [cit.], not to impair that duty.” Ray v. Ray, 247 Ga. 467, 469 (277 SE2d 495) (1981). Rigid adherence to OCGA § 9-3-20 would not improve the enforcement of the duty of support but, in our increasingly mobile society, would make this state a haven for any child support obligor who had successfully evaded his duty to support his children for more than five years. “[A] mechanical application of [OCGA § 9-3-20] in this situation would frustrate the purposes of the URESA. . . . URESA was designed to facilitate collection of support from absent parents in distant states . . . without incurring excessive transportation and litigation expenses.” Brookins v. Brookins, 257 Ga. 205, 206 (2) (357 SE2d 77) (1987). Moreover, the inapplicability of OCGA § 9-3-20 in a URESA action for child support arrearages is consistent with authority from a neighboring jurisdiction. See Wood v. Hunter, 504 S2d 553 (Fla. App. 4th Dist. 1987). “While we are not bound by the decisions of . . . other states, they are particularly persuasive because we are interpreting a reciprocal uniform law.” State of Ga. v. McKenna, 253 Ga. 6, 9 (315 SE2d 885) (1984). “URESA was born of the failure of the common and statutory law existing in the various states. [Cit.] It announces the public policy of those states adopting the Act to exert every effort to force delinquent and recalcitrant parents who are able to meet their natural obligation to support their minor children who are in need.” Wood v. Hunter, supra at 555 (3).

Accordingly, we hold that OCGA § 9-3-20 does not provide appellant with a statute of limitation defense to this URESA action for child support arrearages under the Ohio judgment. The trial court correctly denied appellant’s motion to dismiss and entered judgment against appellant for all accrued arrearages.

Decided March 8, 1989

Rehearing denied March 21, 1989

Blandford & Werbin, John L. Blandford, for appellant.

Robert E. Wilson, District Attorney, Sheila A. Connors, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77827, 77828.
    TWIN OAKS ASSOCIATES v. DeKALB VENTURE, LTD.; and vice versa.
    (380 SE2d 469)
   Carley, Chief Judge.

Twin Oaks Apartments Associates (Twin Oaks) purchased an apartment complex. In connection with the purchase, Twin Oaks executed a promissory note and deed to secure debt. The note that was executed by Twin Oaks provided for a prepayment penalty. Subsequently, Twin Oaks sold the apartment complex. Twin Oaks financed this sale, taking back a wraparound promissory note and deed to secure debt executed in its favor. Thereafter, the apartment complex was bought and sold several times, each sale being subject to Twin Oaks’ wraparound note and deed to secure debt. Eventually, the apartment complex was purchased by DeKalb Venture, Ltd. (DeKalb Venture). When DeKalb Venture elected to make an early pay-off of the wraparound note, a dispute arose as to whether DeKalb Venture would be obligated to pay a prepayment penalty. When Twin Oaks refused to cancel its deed to secure debt without receipt of the prepayment penalty, DeKalb Venture acquiesced in the demand and paid the penalty.

Thereafter, DeKalb Venture brought suit against Twin Oaks, seeking to recover the prepayment penalty. Twin Oaks answered, denying the allegations of the complaint. After a period of discovery, cross-motions for summary judgment were filed. The trial court, after conducting a hearing, denied both motions, but certified its order for immediate appellate review. These appeals result from the grant of Twin Oaks’ and DeKalb Venture’s applications for an interlocutory appeal from the denial of their respective motions for summary judgment.

1. DeKalb Venture enumerates as error the denial of its motion for summary judgment, urging that no genuine issue remains as to its right to prepay the wraparound note without penalty.

The wraparound notes provided, in pertinent part, as follows: “The indebtedness evidenced hereby may be prepaid in whole or in part at any time without premium, penalty or unearned interest of any kind whatsoever (except as hereinafter provided to the contrary), in accordance with . . . the following provisions: .... By paying [Twin Oaks] the then outstanding principal amount evidenced hereby, together with all accrued and unpaid interest owing hereunder, whereupon [Twin Oaks] shall remit to the holder or holders of the Retained Debt an amount sufficient to pay the Retained Debt in full at that time, including any and all prepayment penalties, premiums and charges of any kind whatsoever which may be incurred in connection therewith, and shall obtain from said holder or holders the Prior Note marked ‘paid’ and all instruments securing same marked ‘cancelled’ (which undersigned shall be entitled to have cancelled of record.) [Twin Oaks] shall also promptly mark this Note ‘paid’ and shall cancel the Wrap Around Deed to Secure Debt and all other instruments securing this Note and return same to undersigned. . .

Twin Oaks urges that the penalty incurred for the prepayment of the “Retained Debt” evidenced by the note that it executed is to be construed as a part of the “outstanding principal amount . . . [and the] accrued and unpaid interest” which was owed by DeKalb Venture on the wraparound note and that, in order to obtain the cancellation of the deed to secure debt, DeKalb Venture was obligated to pay that prepayment penalty. In construing contracts, however, “the language used must be afforded its literal meaning and plain ordinary words given their usual significance. [Cit.]” R. S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 848 (219 SE2d 458) (1975). “If the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense. [Cits.]” Henderson v. Henderson, 152 Ga. App. 846, 847 (1) (264 SE2d 299) (1979). In their plain, ordinary, and popular sense, the terms “outstanding principal” and “accrued interest” do not include the concept of “prepayment penalties.” The words that were actually employed evince the clear intent that DeKalb Venture would be required to pay only the outstanding principal and interest owed under the wraparound note and that Twin Oaks would, in turn, be required to satisfy the “Retained Debt,” “including any and all prepayment penalties, premiums and charges of any kind whatsoever which may be incurred in connection therewith. ...” Satisfaction of the wraparound note was the DeKalb Venture’s only obligation. Satisfaction of the “Retained Debt” was the obligation of Twin Oaks.

Moreover, a separate provision of the wraparound note provided that DeKalb Venture would be obligated to pay a penalty if a partial prepayment was made. “It is the cardinal and fundamental rule that in construing contracts the entire writing is to be taken into consideration to ascertain the intent of the parties. . . .” Cummings v. Cummings, 89 Ga. App. 529, 531 (80 SE2d 204) (1954). As the wraparound note was worded, the intent could not be more clear that the parties’ respective rights and obligations were to be different in the event of the total prepayment of the note from their respective rights and obligations in the event of a partial prepayment. In the event of a partial prepayment, DeKalb Venture, as the obligor, would be liable for the payment of any penalty that was incurred. In the event of a total prepayment it was Twin Oaks, as the obligee, that would be responsible for the resulting penalty.

Decided February 28, 1989

Rehearing denied March 21, 1989

Glass, McCullough, Sherrill & Harrold, Robert S. Jones, Terrence McQuade, Dinah L. Hamilton, for appellant.

DeWitte Thompson, Jefferson B. Slagle, for appellee.

After applying the applicable rules of contractual interpretation, the proper construction of the wraparound note is that which is advanced by DeKalb Venture.

2. However, the undisputed evidence of record shows that DeKalb Venture’s payment of the prepayment penalty was made voluntarily. Accordingly, the penalty is unrecoverable. See generally OCGA § 13-1-13; Graham v. Cook, 179 Ga. App. 603, 605 (3) (347 SE2d 623) (1986); Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 82 (3) (240 SE2d 284) (1977). It follows that the trial court erred in denying Twin Oaks’ motion for summary judgment, but properly denied DeKalb Venture’s motion for summary judgment.

Judgment reversed in Case No. 77827. Judgment affirmed in Case No. 77828.

Deen, P. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A89A0142.
    EVANS v. THE STATE.
    (380 SE2d 332)
   Sognier, Judge.

Randall Nelson Evans appeals from his conviction of driving under the influence of alcohol.

In his sole enumeration of error, appellant contends the trial court erred by denying his motion to suppress the results of a field sobriety test and subsequent intoximeter test because he was stopped by police at a roadblock which did not comply with requirements set forth in State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984). We do not agree.

In Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), “the United States Supreme Court held that patrolmen may not stop motorists at random to inspect their driver’s licenses and vehicle registration papers, absent some specific, articulable suspicion of wrongdoing. It is clear, however, that the holding in Prouse was not intended as a prohibition against the utilization of highway roadblocks to conduct such inspections, for the Supreme Court specifically indicated in that opinion that roadblocks could be considered a valid alternative to random vehicle stops. [Cit.]” Golden, supra at 29 (2). We approved the use of a roadblock in Golden after considering several factors, finding that a brief stop was reasonable and violated no Fourth Amendment rights. Id. at 29-30 (2). The factors considered in. Golden were that the decision to implement the roadblock was made by supervisory personnel rather than by the officers in the field; all vehicles were stopped, leaving no discretion to the officers as to which vehicles to stop; the delay experienced by passing motorists was minimal; the operation was well identified as a police checkpoint; and the “screening” officer’s training and experience were sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication. Id.

Decided March 10, 1989

Rehearing denied March 21, 1989

Hester & Hester, Frank B. Hester, for appellant.

Lydia S. Jackson, Solicitor, for appellee.

We agree with the trial court that in the case sub judice, looking at the totality of the circumstances surrounding the roadblock, the factors considered in Golden were satisfied. Although the idea of the roadblock was initiated by the field officers, it was done with the approval of their supervisor and in accord with a continuing practice of the Gainesville Police Department; all passing vehicles were stopped; the delay to passing motorists was minimal; the roadblock was set up in a well lit area by uniformed officers, and patrol cars were stationed on both sides of the road and on the median with blue lights flashing, making the roadblock highly visible to approaching motorists; and the “screening” officer was sufficiently trained to enable him to make a determination as to which motorists should be asked to take the field sobriety tests.

Accordingly, the brief detention of appellant at the roadblock did not violate appellant’s Fourth Amendment rights, and the trial court did not err by denying appellant’s motion to suppress.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Benham, Judge.

text:
    77192.
    77193.
    THREE NOTCH ELECTRIC MEMBERSHIP CORPORATION v. BUSH et al. BABCOCK ENTERPRISES, INC. v. BUSH et al.
    (380 SE2d 720)
   Benham, Judge.

These two interlocutory appeals are from the denials of summary judgment to Three Notch Electric Membership Corporation (Three Notch) and Babcock Enterprises, Inc. (Babcock) on the issue of their alleged negligence with regard to Three Notch’s installation and maintenance of a power line on property that Babcock owned. Since some of the same issues are raised in both appeals, we have consolidated the cases.

In 1975, Three Notch installed a 7,200-volt power line to provide electricity for a peanut-drying shed and grain operation being run by Charley Fleet of Fleet Operations, Inc. (Fleet), the lessee of Babcock’s property. At the time the power line was installed, it met the requirements of the National Electric Safety Code, and was 78 feet, 4 inches from the last of the seven grain bins located on the property. A year or two later, Fleet installed an eighth grain bin, and early in 1985, he installed the last bin, which was 50 feet, 4 inches from the power line. On October 14, 1985, Mr. Fleet told Charlie Morgan and four other Fleet employees to move a grain auger, a long metal object on wheels used to load and unload grain, from the last bin to a temporary pit. As the workers were pushing the auger, which had not been lowered, to the pit, it struck the power line and electrocuted two of the five men. Morgan’s surviving spouse and children sued Three Notch, Babcock, and others for negligence. Three Notch and Babcock moved for summary judgment, which was denied.

1. Appellant Three Notch contends that the trial court erred in denying its motion for summary judgment because it was undisputed that when the power line in question was originally installed, it was 26 feet above the ground and 78 feet away from the nearest grain bin on Babcock’s land, and it met all of the applicable safety codes and standards. Therefore, it argues, the trial court should have concluded as a matter of law that Three Notch did not negligently install or maintain the power line. “It is elementary that one maintaining high tension lines must do so in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines. That was the duty owed by the power company to the plaintiff in this case.” Carden v. Ga. Power Co., 231 Ga. 456 (202 SE2d 55) (1973). Assuming arguendo that the original placement and installation of the power line was not negligently performed, there was evidence that from September 1984 until October 1985, Three Notch had notice that more bins had been added, the last one being only 50 feet away from the power line. This notice derived from the fact that due to a change in the meter billing system in September 1984, a Three Notch employee had to visit the work site monthly to read the meter. Three Notch’s knowledge of the changed conditions at the site and the nature of the work that was routinely done in the vicinity of the power line (including the use of portable metal augers extending to a height of 61 feet) created a question of fact whether its maintenance of the power line without some modification or warning constituted negligence. Compare Carden, supra, in which the power lines in question. were 24 feet over a traveled roadway, not a permanent work site, and the power company had no knowledge that other parties were conducting electrical construction work in the immediate vicinity of the wires at that height.

The question of fact that was created also precluded summary judgment on the other ground asserted by Three Notch, failure to comply with OCGA § 46-3-33. The statute requires that persons responsible for work to be done within eight feet of any high-voltage line must notify the owner or operator of those lines of the work to be done so that the owner can take the necessary safety measures required by OCGA § 46-3-32 before proceeding with the work in question. Three Notch argues that since it was not notified that the auger would be moved in an upright position within eight feet of the power line, it is not liable for the injuries the workers suffered. However, “lack of such notification is a bar to recovery only where the lines are ‘otherwise properly located and maintained.’ [Cit.]” Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145) (1983). Since it has not been shown as a matter of law that the lines were properly located and maintained at the time of the accident, it cannot be said as a matter of law that Three Notch is absolved of liability even in the absence of the statutory notice. Moreover, the lack of notice would be a defense that Three Notch could assert against Fleet, but not against Fleet’s employees. “[A] mere employee of a construction company, not having notification responsibility under the statute [OCGA § 46-3-30 et seq.] cannot be contributorily negligent as a matter of law just because he performed activities within the prohibited eight feet from high-voltage lines.” Carden at 457. Three Notch did not show that the decedents had such “notification responsibility” and thus failed to eliminate an issue of material fact in this case. Since issues of material fact as described above remained unresolved, the trial court did not err in denying Three Notch’s motion for summary judgment.

2. Both Three Notch and Babcock challenge the admission of an affidavit given by appellees’ witness, Mr. Donald, an expert in agricultural and electrical engineering. Donald stated that the lines in question were installed and maintained in such a way as to create a hazardous condition and that the subsequent addition of equipment in the grain-handling facility exacerbated the hazard. He also concluded that the average layman, including the farm workers in question, could not fully appreciate the risk of serious injury or death that is created by the presence of a 7,200-volt power line located in close proximity to a grain handling facility. Appellants contend that Donald’s statements were expressions of opinion on the ultimate issue of fact in the case, the negligence or non-negligence of the defendants, and, as such, were not admissible evidence. We disagree. Donald’s view of the premises in question as hazardous and his opinion of the layperson’s perception of the potential dangers therein were not pronouncements that the defendants were negligent in creating those conditions. His statements merely provided information beyond the scope of the ordinary layperson’s knowledge and experience. The average layperson is not familiar with design and function features of grain-processing facilities, placement of power sources, and the handling of equipment such as grain augers. Even if the statements did go to the ultimate issue, as appellants contend, they would still be admissible. “ ‘[I]f the nature of the question is such that the factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge, then the light of that knowledge should not be withheld from the jury because of such a fine distinction in the ordinary rules of evidence’ .... ‘A witness may testify as to his opinion where the question is a proper one for opinion evidence, even though it is the ultimate issue for the jury in the case. . . . [Tjhis is a correct statement of the present rule in Georgia.’ [Fn. omitted.]. . . . [Cit.]” Smith v. State, 247 Ga. 612, 616 (277 SE2d 678) (1981). The trial court did not err in considering the affidavit in ruling on the motions.

3. Appellant Babcock contends that since it fully parted with possession of the premises through its lease to Fleet, as a matter of law it cannot be held liable for Fleet’s alleged negligence in operating the grain facility. Our review of the lease between Babcock and Fleet reveals that Babcock’s initial premise is faulty. The lease states, inter alia, that Fleet “will not, without written consent of the landlord, (a) erect or permit to be erected on the farm any non-removable structure or building, or (b) incur any expense to the landlord for such purpose, or (c) add electrical wiring, plumbing, or heating to any buildings, and, if consent is given, he will make such additions meet standards and requirements of power and insurance companies.” The landlord also reserved the right to develop new lands not included in the present farm program, and the right of entry for the making of repairs, improvements, and inspections. Since Babcock had to approve the improvements and changes made on the property and otherwise did not relinquish possession and right of possession to the premises, and there was evidence that it was aware of the operations being conducted thereon, it cannot be said that, as a matter of law, Babcock was not subject to liability as the property owner for the allegedly hazardous conditions that existed. Babcock did not present evidence to show that the decedent’s knowledge of the danger was equal or superior to its own, and so a material question of fact remained. Summary judgment for Babcock was inappropriate and the trial court was correct in denying its motion. Compare Garnett v. Mathison, 179 Ga. App. 242 (345 SE2d 919) (1986).

Decided March 9, 1989

Rehearing denied March 22, 1989

Divine, Wilkin, Deriso, Raulerson & Fields, R. Kelly Raulerson, for appellant (case no. 77192).

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, Kirbo & Bridges, Bruce W. Kirbo, for appellant (case no. 77193).

Rentz & Shepard, Danny S. Shepard, Ronald H. Rentz, for appellees.

Judgments affirmed.

McMurray, P. J., and Pope, J., concur.


author: Beasley, Judge. Banke, Presiding Judge,

text:
    77374.
    SERVAIS v. PHILBRICK et al.
    (380 SE2d 496)
   Beasley, Judge.

Serváis sued Dr. Philbrick and Savannah Radiologists, P.A., alleging that while acting within the scope of his employment with the latter, Dr. Philbrick improperly performed an arteriogram procedure which caused permanent injuries. Serváis sought damages under the theories of medical malpractice and breach of contract in that Dr. Philbrick had expressly warranted he would not suffer any ill effects. The appeal, pursuant to OCGA § 9-11-56 (h), is from an order granting the defendants’ motion for summary judgment on the express warranty claim.

Serváis contends that the affidavits of the parties raise material issues of fact. His affidavit states that Dr. Philbrick had “expressly assured” him that the procedure would be “routine” and that there was “nothing to worry about.” He further swore that Dr. Philbrick never explained any “untoward reactions” that might be encountered or told him about any recognized complications such as he has suffered, thereby causing him to accept and rely on Dr. Philbrick’s representations in agreeing to undergo the arteriogram.

Dr. Philbrick averred that before performing the arteriogram he “believed” he explained the major untoward reactions to Serváis; that at no time did he expressly warrant the results of the treatment and never used any language to suggest that the procedure would be free of complications; that he did not tell Serváis that what he was going to do would be “routine” or that he would have “nothing to worry about” or that there should be no “concern” about the procedure.

This case is controlled by Taratus v. Smith, 245 Ga. 107 (263 SE2d 145) (1980). Accord McAllister v. Razook, 180 Ga. App. 585 (1) (349 SE2d 810) (1986).

The alleged statements are too vague to ascertain therefrom that “both parties to the alleged contract of express warranty ‘understood and agreed to the same thing.’ [Cit.]” Taratus v. Smith, 245 Ga. 107, 108 (263 SE2d 145) (1980). “To recover for an express warranty it is necessary to show that the statement was intended to be an express warranty and that it was relied upon as such. [Cit.] ‘(M)ere words of recommendation are not sufficient to constitute such a warranty.’ [Cit.]” Kushner v. McLarty, 165 Ga. App. 400, 403 (2) (300 SE2d 531) (1983).

Dr. Philbrick’s statements do not constitute an express warranty that the proposed medical treatment would be totally risk free. “In context the words were merely prefatory with no connotation of promise or warranty. [Cit.]” McAllister v. Razook, 180 Ga. App. 585, 586 (1) (349 SE2d 810) (1986). Hence, no enforceable contract of express warranty arose and summary judgment on this claim was correct.

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

This case is controlled neither by Taratus v. Smith, 245 Ga. 107 (263 SE2d 145) (1980),'nor by McAllister v. Razook, 180 Ga. App. 585 (1) (349 SE2d 810) (1986).

In Taratus, a dentist was sued for breach of an express oral warranty to correct or “cure” a patient’s “dental condition.” The Supreme Court upheld a directed verdict for the dentist on that claim, as follows: “Plaintiff’s proof is that the defendant expressly promised to correct his daughter’s dental condition and that at the time the defendant discharged his daughter as a patient the defendant represented he had fully corrected the dental condition he had contracted to correct. This testimony is entirely vague as to the nature of the condition to be corrected or the services to be performed. It is impossible to ascertain from this testimony whether both parties to the alleged contract of express warranty ‘understood and agreed to the same thing.’ [Cit.]” Id. 245 Ga. at 107-8.

In McAllister, a dentist was sued for breach of an alleged warranty to “maintain [the patient] in a state of comfort and health.” The claim was predicated on the following language contained in a letter sent by the dentist to the patient’s insurance company, outlining the course of treatment he had prescribed for the patient: “In order to maintain her in a state of comfort and health and to continue to promote proper muscle function and relaxation the following more permanent treatment will be necessary.” Concluding that “the[se] words were merely prefatory with no connotation of promise or warranty,” this court held that the dentist was entitled to summary judgment on the claim. Id. 180 Ga. App. at 586.

Decided March 10, 1989

Rehearing denied March 22, 1989

Joseph B. Bergen, Frederick S. Bergen, for appellant.

Oliver, Maner & Gray, Thomas A. Withers, for appellees.

The plaintiff in the present case does not contend that the defendant breached a promise to cure him or maintain him in a state of comfort and health. Rather, he contends that, by assuring him prior to performing the arteriogram that the procedure was “routine” and that there was “nothing to worry about,” the defendant falsely represented to him that there were no recognized complications associated with the procedure. I do not believe we can conclude as a matter of law that the plaintiff’s interpretation of the alleged assurances was unreasonable under the circumstances, nor do I believe that such a representation can be equated with a vague undertaking to effect a cure or to maintain a patient’s health. Being of the opinion that a material factual dispute exists in this case with respect to whether the defendant actively misrepresented the risks associated with the procedure, I would hold that the trial court erred in granting the defendant’s motion for summary judgment. Accord Spikes v v. Heath, 175 Ga. App. 187 (2) (332 SE2d 889) (1985). See generally OCGA § 31-9-6 (d).

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


text:
    77931.
    GAINES v. CROMPTON & KNOWLES CORPORATION et al.
    (380 SE2d 498)
   Benham, Judge.

This appeal is from a judgment in favor of appellees-plaintiffs in a suit arising from a series of agreements between the parties. The agreements arose initially from the sale of a business by appellant to appellee Crompton & Knowles Corporation (C&K), and then from appellant’s conduct with regard to covenants in those agreements restricting appellant’s right to compete with appellees C&K and KEM Corporation (KEM). Alleging that appellant had violated the agreements in numerous ways, especially by covertly competing with appellees through the means of corporations ostensibly owned by members of appellant’s family, appellees brought this suit against appellant and Testron International, Inc., to recover damages for breach of contract, fraud, breach of fiduciary duties, and conspiracy to breach contracts. The jury returned a verdict against both defendants; only appellant appeals.

1. In three of nineteen enumerations of error, appellant complains that appellees did not prove damages with regard to their claims of breach of contract and breach of fiduciary duties, and did not prove that there was a breach of fiduciary duties by appellant. We disagree.

A. With regard to damages for breach of contract, appellant’s arguments center on his contention that appellees sought damages under the incorrect measure of damages. Specifically, appellant contends that appellees’ recovery, if there should be any, is limited to the net profits lost through appellant’s conduct. In Reid v. Bryant, 100 Ga. App. 105 (4) (110 SE2d 571) (1959), this court held that a plaintiff in a suit such as the present one could recover, in addition to lost net profits, damages for loss of customers and loss of employees. Both those additional forms of damages were sought and proved in this case, as well as lost profits. Contrary to appellant’s insistence on appeal, appellees produced sufficient evidence for the jury to have a reasonable basis for determining the amount of net profit lost by appellees due to appellant’s wrongful conduct; questions regarding the method of computing damages concern credibility, not probative value.

B. As to appellees’ recovery for appellant’s breach of fiduciary duties, we first note that, in contrast to appellant’s present contention that since he was not an active employee or agent of appellees, he had no fiduciary duties, the clear language of the agreement the parties executed in 1979 placed on appellant certain fiduciary duties, and he testified at trial that he had such duties. Based on that evidence, the jury was authorized to find the existence of such duties. Appellant’s enumerations of error contesting the existence of fiduciary duties and challenging jury charges related to those duties are, therefore, without merit. Evidence of appellant’s disregard for those duties, including forbidden competition with appellees and recruitment of appellees’ employees supported a finding of appellant’s repeated breaches of his fiduciary duties.

The damages appellees sought for those breaches, return of amounts paid to appellant under the agreements between them, and the profits of Testron, the entity appellant allegedly created and aided in his breach of fiduciary duties, were authorized by Vinson v. E. W. Buschman Co., 172 Ga. App. 306 (1, 3) (323 SE2d 204) (1984).

Appellant’s first, ninth and tenth enumerations of error are without merit.

2. In his second enumeration of error, appellant argues that three jury charges concerning damages were erroneous. The first of those, appellees’ requested charge number 15, was a statement of the measure of damages set out in Reid, supra, and was clearly applicable to this case. Appellant’s argument that the charge permitted a double recovery perverts the language of the charge: it did not authorize a double recovery, but permitted the jury to consider more than one way in which appellant’s misconduct harmed appellees.

Appellees’ request to charge number 19 asserted that lost profits and earnings are recoverable and that evidence of lost profits and earnings had been presented. Appellant takes issue with the inclusion there of the word “earnings.” Pretermitting whether lost earnings, as opposed to profits, is an appropriate item of recovery, the trial court effectively limited the jury’s consideration to lost profits by omitting any mention that there had been evidence of lost earnings, stating only that there had been evidence of lost profits, and by charging elsewhere that damages must be shown by the evidence. Under those circumstances, and viewing the charge as a whole, we find that it “cannot reasonably be said to have misled the jury as to the appropriate principle of law applicable to the case. [Cit.]” Haynes v. Hoffman, 164 Ga. App. 236, 238 (296 SE2d 216) (1982).

The third charge on damages to which appellant takes exception, appellees’ requested charge number 21, is from Bennett v. Smith, 245 Ga. 725 (267 SE2d 19) (1980), and permitted the jury, if it found that appellee KEM’s expenses and costs remained the same despite a loss in sales revenue, to award lost profits without first deducting expenses. Although appellant vigorously contested appellees’ evidence that expenses and costs remained relatively fixed, there was evidence to that effect which the jury was entitled to credit if it chose. Since the charge was, therefore, both a correct statement of the law and authorized by the evidence, appellant’s objection to it is nonmeritorious. Lockard v. Davis, 169 Ga. App. 208 (2) (312 SE2d 194) (1983).

3. Appellant’s third enumeration of error, concerning the trial court’s failure to give certain requested charges, is deemed abandoned for failure to support it by argument or citation of authority. DeLoach v. Gen. Motors, 187 Ga. App. 159 (4) (369 SE2d 484) (1988).

4. In several enumerations of error, appellant attacks the verdict against him on appellees’ fraud claim, contending that the trial court erred in denying his motions for directed verdict and judgment notwithstanding the verdict with regard to appellees’ fraud claim, that the jury charges on that subject were incorrect, and that evidence relating to that claim was improperly admitted.

A. The first basis for appellant’s argument that he was entitled to a directed verdict or judgment notwithstanding the verdict is that a release in the agreement of December 1980, an agreement entered into to settle a lawsuit arising from appellant’s breach of earlier agreements, bars appellees’ fraud claim. That argument ignores the fact that the fraud alleged was that appellant made representations in that December 1980 contract which he knew to be false because he had no intention of honoring the promises he was making therein. That being so, appellees’ cause of action did not arise until after the contract was signed. “[A] ‘release’ must come after a cause of action has arisen.” Cash v. Street & Trail, Inc., 136 Ga. App. 462, 464 (221 SE2d 640) (1975). Since the cause of action had not arisen, the release did not relate to the fraud alleged in this suit.

B. The second basis appellant asserts on appeal as a bar to appellees’ fraud action is that appellees waived the fraud. That ground was not asserted to the trial court in the motion for directed verdict or in the motion for judgment notwithstanding the verdict, so it is not properly before this court and will not be considered. Chafin v. Wesley Homes, Inc., 186 Ga. App. 403 (3) (367 SE2d 236) (1988).

C. Appellant also argues that a merger clause in the December 1980 agreement bars appellees’ assertion of an action for fraud. However, the so-called merger clause merely provides that the agreement is the entire agreement of the parties regarding the settlement of the lawsuit; it does not purport to merge any prior representations. Furthermore, appellees have not relied on representations extrinsic to the contract; their claim of fraud is based on alleged misrepresentations by appellant in the contract itself.

D. Although appellant enumerates as error the giving of eleven of appellees’ requested charges on fraud, all but three are abandoned by lack of argument, two of those were not the subject of objections at trial, and the other was objected to on a ground different from that raised on appeal. Under those circumstances, appellant’s complaints about the jury charges on fraud do not warrant consideration by this court. Lovell v. Dept. of Transp., 187 Ga. App. 259 (370 SE2d 27) (1988).

E. Appellant’s argument that evidence of pre-December 1980 conduct should not have been admitted to prove fraud is based on his contention that appellees’ fraud claim was barred for the reasons discussed above. Since we have ruled that the claim was not barred, this argument fails as well.

F. Appellant’s argument in support of his seventeenth enumeration of error is that the trial court erred in charging the jury on punitive damages because there was no viable tort claim in the case. Our ruling in this division having destroyed the underpinnings of that argument, it must fall.

5. One ground of recovery asserted at trial was a conspiracy between Testron and appellant to breach appellant’s contracts with appellees. Appellant’s assertion that there is not such a cause of action is controlled adversely to him by Luke v. DuPree, 158 Ga. 590 (1) (124 SE 13) (1924). His assertion that jury charges on that claim were erroneous is based on the same misconception of the law and is equally without merit.

6. This lawsuit was prosecuted in Fulton County, and venue there as to appellant, a resident of Cobb County, was based on his status as a joint tortfeasor with Testron. Because the jury’s verdict apportioned the damages between the defendants, appellant urges on appeal that the verdict shows that the jury did not award damages against the two defendants as joint tortfeasors, but severally, and that the basis for venue as to him was thereby destroyed. In making that argument, appellant ignores the rule that where, as here, the damage is to property rather than to the person, the jury may apportion the damages between the jointly-sued defendants. ITT Terryphone Corp. v. Tri-State Steel Drum, 178 Ga. App. 694, 700 (344 SE2d 686) (1986). Having failed to object to the form of the verdict at trial, appellant is not entitled to ask this court to speculate on how the verdict was calculated. “We are satisfied that the jury was authorized to assess a general and total amount of damages in favor of [appellees] . . . and then apportion those damages. . . . [Cits.]” Id.

7. Appellant’s complaint in his twelfth enumeration of error, that the trial court erred in denying his motion for summary judgment, is without merit since the denial of summary judgment becomes moot after verdict and judgment. Atlanta Car For Hire Assn. v. Whited, 179 Ga. App. 893 (1) (348 SE2d 102) (1986).

8. Evidence of appellant’s dealings with a Testron salesman who worked in areas where appellant agreed not to compete, and his financial dealings with an associate who was involved with appellant’s family in Testron, was properly admitted to show that appellant violated the geographical restrictions imposed by the agreements to which he was a party, and that he sought to finance indirectly enterprises competing with appellees, in violation of the agreement.

9. A witness named Miller testified for appellees, and appellant contends it was error to permit him to interpret the several agreements for the jury. That contention is incorrect because the testimony to which appellant directs our attention is simply not of the character ascribed to it by appellant. Rather than interpret the agreements, Miller gave historical information providing a context for the agreements and the reasons for the various restrictive provisions in the agreements.

10. The trial court’s failure to give appellant’s requests to charge numbers 5 and 6 is enumerated as error. The argument on appeal as to request number 5 is not the argument made at trial in favor of giving the charge, so we need not consider it. Lovell, supra. Requested charge number 6, which would have instructed the jury that “where the parties have reduced to writing what appears to be a complete and certain agreement it will be conclusively presumed that the writing contains the entire agreement, and oral evidence of prior or contemporaneous representations or statements are not admissible to add to, take from, or vary the written instrument,” purports to be taken from Heyman v. Fin. Properties &c., 175 Ga. App. 146 (332 SE2d 893) (1985), but it omitted the key phrase, “in the absence of fraud, accident, or mistake” which should have followed the word “will.” Id. at 148. Considering the allegations and evidence of fraud by appellant in this case, that omission robbed the requested charge of its meaning. A requested charge need be given only if it embraces a correct and complete principle of law and is adjusted to the evidence. State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (2b) (364 SE2d 62) (1987). The trial court was correct in rejecting request number 6.

11. In support of his contention that the trial court erred in charging the jury on attorney fees pursuant to OCGA § 13-6-11, appellant argues only that there was no evidence to support the charge. Evidence that appellant entered into the agreements with no present intention of keeping them was sufficient to authorize the charge and the recovery of attorney fees for bad faith. Spearman v. Flanders, 143 Ga. App. 759 (1) (240 SE2d 141) (1977).

12. Although he made no request for such a charge, appellant contends on appeal that the trial court erred in failing to instruct the jury on the resolution of ambiguous contracts. Unless the failure to give a charge is harmful as a matter of law to the extent that a gross miscarriage of justice is about to result, the absence of a written request is a waiver of the right to complain on appeal. Williams v. Kennedy, 240 Ga. 163 (2) (240 SE2d 51) (1977). We find no likelihood in the present case of a miscarriage of justice, and no merit in appellant’s enumeration of error on that issue.

13. Finally, appellant’s contention that the trial court erroneously restricted his testimony is a misstatement of the record. In fact, the ruling of which appellant complains was the trial court’s overruling of appellees’ objection to appellant’s testimony concerning the intent of the parties in executing the agreements involved in this suit. What appellant characterizes as a limitation on the jury’s consideration of his testimony was no more than a statement, in colloquy with counsel, of the reason the trial court was permitting appellant to testify about his subjective understanding of the contract.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.

Decided March 10, 1989

Rehearing denied March 22, 1989

Bedford, Kirschner & Venker, Andrew R. Kirschner, for appellant.

David Schaeffer, Charles M. Kidd, for appellees.


text:
    77166.
    WILHELM v. ATLANTA GAS LIGHT COMPANY.
    (380 SE2d 276)
   Sognier, Judge.

Mary Wilhelm brought suit against Atlanta Gas Light Company to recover damages for the injuries she allegedly incurred when an Atlanta Gas Light truck rear ended the vehicle in which she was a passenger. The jury returned a verdict in favor of Atlanta Gas Light and Wilhelm appeals.

1. Appellant contends the trial court erred by admitting evidence of benefits she had received from a collateral source, namely, workers’ compensation. The collision occurred on July 3, 1984; the complaint was filed July 25, 1985 and trial commenced December 1, 1987. Appellant “filed a motion in limine seeking to have collateral benefits ruled inadmissible, contending that [OCGA § 51-12-1 (b), effective July 1, 1987] should be applied prospectively only. The trial court erroneously denied the motion, according to the subsequent decision in Polito v. Holland, 258 Ga. 54, 58 (5) (365 SE2d 273) (1988).” Kelley v. Harris, 187 Ga. App. 215 (369 SE2d 534) (1988). As in Thomas v. Clark, 188 Ga. App. 606 (373 SE2d 668) (1988), appellant did not waive, but affirmatively asserted claims for, medical damages, regarding which on cross-examination appellee was allowed to elicit that she had been recompensed by her workers’ compensation benefits for all medical expenses she was claiming. “Under these circumstances, we cannot find the error harmless within the meaning of OCGA § 9-11-61 .... [Likewise, the] facts of this case are distinguishable from Petty v. Barrett, 187 Ga. App. 83 (369 SE2d 294) [1988]. We are satisfied that a new trial is necessary in this case.” Id. at 607-608 (1). In view of the probability that the improper admission of evidence regarding appellant’s collateral benefits directly influenced the jury into rendering a verdict that appellant recover nothing from appellee, we do not agree with appellee that the reasoning in Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154-155 (1) (342 SE2d 352) (1986), is apposite here.

2. Appellant argues the trial court erred by giving a charge on legal accident because the evidence did not demonstrate that the accident occurred in the absence of negligence for which no one would be liable, citing Pelt v. Hutchinson, 170 Ga. App. 408-409 (1) (317 SE2d 217) (1984). However, as we noted in Wilhite v. Tripp, 179 Ga. App. 428, 429 (1) (346 SE2d 586) (1986), even where the evidence would have authorized the jury to find that the accident occurred as the result of negligence by the parties to the suit or others, if the evidence also presents an “alternative explanation . . . which did not involve negligence on the part of anyone,” a charge on accident is proper. Appellee argues that the giving of an accident charge was supported by evidence indicating that the accident occurred because appellee’s truck, although driven at a reasonable speed and at a reasonable distance behind the vehicle in which appellant was a passenger, was unable to stop when the brakes were timely applied because of the rain-slick pavement. Upon retrial, should evidence be introduced equivalent to that adduced at this trial on which appellee relies, we cannot say that the giving of a proper charge on legal accident would be error. We need not address appellee’s arguments explaining why the charge given in the case sub judice may have been proper despite appellee’s admission that it incorrectly states the law on accident, because appellant did not enumerate any error regarding the accuracy of the language of the charge itself, and upon retrial this matter will likely be corrected.

3. Appellant contends the trial court erred by failing to give her requested charge based on OCGA § 40-6-49 (d), which provides that “[vehicles which approach from the rear any other vehicle or vehicles stopped or slowed to make a lawful turn shall be deemed to be following for purposes of this Code section.” It is apparent from the plain and unambiguous language of this statute, see generally Dixie Constr. Prods. v. Southeastern Council &c., 183 Ga. App. 101, 102 (357 SE2d 831) (1987), that an approaching vehicle is “following” the leading vehicle for purposes of OCGA § 40-6-49 (d) only where the leading vehicle has stopped or slowed to make a lawful turn. Where, as here, the evidence is uncontroverted that the leading vehicle in the accident was not itself stopped or slowing to turn, but instead had stopped because a vehicle ahead of it had stopped for the purpose of turning, the specific situation set forth in OCGA § 40-6-49 (d) is not applicable and a trial court does not err by failing to charge that subsection. See generally Andrews v. Major, 180 Ga. App. 393, 396 (5) (349 SE2d 225) (1986).

4. Appellant contends the trial court erred by failing to give her requested charge that the driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic and he must maintain a diligent lookout therefor. “ ‘A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.’ [Cit.]” (Emphasis supplied.) Andrews, supra at 396 (5). Should, upon retrial, no evidence be introduced other than the testimony by appellee’s employee that he was attentive during the entire incident, appellant’s evidence that the driver of her vehicle was able to avoid a collision with the vehicle in front of him would not constitute evidence that the employee-driver of appellee’s truck was not diligent so as to authorize the giving of the requested charge.

5. Appellant asserts as error the trial court’s refusal to admit the medical records from her treating physician on the basis that portions of the records contained inadmissible hearsay. While it is not error for a trial court to admit evidence as a whole over a hearsay objection when the complainant fails to specify what portions are inadmissible, see Armstrong v. Vallion, 187 Ga. App. 380 (2) (370 SE2d 215) (1988), it is likewise not error for a trial court to refuse to admit medical records containing diagnostic opinions and conclusions unless and until the proper foundation is laid. See Dennis v. Adcock, 138 Ga. App. 425, 428 (2) (226 SE2d 292) (1976). Since appellant neither deleted or expunged the hearsay portions of the records, as suggested by the trial court, nor established the proper foundation for the admissibility of all the evidence in the records, we cannot say under the circumstances presented in the case sub judice that the trial court erred by refusing to admit appellant’s evidence.

Judgment reversed.

Carley, C. J., and Deen, P. J., concur in Divisions 1, 2, 4, 5, and in the judgment.

On Motion for Rehearing.

Appellee moves this court to reconsider Division 1 in light of Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510) (1989). In Whelchel, as in the case sub judice, evidence of collateral benefits was improperly admitted and a verdict was returned in favor of the defendant. However, the trial court in Whelchel gave a charge limiting the jury’s discretionary consideration of the collateral source evidence to the question of damages. In the case sub judice, the trial court charged the jury that evidence of collateral benefits is admissible in evidence and that the jury in its discretion “may consider such available benefits or payments and the cost thereof arriving at your verdict, but [you are] not required or directed to reduce the amount of damages.” (Emphasis supplied.)

Whelchel stands for the proposition that the improper admission of collateral source benefits is harmless error where the jury’s consideration of the evidence is restricted solely to the issue of damages and a verdict is returned in favor of the defendant, under cases like Maloy v. Dixon, 127 Ga. App. 151, 156, n. 2 (193 SE2d 19) (1972). Whelchel is thus inapposite to the case at bar where the charge as given did not deal solely with damages but authorized the jury to consider the improper evidence as it relates to the verdict, i.e., the issue of liability. Therefore, not only was the admission of evidence regarding appellant’s collateral benefits error here, see Kelley, supra, but that error was not rendered harmless by the charge given. See Mathis v. Watson, 259 Ga. 13 (376 SE2d 660) (1989).

Decided February 9, 1989

Rehearing denied March 23, 1989

Joe L. Anderson, for appellant.

Hansell & Post, R. Matthew Martin, for appellee.


author: Deen, Presiding Judge.

text:
    77424, 77425.
    A. L. WILLIAMS & ASSOCIATES, INC. et al. v. FAIRCLOTH; and vice versa.
    (380 SE2d 471)
   Deen, Presiding Judge.

A. L. Williams & Associates, Inc. (Williams), markets life insurance as a general agent for Massachusetts Indemnity and Life Insurance Company (MILICO), and provides a sales force of agents for MILICO’s products. The Williams agency has a management structure including Regional Vice Presidents (RVPs), some of whom are appointed Senior Vice Presidents (SVPs). The SVPs also have RVP duties. The agents receive a commission based upon the amount of the first-year premium paid by the client. They may also receive renewal commissions, as specified in their respective contracts, based upon subsequent annual premiums.

Managers, RVPs, and SVPs also receive first-year and renewal commissions known as overrides, which are based upon commissions earned by the agents whom they manage. The general agent (Williams) also receives commissions based upon first-year sales by its sub-agents and renewals. Agents, including managers, receive advance commissions from MILICO each of which is actually a loan, denominated a “debit balance,” until the client pays the premium. This debt is repayable by the agent if the premium is not paid.

Norman Tee Faircloth was appointed by Williams as a general sales agent for MILICO. He held the titles of RVP and SVP with Williams. There were three contracts that he executed with regard to these positions: the MILICO agent agreement, the Williams Regional Vice President agreement, and the Williams Senior Vice President agreement.

Faircloth, as RVP and SVP, had approximately 40-60,000 sub-agents below him and he received overrides based upon the production of these agents. His duties included recruiting, training, and motivating the agents as well as selling insurance products himself. Williams and Faircloth had some difficulties in their business relationship, and Williams notified Faircloth by letter dated June 28, 1982, that it was exercising its contract right to notify MILICO to terminate his status as agent for that company. He was also informed that as of June 28, 1982, the RVP contract was terminated, and he was advised to abide by the terms of the SVP contract to avoid divestment and forfeiture of benefits which might be payable under it. On August 13, 1983, MILICO notified Faircloth that their agreement was terminated. Williams contends that after Faircloth received the June 28 letter, he immediately breached the terms of the SVP agreement by recruiting Williams’ personnel for a competing business that he had established. Williams also contends that the SVP contract conditioned payment of overrides upon Faircloth’s not accepting employment as an agent with any of three specified life insurance companies for whom Williams had been a general agent. Faircloth executed a general agency contract with Financial Assurance on September 9, 1982. He did not receive any further compensation from Williams and MILICO.

In 1984, Faircloth filed a complaint against A. L. Williams & Associates, Inc., “The A. L. Williams Agency,” Arthur L. Williams, and Massachusetts Indemnity and Life Insurance Company, alleging that the various defendants had breached certain insurance agency contracts and fraudulently terminated his contracts. The complaint was later amended to add additional allegations of breach of contract, tortious interference with contracts, and conversion of commissions. The defendants denied liability and asserted counterclaims. The A. L. Williams Agency denied that it was a legal entity amenable to suit.

In November of 1985, Faircloth moved for partial summary judgment on the issue of whether certain noncompetition convenants contained in the contracts were enforceable. On March 17, 1986, the court granted the motion in part and denied it in part, holding that the covenants were unenforceable by injunctive relief, but were valid as a condition to Faircloth’s entitlement to contractual benefits. After the decision in Kem Mfg. Corp. v. Sant, 182 Ga. App. 135 (355 SE2d 437) (1987), the trial court, on August 17, 1987, amended its order and granted appellee’s motion in its entirety.

In January of 1986, Faircloth moved to strike four counts of Williams’ counterclaims not contained in the original answer. The trial court denied the motion, but sua sponte struck them, ruling that they were not properly before the court since leave to amend had not been obtained. On August 17, 1987, the court denied Williams’ motion to permit filing of the stricken counterclaims.

Faircloth moved for partial summary judgment in May of 1986 on one of the original counterclaims and on one of the four additional counterclaims not contained in the answer. The court held that the issue as to the latter was moot because it had denied Williams’ motion to amend; it granted summary judgment to Faircloth on the former, apparently on procedural grounds. It noted, however, that summary judgment would be granted on the merits if the issue were properly before the court.

On January 14, 1986, all the defendants moved for summary judgment in their favor on Counts I, II, and III of the complaint and for the A. L. Williams Agency as to the entire complaint. The court denied the motions except as to “The A. L. Williams Agency” finding it was not a legal entity.

Case No. 77524

1. Appellants contend that the trial court erred in failing to grant summary judgment in their favor as to Count III of the complaint (the issue of “fraudulent termination” of the various contracts between the parties).

Count III of Faircloth’s complaint alleges that the defendants fraudulently terminated his rights under the various contracts by inducing him “to diligently devote his time and energies into building up an effective and profitable organization within the structure established by the Williams organizations and MILICO, and that after that structure had been established and [he] was reaping the benefits thereof, defendants maliciously and without cause terminated those contracts, thus retaining the benefits of his endeavors, and preventing [him] from receiving the benefits to which he would otherwise have been entitled.”

The Senior Vice President (SVP) agreement incorporates the Regional Vice President (RVP) contract by reference. While the RVP contract is terminable at will, the SVP agreement is not. It specifically provides that it may be terminated only by agreement of the parties or for cause. Faircloth’s Regional Manager agreement with MILICO provides that Williams is appointed his attorney-in-fact to amend the agreement or commission schedule. Paragraph 6 reserves to the general agent (Williams), who is not a party to the agreement, the right to notify the company to terminate the agreement. Fair-cloth’s SVP contract, however, controls the power of Williams to terminate his employment only for cause or by agreement of the parties. It also requires Williams to use its “best efforts” to obtain payment of commissions and for Williams to negotiate with life insurance companies on Faircloth’s behalf. Williams was therefore Faircloth’s agent when acting in his behalf in the enumerated instances. Smith v. Merck, 206 Ga. 361, 368 (57 SE2d 326) (1950). “The relation of principal and agents is a fiduciary one,” Smith v. Merck id., and whether the agreements were terminated by Williams in a fraudulent manner is a question of fact requiring jury resolution. A jury could find that its acts constituted an abuse of its agency powers by damaging Fair-cloth to its own benefit.

2. The key to appellants’ argument that the court improperly denied summary judgment on the tortious interference with contract claims (Count II of the complaint) is that a mere breach of contract is not a tort. Globe Life &c. Ins. Co. v. Ogden, 182 Ga. App. 803 (357 SE2d 276)(1987), holds that this general rule applies in the absence of a special relationship. Agency, however, is a special relationship. Bulmer v. Southern Bell &c. Co., 170 Ga. App. 659, 660 (317 SE2d 893) (1984). The MILICO Regional Manager contract appoints Williams as Faircloth’s attorney-in-fact tp amend the agreement and gives it a corresponding power to notify MILICO to terminate the agreement. These powers are controlled by Faircloth’s agreement with Williams to terminate only for cause or by agreement, etc., as set forth in Division 1 above. A jury could find that Williams acted outside the scope of its powers by notifying MILICO and requesting that it terminate Faircloth’s contract.

3. Appellants contend that the trial court erred in failing to grant summary judgment in their favor on Faircloth’s “conversion” claim. In his complaint, Faircloth alleges that the defendant converted certain commissions that were due him under his employment contracts.

An examination of the record reveals that this issue was not raised in the motion to dismiss the conversion claim nor in the motion for summary judgment. No order referring to such a claim can be found in the record. Issues not raised and ruled upon in the court below cannot be raised in this court for the first time on appeal. Bostic v. State, 184 Ga. App. 509 (361 SE2d 872) (1987).

4. This enumeration, which claims that the court below erred in failing to grant summary judgment in MILICO’s favor as to its liability for commissions following the termination of Faircloth’s contract, was also not raised in the court below and will not be considered for the reason set forth in Division 3 above.

5. Appellants urge as error the failure of the court below to find that since the non-competition covenants were void, that the payment provisions conditioned upon the covenants likewise failed. The plaintiff raised the issue that the covenants were void, but appellants did not raise the issue that the payment provisions likewise failed.

6. Appellants assert as error the trial court’s ruling that the non-competition covenants contained in Faircloth’s contracts with Williams were invalid conditions to compensation thereunder. (The court was concerned with the contract provision that a breach of the covenants could trigger a forfeiture.) The record shows that nothing in the plaintiff’s motion for summary judgment of November 1985, asked for a ruling as to the effect of forfeiture of deferred compensation if the provisions were found to be unenforceable. In its March 17, 1986 order, in ruling on Faircloth’s motion, the trial court found the covenant not to compete to be over-broad and, in response to the defense that the covenant was valid for the purposes of determining whether the plaintiff was entitled to renewal commissions, stated: “The unenforceability of the covenant, however, does not affect the right of A. L. Williams & Assoc., Inc., and Arthur L. Williams, Jr., to deny plaintiff certain benefits under the employment agreement based upon a forfeiture of those benefits for violation of the non-competition covenant. To the extent that plaintiff’s motion seeks an order in its behalf on this forfeiture question, it is denied. See Collins v. Storer Broadcasting, 217 Ga. 41 (1961); Sheppard v. Columbus Packaging, 146 Ga. App. 202 (1988); Shandor v. Wells National Service, 478 F. Supp. 12 (N. D. Ga. 1979).”

The August 17, 1987, order only modified the prior grant of the plaintiff’s motion and held that it was a jury question as to whether the plaintiff violated any alleged rules and regulations and whether any such violations provided a valid basis for the denial of deferred and renewal compensation. The court went on to find that under the decision in Kem Mfg. Corp. v. Sant, supra, “that defendants could not deny plaintiff his benefits based upon any breach of covenant which this court has found to be overbroad and unenforceable by way of injunction.”

Contrary to appellants’ assertion, we find no conflict between the holdings in Collins v. Storer Broadcasting Co., supra, and Kem Mfg. Corp. v. Sant, supra. Collins involved a profit-sharing trust created by the employer which was managed by an independent trustee, and no contribution of employee funds was involved. The trust instrument created a committee to determine whether the divestiture provisions of the trust had been met and provided for the non-liability of the committee members except for wilful misconduct. In ruling upon a former employee’s suit against the committee members which claimed that the committee members’ breach of their duties towards him by determining that he had forfeited his right to participate in the plan was made wilfully and wantonly with a disregard of his rights, the court found that the committee members had acted in accordance with the powers granted under the trust instrument and the petition failed to state a cause of action. Nothing in Collins addresses the use of an overbroad restrictive covenant as a basis for liquidated damages or as a valid condition precedent to compensation. Kem held that an overbroad restrictive covenant which is tied in the contract to injunctive relief cannot be used to bring about a forfeiture in favor of one of the contracting parties. We find no merit in this enumeration.

7. Appellants claim that it was reversible error for the court below to fail to grant his motion to add counterclaims VIII, IX, X and XI, which had not been filed with the answer. The trial court held that while plaintiff’s motion to strike the counterclaims was untimely filed, the counterclaims were not properly before the court “because no leave of court had been obtained” to file them.

OCGA § 9-11-13 (a) requires a pleading to state “as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” Subsection (f) provides: “When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” Under this subsection the trial court is vested with discretion which will not be controlled by this court absent abuse. Clairmont Foods v. Huddle House, 142 Ga. App. 171 (235 SE2d 635) (1977).

After conducting a hearing, the trial court by order of August 17, 1987, found that the defendants knew or should have known of the grounds of certain. counterclaims at the time the answer was filed. “[T]here is no reason or excuse for delay in filing these counterclaims, and this court is not persuaded that justice requires they be amended.” The court cited Sasser & Co. v. Griffin, 133 Ga. App. 83, 89 (210 SE2d 34) (1974), as authority for its ruling. We find no error as the record below contains no reason for the delay of nearly 2 years in filing the counterclaims. See also Ballenger Corp. v. Dresco &c. Contractors, 156 Ga. App. 425, 435 (274 SE2d 786) (1980). Contrary to appellants’ assertion, Easley v. Clement, 187 Ga. App. 799 (371 SE2d 416) (1988), is not on point and does not involve application of OCGA § 9-11-13 (f) which governs the late filing of compulsory counterclaims.

8. Appellants further claim that it was error for the trial court to consider the merits of Count IX of their counterclaim and in not permitting it to be filed. This count was based on the restrictive covenant and is controlled by our holding in Division 7 above.

9. The court below did not err in dismissing Count VII of appellants’ counterclaim (breach of stock subscription pooling contracts) for want of proper parties. The counterclaim alleges that Faircloth resold 22,800 of his subscribed shares and that he “agreed to indemnify and hold harmless any person damaged by reason of plaintiff’s breach of the above-referenced representations, warranties and agreements.” This agreement was with First American National Corp. (now A. L. Williams Corp.). The counterclaim does not allege that anyone was harmed as a result of the resale of the stock.

The trial court conducted a hearing, and there is no transcript of the evidence included with the appellate record. The counterclaim was dismissed on the grounds that appellants were not the real parties in interest. The court found that it had “substantial concerns about the propriety of the alleged assignment of the claim from [the stock purchasers] to A. L. Williams & Assoc., Inc.” and went on to set forth its reasons. It found that the claim remained overwhelmingly that of the purchasers who were strangers to the litigation.

In the absence of a transcript, we must presume that the ruling of the trial court was based upon sufficient evidence to support it. Georgia Hospitality &c. Assn. v. Harrison Advertising, 181 Ga. App. 163 (351 SE2d 489) (1986).

Appellants further contend that OCGA § 9-11-17 requires a joinder of the parties. The court, however, found that by filing his counterclaim the plaintiff “cannot have subjected himself to the claims of strangers to the litigation, particularly in Fulton County which evidence in the record shows is not plaintiff’s domicile.” OCGA § 9-11-17 does not give a court jurisdiction which it cannot otherwise obtain.

Under OCGA § 9-11-17, a real party in interest objection is a matter in abatement and does not go to the merits of the case. Hodgskin v. Markatron, 185 Ga. App. 750, 752 (365 SE2d 494) (1988). A judgment sustaining a plea in abatement is not directly appealable. Richard’s Buick v. Sease, 116 Ga. App. 232 (156 SE2d 365) (1967). Moreover, we note that the warranty given by Faircloth expressly runs to persons who are forced to defend claims and suffer loss. The purchasers have made no such claim.

Case No. 77525

1. Faircloth contends that the trial court should have found that there were no genuine issues of fact concerning his entitlement to deferred compensation because the record demands a finding that the Williams defendants totally breached their contract with him.

The order in question shows that the trial court noted several triable issues of fact, including breach of rules and regulations, by the plaintiff. We have examined the record and find no error. Faircloth did not move for summary judgment on the basis that the July 28, 1982, termination letter constituted a total breach of contract. We find, however, that the trial court had the entire record before it, and the letter was available for the court’s consideration. We cannot say that this letter constituted a breach of contract as a matter of law.

In arguing this enumeration of error, Faircloth incorporates material and issues that are outside the scope of the enumeration of error. Enumerations of error cannot be enlarged by brief on appeal to cover issues not contained in the original enumeration. Chevrolet-Pontiac-Canada Group v. Pearson, 182 Ga. App. 796 (357 SE2d 152) (1987).

Decided February 28, 1989

Rehearing denied March 23, 1989

Gary G. Grindler, John K. Larkins, Jr., Nickolas P. Chilivis, Stanton J. Shapiro, for appellants.

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellee.

Forrest L. Champion, Jr., amicus curiae.

2. Faircloth’s second enumeration of error is also based upon the same portion of the order mentioned in Division 1 above. He claims that the present record demands a finding that the rules tendered by the defendants cannot be linked to the SVP agreement within the statute of frauds.

An examination of the relevant documents shows the incorporation by reference of the RVP contract and the SVP contract. The RVP contract provided that “Williams may issue, from time to time, rules and/or regulations to which the RVP agrees to be bound.” We find no merit in this enumeration of error.

3. It is not necessary to address Faircloth’s remaining enumerations of error in view of our holding in Case No. 77524.

Judgments affirmed.

Carley, C. J., and Sognier, J., concur in the judgments only.