author: Deen, Presiding Judge. Carley, Judge,

text:
    76601.
    PLANNED COMMUNITY SERVICES, INC. et al. v. SPIELMAN et al.
    (371 SE2d 193)
   Deen, Presiding Judge.

On February 13, 1985, the appellee, Beatrice Spielman, slipped and fell on a patch of ice on a sidewalk as she approached the condominium of Marie Titsworth. Spielman was a district manager for Avon, Inc., and was calling on Titsworth, who formerly had been an Avon representative, in hopes of persuading her to become once again an “Avon lady.”

The circumstances of Spielman’s visit to Titsworth are in dispute. It is uncontroverted that days before the incident Spielman called Titsworth to discuss the possibility of Titsworth’s returning to Avon. Spielman claims that she and Titsworth made an appointment for her to drop by Titsworth’s home some time on February 13, 1985, although she was supposed to call Titsworth beforehand, to make sure that Titsworth was at home. Spielman admits that she never called Titsworth, but decided instead to stop at Titsworth’s residence on her way home after her other appointments for the day. Titsworth denies making any appointment for Spielman to visit, and claims that when Spielman previously telephoned she indicated that she was not interested in working for Avon again. It is also uncontroverted that Titsworth was not at home when Spielman attempted to visit.

Snow had fallen in the area the day before the incident, although by Spielman’s own testimony most of the snow had melted by the time Spielman went to Titsworth’s home. Spielman did not see any snow or ice residue anywhere on the condominium parking lot, or anywhere else on the sidewalk other than the spot where she slipped and fell. The patch of ice where she fell was approximately 2 steps long and covered most of the sidewalk, but about 6 inches of sidewalk remained clear. Spielman acknowledged that she saw the icy patch on the sidewalk before stepping on it, although she did not realize that it was ice because it appeared to be merely water. She also acknowledged that she easily could have avoided the water/ice patch by stepping on the 6-inch strip of clean sidewalk, or by stepping on the adjoining lawn.

As soon as she stepped on the ice, she slipped and fell. Subsequently, she commenced this action against the condominium association and the property management company, who are the appellants here. The appellants, who were not even aware of Spielman’s fall until the commencement of the lawsuit in July 1985, denied any knowledge of the ice patch. The trial court denied the appellants’ motion for summary judgment, and this interlocutory appeal followed. Held:

The appellants contend that they owed Spielman only a duty not to injure her wilfully or wantonly, because at the time of her injury Spielman was either a trespasser or a licensee. Spielman claimed the status of invitee, with its imposition upon the landowner of the duty to exercise ordinary care in keeping the premises safe. The evidence as to Spielman’s status was conflicting, but even considered most favorably for Spielman, it would not support a finding that she was an invitee.

By Spielman’s own testimony, at the time of her slip and fall Spielman was not on the premises pursuant to a definite appointment or invitation. She may have had a tentative appointment with Titsworth, but she was supposed to call before she visited, in order to make sure that Titsworth would be there. This arrangement certainly was not a standing, open invitation for Spielman to drop by Titsworth’s home to discuss employment.

“A licensee is a person who: (1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.” OCGA § 51-3-2 (a). A visitor is the invitee of the owner if his presence on the premises promotes the mutual interests of the owner and the visitor. Frankel v. Antman, 157 Ga. App. 26 (276 SE2d 87) (1981). In the instant case, Spielman’s decision to stop by Titsworth’s residence without first calling to make a definite appointment served only Spielman’s convenience, and Spielman’s status at best was that of licensee.

“The owner of the premises is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b); Brown v. Clay, 166 Ga. App. 694 (305 SE2d 367) (1983). “The codified standard ‘wilful or wanton’ imports deliberate acts or omissions, or . . . that which discloses ‘an inference of conscious indifference to the consequences.’ ” Washington v. Trend Mills, 121 Ga. App. 659, 660 (175 SE2d 111) (1970). The evidence in the instant case in no way supports even an inference of wilful or wanton conduct on the part of the appellants, and the trial court should have granted summary judgment for the appellants.

Judgment reversed.

Carley and Sognier, JJ., concur specially.

Carley, Judge,

concurring specially.

While I agree with the majority opinion’s conclusion that the order of the trial court denying appellant’s motion for summary judgment must be reversed, I cannot in any way agree with the basis upon which that decision is reached. The majority determines as a matter of law that appellee was a licensee or trespasser and thus, because there was no evidence of wilful or wanton conduct on the part of appellants, appellee is not entitled to recover. Contrary to the majority’s recitation of the circumstances surrounding appellee’s visit to Ms. Titsworth’s condominium, there is definitely a genuine issue of material fact as to whether appellee was an invitee as opposed to a mere licensee or a trespasser. The appellee testified positively that she and Ms. Titsworth “made an appointment. . . . We made the appointment for the 13th.” The majority appears to rely upon the fact that appellee did not call Ms. Titsworth before she went to the condominium units. However, according to appellee’s testimony, such a call would have been only a matter of convenience because Ms. Titsworth had told her “I may not be home in time” and appellee decided not to stop her car and make the telephone call since Ms. Titsworth’s residence was on her way home. Construing the evidence in favor of appellee as respondent to a motion for summary judgment, we must assume that appellee was an invitee and, therefore, she was entitled to expect appellants to exercise ordinary care in keeping the premises safe.

Decided June 8, 1988

Rehearing denied July 5, 1988

Michael S. Huff, Reagan W. Dean, for appellants.

Charles B. Tanksley, Roy E. Barnes, Jerry A. Landers Jr., for appellees.

Nevertheless, even though appellee occupies the status of invitee, the record clearly shows that she is not entitled to recover in this case. By appellee’s own testimony, she saw a “wet patch” that she thought was water but which turned out to be ice. The appellee saw this “wet patch” prior to stepping on it. “In view of [appellee’s] knowledge of the [wet patch] on the pavement, summary judgment in favor of” appellants should have been granted. McIntyre v. Corp. Property Investors, 160 Ga. App. 868, 869 (288 SE2d 584) (1982). Thus, for entirely different reasons than those stated by the majority, I believe that the trial court erred in denying appellants’ motion for summary judgment.

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


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    76467.
    NATIONWIDE MUTUAL INSURANCE COMPANY v. HOLBROOKS et al.
    (371 SE2d 252)
   Birdsong, Chief Judge.

This is an action filed by Nationwide Mutual Insurance Company, the insurer of Apache Transport, Inc. (lessee of truck), to have it declared whether Nationwide is obligated to furnish a defense to Holbrooks (owner/lessor of truck) and his employee Campana (driver of truck), as insureds under Apache Transport’s insurance contract with Nationwide. (A third issue concerning coverage by Holbrooks’ insurer is not properly before us in this appeal.)

The plaintiffs in the personal injury and wrongful death actions underlying this declaratory action are David Hunt and his wife for his injuries, and Wayne Abbs, father of deceased Amanda Abbs and injured Kimberly Abbs who were stepdaughters of Hunt and were riding with him when Campana, driving Apache Transport’s leased truck, allegedly crossed the centerline and collided with David Hunt’s vehicle. In the declaratory action, these plaintiffs countered for a determination that (aside from any question involving insurance coverage), Apache Transport is vicariously liable for Campana’s acts as a matter of law, pursuant to governing regulations of the Interstate Commerce Commission (ICC).

The principal issue centers around Nationwide’s contention that at the time of the collision Campana, who was “bobtailing” (driving a truck tractor with trailer removed), was on a personal mission and was not engaged in the business of Apache Transport.

In rendering summary judgment against Nationwide on all the issues formed, the trial court in a well-considered order, found as pertinent, (1) beyond any issue of material fact, Campana was at the time of the collision driving the truck pursuant to permission of Apache Transport; (2) Campana and Holbrooks are therefore insureds under Apache Transport’s policy with Nationwide; and (3) pursuant to statutory and regulatory provisions under the federal Interstate Common Carrier Act, the motor carrier is required to assume full direction, control and responsibility of leased vehicles for the protection of the public, and therefore, Apache Transport is vicariously liable for the actions of Holbrooks and driver Campana.

Nationwide appeals, enumerating three errors, which include a contention that any government regulations governing interstate motor carriers cannot expand the scope of a carrier’s liability beyond that of respondeat superior only. Held:

1. The trial court did not err in finding, beyond any genuine issue of material fact, that Campana had the permission of Apache Transport to drive the truck, and was driving the truck pursuant to that permission at the time of the collision.

The following are the facts according to appellant Nationwide. “On or about February, 1986, Burris M. Holbrooks, Appellee herein, purchased a 1978 International truck. . . . That next month, Mr. Holbrooks entered into a lease agreement with Appellee, Apache Transport, Inc., to lease the 1978 International truck to Apache Transport. . . .

“On or about the first of February, 1987, Defendant Burris M. Holbrooks hired a driver by the name of Robert F. Campana to drive one of Holbrooks’ trucks for him, said truck being under lease to Apache Transport, Inc. . . .

“Around lunchtime on February 13, 1987, Robert F. Campana went to the home of Burris Holbrooks, picked up one of Holbrooks’ trucks (the 1978 International), and drove it to Apache Transport, Inc. in Monroe, Georgia where he was to take a road test and a written test pursuant to Georgia law and I.C.C. regulations. . . .

“Between 2:30 p.m. and approximately 5:45 p.m., Driver Robert Campana took the road test and a written test at Apache Transport and completed all appropriate paperwork to be approved to drive Holbrooks’ tractor pursuant to the lease between Holbrooks and Apache, I.C.C. regulations and Georgia law. . . .

“At approximately 5:45 p.m. on February 13, 1987 Tommy Wiggins, an employee of Apache Transport, gave Robert Campana an assignment to pick up a loaded trailer in Atlanta on the following Sunday and deliver it to Louisville, Kentucky by 8:00 a.m. the following Monday. . . . Campana left Apache Transport driving . . . Holbrooks[’] tractor to his home in Westminister, South Carolina without a trailer attached (i.e., ‘bobtailing’) at approximately 6:00-6:15 p.m. on the evening of February 13, 1987 with nothing left to do for Apache Transport, Inc. until he departed for Louisville, Kentucky. . . . The purpose for which Robert Campana left Apache Transport was to go home, eat supper with his wife and child, get some sleep and pick up some bed sheets and a CB radio. . . . No one at Apache Transport, Inc. attempted to instruct Campana as to how he should schedule his time between Friday afternoon and Monday morning. . . .

“Campana never asked anyone at Apache Transport whether he could drive the 1978 truck to his home; he simply told Warren Greer [Apache Transport’s dispatcher] where he was going because Burris Holbrooks had already given Campana permission to keep the truck at home. . . .

“During the evening hours of February 13, 1987, the 1978 International tractor driven by Robert F. Campana and owned by Burris M. Holbrooks collided with another vehicle in Franklin County, Georgia while Robert Campana was en route home. . . .”

Beyond this statement of facts by Nationwide, the record establishes without genuine issue that after Campana took the road test at Apache Transport’s facilities in Monroe, he had no way to get to his home other than to drive the truck. According to Apache Transport’s dispatcher, Campana asked Apache Transport’s dispatcher if he could drive the truck home to pick up sheets and have dinner, and the dispatcher told him, “I [don’t] care”; when Campana asked him when he should pick up the load in Atlanta for delivery at Louisville, Kentucky Monday morning, the dispatcher told him “the location where the trailer is at Meade Packaging is open 24 hours a day seven days a week.” The dispatcher testified, “I didn’t care when he picked it up as long as he was in Louisville, Kentucky, Monday morning at 6:00 a.m. He then told me that he was going home ... to be with his wife and eat dinner. And [he] asked me could he pick it up over the weekend. I said yes. And then I reiterated again I don’t care when you pick it up. . . .” Apache Transport’s dispatcher stated he “personally [had no] objection” to Campana driving the truck to his home in Toccoa, that he knew Campana wanted to go home and see his wife and have dinner and get some rest, and that he did not object to that plan and did not tell Campana he could not drive the truck to his home.

Moreover, the president of Apache Transport, and owner of all the company stock, testified in deposition that nothing would be unusual about a driver going to his home before he left on an actual trip to pick up the trailer, except that “he [would be] doing it at his own discretion [and] not at ours.” Apache Transport’s president also testified that so far as he knew the company did not attempt to restrict Campana from driving the truck home that afternoon; that no effort was made by Apache Transport to limit where Campana drove the truck over the weekend or tell him he could not drive him home, although the company could have restricted his use if it had wanted to.

Holbrooks, the owner/lessor of the truck testified it was ordinary practice for drivers to take the trucks home with them when they were not in use by the company, and that the drivers “always took them home with them if a truck didn’t need working on,” because Holbrooks had no need for the trucks at his house and, “They’re driving for Apache. They need the truck with them.”

Appellant Nationwide contends that being outside the scope of his employment with Apache Trucking, Campana’s driving the vehicle home was not with Apache Transport’s permission, principally because no one specifically told him how he should schedule his time; no one told him to drive it home; and he never asked permission to do so but simply announced he would do so. Nationwide contends, in re Western Cas. &c. Co. v. Strozier, 67 Ga. App. 41 (1) (19 SE2d 433), that wherever the employee is outside the scope of his employment he necessarily is outside the employer’s consent or permission. Obviously, however, this cannot be true where the employer has given the employee permission to use the vehicle outside the strict scope of employment. In Western Cas. &c. Co., the employee was under an express prohibition of use which outweighed any general implied consent to use the truck; since the particular use was expressly prohibited, it assuredly was not used “with permission.” The statement in the case that “the implied consent for the use of the truck by an employee extends only to the scope of the employment” would logically apply at best only where there is no particular express or implied consent to use it outside the strict scope of employment.

In this case, even assuming Campana’s driving the truck home was outside the scope of his employment, without any issue Campana was at the very least in fact given implied permission, and was authorized to drive this truck home; for he fully advised the company dispatcher that was what he intended to do and this plan was in fact approved, he was not told he could not do it, and no restrictions were placed on his expressed intent driving it home. In the plainest sense of the word “permission,” he was in fact permitted to drive the truck home because Apache Transport knowingly allowed him to do it. That he might have done so, in the words of Apache’s president, “at his own discretion,” does not make it any the less an act permitted by Apache Transport; to the contrary, these words prove he had permission to use his discretion on this point.

Nationwide’s contention that “permission” is irrelevant in this case because only one person (Holbrooks, the owner/lessor) had authority to grant Campana permission to drive the truck home, and that this endeavor was beyond Apache Trucking’s concern, is plainly without merit. Nationwide seems to be suggesting it was none of Apache Trucking’s business where Campana took this truck or what he did with it when he was not actually using it in performance of Apache’s business. We do not think Apache would make such an assertion outright, considering the strict ICC requirements for operation and continued certification of Apache’s carrier business, in particular the regulation at 49 CFR 1057.12 that the carrier’s lease must require it to have “exclusive possession, control and use of the equipment for the duration of the lease,” and to “assume complete responsibility for the operation of the equipment for the duration of the lease.” See generally Division 3, infra.

2. The trial court did not err in finding Holbrooks and Campana to be insured under Apache Transport’s policy with Nationwide. The pertinent policy provisions are: “D. WHO IS INSURED 1. You are an insured for any covered auto. 2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow except: [three exceptions not relevant here]. ... 4. The owner or anyone else from whom you hire or borrow a covered auto which is not a trailer is an insured while the covered auto: a. Is being used exclusively in your business as a trucker. ... 5. Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability. . . .” (Emphasis supplied.)

Nationwide argues that Item D (4) limits or excludes coverage of a vehicle driven “bobtail,” i.e., with trailer removed, unless it was “being used exclusively in [Apache Trucking’s] business as a trucker,” and therefore that D (4) is a limiting or “narrowing” provision that removes any coverage of Campana as a permissive user under Item D (2).

Citing Aetna Cas. &c. Co. v. Fairchild, 620 FSupp. 1245, the trial court held that D (4) is not an exclusionary or limiting provision; that if a person falls within any one of the five subsections re “Who is Insured,” which include D (2) and D (4), then such person is an insured under the policy.

We agree with the assessments of the trial court and Aetna Cas. &c. Co. v. Fairchild, but for stronger reasons than they offer. Nationwide contends Item D (4) “in clear and precise language, narrows [permissive use] coverage where the hired auto is not a trailer [to one that is used] exclusively in the business of Apache as a trucker.” But the clear and precise language of D (4) proves that it does not serve to limit otherwise permissive use if the driver is “bobtailing,” because it does not contain the word “only.” While clearly it says the described person driving a vehicle that is not a trailer is covered if the vehicle is being used exclusively in Apache’s trucking business, it does not say such person is covered only if the vehicle is used exclusively in Apache’s business. Therefore, there is no syntactic basis upon which to conclude Item D (4) limits, narrows, or excludes the permissive use coverage granted by Item D (2).

More to the point, however, is a fact overlooked by all, which is that Item D (4) is not a provision targeted at all persons, including permissive users, who drive a covered vehicle “bobtail.” Instead it extends coverage to and refers only to "[t]he owner or anyone else from whom you hire or borrow a covered auto which is not a trailer. ...” (Emphasis supplied.) Thus, D (4) might apply to the owner/lessor Holbrooks (but he is insured under Item D (5), and as we indicated above, D (4) would not by its terms serve to make him an insured only if he used it exclusively in Apache’s trucking business); but it does not apply at all to Campana because Apache did not hire or borrow the vehicle from Campana.

Under the clear terms of the provisions themselves, we find it unnecessary to advert to rules of construction of insurance contracts used in the case of ambiguities or in interpreting exclusions. Campana is clearly an insured under D (2), for he used the vehicle with Apache’s permission, and Item D (4) does not apply to him at all, and certainly not to exclude him. The owner Holbrooks is also an insured under Item 5 to the extent he is liable for the conduct of the insured Campana; but Item D (4) in particular does not exclude him because it does not provide that an owner is insured only if a bobtail vehicle is used exclusively in Apache’s business as a trucker.

3. The third issue does not directly involve insurance coverage. The appellees contend, and the trial court found, that Apache Trucking is vicariously liable for the conduct of Campana, owing to certain statutes and regulations of the ICC which require the carrier to “ ‘assume complete responsibility for the operation of the equipment for the duration of the lease.’ ” Price v. Westmoreland, 727 F2d 494 (5th Cir. 1984); Simmons v. King, 478 F2d 857 (5th Cir. 1973). Georgia courts have found federal law persuasive upon the issue of the effect of ICC laws and regulations upon motor carrier liability. See Farmer v. Ryder Truck Lines, 245 Ga. 734 (266 SE2d 922). In Price, supra at 496, in finding the carrier liable as a matter of law, the federal court said: “In order to protect the public from the tortious conduct of judgment-proof operators of interstate motor carrier vehicles, Congress in 1956 amended the Interstate Common Carrier Act to require a motor carrier to assume full direction and control of leased vehicles. 49 USC §§ 10927 (a) (2) and 11107 (a) (4). . . . Pursuant to these regulations the ICC has promulgated written lease requirements for interstate carriers . . . which require the carrier lessee to ‘assume complete responsibility for the operation of the equipment for the duration of the lease.’ 49 C.F.R. § 1057.12 (d) (1). These regulations are valid and constitutional, [cit.] In Simmons v. King, [supra at pp. 860, 866], we held that they preempt state law in tort actions in which a member of the public is injured by the negligence of a motor carrier’s employee while operating an interstate carrier vehicle, observing that ‘it is critical that ICC regulations and the lease mandated by them have supreme controlling significance. . . .’ Simmons held that ‘the ICC carrier’s liability for equipment and drivers covered by leasing arrangements is not governed by the traditional common law doctrine of master-servant relationships and respondeat superior.’ 478 F2d at 867. The Simmons court went on to hold that under the statutorily mandated terms of the lease, the carrier lessee had ‘assumed exclusive possession, control, and use of the vehicle and responsibility to the public, [the driver] became his statutory employee, and as such [the carrier] was vicariously liable as a matter of law for the negligence of [the driver].’ ”

Apache’s lease places upon it the legal obligation to maintain liability insurance for the protection of the public. Provisions similar in language and identical in design to the federal law exist in Georgia law. At OCGA § 46-7-12, the Georgia Motor Carriers Act provides: “(a) No certificate [of public convenience and necessity required for operation of a motor carrier in this state, see § 46-7-3 et seq.] shall be issued or continued in operation . . . [i]n cases of vehicles transporting freight, [unless] the applicant or holder shall give bond, with adequate security ... for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants, or its agents. . . . (c) The commission may, in its discretion, allow the holder of such certificate to file, in lieu of such bond, a policy of indemnity insurance in some indemnity insurance company authorized to do business in this state, which policy must substantially conform to all of the provisions of this article relating to bonds. Such policy must also be approved by the commission. . . . (e) It shall be permissible under this article for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.”

Decided July 5, 1988.

J. Edward Allen, Sandra M. Baumwald, for appellant.

Alton M. Adams, Allen Broxton, Andrew J. Hill, Jr., John A. Dickerson, Albert E. Jones, Stephen E. Beard, Rebecca Frazier, Dennis J. Webb, Samuel G. Church, George W. Wills, Jr., T. Michael Tennant, for appellees.

Under the ICC laws and regulations, the driver Campana became the statutory employee of Apache Trucking, and Apache Trucking is fully responsible to the public for the operation of the truck he drove. Farmer v. Ryder Truck Lines, supra, pp. 736-739. Under the Georgia code section just quoted, we are satisfied the public policy of this state independently intends the carrier to bear full responsibility to the public for the operation of this truck. The trial court did not err in finding Apache Trucking to be vicariously liable as a matter of law for the actions of its statutory employee, Campana (Farmer v. Ryder Truck Lines, supra), in operation of this truck. Curtis, Inc. v. Kelley, 167 Ga. App. 118 (305 SE2d 828) does not require a contrary result, for it does not consider this issue.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    76512.
    ANDERSON v. THE STATE.
    (371 SE2d 261)
   McMurray, Presiding Judge.

Defendant was convicted of burglary and sentenced to serve 20 years in prison. He appealed. Held:

1. The trial court did not err in admitting defendant’s voluntary statement (“That he usually does not do burglaries.”) into evidence. Contrary to defendant’s contention, the statement did not place defendant’s character in issue. It did not necessarily connote the commission of other criminal activity. Even if the language did indicate that defendant committed other offenses, the statement was admissible. Lord v. State, 157 Ga. App. 104, 105 (2) (276 SE2d 153).

2. Defendant’s second enumeration of error is controlled by Scott v. State, 170 Ga. App. 409, 412 (5) (317 SE2d 282). The enumerated error is without merit.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided July 5, 1988.

Rise H. Weathersby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Doris L. Downs, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.


author: Deen, Presiding Judge.

text:
    76889.
    BROWN v. THE STATE.
    (371 SE2d 257)
   Deen, Presiding Judge.

The appellant, Gordon Brown, a/k/a Han Peter Loris, was convicted of trafficking in cocaine and possessing marijuana in violation of the Georgia Controlled Substances Act. On appeal, he contends that the trial court erred in denying his motion to suppress the cocaine and marijuana seized during the search of the vehicle he was driving.

During the early morning hours of April 9, 1987, a Gordon County deputy sheriff observed Brown weaving off the right side of the road on 1-75 and speeding 67 m.p.h. in a 55 m.p.h. zone. The deputy stopped Brown’s vehicle, and noticed a “loud” odor of alcohol when Brown exited the car. Brown’s speech was slurred and he kept leaning up against the back of the car. Brown produced the car’s registration, which was from Illinois under the name of John Ortez, whom Brown claimed to have just met in Florida. The deputy contacted Ortez by radio, at which time Ortez denied knowing Brown or owning the car. The deputy requested Brown’s permission to search the vehicle, but Brown refused. The deputy then officially placed Brown under arrest for driving under the influence and possible auto theft, advised him of his implied consent rights, and requested that he submit to a blood test, but Brown also refused to take any test.

Because Brown was under arrest and because of the question of ownership of the vehicle driven by Brown, the deputy decided to have the vehicle towed to the Sheriff’s office. While awaiting arrival of the tow truck, he conducted a preliminary search of the passenger compartment, and found a marijuana cigarette in the ashtray and a bag under the armrest in which there were some plastic bags containing marijuana. He then placed a call requesting a “dope dog,” which was eventually transported to the Sheriff’s office, where it sniffed the vehicle and responded in the area of the trunk. The officer then went to a magistrate, obtained a search warrant, and later searched the trunk and found 2 kilos of cocaine in a canvas clothing bag. Some cocaine was subsequently discovered in a sports jacket in the back seat of Brown’s vehicle and behind the back seat of the patrol car in which Brown had been transported. Held:

1. Brown contends that there was no probable cause to arrest him for driving under the influence, thus rendering invalid the search of the car incident to that arrest. “ ‘ “Probable cause exists when the facts and circumstances within the officer’s knowledge are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime has been committed.” ’ [Cit.]” Harley v. State, 183 Ga. App. 253, 254 (358 SE2d 653) (1987). In the instant case, Brown’s vehicle was seen weaving off the road by the arresting officer; there was a strong odor of alcohol when Brown exited the car; Brown’s speech was slurred, and he was unsteady on his feet. These facts provided probable cause for Brown’s arrest for driving under the influence. Because Brown’s arrest was lawful, the search of the passenger compartment was permissible, as incident to that arrest. Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986).

2. Relying upon Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983), Brown also contends that the impoundment and inventory search of his vehicle was improper because the arresting officer considered no alternative to impounding the vehicle. Brown’s “reliance upon Strobhert v. State, [cit.], is misplaced. In Strobhert, the defendant was not operating or occupying the vehicle that was impounded and searched; at the time of his arrest, he merely was standing next to the car, drinking a beer in a park in violation of a county ordinance. The vehicle was unconnected to the arrest.” Oswell v. State, supra at 35.

3. Lastly, Brown contends that use of a “dope dog” prior to the issuance of a search warrant which limited the search to marijuana was overly intrusive under Lockhart v. State, 166 Ga. App. 555 (305 SE2d 22) (1983), and the discovery of the cocaine was not inadvertent and thus should have been suppressed because it was not within the purview of the search warrant.

In Lockhart, a search warrant only for untaxed whiskey was obtained, but the executing police officer took along a narcotics dog that alerted him to the presence of marijuana in the home. Under those circumstances, this court correctly held that the search exceeded the scope of the warrant, but Lockhart obviously is inapposite here.

On the application for the search warrant, the deputy had indicated his belief that “controlled substances or marijuana” would be found in the vehicle. The actual search warrant merely identifies the subject matter for seizure as marijuana. From these two facts Brown makes the unwarranted assumption that the deputy’s application had been rejected for any controlled substance other than marijuana. Even if that were the case, the warrant authorized search of the car trunk and canvas bag which contained the cocaine, thus providing no basis for disregarding the discovery of that cocaine.

Decided July 5, 1988.

Donald L. Ferguson, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76901.
    HOLLOWAY v. THE STATE.
    (371 SE2d 259)
   Deen, Presiding Judge.

Ulysses Holloway was granted an out-of-time appeal by the trial court from his convictions of rape, two counts of aggravated child molestation and burglary.

The evidence showed that the twelve-year-old victim was in Savannah, Georgia, with her family on August 1, 1986, to attend a religious meeting. The family and other participants in the meeting were staying in a motel, and the victim and her nine-year-old sister were staying iñ a room next to their parents’ room. About 2:00 a.m. she heard a knock on her door and, believing it to be her father because the family was planning to leave for home early in the morning, opened the door. Appellant forced his way into the room, pushed her against the wall, locked the door and ordered her to undress. She refused and he forcibly removed her clothing. He repeatedly raped the child while her sister slept on the next bed. When he finally fell asleep on top of her, she managed to escape from beneath him, waken her sister, and fled nude to her parents’ room, where she screamed and beat upon the door to arouse them. The parents alerted other church members who were at the motel, and several men came to assist the victim’s father gain entry to his daughter’s locked motel room. The men forced the door open and found appellant lying face down, asleep on the victim’s bed. At trial appellant was positively identified by four men who apprehended him. The victim’s mother testified that he called their home from jail, admitted committing the offenses against her daughter, apologized and requested that charges be dropped.

1. Appellant first contends that the trial court erred in allowing into evidence a prior conviction of simple battery, a misdemeanor, as a similar transaction to the rape charge.

The State filed a notice of intent to use evidence of similar transactions, including the battery conviction. A hearing was conducted by the trial court outside the presence of the jury, and the court ruled the evidence was admissible. The evidence showed that the victim, who asked the defendant for a ride home, was transported by him out of Chatham County to a nearby county, where he raped her before returning to Chatham County, where he attempted to rape her again. She was nude when she escaped and flagged down a police cruiser with her panties. Venue for the rape prosecution apparently did not lie in Chatham County, and the rape charge was eventually dismissed because of the venue problem.

Evidence of an independent crime is admissible if two conditions are satisfied: the defendant is shown to be the perpetrator of the independent crime, and there is a similarity between the independent crime and the offense charged such that proof of the former tends to prove the latter. Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) (1983). Evidence of a similar crime is admissible to show identity, motive, plan, scheme, bent of mind, and course of conduct. Head v. State, 246 Ga. 360, 364 (271 SE2d 452) (1980). It is admissible to show the defendant’s lustful disposition and to corroborate the victim’s testimony. Milner v. State, 180 Ga. App. 97, 101 (348 SE2d 509) (1986). “[I]t is not essential for admissibility that the similar crime resulted in a conviction. [Cit.]” Coalter v. State, 183 Ga. App. 335, 337 (358 SE2d 894) (1987). The evidence of the similar crime was clearly admissible.

2. Appellant testified on his own behalf at trial and claimed that he was at the motel where the crimes occurred searching for a friend from whom he could borrow some money. He further claims that while he was there the victim called to him, and that he approached her and learned that she and her sister “wanted dope.” He claims that some inexplicable force caused him to knock on her door, and when she opened it she insisted that he come inside. He testified that he could not remember subsequent events because of his intoxication. On cross-examination he repeatedly contradicted his testimony, and when confronted with his contradictory statements he either refused to answer questions, argued with the prosecutor, or spoke directly to the judge in a contemptuous manner. The prosecutor asked the court to impose contempt sanctions on him because of his behavior. After conferring with counsel, he continued to refuse to answer. The court sua sponte held: “Let the record show that the defendant refuses to answer questions on cross-examination, and for that reason, the court is going to strike all of his testimony.” The prosecutor then requested the court to vacate its ruling, and the court agreed to do so if the State agreed to discontinue its cross-examination. The State ceased its examination of the defendant, and the court vacated its ruling. We therefore find no merit in appellant’s contention that the court below erred in striking his testimony. Appellant’s further contention that the court’s action “inflammed the minds of the jurors” is without any support in the transcript and is not supported by argument or citation to authority. It is therefore deemed to be abandoned. Court of Appeals Rule 15 (c) (2).

Decided July 5, 1988.

Kenneth H. Cail, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

3. Contrary to appellant’s assertion, the transcript shows that the court charged the jury as to the limited purpose for which evidence of similar transactions is admitted. Appellant also claims that limiting instructions should have been given to the jury at the time the evidence of the similar transactions was admitted into evidence.

As appellant made no request to charge, he was not entitled to a limiting instruction either at the time the evidence of the similar crimes was admitted into evidence or in the general charge. Stevens v. State, 167 Ga. App. 744 (3) (307 SE2d 535) (1983). The court, however, did give limiting instructions in its general charge, and we find no error.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Benham, Judge.

text:
    76310.
    THIRD CENTURY, INC. v. MORGAN.
    (371 SE2d 262)
   Benham, Judge.

Third Century, Inc., bases this interlocutory appeal from the denial of its motion for summary judgment on three grounds: (1) failure to grant summary judgment to appellant as to a claim brought against it by appellee R. L. Morgan; (2) failure to grant appellant summary judgment on its counterclaim against appellee; and (3) failure to grant summary judgment based on appellee’s failure to file responses to appellant’s motion for summary judgment.

This dispute arose over a lease agreement for computer equipment and software. The facts viewed in a light most favorable to the party opposing the motion for summary judgment (Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962)), show as follows: In August 1985, Mrs. Stewart, an employee at appellee’s business, was contacted by a representative of Computer Command, Inc., about the purchase of a computer for use in appellee’s automotive parts business. Stewart and Computer Command agreed on the purchase of a Kaypro 16 computer, an Okiadata 91 printer, and Super X software. They further agreed that the arrangements for financing would be under a lease with option to buy agreement with Third Century, Inc., which would buy the hardware and software from Computer Command and lease them to appellee. The lease agreement provided for appellee to make an initial payment of $304.68 and 36 equal installments of $158.43. Shortly after appellee accepted delivery of the hardware and software and began operation thereof, appellee complained to Computer Command that the Software was not performing as anticipated. The evidence is unrefuted that the hardware functioned properly, and that if there was a failure in the performance, it was in the Super X software only. The maker of the Super X software went bankrupt, and Computer Command made arrangements for students at a local vocational-technical school to make modifications of the software to perform the functions appellee desired. Appellee paid Computer Command additional amounts totaling $400 for modifications of the software, which modifications were not successful, and appellee was unable to use the software as had been expected. Appellee then brought this suit against Computer Command and Third Century. In addition to its answer, Third Century filed a counterclaim for the amount outstanding on the lease agreement and costs, including attorney fees. Appellant’s motions for summary judgment as to its counterclaim and appellee’s initial claim were denied, and this interlocutory appeal followed.

1. Appellant contends that the trial court erred in denying its motion for summary judgment as to appellee’s claim. We agree. In his claim, appellee contends that he was damaged due to the failure of the equipment to operate as expected. Resolution of this first enumeration of error is determined by the contract itself which provides, inter alia, as follows: “WARRANTIES: Lessor will request supplier to authorize Lessee to enforce in its own name all warranties, agreements or representations, if any, which may be made by the supplier to Lessee or Lessor, but Lessor itself makes no express or implied warranties as to any matter whatsoever, including, without limitation, the design or condition of the equipment, its merchantability or its fitness for any particular purpose, its quality, capacity or workmanship, patent infringements or latent defects, or compliance of the equipment with the requirements of any law, regulation, specification or contract relating thereto. Lessee understands and agrees that neither the supplier nor any salesman or other agent of the supplier is an agent of Lessor. No salesman or agent of the supplier is authorized to waive or alter any term or condition of this Lease, and no representation as to the equipment or any other matter by the supplier, shall relieve Lessee of the obligation to pay rent or any other obligation under this Lease.”

In the absence of fraud, if the parties properly execute a contract that contains a provision that disclaims all warranties, expressed and implied, and the contract goods are delivered and received, the supplier is entitled to summary judgment on a claim brought against it which alleges a failure of consideration. United States Leasing Corp. v. Jones Pharmacy, 144 Ga. App. 26 (240 SE2d 300) (1977). Such is the case here. Since appellant, through the use of disclaimers, relieved itself of responsibility to appellee, and appellee contractually agreed to these disclaimers, appellant was entitled to summary judgment as to appellee’s claim, and the trial court erred in not granting summary judgment.

2. Appellant contends it was entitled to summary judgment on its counterclaim for the balance due on the lease agreement, as well as interest and attorney fees. The lease agreement provided that interest “at the highest legal contract rate” would be imposed upon delinquent rental payments from the due date until payment and that the lease would be responsible for “reasonable attorneys’ fees and court costs” should the lessor employ an attorney to enforce any of the terms of the lease agreement. The lease agreement further provided that: “If (a) Lessee shall default in the payment of rent or in making any other payment hereunder when due ... or (c) Lessee shall default in the performance of any other covenant herein and such default shall continue for 5 days after written notice thereof to Lessee by Lessor . . . then, if and to the extent permitted by applicable law, Lessor shall have the right to exercise any one or more of the following remedies: (1) to declare the entire amount of unpaid total rent for the balance of the term of this Lease immediately due and payable. . . .”

The parties entered into the lease agreement in August 1985 and appellee made the monthly payments through October 1986, leaving an outstanding balance of $3,327.03. Unless the lease is a “disguised secured transaction,” (Mejia v. C & S Bank, 175 Ga. App. 80, 81 (332 SE2d 170) (1985)), thus bringing the provisions of Article 9 of the Uniform Commercial Code into play, the parties’ conduct is governed by the terms of the lease. Citicorp Industrial Credit v. Rountree, 185 Ga. App. 417, 420 (364 SE2d 65) (1987).

While the lease agreement contains several provisions evidencing a security agreement (see, e.g., Mejia, supra) as well as an option to purchase the equipment upon the completion of the lease’s 3-year term (see OCGA § 11-1-201 (37) (a)), “it is commonly held that ‘the best test’ for determining the intent of an agreement which provides for an option to buy, ‘is a comparison of the option price with the market value of the equipment at the time the option is to be exercised. Such a comparison shows whether the lessee is paying actual value acquiring the property at a substantially lower price.’ [Cit.] . . . [I]f, upon compliance with the terms of the ‘lease,’ the lessee has an option to become the owner of the property for no additional or for a nominal consideration, the lease is deemed to be intended for security. See OCGA § 11-1-201 (37). In the instant case, the option purchase price was the [fair market value of the equipment] at the end of the term of the lease. Any determination of whether ‘consideration’ is ‘nominal’ must be made on a case by case basis and is, at best, difficult. However, we find that in the present case, the terms of the lease required payment of more than a ‘nominal’ price to exercise the option to purchase the [equipment], thus indicating that the agreement was a true lease. [Cit.]” Mejia v. C & S Bank, supra at 82. Since the parties’ agreement was a lease agreement and not intended to evince a secured transaction, the lease provisions governed the rights of the parties (Citicorp v. Rountree, supra), and appellant had the right to accelerate the balance due on the lease upon appellee’s default. The undisputed evidence presented to the trial court was that the balance due on the lease was $3,327.03. The trial court should have granted summary judgment to appellant in that amount. See Mejia v. C & S Bank, supra.

On appeal, appellant seeks return of the equipment as well as the lease’s outstanding balance. While the lease contemplates such a remedy, appellant sought no such relief in any pleading. Therefore, it was not error to deny appellant possession of the equipment.

3. In order to collect attorney fees upon a note or other evidence of indebtedness, a creditor must comply with the notice requirements of OCGA § 13-1-11 (a) (3). “Notice shall (1) be in writing, (2) to the party sought to be held on the obligation, (3) after maturity, (4) [stating] that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced, and (5) [stating] that the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees.” General Elec. Credit Corp. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978). A creditor may comply with the notice requirements of OCGA § 13-1-11 (a) (3) by attaching a copy of the note or evidence of indebtedness to the pleading. See Carlos v. Murphy Warehouse Co., 166 Ga. App. 406, 408 (304 SE2d 439) (1983). Although appellant attached a copy of the lease agreement to its counterclaim, its prayer for judgment sought “reasonable attorney fees in accordance with said lease agreement and the cost of this action.” The notice fails to inform the debtor that it has 10 days from receipt of the notice within which to pay principal and interest without incurring liability for attorney fees. In light of this deficiency, the trial court did not err in denying appellant attorney fees. Clark v. Gen. Motors Acceptance Corp., 185 Ga. App. 130 (1) (363 SE2d 813) (1987).

4. Appellant contends it is also entitled to summary judgment due to appellee’s failure to adequately respond to the motion for summary judgment. “The opposing party in a summary judgment proceeding is under no duty to present counter evidence in opposition to the motion for summary judgment until the moving party has produced evidence demanding judgment. [Cit.]” Peoples Bank &c. v. Austin, 159 Ga. App. 223 (2) (283 SE2d 81) (1981). This enumeration is without merit.

Decided July 6, 1988.

Terry A. Dillard, Joseph E. East, for appellant.

Douglas L. Gibson, for appellee.

Judgment affirmed in part and reversed in part.

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


author: Deen, Presiding Judge. Pope, Judge, Sognier, Judge,

text:
    76327.
    STANFIELD v. STANFIELD.
    (371 SE2d 265)
   Deen, Presiding Judge.

Mary Ann Stanfield brought suit against Douglas Stanfield and Ruth Bowles seeking damages for injuries she incurred while a passenger in an automobile driven by Douglas Stanfield. The trial court granted Douglas Stanfield’s motion for summary judgment and this appeal ensued.

The trial court granted the appellee’s motion for summary judgment on the basis of the applicability of the interspousal tort immunity doctrine to the parties. The record reveals that on January 20, 1985, the date of the accident in question, the appellant and the appellee were wife and husband. At the time of filing the instant suit, the appellant was divorced from the appellee. In her affidavit filed in response to appellee’s motion for summary judgment, the appellant stated “[i]n April of 1985, I filed a divorce action against [appellee]. He had physically and mentally abused me and our children for quite some time. These abuses commenced long before the accident on January 20, 1985.” She also averred that “[t]he current lawsuit, or the possibility of a lawsuit, did not in any way contribute to the dissolution of my marriage. . . . I am in no way conspiring or colluding with my former husband in any way[,] shape or form. . . .” Held:

In Wallach v. Wallach, 94 Ga. App. 576, 578 (95 SE2d 750) (1956), where the parties were married at the time of the automobile collision but divorced before the subsequent lawsuit was filed, this court followed the general rule that “ ‘after divorce one of the former spouses cannot maintain an action against the other for a personal tort committed during coverture. . . .’’’In granting summary judgment for the defendant former husband in the instant case, the trial court properly relied upon Wallach, since it has never been overruled and has, in fact, been cited with approval by the Supreme Court. See Robeson v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) (1981). The appellant contends that because the status of the parties’ marriage at the time of the accident was so acrimonious, the traditional policy reasons for applying interspousal tort immunity were absent. However, only in extreme factual situations will the appellate courts deviate from a strict application of the general rule regarding interspousal immunity. In Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985), for example, this court found a jury question where the husband mortally shot his wife and then committed suicide. In Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984), at the time of the injury the husband and wife had been separated for ten years, and the husband was living with another woman. As noted in Yates v. Lowe, 179 Ga. App. 888, 889 (348 SE2d 113) (1986), these cases “may be distinguished on their facts because each involves a lengthy separation or act of violence which clearly evidences the termination of marital harmony to a degree sufficient to deter any reasonable apprehension of collusion between the spouses or their estates.” The instant case quite clearly is not in that category of cases, and the trial court correctly granted summary judgment for the appellee.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley, Pope, Beasley and Benham, JJ., concur. Pope, J., also concurs specially. Sognier, J., dissents.

Pope, Judge,

concurring specially.

While I fully concur with the majority opinion, I am compelled to note a further distinction between the facts of this case and those of recent cases in which the Georgia courts have looked to the status of the marriage to determine whether interspousal immunity would bar an action by one spouse against the other. The only cases in which our courts have held the doctrine of interspousal immunity would not bar an action by one spouse (or the spouse’s representative) against another involve situations where the marriage ended in the death of one or both spouses at the time of the alleged negligent act (see Trust Co. Bank v. Thornton, 186 Ga. App. 706 (368 SE2d 158) (1988), and Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985)) or where the parties had not lived together as husband and wife for an extended period of time so that, de facto, no marital relationship existed at the time of the alleged negligent act (see Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984)). In this case, appellant wife’s sworn statement concerning a history of abuse predating the accident stands undisputed. However, the record contains no evidence to indicate the parties were not living together or otherwise involved in an ongoing marital relationship at the time of the accident, however acrimonious it may have been. In other words, for purposes of applying the inter-spousal immunity doctrine, there is a significant difference between, as in the case at hand, a bad marriage and, as in the cases cited above, a non-existent marriage. Because the parties to this lawsuit were married at the time the alleged negligent act occurred, the inter-spousal immunity doctrine bars the wife’s action.

Sognier, Judge,

dissenting.

Despite unrebutted evidence adduced by the responding party on motion for summary judgment that no marital harmony existed at the time of the accident and that the instant suit was not instituted for collusive purposes, the majority finds that the evidence here is not sufficient to create a jury question whether the doctrine of inter-spousal tort immunity is applicable. Since the husband was not entitled to summary judgment either as a matter of law or as a matter of fact, I must respectfully dissent from the majority’s finding.

I do not agree with the majority that the immunity rule is automatically applicable as a matter of law except in “extreme factual situations” where the couple is dead or has been living separately in excess of 10 years. The Supreme Court in Harris v. Harris, 252 Ga. 387 (313 SE2d 88) (1984) held that the immunity rule could be abrogated where, “realistically speaking, no ‘marital harmony’ [existed] to be protected by application of the interspousal immunity rule.” Id. at 388. The dissenting opinion in Harris amply demonstrates that the Supreme Court was aware of evidentiary problems its holding might create: “In this case, the parties have been separated for several years. What if they were separated but one year? What if they were separated but one day? Or, what if one spouse is blissfully unaware of deep trouble within the other spouse, who remains silent until after the actionable deed or word or gesture?” Id. at 389. Nevertheless, the Supreme Court reversed a grant of summary judgment to one spouse in Harris because “the reasons for the immunity rule simply do not exist here.” Id. at 388. Nothing in Harris or the case law traditionally applying the doctrine of interspousal tort immunity, see Robeson v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) (1981), mandates the application of the doctrine in the case sub judice.

“The cardinal rule on summary judgment is to ascertain if there is an issue of fact, not to resolve disputed fact issues. [Cit.]” Shankweiler v. McCall Procter/Densham, 183 Ga. App. 257, 258 (358 SE2d 657) (1987). In the case sub judice, the only factual reason for applying the immunity rule is evidence that the Stanfields lived as husband and wife at the time of the accident. No evidence rebuts the wife’s affidavit that the physical and mental abuse she suffered at the hand of her husband had destroyed all marital harmony between the couple long before the accident; no evidence hints at a collusive or friendly lawsuit between the Stanfields. This court held in Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985) that the question whether marital harmony realistically existed between the wife and husband or whether there was any collusive activity between them which would justify application of the doctrine of interspousal tort immunity was a matter properly left for jury determination. It is an equally appropriate matter here for jury resolution and thus, under the authority of Harris and Smith, I would reverse the trial court’s judgment herein.

Decided July 6, 1988.

Anthony N. Perrotta, for appellant.

Malcolm S. Murray, Sr., David S. Thomson, for appellee.


author: Sognier, Judge.

text:
    76174, 76175.
    DORSEY et al. v. THE STATE.
    (371 SE2d 207)
   Sognier, Judge.

Appellants James Dorsey and Michael Dorsey were tried jointly, charged with trafficking in cocaine, possession of marijuana with intent to distribute, and possession of cocaine with intent to distribute. James Dorsey was convicted of trafficking in cocaine and possession of marijuana with intent to distribute. Michael Dorsey was convicted of possession of cocaine with intent to distribute. Both appeal.

1. Appellants contend the evidence is not sufficient to support their convictions. The evidence disclosed that pursuant to a search warrant authorizing the search of an apartment leased to Michael Traylor, a co-defendant, police went to the apartment, knocked, announced that they were police officers and kicked in the door. Traylor and appellant James Dorsey were standing in the area between the living room and the kitchen, and two loaded handguns were lying on a counter separating the two rooms. Traylor grabbed one of the guns but fell backward and was subdued by the police. James Dorsey took no action but was handcuffed and placed under arrest. During the ensuing search of the apartment, a briefcase containing approximately a pound and a half of cocaine, and an insurance identification card belonging to James Dorsey, was found in a closet in the left rear bedroom. In the same closet police found several assorted bags with cocaine residue; scales; $139 cash and two rolls of coins; and a plastic bag with approximately eight or nine pounds of marijuana. In the same bedroom they found an automatic pistol in a dresser drawer; $2,037 in the same dresser; a .357 Magnum pistol under the bed; and $1,068 at the foot of the bed. Two small packets of cocaine were found in a leather jacket in the living room, which James Dorsey acknowledged belonged to him. Three more packets of suspected cocaine were found in a kitchen cabinet.

A few minutes after the officers commenced their search, officers watching Traylor and James Dorsey heard someone at the door. Officer Bryan Stencil opened the door and appellant Michael Dorsey (unknown to the officers at the time) was at the door, with one hand up next to the door frame. Stencil identified himself, and Michael Dorsey started bringing his hand down; Stencil saw that Michael Dorsey had a gun in his hand, so Stencil knocked it out of his hand and dragged Michael Dorsey into the apartment, where he was taken into custody by other officers present. He was searched and two small packets of suspected cocaine were found in his pocket, as well as $624 in cash.

The suspected cocaine and marijuana were taken to the State Crime Laboratory for analysis. The large package of suspected cocaine found in the closet was determined to be cocaine, as was the powdery substance in the two packets taken from Michael Dorsey. The large package of cocaine weighed 574 grams, and the substance was 85.8 percent cocaine. The total weight of the powder in the packets taken from Michael Dorsey was less than one gram, as there was only a small amount of powder in the corner of each packet. The bag of green leafy substance found in the closet was determined to be marijuana and had a total weight of nine pounds and one ounce, including the weight of the plastic trash bag.

Appellant James Dorsey testified that he had stayed in Traylor’s apartment a few times and when he did so, he used the bedroom where the large amounts of cocaine and marijuana, as well as other items, were found. He denied knowledge of any of the contraband items found in the bedroom, but testified that the insurance identification card in the briefcase belonged to him. He did not know how the card got in the briefcase.

Employees of the apartment complex testified that Traylor had leased the apartment, and the lease agreement had a notation on it that James Dorsey would be staying in Traylor’s apartment from time to time.

In regard to appellant James Dorsey, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In the case of appellant Michael Dorsey, we also find the evidence sufficient to support his conviction for possession of cocaine with intent to distribute. Appellant argues that possession of less than one gram of cocaine, together with his possession of a gun and $624, is not sufficient to support his conviction. However, there is no question that two packets of cocaine were found in Michael Dorsey’s possession, and his intent was a question for the jury, not this court. Cade v. State, 180 Ga. App. 314, 316 (3) (348 SE2d 769) (1986). The court properly instructed the jury that mere possession is not sufficient to show an intent to distribute, and properly charged the jury on the lesser included offense of possession of cocaine. Since appellant Michael Dorsey’s intent was the only issue, and the jury resolved that issue adversely to his contentions, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, supra. Accordingly, it was not error to deny appellant Michael Dorsey’s motion for a directed verdict of acquittal, which he alleges as error in a separate enumeration. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).

2. Appellants contend it was error to deny their motions to sever the parties for trial. When trial commenced Michael Traylor and both appellants were being tried together. During testimony of the second State witness it became apparent to the trial court that the defenses of Traylor and appellant James Dorsey were antagonistic. Therefore, the trial court severed Traylor’s trial from that of appellants pursuant to a pretrial motion to sever which the court had denied, contingent upon what transpired at trial. Appellant Michael Dorsey argues that since most of the evidence presented related to Traylor and appellant James Dorsey, there was no way that he (Michael) could receive a fair trial. Michael Dorsey also argues that his defense was antagonistic to that of his brother, appellant James Dorsey. Michael Dorsey’s first argument is belied by the fact that although he was charged with trafficking in cocaine and possession of marijuana based on the amount of cocaine and marijuana found in the apartment, as were his co-defendants, the jury found him not guilty of these offenses, but guilty only of an offense based on the small amount of cocaine found in his pocket. In regard to his second argument, his defense could not be antagonistic to that of James Dorsey, because Michael Dorsey presented no defense.

Appellant James Dorsey argues that failure to grant a severance prior to trial denied him the effective assistance of counsel as well as a fair determination of guilt or innocence.

The grant or denial of a motion for severance in a non-capital felony case is left to the discretion of the court and its ruling will be overturned only for an abuse of discretion. Cain v. State, 235 Ga. 128-129 (218 SE2d 856) (1975). The burden is on the defendant to do more than raise the possibility that a separate trial would give him a better chance of acquittal; he must make a clear showing of prejudice resulting in a denial of due process. Id. at 129. With the exception of testimony by an expert from the crime laboratory and apartment employees who testified about Traylor’s lease, all of the State’s evidence related to the search of the apartment and events occurring during the search. Thus, the evidence was part of the res gestae and would have been the same whether defendants were tried jointly or separately. Although appellant Michael Dorsey and Traylor had the same first name, the court and counsel made certain that the witnesses specified which “Michael” they were referring to in their testimony. Thus, there was nothing confusing about the evidence, and no danger that evidence against one defendant would be used against another. Further, as stated previously, appellants’ defenses were not antagonistic, because Michael Dorsey presented no defense. Under such circumstances, we find no abuse of discretion by the trial court in denying appellants’ motions to sever the parties for trial. (James Dorsey presented no argument as to how the court’s ruling denied him the effective assistance of counsel.)

Case No. 76174 James Dorsey

3. Appellant James Dorsey alleges error in the trial court’s denial of his (Amended) Motion For New Trial — Extraordinary Motion For New Trial. The extraordinary motion for a new trial was based on an affidavit by Michael Traylor stating that all of the drugs found in his apartment belonged to him, and James Dorsey had no knowledge of the drugs. The affidavit was filed after Traylor had been tried and convicted by a jury in a separate trial. The court denied the motion on the ground that the court did not believe the affidavit because Traylor had testified at his own trial that he knew absolutely nothing about the drugs, and did not know how they got in his apartment. In a case involving the same issue we held that a trial court has a duty to evaluate the credibility of a witness who was an alleged accomplice, and if it is not reasonably apparent to the trial judge that the alleged newly discovered evidence would probably produce a different result, a new trial should not be ordered. Evans v. State, 177 Ga. App. 820, 822 (4) (341 SE2d 483) (1986). Stephens v. State, 99 Ga. 200 (24 SE 853) (1896), relied on lay appellant, does not address the issue raised here. Austin v. State, 121 Ga. App. 244 (173 SE2d 452) (1970), also cited by appellant, applies only when there is no countershowing to the truth of a confession by a third person, and thus, is not applicable to the facts in the instant case. Applying the holding in Evans to the case before us, we find no error in the trial court’s order denying James Dorsey’s extraordinary motion for a new trial.

4. Appellant James Dorsey contends the trial court erred by admitting into evidence, over objection, five guns seized during the search of Traylor’s apartment. This contention has been decided adversely to appellant in Grant v. State, 141 Ga. App. 272, 275 (2 (a)) (233 SE2d 249) (1977), wherein the court held that two guns found in the car when the defendants were arrested were admitted properly, as all circumstances connected with the arrest are proper matters to be submitted to the jury to be weighed by them for what they are worth.

5. Appellant James Dorsey alleges error in admitting into evidence over objection State Exhibits 14A and 22, the latter exhibit consisting of three bags of suspected cocaine which had not been analyzed at the crime laboratory. In regard to this enumeration Sylvia Guice, a chemist with the State Crime Laboratory, testified that Exhibit 14A contained several items which she designated at the laboratory as 1-A, 1-B, 1-C and 1-D. She analyzed item 1-A, which was the large amount of cocaine weighing almost 600 grams, and chose not to analyze three small ziplock bags containing a small amount of white powder which were part of Exhibit 14A. Guice did not analyze any contents of Exhibit 22, which consisted of the three plastic bags of suspected cocaine found in a kitchen cabinet. Appellant argues that because all items within Exhibit 14A were not analyzed, and Exhibit 22 was not analyzed at all, those exhibits were inadmissible.

In regard to Exhibit 14A, we find the fact that Guice did not examine the small bags containing a white powder to be immaterial insofar as admissibility of the entire exhibit is concerned, since the failure to analyze all items within the overall exhibit (some of which consisted of empty plastic bags) would go to the weight of the evidence, not its admissibility. Further, her testimony that item 1-A was 1.26 pounds of cocaine, with a purity of 85.8 percent cocaine, is more than sufficient to support appellant James Dorsey’s conviction of trafficking in cocaine. Thus, we find that allowing a small amount of untested substance into evidence as part of a much larger exhibit would not have influenced the jury’s verdict, and any error in allowing the three small packets to be included in the entire exhibit was harmless. See Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (1985).

In regard to Exhibit 22 the evidence was clearly inadmissible, as there was no testimony that the substance in the three small bags comprising the exhibit was cocaine. Nevertheless, for the same reasons set forth above as to admission of an untested portion of Exhibit 14A, we find the error in admitting Exhibit 22 harmless under the circumstances of this case. Id.

Case No. 76175 Michael Dorsey

6. Appellant Michael Dorsey contends it was error to deny his motion to suppress evidence seized from his person pursuant to an unlawful arrest. This contention is without merit.

Appellant was arrested after appearing at the door with a loaded handgun in his hand, hidden from view by the door frame where he placed his hand. At the time he was arrested the police were in the middle of a search and four loaded guns and a large quantity of cocaine and marijuana had been seized. Further, Michael Dorsey was unknown to the police at the time. Whether an arrest is valid depends upon whether, at the time the arrest was made, the officers had probable cause to make it, i.e., whether at the moment the facts and circumstances within their knowledge were sufficient to warrant a prudent man in believing the defendant had committed or was committing an offense. Blackwell v. State, 248 Ga. 138, 139 (2) (281 SE2d 599) (1981). OCGA § 17-4-20 (a) authorizes a warrantless arrest of a person when there is likely to be a failure of justice. The record here reveals clearly that the officers had probable cause to arrest Michael Dorsey, and due to exigent circumstances there was a likelihood there would have been a failure of justice had the police delayed their arrest of Michael Dorsey. Blackwell, supra. Since the arrest was legal, a search conducted pursuant to that arrest was authorized. Humphrey v. State, 231 Ga. 855, 858 (1) (204 SE2d 603) (1974); Robertson v. State, 161 Ga. App. 715, 716 (3) (288 SE2d 362) (1982). Accordingly, it was not error to deny appellant’s motion to suppress.

Decided June 14, 1988

Rehearings denied July 7, 1988

Ira B. Brownlow, Jr., for appellant (case no. 76174).

Richard 0. Allen, Larry J. Steele, for appellant (case no. 76175).

Robert E. Wilson, District Attorney, Nelly F. Withers, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.

Judgments affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76341.
    SWAFFORD et al. v. GLOBE AMERICAN CASUALTY COMPANY.
    (371 SE2d 180)
   Birdsong, Chief Judge.

Appellants Richard Swafford, his grandfather Charles Swafford, and his uncle Ronnie Swafford appeal a declaratory judgment establishing uninsured motorist coverage among them for a two-car automobile collision. In the collision, Richard Swafford (insured by State Farm Mutual Insurance Company with uninsured coverage in the amount of $100,000/$300,000) was driving his grandmother Guthrie’s car with her knowledge and consent. Her uninsured motorist coverage was also with State Farm, in the amount of $25,000/$50,000. Passengers in the Guthrie vehicle were grandfather Charles Swafford (insured by Nationwide Mutual Insurance Company with uninsured coverage of $25,000/$50,000) and his son Ronnie Swafford, who had no insurance but was a named insured under his father’s Nationwide policy. The tortfeasor Doyle Bell had liability coverage with Globe American Casualty Company in limits of $15,000/$30,000. The parties agreed the laws of Tennessee are applicable in the case.

The trial court found: “If the liability limits of Doyle Bell’s Globe American policy ($15,000/$30,000) are exhausted, all three Swaffords will be entitled to recover under the Guthrie policy which provides uninsured motorist coverage in the amount of $25,000/$50,000. However, they will be able to recover only to the extent of an additional $10,000/$20,000 since Tennessee Law requires that credit be given for monies paid under the liability policy. T. C. A. § 56-7-1201 (d). In the event that the primary uninsured motorist coverage (Guthrie automobile-State Farm policy) is exhausted, Tennessee Law provides for potential recovery as excess, from one additional uninsured motorist policy. T. C. A. § 56-7-1201 (b) (2). However, the Swaffords cannot recover under Richard Swafford’s policy since Richard is a ‘relative’ of Mrs. Guthrie and the other Swaffords are not insureds. (See pages 3, 10 & 11 of Richard Swafford’s policy) T. C. A. § 56-7-1201 (b) (2). Nationwide has no liability for uninsured motorists’ insurance since its policy provides as authorized per T. C. A. § 56-7-1205, that if there is ‘other insurance’ Nationwide’s coverage applies only to the extent that it ‘exceeds’ the liability limits of such other insurance. In this case, Nationwide’s coverage does not exceed the liability limits of the Guthrie coverage.” The ruling that Nationwide is not liable for coverage to Charles and Ronnie Swafford has not been appealed. Held:

1. Appellants Richard Swafford and Charles and Ronnie Swafford contend the exclusion in Richard Swafford’s State Farm policy of him if occupying a “relative’s” car has been held to be invalid as violating the purpose of the uninsured motorist statute, in three opinions of the Court of Appeals of Tennessee: Elam v. Protective Ins. Co., Tipton Law No. 1 (Tenn. App., Western Section, filed July 16, 1987), Weir v. Glens Falls Ins. Co., Tipton Equity No. 2 (Tenn. App., Western Section, filed July 16, 1987), and Dockins v. Moore, C/A No. 1115, Knox Law (Tenn. App., Eastern Section, filed August 25, 1987).

The appellee State Farm responds that since appellants did not argue this position or present these Tennessee decisions to the trial court before it ruled on August 27, 1987, they cannot rely upon them in this appellate court to reverse the trial court’s ruling. State Farm cites Hamby v. Hamby, 103 Ga. App. 826 (121 SE2d 169) and Carter v. Graves, 206 Ga. 234 (56 SE2d 917) for the proposition that if reliance is placed on the law of another state, the law of that state must be placed in evidence; and Hamilton v. Metro. Life Ins. Co., 71 Ga. App. 784 (32 SE2d 540) as meaning that such requirement of evidentiary proof is not eliminated by OCGA § 24-1-4, which authorizes judicial notice of law and decisions of sister states “without the introduction of proof.” See also Savannah &c. R. Co. v. Evans, 121 Ga. 391 (49 SE 308).

It is clear that the three recent Tennessee decisions unequivocally invalidate the exclusion relied upon by State Farm in this case. If the trial court was obliged to regard them in rendering its judgment a few days after their filing, its judgment for State Farm was error. The history and the confusion in much of the Georgia law re the recognition of foreign law in our courts, is well expressed in Old Hickory Prods. Co. v. Hickory Specialties, 366 FSupp. 913; and see Menendez v. Perishable Distrib., 254 Ga. 300 (329 SE2d 149). The federal court in Old Hickory opines that Georgia’s Civil Practice Rule 43 (c) (OCGA § 9-11-43 (c)) has superseded whatever might have been the Georgia rule with regard to the pleading and proof of foreign law. CPA Rule 43 (c) provides that upon a party’s notice of intention to rely on certain foreign law, “[t]he court, in determining such law, may consider any relevant material or source . . . whether or not submitted by a party or admissible under the rules of evidence.” This court has said that notwithstanding anything said to the contrary, where under CPA Rule 43 (c) notice of intent to rely on foreign law is given, "[t]he court, in determining such law, may consider any relevant material or source. . . .” Smith v. Davis, 121 Ga. App. 704 (3), 707 (175 SE2d 28) (cert. den.) But the question in this .case is not whether the trial court in this case had the right to “do its own research,” (see Old Hickory Prods. Co., supra at 918-919); rather the question here is whether the trial court had a duty to adhere to current Tennessee appellate court decisions, notwithstanding the appellant’s failure to plead and prove the specific decisions.

We find the trial court had the duty, as well as the right, to refer to and consider current Tennessee decisions even though they were not specifically pled and proved, and if that decisional law controls this case, the trial court’s judgment holding the policy exclusion to be valid, must be reversed.

The reasons for any real or assumed historic inability of Georgia courts to judicially recognize the law of sister states, in the main, no longer exist. Chief among those reasons was “the difficulty of procuring foreign law materials,” and the consequential reluctance felt by judges to decide cases “based on foreign state laws with which they are wholly unfamiliar.” Id. p. 918. Today the laws of sister states are as accessible as our own. The right of judicial recognition becomes, by nature, a duty. Furthermore, there is historic precedent for it, not mentioned in the line of cases discussed in Old Hickory.

In 1902, the Supreme Court said: “Does not [OCGA § 24-1-4] place the laws of other States of the Union, ‘as published by authority,’ upon the same footing as to judicial recognition as laws of the United States and the laws of this State?” Seaboard Air-Line R. v. Phillips, 117 Ga. 98, 100 (43 SE 494). In that case, the court pointed out at p. 101 that the inaccessibility of published authority of “strictly foreign law” was what required it to be proved or authenticated, but where a sister state’s law is “published as authority,” this in itself should be sufficient proof under § 24-1-4.

Even before that, in 1897, the full bench Supreme Court, citing Chattanooga &c. R. Co. v. Jackson, 86 Ga. 676 (13 SE 109) said: “Neither do we think that in a judicial investigation of this kind the courts should be held down to the rigid rule of considering only such proof of the laws of another State as has been formally tendered in evidence by one of the litigants. [In] . . . Herschfeld v. Dexel, 12 Ga. 582, this court held: ‘The court on the trial of a cause may proceed on their knowledge of the laws of another State, and it is not necessary in that case to prove them. . . .’ [In] Chattanooga, Rome & Columbus R. Co. v. Jackson, [supra], this court [said:] . . . ‘[W]e think it would be the right, if not the duty, of the courts to seek the highest sources of information at their command to ascertain the laws of such State on the subject and to give them force and effect according to their true intent and spirit whether or not such laws have been formally tendered in evidence. To this end they may resort to the published statutes of that State, or to the published decisions of its highest judicial tribunals.’ ” Barranger v. Baum, 103 Ga. 465, 480-481 (30 SE 524). That case was a criminal case, but we cannot see why enforcement of litigants’ contract rights under lex loci should be regarded any differently.

We conclude that under CPA Rule 43 (c), (OCGA § 9-11-43 (c)), where a party, as here, gives notice of intent to rely on foreign law, the court in determining such law, “may consider any relevant material or source . . . whether or not submitted by a party or admissible under the rules of evidence”; and, under § 24-1-4, it was mandated that “the laws of Tennessee as published by authority” were to be judicially recognized without the introduction of proof. It was therefore not merely the trial court’s right under these statutes to refer to current Tennessee law as “published by authority,” whether or not the party produced it, but it was its duty to do so. Barranger v. Baum, supra; Seaboard Air-Line R. v. Phillips, supra, p. 98 (1) (b). Therefore such cases are binding, whether in fact the trial court knew of them.

Having so concluded, we find nevertheless that the three Tennessee cases, Weir, Elam, and Dockins are not “published by authority.” They are merely “slip opinions.” In procedural matters, as in all matters affecting remedy, the lex fori controls (Menendez, supra, p. 302). Rule 37 (b) of the Georgia Court of Appeals states: “No unreported opinion shall be cited as a physical or binding precedent of the Court.” Although one or all of those decisions, when or if higher appealed may become the published law of Tennessee, it is not so now; it was not binding on the trial court, with or without introduction of proof, and is not binding on us.

What, then, is the published law of Tennessee as to the validity of the uninsured motorist exclusion in this case? In 1984 (two years after the passage of the 1982 legislative amendment which the Weir v. Glens Falls Ins. Co., supra, and Elam v. Protective Ins. Co., supra, slip opinions say invalidates this exclusion), the Court of Appeals of Tennessee in Graves v. Tenn. Farmers Mut. Ins. Co., published in 671 SW2d 841 (application for permission to appeal denied), held the exclusion under examination in this case to be valid.

In its slip opinion in Elam, supra, in July 1987, the Court of Appeals of Tennessee, Western Section, noted that Graves was handed down in 1984, two years after the passage of the 1982 amendments (which would mean on its face the Graves court is deemed to have considered the 1982 amendment and held the exclusion valid nevertheless). However, the court in Elam, explaining that the dates were not important when Graves was written, then examined the archival record of the Graves case and discovered that in fact the loss for which recovery was sought occurred on April 4, 1977, “[h]ence the 1982 amendments should not have been and were not considered by the Graves court.” This is how the Elam slip decision gets around the Graves decision, which is the “published authority” of Tennessee law holding the subject exclusion valid two years after the passage of amendments which Elam now says invalidates it. While the Tennessee appellate court is at liberty to examine its own archival records of appeals and accept, as controlling or determining in a prior decision, a fact which does not appear in the decision, we are not.

In our view, an appellate decision must stand for what it says on its face and no more, and must represent the same facts to the legal reader in 50 years in another state who is without access to the record behind it, as it does to us today. In any case, the date of the loss underlying the Graves lawsuit is a fact not before us, not “published as authority” except in Elam, which is not itself “published as authority,” and therefore the fact is not subject to being judicially recognized in this state, under OCGA § 24-1-4. We conclude the Graves case is the only law of Tennessee on the subject exclusion that can be judicially recognized, and on the face of its decision, two years after the 1982 legislative amendment, this exclusion was held valid..

The trial court, therefore, did not err in holding the exclusion to be valid in the case below.

2. If the exclusion in Richard Swafford’s policy were invalid for any reason, Richard Swafford could access his uninsured motorist coverage, but passengers Charles and Ronnie Swafford could not. Charles and Ronnie Swafford contend they are eligible for coverage by Richard’s State Farm policy pursuant to this language in T. C. A. § 56-7-1201 (b): “With respect to bodily injury to an insured while occupying an automobile not owned by the injured party, the following priorities . . . shall apply: (1) The uninsured motorist coverage on the vehicle in which the injured party was an occupant shall be . . . primary. ... (2) Should that primary uninsured motorist coverage be exhausted due to the extent of compensatory damages, then the injured occupant may recover as excess from the insurance on the vehicle owned by the insured that provides the highest limits of uninsured motorist coverage. In no instance shall more than one (1) coverage from more than one (1) uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.” (Emphasis supplied.)

Appellants contend Richard Swafford is “the insured that provides the highest limits of uninsured motorist coverage.” The appellee State Farm replies that the Tennessee legislature could not conceivably have meant, by this language, that the policy of the person in a vehicle who has the most coverage would cover other occupants of a vehicle who had no uninsured motorist coverage. We agree with this assessment by appellee State Farm.

T. C. A. § 56-7-1201 (a) provides, as to the purpose and policy of the act, that: “Every automobile liability insurance policy delivered, issued ... or renewed in this state . . . shall include uninsured motorist coverage ... for the protection of persons insured thereunder. . . .” Beyond doubt, on the face of the statutory language, the legislature did not intend by any unclear language in T. C. A. § 56-7-1201 (b) (2) to extend coverage of any insured’s uninsured motorist coverage to persons not “insured thereunder.” (Emphasis supplied.)

Where the Tennessee statute provides at § 56-7-1201 (b) (2) that “the injured occupant may recover as excess from the insurance on the vehicle owned by the insured that provides the highest limits . . .” the reference to “the insured” is first qualified in § (b) of the statute by the words, “with respect to the bodily injury to an insured.” (Emphasis supplied.) Therefore, it is the injured insured who may recover such excess from his own insurance with the highest limits. An “injured party” if he is not “insured” under any policy cannot recover under that policy. This is consistent with the policy statement at T. C. A. § 56-7-1201 (a) that uninsured coverage in an insurance contract is for the protection “of persons insured thereunder.” Charles and Ronnie Swafford are not persons insured under Richard Swafford’s policy. Therefore, they may not recover from his policy in excess of the primary coverage of Mrs. Guthrie’s policy.

3. Appellants Richard Swafford and Charles and Ronnie Swafford contend the following quoted language in T. C. A. § 56-7-1201 (d) entitles each of them to recover under Mrs. Guthrie’s State Farm policy the excess of her policy limits over the total of tortfeasor Bell’s liability coverage: “(d) The limit of liability for an insurer providing uninsured motorist coverage under this section is the amount of that coverage as specified in the policy less the sum of the limits collectible under all liability and/or primary uninsured motorist insurance policies, bonds, and securities applicable to the bodily injury or death of the insured.”

That is, appellants contend that after the tortfeasor Bell’s total liability coverage is exhausted ($15,000/$30,000) to the first injured party, Mrs. Guthrie’s limits are again applicable to each remaining injured party, in full, since Bell’s limits were exhausted by the recovery of the first injured party and, as to the others, there is no more available liability to deduct from Mrs. Guthrie’s policy limits. Appellants conclude: “Until the damages [of all parties] are known, it cannot be said that only $10,000/$20,000 is available from the Guthrie policy. If the damages to all occupants of the Guthrie vehicle so warrant, the full coverage of the Bell, Guthrie and Richard Swafford policies could be paid with no duplication of coverage.”

This strained argument is without merit. All these party plaintiffs are not entitled to the “full coverage of the Bell, Guthrie, and [Richard] Swafford policies with no duplication of coverage.” Charles and Ronnie Swafford may not recover under Richard’s policy at all (see Division 2). But as regards their right to recover under the primary policy (Mrs. Guthrie’s), the same rationale we used in Division 2 holds true here: if they qualify as an insured, if each of them qualifies as an insured, under Mrs. Guthrie’s policy, they would each be entitled to collect as if each were able to recover from Bell’s liability policy, or other sources of compensation. No rationale has been suggested that would authorize us to conclude that once one injured party has collected all of Bell’s liability, the others may recover from Guthrie’s policy without any deduction. The statutory word used is collectible, not collected. We cannot be sure Bell’s liability will be “exhausted” by payment to one injured party. Since there is, as appellants say, no way to know at this point how much is “collectible” in liability from Bell, or elsewhere by each party insured under Mrs. Guthrie’s uninsured coverage, the thing to do is see how much each may collect in liability elsewhere, and then deduct this from the amount of Mrs. Guthrie’s policy. The terms of the tortfeasor Bell’s policy will determine whether and to what extent his limits are “exhausted” by payment to one party, and the terms of Mrs. Guthrie’s policy will determine to what extent each injured party may collect from her uninsured coverage. The appellants’ whole argument supposes that Bell’s liability policy will be “exhausted” by payment to one, and that is not something we can assume.

The trial court did not err in ruling that Charles and Ronnie Swafford are not insureds under Richard’s policy, and in holding, as it seems to have held, that if Bell’s liability policy limits are exhausted, each person insured under Mrs. Guthrie will be entitled only to an excess over what was “collectible” under all liability sources.

Decided June 3, 1988

Rehearing denied July 7, 1988

Warren N. Coppedge, Jr., Susan W. Bisson, Terry J. Miller, for appellants.

James T. Fordham, R. Kevin Silvey, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.