text:
    A89A0900, A89A1272.
    WIGLEY v. HAMBRICK et al. (two cases).
    (389 SE2d 763)
   Beasley, Judge.

These appeals arose from the retrial required by Hamrick v. Bonner, 182 Ga. App. 76 (354 SE2d 687) (1987) (appellees are referred to as both Hambrick and Hamrick). That opinion sets out the factual context of the dispute, which is whether Eddie Bonner had no right to a year’s support from the estate of his deceased wife, Alice Bonner,' due to his marriage in April 1984 to Mrs. Wigley, who also uses other names such as Anne Otwell and Serpentfoot.

Hamrick, supra, recognized that the annulment obtained by Wigley and Bonner in June 1985 after he filed for the year’s support in March 1985 made the 1984 ceremonial marriage void ab initio, but reversed the superior court jury’s award to Bonner because evidence of common law marriage was excluded. The judgment appealed in A89A0900 denied the year’s support to Bonner after evidence of the common law marriage was considered.

On January 11, 1988, Wigley filed her Motion to Intervene as a non-party in order to strike any evidence tending to show she was married to Bonner and to dismiss the caveators’ pleadings for lack of due process, failure to add an indispensible party, lack of probable cause, and injury to a non-party. The trial commenced on January 25, 1988, and, as reflected in the written order entered on March 2, the Motion to Intervene was “denied at trial of January 25, 1988 as being untimely filed. . . .” Also on March 2, Bonner’s Motion for New Trial was denied.

The next day Wigley filed her Notice of Appeal from the judgment against Bonner and from the denial of her Motion to Intervene, as well as her Motion to Dismiss and Strike Pleadings and for abusive litigation. Also on March 3 Bonner, who had been represented by counsel at trial, filed his pro se Notice of Appeal, “with aid of translator-secretary Mrs. Ira Lee Wigley d/b/a Anne Otwell.” Bonner died on March 4.

Contained in the record of A89A1272 are all matters filed in the trial record of A89A0900 after the March 2 and 3 Notices of Appeal were filed, including a Notice of Death of Plaintiff filed by Wigley on October 28, 1988, and the Letters of Administration issued by the Probate Court on October 3, 1988, appointing Wigley as substitute executrix of Bonner’s estate.

Case No. A89A1272

1. As to this appeal, Wigley filed her Notice of Appeal on March 6, 1989, from orders entered December 22, 1988, and January 23, 1989, which denied her motion for supersedeas and allowed her to proceed in forma pauperis.

This court is required to ascertain whether it has jurisdiction, even if it is not raised by either party. Patterson v. Flint, 182 Ga. App. 650, 653 (356 SE2d 670) (1987); Newton v. K. B. Property Mgmt. &c., 166 Ga. App. 901, 902 (306 SE2d 5) (1983). The notice of appeal not having been timely filed, this appeal is dismissed. Jones v. Robertson, 191 Ga. App. 537 (382 SE2d 382) (1989).

Case No. A89A0900

2. Wigley’s Motion to Intervene having been denied, she may individually appeal the judgment entered and the denial of her motion. See Mar-Pak Mich. v. Pointer, 226 Ga. 146 (173 SE2d 219) (1970); Coogler v. Berry, 117 Ga. App. 614 (161 SE2d 428) (1968).

The third enumeration contends that the denial of the motion to intervene was error because Bonner’s attorney was not effectively representing him. This presents no basis for reversal and is a matter for another tribunal.

As to the issue before this court, OCGA § 9-11-24 (a) & (b) require that an application to intervene be “timely.”

The application for year’s support was filed in 1985; the first superior court trial occurred in January 1986, resulting in Hamrick, supra, and the second trial took place in January 1988. It was not until two weeks before this second trial that Wigley sought intervention.

“Whether an intervention is timely is a matter within the sound discretion of the court and that decision will not be controlled absent an abuse of discretion. [Cit.]” Cipolla v. Fed. Deposit Ins. Corp., 244 Ga. 444 (260 SE2d 482) (1979); Doe v. Garcia, 177 Ga. App. 61, 62 (338 SE2d 710) (1985); Harkness v. State, 185 Ga. App. 770 (365 SE2d 552) (1988). There was none.

3. After Bonner’s death and Wigley’s appointment as executrix, she filed with the trial court on October 28, 1988, a Notice of Death and Appointment of Administratrix (sic) To Complete Appeal. Although no formal substitution of party was effected below, OCGA § 9-11-25, the October 28 filing and the participation by Wigley in the appellate process was sufficient under Rule 39 (b) for this court to consider the appeal.

4. Appellees, the children of Alice Bonner and stepchildren of Ed Bonner and caveators below, have filed a Motion to Dismiss the appeal as moot, OCGA § 5-6-48 (b) (3), on the basis of Bonner’s death. They rely on Brown v. Joiner, 77 Ga. 232 (3 SE 157) (1886) and May v. Braddock, 92 Ga. App. 302 (88 SE2d 539) (1955).

Prior to 1955, a year’s support could be obtained from the estate even if the widow had remarried or died before applying. Smith v. Sanders, 208 Ga. 405 (67 SE2d 229) (1951). Ga. Laws 1955, pp. 626-627 (former Ga. Code Ann. § 113-1033) provided that the right of a widow to year’s support “shall be barred by the death of said widow, or by the subsequent remarriage of said widow, prior to the setting apart of such year’s support.” This law also imposed a time limit of twelve months, measured from the death of the spouse, within which the application for support had to be filed or the right became barred.

Ga. Code Ann. § 113-1033 was repealed by Ga. Laws 1958, p. 657 and Section 113-2002 was enacted. It provided that applications had to be filed within three years from death of the decedent and “shall be made and filed during her widowhood and during her lifetime, and not otherwise.” This provision is now contained in OCGA § 53-5-2 (d), which preserves the three-year limitation and requires filing of the application “during the time the spouse is widowed and while the spouse is living and not otherwise.”

“[I]t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.” Spence v. Rowell, 213 Ga. 145, 150 (2) (97 SE2d 350) (1957); OCGA § 1-3-1 (a); Buice v. Dixon, 223 Ga. 645, 647 (157 SE2d 481) (1967).

Where a statute is plain and susceptible of only one reasonable construction, the courts have no authority to place a different construction upon it. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

Entitlement to the right to a year’s support is a matter of status. Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188) (1987). It vests upon the death of the spouse. Brown, supra. The legislature did not attempt to alter this, but did provide by amendments to the statute that the right can be waived if application is not made while the spouse is alive and widowed.

We find no basis to conclude, as argued by appellees, that the year’s support, if applied for under these conditions, lapses if the award is not finalized before death of the claimant. See Smith, supra; Brown, supra. If that had been the legislature’s intention, it would have so specified.

The motion to dismiss the appeal as moot is denied.

5. The first and second enumerations allege error in jury instructions regarding marriage. After the charge was given, the court inquired of counsel for Bonner if there were objections. None was stated. “When a party fails to object to' a jury charge at the time of trial he is precluded from alleging error on appeal as to that ground. [Cits.]” Foster v. Harmon, 145 Ga. App. 413, 416 (5) (243 SE2d 659) (1978); Carrandi v. Sanders, 188 Ga. App. 562, 564 (2) (373 SE2d 661) (1988).

The charge is not susceptible to challenge pursuant to OCGA § 5-5-24 (c); it is an accurate statement of the law regarding the elements required for a valid marriage, either ceremonial or common law. OCGA § 19-3-1; Brown v. Brown, 234 Ga. 300, 301 (215 SE2d 671) (1975); Drewry v. State, 208 Ga. 239, 243 (3) (65 SE2d 916) (1951) adopting dissent in Lefkoff v. Sicro, 189 Ga. 554, 576 (6 SE2d 687) (1939).

6. Enumerations 4, 5, & 6 complain of evidentiary rulings.

Enumeration 4 alleges error in admission of Defendant’s Exhibit 3, the Petition filed for the annulment of the Bonner/Wigley ceremonial marriage. The Decree of Annulment was tendered by Bonner as Plaintiff’s Exhibit 5 and the only objection voiced to the Petition when tendered by the Hambricks was that it had not been properly identified. The objection here is that its introduction allowed no opportunity for it to be refuted and that it was “harmful and prejudicial.”

The objection made on appeal not having been made below, there is nothing to review. Cooper v. State, 188 Ga. App. 297, 298 (3) (372 SE2d 679) (19,88). Further, an objection that evidence is “prejudicial” is too vague and general to present any question for determination. Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987).

The marriage license was admitted without objection below and Enumeration 5 will not be considered here for the first time. Cooper, supra; Sultenfuss, supra.

None of the testimony complained of in Enumeration 6, concerning whether Bonner and Wigley held themselves out as husband and wife, was objected to below except that contained on page 104, lines 10-13 of the transcript. The objection made is not the one argued here, and the new one will not be considered. Cooper, supra; Sultenfuss, supra.

Evidence going to the elements of a common law marriage was relevant. Hamrick, supra at 78 (4).

7. Enumeration 7 complains of the court’s failure to “direct a judgment” in favor of Bonner. No motion for directed verdict was made below and this enumeration presents nothing for review. Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (2) (360 SE2d 418) (1987).

Judgment affirmed in Case No. A89A0900. Appeal dismissed in Case No. A89A1272.

Carley, C. J., and McMurray, P. J., concur.

Decided November 20, 1989

Rehearing denied December 15, 1989

Ira Lee Wigley, pro se.

Pruitt & Britt, Glyndon C. Pruitt, Walter M. Britt, for appellees.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    A89A0940.
    STATE OF GEORGIA v. U. S. OIL COMPANY, INC.
    (389 SE2d 498)
   Benham, Judge.

This is an interlocutory appeal from the denial of appellant’s motions for judgment on the pleadings and summary judgment in appellee’s suit alleging breach of a contract to sell regular grade gasoline to agencies of the State of Georgia. Finding that appellant was entitled to judgment as a matter of law, we reverse the denial of its motion for ■ summary judgment.

Appellant issued invitations to bid for contracts to supply petroleum products to state agencies. The terms of the proposed contracts provided that they would be non-exclusive, that is, that the contracts were for the convenience of the State and that the State could purchase like goods from other vendors. Appellee submitted a bid for the contract to provide regular grade gasoline, but in a portion of the bid denominated “Exceptions,” it specified that its offer was contingent on a requirement that the State buy all of the specified product from it. The State subsequently notified appellee that it had been awarded the contract and delivered an executed copy of the contract to an agent of appellee. The contract, which still contained the non-exclusivity provision, was performed by appellee for several months without comment regarding the non-exclusivity language. Then, apparently concerned about the effect of that language, appellee sought assurance from appellant that the contract actually required the State to buy all its requirements of regular grade gasoline from appellee. In response, an employee of appellant’s Department of Administrative Services (DOAS) wrote two letters giving just such assurances. Subsequently, because of decreases in the price of gasoline, appellant began purchasing premium grade gasoline from other sources instead of the regular grade gasoline it had contracted to buy from appellee. This suit was brought for breach of that contract.

Appellant relies on the plain language of the contract which permits it to purchase gasoline elsewhere. Appellee argues, however, that the contract must be read to be consistent with its bid because the bid was expressly made contingent on a requirement that the State buy all of its regular grade gasoline from appellee. The effect of that contingency, appellee insists, is to prevent a contract from coming into being unless the terms of the contract were consistent with the bid. We find that basic principles of contract law require a conclusion contrary to appellee’s position. Where one party makes an offer and the other party purports to accept that offer, but with material changes in the terms, the second party has made a counteroffer which, if accepted, constitutes a contract between the parties. Frey v. Friendly Motors, 129 Ga. App. 636, 637 (200 SE2d 467) (1973). Performing under the contract constitutes acceptance of the offer. Classic Restorations v. Bean, 155 Ga. App. 694 (5a) (272 SE2d 557) (1980). It is clear, therefore, as a matter of law, that appellee, by performing under the contract, accepted appellant’s counteroffer and entered into a contract with appellant which provided that appellant had the right to buy like goods elsewhere.

Appellee has insisted throughout this litigation that it relied on the statement of a DOAS employee that the contract required the State to purchase all its regular grade gasoline from appellee. However, appellee has not advanced and we have not found any valid basis for the asserted reliance. First, the letters contain nothing which purports to be a modification of the contract; they are clearly the expression of an opinion concerning the legal effect of the existing contract. Second, if the letters were to be considered as an attempt to modify the contract, the modifications would be invalid as a matter of law. Contracting procedures for the State of Georgia are controlled by statute. OCGA § 50-5-50 et seq. There is no provision in the statute for any state employee to have the power to unilaterally modify existing contracts. Persons dealing with a public officer must take notice of the extent of the officer’s powers. Wood v. Puritan Chemical Co., 178 Ga. 229 (1) (172 SE 557) (1934). Appellee may not rely on an estoppel theory with regard to the letters interpreting the contract since the public may not be estopped by the acts of any officer done in the exercise of an unconferred power. Arneson v. Bd. of Trustees &c. of Ga., 257 Ga. 579 (1b) (361 SE2d 805) (1987).

Since the contract as executed by the parties gave appellant the right to act as it has, and that contract has not been modified, appellee’s claim against appellant for breach of contract fails as a matter of law. Appellant was, therefore, entitled to judgment as a matter of law and the trial court erred in denying appellant’s motion for summary judgment. Having ruled in appellant’s favor, we need not address its other grounds for reversal.

Decided November 8, 1989

Rehearing denied December 15, 1989

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Verley J. Spivey, William C. Joy, Senior Assistant Attorneys General, Grace E. Evans, Assistant Attorney General, for appellant.

Greene, Buckley, Derieux & Jones, John D. Jones, J. Russell Phillips, for appellee.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A89A1172.
    LASHUA v. TOMLIN et al.
    (389 SE2d 767)
   Beasley, Judge.

Lashua appeals from the judgment in favor of the Tomlins, father and son, on her negligence claim arising from a collision in which her car hit a wall.

The record on appeal consists of pretrial matters including the deposition of Lashua, trial testimony of Clark Tomlin, and the charge to the jury including exceptions.

Viewing the trial evidence in favor of the verdict, it showed that Clark Tomlin drove the family car to the Amtrak station in Atlanta where he parked it at the curb on a side street. Although he did not see “no parking” signs, the place where he parked was in a “no parking” zone. The car remained there for several days while Clark was out of town.

The complaint alleges that Lashua was injured when the parked car created a sudden emergency in her lane of travel, she veered to avoid it, crossed the centerline and struck a wall on the opposite side of the road.

Prior to trial, Lashua submitted numerous requests to charge, including one which read: “Plaintiff must prove .that Defendant was negligent in one or more ways in order to recover. It is not necessary for her to prove that Defendant was negligent in every way that she claims, if she tries to show that Defendant was negligent in more than one way. If you find no negligence on the part of Defendant, that ends Plaintiff’s case against him.”

After this charge was given as requested, along with several of Lashua’s requests dealing with negligence per se based on violation of parking laws, Lashua excepted to it, saying that Tomlin admitted he was illegally parked, “and that would be negligence, and that would be an admission and I would ask the Court to, ... I would ask the Court to recharge them and to tell them, I think I would ask the Court to tell them that there is an admission, . . . that the car was parked illegally and that therefore there would be negligence, it would be a question as to whether or not that negligence was the proximate cause. . . . [I]t seems that where they said we did illegally park they have admitted some negligence. . . .”

The court found that to recharge would cause more confusion than leaving the charge as given.

Setting aside the issue of induced error and waiver by requesting the charge, see Marlow v. Lanier, 157 Ga. App. 184 (276 SE2d 867) (1981), we consider the exception, which as enumerated is only to the last sentence, in the context of Tomlin’s testimony.

As articulated, it is more in the nature of a motion for partial directed verdict than an objection to the charge as given, i.e., that the issue of negligence should have been removed from the jury’s consideration, there having been an admission of negligence per se, and only the issue of proximate cause submitted. OCGA § 9-11-50; see Campbell v. Forsyth, 187 Ga. App. 352, 353 (1) (370 SE2d 207) (1988). Without such a motion having been made and ruled on, the subject is not presented for our review.

Tomlin’s testimony does not reflect any “admission” that he was illegally parked. He parked his car believing it to be in a legal parking space.

Reviewing the charge as a whole and the quoted request in this context, Mathis v. Mangum, 166 Ga. App. 415, 416 (304 SE2d 520) (1983), the charge given covered the general principles of negligence and repeatedly covered negligence per se. The one sentence causing Lashua problems, in the context of the charge as a whole, could not have confused the jury.

It also appears that the charge may have weighed in Lashua’s favor. Tomlin denied negligence and also denied intentionally violating the parking prohibition, so that the jury could have rejected negligence per se, Cox v. Cantrell, 181 Ga. App. 722, 724 (5) (353 SE2d 582) (1987), and her evidence supported the alternative theory that parking there was reckless and therefore negligent even if not negligent per se. See Abernathy v. State, 191 Ga. App. 350 (381 SE2d 537) (1989).

Denial of the motion for new trial was not error.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.

Decided November 28, 1989

Rehearing denied December 15, 1989

Scheer & Eisner, Robert A. Eisner, Wayne Chatham, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, for appellees.


text:
    A89A1313.
    SINGLETON v. THE STATE.
    (389 SE2d 496)
   Beasley, Judge.

Defendant appeals his convictions for possession of cocaine with intent to distribute, OCGA § 16-13-30, and possession of a firearm during the commission of a crime, OCGA § 16-11-106. Defendant’s enumerations of error raise the issue of whether the evidence was sufficient to sustain his conviction of each offense.

Construed in favor of the verdict, Rhodes v. State, 168 Ga. App. 10, 11 (1) (308 SE2d 33) (1983), the evidence shows that, during the early morning hours of Wednesday, August 18, 1988, a police officer observed defendant driving at a high rate of speed while making several lane changes, so he “pulled [defendant] over.” As the officer approached the car, defendant got out, looked at the officer and then got back in the vehicle and sped off. He was alone. After a chase defendant drove the car into a truck, jumped out and ran off. The officer lost contact and was unable to pursue. He returned to the vehicle where he found five small bags of what appeared to be crack cocaine, which fell from the visor on the driver’s side, and a .25 automatic pistol that was “stuck down” between the two seats of a split bench front seat. The substance found in the bags was positively identified as cocaine.

Defendant’s cousin Bennett, a convicted seller of cocaine, testified that he owned the car and the pistol. He loaned defendant his car on Sunday, August 15, and had previously placed the gun under the passenger’s seat, a fact of which he had not informed defendant. Defendant denied any knowledge of either the gun or the cocaine and explained that he fled because he was on probation and feared the consequences of his traffic violations. On cross-examination he admitted that he had previously pleaded guilty to possession of cocaine.

Defendant contends that the State failed to prove his possession of the cocaine. The law recognizes two kinds of possession, actual or constructive. Dalton v. State, 249 Ga. 720, 721 (2) (292 SE2d 834) (1982). “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). Either type may be established by circumstantial evidence. Heath v. State, 186 Ga. App. 655, 657 (1) (368 SE2d 346) (1988); Clark v. State, 184 Ga. App. 380, 382 (1) (361 SE2d 682) (1987); Feblez v. State, 181 Ga. App. 567 (1) (353 SE2d 64) (1987); Allen v. State, 172 Ga. App. 663, 668 (7) (324 SE2d 521) (1984); Griggs v. State, 167 Ga. App. 581, 583 (4) (307 SE2d 75) (1983). “Where drugs are found in the ‘immediate presence’ of the defendant, the jury is authorized to find they are ‘in the constructive possession’ of the accused.” Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985). Accord Farmer v. State, 188 Ga. App. 375, 376 (373 SE2d 68) (1988).

Defendant also urges that the evidence fails to sustain a finding that he possessed the firearm. OCGA § 16-11-106 (b) (1) and (4) punishes “any person who shall have on or within arm’s reach of his person a firearm . . . during the commission of, or the attempt to commit: . . . Any crime involving the . . . possession with intent to distribute any controlled substance as provided in Code Section 16-13-30.” The phrase regarding “within arm’s reach” has eliminated the narrow judicial reading given the provision formerly. See McIntosh v. State, 185 Ga. App. 612, 616 (5) (365 SE2d 454) (1988); Beal v. State, 175 Ga. App. 234, 238 (4) (333 SE2d 103) (1985). This section includes those persons who are armed while in possession of controlled substances. See Belcher v. State, 161 Ga. App. 442, 444 (2) (288 SE2d 299) (1982).

To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6. “This does not mean that the state must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence.” Robinson v. State, 168 Ga. App. 569, 571 (1) (309 SE2d 845) (1983). (Emphasis supplied.) “Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the jury.” Henderson v. State, 184 Ga. App. 834, 835 (2) (363 SE2d 52) (1987). Because the jury has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is insupportable as a matter of law. Chews v. State, 187 Ga. App. 600, 603 (1) (371 SE2d 124) (1988); Robinson v. State, 175 Ga. App. 769, 771 (1) (334 SE2d 358) (1985). If the totality of the evidence is sufficient to connect defendant to possession of drugs, even though there is evidence to authorize a contrary finding, the jury’s verdict will be sustained. Johnston v. State, 178 Ga. App. 219, 220 (1) (342 SE2d 706) (1986); Little v. State, 173 Ga. App. 512 (1) (326 SE2d 859) (1985).

Decided October 26, 1989

Rehearing dismissed November 29, 1989

Rehearing denied December 15, 1989.

David F. Sandbach, Jr., for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Applying the above legal principles to the facts of this case, the evidence was sufficient so that a rational finder of fact could have found defendant guilty beyond a reasonable doubt applying the precepts of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Ledesma v. State, 251 Ga. 487 (1) (306 SE2d 629) (1983); Farmer v. State, supra at 376; Robinson v. State, supra at 770 (1).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A1450.
    WIGLEY v. THE STATE.
    (389 SE2d 769)
   Beasley, Judge.

Wigley appeals her convictions of simple assault, OCGA § 16-5-20, pointing a pistol at another, OCGA § 16-11-102, and of criminal trespass, OCGA § 16-7-21 (b) (2). See connected case Wigley v. Hambrick, 193 Ga. App. 903 (389 SE2d 763) (1989).

Viewed in the light favorable to the verdict, the evidence was that defendant was the wife of Edward Bonner. He and she lived in the house which had been owned by his first wife, Alice. Upon Alice’s death, a life estate passed to Edward and upon his death a life estate passed to her son Thomas. Upon Thomas’ death, Alice’s will provided that the home would go to Patricia Hamrick (also referred to as Ham-brick), Alice’s daughter and Tommy’s sister.

As reflected in the opinion in Case No. A89A0900, there was a bitter struggle over Edward Bonner’s right to a year’s support from Alice’s estate, which right has been resolved against him based on his marriage to defendant before he applied for the year’s support.

Mr. Bonner died on March 4, 1988. His appeal of the year’s support issue was then taken over by defendant, his substituted executrix. The house had been rented and on March 12, Ms. Hamrick went to the house to collect the rent. Because of the continuing dispute with defendant, Ms. Hamrick asked her daughter and an off-duty police officer who was dating the daughter to accompany her. The three walked up the driveway and Ms. Hamrick was attempting to open the door when the officer noticed defendant standing at an adjacent sliding glass door with a revolver pointed at them. Defendant yelled that she was going to shoot and the officer escorted the women away.

On April 1 a hearing was held in the civil matters before a magistrate who read Alice Bonner’s will and a letter from Tommy’s guardian and told defendant not to go back to the house. The next day, Ms. Hamrick returned to the house, found defendant, and called the police. They arrested defendant.

1. Appellant filed a motion to transfer the criminal trespass count only from state court to superior court because of the civil litigation pending there regarding the year’s support. The motion was denied and is enumerated as error.

State courts and superior courts have concurrent jurisdiction of misdemeanors. Ga. Const. Art. VI, Sec. Ill, Par. I and Art. VI, Sec. IV, Par. I; OCGA § 15-7-4 (1). Criminal trespass is a misdemeanor and the denial of the motion was not error.

2. Enumerations 2, 4, and 8 all claim error in certain remarks of the court alleged to be in violation of OCGA § 17-8-57.

All of the comments dealt with the court’s ruling that the pending appeal in the year’s support matter was not relevant to the criminal violations. Defendant, who represented herself, continually attempted to make statements during her questioning of witnesses concerning her claim to own the property. The court explained to her that the civil claims between defendant and the Hamricks were not admissible.

None of the comments referred to by defendant was objected to in the state court and was not preserved for our review. Santone v. State, 187 Ga. App. 789, 792 (4) (371 SE2d 428) (1988); Parrish v. State, 182 Ga. App. 247, 248 (3) (355 SE2d 682) (1987).

If the merits were to be reached, the enumerations would be faced with the rule that “remarks of a trial judge which inform the jury of the reason for the ruling excluding evidence generally constitute neither an expression of opinion nor a comment on the evidence within the meaning of OCGA § 17-8-57. [Cits.]” Santone, supra at 792.

3. Enumeration 3 alleges error in the state court’s “disposing of the property of the deceased Eddie Lee Bonner prior to appointment of defendant as administratrix (sic). ...” There having been no such ruling by the court in this case, there could be no error.

4. The fifth enumeration, to the extent that it is supported by argument in her brief, alleges that it was error for defendant to be prosecuted for these misdemeanors by accusation unsupported by affidavits. OCGA § 17-7-71 provides that “[t]he accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and where the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.”

The record contains two affidavits for the charges here, fully complying with the statutory requirements. Manning v. State, 175 Ga. App. 738, 739 (1) (334 SE2d 338) (1985).

5. Enumeration 6 deals with matters not contained in the record and presents nothing reviewable.

6. Enumeration 9 claims error in the trial court’s sealing of the jury list, effected by order of September 28, 1988. Defendant apparently is also contending that some matters concerning this sealing were improperly not taken down. In misdemeanor cases, whether to have the case reported at all is a matter of discretion for the trial court. OCGA § 5-6-41 (b). The court did allow takedown of the trial proceedings but apparently not of its sealing of the list after trial concluded. The burden is on defendant to arrange for transcription and to pay for it. OCGA § 15-14-5; Ward v. State, 188 Ga. App. 372 (373 SE2d 65) (1988); Williams v. State, 165 Ga. App. 553 (1) (301 SE2d 908) (1983); Cagle v. State, 160 Ga. App. 803 (2) (287 SE2d 660) (1982) . Not having done so, defendant may not complain. Also, the record does not indicate that she ever objected to the sealing which is the subject of the ninth enumeration. Even if the court did not allow her presence, a written motion objecting could have been filed. Finally, even if objection had been made, there is no showing of harm from any such sealing. “This court is not an expounder of theoretical law but it administers practical law, and corrects only such errors as have practically wronged the complaining party. [Cit.]” Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882) (1987).

7. The tenth enumeration deals with the trial court’s denial of defendant’s objections to the transcript. The trial court apparently treated defendant’s objections as a motion under OCGA § 5-6-41 (f) and denied it by order of March 27, 1989. That section is solely for the purpose of making the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact. Ray v. Standard Fire Ins. Co., 168 Ga. App. 116 (1) (308 SE2d 221) (1983) . The matters contained in defendant’s objections are of such a nature and the denial of the objections was not error.

8. At the close of the State’s case, defendant made a, motion for directed verdict on the criminal trespass count only, contending that there had been no proof of ownership of the property. Patricia Ham-brick testified that the property passed to her after the end of Thomas’ life estate. Thomas was still alive; a letter from his guardian gave Hambrick authority to protect Thomas’ interests, including getting defendant off the property. This was proof of ownership and authority under OCGA § 16-7-21. Denial of the motion was not error.

Decided November 28, 1989

Rehearing denied December 15, 1989

Ira Lee Wigley, pro se.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Neal R. Bevans, Assistant Solicitors, for appellee.

9. Enumeration 11 alleges error in the trial court’s refusal to release two bonds which had been posted by members of defendant’s family. The right to the release of those funds belongs not to defendant but to the sureties on those bonds. Since she has no standing to pursue those funds, denial of defendant’s motion was correct.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: Deen, Presiding Judge.

text:
    A89A1716.
    JONES v. FARRINGTON.
    (389 SE2d 776)
   Deen, Presiding Judge.

In March of 1971, Joseph Jones, Jr., Bobby Hill, and Fletcher Farrington formed a partnership for the practice of law. This law firm was converted into a professional corporation in 1976, with each of the partners holding a one-third interest. In 1971, shortly before Farrington joined Hill and Jones, Jones agreed to represent the victims of a recent explosion at the Thiokol Chemical Corporation plant in Woodbine, Georgia, on a contingent fee basis. Jones performed all the work on the cases on behalf of the corporation.

In March of 1977, Farrington announced his intention to leave the corporation, and it was dissolved in June. Shortly thereafter, Jones and Hill formed a new professional corporation with other attorneys, and Jones continued to represent the Thiokol plaintiffs until the last case was concluded in October 1987.

On June 26, 1979, Farrington filed an action in equity in the Superior Court of Fulton County against Jones and Hill for an accounting and distribution of the corporate assets including the fees from the Thiokol cases which were still pending on appeal. On August 31, 1979, the parties entered into a consent order which disposed of all corporate matters except the fees in the Thiokol cases. The agreement provided that one-third of all fees collected in the Thiokol cases be placed in an escrow account. The order did not provide for a distribution of the escrowed funds, but reserved that matter for later determination by the court if the matter could not be resolved by agreement. The Fulton County complaint, however, was automatically dismissed on November 8, 1984, under OCGA § 9-2-60 (b), because no action was taken in the case for five years.

Decided December 1, 1989

Rehearing denied December 15, 1989

Scheer & Eisner, Robert A. Eisner, Wayne Chatham, for appellant.

On February 19, 1987, Farrington filed the present lawsuit against Jones and Hill seeking distribution of the fees derived from the Thiokol cases. Farrington filed a motion for partial summary judgment, and Jones responded with his own motion for summary judgment. The trial court granted partial summary judgment to Farrington as to Jones’ defenses of statute of limitation and laches and denied Jones’ motion. Jones appeals.

1. Jones contends that the statute of limitation on Farrington’s claim was either four or six years, depending upon whether OCGA § 14-2-153 or OCGA § 14-2-154 was the controlling time limitation for bringing an action to recover his claimed share of the corporation’s assets. He asserts that the time began to run no later than June 26, 1979, when Farrington filed his original lawsuit in Fulton County.

The trial court disagreed with Jones’ reasoning and found that the statute of limitation could start to run no earlier than the time the fees were first recoverable, which was in April of 1986 through October of 1987, the dates when the last of the cases were concluded. We find no error in this reasoning because a contingent fee cannot be collected until the underlying lawsuit is terminated in the plaintiff’s favor, and the statute of limitation does not begin to run until the fee is collectible. Sellers v City of Summerville, 208 Ga. 361, 366 (67 SE2d 137) (1951); Brookhaven Supply Co. v. Rary, 131 Ga. App. 310, 311 (205 SE2d 885) (1974). There is no merit in this enumeration of error.

2. Jones also asserted the defense of laches, contending that Farrington stood by and allowed his earlier suit to be automatically dismissed. Farrington, however, had no further action that he could take in the earlier suit because the Thiokol cases were pending until 1986, and there were no fees to be recovered. Farrington properly waited until the fees were recoverable before bringing the instant suit. The order of the trial court correctly granted summary judgment to him on this issue.

3. Appellant raises many other issues in his brief which are not enumerated as error. Enumerations of error may not be enlarged in the briefs of counsel to include issues not set forth in the enumerations. City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493) (1988).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

W. Paschal Bignault, for appellee.


author: Banke, Presiding Judge.

text:
    A89A1860.
    GLENN et al. v. HUTCHESON.
    (389 SE2d 523)
   Banke, Presiding Judge.

The appellants brought this wrongful-death action against the appellee to recover damages for the death of their son, who was killed in a motor vehicle collision while riding as a passenger in an automobile being driven by the appellee. The case was tried before a jury, which returned a verdict in the appellee’s favor. The appellants contend on appeal that the trial court erred in denying their motion for directed verdict on the issue of liability.

The appellee lost control of his vehicle, a Mazda RX-7, while attempting to negotiate a sharp turn on pavement which was still at least partially wet from a heavy rain which had fallen earlier in the day. The appellee and the decedent were following behind a Datsun 280-ZX which was being driven by a mutual friend of theirs towards a common destination. That vehicle had also begun to skid as it was rounding the turn, but the friend had been able to regain control. The appellee’s vehicle, however, spun broadside on the roadway, coming to rest in the left lane with the passenger side turned towards the oncoming traffic. It was then struck by a station wagon being driven by one Robert Stewart Eads, Jr., who was approaching from the other direction in his appropriate lane. As a result of the police investigation which followed the accident, the appellee was charged with driving too fast for conditions, vehicular homicide in the second degree, and driving with a suspended license. He subsequently entered a plea of guilty to each of these charges. Held:

By pleading guilty to the charge of vehicular homicide in addition to the charge of driving too fast for conditions, the appellee admitted not merely that he had been driving in a negligent manner at the time of the accident but also that this negligence had been the proximate cause of the decedent’s death. Compare Martini v. Nixon, 185 Ga. App. 328 (1) (364 SE2d 49) (1987) (holding that a plea of guilty to the offense of improper lane usage did not preclude a subsequent denial by the defendant that this infraction had been the proximate cause of the accident); Thompson v. Hill, 143 Ga. App. 272, 275 (3) (238 SE2d 271) (1977) (holding, in effect, that an admission arising from a plea of guilty may be rebutted by testimony that the plea was predicated on a misapprehension of law or fact). See also Williams v. Calhoun, 175 Ga. App. 332, 335 (333 SE2d 408) (1985), which goes so far as to hold that a defendant may rebut his plea of guilty to a traffic offense by claiming that “his failure to fulfill [his statutory duties] was not negligence but rather accident in that he was exercising ordinary care under the circumstances.”

Decided November 29, 1989

Rehearing denied December 15, 1989

Henning, Aitkens & Snellings, William R. Harp, Stanley T. Snellings, for appellants.

Long, Weinberg, Ansley & Wheeler, Webb, Carlock, Copeland, Semler & Stair, William Lewis Spearman, Arnold Wright, for appellee.

Although the appellee did not attempt during the trial to contravene the admissions created by his guilty pleas, he contends that the jury could have determined from the evidence that the decedent’s death was not proximately caused by his negligence but by Eads’ negligent failure to avoid the collision. Specifically, the appellee cites evidence showing that Eads had limited driving experience, being only 17 years old at the time of the collision, as well as the latter’s testimony that approximately 20 to 30 seconds elapsed between the moment he first saw the appellee’s car and the moment of impact. This argument must fail for two reasons. In the first place, it is based on a misstatement of the evidence. Eads in fact estimated that only 10 to 20 seconds elapsed between the time the appellee’s vehicle came into his view and the time of impact. Secondly, “[t]here is no ‘absolute duty on any driver to avoid a collision,’ (cit.), and the burden was on [the appellee] to prove that his negligence could have been discovered and avoided by [Eads]. (Cit.) This burden was not met. Considering all the evidence in the instant case in the light most favorable to the verdict, there is none which would support a finding that [Eads] acted in a negligent manner in any respect.” Moore v. Price, 158 Ga. App. 566, 569-70 (281 SE2d 269) (1981).

Because the admissions created by the appellee’s guilty pleas in the present case were not controverted by him during the trial of the case, and because there was no evidence of any negligent or unlawful act whatever on the part of Eads, we hold that the trial court erred in denying the appellants’ motion for directed verdict. Accord Moore v. Price, supra; Taylor v. Haygood, 113 Ga. App. 30 (2) (147 SE2d 48) (1966).

Judgment reversed.

Pope, J., concurs. Sognier, J., concurs in judgment only.


text:
    A89A2089, A89A2090.
    TURNER OUTDOOR ADVERTISING, LTD. v. WERCO, INC.; and vice versa.
    (389 SE2d 778)
   Deen, Presiding Judge.

In December 1986 Werco, Inc. (Werco), appellee in Case No. A89A2089 and appellant in Case No. A89A2090, signed a contract for billboard advertising with Turner Outdoor Advertising, Ltd. (Turner), appellant in Case No. A89A2089 and appellee in Case No. A89A2090. Because Werco considered its best season to be the colder months, it desired that Turner begin posting the billboards on January 5, 1987, in locations concerning which there subsequently developed a dispute. At Werco’s request the date was moved to January 25, partially because the art work was not ready. There was conflicting testimony as to who was to provide the art work and whether or not the art work eventually used was ever approved by Werco; the contract is silent as to the art that was to be used. In late January a Werco official informed Turner that he was not ready to proceed with the advertising and that he wished to cancel the contract and enter into a new one later in the year. Turner objected to the proposal to cancel the contract and ultimately posted the billboards in June of 1987, allegedly without prior notice to Werco as to locations and date. Werco refused to pay the invoices rendered by Turner, and Turner filed suit for the $10,000 principal sum stated in the contract, plus interest and attorney fees. Werco answered, denying all allegations and reserving the right to amend its answer and to file a Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), counterclaim.

A Fulton County jury found for Turner and awarded “5,000, 1/2 Contract amt., $2914.52 Interest on $10,000 for term of Contract, $1937.18. Attorney fees.” — or a total of $9,851.70. Both parties moved for judgment notwithstanding the verdict, Turner contending, in addition to its substantive allegations, that Werco’s motion for j.n.o.v. was invalid because Werco, unlike Turner, had not moved for directed verdict at trial. The trial court denied the cross-motions without comment upon Turner’s contentions regarding the validity of Werco’s motion. Turner appealed, enumerating as error the trial court’s denial of its motion for j.n.o.v. Werco cross-appealed, enumerating, in addition to the denial of its motion for j.n.o.v., the general grounds; the court’s admitting certain allegedly improper evidence and excluding certain allegedly proper evidence; and the court’s omitting certain jury instructions and making incorrect statements when giving others. Held:

1. There is undisputed evidence that Turner posted the number of billboards prescribed in the written contract for the specified period of time and therefore fully performed under the contract’s terms. According to the record before us, allegations by Werco having to do with choice of locations and times, art work, etc., concerning which the contract is silent, apparently could be supported only by parol evidence or other inadmissible evidence which Werco sought to introduce.

Decided December 1, 1989

Rehearing denied December 15, 1989

Schreeder, Wheeler & Flint, Timothy C. Batten, for appellant.

David C. Far shy, for appellee.

It is clear from the record that there was sufficient competent evidence adduced concerning the parties’ intentions in entering into the contract, and the events that preceded and followed, to authorize the finder of fact to reach the verdict that it reached. Moreover, construction of the contract is for the court, and we are persuaded that, contrary to Werco’s contention, the contract was entire rather than severable, OCGA § 13-1-8 (a), (b). We view the evidence, despite the multitude of disputed side issues, as sufficient to have demanded that the trial court find as a matter of law that Turner had fully performed and was therefore entitled to judgment n.o.v., based on its prior motion for directed verdict at the close of the evidence. See, e.g., Carlton v. Moultrie Banking Co., 170 Ga. 185 (152 SE 215) (1930); Williams v. Claussen-Lawrence Constr. Co., 120 Ga. App. 190 (169 SE2d 692) (1969). Turner is therefore due the entire contract price of $10,000 as well as interest and attorney fees based on that amount.

2. The errors enumerated in Case No. A89A2090 either are without merit or are rendered moot by our decision in the companion case.

Judgment reversed in Case No. A89A2089; appeal dismissed in Case No. A89A2090.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A2128.
    LIPSEY MOTORS v. KARP MOTORS, INC.
    (389 SE2d 537)
   Birdsong, Judge.

Appellant Lipsey Motors appeals the judgment entered in favor of appellee/plaintiff Karp Motors in the amount of $21,800, asserting that the trial court erred in denying appellant’s motion for directed verdict on three specific grounds.

The evidence when construed in the light most favorable to the verdict is as follows. Sidney Karp had three Cadillac automobiles that he had not been able to sell rapidly. He contacted Ralph Lipsey, owner of Lipsey Motors, and the two men orally negotiated a sale of the vehicles. Ralph Lipsey subsequently signed certain drafts in the amounts agreed upon for the wholesale purchase of the cars. Lipsey informed Karp that he would need 30 days’ time to pick up the drafts. Subsequently, Lipsey sent his son and some drivers to take possession of the cars. Two weeks later, Lipsey Motors sold one of the vehicles, paid Karp, and picked up its draft on that car. The other cars apparently could not be timely sold by Lipsey Motors. Lipsey called Karp and requested more time, stating that he did not currently have enough funds to pick up the drafts. Karp gave Lipsey an additional 30 days. The second 30-day period expired and Lipsey visited Karp’s office. Lipsey asked for an additional 15-20 days to enable him to pick up the drafts. Thirty more days passed and Karp contacted Lipsey who stated he could not pick up the drafts. The drafts were sent to the bank, but were returned unpaid due to the directions of Lipsey. Lipsey had the two remaining vehicles returned to Karp Motors, but Karp thereafter timely informed Lipsey that the return of these vehicles was not accepted.

The evidence is in conflict as to the circumstances under which certain documents, such as the odometer statements and buyer’s orders, were signed. However, it appears that the documents were signed by appellant’s son. Appellant made an admission in judicio that he sent his son who worked for the company to pick up the cars, that his son subsequently informed him that he had signed some open papers and “the contract” at Karp Motors, that his son was aware of the nature of the documents he signed, that he was aware that his son signed the odometer statement and that these statements include the words, “Federal regulations require you to make the odometer mileage upon transfer of ownership”; and, that Lipsey told his son it did not matter what he signed as they would be paying for the cars when he sold them anyway.

Lipsey Motors denied that a sale of the automobiles either had been contracted for or had occurred, but asserted that it had possession of the cars only on consignment. Held:

1. Appellant asserts that the trial court erred in denying its motion for directed verdict because no valid contract existed under Georgia law.

Appellant claims that the contract was invalid because it was not in writing in violation of the statute of frauds. OCGA § 11-2-201 (1). “ ‘The required writing need not contain all the material terms of the contract and such material terms as are stated need not be precisely stated. All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction . . . Only three definite and invariable requirements as to the memorandum are made by this subsection. First it must evidence a contract for the sale of goods; second, it must be “signed,” a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.’ ” Harris v. Hine, 232 Ga. 183, 186 (1) (205 SE2d 847). Examining each document in toto, we find that the two drafts and the two buyer’s orders both independently and collectively meet the Harris test. Each draft contained the notation “(GA. CARS) TAG-TAX REGISTRATION AND TITLE MUST BE ENCLOSED”; identified one motor vehicle by year, make, model, and serial number; identified the parties by business name; specified the amount of the draft; and contained the legible signature of Ralph Lipsey. Moreover, each buyer’s order on its face also meets the requirements of Harris. Assuming without deciding that Lipsey’s son signed the buyer’s orders without authority, Lipsey Motors would remain bound nonetheless under both the doctrine of apparent agency and the doctrine of ratification. OCGA §§ 10-6-51; 10-6-52; Fireman’s Fund Ins. Co. v. Davis, 42 Ga. App. 49 (155 SE 105). “If a person imposes upon another the duties and responsibilities involving the management and control of a matter of business, the agent will be presumed to have [the] authority to represent his employer in any matter within the scope of his apparent authority.” (Emphasis supplied.) Id. at 60. There exists some evidence of record to establish both an apparent agency, and Lipsey’s subsequent ratification by both conduct (selling of one automobile and requesting additional time in order to pick up the remaining drafts) and silence (knowingly electing not to repudiate timely in toto his son’s actions). “ ‘To bind the principal, there is no necessity for a positive or direct confirmation on his part, of the act of the agent, but it may arise by implication, from the acts or proceedings of the principal in pais. [Cits.] And for this purpose the acts and conduct of the principal are construed liberally in favor of the agent. Slight circumstances and small matters will sometimes suffice to raise the presumption of ratification.’ [Cits.] A ratification by the principal refers back to the act ratified, and becomes effective as if originally authorized; and a ratification once made can not be revoked.” Napier v. Pool, 39 Ga. App. 187, 196 (4) (146 SE 783).

“Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554); OCGA § 9-11-50. “ ‘The standard of appellate review of the trial court’s denial of a motion for directed verdict is the “any evidence” standard.’ ” F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6). As there was some evidence to establish the existence of a valid contract under Georgia law, the trial court did not err in its ruling.

2. Appellant asserts that the trial court erred in denying appellant’s motion for directed verdict based upon the uncontroverted evidence that there was no attempt by appellee Karp Motors to mitigate damages by any means including resale of the automobiles in question.

The trial court instructed the jury regarding appellee’s duty to mitigate damages by paraphrasing the statutory language of OCGA § 13-6-5. No enumeration of error has been filed concerning this instruction.

The record reveals that Karp testified after the cars were returned to Karp Motors over protest “[t]hey were on the sales lot, but I couldn’t sell them, I don’t own them. So, I pulled them off of the sales lot and secured them in a fence so that I could protect them as best as I could. . . .” Lipsey admitted in judicio that he saw the cars in Karp’s lot “a couple of times”; the cars were “on the front line, right where I picked them up from.” This evidence shows that for some period of time the cars were on Karp Motors’ sales line, and that thereafter they were secured to protect them. It may be inferred from this evidence that, at least while the cars were on the sales line, some attempt was being made to secure a purchaser for them on behalf of Lipsey Motors, and that subsequently placing the cars behind a fence would help protect them from vandalism and negligent damage. Thus, some evidence exists from which the jury could conclude that Karp Motors attempted to mitigate appellant’s damages, as far as practicable, by the use of ordinary care and diligence. Accordingly, the trial court did not err in denying the motion for directed verdict as asserted in the above enumeration of error. F.A.F. Motor Cars, supra; Spivey v. Eavenson, 150 Ga. App. 429 (1) (258 SE2d 54).

3. Appellant asserts that the trial court erred by denying its motion for directed verdict as there was no evidence of actual damages suffered by appellee as a result of the alleged breach of contract by appellant.

Appellant argues inter alia that appellee Karp Motors failed to present any evidence of the market value of the automobiles; and, that absent any such evidence, the jury was not authorized to award appellee damages. The record reflects that appellee offered evidence of the purchase price of the vehicles at the time the contracts were entered. Purchase price is reflected in the two drafts and in the buyer’s order. Karp further testified that he and Lipsey agreed upon the price before the documents were signed, and that the terms of the sale were for $10,500 for one automobile and $11,300 for the other.

In addition, Lipsey, owner of Lipsey Motors who had been doing business with the Karps for over 25 years, admitted in judicio that he had taken the cars in November and returned the cars the latter part of the following February or the first part of March. He further admitted that there had been no devaluation in the cars; that they were worth as much when he returned them as when he had received them. The purchase price of an automobile is relevant and admissible to establish its value at the time of purchase. See Builders Transport v. Hall, 183 Ga. App. 812, 815 (1) (360 SE2d 60). Moreover, the admission of value of the cars by Lipsey, a used car dealer with years of experience, established the fair market wholesale value of the cars at the time of their return to Karp Motors. See OCGA § 24-9-66.

Decided December 1, 1989

Rehearing dismissed December 15, 1989.

John R. Calhoun, Gregory V. Sapp, for appellant.

Clark & Clark, Fred S. Clark, for appellee.

Appellant asserts that the measure of damages contained in OCGA §11-2-708 should be applied. We disagree. OCGA § 11-2-602 (3) “recognizes that wrongful rejections may occur and refers to [OCGA § 11-2-703] for the seller’s remedies in such event, one of which is an action for the price.” Cochran v. Horner, 121 Ga. App. 297, 298 (2) (173 SE2d 448).

In Autotax v. Data Input Corp., 136 Ga. App. 141, 142 (220 SE2d 456), we held that as an exception “[t]he contract price can be recovered when the promisee has substantially performed his promise prior to the breach by the promisor. In this type of case, the promisor’s full performance (less damages for any minor breaches) is due and becomes the measure of damages. A common example occurs in situations involving the sale of chattels.” (Emphasis supplied.)

Moreover, “a suit on an open account may be maintained for the price of goods sold under a contract where the price has been agreed upon by the seller and purchaser and where the seller has performed his part of the agreement and nothing remains to be done except for the purchaser to make payment.” Wolfe v. Brown-Wright &c. Corp., 87 Ga. App. 12, 14 (73 SE2d 82); see Gage v. Tiffin Motor Homes, 153 Ga. App. 704 (1) (266 SE2d 345); see also Ale-8-One &c. v. Graphicolor Svcs., 166 Ga. App. 506 (7) (305 SE2d 14). The complaint in the case sub judice is sufficient to have placed appellant on notice of several theories of recovery, including that of suit on open account. See generally Ouseley v. Foss, 188 Ga. App. 766, 768-769 (374 SE2d 534).

We are satisfied that some evidence of record exists, in fact, under each of the above theories, to support the verdict of the jury. Accordingly, this enumeration of error is without merit. F.A.F. Motor Cars, supra.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Pope, Judge. Sognier, Judge,

text:
    A89A0814.
    FIREMAN’S FUND INSURANCE COMPANY v. KERGER.
    (389 SE2d 541)
   Pope, Judge.

Plaintiff Brendan Joseph Kerger, Jr., brought suit against defendant Fireman’s Fund Insurance Company to recover no-fault benefits he alleged were due him under a policy of insurance issued to Caroline Clotfelter, as a result of injuries sustained in an incident involving Kerger, who was riding a bicycle, and an automobile driven by Clotfelter. Cross motions for summary judgment were made, and the trial court granted Kerger’s motion for summary judgment and denied that of Fireman’s Fund. This appeal consolidates our grant of Fireman’s Fund’s application for interlocutory appeal from the denial of its motion and the direct appeal from the grant of summary judgment to Kerger.

The record reveals that the incident in question occurred on the morning of May 26, 1987, when plaintiff, an experienced and accomplished cyclist, was riding his bicycle in a southerly direction on East Brookhaven Drive in Atlanta, where Clotfelter’s residence is located. It is undisputed that when plaintiff first noticed Clotfelter’s car it was stopped in the middle of the northbound lane. As plaintiff approached the area where the vehicle was stopped, Clotfelter backed her car into her driveway, driving in reverse across the southbound lane where plaintiff was approaching, and “abruptly” turned in front of him. Plaintiff swerved sharply to avoid colliding with the car, as a result of which he hit a storm drain located in front of Clotfelter’s driveway. This, in turn, caused the front wheel of plaintiff’s bicycle to collapse and plaintiff to be thrown to the ground and injured. Plaintiff subsequently made demand upon defendant for medical expenses and lost wages under Clotfelter’s no-fault policy, which demands were refused.

Defendant contends the trial court erred by denying its motion for summary judgment and granting summary judgment in favor of plaintiff, erroneously construing OCGA § 33-34-7 (a) to entitle plaintiff to no-fault benefits. OCGA § 33-34-7 (a) provides that “[t]he insurer of a motor vehicle with respect to which security is required by Code Section 33-34-4 shall pay basic no-fault benefits without regard to fault for economic loss resulting from: ... (3) [accidental bodily injury sustained by any . . . person as a result of being struck by the owner’s motor vehicle while a pedestrian in this state.” The parties agree that for the purposes of this case plaintiff must be considered a “pedestrian” under Georgia law. See OCGA § 33-34-2 (11).

“The question then is whether [plaintiff] was ‘struck by’ the insured’s vehicle. In construing that term, this court has previously held that ‘one can be “struck by” an automobile for the purpose of the application of OCGA § 33-34-7 (a) (3) without actually coming into physical contact with the automobile itself.’ Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204, 206 (338 SE2d 687) (1985). ‘In ordinary parlance, the word “struck” is frequently used to denote a movement or a force causing or resulting in a physical impact. The “striking” force can be either the force which most immediately comes in contact with the object struck, or it can be the force setting in motion a chain of events leading up to the striking of an object.’ (Emphasis supplied.) Id. at 205. In the case at bar it is clear that [Clotfelter’s] vehicle was the movement or force which set in motion the chain of events which led to the [plaintiff’s] physical impact with [the storm drain]. This was sufficient to show that [plaintiff] was ‘struck by’ [Clotfelter’s] vehicle and the trial court properly denied [defendant’s] motion for summary judgment [and properly granted summary judgment to plaintiff on this basis.]” Pennsylvania Nat. &c. Ins. Co. v. Burnetti, 192 Ga. App. 593, 594 (385 SE2d 446) (1989) (cert, granted September 28, 1989, Clarke, P. J., Smith and Gregory, JJ., dissenting).

Contrary to the assertions of the dissent, this case is indistinguishable from Burnetti. Here the plaintiff testified in his deposition that he was forced to suddenly swerve on his bicycle in order to avoid colliding with Clotfelter’s car when she “abruptly” turned in front of him, as a result of which he hit a large storm drain and was thrown from his bicycle to the ground. In Burnetti, the plaintiff was injured when he jumped out of the path of an oncoming vehicle, thus causing him to strike a nearby wall and pavement. In both cases, plaintiffs were faced with an untenable “choice” — take immediate evasive action or be struck by a car. In both cases, plaintiffs came into contact with an unforeseen obstacle in attempting to retreat from the path of the oncoming vehicle. In both cases plaintiffs were injured as a result of their contact with the unforeseen obstacle and as a direct result of their contact with the offending vehicle. “To grant recovery to a person who, sensing danger, does nothing to remove himself from peril and is thereby injured by the impact itself with the on-coming vehicle, while denying recovery to one who, under the exact same set of circumstances, attempts to escape danger by fleeing the path of the oncoming vehicle, thereby sustaining injury by impacting with an object other than the vehicle, leads to anomalous, if not absurd results. Clearly, in either situation, the vehicle was the force which led to the claimant’s physical impact with or striking of an object and recovery should be allowed.” Burnetti, supra at 594. Consequently, the trial court properly denied defendant’s motion for summary judgment and properly granted summary judgment to plaintiff.

The dissent also would overrule Burnetti, thereby retreating from the precedent announced last term by a majority of this court. Specifically, the dissent incorrectly states that Cole v. N. H. Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988) is directly on point and that it construes the “struck by” language “in totally opposite fashion from that employed by the Burnetti majority.” In Cole, plaintiff, while walking back to her parked car, slipped and fell, striking her arm on the front of her stationary vehicle. Cole did not reject the “movement or force” analysis espoused in Johnson and relied on in Burnetti, but instead simply held that the movement or force which lead to the impact had to be that of the vehicle. Consequently, since the plaintiff herself, and not the stationary vehicle, was the movement or force in Cole, under the facts of that case recovery was not warranted.

Likewise, the Supreme Court’s opinion in Collins v. Intl. Indem. Co., 256 Ga. 493 (349 SE2d 697) (1986) is not, as the dissent contends, “controlling authority” which requires a different result. In that case the central issue was whether or not the plaintiff was a pedestrian as that term is used in OCGA § 33-34-2 (11). As to the issue of whether the plaintiff was “struck by” the vehicle in question the majority simply held that that was a question for the jury. On motion for rehearing the majority also held that the propelled as well as the propelling vehicle can be found to have “struck” the pedestrian within the meaning of OCGA § 33-34-7. In sum, the cases cited by the dissent neither support its assertion that Burnetti should be overruled nor mandate the conclusion that summary judgment was improperly granted by the trial court in this case.

Judgment affirmed.

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

Sognier, Judge,

dissenting.

I respectfully dissent.

First, I find Pennsylvania Nat. &c. Ins. Co. v. Burnetti, 192 Ga. App. 593 (385 SE2d 446) (1989) distinguishable from the case sub judice. The vehicle in Burnetti unquestionably collided with something (although it is unclear whether it was the telephone stand in which the pedestrian was standing), setting in motion a chain of events resulting in the pedestrian’s alleged injury, while the vehicle in the case at bar hit nothing, but rather was backed without incident into the insured’s residence driveway. Thus, even extending Johnson v. National &c. Ins. Co., 177 Ga. App. 204, 205-206 (1) (338 SE2d 687) (1985) as far as the majority did in Burnetti, it is certainly a question of fact whether this case may be brought under that rationale. In Johnson we held that a pedestrian was “struck,” and was therefore entitled to no-fault benefits, when he was hit by a parked car when a moving vehicle collided with the parked car, thus propelling it into the pedestrian. In the case sub judice, appellee was not “struck” at all. He was injured when he was thrown from his bicycle which he propelled over a storm drain. In my view, the facts presented here are simply outside the bounds of the Johnson rationale, even as extended by Burnetti, and the majority itself proposes the very anomalous results it sought to avoid in Burnetti. Allowing injured pedestrians to recover benefits under the no-fault insurance policies of drivers of vehicles with whom they have no contact when no collision with anything took place, simply on the basis of the pedestrians’ belief that the vehicle would have or might have collided with them but for their own actions, seems to me a far more anomalous result than requiring the minimal contact mandated by Johnson, supra. Moreover, plaintiffs such as appellee are not without remedy if no-fault benefits are disallowed, as nothing precludes them from pursuing traditional liability claims against those they believe responsible for their injuries, as, in fact, appellee has done in this case.

Second, although Burnetti, supra, is distinguishable, I believe it was wrongly decided and should be overruled. The majority opinion in Burnetti ignores this court’s recent decision in Cole v. N. H. Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988), although that case is directly on point and construes the statutory “struck by” language in OCGA § 33-34-7 (a) in totally opposite fashion from that employed by the Burnetti majority. In Cole, this court held that “the requirement of being ‘struck by’ [means] the movement or force [must] be that of the vehicle.” Id. at 329. The majority opinion in Burnetti also fails to mention the controlling authority of the Supreme Court’s decision in Collins v. Intl. Indem. Co., 256 Ga. 493 (349 SE2d 697) (1986) (although the importance of Collins was recognized by Judge Beasley in her opinion concurring in part and dissenting in part in Burnetti), which explicitly holds that “the word ‘strike’ [in OCGA § 33-34-7 (a) (3)] should be given its ordinary meaning, which is ‘[t]o come into violent contact with; hit,’ [cit.],” id. at 495, and that even if the injured party was a pedestrian, it was a requirement of the statute that the pedestrian have been “struck.”

“ ‘(S)tatutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. (Cit.)’ [Cit.]” Georgia Turkey Farms v. Hardigree, 187 Ga. App. 200, 202-203 (1) (369 SE2d 803) (1988). The words “pedestrian . . . struck by” a motor vehicle, as used in the no-fault statute, are “clear and not subject to dramatic and artful meaning.” Cole, supra at 329. Because appellee did not come into violent contact with Clotfelter’s vehicle or anything propelled by it, he was not “struck by” it and was not entitled to no-fault benefits. Accordingly, I would decline to follow that portion of Burnetti which construes OCGA § 33-34-7 (a) (3) as allowing a pedestrian to recover no-fault benefits when he has not come into violent contact with either a motor vehicle or a projectile set in motion by that motor vehicle, and in this case I would reverse the trial court’s grant of summary judgment to appellee.

Decided December 1, 1989

Rehearing denied December 19, 1989.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Robin L. Peek, for appellant.

James A. Goldstein, R. Patrick White, for appellee.

I am authorized to state that Presiding Judge Banke, Judge Birdsong and Judge Beasley join in this dissent.


author: Carley, Chief Judge.

text:
    A89A1024.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. SWINDLE.
    (389 SE2d 779)
   Carley, Chief Judge.

Seeking damages under the Federal Employer’s Liability Act (FELA), appellee-plaintiff brought suit against appellant-defendant. The case was tried before a jury and a verdict in appellee’s favor was returned. Appellant appeals from the judgment that was entered on this verdict and from the denial of its motion for new trial.

1. Appellant enumerates as error the refusal of the trial court to grant a new trial on the ground that the jury’s verdict is excessive.

“ ‘[D]amages recoverable under the FELA on account of a railroad employee suffering injury or death on the job are compensatory only and . . . punitive damages are not recoverable. (Cit.) However, the jury’s determination of the amount of damages to be awarded is otherwise inviolate, “absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. . . . (Cits.)” [Cit.]”’ CSX Transp. v. Darling, 189 Ga. App. 719, 721 (1) (377 SE2d 217) (1988). “ ‘A verdict in one of that class of cases in which the amoünt of damages is left to the enlightened conscience of [a fair and impartial] jury is not to be declared by a reviewing court to be excessive, unless it is so large in amount as to justify the court in believing that it could not reasonably have resulted from any other cause than bias or gross mistake on the part of the jury.’ [Cit.] . . . ‘[This bias or mistake is usually] a matter of inference; and in that event. . . [its existence] falls within the rule as to circumstantial evidence, — there must be no reasonable hypothesis other than that the bias or the mistake did exist.’ . . . The presumption is that the jurors were impartial and understood their case. It is, therefore, a more ‘reasonable hypothesis’ that their finding was based on the evidence considered impartially. . . . [Cits.]” Realty Bond & Mtg. Co. v. Harley, 19 Ga. App. 186, 189 (2) (91 SE 254) (1917). “An excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony. This court is a court for the correction of errors of law only, and this court’s jurisdiction is confined to the question of whether the trial court abused [its] discretion in overruling the motion for a new trial on this ground. [Cits.] In the present case, where the evidence most favorable to the plaintiff shows painful and permanent injuries ... , it cannot be said that the verdict is excessive as a matter of law.” St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624) (1965). The trial court did not err in failing to grant a new trial on the ground that the verdict is excessive.

2. Appellant made a pre-trial motion in limine to exclude “any suggestion that damages should be awarded in this case for the purpose of punishing [appellant] or for the purpose of setting an example in order to influence conduct in the future.” The trial court granted the motion. Appellant makes no contention on appeal that the trial court subsequently erred by allowing appellee to make an opening statement or to introduce evidence in the course of the trial which violated the grant of the pre-trial motion in limine. Appellant urges only that the trial court erred by allowing appellee’s counsel to engage in a closing argument which violated the grant of that motion in limine.

No objection was made in the trial court to any portion of the closing argument of appellee’s counsel. There is some question whether the grant of a pre-trial motion in limine obviates compliance with the requirement that an objection must otherwise be raised in the trial court so as to secure appellate review of allegedly improper closing argument. See Ralston v. State, 170 Ga. App. 389 (317 SE2d 221) (1984). However, assuming without deciding that, by virtue of the grant of appellant’s pre-trial motion in limine, no objection to the closing argument of appellee’s counsel was necessary, we find no error. Although isolated portions of that closing argument are susceptible of being construed as exhortations to punish appellant and may have come very close to violating the tenor of the pre-trial motion in limine, when they are considered in the context of the entirety of the otherwise uncontested evidence of record, those portions would appear to be zealous attacks upon appellant’s defense of the action and passionate appeals on appellee’s behalf which fell just short of impermissible argument. “ ‘What the law forbids is the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice. ‘Flights of oratory and false logic do not call for mistrials or rebuke. It is the introduction of facts not in evidence that requires the application of such remedies.’ . . . ‘[Wjhat has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment.’ . . . ‘While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence; and the fact that the deductions may be illogical, unreasonable, or even absurd, is a matter for reply by adverse counsel, and not for rebuke by the court.’ [Cits.]” Miller v. Coleman, 213 Ga. 125, 130 (6) (97 SE2d 313) (1957).

3. Appellant urges that, over its objection, appellee’s wife was erroneously allowed to testify, as to how appellee’s injuries had damaged her and her family.

The record does not support appellant’s characterization of the testimony of appellee’s wife. Instead, the record shows that she testified as to how appellee’s home life had been affected by his injuries. “A nonexpert may give testimony as to the effect of the plaintiff’s injuries on [his] capacity to perform certain activities, provided such testimony is based on [the witness’] personal observation of the plaintiff’s physical condition and capacity both prior and subsequently to the alleged injuries. [Cit.]” Brewer v. Henson, 96 Ga. App. 501, 502 (2) (100 SE2d 661) (1957). Naturally, the testimony of appellee’s wife tangentially touched upon how the other members of his family had responded to his post-injury condition, but her testimony did not, as appellant suggests, erroneously relate to how those other family members had themselves been damaged by appellee’s injuries. The trial court did not err in overruling appellant’s objection to the testimony.

4. Over appellant’s hearsay objection, the trial court allowed a physician to testify as to what another physician had “found” when that other physician had performed surgery on appellee. The trial court erred. Clearly, whatever the other physician had “found” upon performing surgery on appellee was hearsay as to the testifying physician. See Heard v. Heard, 99 Ga. App. 864 (2) (110 SE2d 76) (1959). The error was, however, harmless. The physician who had performed the surgery subsequently testified and gave his own version of what he had “found” during that medical procedure. “[0]ther legally admissible evidence of the same facts renders harmless admission of the incompetent evidence. [Cit.]” Williams v. State, 144 Ga. App. 130, 133 (2) (240 SE2d 890) (1977).

5. Immediately prior to closing argument, appellant made another motion in limine, seeking to preclude appellee’s counsel from referring in his closing argument to certain evidence which had been adduced during the trial. Appellant enumerates as error the denial of this pre-argument motion in limine.

Decided December 4, 1989

Rehearing denied December 19, 1989

Hatcher, Stubbs, Land & Hollis, Richard Y. Bradley, Robert C. Martin, Jr., for appellant.

Butler & McDonald, James E. Butler, Jr., C. Frederick Overby, for appellee.

Assuming without deciding that a pre-argument motion in limine is a proper procedural device to secure a ruling on the permissible ambit of closing argument (compare Ralston v. State, supra), we find no error in the denial of appellant’s pre-argument motion in limine. Appellant does not otherwise enumerate as error the admission of the evidence that was addressed by its pre-argument motion in limine. Since there is no contention that that evidence was erroneously admitted, it follows that it was not error to refuse to preclude appellee’s counsel from making reference to it in his closing argument. “ ‘What the law forbids is the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice. ‘[W]hat has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment.’ ” Miller v. Coleman, supra at 130 (6).

Judgment affirmed.

McMurray P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    A89A1132.
    BELL v. ANDERSON.
    (389 SE2d 762)
   Benham, Judge.

Appellant Bell brought suit against appellee/attorney Anderson, alleging that Anderson had slandered Bell in a mid-trial, in camera conference held in the chambers of the federal district court judge presiding over the trial in which appellee represented a party and appellant was a witness. The trial court below granted appellee’s motion for summary judgment, concluding that appellee’s allegedly slanderous remarks were absolutely privileged. This appeal followed the entry of that judgment.

During the federal court trial, appellee requested a conference attended by the presiding judge, the court reporter, and the opposing attorney. Appellee then related to the assembled group that a scheduled witness had “volunteered that one of the individuals involved in this case came to see her at the bank, discussed these accounts and left a fairly sizable bag of cocaine.” Upon inquiry from the judge, appellee identified appellant as the person allegedly in possession of cocaine. Recognizing the possible relevance of the information but refusing to rule on its admissibility in advance, the judge advised the attorneys to approach the bench and seek a ruling before bringing the information out in court. The information was never brought up in court during the remainder of the trial. Approximately 45 days after the in-chambers conference, appellant filed this suit against appellee, alleging that appellee’s remarks during the conference constituted slander per se. Characterizing appellee’s statement as an in camera proffer of relevant and material evidence and seeing no distinction between a proffer of evidence and pleadings, which are absolutely privileged under OCGA § 51-5-8, the trial court granted appellee’s motion for summary judgment.

“From motives of public policy the law recognizes certain communications and publications as privileged. The privilege which the law thus accords the speaker or publisher is either absolute, entirely freeing the party from any liability to the person injured by the words or the publication, or conditional, that is, the words shall be spoken in good faith, upon a proper occasion. When the privilege is absolute, the motive of the publication is immaterial. When the privilege is conditional actual malice will bring about liability. . . . ‘[T]he characteristic feature of absolute, as distinguished from conditional, privilege is, that in the former the question of malice is not open; all inquiry into good faith is closed.’ The remarks of a legislator in debate, the words of a judge in the course of a judicial proceeding, the averments in a pleading filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, are instances of absolute privilege.” Atlanta News Publishing Co. v. Medlock, 123 Ga. 714, 719 (51 SE 756) (1905). OCGA § 51-5-8 provides that “[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.” The statement at issue here cannot be construed as a pleading (see OCGA § 9-11-7 (a)) and, while recognizing that the remark was made during a proceeding in federal court, we note that under Georgia law it was not a proper offer of evidence. See Flynt v. State, 153 Ga. App. 232, 242 (264 SE2d 669) (1980).

An allegedly slanderous statement made in open court by a testifying witness is absolutely privileged if “it is responsive to questions asked by counsel and not disallowed by the court.” Horton v. Tingle, 113 Ga. App. 512 (2) (149 SE2d 185) (1966). See also Rivers v. Goodson, 188 Ga. App. 661 (373 SE2d 843) (1988). If, as here, the testimony of the witness would have been absolutely privileged, since the trial court found the evidence relevant, we can only hold that an attorney’s in camera summarization of that relevant evidence is similarly privileged. We decline to adopt appellee’s suggestion that we recognize an absolute privilege for communications made by an attorney in court or to opposing counsel or opposing parties preceding or in the course of litigation in light of the cases in which an attorney’s conditional privilege in such situation has been recognized. See, e.g., Atlanta News Publishing Co. v. Medlock, supra; Lester v. Thurmond, 51 Ga. 118 (1874); Quikrete Cos. v. Schelble, 186 Ga. App. 330 (367 SE2d 114) (1980).

Decided October 31, 1989

Rehearing denied December 19, 1989.

Jones, Brown & Brennan, Taylor W. Jones, for appellant.

Saveli & Williams, William S. Goodman, Charles M. Dalziel, Jr., for appellee.

Judgment affirmed.

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


text:
    A89A1133.
    DEPARTMENT OF TRANSPORTATION v. BAXLEY et al.
    (389 SE2d 519)
   Beasley, Judge.

After a jury verdict of $44,075 for condemnees, the Department of Transportation (DOT) brings an appeal from the judgment entered thereon and the denial of its motion for new trial.

DOT condemned a ten-foot strip of land owned by condemnees and adjacent to their grocery business in Baxley. The pretrial order provided that the jury issues were: the value of the land taken; the value of the construction easement; the value of the “loss of use” of the property resulting from the condemnation. However, upon the call of the case for trial the condemnees requested a continuance in order to present a claim for destruction of their business. The trial court denied the continuance motion but allowed amendment of the pretrial order to include that issue.

DOT asserts three grounds of error: the amendment of the pretrial order over its objection; the admission of evidence as to the sales and gross receipts of the grocery business without evidence of expenses; a charge by the trial court that damage to the business could be considered in determining consequential damages.

1. Once a pretrial order is entered, “a party may not amend without leave of court or consent of the opposite party.” Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196) (1980). Condemnees sought modification of the pretrial order as they were required to do. See Gilbert v. Meason 145 Ga. App. 662, 663 (1) (244 SE2d 601) (1978); Dumas v. Beasley, 218 Ga. 349, 352 (128 SE2d 59) (1962). In passing upon the issue of whether to allow an amendment, the trial court considers if permitting such amendment would prevent manifest injustice and in doing so it is clothed with a broad discretion with which the appellate courts are loath to interfere. See Ambler v. Archer, 230 Ga. 281, 287-88 (196 SE2d 858) (1973).

Counsel for DOT was offered the opportunity at trial to interview the witness involved and chose not to. In the spirit of the CPA that cases be decided on their merits and to allow the consideration of all questions fairly within the ambit of the contested issues, the trial court was not precluded by law from permitting the amendment of the pretrial order to include the issue of destruction of or damage to the business. Ambler, supra; Cooper v. Rosser, 232 Ga. 597, 598 (207 SE2d 513) (1974).

2. The accountant for the grocery business of condemnees testified as to gross receipts or sales. He also related that the business had lost about $5,000 in 1988. DOT moved to strike this testimony on the ground that, in the absence of business expenses, evidence as to gross sales is inadmissible. See Mauney v. Dept. of Transp., 169 Ga. App. 563 (313 SE2d 782) (1984). This would be true if the sole purpose of the testimony was to establish lost profits. However, loss of business and profits from a business located on the property not taken but resulting from the condemnation may be considered as to its effect on the market value of the remainder, as a factor in determining consequential damages. State Hwy. Dept. v. Hood, 118 Ga. App. 720 (165 SE2d 601) (1968).

“[I]n the absence of a showing of a special or unique value to the owner, mere business losses caused by a partial taking of the land on which the business is located are not a separate element for compensation.” Dept. of Transp. v. Dent, 142 Ga. App. 94, 95 (3) (235 SE2d 610) (1977). Nevertheless, “evidence of such damage may be given to the jury to help establish market value of the property. When a partial taking damages a business, the market value of the remaining land is affected by the ‘best use rule’ and no ‘special element of damage’ is required. The resulting decrease in market value of the remaining land is the consequential damage.” Williams v. State Hwy. Dept., 124 Ga. App. 645, 647 (2) (185 SE2d 616) (1971).

A distinction exists between situations in which the property being condemned is owned by one party and the business thereon is owned by another and situations in which both the business and property are owned by one individual or entity. Dept. of Transp. v. Kendricks, 148 Ga. App. 242, 244 (1) (250 SE2d 854) (1978); State Hwy. Dept. v. Thomas, 115 Ga. App. 372, 376 (154 SE2d 812) (1967). As explained in Kendricks: “in the absence of the total destruction of a business conducted on the partially condemned property where both the property and the business are considered as one property right and are owned by one person or interest, the partial business loss cannot be established as a separate item of damage but is a matter going to the diminution in the value of the property.” Id. at 245. In brief, business loss is relevant to the amount of consequential damages, but is not a separate element, where the theory of recovery is that the taking deprived one of realty and resulted in consequential damages to the remainder. Dept. of Transp. v. Consolidated Equities Corp., 181 Ga. App. 672, 673 (1) (353 SE2d 603) (1987).

Condemnees sought recovery for the total destruction of their business but also relied upon damages to the remainder of their property as a consequence of the taking. Although the evidence may have failed to show a total destruction of the business, it was relevant to establish the market value of the property. In these circumstances, the testimony was not showing the exact amount of loss incurred by the business but only that the property was less valuable because of the partial condemnation. The rule as to specificity of the amount of loss (see Mauney, supra, and Brock v. Dept. of Transp., 151 Ga. App. 905, 906 (2) (262 SE2d 156) (1979)) would not control. Instead, the testimony would be admissible to show diminution in the value of the property as part of the consequential damages. Consolidated Equities Corp., supra; Dept. of Transp. v. Willis, 165 Ga. App. 271, 272 (2) (299 SE2d 82) (1983); Dixie Hwy. Bottle Shop v. Dept. of Transp., 150 Ga. App. 839, 841 (6) (258 SE2d 646) (1979); Williams, supra.

3. The trial court charged the jury: “in connection with your consideration of the question of whether there are any consequential damages to the remaining property, I charge you that the damage to a business caused by taking of part of the land where the business is conducted may be considered in determining the effect of the taking on the market value of the business property, but the damage to the business, if any, is not a separate item of damage. The measure of consequential damages for the injury to the business property would still be the difference in the value of the property before and after the taking of the land.”

As discussed in Division 2, the instruction was correct as to the legal principles involved. It was not subject to the objection that there was no evidence by which the jury could calculate or determine there was damage to business resulting from the taking and that damages awarded as part of consequential damages would be pure speculation. Damages for loss to the business need not be mathematically certain since they are only offered to show that the value of the property was diminished by the condemnation. The charge did not authorize the jury to award business losses as a part of consequential damages.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.

Decided November 28, 1989

Rehearing denied December 19, 1989.

Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, Zorn & Caldwell, William A. Zorn, for appellant.

Miles, Baker & Morris, Keith M. Morris, for appellees.