text:
    74554.
    GAY v. FIRST NATIONAL BANK OF ATLANTA.
    (361 SE2d 492)
   Pope, Judge.

In May 1984 Professional Premium Services, Inc., borrowed $70,000 from The First National Bank of Atlanta, appellee herein. Both appellant Gay and Curtis F. Holland, the only shareholders of the corporation, personally guaranteed the indebtedness. As part of said guarantee, each executed deeds to secure debt on certain properties located in Bibb County. The record shows that the security deed on the “Holland” property was subject and inferior to two prior security deeds.

Professional Premium subsequently defaulted on the note. When the individual guarantors failed to satisfy the corporation’s indebtedness to the appellee, it instituted foreclosure proceedings on the Holland property. The appellee was the sole bidder at the foreclosure sale and purchased the property for $43,000. In lieu of confirmation proceedings, the parties executed an agreement wherein they affirmed the fairness of the purchase price and agreed “that upon a sale of said property [the appellee] will apply all of the net proceeds thereof to the balance due on the . . . indebtedness.” The appellee subsequently resold the property for $39,000. Appellant ceased making payments on the remaining indebtedness in October 1985 and the appellee instituted proceedings against him to collect the balance of the loan. Both parties filed motions for summary judgment; the trial court granted the appellee’s motion and awarded it $40,889.19 principal, $5,908.93 interest to the date of judgment plus future interest as provided in the promissory note, $7,019.72 attorney fees and costs. The trial court also entered an order denying appellant’s motion for summary judgment; appellant appeals both the grant of summary judgment to appellee and the denial of his motion.

The sole issue for resolution on appeal concerns the determination of the amount of proceeds from the foreclosure sale that should be applied to the satisfaction of the indebtedness. Appellant contends he was entitled to have the entire $43,000 foreclosure bid-in price applied to the reduction of the indebtedness because the Foreclosure Deed Under Power of Sale stated only that the property was sold “for cash for the sum of $43,000.” Appellee contends the $43,000 bid-in price was inclusive of the amounts owed on the two prior security deeds, and thus, appellant was not entitled to have the entire $43,000 applied to the outstanding loan balance. In support of this argument appellee relies on certain facts which it alleges show its intent in this regard including, inter alia, the language in the deed under power that “[t]his conveyance is made subject to two deeds to secure debt. . . .” In support of its argument that the parties’ intent is a proper inquiry in determining the consideration paid in the case sub judice, appellee relies on OCGA § 44-5-30 which provides in pertinent part as follows: “The consideration of a deed may always be inquired into when the principles of justice require it.”

“ ‘It is true that as between the parties to the contract the consideration of a deed can generally be inquired into whenever the principles of justice require it. This is always true, if the consideration is expressed in the instrument merely by way of recital, and not in such a manner as to make it one of the terms and conditions of the deed. And where the consideration is expressed only by way of recital, it is permissible to show by parol testimony that the true consideration is in fact different from that expressed in the deed. (Cits.) However, one of the parties to a deed can not, under the guise of inquiring into its consideration, alter the terms of the instrument; and where proof of a consideration different from the one expressed would have the effect of altering the terms and conditions imposed by the deed, it is not permissible to set up by parol another and different consideration for the purpose of showing a failure of the latter.’ See also Head v. Head, 232 Ga. 373 (1) (207 SE2d 15) (1974).” Zorn v. Robertson, 237 Ga. 395, 397 (228 SE2d 804) (1976); see Awtrey v. Awtrey, 225 Ga. 666 (171 SE2d 126) (1969); Stonecypher v. Ga. Power Co., 183 Ga. 498 (3) (189 SE 13) (1936). Cf. Knight v. Munday, 152 Ga. App. 406 (1) (263 SE2d 188) (1979) (wherein the consideration stated was “Ten dollars and other valuable considerations.”) In the present case the consideration in the deed under power was not by way of recital; rather the deed shows clearly that the property was purchased “for cash for the sum of $43,000.” The deed also shows clearly that the property was encumbered by the two prior security deeds. However, the deed does not state, explicitly or otherwise, that the consideration stated was inclusive of the amounts necessary to extinguish the superior security deeds, and parol evidence was inadmissible to vary the clear and unambiguous purchase price stated in the deed under power. Accord Moody v. Mendenhall, 238 Ga. 689 (5) (234 SE2d 905) (1977).

Decided September 8, 1987

Rehearing denied September 29, 1987.

Thomas H. Hinson II, for appellant.

However, we must also consider the effect of the agreement which the parties executed after the foreclosure sale in order to avoid the necessity of confirmation proceedings and which specified that the net proceeds from the sale of the property would be applied to the balance due on the indebtedness. We agree with appellee that pursuant to the terms of this agreement appellant was not entitled to have the loan amount reduced by the amount stated in the deed under power, but rather was entitled to have the outstanding indebtedness reduced only by the net profit realized by the appellee when it resold the property. Our review of the record indicates that no net profit was realized from the resale of the property and appellant does not contend otherwise; therefore, the trial court did not err in denying appellant’s motion for summary judgment and in awarding summary judgment to appellee for the amounts specified in the order.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

J. Ellsworth Hall III, for appellee.

       The court also noted that “examples of ‘recital’ of consideration would be ‘For value received’ or ‘Ten dollars and other valuable consideration.’ ” Zorn, infra at 397.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    74590.
    In the Interest of A. W. G.
    (361 SE2d 510)
   Pope, Judge.

A. W. G., a juvenile, appeals the juvenile court’s denial of his motion to dismiss the petition charging him with the offense of criminal trespass.

1. A. W. G. first asserts error in that the Code section referenced in the petition (OCGA § 16-7-23) pertains to the offense of criminal damage to property in the second degree, not criminal trespass as otherwise charged in the petition. We have examined the petition filed against A. W. G. and for the reasons stated hereinbelow, find no error. “It has long been recognized that there must be scrupulous adherence to due process requirements in juvenile court proceedings. D. P. v. State of Ga., 129 Ga. App. 680, 681 (200 SE2d 499) (1973). This court has held that in order to withstand attack based upon the denial of due process, the petition must pass two tests: ‘(1) it must contain sufficient factual details to inform the juvenile of the nature of the offense; and (2) it must provide data adequate to enable the accused to prepare his defense.’ [Cits.]” C. L. T. v. State of Ga., 157 Ga. App. 180 (276 SE2d 862) (1981).

The petition in the present case provided that “[A. W. G.] on April 14, 1986 at the new post office construction site on Georgia Avenue, Fayetteville, Fayette County, Georgia did write names in the wet cement causing damages at $200.00. [A. W. G.] is charged with one count of Criminal Trespass Georgia. . . .” The remainder of the sentence, containing the allegedly improper reference to OCGA § 16-7-23, has been stricken; however, the record does not indicate when this deletion occurred. We find, however, that even if the reference to OCGA § 16-7-23 had never been deleted, or even if such deletion did not occur until after the initial hearing on the charge stated therein, the petition was nevertheless “plain enough for a person of ordinary mental capacity to understand the nature of the offense charged and it contained sufficient details to afford [A. W. G.] reasonable opportunity to prepare his defense. [Cits.]” C. L. T., supra at 180. This is especially true in the case at bar since OCGA §§ 16-7-21 and 16-7-23 “define identical crimes except for the amount of damage required for conviction.” Williams v. State, 180 Ga. App. 854, 857 (350 SE2d 837) (1986). Cf. D. P. v. State of Ga., 129 Ga. App. 680 (2), supra. Accordingly, this enumeration is without merit.

Decided September 10, 1987

Rehearing denied September 29, 1987

Jay W. Bouldin, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

2. A. W. G. also asserts that the juvenile court lacked jurisdiction because the alleged crime occurred on federal property (a construction site of a United States Post Office). We disagree. “Under OCGA § 50-2-23, the state retains criminal jurisdiction over persons for state offenses committed on property that has been acquired by the United States, except for property used by the Department of Defense and by the Department of Justice.” Jackson v. State, 183 Ga. App. 594 (359 SE2d 457) (1987). Consequently, the juvenile court did not err in failing to dismiss the petition for lack of jurisdiction.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

       Although not enumerated as error, A. W. G. also makes certain arguments concerning the sufficiency of the evidence. However, “ ‘[o]ur jurisdiction is limited to consideration of the legal points raised by enumerations of error. (Cits.)’ [Cits.]” Williams v. State, 178 Ga. App. 581, 587 (344 SE2d 247) (1986).


text:
    74608.
    VONDOLTEREN v. THE STATE.
    (361 SE2d 833)
   Pope, Judge.

The defendant was arrested on October 4, 1985 and charged with the offenses of DUI, driving with a suspended license, improper lane usage, driving with no proof of insurance and being a habitual violator. Defendant was issued a Uniform Traffic Citation, Summons, Accusation/Warning for each of these offenses and was ordered to appear in the Recorder’s Court of Thunderbolt, Georgia on October 16, 1985. Following several continuances, a hearing was finally held on these matters on May 7, 1986 at which time defendant was bound over to the Superior Court of Chatham County. Although not contained in the record before this court, the defendant apparently filed a “Demand for Trial” with the recorder’s court on that same date, but after he had been bound over to superior court. The parties have stipulated that after the case was bound over on May 7,1986 and prior to May 23, 1986 the clerk of the recorder’s court forwarded the record in this case to the Chatham County District Attorney’s office, who in turn forwarded the record to the Court Administrator of the Superior Court of Chatham County. Thereafter, the district attorney dropped the felony (habitual violator) charge and the case was transferred to the State Court of Chatham County. The parties have further stipulated that the record was then returned to the district attorney’s office, who then forwarded the “necessary documents” to the Clerk of the State Court of Chatham County. Apparently, however, defendant’s demand for trial was not included in those documents.

On September 17, 1986 defendant received notice that he was to be arraigned on October 9, 1986. Apparently on that same date defendant filed a plea of autrefois acquit, which is also not a part of the record on appeal, based on the State’s failure to try him timely pursuant to his demand. The trial court entered an order denying defendant’s plea on December 9, 1986. In that order the trial court found that defendant’s demand was not prematurely filed since the Uniform Traffic Citations issued to him contained the necessary accusations, see, e.g., Spence v. State, 179 Ga. App. 750 (347 SE2d 612) (1986); Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985), but nevertheless held that defendant’s demand was improperly filed because it was not served on the district attorney pursuant to OCGA § 17-1-1. Defendant appeals and enumerates as error both the denial of his plea of autrefois acquit and the trial court’s ruling that the filing of the demand for trial with the clerk of the recorder’s court did not constitute proper service of the demand. Held:

In the case at bar, we are asked to determine whether the trial court erred in denying defendant’s plea of autrefois acquit without having in the record before us either defendant’s “Demand for Trial” or his plea. Since it is apparently undisputed, however, that defendant failed to perfect service on either the official charged with prosecuting offenses in the recorder’s court, where the demand was filed, or with the official responsible for prosecuting offenses in the superior court, where the case had been transferred prior to defendant’s filing his demand for trial, we find that the trial court did not err in denying defendant’s plea based on his failure to serve the appropriate official with a copy of his demand. See OCGA § 17-1-1. Cf. State v. Bostwick, 181 Ga. App. 508 (352 SE2d 824) (1987).

We also are compelled, however, to go beyond the trial court’s order and note the obvious — that unlike the situation which occurs when a demand is properly filed prior to the case being transferred to another court, see Bostwick, supra, a defendant who proceeds to file his demand in a court in which his action is no longer pending incurs the substantial risk that the trial court, as well as the prosecuting official, will never receive his demand and thus will be loath to consider same as a basis for acquittal.

We are also compelled to note that throughout the briefs of the parties and the order of the trial court defendant’s demand is consistently referred to as a “Demand for Trial.” Although the record before us does not provide us with even a glimpse as to the contents of this demand, we note that “a demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial. [Cits.]” State v. Prestia, 183 Ga. App. 24 (357 SE2d 829) (1987); see also Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1985); State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982). Lastly, it is also not apparent from the record before us whether defendant’s demand, which was filed some six months after the issuance of the Uniform Traffic Citations which constituted the original accusations against him, was timely filed. See OCGA § 17-7-170; Collins v. State, 154 Ga. App. 651 (1) (269 SE2d 509) (1980).

Judgment affirmed.

Deen, P. J., concurs. Birdsong, C. J., concurs in judgment only.

On Motion for Rehearing.

On rehearing defendant argues that his “Demand for Trial” and “Plea of Autrefois Acquit” were in fact available for this court’s review, as a “conformed” copy of the former and a copy of the latter were attached to defendant’s application for interlocutory review. In so arguing, it appears that defendant misperceives the nature of the record on appeal, which consists only of that portion of the record which is certified and transmitted by the clerk of the court below to the clerk of this court. Transmittal by a party or attorney is specifically prohibited. Court of Appeals Rule 41. We also note that prior to the issuance of our opinion in the present case, the office of the clerk of this court contacted the clerk of the court below in an attempt to have the defendant’s demand for trial certified and transmitted to this court; however, the clerk of the trial court represented to the office of the clerk of this court that a demand for trial was not included in the record originally received by that court and that such a demand has never been filed with that court. Lastly, defendant also argues that the parties have stipulated that the demand for trial was forwarded by the clerk of the recorder’s court to the district attorney’s office. However, our review of the parties’ stipulation shows only that the record was forwarded to the district attorney’s office; whether defendant’s demand for trial was part of that record has not been shown.

Decided September 11, 1987

Rehearing denied September 29, 1987

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

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

Motion for rehearing denied.

       Although the procedure used in transferring the present case to the superior and state courts is not urged as error on appeal, we are compelled to make reference to Uniform Superior and State Court Rule 26.2, which provides the procedure to be followed by the clerks of courts of this state in transferring the record to another court after a case has been bound over to that court. We also note that although it is not the responsibility of the defendant to insure that the clerk performs his duties, it is the responsibility of the appealing party'to provide the court with that portion of the record or transcript which is necessary to decide the issue or issues presented on appeal. See generally Howe v. State, 250 Ga. 811 (2) (301 SE2d 280) (1983).

       In this regard, we refer the bench and bar to the recent amendment to OCGA § 17-7-170, effective July 1, 1987, which obviates many of the concerns presented in the case at bar by providing that a demand for speedy trial shall be served on the prosecutor and shall be binding only in the court in which it is filed, except where the case is transferred from one court to another without a request from the defendant.


text:
    74671.
    THE STATE v. CADE.
    (361 SE2d 494)
   Pope, Judge.

On June 21, 1986 the defendant, Clarence DeWitt Cade, was arrested and charged with disobeying a traffic control signal (OCGA § 40-6-20), failure to exhibit a driver’s license upon demand (OCGA § 40-5-29), operating a motor vehicle without insurance (OCGA § 33-34-12) and operating an unregistered vehicle (OCGA § 40-2-20). Defendant was issued a Uniform Traffic Citation, Summons, Accusation/ Warning for each of these offenses. Thereafter, defendant, proceeding pro se, filed a “Notice and Demand to Dismiss for Lack of Jurisdiction” based upon the arresting officer’s failure to convey him to a judicial officer empowered to issue warrants within 48 hours of his warrantless arrest, pursuant to OCGA § 17-4-62. The record shows that defendant was incarcerated from June 21, 1986 until June 26, 1986. On January 8, 1987 the trial court granted defendant’s motion to dismiss, and the State filed this timely appeal.

1. The State first contends that the trial court erred in granting defendant’s motion to dismiss because OCGA § 17-4-62 mandates only that an accused arrested without a warrant and detained in excess of 48 hours without a hearing be released from custody; it does not act to divest the trial court of jurisdiction properly acquired over such a defendant. The defendant argues, however, that since a warrant for his arrest was never issued, and since he has at no time during the proceedings consented to the court’s exercise of jurisdiction over him, his motion to dismiss for lack of jurisdiction was properly granted. We disagree. “The requirement of [OCGA § 17-4-62] that one ‘arrested without a warrant and not conveyed before an officer authorized to issue warrants within 48 hours “shall be released” means that s uch person shall be released from imprisonment or custody until a warrant is obtained — not that he shall be released from trial after he has been indicted for a crime.’ [Cit.]” Vaughn v. State, 248 Ga. 127, 130 (281 SE2d 594) (1981). Moreover, “although an arresting officer may be liable in damages for false arrest and imprisonment where he detains the defendant in an illegal manner, this is ordinarily immaterial so far as the jurisdiction of the court over the defendant is concerned, after it has been acquired by accusation or indictment, and appearance and pleading by the defendant, in a criminal case. [Cit.]” French v. State, 99 Ga. App. 149, 151 (107 SE2d 890) (1959); see also Battle v. State, 254 Ga. 666 (3) (333 SE2d 599) (1985); Dollar v. State, 161 Ga. App. 428 (4) (288 SE2d 689) (1982); Peters v. State, 115 Ga. App. 743 (2) (156 SE2d 195) (1967); Blake v. State, 109 Ga. App. 636 (3) (137 SE2d 49), cert. den., 379 U. S. 924 (1964).

The record in the case sub judice shows that defendant was never reincarcerated following his June 26, 1986 release; thus, a subsequent warrant for his arrest was unnecessary and the lack thereof did not serve to divest the trial court of jurisdiction over him. Moreover, although under Georgia law the Uniform Traffic Citations issued at the time of defendant’s arrest would suffice to prosecute these traffic-related offenses, see OCGA §§ 40-13-1; 40-13-3; and 40-13-24, the State also issued formal accusations against the defendant on September 11, 1986, which were also sufficient to bring the defendant to trial on the charges contained therein. OCGA § 17-7-71; Evans v. State, 168 Ga. App. 716 (310 SE2d 3) (1983). Thus, the trial court erred in dismissing the charges against the defendant based on the arresting officer’s failure to comply with OCGA § 17-4-62.

Defendant also argues that in his brief in support of his motion to dismiss he raises additional challenges to the trial court’s jurisdiction; however, we have examined these arguments and find them to be without merit. Accordingly, the trial court erred in granting defendant’s motion to dismiss for lack of jurisdiction.

2. Because of our holding in Division 1, supra, it is unnecessary for us to address the State’s remaining enumeration.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.

Decided September 8, 1987

Rehearing denied September 29, 1987.

James L. Webb, Solicitor, Patsy Y. Porter, Assistant Solicitor, for appellant.

Clarence Cade, pro se.


text:
    74717.
    WILLIS v. MALOOF et al.
    (361 SE2d 512)
   Pope, Judge.

Plaintiff Maloof was severely injured when a tree fell on him. Throughout the over thirty years the parties had lived as next-door neighbors, plaintiff had always assumed the tree belonged to defendant Willis. However, the undisputed evidence presented at trial showed the tree grew on the boundary of plaintiffs land and that of defendant, the adjoining landowner. Plaintiff claims the tree was diseased and defendant is liable in negligence for failure to remove or remedy the hazard created by the tree. A mistrial was declared when the jury was unable to reach a verdict. The case is now before this court on defendant’s interlocutory appeal of the trial court’s denial of his motion for directed verdict.

1. The issue of ownership and control over a tree situated on the boundary between two adjoining landowners appears to be one of first impression in Georgia. After careful consideration of the various approaches urged by the parties we adopt, by analogy, the rule applicable to party walls. We hold that adjoining landowners of a tree on the boundary do not own the tree as tenants in common, but “ ‘each owns in severalty the part thereof which rests upon his side of the line, with an easement of support from the other.’ ” Wilensky v. Robinson, 203 Ga. 423, 427 (47 SE2d 270) (1948). In this manner “each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal in the first instance to, or perhaps rather identical with, the part which is upon his land; and in the next place embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.” Robinson v. Clapp, 65 Conn. 365, 379-380 (32 A 939) (1895).

As in the case of a party wall, both parties have a duty to maintain the tree and take reasonable steps to guard against any hazardous condition the tree may pose. Cf. Hay v. Norwalk Lodge &c., 92 Ohio App. 14 (109 NE2d 481) (1951) (where the Ohio court held, as to a tree upon the boundary line, adjoining owners are jointly liable for injuries to a third party). Since plaintiff also had a duty to maintain the tree, he may not recover from defendant for negligent maintenance. Cf. Swentzel v. Holmes, 175 SW 871 (Mo. 1915) (because both owners of a party wall had a duty to maintain it, the Missouri court held one may not recover from the other for damage due to negligence in maintaining a defective wall).

2. Moreover, plaintiff presented no evidence to support a finding that defendant had breached any duty to maintain the tree. In regard to liability for a defective tree the ordinary rules of negligence apply. The owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. “[T]here is no duty to consistently and constantly check all . . . trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Cornett v. Agee, 143 Ga. App. 55, 57 (237 SE2d 522) (1977).

Here, defendant testified he worked around the base of the tree often as he cultivated a vegetable garden in his yard, near the tree, almost every year. He denied any knowledge that the tree was diseased and denied seeing any evidence which would lead him to suspect the tree was unhealthy. Plaintiff’s expert, who inspected the tree after it fell, testified at least three visible conditions indicated to him that the tree was diseased and posed a hazard. The bark at the base of the tree curved under instead of outward indicating to the expert that the tree was virtually devoid of roots. A cavity or hollow in the side of the tree and fungus growing on the bark indicated to the expert that the tree was diseased and in the process of decaying. The expert testified that in his opinion the average person’s “attention would have been drawn” to these conditions. Even assuming defendant should have noticed these conditions, no evidence was presented from which a jury could find that defendant should reasonably have known the tree was diseased. The expert witness presented testimony from which a jury could find that the tree was in fact diseased. However, the testimony of the expert witness did not establish that a layman should have reasonably known the tree was diseased. The only duty imposed upon defendant was that of the reasonable man; defendant would not be charged with the knowledge or understanding of an expert trained in the inspection, care and maintenance of trees. Plaintiff himself testified he did not think the tree in question was dangerous or defective. Several other neighbors also testified the tree was bearing green leaves at the time it fell and did not appear to be diseased. Because plaintiff failed to present any evidence that defendant was or should have been aware that the tree constituted a hazardous condition, defendant’s motion for directed verdict should have been granted.

Decided September 10, 1987

Rehearing denied September 29, 1987

Stanley T. Snellings, for appellant.

Victoria J. Hoffman, for appellees.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.

On Motion for Rehearing.

On Motion for Rehearing plaintiff argues the cases cited in Division 1, supra, from other jurisdictions concerning the duty to maintain a party wall (and, by analogy, a “party tree”) are distinguishable because those jurisdictions hold the owners to be owners in common. By contrast, in Georgia we hold owners of a party wall and, by this opinion, owners of a party tree to be owners in severalty with an easement of support upon the other owner’s portion. This distinction is meaningful in regard to the right to exclusive use of one owner’s portion. See Wilensky v. Robinson, 203 Ga. 423, supra (where the Supreme Court held there was no right of one owner to a portion of the rents paid to the other owner for advertising placed only on one side of the party wall). This distinction makes no sense in regard to the duty to maintain a single, indivisible tree. The alleged disease in this tree was systemic and not confined to one side of some imaginary line. Therefore, the duty to maintain the tree could not be apportioned on some pro-rata basis depending upon that percentage of the girth of the tree which grew on either side of the property line.

Motion for rehearing denied.

       This is not to say one party-owner may not recover from the other party-owner for negligent destruction of a tree. Plaintiffs expert testified one of three conditions contributing to the hazard posed by the tree was its lack of roots. See Div. 2, infra. The expert testified the roots could have been injured by the use of a motorized tiller to cultivate the ground around the base of the tree. However, the expert offered no opinion that the roots were in fact destroyed by a tiller or that such was the cause of the tree’s falling. Moreover, the evidence showed a tiller was used only once approximately twelve years before the tree fell. Even if the tiller contributed to the demise of the tree’s roots, the condition of the tree deteriorated slowly over time. Thus, this is a case of alleged negligent maintenance and not negligent destruction.


text:
    74734.
    ASSOCIATED HOSTS OF GEORGIA, INC. et al. v. MARLEY.
    (361 SE2d 496)
   Pope, Judge.

Plaintiff Marley was employed as a cocktail waitress in a restaurant owned and operated by defendant Associated Hosts of Georgia, Inc. On October 2,1985 the restaurant held a private party for invited guests to provide an opportunity for restaurant personnel to practice and prepare for the grand opening to the public on the following day. At her deposition plaintiff testified the last guests left the restaurant at approximately 11:00 p.m. From that time forward to the events which form the basis for plaintiff’s complaint, she and several other employees cleaned up and prepared for the next day’s business. At approximately 1:30 a.m. two masked men, who entered the front door of the restaurant carrying sawed-off shotguns, robbed and raped plaintiff while the other employees were held captive. Plaintiff sued defendants, Associated Hosts and its related corporations, in tort for her personal injuries and property loss.

At several points during her deposition plaintiff testified she was sitting at the bar polishing ash trays at the time the assailants entered the restaurant. Defendants moved for partial summary judgment on the ground plaintiff’s claim for personal injury is barred by the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11. In response to said motion, plaintiff filed an affidavit denying she was acting in the course of her employment at the time the incident occurred. Instead, plaintiff claims she had completed her work duties by 12:30 a.m. and had “checked out.” After checking out she and several of her fellow employees sat at the bar socializing. Plaintiff explained the contradiction of her earlier testimony by claiming the anxiety and mental anguish she continues to experience as a result of the rape has caused problems in her recalling the events of the evening in question. She also claims she became extremely anxious during the deposition and experienced difficulty concentrating on the defense attorney’s questions. According to plaintiff, the contradictory statements contained within her affidavit were made after reflection and concentration on the events in question. Plaintiff’s affidavit testimony that she had completed her work at least an hour before the rape was supported by affidavits from three other employees of the restaurant, two of whom remained on the premises with plaintiff when the masked assailants entered. Plaintiff’s testimony that her recollection of the events has been impaired by her continuing anxiety was supported by an affidavit from plaintiff’s treating psychiatrist. Defendants bring this interlocutory appeal of the trial court’s denial of their motion for partial summary judgment.

1. “[I]f on motion for summary judgment a party offered self-contradictory testimony on the dispositive issue in the case, and the more favorable portion of his testimony was the only evidence of his right to a verdict in his favor, the trial court must construe the contradictory testimony against him. This being so, the opposing party would be entitled to summary judgment.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986). This is not so in the case now before us. Plaintiff’s contradictory statements are not the only evidence of record on the issue of whether she was acting in the course of her employment at the time the incident occurred. Three other witnesses have presented sworn statements that plaintiff was off-duty at the time the incident occurred.

Moreover, “even where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.” Id. at 30. In Prophecy Corp. it was held that a reasonable explanation was given by plaintiff for statements in his deposition which were contradictory to those made by affidavit in opposition to defendant’s motion for summary judgment since plaintiff stated during his deposition that his memory of dates regarding the incident in question was confused and because he explained by affidavit that a subsequent review of notes and records refreshed his recollection. In this case, plaintiff’s explanation that her contradictory statements were due to anxiety and mental anguish, understandably suffered as a result of the rape, was supported by the professional opinion of her psychiatrist. “The pleadings, deposition, and affidavits considered on the [motion] for summary judgment made an issue of fact which should be determined by a jury. . . .” Ryder v. Schreeder, 224 Ga. 382, 386 (162 SE2d 375) (1968). The reasonableness of plaintiff’s explanation is an issue for the jury in this case. The court did not err in considering the affidavits offered by plaintiff and the other witnesses.

2. Commencing shortly after the incident and continuing through the date defendants’ motion was filed, plaintiff accepted voluntary payment from defendants’ workers’ compensation insurance carrier. Defendants argue plaintiff’s common law action against her employer is barred by her acceptance of worker’s compensation benefits. Central to defendants’ motion for summary judgment is whether plaintiff’s injuries are compensable under the Worker’s Compensation Act. Plaintiff claims her injuries are not compensable because they were not sustained, as required by OCGA § 34-9-1 (4), while she was on the job. Defendants contend plaintiff is estopped from contesting this issue because she has admitted the compensability of her injuries by accepting defendants’ voluntary payments.

Prior to amendment of the Act in 1978, voluntary payments of benefits had to be agreed upon by the employer and employee and approved by the State Board of Workers’ Compensation (formerly the Industrial Commission) to be enforceable. Ga. L. 1920, p. 167, § 55 (Code 1933, § 114-705). Where the board made an award or approved an agreement between the employer and employee for payment of workers’ compensation benefits, the issue of compensability was res judicata and “the parties [were] precluded from thereafter contradicting or challenging the matters thus agreed upon.” Aetna Ins. Co. v. Gipson, 104 Ga. App. 108, 110 (121 SE2d 256) (1961); Haygood v. Home Transp. Co., 244 Ga. 165 (259 SE2d 429) (1979). However, an action in tort against the employer was not abated even where an employee made a claim against the employer for workers’ compensation benefits when the issue, of compensability had not yet been adjudicated by an agreement approved by the board. Bishop v. Weems, 118 Ga. App. 180 (4) (162 SE2d 879) (1968). “A defendant may assert coverage by the [Workers’] Compensation Act as a bar to a common law negligence action against him arising out of the same occurrence. And this is true whether or not a claim for compensation has been made. But in order to sustain such assertion one must plead and prove coverage under the Act. [Cit.] If there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action. On the other hand, if there were an award of no compensation because of no coverage under the Act, it would be an adjudication of no coverage and the common law action should proceed. But the record indicates that, as yet, there has been no award and hence no adjudication either way, and if the defendants are to sustain their plea they have the burden of showing coverage as a bar.” Id. at 181.

“ ‘In this regard, the Court notes the changes made in the handling of workers’ compensation injuries in 1978.’ ” Mann v. Workman, 181 Ga. App. 211, 212 (351 SE2d 680) (1986) (quoting from the order of the lower court), aff'd 257 Ga. 70 (354 SE2d 831) (1987). The Act no longer requires the parties to enter into an agreement approved by the board. Instead, if the employer does not contest that benefits are due, the employer is under certain time constraints to commence voluntary payment of benefits and simply to file a notice with the board that benefits have commenced. OCGA § 34-9-221 (b) and (c). Thus, an employee may accept benefits without an adjudication of the issue of compensability. Without such an adjudication, the doctrine of res judicata would not bar an employee who has accepted voluntarily paid benefits from bringing a common law action against the employer. See, e.g., Martin v. United States, 566 F2d 895 (II) (4th Cir. 1977); Stemm v. Rupel, 30 Ill.App.3d 864 (332 NE2d 686) (1975); Er ickson v. Goodell Oil Co., 384 Mich. 207 (180 NW2d 798) (1970).

However, even without an adjudication of compensability, an employee may be estopped by his or her own actions from bringing a common law claim. In Mann v. Workman, supra, an employee who had accepted voluntary payments from the employer for a year without raising the issue of compensability under the Workers’ Compensation Act then brought a tort claim against a fellow employee for injuries sustained in the accident. This court held that “ ‘acceptance of these benefits for a period of a year or more is such an affirmative act as to trigger the bar of OCGA § 34-9-11. . . .’” Id. at 212. In Mann, the plaintiff attempted to “have his cake and eat it too” by implicitly admitting the compensability of his injuries in order to collect workers’ compensation benefits from his employer while denying the compensability of his injuries in order to pursue a common law remedy against his fellow employee. In the case at hand, plaintiff has not taken inconsistent positions on the issue of compensability. Plaintiff filed suit against the employer just five months after the incident which caused her injuries. Within five months of the injury the employer had notice that plaintiff contested the compensability of her injuries. We cannot find as a matter of law that passive acceptance of workers’ compensation benefits for five months “ ‘is such an affirmative act as to trigger the [workers’ compensation] bar. . . .’” Id.

The 1978 amendment to the Workers’ Compensation Act authorizing payment of benefits without an award served to streamline the process of paying and collecting workers’ compensation benefits by encouraging voluntary payment of benefits without the necessity of official action by the board. Ga. L. 1978, p. 2220, § 10 (OCGA § 34-9-221). This system generally works to the advantage of both employer and employee. However, even where there is questionable coverage under the Act but there has been serious injury, the employer may find it advantageous to assume liability voluntarily for the limited benefits due under the Act in hopes of avoiding possibly greater liability at common law. The initial acceptance of voluntarily paid benefits should not preclude the injured employee from contesting, in a timely manner, the applicability of the Act to the incident in question. “[Workers’] compensation is above all a security system; a strict election doctrine transforms it into a grandiose sort of double-or-nothing gamble.” 2A Larson, Workmen’s Compensation Law, § 67.31, at 12-133. Permitting an employee to collect workers’ compensation benefits prior to bringing a common law action does not permit a double recovery since, if the employee recovers at common law, the defendant employer would be entitled either to a set-off for benefits erroneously paid under the Workers’ Compensation Act or to present evidence of benefits collected by the employee as provided by OCGA § 51-12-1 (b).

Decided September 8, 1987

Rehearing denied September 29, 1987

James H. Cox, Edward H. Nicholson, Jr., for appellants.

Larry F. Jennette, Jr., Michael M. Calabro, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

       The only case cited by defendants from another jurisdiction which held contrary to the above-stated rule, Sneed v. Belt, 130 Ariz. 229 (635 P2d 517) (1981), is distinguishable. Arizona is one of the few states which, by statute, permits an election between workers’ compensation benefits or common law remedies. Pursuant to Arizona’s election of remedies statute, acceptance of workers’ compensation benefits constitutes an election and waives the employee’s right to pursue a common law remedy. Georgia permits no such election.

       On certiorari, the Supreme Court did not reach the issue of estoppel by acceptance of voluntary benefits but affirmed on the ground the action was barred because the lower court found plaintiffs injuries were compensable. 257 Ga. 70, supra.


author: Deen, Presiding Judge.

text:
    74756.
    NEWBERRY v. THE STATE.
    (361 SE2d 499)
   Deen, Presiding Judge.

Carl Watson Newberry appeals from his conviction of child molestation following the denial of his motion for a new trial. The evidence showed that the four-year-old daughter of his brother’s girl friend contended that in October of 1985 he had “messed” with her at the pig’s house” and that he “licked (her) bottom” while holding on to her, put his tongue in her bottom and his “hickey” in her bottom. The child did not call for help because “the wild dogs would have gotten me,” and she could not get away from the defendant because “he held me down.” The trial court determined that the child was competent to testify and during her testimony she utilized anatomically correct male and female dolls to show how Newberry had “done it.” She apparently reported the incident to her mother’s boyfriend and his mother, but they took no action. Approximately six months later, the child’s mother reported the incident to the police. A child protective services worker with the Department of Family and Childrens Services (DFCS) testified that she conducted a videotaped interview with the child three days after the incident was reported to the police. The child’s foster parents testified that during May of 1986 the child, without any prompting or encouragement, described the molestation to them while they were driving in the car.

1. Newberry first contends that the court below erred in permitting the child’s videotaped statement to be admitted into evidence without first finding “necessity” for the use of the statement.

OCGA § 24-3-16 provides that “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

Contrary to appellant’s assertion OCGA § 24-3-16 does not require the court to make a finding of necessity before admitting such a statement into evidence. Prior consistent statements of a witness who takes the stand and is subject to cross-examination are admissible as substantive evidence. See Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). OCGA § 24-3-16 is a codification of this rule as applied to children who have been abused or molested and are under the age of 14 and permits a child to give a statement, shortly after an incident occurs, in a non-threatening atmosphere. The transcript shows that the child was available for cross-examination as required by the statute. Her veracity was tested by the cross-examination of the DFCS employee and her foster parents. Appellant’s reliance upon Ohio v. Roberts, 448 U. S. 56 (100 SC 2531, 65 LE2d 597) (1980), is misplaced, as the facts are quite different from those in the instant case. In that case, the prosecution offered the former testimony of an unavailable witness whose unavailability was clearly shown, and the court found that her prior testimony bore a sufficient indicia of reliability. Unlike certain problems envisioned in Ohio v. Roberts, OCGA § 24-3-16 protects the defendant’s constitutional right of confrontation by affording defendant the dual protection of requiring both the availability of the witness and a sufficient indicia of reliability.

In his brief appellant argues that his right of confrontation under the United States and Georgia Constitutions is violated because the court below failed to make a finding of necessity before admitting the videotape into evidence. The enumeration in question does not address this constitutional issue. Enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. Scott v. State, 177 Ga. App. 474 (339 SE2d 718) (1985).

2. The trial court correctly held that the child’s videotaped statements were surrounded by a sufficient indicia of reliability to be admitted into evidence. The mechanical capability of the videotaping equipment and the accuracy of the tape was shown; the operator was proved to be competent; the authenticity of the videotape was established; the tape was dated; the manner in which the tape was preserved was shown; the speakers were identified on the tape; and the testimony was shown to be voluntarily elicited without any kind of duress. As all of the requirements for the admission of an audiotape were met in this case as they are set forth in Brooks v. State, 141 Ga. App. 725, 734 (234 SE2d 541) (1977), it was admissible into evidence. The fact that it was made several months after the alleged incident does not, in and of itself, make the statement unreliable. The court considered the atmosphere and circumstances under which it was made, the spontaneity of the child’s statements to the interviewer, and the child’s general demeanor in making its ruling upon the reliability of the statement. We find no merit in this enumeration.

Decided September 8, 1987

Rehearing denied September 29, 1987.

Frank Armstrong III, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

3. As the videotape of the child’s statement was admissible into evidence, there is no merit in appellant’s assertion that the trial court erred in permitting the jury to view it. Before it was shown to the jury, a proper foundation was laid for its introduction into evidence as the DFCS worker who participated in making the tape testified as to her qualifications and stated the reason for making the tape, the conditions under which it was made and its accuracy. She was then extensively cross-examined by defense counsel.

4. There is no requirement that the trial court must determine competency of a child witness during an investigative interview before the substance of that interview can be admitted into evidence. OCGA § 24-9-7 contemplates only that a small child be found competent to testify at trial and this code section has no applicability to out-of-court statements.

5. As the child was present at trial, testified and was cross-examined, the recent holding in Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987) is not applicable.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    74773.
    PENDLETON v. THE STATE.
    (361 SE2d 663)
   Deen, Presiding Judge.

During the early morning hours of January 8, 1986, a Cobb County police officer observed the vehicle driven by the appellant, Walter Pendleton, cross over the lane marks several times and change lanes twice without giving signals. The officer stopped the vehicle and, after noticing a strong odor of alcohol about Pendleton, administered a series of field sobriety tests, including an alconsensor, to Pendleton. Having failed these tests, Pendleton was then placed under arrest and transported to the station; shortly afterwards, an intoximeter test indicated a blood alcohol content of .20 percent. He was charged, tried, and convicted of driving under the influence, driving with a blood alcohol content of .12 or greater, and failure to maintain a proper lane. The trial court merged the two driving under the influence counts and sentenced Pendleton to serve 12 months’ imprisonment, followed by 12 months’ probation, and to pay a $1,000 fine.

1. Pivotal to this appeal are three jury instructions given by the trial court. (1) After instructing the jury on the presumptions concerning blood alcohol content contained in OCGA § 40-6-392 (b) (1)-(3), the trial court then informed the jury that no presumption was involved if it found that Pendleton’s blood alcohol content was .12 percent or greater; rather, in such a circumstance, the jury would have to find him guilty of driving with an unlawful blood alcohol content. (2) The trial court also charged that impaired driving ability is not a factor necessary to constitute a violation of OCGA § 40-6-391 (a) (4). (3) Lastly, the trial court instructed the jury that “the alconsensor is used as an initial screening device to aid the police officer. It is not the state administered test the police officers ask the defendant to take. Further, the test results as to the alconsensor are given in the form of positive or negative.”

Trial counsel for the appellant neither objected to nor made reservations about these instructions, in response to the trial court’s specific inquiry, and any objections were consequently waived. Harper v. State, 180 Ga. App. 20 (348 SE2d 318) (1986). Nevertheless, present counsel for the appellant contends that these jury instructions were bad, and that the trial counsel’s failure to object demonstrated his ineffective assistance.

Concerning the main charge on blood alcohol content, notwithstanding this court’s previous approval of essentially the same instruction in Turrentine v. State, 176 Ga. App. 145 (2) (355 SE2d 630) (1985), the appellant asserts that this charge (1) violates the constitutional principle that the jury shall be the judges of the law and the facts; (2) is inconsistent and conflicting, not to mention improper and insufficient; and (3) was impermissibly confusing to the jurors. He contends that the charge on impaired driving ability, although taken directly from Lester v. State, 253 Ga. 235, 237 (320 SE2d 142) (1984), in effect instructed the jury to presume the defendant’s blood alcohol level if the state was unable to establish this fact, and was impermissibly burden-shifting. Further, in the appellant’s mind, the charge on the alconsensor was an impermissible comment on the evidence.

These contentions make little sense, and have even less merit. The jury charges were correct statements of law and fit the evidence, and the failure of the appellant’s trial counsel to assert frivolous objections to these charges certainly did not demonstrate ineffective assistance of counsel.

2. On the morning of (but prior to) the trial, the state disclosed to the appellant its intention to submit evidence of two prior convictions for driving under the influence in aggravation of sentencing. The sole objection raised during the actual sentencing hearing was that one of the prior convictions was too stale to consider. The appellant now contends that the trial court erred in considering the prior convictions because (1) the state did not comply with Rule 31.1 of the Uniform Rules of State Court, and (2) the state failed to show that the appellant either was represented lay counsel or validly waived representation at the times of the prior convictions. These present objections were waived by the appellant’s trial counsel, see McDuffie v. Jones, 248 Ga. 544 (283 SE2d 601) (1981), but for the edification of the appellant’s present counsel it should be noted that Rule 31.1 of the Uniform Rules of State Court has nothing to do with tendering evidence in aggravation of sentencing. The state was not even required to give pre-trial notice of its intention to present the prior convictions at the sentencing stage. Whisenhunt v. State, 172 Ga. App. 742 (324 SE2d 570) (1984).

3. There is no merit to the appellant’s contention that he was denied a fair trial because it was discovered after the trial that one of the bailiffs was the step-father of the state’s main witness, and this relationship conflicted with the bailiff’s duty not to communicate with the jury. First of all, the witness in question was hardly the state’s main witness; he was merely the police officer who had served as back-up to the arresting officer, and who did not even appear on the scene until the appellant had been arrested. Secondly, there is no substantiation whatsoever of the allegation of a familial relationship between the witness and the bailiff. Lastly, it is only where a communication from the bailiff to the jury is shown that the state must rebut a presumed harm, and in this case there was not even an allegation, much less a showing, of any communication. See Mercer v. State, 169 Ga. App. 723 (314 SE2d 729) (1984).

4. The appellant contends that the sentence imposed by the trial court was excessive when compared to the punishment received by others convicted of like offenses. OCGA §§ 17-10-1 and 17-10-2 allow a trial court to sentence a defendant to any amount of time within the limits provided by the legislature. See Hiers v. State, 179 Ga. App. 181 (345 SE2d 900) (1986). The sentence in this case was within the statutory limits, and any complaints regarding the sentence should have been addressed to the appropriate sentence review panel. Hammond v. State, 157 Ga. App. 647 (278 SE2d 188) (1981).

Decided September 8, 1987

Rehearing denied September 29, 1987

Melvin S. Nash, for appellant.

Patrick H. Head, Solicitor, Philip Goldstein, Melodie Clayton, Assistant Solicitors, for appellee.

5. The appellant also contends that the verdict is contrary to law because the trial court failed to charge the jury on intent; that the verdict is contrary to the evidence because of improperly admitted evidence; and that the verdict is contrary to the weight of the evidence. To reject the first “contrary,” we need only point out that the trial court did charge on intent. We are unable to discern any merit in the second “contrary” because, rather than specifying what evidence was improperly admitted, the appellant merely quotes testimony from the hearing on the motion for new trial criticizing the jury instructions. Concerning the third “contrary,” the evidence was sufficient to authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thus, contrary to the appellant’s contentions, the verdict is not infirm.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

       The appellant’s counsel’s contention that the state did not comply with the Uniform Rules of State Court is not merely incorrect; rather, it illustrates the difficulty of practicing what one preaches. Despite being granted two extensions of time to prepare a brief and enumeration of errors in this essentially frivolous appeal, the brief eventually filed by counsel was lengthy, disorganized, and violative of Rule 11 (a) of the Rules of the Court of Appeals.


text:
    74806.
    LIVELY et al. v. TRUST.
    (361 SE2d 516)
   Pope, Judge.

Plaintiffs Paul and Agnes Lively filed a lawsuit against defendant Trust and others arising out of the death of their son. Defendant Trust, a DeKalb County police officer, arrested the decedent when he found him seated behind the wheel of an automobile which had struck a utility pole in a single car accident. The decedent was able to respond to the officer’s questioning at the scene but was unsteady on his feet and exhibited slurred speech and behavior otherwise consistent with intoxication. Therefore, defendant placed decedent under arrest for driving under the influence of alcohol and/or drugs. Defendant discovered a pint of brandy approximately one-third full and a bottle of prescription medicine on the front seat of the automobile. When defendant asked decedent how many pills he had taken, decedent responded he had taken only two. Before transporting decedent to the police station for booking, defendant first transported him to the hospital for blood testing. Defendant informed hospital personnel that the subject may have been taking medication. Once decedent was booked for his arrest at the police station he became unresponsive to defendant’s questioning. Pursuant to DeKalb County rules, the decedent was examined by a nurse before admission to jail. Upon the recommendation of the county nurse, emergency medical services were immediately called and decedent was transported to the hospital where he died from ingestion of excessive amounts of prescription drugs. Plaintiffs allege, inter alia, defendant is liable for negligence per se for violation of OCGA § 30-1-3 (b). Plaintiffs appeal from the grant of partial summary judgment to defendant as to the allegation of negligence per se.

“In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.” Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546, 547 (301 SE2d 903) (1983). The issue in this case is whether a person intoxicated by alcohol and drugs is within the class protected by OCGA § 30-1-3 (b). According to said statute, “[b]efore any person who is found in a semiconscious or unconscious condition may be charged with a crime, it shall be the duty of all law enforcement officers in this state to make a diligent effort to determine if such person is an epileptic or diabetic or a person who is suffering from any other type of illness which would cause semiconsciousness or unconsciousness.” In the event the officer determines a person “is actually suffering from an affliction which would cause semiconsciousness or unconsciousness” the statute imposes a duty on the officer to seek medical care for the person. Id.

“It is, of course, fundamental that ‘the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.’ Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467 (62 SE2d 209) [(1950)].” City of Jesup v. Bennett, 226 Ga. 606, 608 (176 SE2d 81) (1970). The preamble to House Bill No. 485, entitled “Protection of Persons Suffering from Certain Illnesses” (emphasis supplied), states its purpose is to provide certain rights to “any person who suffers from epilepsy, diabetes, a cardiac condition, or any other type of illness which causes temporary blackouts, semi-conscious periods, or complete unconsciousness. . . .” Ga. L. 1965, p. 176. Georgia was the first state to enact a statute addressing the duty of law enforcement officers to disabled persons. 9 Uniform Laws Ann. 743 (1979). Subsequent to the passage of this statute in Georgia in 1965, the National Conference of Commissioners on Uniform Laws drafted model legislation known as the Uniform Duties to Disabled Persons Act. Id. at 750-755. The commentary accompanying the model act acknowledges the Georgia statute is confined “to epileptics, diabetics, or persons with heart conditions who might be arrested and charged with drunkenness when in actuality they are having a seizure or are in a coma.” Id. at 744. The drafters of the model act expressly intended the model act to be broader than the Georgia statute in order to include “persons suffering from an overdose of various addictive drugs, and alcoholics. . . .” Id. at 744-745.

Plaintiffs argue the phrase “any other type of illness,” contained within OCGA § 30-1-3 (b), is broad enough to cover decedent’s condition from overdose of prescription drugs. “Where general words follow a list of particulars, the general words are construed to embrace only objects similar in nature to the particulars.” Independent Ins. Agents v. Dept. of Banking & Fin., 248 Ga. 787, 789 (285 SE2d 535) (1982). Subsection (a) of the statute authorizes persons suffering from certain diseases to wear identification bracelets or tags to alert persons to their condition during an emergency. The diseases listed are epilepsy, diabetes, and a cardiac condition. OCGA § 30-1-3 (a). The conditions listed are similar in that they are permanent, handicapping diseases, beyond the individual’s control, which may render the afflicted person temporarily unable to care for himself. In contrast, intoxication from alcohol or drug overdose is a temporary, self-inflicted condition which is fundamentally different in character from the diseases specifically identified in the statute. The very purpose of the statute is to guard against mistaken arrest for intoxication when, in fact, the individual is suffering from a medical illness. How ironic it would be to interpret this statute as protecting an intoxicated person from being mistakenly identified and arrested as an intoxicated person. Accordingly, under the principle of ejusdem generis, the statute cannot be construed to include intoxication and drug overdose under the general term “illness.”

It is undisputed in this case that defendant complied with the statute by checking decedent’s person for identification indicating he was afflicted with an illness of the type specified in the statute. It is also undisputed that decedent was not wearing such identification and, in fact, did not suffer from any permanent illness specified in the statute. Therefore, summary judgment in favor of defendant as to plaintiff’s claim for negligence per se is affirmed.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.

Decided September 11, 1987

Rehearing denied September 29, 1987

Michael R. Hauptman, Robert G. Rothstein, for appellants.

Albert S. Johnson, Wade H. Watson III, Karen G. Kirkpatrick, James S. Owens, Jr., for appellee.


text:
    74815.
    SHAW v. FILLMAN et al.
    (361 SE2d 518)
   Pope, Judge.

Appellant Shaw entered into negotiations with appellees Fillman and Proven, Inc. to purchase the inventory and other assets of a ladies apparel store which was going out of business. Shaw knew that Fillman was acting as the seller’s broker. Nevertheless, it is undisputed that Fillman represented to Shaw that he would undertake certain duties toward her, including: (1) seeing that all information requested by her was obtained from the seller; (2) communicating offers to the seller; and (3) assuring that when the deal was closed it would be satisfactory to both parties. The seller accepted Shaw’s written offer to purchase a portion of the store’s inventory and to assume liability of approximately $14,400 for “merchandise on order.” Fillman prepared a written contract to be signed by both parties. He informed Shaw the contract reflected the terms of her offer. However, the contract did not refer to merchandise on order but, instead, indicated part of the purchase price included the above-stated amount for assumption of “accounts payable.” In compliance with the contract, at closing the seller produced an updated list of vendors with unpaid accounts. According to her affidavit, it was Shaw’s understanding that the accounts payable referred to in the written contract and attached to the closing documents were comprised only of merchandise on order because she “had been told that all bills were paid up to date.” We note that there is nothing on the face of the list of accounts payable that indicates the merchandise reflected in those accounts had already been delivered.

Shortly after closing, one of the creditors listed on the closing documents brought an action on open account against the seller and Shaw. If Shaw is held liable on the account, she will, in effect, pay a second time for merchandise she purchased from the seller. Shaw answered and named Fillman as third-party defendant. Shaw appeals from the grant of summary judgment to Fillman.

1. Fillman can be liable to Shaw only if he breached a fiduciary duty owed her. Fillman’s agency relationship with the seller would not necessarily preclude Fillman from also entering into a fiduciary relationship with Shaw. Dual agency is not contrary to public policy so long as it is known and consented to by the contracting parties. Spratlin, Harrington & Thomas v. Hawn, 116 Ga. App. 175 (1) (156 SE2d 402) (1967). “ ‘An agent may perform mere ministerial acts, involving no discretion, for one of the parties to the contract, though he is agent for the other party. He is forbidden to act for both only when there is opportunity that the skill and judgment which he should exercise for the one may conflict with the skill and judgment he should exercise for the other.’ [Cit.]” Id. at 182. Here, the seller’s broker [Fillman] agreed to perform certain ministerial acts for the buyer which do not appear to be in conflict with the duties he owed the seller. Neither is there any evidence the seller did not know or consent to the broker’s assistance to Shaw. Fillman represented he would obtain all information Shaw requested from the seller. If Shaw can show Fillman negligently misrepresented information concerning the nature of the accounts for which she assumed liability from the seller, Shaw may be able to prevail in her third-party claim.

Fillman also represented he would see that the final agreement was satisfactory to her. Shaw’s written offer to assume liability for certain amounts clearly applied only to merchandise on order. The purchase contract prepared by Fillman referred not to merchandise on order but to accounts payable. We reject Fillman’s argument that the written contract represents a counteroffer since the undisputed evidence shows Shaw’s written offer was accepted. To the extent the purchase contract differed from the written offer and acceptance, a genuine issue of fact exists as to whether Fillman is liable for breach of fiduciary duty to Shaw.

“The rule in this state is that where one who can read signs a contract without reading it, he is bound by the terms thereof, unless he can show that an emergency existed at the time of signing that would excuse his failure to read it, or that the opposite party misled him by an artifice or device which prevented him from reading it, or that a fiduciary or confidential relationship existed between the parties upon which he relied in not reading the contract.” Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421) (1975). The undisputed evidence shows Fillman made certain representations to Shaw concerning the status of the seller’s accounts and the meaning of certain terms in the contract. The duty of Fillman to Shaw, if any, is analogous to the duty of an insurance agent who is alleged to have been negligent in procuring insurance for the insured. See, e.g., Stewart v. Boykin, 165 Ga. App. 868 (303 SE2d 50) (1983); Johnson v. Pennington Ins. Agency, 148 Ga. App. 147 (251 SE2d 116) (1978). “We hold that a genuine issue of material fact exists as to whether an agency relationship existed between [third-party] plaintiff and [third-party] defendant and therefore summary judgment was improper.” Stewart v. Boykin, supra at 871.

Decided September 11, 1987

Rehearing denied September 29, 1987.

Robert E. Born, for appellant.

Mickey G. Roberts, for appellees.

2. “To make out a cause of action for fraud and deceit it is necessary to allege that the person defrauding by false statements or by representations inducing the other person to act to his injury, knew that the representations were false and made the same with the intent to deceive and defraud on existing facts.” C. M. Miller Co. v. Ramey, 82 Ga. App. 807, 809 (62 SE2d 768) (1950). We agree Shaw’s third-party complaint against Fillman fails to state a claim for fraudulent misrepresentations.

.3. The remaining enumerations of error are addressed in Division 1 of this opinion.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Deen, P. J., concur.


text:
    74971.
    PAYNE v. THE STATE.
    (361 SE2d 666)
   Deen, Presiding Judge.

Appellant Payne was convicted in the Fulton County State Court of making an impermissible U-turn, driving under the influence, and driving without no-fault insurance. He moved for new trial on the general grounds and amended the motion to include two additional grounds: that the court erred in denying his motion for directed verdict of acquittal on the no-insurance count; and that the court also erred in admitting evidence of a prior similar transaction (DUI) without complying with the requirements of Uniform Court Rule 31.3 (B). After denial of the motion, he appealed to this court on the two grounds enumerated in his amended motion for new trial. Held:

1. The record reveals that on May 29, 1986, appellant was issued a traffic citation for, inter alia, “driving without proof of no-fault insurance,” whereas the accusation alleged that “the said accused . . . did knowingly operate a motor vehicle on Georgia Highway #70, without effective insurance thereon.” According to the trial transcript, however, the evidence was sufficient to support a conviction under the charge stated in the accusation. The transcript shows that, when asked by the arresting officer for proof of insurance, Payne emptied his wallet and unsuccessfully searched through its contents for proof of insurance, and then told the officer that it was in the glove compartment of his pickup truck. Search of the glove compartment revealed no proof of insurance. At trial, which was held nearly seven months later, appellant contended that he did have no-fault insurance but again was unable to produce a card, a copy of the policy, or any other evidence thereof.

The Attorney General of Georgia has opined unofficially that, while it is improper to accuse of driving without insurance merely because of failure to produce proof of insurance on the spot, the failure to produce such proof instanter may trigger a requirement that such proof be produced within a reasonable time, in order to avoid a charge of driving without the required insurance. 1980 Op. Att’y Gen., No. U80-18. The accusations in the instant case were not filed in the Fulton State Court until July 6, 1986, nearly six weeks after appellant’s arrest on the three charges. If (as a reasonable person might infer from appellant’s failure to produce the necessary proof months later at trial) appellant failed to secure proof of insurance between the time of his arrest and the time of the filing of the accusation, the rational finder of fact would be authorized to conclude that he had not discharged his duty of producing proof within a reasonable time, and that he might properly be charged with driving without the mandatory insurance. Appellant’s failure to produce the required proof of insurance vitiated any purported grounds for a motion for a directed verdict of acquittal on this count. Such a motion should be granted only when “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” OCGA § 17-9-1 (a). It is only when the evidence demands a verdict of “not guilty” that it is error for the trial court to refuse to grant a motion for a directed verdict of acquittal. Battle v. State, 155 Ga. App. 541 (271 SE2d 679) (1980). The evidence in the instant case fell far short of the statutory standard, and the trial court correctly denied the motion.

2. On November 6, 1986, some six weeks prior to trial, the State served on defendant/appellant notice of intent to present evidence of similar transactions for the purpose of showing intent, common plan or scheme, etc. See, e.g., Mines v. State, 167 Ga. App. 766 (307 SE2d 291) (1983). Attached to the notice of the March 1980 DUI transaction was a copy of the conviction; the notice of the August 13, 1986, arrest for DUI, however, had no such attachment but bore the notation, “Case still pending.” Defense counsel objected to admission of the second transaction on the basis that it failed to comply precisely with the requirements of Uniform Rule 31.3 (b), in that no copy of a conviction or accusation was attached. Defense counsel stated in his place, however, that he had actual notice of the pending charge; that, in fact, he was the attorney of record for that case as well as the one sub judice. The trial court overruled the objection, holding that the State had substantially complied with the Rule, especially inasmuch as the Rule’s primary purpose was to ensure that the defendant had fair and timely notice that other transactions would be introduced.

Decided September 8, 1987

Rehearing denied September 29, 1987

Wallace C. Clayton, for appellant.

James L. Webb, Solicitor, Norman Miller, Donald C. English, Assistant Solicitors, for appellee.

Georgia law supports the trial court’s ruling. See, e.g., Sweatman v. State, 181 Ga. App. 474 (352 SE2d 796) (1987); Stewart v. State, 180 Ga. App. 266 (349 SE2d 18) (1986). See also Kilgore v. State, 176 Ga. App. 121 (335 SE2d 465) (1985). In Sweatman and Stewart, as in the instant case, not only was there substantial compliance and actual notice, but appellant has demonstrated no harm resulting from the alleged error. We find no merit in this enumeration.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    75025.
    TAYLOR v. THE STATE.
    (361 SE2d 667)
   Deen, Presiding Judge.

Appellant was convicted of driving without insurance and driving under the influence of alcohol. On appeal he contends that the state failed to present a prima facie case as to the insurance count and that the charge on DUI was incomplete.

1. Appellant claims the trial court erred in denying his motion for a directed verdict as the State’s case rested solely upon an officer’s testimony that he failed to produce proof of insurance upon request, and the State did not produce evidence at trial that he had no insurance. Appellant claims the state relied on the fact he failed to produce proof of insurance. We disagree with appellant as to the proof offered by the State. The evidence was sufficient to authorize a reasonable trier of fact to find appellant guilty as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant also contends that the trial court’s charge to the jury “that a person shall not drive or be in actual physical control of any motor vehicle while under the influence of alcohol” was harmfully incomplete, because it did not inform the jury that being under the influence of alcohol meant that consumption of alcohol had rendered him a less safe driver. We agree that the trial court should have so defined the term, “under the influence.” See Turner v. State, 95 Ga. App. 157, 158 (97 SE2d 348) (1957). See also Smitherman v. State, 157 Ga. App. 526 (278 SE2d 107) (1981); and Anderson v. State, 226 Ga. 35 (172 SE2d 424) (1970).

Decided September 8, 1987

Rehearing denied September 29, 1987

Wallace C. Clayton, Joanne E. Elsey, for appellant.

Henry C. Head, Solicitor, for appellee.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


text:
    75049.
    SOUTHERN INSURANCE COMPANY v. WALKER et al.
    (361 SE2d 502)
   Deen, Presiding Judge.

In late 1984, the appellant, Southern Insurance Company (Southern), issued an automobile insurance policy to Bobby Walker, with a policy period extending from October 19, 1984 to April 19; 1985. On November 27, 1984, Southern mailed a cancellation notice indicating: (1) that the cancellation was due to Walker’s failure to disclose his driving record on the application; (2) that the cancellation was effective December 12, 1984; (3) that Southern would consider reinstating the policy upon payment of $28.50 prior to the cancellation date; and (4) that he should contact his agent for payment information. On November 30, 1984, Parkman Enterprises, Inc. (Parkman), the insurance agent through which Walker had applied for insurance, also sent Walker a notice that informed him that “due to undisclosed driving violations, there is an additional premium of $28.50 due no later than December 7, 1984, to avoid cancellation of your auto insurance. It appears that you have had a D.U.I., therefore, the company is charging the additional premium.” Southern received no further payment from Walker, and on December 28, 1984, sent the unearned premium on his policy to Parkman, which forwarded the refund to Walker on January 10, 1985. By that time, however, Walker was dead, having been struck by another vehicle as he was filling his gasoline tank on December 22, 1984.

Walker’s widow and children commenced this wrongful death action, and subsequently served Southern as an uninsured motorist carrier. Both Southern and the appellees moved for summary judgment, and this appeal followed from the trial court’s grant of summary judgment for the appellees. Held:

In Pennsylvania Nat. &c. Ins. Co. v. Person, 164 Ga. App. 488, 489 (297 SE2d 80) (1982), this court held that “[a] notice of cancellation which states that a policy will be cancelled on a specified date unless premiums due are paid prior to that date, is not a notice of cancellation, but merely a demand for payment.” In Person, the purported notice of cancellation was invalid because the reason for cancellation, i.e., nonpayment of premium, had not occurred. In the instant case, however, the declared reason for cancellation was a fait accompli prior to the notice of cancellation. The fact that the notice of cancellation left open the possibility of reinstatement of the policy did not invalidate that cancellation notice. Also, the letter from Parkman could not affect the cancellation notice, because Parkman was Walker’s agent, and not that of the insurer.

Decided September 8, 1987

Rehearing denied September 29, 1987

Wade K. Copeland, Wayne D. McGrew III, for appellant.

L. Prentice Eager III, F. Glenn Moffett, Jr., for appellees.

Walker’s contention that a delayed payment of the required refund for unearned premium invalidates a cancellation notice, receives no support from the statute requiring a refund. See OCGA § 33-24-44 (e) (1). That statute provides the time frame and procedural mechanics for effecting the return of premium, but does not impose a penalty for non-compliance with the time frame. Moreover, OCGA § 33-24-44 (c) (3) provides that failure to return any unearned premium shall not invalidate a notice of cancellation properly executed. OCGA § 33-24-44 (b) establishes the proper method of cancellation but contemplates cancellations must be served at least 30 days before cancellation. OCGA § 33-24-44 (d) creates an exception to the 30-day notice requirement if the policy has been in existence less than 60 days, as was true in this case, reducing the notice time to ten days. Logic compels the conclusion that a belated return of premium (or a failure itself) following a ten-day notice of cancellation has no greater detrimental impact upon the notice of cancellation than such a delinquent or failed return following a 30-day notice of cancellation.

In summary, the notice of cancellation in this case was valid, and the trial court erred in granting summary judgment for the appellees and in denying summary judgment for Southern.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


text:
    75517.
    HOSCH v. HOSCH.
    (361 SE2d 686)
   Pope, Judge.

Appellant brings this direct appeal from a judgment denying his petition to hold appellee in contempt of the final judgment and decree of divorce between the parties which granted him visitation rights to the parties’ child. As visitation privileges are a part of custody, Buckner v. Davis, 175 Ga. App. 849 (335 SE2d 745) (1985), this case can be reviewed only by application for discretionary appeal. OCGA § 5-6-35 (a) (2). Appellant’s failure to follow the procedure necessary to secure a discretionary appeal requires dismissal of this case. Burnett v. Coleman, 170 Ga. App. 394 (317 SE2d 546) (1984), and cits.

Decided September 15, 1987

Rehearing denied September 29, 1987

Roy Lee Hosch, pro se.

Lanier Randall, for appellee.

Appeal dismissed.

Birdsong, C. J., and Deen, P. J., concur.


author: Sognier, Judge.

text:
    74552.
    HARDEN v. THE STATE.
    (361 SE2d 696)
   Sognier, Judge.

Appellant was convicted of escape from confinement, two counts of aggravated assault, and possession of a firearm by a convicted felon. He appeals on the general grounds.

The evidence disclosed that appellant was a guard at the Georgia State Prison in Reidsville, and purchased a .25 calibre Derringer pistol and 50 rounds of ammunition for the pistol. He test-fired the weapon and placed it in the trunk of his car. About two or three weeks later Leonard Culbertson and Joseph Flowers, inmates at the prison, were being transported to Augusta for medical treatment. Although handcuffed and in leg irons, Culbertson freed himself from his handcuffs and commandeered the van at gunpoint. He forced Robert Jordon and Lewis Eason, the guards, into the rear of the van after making Eason throw away the guards’ weapons. The guards were handcuffed and Culbertson drove the van to a wooded area near Allendale, South Carolina, where the inmates chained Jordon and Eason to a tree while Culbertson and Flowers camouflaged the van. The guards were then robbed of their money, some clothing and other personal property. Several hours later the guards were placed in the rear of the van, handcuffed and chained by their leg irons to a metal bar in the van. Culbertson and Flowers departed on foot and were apprehended the following morning near Barnwell, South Carolina. After spending the night in the van, the guards freed themselves from the metal bar and hitchhiked into Barnwell. When Culbertson was apprehended he was carrying a .25 calibre Derringer pistol and several rounds of ammunition identical to those purchased by appellant.

The box of ammunition purchased by appellant, containing thirty-six of the original fifty rounds, was found in his home. Appellant worked in the prison building housing Culbertson and stated to police he had talked to Culbertson many times and had delivered notes for him on several occasions. Appellant also acknowledged that he had purchased the gun and ammunition, test fired the gun, then put it in the trunk of his car. Although there was no direct evidence as to how Culbertson got the gun, appellant acknowledged that he left the gun in his car while it was parked at the prison, which was against regulations. Other testimony indicated that it would have been impossible for Culbertson to get from his cell to the parking lot, as he was never allowed outside his cell unless accompanied by five guards.

Appellant was charged jointly with Culbertson and Flowers as an aider and abettor under the provisions of OCGA § 16-2-20 (b) (3), which makes one who aids and abets the commission of an offense guilty of that offense as a party to the crime. Thus, we find the evidence as to the offenses of aggravated assault and possession of a firearm by a convicted felon sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). However, in regard to the offense of escape from lawful confinement, we must reverse for reasons set forth hereafter.

Our legislature has enacted a specific statute making it an independent criminal offense to knowingly aid another in escaping from any place of lawful confinement. OCGA § 16-10-53 (a). Hence, that statute, insofar as escape from confinement is concerned, preempts OCGA § 16-2-20 (b) (3) (aiding and abetting the commission of an offense), and it was improper to charge appellant as an aider and abettor to the offense of escape from lawful confinement. By defining the offense of escape from confinement in one statute and defining the offense of aiding another in escaping from confinement as an independent offense in a separate statute, the legislature clearly created two separate offenses. If an act which constitutes one a technical accessory (aider and abettor) has by statute been made an independent offense, he thereby becomes a principal in the independent crime and the law applicable to the trial of accessories does not apply. Stone v. State, 118 Ga. 705 (1) (45 SE 630) (1903). This result is further evidenced by the fact that the punishment for the offense of escape from confinement while armed with a dangerous weapon is one to ten years (OCGA § 16-10-52 (b)), while the punishment for knowingly aiding a prisoner to escape is one to five years (OCGA § 16-10-53 (a)). If one who aids another to escape is a party to the crime of escape, no separate statute would be required, because the offense would be within the general rule applicable to all cases of aiders and abettors. Stone, supra at 709 (2). Although Stone dealt with the offenses of perjury and suborning perjury, the principles enunciated therein are equally applicable to the facts of the instant case. Thus, under the facts of this case it was improper to charge and convict appellant as an aider and abettor to the offense of escape from confinement, and his conviction for that offense cannot stand.

Decided September 29, 1987.

Phillips D. Hamilton, for appellant.

J. Lane Johnston, District Attorney, for appellee.

Judgment affirmed as to aggravated assault (two counts) and possession of a firearm by a convicted felon. Judgment reversed as to escape from confinement.

McMurray, P. J., and Beasley, J., concur.


text:
    74732.
    OGLETREE v. JACKSON.
    (361 SE2d 535)
   Sognier, Judge.

Gregory Jackson brought suit against Gary Ogletree seeking to recover $5,000 he paid Ogletree under an agreement for the purchase of Ogletree’s house. The parties stipulated that the sole issue for the trial court was the legal interpretation of the agreement. The trial court ruled in favor of Jackson and Ogletree appeals.

The sales contract signed by the parties set forth in detail the financing appellee was to obtain. The parties also signed a “move-in” agreement referencing the sales contract in which appellant agreed to rent the house to appellee prior to closing for a monthly sum. The move-in agreement also provided in Item 11 that “[t]his Move-in Agreement is supplemental to the Sales Contract between the parties, which includes a provision that it is subject to [appellee] being able to obtain a loan.” The move-in agreement stipulated in Item 14 that appellee “shall deposit $5000.00 with [appellant]. This amount will be applied to the purchase price at time of closing. When or if the closing is not consummated, the entire $5000.00 will be held by [appellant].”

1. Appellant contends the agreement signed by the parties was unambiguous and the trial court’s interpretation of the agreement conflicted with that unambiguous language. We do not agree. On a first reading, Item 11, making the entire agreement of the parties contingent upon appellee obtaining financing, would seem to conflict with Item 14, allowing appellant to retain the $5,000 deposit should the contract fail to close, presumably for any reason whatsoever. In addressing this conflict, the trial court was guided by the well-established principle that “[construction of written contracts, even if they are ambiguous, is a matter for the court and no jury question arises unless after application of applicable rules of construction the ambiguity remains. [Cits.]” Chalkley v. Ward, 119 Ga. App. 227, 235 (7) (166 SE2d 748) (1969). In particular, the trial court relied upon OCGA § 13-2-2 (4) which provides: “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.”

Decided September 29, 1987.

William H. Norton, for appellant.

Julius Alembik, for appellee.

The apparent conflict in the agreement was harmonized by the trial court’s interpretation that Item 11 placed a contingency in the contract which first had to be met before the contract became enforceable. Thus, had that contingency been met, the provision of Item 14 would have allowed appellant to retain the $5,000 deposit had the closing not been consummated for any reason thereafter arising. However, since the contingency in Item 11 was not met in that the parties agree appellee did not obtain the financing set forth in the sales contract, the trial court properly held that the contract was unenforceable and that appellee was entitled to the return of the $5,000.

2. As to appellant’s remaining enumeration, in the absence of any irreconcilable conflict between Item 11 (printed matter) and Item 14 (typewritten provision), appellant’s reliance on OCGA § 13-2-2 (7) is misplaced. See Capital Wall Paper Co. v. Callan Court Co., 38 Ga. App. 428 (144 SE 135) (1928).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    74995.
    SUMNER v. THE STATE.
    (361 SE2d 536)
   Sognier, Judge.

Appellant was convicted at a bench trial of driving with a suspended license and he appeals on the general grounds.

The evidence disclosed that appellant was observed driving by Marty Hooks, a member of the Treutlen County Sheriff’s Department, who knew that appellant had had a problem with his driver’s license. Appellant pulled into a service station and went inside; Hooks pulled in behind appellant’s car and when he came back outside, Hooks asked: “Wayne, have you got your driver’s license back yet?” Appellant replied: “Marty, you know I hadn’t got them back yet.” Hooks then informed appellant that he (Hooks) was going to charge appellant, because he could not charge other people and not charge appellant, knowing that he did not have a driver’s license.

Decided September 29, 1987.

B. H. Baldwin, for appellant.

J. Clayton Burke, Jr., Solicitor, for appellee.

This was the only evidence presented by the State, and appellant argues that such evidence is not sufficient to sustain his conviction because the State failed to prove appellant had received notice that his license was suspended. We agree and reverse.

We note initially that such evidence does not even establish that appellant’s driver’s license had been suspended, but only shows that appellant did not have a license in his possession at the time he was stopped. Although the State argues that it presented evidence that appellant had a prior conviction for a similar offense, the trial court specifically refused to admit such evidence and stated that it would not consider such evidence.

One of the elements of driving while one’s license is suspended is notice to the defendant of action in suspending the license, and absent proof by the State of actual or legal notice to the defendant a conviction for that offense cannot be sustained. State v. Orr, 246 Ga. 644 (272 SE2d 346) (1980); Barrett v. State, 173 Ga. App. 452 (1) (326 SE2d 816) (1985). Appellant’s statement that he had not gotten his license back yet is not proof that his license had been suspended, or if so, that he had actual or legal notice that his license had been suspended. The only evidence relating to appellant’s driver’s license was his own testimony that the “Sheriff’s Department or State Patrol or somebody had them, I didn’t have them.” There was no explanation as to why one of those agencies, or “somebody,” had appellant’s license. Such testimony is not evidence that the license had been suspended; in fact, at the time of trial appellant had a valid driver’s license which was introduced into evidence.

The State’s reliance on Barrett, supra, is misplaced, because in Barrett the defendant acknowledged to the arresting officer that his (the defendant’s) license was suspended. Here, there was no such acknowledgement, and in the absence of evidence that appellant’s license had been suspended and that he had actual or legal notice of such suspension, his conviction cannot be sustained. Orr, supra.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.