text:
    A90A0609.
    LEVINSON v. AMERICAN THERMEX, INC.
    (396 SE2d 252)
   Carley, Chief Judge.

The relevant facts in this case are as follows: Robert Johnson and appellant-defendant executed a promissory note in their individual capacities at about the same time that Johnson obtained from appellant a controlling interest in appellee-plaintiff corporation. When the holder of the note declared it due and payable under the terms thereof, neither appellant nor Johnson paid the note. Instead, payment was made by appellee. Thereafter, appellee brought this suit against appellant, seeking reimbursement for its payment of the note. The case was tried before a jury and a verdict was returned in favor of appellee. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the trial court’s denial of his motion for directed verdict and subsequent motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. Appellant urges that there is no evidence which would authorize appellee to recover for its payment of a note on which only he and Johnson were obligated.

“[T]he legal right of subrogation arising out of the payment of the debt of another extends only in favor of a surety for the payment of the debt or in favor of one who is compelled to pay the debt to protect his own right or interest. . . Hiers v. Exum, 158 Ga. 19 (2) (122 SE 784) (1924). Although Johnson signed the note ostensibly as a co-maker, he may be proved to be a surety by parol evidence. See OCGA § 10-7-45; Campbell v. Rybert, 46 Ga. App. 461 (1) (167 SE 924) (1933); Buck v. Bank of the State of Ga., 104 Ga. 660 (30 SE 872) (1898). However, the name of appellee appears nowhere on the face of the note and there was no evidence that appellee had ever legally obligated itself to pay the note. See OCGA § 10-7-1; Hollingsworth v. Ga. Fruit Growers, 185 Ga. 873, 876 (2) (196 SE 766) (1938). Compare Complete AAA Mfg. Corp. v. C & S Nat. Bank, 119 Ga. App. 450, 451-52 (2) (167 SE2d 734) (1969). Moreover, it is undisputed that the debt was paid by appellee to protect Johnson’s credit and not to protect any interest or right of appellee itself. It follows that appellee is not a surety on the note and otherwise has no right of subrogation at law.

Decided June 21, 1990

Rehearing denied July 11, 1990.

Robert D. Wildstein, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Harold W. Whiteman, Jr., Eve A. Appelbaum, Andy Nelson, for appellee.

Appellee contends that upon payment, it was automatically assigned the rights of the holder of the note. However, there is no evidence of a written assignment of the note to appellee by the holder. Under the law of this state, “where the type of agreement on which the action is brought is alleged to be an assignment of a chose in action, and it is no more than an assignment, a mere purchase of another’s cause of action, it must be in writing if the assignee is to sue thereon in his own name in a purely legal action.” State Farm &c. Ins. Co. v. Jones, 98 Ga. App. 46, 57 (2) (104 SE2d 725) (1958). The promissory note is a chose in action. Kilgore v. Buice, 229 Ga. 445, 447 (192 SE2d 256) (1972). Therefore, appellee cannot recover in this legal action based upon an entirely unwritten assignment of the note.

It follows that, under the evidence, appellee acted as a mere volunteer when it paid the note, and it cannot recover its voluntary payment. See OCGA § 13-1-13. Thus, the trial court erred in denying appellant’s motions for directed verdict and for judgment n.o.v.

2. The remaining enumerations of error are moot.

Judgment reversed.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A0675, A90A0676.
    ODOM v. THE STATE (two cases).
    (396 SE2d 27)
   Cooper, Judge.

Appellant was convicted following a bench trial of driving under the influence (OCGA § 40-6-391 (a)) and driving too fast for conditions (OCGA § 40-6-180). Case number A90A0675 is an appeal of his conviction for DUI and case number A90A0676 is an appeal of his conviction for driving too fast for conditions. On June 12,1989, appellant’s attorney signed a form waiver of arraignment and the case proceeded to a bench trial. The trial was not transcribed, consequently our record contains no transcript of the proceeding. Appellant raises the same eight enumerations of error in both appeals.

1. The first, third, fourth and eighth enumerations raise as error, respectively, the failure to grant a jury trial, the admission of appellant’s inculpatory pre-trial statements, the admission of evidence of the blood alcohol testing of appellant and the failure to grant appellant’s demurrer and motion to quash the accusations. The jury trial request, the evidentiary motions and the demurrer were waived by appellant when his counsel signed the waiver of arraignment form which stated that “[t]he undersigned also acknowledges that all motions, demands, demand for trial by jury and further pleadings shall be filed within five days after the arraignment date of this case, and that the failure to file such shall result in the waiver of those demands, motions and a trial by jury.” The date of the waiver of arraignment was June 12, 1989; the motions in issue were filed on July 24, 1989; and appellant states he requested a jury trial on the date of the hearing, July 25, 1989. These requests were untimely, and no error occurred. See Uniform Superior Court Rule 31.1.

2. Appellant asserts in his second enumeration that the court erred in denying his request for a transcription of the proceedings at the State’s expense. “OCGA § 5-6-41 (b) . . . provides that it lies within the discretion of the trial court to grant or deny an indigent the transcription of the trial of a misdemeanor. [Cit.]” Hughes v. State, 168 Ga. App. 413 (1) (309 SE2d 409) (1983). The record is devoid of any indication that the trial judge abused his discretion, consequently no error occurred. Frasier v. State, 160 Ga. App. 812 (1) (287 SE2d 669) (1982).

3. The fifth and sixth enumerations both raise error in connection with the trial court’s refusal to consider documents produced by the Department of Transportation regarding the marking of the roadway, and the court’s denial of appellant’s request for a continuance to examine those documents. In the seventh enumeration, appellant contends that error occurred when the trial court granted the State’s motion to quash appellant’s subpoena of police personnel records. The subpoena was not included in the record. Any of the contended errors must be shown by the record, and cannot be done by the brief. Ward v. State, 188 Ga. App. 372 (3) (373 SE2d 65) (1988). We find no error in the record before us, and, absent a transcript, “we must assume the ruling of the trial court is supported by the evidence.” Sheriff v. State, 184 Ga. App. 180 (361 SE2d 53) (1987).

Decided June 27, 1990

Rehearing denied July 11, 1990 — Cert, applied for.

Arthur F. Millard, for appellant.

Keith C. Martin, Solicitor, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A90A0761.
    ROBERTSON v. LIFE INSURANCE COMPANY OF GEORGIA.
    (396 SE2d 35)
   Sognier, Judge.

Donna Robertson, individually and as the temporary administratrix of the estate of her husband, Aubrey Robertson, brought suit against Life Insurance Company of Georgia seeking to recover life insurance benefits under a policy applied for by her decedent in May 1988. It is uncontroverted that Life Insurance Company rejected the application. Its agent averred he received the rejection notice the week of July 11, 1988 and made four attempts to deliver it. The agent succeeded in delivering the rejection notice on July 25, 1988, the day after Aubrey Robertson was killed in an automobile accident. The trial court granted Life Insurance Company’s motion for summary judgment, and Robertson appeals.

We affirm. “An application for insurance is a mere offer, and the [insurance] company is free to accept or reject it. Unless the offer is accepted by the company no contract ever comes into existence and no liability can arise. So long as the application is not acted upon by the company, no contract of insurance is consummated, and where the applicant dies before the acceptance of his application, the company has incurred no liability.” (Citations and punctuation omitted.) Whitmire v. Colonial Life &c. Ins. Co., 172 Ga. App. 651-652 (323 SE2d 843) (1984). Even the concurrent prepayment of a $16 premium by appellant’s decedent created no binding contract of life insurance in the absence of appellee’s acceptance of the application. Id. In view of the long established case law supporting the above position, including controlling opinions by the Supreme Court, see, e.g., New York Life Ins. Co. v. Babcock, 104 Ga. 67, 70-71 (30 SE 273) (1898), we decline appellant’s invitation to adopt the theory of “interim insuranee,” under which an insurer who has received an application accompanied by a prepaid premium is liable to the applicant for coverage under the applied-for policy in the interim between the submission of the application for insurance and the applicant’s receipt of the rejection notice, based on the rationale that the insurer is otherwise unjustly enriched by its receipt of interest from the prepaid premium. Our rejection of this theory renders it unnecessary for us to address appellant’s enumeration asserting her entitlement to discover documents purportedly demonstrating the pecuniary benefit appellee received by retaining the $16 prepaid premium.

Decided July 2, 1990

Rehearing denied July 11, 1990. — Cert, applied for.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellants.

Doremus & Jones, Bobby Jones, for appellee.

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0995.
    GOODEN v. THE STATE.
    (395 SE2d 634)
   Deen, Presiding Judge.

David Gooden was accused of trafficking in cocaine, was tried at a bench trial, was convicted, and appeals, contending that the trial court erred in denying his motion to suppress. Held:

Appellant was stopped for speeding by a City of Riverdale police officer after the officer’s radar clocked him driving at 62 mph in a 45 mph zone. The officer noticed that Gooden’s driver’s license had expired a month earlier, and that his automobile had a dealer driveout tag although it was a used car. Gooden was arrested for these three offenses and placed in the back seat of the officer’s patrol car. He was advised that a wrecker would be called if he did not have anyone who could come and pick up the car. Gooden indicated that he wanted to go to a pay phone and call someone, but the officer asked him to give the number to him and he would have someone from the police station call. Gooden also indicated that it would take 35-45 minutes to have his car picked up. The defendant never gave the name or number of anyone to be called because the officer informed him that department policy required that the vehicle be picked up in 10-15 minutes or it would be impounded. Two other police officers arrived at the scene, heard the end of the discussion about someone picking up the car, and heard Gooden consent to getting a wrecker. Appellant was taken to the police station, and the car was turned over to the other officers, who moved it to a furniture store parking lot. An inventory search was conducted while they waited for the wrecker. One of the officers found a jumpsuit in the back seat which had $1,100 in a breast pocket and a .32 caliber automatic pistol in another pocket. As he was further checking the car, the officer noticed a loose radio speaker grill on the door on the passenger side, and the other officer noticed that the door on the driver’s side had a hole but no speaker. He shined his flashlight in the hole and saw a bottle of incense and a blue object stuck up into the door about two inches above the speaker hole. • He removed a vinyl bag containing what he suspected to be crack cocaine. From under the driver’s seat the officer removed a brown paper bag containing two wads of aluminum foil containing suspected crack cocaine. No other contraband was discovered in the car.

In New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the Supreme Court upheld a similar search of the visible parts of the vehicle and a jack contained therein as a search incident to an arrest, of the immediate area of the defendant. In State v. Escobar, 193 Ga. App. 535 (388 SE2d 534) (1989), this court held that during a search incident to arrest the removal of a misaligned piece of molding, which had been attached to the body of the vehicle by an invisible strip of velcro, did not fall within the “plain view” doctrine and exceeded the objectives of permitting such a search because it was an unauthorized intrusion, which exposed concealed portions of the vehicle or its contents. In Maddox v. State, 188 Ga. App. 883, 884 (374 SE2d 810) (1988), this court applied the Belton rule to uphold an automobile search as a lawful search incident to arrest even though the vehicle in question was no longer occupied and the defendant had been removed from the scene.

Those cases in which this court has ruled that an impoundment was unreasonable have involved situations in which a reliable passenger or companion was present at the scene of the arrest who could have driven the impounded vehicle away or otherwise taken care of arrangements for removing the vehicle. See Reed v. State, 195 Ga. App. 821 (_ SE2d_) (1990); Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983); State v. Ludvicek, 147 Ga. App. 784 (250 SE2d 503) (1978). Here, no companion was present and the arresting officers testified that defendant informed them it would take 35 to 45 minutes for the person he wished to call to arrive. Moreover, evidence was presented at the suppression hearing that the vehicle bore an illegal tag. Of course, even if the person defendant wished to contact could not legally have driven the vehicle away with an improper tag, presumably that person could have arranged for towing of the vehicle to whatever location the defendant desired. However, we cannot say that the department policy requiring an arrestee’s vehicle to be removed within fifteen minutes is unreasonable as a matter of law. Even though the vehicle in this case had been moved off the road to a location which would cause no traffic hazard, a time requirement for removing the vehicle serves to protect the arrestee’s property from theft or damage and the police department from claims for liability for property loss. Consequently, we conclude the impoundment was not unreasonable in this case and, therefore, the inventory search, was not improper.

Although Belton has been applied in Georgia in cases similar to this one, it is not applicable where there is some necessity for the police to take custody of the vehicle and conduct an inventory search for the protection of the police department and the defendant. See State v. King, 191 Ga. App. 706, 707 (382 SE2d 613) (1989); Judge Beasley’s special concurrence in Maddox v. State, supra at 885. Accordingly, the rule in Escobar does not apply to an inventory search, and the trial court did not err in denying the motion to suppress.

Judgment affirmed.

Car ley, C. J., McMurray, P. J., Banke, P. J., Birdsong and Pope, JJ., concur. Sognier, Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

Gooden was a truck driver and was stopped on his way from work just after 3:00 a.m. when he was about five to ten minutes from home. He testified that he intended to have his wife come for the vehicle.

I agree that justification for the warrantless search of the vehicle could not lie on the exception that it was a search incident to arrest. The officers conducting it did not consider it as being necessary, incident to arrest, but rather considered it an inventory search after the decision had been made to impound it. The search did not occur until after defendant was on his way to the station with the arresting officer. There was not even a remote opportunity for defendant to obtain weapons or contraband from the vehicle at that point. Thus the theory underlying New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), does not apply.

Was it a valid inventory search? No, because there was no good faith opportunity for defendant to have his wife come for the car, although the arresting officer had begun to allow an arrangement to be made, by moving the car to a safe place to await pick-up.

The question is whether it was a legitimate impound. The officers’ testimony is that defendant said it would take 35-45 minutes for someone to come for his car and that they explained to him that the “unwritten policy” of Riverdale was to allow only 15 minutes. It was 3:30 a.m. and defendant intended for his wife to come, but he did not tell the officers who he wanted called or that his home was only 5-10 minutes away, after they refused to permit him to make the call. They did not ask for the phone number or the name of the person to be called. There were three officers present at the time. The location of the car was not a hazard. Was this a reasonable offer under the circumstances?

“Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).” Whisnant v. State, 185 Ga. App. 51, 52 (2), 53 (363 SE2d 341) (1987). “Where the impoundment is unreasonable the resulting inventory search is invalid. [Cit.]” State v. King, 191 Ga. App. 706, 707 (382 SE2d 613) (1989).

“[T]he property of a citizen is protected from unnecessary intrusion or limitation of use by its owner . . . the state’s right to impound [is] founded on a doctrine of necessity.” State v. Ludvicek, 147 Ga. App. 784, 785 & 786 (250 SE2d 503) (1978). In that case the court upheld a finding of unreasonable inventory search based on lack of necessity because “we do not believe it would have been unreasonable for the arresting officer to seek instructions from [the owner] inasmuch as he had been told she was the owner, he had verified the accuracy of that information, he knew where she was located and there was an available driver to deliver the car to [the owner] which driver was an occupant of the premises where [the owner] was waiting.” Id. at 787. In noting that a different result might be reached if the owner could not be located after a reasonable effort, the court implies that the police are obliged to exert some effort to secure the vehicle and the rights of privacy before impounding it. Impoundment always requires an inventory search. See also State v. Thomason, 153 Ga. App. 345, 348 (3) (265 SE2d 312) (1980), and Judge Shulman’s dissent in State v. Hopkins, 163 Ga. App. 141, 146 (2) (293 SE2d 529) (1982), which illustrate that the State has the burden of showing that impoundment is reasonable as necessary. The latter correctly states, “if the impoundment of an automobile is unreasonable, the inventory search which follows is invalid, and the fruits thereof must be suppressed.” The Fourth Amendment principle which must not be lost sight of is that “[¡Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).” Whisnant v. State, supra at 53.

In State v. Darabaris, 159 Ga. App. 121, 123 (282 SE2d 744) (1981), the court adopted the trial court’s articulation of the following rule: “ ‘(W)here the officer knows the identity of the owner ... in question, he should make at least a reasonable effort to determine the owner’s wishes regarding disposition of the vehicle and that only after such a reasonable effort is made would the necessity for impoundment attach.’ ” As reiterated there, the State’s interests in impounding and inventorying a vehicle are to protect the owner’s property, to protect the police from potential danger, and to protect the police from false claims of stolen or lost property; the Fourth Amendment’s interest is to protect the individual’s right of privacy.

Decided June 28, 1990

Rehearing denied July 11, 1990 — Cert, applied for.

Herbert Shafer, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Here the police did not offer to call whoever it was defendant/ owner sought to have come for the car, did not ascertain who it was, did not find out from that person how long it would take for him or her to arrive. If its custody had been given to defendant’s designee, the interests sought to be served by a police inventory would have been satisfied.

“ ‘ “Factual and credibility determinations . . . made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous.” ’ ” State v. Escobar, 193 Ga. App. 535, 538 (388 SE2d.534) (1989). “ ‘In the absence of evidence of record demanding a finding contrary to the judge’s determination [of the reasonableness of impounding the vehicle], this court will not reverse the ruling ....’” State v. Thomason, supra at 351.

Considering the evidence in favor of denial of the motion, the State failed to show, as in Stobhert v. State, 165 Ga. App. 515, 516 (301 SE2d 681) (1983), that impoundment was reasonably necessary and thus a valid incursion into Gooden’s Fourth Amendment privacy rights. The search was not a valid exercise , of the law enforcement agency’s caretaking function, which was recognized in Cady v. Dombrowski, 413 U. S. 433, 441 (93 SC 2523, 37 LE2d 706) (1973). See also the other cases cited there.

This analysis is made solely under the strictures of the Fourth Amendment and, because defendant did not raise it, not under the mandate of the Georgia Constitution, Art. I, Sec. I, Par. XIII, which should have been considered first.

I am authorized to state that Judge Sognier and Judge Cooper join in this dissent.


author: Birdsong, Judge.

text:
    A90M044.
    McMONAGLE v. THE STATE.
    (395 SE2d 821)
   Birdsong, Judge.

Michael McMonagle was convicted of the offense of obstructing a highway, street, sidewalk, or other public passage in violation of OCGA § 16-11-43. McMonagle, an advocate against abortion, was taking part in a demonstration outside The Feminist Women’s Health Center on October 5, 1988. About 300 persons, including protestors for and against abortion, were present, demonstrating outside the confines of barricades set up by police around the building and adjacent area. The demonstration was noisy and chaotic. As clinic employees escorted patients into the clinic, the employees and patients were shouted at and harassed, called murderers and killers, and on occasion, were subjected to physical insult. Several “pro-life” protestors were arrested for crossing or climbing over the barricades and depositing themselves in the pathways or areas leading directly into the building, and refusing to remove themselves when instructed to do so by police.

Appellant was the only person arrested for obstruction of public ways who remained behind the barricade. He was tried as a party to the crimes of the others, pursuant to OCGA §§ 16-2-20 and 16-2-21, for having placed himself standing on a low wall and using a loud bullhorn to exhort and encourage protestors to engage in the acts which resulted in their arrest. He appeals his conviction on grounds mainly that he should have been entitled to a directed verdict of acquittal because the State did not prove McMonagle or anyone else by his urging and abetting obstructed a “public” passage such that the obstruction renders public passage impassable without “unreasonable inconvenience or hazard,” and that any such person “refuse[d] to remove the obstruction after receiving a reasonable official request or order to do so.” Appellant also complains of the trial court’s refusal to allow into evidence a video filming of his arrest. Held:

1. Appellant’s arguments, and the State’s rebuttal, center mainly upon whether (as appellant contends) the area inside the barricades was no longer “public” by virtue of being barricaded off, so that the offense of obstruction of “public” passage could not have been committed in any event. We have no doubt that the establishment of temporary barricades along or around a public passage during the legitimate exercise of police power does not, by confining an area for certain purpose, render such passage non-public or “private,” such that a person unlawfully crossing the barricade and obstructing the confined area could quixotically claim he commits no crime.

Pretermitting all those arguments, however, is the fact that the record shows without debate the barricades did not completely close off the public access of persons legitimately present, and trying to enter the building, but that the barricade was erected along the curb of the street, and narrow areas of sidewalk were left open to public passage. Moreover, members of the public having business on the premises had ingress and egress and were not shut out by the police barricades. That is, the passage referred to was in any light still usable and was used by the public. Thus, any argument about whether an area temporarily barricaded for protection of the public passage ceases to become public passage so that (as appellant argues) in effect it can never be protected from criminal obstruction, is mere polemic.

As to whether there was any “obstruction” of the area by anyone so as to make appellant a party to the crime under the evidence, appellant misses the mark completely by his insistence that there is no clear evidence he instructed anyone to cross the barricades. The evidence shows clearly that at the very least he loudly exhorted those who did cross the barricades: “You are about to be arrested, you may be hurt, go limp, do not offer any . . . resistance, just go limp”; and that the protestors who crossed the barricades did do the things appellant instructed, went “limp” and played “dead.” One officer testified that “[t]he majority of [those protestors], once I gave them a warning, instead of leaving, they would just go limp, you know, just where we had a hard time trying to pick them up. They would go limp and make no efforts in trying to remove themselves from the premises.” (Emphasis supplied.) Regardless how they came to be inside the barricaded area, clearly the refusal of the protestors to remove themselves after warning, and their going “limp,” and playing “dead” constituted obstruction. OCGA § 16-11-43.

Moreover, the evidence shows that McMonagle, or the man with the bullhorn who was clearly identified as McMonagle, was “directing [protestors who crossed the barricades] to sing, to go over towards, to go and get arrested, go in areas where they were restricted from going”; that he was the only person with a bullhorn besides the one used by police, and was making very loud noises with his bullhorn, loud enough to overcome the noise created by the hundreds of persons demonstrating amid “chaos”; and was “directing [the protestors] to do certain things, where to move in different areas,” and that the protestors generally did what he told them to do.

The evidence is also clear that the patients who entered the clinic and the employees who escorted them by surrounding them with umbrellas did not have access “without reasonable inconvenience and hazard.”

The verdict in this case was amply supported by evidence sufficient to convince a rational trier of fact of appellant’s guilt as party to the crime of obstructing public passage in violation of OCGA § 16-11-43, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Where criminal acts are committed, the law of “parties to the crime” (§ 16-2-20) is of sufficient legislative scope and purpose to hold equally accountable one who hides behind the fence and intentionally urges or “leads” the others on to commit the criminal acts, and to submit such person to the same legal consequence as those actually committing the crime. In this respect, appellant’s basic argument that he was somehow immune from punishment because he did not cross the barricades, is without point.

Decided June 4, 1990

Rehearing denied July 11, 1990 — Cert, applied for.

Matthew S. Coles, Devin M. Ehrlich, for appellant.

James L. Webb, Solicitor, Helen A. Roan, R. Lee O’Brien, Jr., Assistant Solicitors, for appellee.

2. The trial court did not err in refusing to allow in evidence the videotape of appellant’s arrest. The film was interspersed with propagandists material which might tend to prejudice the jury and to distract its attention from the questions in issue. Moreover, the film concededly does not depict all of appellant’s actions and the actions of those he attempted to lead, which resulted in his arrest. The trial court did not abuse its discretion in determining the film to be misleading and not a fair and accurate depiction of events or representation of the scene. Jones v. State, 250 Ga. 498 (299 SE2d 549); Nash v. State, 179 Ga. App. 702 (347 SE2d 651). The appeal is without merit.

Judgment affirmed.

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

On Motion for Rehearing.

McMonagle now asserts that he never argued “the area inside the barricade somehow became private.” Thus it directly misrepresents and contradicts the assertions made on pp. 7-8 of his appeal brief, and twists to his advantage this court’s holding that the area remained public.

Further, he now says, “the appellant alleges that the police, not the demonstrators, obstructed the sidewalk,” so that McMonagle could not have done so himself in violation of OCGA § 16-11-43.

Further, contrary to his actual arguments on appeal and the ones newly created, he now contradictively agrees with this court that the barricades did not completely close off public access, and argues that, contrary to what we found in the record and expressly set out in the opinion, there was no evidence the demonstrators blocked access to the narrow passages still open.

Appellant’s misrepresentations of the original posture of his appeal and of the clear facts of record create no new issues.

Motion for rehearing denied.


author: Pope, Judge. Beasley, Judge,

text:
    A90A0145.
    PROULX v. THE STATE.
    (395 SE2d 668)
   Pope, Judge.

The issue presented in this appeal is whether the State may use as a similar transaction, evidence of an independent crime committed by the accused that resulted in a plea of nolo contendere, provided that no evidence of the actual nolo plea is introduced. Proulx is charged in this case with DUI. He was arrested at 2:30 a.m. on December 2, 1988, after a Cobb County police officer observed him driving erratically at the intersection of Hargrove Road and Cumberland Parkway. An intoximeter test on Proulx registered .10 grams percent alcohol. The similar transaction was another DUI that occurred in May 1986 within five miles of the site of the current crime charged. In that case, Proulx was stopped for erratic driving at 2:11 a.m. and registered .15 on the intoximeter test. He entered a plea of nolo contendere to that charge.

1. In Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535) (1989), this court held that the State may not use a plea of nolo contendere as evidence of a prior similar crime. In this case, the State distinguishes Corbitt by pointing out that it does not seek to introduce evidence of the nolo plea, but rather will produce witnesses to the prior similar transaction who will testify as to the circumstances of it, but not as to its disposition. The purpose of the legislation establishing the plea of nolo contendere was discussed by the court in Wright v. State, 75 Ga. App. 764 (44 SE2d 569) (1947). After noting that a plea of guilty could be used against a person, if otherwise admissible, as an admission of guilt and that the plea also carried substantial civil disabilities, the court stated that the plea of nolo contendere was created by the legislature to ameliorate the harsh effects of a guilty plea. “[Provision was made for a plea of guilty that in the discretion of the court could be employed by defendants thus guilty of crime, which would authorize the court to impose the punishment fixed by statute as to the offense charged, without also carrying with it the objectionable and infamous provisions of law as herein outlined.” Id. at 766.

Defendant argues that allowing thé State to use such evidence flies in the face of the policy explained in Wright. We disagree. As we read OCGA § 17-7-95 (c), the Code section allowing the nolo contendere plea, and Wright, the evil sought to be remedied is the use of a plea as a shortcut to brand a person in subsequent proceedings and to avoid imposition of civil disabilities as a result of the plea. To adopt defendant’s argument would require us to transform the plea of nolo contendere into the privilege of first offender treatment, as granted by OCGA §§ 42-8-60 through 42-8-65. Merely proving the prior similar transaction, without reference to its disposition by plea of nolo contendere, is permissible and does no harm to the policy embodied in OCGA § 17-7-95 (c).

Decided July 11, 1990.

Cochran, Camp & Snipes, Scott A. Cochran, for appellant.

Patrick H. Head, Solicitor, B. Martin First, Beverly M. Hartung, Assistant Solicitors, for appellee.

2. The trial court correctly concluded that the prior transaction was sufficiently similar to be admissible.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the rulings but not in the dictum in Division 1 regarding the underlying evidence when first offender treatment is afforded. That question is not before us.


author: Deen, Presiding Judge. Pope, Judge,

text:
    A90A0342, A90A0402.
    HARRIS v. THE STATE (two cases).
    (396 SE2d 288)
   Deen, Presiding Judge.

Defendant was convicted of aggravated assault and false imprisonment and appeals. The victim testified that defendant invited her into his apartment and, after chatting with her, restrained her from leaving, forced her to smoke crack cocaine, beat her repeatedly and tore off her clothing. Police officers testified that when they arrived at defendant’s apartment in response to a report of domestic violence they observed a woman nude at least from the waist up, standing in the window. She appeared to be badly beaten. She told them she was locked in the room and could not escape. When the officers entered the apartment they discovered the victim totally nude on the bed in the bedroom. She talked to them briefly and then passed out. The apartment was in disarray and blood stains not matching defendant’s blood type were found on the window sill, the living room table and a drinking glass. Other stains which appeared to be blood were found on the living room wall. Defendant testified and denied he assaulted the victim. He testified she came to his apartment, smoked cocaine belonging to her against his wishes and. tried to rob him of money from a wallet she found in the bedroom. He claims he struggled with her to get back the wallet. According to defendant, the victim had already been beaten when she arrived at his apartment and told him she had been attacked by someone who claimed she had “ripped him off” for cocaine. Defendant claims she asked to rest in his bedroom and must have taken her clothes off herself.

Case No. A90A0402

1. The emergency room physician who treated the victim testified and described the victim’s injuries and condition upon arriving at the hospital. It was his opinion that the injuries were inflicted shortly before he treated her. Defendant, who was declared indigent, enumerates as error the trial court’s denial of his motion for the appointment of a medical expert to assist in his defense. The written motion does not set forth the reasons why such an expert is necessary to his defense, the issues which such an expert would address or the anticipated cost of such services so as to enable the court to assess the need for assistance. See Roseboro v. State, 258 Ga. 39 (3) (365 SE2d 115) (1988). On appeal, defendant argues the State’s expert witness was not qualified as an expert in the effects of cocaine addiction and defendant should have been afforded the opportunity to present expert testimony on the effect of long-term cocaine abuse on the mind and body and how the condition of a cocaine abuser after a physical beating might differ from the condition of a non-using person. The trial court properly ruled that evidence of the victim’s previous use of cocaine was inadmissible. Consequently, expert testimony concerning the effects of cocaine abuse would have been irrelevant and inadmissible. Because the trial court did not abuse its discretion in denying defendant’s motion to obtain the services of an expert, its ruling will be upheld. See Patterson v. State, 239 Ga. 409 (3) (238 SE2d 2) (1977); Welch v. State, 237 Ga. 665 (8) (229 SE2d 390) (1976).

2. We find no error in admitting a photograph of the victim lying nude across the bed. Despite the fact that the investigating officers said they first saw the victim at the window and that she spoke to them before passing out, they also testified that she was nude on the bed when they entered the apartment and that the photograph accurately depicted the scene of the crime at the time they entered. Thus, the photograph was relevant and admissible. See Putman v. State, 251 Ga. 605 (3) (308 SE2d 145) (1983).

3. The State moved in limine to preclude at trial any evidence of, or reference to, “prior difficulties which the victim has had with drugs, her subsequent incarceration, or prior contact with any of the law enforcement agencies.” The court, in ruling on the motion, considered this to include any evidence about prior cocaine use by the victim. The court substantially granted the State’s motion and prohibited defendant from going into anything dealing with her prior use unless he had certified copies of convictions; those could be used to impeach. Testimony about whether she had used cocaine was forbidden.

The court did not disagree with defendant that the victim’s prior use or addiction would tend to impeach her memory and her testimony that she was forced by defendant to take cocaine on the night of the incident being prosecuted. It limited it, however, to certified copies of drug convictions. As to cocaine use during the incident, the court considered that part of the res gestae and thus admissible.

The appellant contends that the trial court erred by not allowing him an opportunity to cross-examine the victim, regarding her prior cocaine use, in order to impeach her testimony and establish his version of the facts. We disagree. The trial court did not err in ruling that the defendant could not present evidence of the victim’s prior cocaine use other than certified copies of convictions. The general character of a victim and his or her conduct in other transactions are irrelevant unless the nature of the matter at issue is such as to make character and previous conduct relevant. See OCGA § 24-2-2. Whether the victim was addicted to cocaine is irrelevant to the issue of whether defendant assaulted the victim and held her against her will. Furthermore, the trial court’s allowance of evidence as to the victim’s use of cocaine during the incident gave the defendant sufficient opportunity to establish his version of the facts.

4. Appellant contends that the trial court erred by denying appellant’s extraordinary motion for a new trial based on newly discovered evidence in the form of an affidavit by the victim’s cousin, stating that the victim told him that her boyfriend was the one who had beaten her, and she did not mention the appellant in relation to the beating. Because this “newly discovered” evidence operates solely to impeach the victim’s testimony, the trial court did not abuse its discretion by denying appellant’s motion for new trial. See Dick v. State, 248 Ga. 898 (2) (287 SE2d 11) (1982).

5. On the second day of trial, one of the jurors came into court with a newspaper that contained an article about the trial. The appellant enumerates as error the trial court’s failure to declare a mistrial once it was aware of the incident. We find no merit in this enumeration.

The bailiff took the newspaper from the juror before he read it, and prior to closing arguments, the judge inquired whether any of the jurors had read any articles related to the case. No one responded that he or she had. As such, there was no harm done to appellant; therefore, the trial court did not err by failing to declare a mistrial. Furthermore, appellant’s failure to raise this issue at trial is deemed a waiver of this right on appeal. Wilson v. State, 191 Ga. App. 833 (383 SE2d 197) (1989).

Decided July 11, 1990.

Paul O. Carnes, for appellant.

Edward D. Lukemire, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

Case No. A90A0342

6. “Although the trial court may have failed to consider appellant’s motion for an appeal bond under the standards in Birge v. State, 238 Ga. 88 (230 SE2d 895) (1978), the issue is moot because we affirm the conviction.” Lawson v. State, 242 Ga. 744, 745 (251 SE2d 304) (1976).

Judgment in Case No. A90A0402 affirmed; Case No. A90A0342 dismissed as moot.

Carley, C. J., McMurray, P. J., Banke, P. J., and Birdsong, J., concur. Sognier, Pope, Beasley and Cooper, JJ., dissent.

Pope, Judge,

dissenting.

I dissent from Division 3 of the majority opinion. The court’s broad ruling wrongly precluded defendant’s cross-examining the victim about her use of cocaine. He had a right to attempt to impeach her by such questions, as he is entitled to a thorough and sifting cross-examination. OCGA § 24-9-64. Had it been brought out that she was a cocaine user, voluntarily used it that night, and became the aggressor, the jury may have questioned her recollection of the events of the evening in question and may have been persuaded by the defendant’s version of events. In this regard her character would be relevant and thus within the exception provided in OCGA § 24-2-2.

I am authorized to state that Judge Sognier, Judge Beasley and Judge Cooper join in this dissent.


author: Beasley, Judge.

text:
    A90A0404.
    RIVERBEND FORD-MERCURY, INC. v. KIRKSEY.
    (395 SE2d 898)
   Beasley, Judge.

Defendant Riverbend appeals the grant of plaintiff Kirksey’s motion for summary judgment.

Kirksey, the sole shareholder of Kirksey Ford Sales, Inc., agreed on June 1,1984, to sell the stock to several individuals also named as defendants in his suit. They, in turn, formed Riverbend to operate the business. From the time of the agreement to sell until the closing on September 7, defendants fully participated in the operation of Kirksey Ford. Prior to the purchase agreement, Kirksey Ford owed Kirksey money which he had loaned to the corporation. At the closing, Riverbend paid the loans as a part of the consideration, by giving $25,000 in cash and a promissory note for $71,914 to Kirksey. The note was to be paid by three yearly payments. Riverbend made two but refused to make the third. Kirksey sought the recovery of this amount, plus interest and attorney fees, in count one of his complaint.

In the second count of his complaint Kirksey sought to recover the sums paid to the bank which Riverbend refused to honor. During the pre-sale operation of Kirksey Ford, security agreements and other indebtedness of its customers were sold to a local bank with an obligation upon Kirksey Ford to repurchase upon default by the debtor. Kirksey individually had guaranteed the obligations to repurchase. In 1986 Riverbend refused to honor the repurchase agreement as to three conditional sales contracts previously sold to the bank. After demand, Kirksey paid this indebtedness under the terms of his guarantee.

Riverbend and the individual defendants denied the material allegations of the complaint and filed a counterclaim. Count one was predicated on fraud on the part of Kirksey involving the sale of Kirksey Ford to defendants. Counts two and three alleged fraudulent misconduct between Kirksey and Kirksey Ford as to the loans between them. Damages were sought for overpayment included in the promissory note for $71,914 given by Riverbend to Kirksey. Rescission of the note was also sought.

In 1984 Sims, a long-time associate and employee of Kirksey, determined to purchase Kirksey Ford. He employed the services of his friend, Hollis, a CPA, to prepare financial records and projections. Kirksey agreed to allow Sims and Hollis full access to the business records of Kirksey Ford. In doing this pro forma Hollis acted on behalf of Sims, who in this regard was a prospective buyer and not an employee.

Sims was unable to obtain financing or the approval of Ford Motor Company. He sought backing from the individual defendants. They became principals instead and, based upon the data prepared for Sims by Hollis, chose to purchase Kirksey Ford. Defendants took over operation of the business with Sims and Hollis as their employees right after the June 1 sales agreement. Riverbend was incorporated and the closing occurred after Ford Motor Company approved.

After discovery, which produced depositions, affidavits and various exhibits, a pretrial order was entered. In it, the contentions of defendants were stated: 1) as to plaintiff’s claim, that the note sued upon was fraudulently induced, the loan from Kirksey to Kirksey Ford was not as described to defendants and was not a legitimate debt of the corporation; 2) as to their counterclaim, that the records relied upon by defendants in negotiating the sale of the stock were false and misleading; that plaintiff knew defendants, to their detriment, were relying on false figures showing unrealistic income projections and inaccurate debt; that Hollis, who prepared the projections, was acting with plaintiff’s authority; that plaintiff thus defrauded defendants.

Subsequently defendants sought, by amendment, to add a fourth count to their counterclaim, asserting that plaintiff defrauded defendants: 1) by selling assets of the corporation and withholding proceeds of the sale from defendants; 2) when, with prior knowledge that he would not abide with the terms of the agreement, plaintiff violated the non-competition clause of the sales contract. Plaintiff objected to allowance of the amendment. No ruling permitting the amendment was entered.

Kirksey moved for summary judgment on his complaint and the counterclaim. The trial court entered judgment for him. Riverbend contends that there were genuine issues of material fact regarding whether Kirksey’s actions were fraudulent, whether he breached his obligation to deal in good faith and whether defendants waived any inceptive fraud by failing to act immediately and restoring the opposite party to his former position prior to the transaction. No direct attack is made on the propriety of granting the motion as to Kirksey’s complaint, so the judgment in favor of Kirksey on it stands.

1. In our consideration of this appeal we were faced with an incomplete record. Plaintiff’s deposition was sealed and was not sent up. The depositions of Sims and Hollis were not filed. After inquiry by this court the trial court clerk certified that two depositions were subsequently filed. Upon our direction, the three depositions, containing information vital to our determination of the issues, were included in the record before us.

Traditionally, under the law of Georgia the burden is upon the party asserting error on appeal to show error by the record. Brooks v. Home Credit Co., 128 Ga. App. 176 (196 SE2d 176) (1973). While this eminently fair and orderly procedure had a hiatus as a result of Interstate Fin. Corp. v. Appel, 233 Ga. 649 (212 SE2d 821) (1975), Brown v. Frachiseur, 247 Ga. 463, 465 (277 SE2d 16) (1981), overruled Appel and our courts have returned to the well traveled path.

Frachiseur, supra at 464, observes: “In order for the appellate court to determine whether the grant of summary judgment was erroneous, the appellant must include in the record those items which will enable the appellate court to ascertain whether a genuine issue of material fact remains.” Deficiencies in this regard cannot be supplied by brief. Sheriff v. State, 184 Ga. App. 180 (361 SE2d 53) (1987). Where matter essential to making a decision is omitted, appellant has failed to meet his burden of showing error. In such circumstances we may assume the judgment is correct and affirm it. Frachiseur, supra. Accord Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397, 398 (370 SE2d 520) (1988). Nevertheless, we have followed Miller Grading v. Ga. Fed &c. Assn., 247 Ga. 730, 734 (279 SE2d 442) (1981), in this regard and rule based upon the entire record. However, it causes delay, confusion, and extra burdens on the courts both administratively and legally when the appellant does not assure a complete record.

2. The defendants as appellants still have the burden of showing error. Littlefield v. Smith, 182 Ga. App. 712, 713 (2) (356 SE2d 746) (1987). They are also obligated under our rules to specify those portions of the record which support their arguments or assertions. Court of Appeals Rule 15 (c) (3) (ii).

On summary judgment the party opposing the motion has no burden until the moving party establishes that there is no genuine issue of material fact. However, once the moving party does so, then the party opposing the motion may no longer rest upon the allegations of the pleadings but must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977).

The issues involve fraud, which consists of five essential elements: 1) false representations made by defendant; 2) scienter; 3) an intention to induce plaintiff to act or refrain from acting in reliance upon the representations; 4) justifiable reliance by plaintiff; 5) damages to plaintiff. City Dodge v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974). Kirksey demonstrated that he made no false representations to the defendants and that there was no justifiable reliance by them. Defendants received no false information from Kirksey and the documents upon which they relied were prepared by Hollis acting for Sims. In the circumstances, although Sims was an employee of Kirksey he was acting at arm’s length in attempting to work out a deal to purchase Kirksey Ford. Defendants took over the operations of Kirksey Ford after June 1 and were in charge until the closing over three months later. They were aware of or should have known of the financial discrepancies and outstanding debts which they allege were fraudulently misrepresented to them.

The references by defendants to the record fail to reveal any evidence of fraud sufficient to overcome the prima facie showing made by plaintiff. Summary judgment in favor of Kirksey as to the original three counts of counterclaim was warranted.

3. As to the allegations of the counterclaim’s fourth count the amendment was never allowed by the trial court. See OCGA § 9-11-15 (a). Even if that count were considered on its merits, the record shows that defendants knew of Kirksey’s actions in that regard. One of the defendants, a lawyer, prepared the documents used to transfer assets which are the subject of this count. It was also based upon fraud which has been thoroughly eliminated by proof offered by Kirksey. The grant of summary judgment as to that count would furnish no basis for reversal.

Decided July 11, 1990.

William U. Norwood III, for appellant.

Kirbo & Conger, Ben Kirbo, for appellee.

Judgment affirmed.

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


text:
    A90A0551.
    HICKS v. THE STATE.
    (396 SE2d 60)
   Cooper, Judge.

After a jury trial, appellant was found guilty of two counts of child molestation and one count of cruelty to children. He appeals from the judgment of conviction and sentence entered by the trial court on the verdicts.

Appellant’s wife and her three daughters were returning home one evening when the eldest child began to cry, asking that they not go home. In response to repeated questions and after numerous assurances that she would not be punished, the seven-year-old told her mother that appellant, her step-father, molested her on a number of occasions late at night after everyone else was asleep. She stated that on the weekends after drinking heavily, he would come into her room naked, get into bed with her, pull down her underpants and put his penis in her vaginal area. The mother took the child to a hospital where she was interviewed by a nurse, a physician and a social worker. The following week, a physical examination performed by pediatrician, Dr. Elizabeth Hodgson, revealed no signs of trauma to her vaginal or anal area, however, a throat culture tested positive for gonorrhea. Using anatomically correct dolls, the child demonstrated for Dr. Hodgson what appellant allegedly did to her. Although the child did not allege appellant committed sodomy, Dr. Hodgson explained that the positive culture might have resulted from the transfer of contaminated secretions from the child’s hands to her mouth. Dr. Hodgson also testified as to how the child might feel as though there had been penetration, when the physical evidence indicated otherwise. Appellant was subsequently arrested in Galveston, Texas, and returned to Georgia for trial.

1. Appellant enumerates as error the State’s introduction of evidence to bolster a witness’ character for veracity prior to the appellant attacking the witness’ credibility. It should be noted at the outset that the “witness” to which appellant refers is the victim. A review of the record reveals that prior to the victim’s testimony, a social worker offered testimony which, in addition to relating what the victim said to the social worker about the incidents, described the social worker’s training in child interviewing techniques. Also, Dr. Hodgson testified as to the difficulties sexually abused children have in discussing their abuse, and indicated that a delay in reporting such abuse is characteristic of abused children. Appellant contends this testimony served to prove the truth of the victim’s anticipated testimony before appellant had an opportunity to impeach.

With regard to the social worker’s testimony, the State maintained that its inquiry into child interviewing techniques was not for the purpose of inquiring into the victim’s veracity but was offered to explain the circumstances under which the victim spoke with the social worker, and thereby provide a “sufficient indicia of reliability” for the admission of the testimony pursuant to OCGA § 24-3-16 which 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.” The trial court found the testimony admissible for this purpose and we find no abuse of discretion in that decision. Ingram v. State, 192 Ga. App. 196 (2) (384 SE2d 262) (1989). Even if any error did occur, it was harmless because appellant was afforded the opportunity to cross-examine the victim about her out-of-court statements, and the social worker’s testimony was cumulative of the other evidence adduced during the trial. See Luckey v. State, 185 Ga. App. 262 (2) (363 SE2d 791) (1987).

Dr. Hodgson was qualified as an expert in pediatrics and the record reflects she had some expertise in child abuse. Dr. Hodgson’s testimony regarding the reluctance of children to disclose sexual abuse was offered on direct examination to explain how she arrived at the diagnosis of sexual abuse. “[I]t is within the sound discretion of the trial court to permit expert opinion to aid the jury in understanding other testimony whenever the court finds it to be helpful or necessary. [Cit.] ... It matters not whether such facts are sought on direct or cross-examination. [Cit.]” Keri v. State, 179 Ga. App. 664, 667 (347 SE2d 236) (1986). The court concluded that the testimony was relevant to the issue of why a child might delay reporting incidents of molestation. We do not feel that the court erred or abused its discretion in allowing the testimony to precede the victim’s testimony.

2. Appellant contends, in his second enumeration of error, that Dr. Hodgson’s testimony as to a child’s reticence to report abuse and as to whether or not a seven-year-old could have imagined the sexual acts the victim described, was not within the realm of her expertise because she was not a child psychologist or child psychiatrist and that the testimony invaded the province of the jury. Appellant argues that Dr. Hodgson’s testimony was based solely on her personal opinion and was within the common knowledge of the average layman. We disagree. “The qualification of a witness as an expert is addressed to the sound discretion of the trial court. [Cit.] Such expert testimony must relate to scientific or technical knowledge within, the witness’ expertise.” Id. at 667. Dr. Hodgson testified that in the four years she practiced in Georgia prior to the trial, she treated approximately three children a month for sexual molestation and the record contains no objection to her qualification as an expert in pediatrics. She explained that in her experience, children of abuse are often threatened with punishment or bodily harm to themselves or family members if they tell and that they harbor a myriad of conflicting feelings, such as guilt and a sense of loss if the perpetrator is forced to leave, which all cause them to be secretive. Responding to a hypothetical question, to which appellant did not object, Dr. Hodgson testified further that a seven-year-old with no “on-hands experience or on-hands sight of sexual activity between adults” would probably not imagine the acts described by the victim. We agree with the trial court that based on Dr. Hodgson’s knowledge and experience the testimony discussed above was competent evidence under OCGA § 24-9-67. See Allison v. State, 256 Ga. 851 (2) (353 SE2d 805) (1987).

“ ‘(E)xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.’ There is no question that . . . [Dr. Hodgson’s] conclusion that the child had been molested was one which the jurors would not ordinarily be able to draw for themselves. Thus, [Dr. Hodgson’s] opinion was admissible.” State v. Butler, 256 Ga. 448 (2) (349 SE2d 684) (1986). Further, it is error to refuse an expert the opportunity to state the facts upon which the expert’s opinion was based. Keri, supra at 667. “Finally, the fact that her testimony indirectly, though necessarily, involved the child’s credibility does not render it inadmissible. [Cit.] We find no error.” Butler, supra at 450.

3. “When viewed in the light favorable to the verdict, the admissible evidence is sufficient to enable any rational trier of fact to find the existence of the offenses charged against the defendant beyond a reasonable doubt. [Cit.]” Keri, supra at 668.

Decided July 11, 1990.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A0667.
    N.D.T., INC. v. CONNOR.
    (395 SE2d 901)
   Deen, Presiding Judge.

Art D. Connor was an employee of N.D.T., Inc., a trucking company. Under an agreement effective January 3, 1986, Connor and N.D.T. mutually severed the employee-employer relationship for a consideration consisting of a payment to Connor of a lump sum of $50,000 and $1,000 per week for fifty consecutive weeks, plus $630 per month for twelve consecutive months for lease of an automobile for Connor’s use. The agreement also contained a three-year covenant not to compete.

Approximately eight weeks after the effective date of the agreement, N.D.T. ceased making payments. In July of 1986 Connor brought an action against N.D.T. for breach of contract, seeking damages for the breach and consequential damages, plus costs and attorney fees for stubborn litigiousness and causing unnecessary trouble and expense. N.D.T. answered and counterclaimed for monies allegedly owing for excess salary and other overpayments, unauthorized use of credit cards, and unauthorized disposition of property belonging to N.D.T. N.D.T. also sought damages, costs, and attorney fees for stubborn litigiousness.

In March 1987 Connor filed an action for slander against J. W. Herringdine (Case No. A90A0748), N.D.T.’s president. The two' cases were consolidated for trial. The trial court awarded Connor damages, attorney fees, and interest against N.D.T. but dismissed the action against Herringdine on the merits, assessing costs against Connor. N.D.T. and Connor filed separate appeals, which this court consolidated. In Case No. A90A0748 we have granted appellant Connor’s motion to withdraw his appeal. In Case No. A90A0667 Connor, as appellee, has filed against N.D.T. a motion for damages for a frivolous appeal, seeking 10 percent of the original contract award plus 15 percent of the attorney fee award, as amended. Held:

1. Scrutiny of the record sub judice reveals that certain of appellant’s enumerations of error are not supported in its brief by argument or by citation of statutory or case law. Therefore, according to Court of Appeals Rule 15 (c)', such enumerations are deemed abandoned and will not be considered by this court. For this reason we do not review the first and second enumerations.

2. The trial transcript indicates that the third and fourth enumerations were waived, the former under OCGA § 5-5-24 (a) and the latter because appellant’s counsel made no objection to the challenged instruction and, moreover, submitted no requests of his own for jury instructions.

3. The trial transcript reveals clearly that the court’s instructions to the jury were correct statements of the law, as adjusted to the evidence, and did not represent any improper comment by the court. The transcript further reveals that appellant’s counsel did not object at trial and therefore waived the right to raise the matter on appeal. The tenth enumeration is also without merit.

4. Appellant’s eleventh enumeration attacks the admissibility of evidence concerning certain contracts that were never consummated, and also of evidence concerning certain dealings between Herringdine and appellee around the time of the agreement. Appellant contends that this evidence was at best irrelevant and at worst prejudicial. We agree with appellee, however, that the challenged evidence was admissible to show that, prior to Connor’s signing the agreement and leaving N.D.T., Herringdine had been seriously considering either selling or “downsizing” N.D.T.; and also to show that there was considerable friction and disharmony between Herringdine and Connor, apparently arising out of Herringdine’s inquiries and preliminary negotiations. Such evidence is clearly relevant to Herringdine’s decision to breach the contract, and therefore to the parties’ allegations of bad faith and stubborn litigiousness. This enumeration is without merit.

5. Appellant alleges that admission of testimony regarding a conversation between appellee and a Mr. Haist, a former N.D.T. employee, was improper on the ground that it was hearsay. Not only was the testimony admissible, under a recognized hearsay exception, as showing appellee’s motivation or state of mind in filing an action for slander against Herringdine, but any error that it might arguably have represented was obviously harmless — and therefore moot — in light of the trial court’s ruling adversely to appellee and in favor of Herringdine in the slander action. Moreover, the trial transcript shows that Haist himself appeared as a witness and was subjected to a thorough and sifting cross-examination. We find no merit in this enumeration.

6. The fifth, sixth, eighth, and thirteenth enumerations of error all pertain to the propriety of the trial court’s awarding attorney fees. In the fifth enumeration appellant contends that the trial court erred in instructing the jury on OCGA § 13-6-11, which lists as bases for the award of attorney fees “bad faith” or being “stubbornly litigious” or causing the other party “unnecessary trouble or expense.” Appellant alleges that no evidence of bad faith was adduced, and that, consequently, it was error for the trial court to cite the Code section in his instructions. In the statute the three bases for awarding, attorney fees are cited disjunctively, as alternatives, and not in the conjunctive. Because the second and third alternatives were cited in the complaint, the court charged the entire statute. According to the record, appellant did not protest the “stubbornly litigious” or “unnecessary trouble or expense” alternatives, although the record indicates that no evidence was introduced pertaining to those alternatives, which actually were a part of the complaint. Moreover, the record shows, appellant made no objection when the section was charged or again when it was recharged. Therefore, it may be deemed to have been waived.

As to the sixth enumeration, appellant contends that the admission of appellee’s counsel’s time sheets and itemized bills was error because they violated the hearsay rule; in the eighth enumeration he objects to admission of these same exhibits because they allegedly provided no yardstick by which the jury might judge the reasonableness of the billing. Of course, these exhibits are clearly admissible under the business records exception to the hearsay rule, and they provide figures that should have given the jury a clear idea as to what was billed and as to the reasonableness of the fees.

In the eighth and thirteenth enumerations appellant makes this same objection in somewhat different form: namely, that there was no proof of the value of the fees charged by appellee’s counsel. The transcript reveals that appellant was permitted to conduct an extensive cross-examination on the value — that is, the reasonableness — of fees charged. Moreover, as appellee points out in his brief and oral argument, the testimony of appellant’s counsel on his own fees establishes that they were the same as, and in some instances higher than, those testified to by appellee’s lead counsel — and considerably higher than those of the latter’s junior associate, who did the majority of the work on the case. The trial transcript corroborates appellee’s counsel’s contention. This enumeration has no merit.

7. Under Rule 15 (c) the ninth enumeration must be treated as abandoned because unsupported by argument or citation of authority. See the discussion of additional enumerations pertaining to attorney fees, Division 6, supra. See also Department of Transp. v. Kendricks, 148 Ga. App. 242 (250 SE2d 854) (1978); Anthony v. Anthony, 143 Ga. App. 691 (240 SE2d 167) (1977).

8. We have considered appellee’s request for penalties and decline to grant it.

Judgment affirmed.

Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Carley, C. J., and McMurray, P. J., concur in Division 8 and in the judgment. Sognier and Beasley, JJ., concur in part and dissent in part.

Decided July 11, 1990.

Richardson, Chenggis & Constantinides, George C. Chenggis, for appellant.

Van Gerpen, Shigley & Hoffman, Earl J. Van Gerpen, Frank P. Harris, for appellee.

Beasley, Judge,

concurring in part and dissenting in part.

I fully concur in all divisions except Division 8, from which I respectfully dissent.

It appears that the appeal was taken up for delay only, so that appellee should be awarded damages for frivolous appeal as allowed by OCGA § 5-6-6.

Among the indications of frivolousness is the lack of substance of those points raised on appeal where we actually reach the merits. More telling is the enumerating of a number of points which clearly were waived or are not even argued, thus adding nothing but bulk.

Allowing unnecessarily protracted litigation without sanction makes the courts complicitous in the costs and delay which the public validly criticizes. It also prices the process out of reach for countless people who have legitimate claims and it outdistances the time when they are entitled to finality. Thirdly, frivolous appeals clog the publicly-funded courts and cut into the time and resources needed for legitimate appeals.

In considering whether to appeal, the party losing at the trial court level should feel a burden to pursue only an arguably meritorious appeal which has some genuine chance for reversal.

Looking at the size of the record in this case, the nature of the dispute, and the manner in which the appeal was presented, it is evident that appellant is simply buying time because it loathes paying the judgment. The costs, which are more than will be met by post-judgment interest, should not be borne by the appellee, much less the courts. It would be a judicious exercise of the power residing in the Court by virtue of OCGA § 5-6-6 to award the additional damages authorized. See Prattes v. Southeast Ceramics, 132 Ga. App. 584, 586 (3) (208 SE2d 600) (1974).

I am authorized to state that Judge Sognier joins in this opinion.

       Well over a year in this case.


author: Banke, Presiding Judge. Cooper, Judge,

text:
    A90A0028.
    CALHOUN v. TAPLEY.
    (395 SE2d 848)
   Banke, Presiding Judge.

The appellant, Carolyn Calhoun, sued the appellee, Duston Tapley, for alleged legal malpractice. She brings this appeal from the grant of Tapley’s motion for summary judgment.

In July of 1983, the appellant arranged to help an acquaintance, O. E. Smith, purchase a residence by securing financing from her bank, purchasing the property herself, and then deeding it over to Smith in a “wraparound” transaction in which he undertook to pay the bank financing, and she received from him a promissory note and a security deed to the property. The appellee represented Smith in the transaction and prepared the note and deed to secure debt. The appellant informed Smith of her bank’s requirement that a policy of casualty insurance be obtained on the property covering the bank as loss payee, and Smith obtained such a policy.

Approximately five months after the transaction was consummated, the residence was destroyed by fire, whereupon Smith stopped making the payments required under the promissory note and security deed. When the appellant asked Smith about the insurance proceeds, he informed her that the appellee was handling the matter. The appellant averred in an affidavit submitted in response to the appellee’s motion for summary judgment that she spoke with the appellee about the insurance proceeds on several occasions thereafter and that he always assured her he was taking care of the matter, even going so far as to tell her on a few occasions that he was expecting the money within a week or two. However, the insurance company denied Smith’s claim and obtained summary judgment in a subsequent suit by him to recover on the policy, on the ground that the action had not been brought within the one-year limitation period specified in the contract. The latter action was filed on Smith’s behalf by Lee Meadows, an attorney who shared offices with the appellee. Mr. Meadows subsequently filed another suit against the insurance company on behalf of the appellant, but the company was also awarded summary judgment in that action. Mr. Meadows signed the complaint in the latter action on behalf of “Tapley and Meadows . . . Attorneys for Plaintiff.”

In the present malpractice action, the appellant alleges that an attorney-client relationship existed between herself and the appellee and that he breached a duty to her arising from that relationship by allowing the contractual limitation period set forth in the insurance policy to expire before bringing suit on the policy. However, the trial court concluded that there was no evidence to controvert the appellee’s testimony that no attorney-client relationship had in fact existed between himself and the appellant. Held:

“Generally, the relation of attorney and client is a matter of contract but the contract may be express, or implied from the conduct of the parties. The employment is sufficiently established when it is shown that the advice or assistance of the attorney is sought and received in matters pertinent to his profession. [Cits.]” In the Matter of Dowdy, 247 Ga. 488, 491 (277 SE2d 36) (1981). While the payment of a fee is relevant to the inquiry and may in some circumstances be controlling, “an attorney-client relationship may be found to exist where no fee is paid . . . [a]nd the payment of a fee does not necessarily demonstrate the existence of the relationship.” Guillebeau v. Jenkins, 182 Ga. App. 225, 230 (355 SE2d 453) (1987). All that is necessary is a “reasonable belief” on the part of the would-be client that he or she was being represented by the attorney. Id. at 231. A reasonable belief is one which is “reasonably induced by representations or . . . conduct” on the part of the attorney. Id. at 230.

In Guillebeau, supra, this court held that the defendant in a legal malpractice action was entitled to summary judgment based on the absence of any evidence that he had done or said anything to lead the would-be client to believe he was representing her. There is, however, ample such evidence in the present case. In her affidavit submitted in response to the appellee’s motion for summary judgment, the appellant averred as follows: “ [The appellee] led me to believe that he was looking after my interest as well as Mr. Smith’s interest. [The appellee] treated me as a client, he discussed the case with me openly and freely and answered all my questions, giving me the assurance that everything was being done to process the claim. In fact, on a few occasions, he told me that he was expecting to receive the money within a week or two. I knew that communications between an attorney and client were supposed to be confidential and in discussing the matter with me, [the appellee] never advised or indicated to me in any respect that he could not discuss it with me because he did not represent me or because he represented Mr. Smith and therefore could not talk with me about the case. ... He never advised me that I should retain some other attorney or go and speak with another attorney concerning the handling of the matter. In all respects he indicated to me and assured me that he was handling the matter properly and expected to receive the proceeds of the insurance policy at any time. Had [the appellee] at any time indicated to me that he was not my attorney or not acting on my behalf or not acting to protect my interest, I would have gotten my own attorney involved in the matter. After a period of time of receiving these assurances from [the appellee], [he] advised me that he was having to file suit against the insurance company to collect the proceeds. Several months after that [he] told me that the insurance was not going to pay Mr. Smith’s claim and that he . . . would be filing suit against the insurance company on my behalf. At this time there was no discussion about whether or not [the appellee] would or should represent me, it was simply assumed that since he had been representing me he would continue to represent me in filing a suit against the insurance company on my behalf. . . . Several months after this suit was filed, [the appellee] advised me that I had lost also and that the insurance company was not going to have to pay a dime. He told me that the reason for this was because he had failed to prepare or file the proper paperwork within the required time period. [The appellee] said that this was his mistake and his fault and he did not blame me if I sued him. He told me that he had insurance to cover this and gave me the name of the insurance company.”

The appellant was not the only person laboring under the belief that the appellee was representing her. As previously indicated, Mr. Meadows, the attorney who filed suit against the insurance company on her behalf, signed the complaint in that action on behalf of “Tapley and Meadows . . . Attorneys for Plaintiff.” Moreover, the attorney who had represented the insurance company in connection with the matter submitted an affidavit averring as follows: “Sometime during the course of my handling this file on behalf of [the insurance company] I was contacted one day by [the appellant] who wanted to discuss the status of the claim. At that time I advised [the appellant] that it was my understanding that she was being represented by [the appellee] and that I would not talk to her unless [the appellee] agreed. I asked her if I could call [the appellee] and confirm whether or not it was agreeable for me to talk with [her]. I called [the appellee] on the phone, told him that [the appéllant] was in my office, that she wanted to discuss the case, that it was my understanding that he represented her with regard to the claim and asked if he had any objection to my talking with her. [The appellee] said he had no objection. He did not, in any way, indicate to me that he did not represent [the appellant]. Rather, his response to my inquiry only confirmed my prior understanding that he did represent [the appellant] as well as O. E. Smith with regard to the claim for fire loss benefits against [the insurance company].”

Based on the foregoing evidence and authorities, we conclude that a genuine issue of material fact exists as to whether an attorney-client relationship existed between the parties and that the trial court accordingly erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Carley, C. J., McMurray, P. J., Birdsong, Sognier, Pope and Beasley, JJ., concur. Deen, P. J., and Cooper, J., dissent.

Decided June 25, 1990

Rehearing denied July 12, 1990 — Cert, applied for.

Newton, Smith, Durden & Kaufold, Wilson R. Smith, William R. Rice, for appellant.

Barrow, Sims, Morrow & Lee, Jordon D. Morrow, Alan P. Layne, for appellee.

Cooper, Judge,

dissenting.

The majority concludes that there was a genuine issue of fact as to whether an attorney-client relationship existed between appellant and appellee. I dissent because I am of the opinion that the evidence did not create a factual issue about the existence of an attorney-client relationship.

It is undisputed that appellee made repeated assurances to appellant that he was handling the matter concerning the insurance proceeds and that because of these repeated assurances, appellant believed that appellee represented her. However, “[a]n attorney-client relationship cannot be created unilaterally in the mind of a would-be client; a reasonable belief is required.” Guillebeau v. Jenkins, 182 Ga. App. 225, 231 (2) (355 SE2d 453) (1987). Appellant may have had a reasonable belief that appellee was handling the matter, but I cannot conclude that appellant’s belief was reasonable that appellee was representing her as an attorney. Appellant, because she was not a loss payee under the policy, had no independent right of action against the insurance company (Wilson Marine Sales &c. v. Fireman’s Fund Ins. Co., 133 Ga. App. 220 (1) (211 SE2d 145) (1974)), and her only recourse was to recover against Mr. Smith when he stopped making payments as required under the deed to secure debt and promissory note. Because Mr. Smith declined to honor his legal obligations under the security deed and note, appellant, 'who was in the precarious position of being ultimately liable to the bank by virtue of the wraparound transaction, clearly would have benefited by the insurance company’s payment of the proceeds to the bank. However, her indirect benefit from the payment of the proceeds does not give her a cause of action against the insurance company. See Insured LLoyds v. Bobo, 116 Ga. App. 89, 90 (156 SE2d 518) (1967). While I acknowledge appellant’s predicament, I cannot conclude, as the majority does, that the evidence raises questions of fact about whether an attorney-client relationship was formed. Therefore, I respectfully dissent.

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


author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A90A0313.
    STRICKLAND et al. v. DEPARTMENT OF TRANSPORTATION.
    (396 SE2d 21)
   McMurray, Presiding Judge.

Jimmy Strickland’s and Joyce Strickland’s home is situated on about a five-acre parcel of land in Atkinson County, Georgia. The Department of Transportation (“DOT”) sought to acquire, via condemnation, a little more than a half-acre of the Stricklands’ land for use in connection with the expansion of a Georgia highway. The case was tried before a jury and damages were measured at $30,000. This appeal follows the denial of a motion for new trial. Held:

1. The Stricklands first contend the trial court erred “by charging the jury on consequential benefits.”

“ ‘Consequential benefits to remaining lands may be shown as an offset against consequential damages. (Cit.) However, where . . . there [is] no evidence from which the jury could [form] a reasonable estimate of the amount or value of such benefits, it is error to charge the jury that they could reduce the amount of consequential damages to the remainder by the amount of special consequential benefits. (Cits.)’ Continental Corp. v. Dept. of Transp., 172 Ga. App. 766 (2) (324 SE2d 588); accord Theo v. Dept. of Transp., 160 Ga. App. 518 (4) (287 SE2d 333); State Hwy. Dept. v. Rosenfeld, 120 Ga. App. 439 (2) (170 SE2d 837); Ball v. State Hwy. Dept., 108 Ga. App. 457 (3) (133 SE2d 638); State Hwy. Dept. v. Grant, 106 Ga. App. 696, 698 (127 SE2d 920); Smith v. State Hwy. Dept., 105 Ga. App. 245, 246 (124 SE2d 305); Andrus v. State Hwy. Dept., 93 Ga. App. 827, 829 (93 SE2d 174), aff’d 212 Ga. 737, 739 (95 SE2d 781). And if there was no evidence from which it could be argued that there was a benefit to the land, it would be improper to charge the jury on consequential benefits. Stanfield v. State Hwy. Dept., 95 Ga. App. 452 (1) (98 SE2d 40).” Barrow v. City of Atlanta, 188 Ga. App. 400 (1), 401 (373 SE2d 88).

In the case sub judice, there was absolutely no evidence that their remaining portion of the Stricklands’ land was benefited by the taking. Nonetheless, the trial court twice charged the jury on consequential benefits. This was error. However, we find no harm.

“Inaccuracies in a charge which do not mislead or obscure meaning, do not require a new trial. Evans v. State, 68 Ga. App. 207 (5) (22 SE2d 618).” Cauley v. State, 137 Ga. App. 814, 816 (4) (224 SE2d 794). In the case sub judice, DOT’s own expert testified that there were no consequential benefits to the Stricklands’ remaining property as a result of the taking and that there was no increase in the value of the remaining property. Consequently, the jury verdict could not possibly have been affected by the erroneous charge since any reduction attributable to consequential benefits would have reduced the Stricklands’ recovery by “zero.” German v. Dept. of Transp., 162 Ga. App. 785, 786 (293 SE2d 50).

2. Next, the Stricklands contend the trial court erred in denying their motion for new trial, arguing that the evidence was insufficient to support the jury’s verdict. More specifically, the Stricklands argue that DOT failed to rebut evidence showing consequential damages of $81,100 due to the loss of their property’s “unique” value.

“Whether the property is unique is a jury question. Hinson v. Dept. of Transportation, 135 Ga. App. 258 (217 SE2d 606) (1975).” Metropolitan Atlanta &c. Auth. v. Ply-Marts, 144 Ga. App. 482, 483 (1), 484 (241 SE2d 599). In the case sub judice, there was conflicting evidence as to whether plaintiff’s property had a “unique” value. The fact that the jury discounted testimony regarding the “unique” value of the Stricklands’ property does not require a new trial. Estimates of the value of the property taken and consequential damages ranged from $14,000 to $100,000. This evidence authorized the jury’s $30,000 verdict. Department of Transp. v. Brooks, 153 Ga. App. 386, 387 (1) (265 SE2d 610). The trial court did not err in denying the Stricklands’ motion for new trial.

3. Finally, the Stricklands contend the trial court erred “by charging the jury that they were required to follow the five step formula of Gunnels us. Department of Transportation, 175 Ga. App. 638 (1985) [sic], and not adjusting the charge so as to give consideration to the fact that this case involves unique damages.”

“[I]n order to preserve the right to enumerate error in giving a charge to the jury, a party must object to the charge. The failure to object to the charge constitutes a waiver. Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (2) (309 SE2d 816) (1983).” T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884 (1), 886 (334 SE2d 910). In the case sub judice, the Stricklands did not object to “the five step formula of [Department of Transp. v. Gunnels, 175 Ga. App. 632 (1) (334 SE2d 197) (1985)]. . . .” Nonetheless, they contend that there was no waiver because the error was substantial and harmful as a matter of law. See OCGA § 5-5-24 (c). We do not agree.

“To constitute harmful error within the meaning of [OCGA § 5-5-24 (c)], an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial. See Nelson v. Miller, 169 Ga. App. 403, 405 (312 SE2d 867) (1984).” Hamrick v. Wood, 175 Ga. App. 67, 68 (2) (332 SE2d 367). We find no such error in the case sub judice. The jury was properly instructed with regard to the extent of recoverable damages, including its authority to consider any “unique feature of the property that has a special or peculiar value other than market value . . .” if the evidence supports such. Consequently, this enumeration presents nothing for review.

Decided June 26, 1990

Rehearing denied July 12, 1990 — Cert, applied for.

Hudson & Solomon, James D. Hudson, for appellants.

Kopp, Peavey & Conner, Neal L. Conner, Jr., Mary Jane Card-well, Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, for appellee.

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I concur fully in Divisions 2 and 3 of the majority opinion. Because we are bound by the holding in German v. Dept. of Transp., 162 Ga. App. 785 (293 SE2d 50) (1982), I must agree that the erroneous charge on consequential benefits does not require reversal in this case. See also Dean v. Oglethorpe Power Corp., 179 Ga. App. 528, 529 (2) (346 SE2d 906) (1986) and Gardner v. Dept. of Transp., 165 Ga. App. 300 (1) (299 SE2d 741) (1983).


author: McMurray, Presiding Judge.

text:
    A90A0371.
    GOODEN v. DAY’S INN et al.
    (395 SE2d 876)
   McMurray, Presiding Judge.

Plaintiff Marvin L. Gooden checked into a Day’s Inn in Atlanta, Georgia, on March 3, 1988, paying in advance for two-day’s lodging. The next day, plaintiff temporarily left his room, leaving a paper bag filled with U. S. currency. (According to plaintiff, the bag contained $9,000.) Shortly thereafter, Mary Carter, a housekeeper, went into plaintiff’s room to clean it. She found the bag of money. Seeing no other personal effects, Ms. Carter assumed plaintiff had checked out. Accordingly, she turned the bag and its contents over to Vivian Clark, her immediate supervisor. In turn, Ms. Clark, gave the bag of money to Dempsey Wilson, a “senior technician” responsible for general supervision and the maintenance of the grounds.

Mr. Wilson had been employed by Day’s Inn for approximately three years. During that period of time he occasionally was given items of value to turn in to the office. He always did so, until the time in question when he decided to abscond with the bag of money.

A safe was located on the premises of Day’s Inn. The safe was provided for the use of guests. Day’s Inn posted a notice concerning the availability of the safe on the door of the room which plaintiff occupied. Pursuant to the notice, Day’s Inn disclaimed liability for guests’ valuables unless they were placed in the safe. At no point did plaintiff seek the use of Day’s Inn’s safe.

On May 3, 1988, plaintiff brought this tort action against Day’s Inn, Mary Carter, Vivian Clark and Dempsey Wilson, seeking damages in the amount of $9,000, plus interest, punitive damages, attorney fees and costs. Defendants Day’s Inn, Mary Carter and Vivian Clark answered the complaint and denied any liability whatsoever to plaintiff. Apparently, Dempsey Wilson was never served. Thereafter, following discovery, defendants Day’s Inn, Mary Carter and Vivian Clark moved for summary judgment. Plaintiff also moved for summary judgment.

The trial court denied plaintiff’s motion for summary judgment and granted defendants’ motion for summary judgment. Plaintiff appeals. Held:

1. In pertinent part, OCGA § 43-21-10 provides: “The innkeeper may provide a safe or other place of deposit for valuable articles and, by posting a notice thereof, may require guests of the innkeeper to place such valuable articles therein or the innkeeper shall be relieved from responsibility for such articles.” Relying upon this Code section, defendant Day’s Inn contends it cannot be held liable for the loss of plaintiff’s money since it posted notice concerning the availability of the safe and plaintiff failed to take advantage of it. Jones v. Savannah Hotel Co., 141 Ga. 530 (81 SE 874); Kates v. Brunswick Motel Enterprises, 187 Ga. App. 875 (371 SE2d 686). Recognizing the general application of this Code section in cases of this kind, plaintiff nonetheless asserts the trial court erred in ruling upon the parties’ respective summary judgment motions because plaintiff’s loss occurred at the hands of employees of the Day’s Inn. In this regard, plaintiff asserts OCGA § 43-21-10 cannot insulate an innkeeper from liability where the loss of a guest’s valuables is occasioned by the negligent or tortious conduct of the innkeeper’s employees. We disagree.

OCGA § 43-21-10 carves out no exception for losses occasioned by the negligence of the innkeeper. Thus, if the innkeeper posts notice of the availability of a safe pursuant to the statute, it is not liable for articles stolen from a guest’s room even if its negligence contributed to the loss. Jones v. Savannah Hotel Co., 141 Ga. 530, supra. Likewise, OCGA § 43-21-10 carves out no exception for losses occasioned by the negligence or intentional torts of the innkeeper’s employees. Thus, if the innkeeper posts notice in accordance with the statute, it is not liable for articles stolen from a guest’s room even if its own employees were negligent in preventing the theft or were actually parties to the theft. Goodwin v. Georgian Hotel Co., 197 Wash. 173 (84 P2d 681, 119 ALR 788) (1938). As the New York Court of Appeals noted in construing a similar innkeeper’s statute: “During the many years that a statute has been in existence in this state limiting the liability of a hotel to a guest, no case has been decided by this court' indicating that such limited liability did not exist in case the property of a guest deposited for safe-keeping was stolen from a hotel by an employee thereof. Such a holding by this court would nullify ■ the purpose of the statute and be in conflict with the spirit and intent thereof.” Millhiser v. Beau Site Co., 251 N. Y. 290 (167 NE 447, 448) (1929).

2. Plaintiff contends that, notwithstanding the protection afforded to innkeepers under OCGA § 43-21-10, defendants Day’s Inn, Carter and Clark are liable under an implied “bailment” theory since they actually took possession of plaintiff’s bag of money for safekeeping. See generally Buckley v. Colorado Mining Co., 163 Ga. App. 431 (294 SE2d 665). Assuming, arguendo, the validity of plaintiff’s contention, we must conclude, nonetheless, that the trial court properly denied plaintiff’s motion for summary judgment and properly granted defendants’ motion for summary judgment.

“All bailees are required to exercise care and diligence to protect the thing bailed and to keep it safe. Different degrees of diligence are required according to the nature of the bailments.” OCGA § 44-12-43. If the bailment is for the exclusive benefit of the bailor, only slight diligence is required; if the bailment is for the mutual benefit of the parties, ordinary diligence is required; and if the bailment is for the exclusive benefit of the bailee, extraordinary diligence is required. Merchants Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797, 799 (15 SE 831).

“A bailee is discharged from liability when he shows the exercise of that degree of diligence required by law of his class of bailment. Gillham v. Federal Exp. Money Order, Inc., 112 Ga. App. 171 (2b) (144 SE2d 557) (1965). The degree of negligence required to impose liability upon a bailee is generally a question of law to be determined by the court. 3 EGL 82, Bailments § 19 (1975 rev.).” Atlanta Limousine Airport Svcs. v. Rinker, 160 Ga. App. 494, 495 (1) (287 SE2d 395).

We assume, without deciding, that any bailment in this case was for the mutual benefit of the parties and that the degree of diligence required of defendants was ordinary diligence. Even so, we find defendants Day’s Inn, Carter ahd Clark to be discharged from liability. Why? Because these defendants demonstrated they acted with ordinary care and diligence concerning the bag of money. After all, Ms. Carter simply turned the b,ag of money over to her immediate supervisor, Ms. Clark, who, in turn, gave the bag of money to the “senior technician,” Dempsey Wilson, a person with general supervisory powers. Mr. Wilson had been entrusted with guests’ valuables in the past and he always acted responsibly with regard to those valuables. Defendants had no way of knowing that Mr. Wilson would abscond with plaintiff’s bag of money and they cannot be said to have acted negligently in turning the money over to him. See Merchants Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797, supra.

Decided June 26, 1990

Rehearing denied July 12, 1990 — Cert, applied for,

Herbert Shafer, for appellant.

Freeman & Hawkins, Edward M. Newsom, for appellees.

3. Finally, plaintiff argues that defendant Day’s Inn is liable for the theft of the bag of money by virtue of respondeat superior. This argument is without merit. When he converted the money to his own use, Dempsey Wilson represented himself, not defendant Day’s Inn. Mr. Wilson was not acting for and on behalf of defendant Day’s Inn; nor was he acting within the scope of his employment. Merchants Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797, supra. See also Taylor v. Downey, 62 NW 716 (Mich. 1895).

4. The trial court did not err in granting defendants’ (Day’s Inn’s, Mary Carter’s and Vivian Clark’s) motion for summary judgment and in denying plaintiff’s motion for summary judgment.

Judgment affirmed.

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