text:
    76305.
    SEYMOUR v. BRUCE.
    (370 SE2d 211)
   McMurray, Presiding Judge.

Plaintiff Bruce’s complaint alleged that defendant Seymour, f/k/a Barker, “is indebted to him in the sum of $55,000 as the balance due upon a contract and settlement agreement made and entered into between the parties.” Defendant’s answer denied that plaintiff is entitled to any relief against defendant and raised several defenses including an allegation that any contract or settlement agreement between the parties was predicated upon an illegal or immoral consideration.

The evidence at trial shows that defendant and her now deceased husband, operated a farm. When plaintiff was a youth he moved in with them, being treated as a son would be treated. Plaintiff moved away after his marriage in 1966. In 1980 or 1981 following the death of defendant’s husband, plaintiff and his family moved back to a house on defendant’s farm. Plaintiff testified that this move was prompted by defendant’s promise to deed the house to plaintiff and his wife if they would move there. Shortly after he moved defendant delivered a deed for the house and surrounding tract of land. Plaintiff and his wife added an 1,800 square foot addition to the house which he estimated was worth $46,000.

Subsequently, plaintiff and his wife were arrested and indicted for violations of the Georgia Controlled Substances Act. The criminal charges were eventually dismissed, but while they were pending plaintiff and his wife conveyed their house and surrounding tract back to defendant. The evidence as to the motive for this conveyance is not entirely consistent, there being evidence that plaintiff deeded the property over to defendant to defraud his attorney, to avoid forfeiture in the criminal proceeding or simply to accede to defendant’s insistence that a transfer was necessary to avoid loss of the property. Plaintiff received no consideration for the conveyance and defendant promised plaintiff that she would deed it back to him as soon as the criminal charges were disposed. After deeding the property back to defendant plaintiff and his wife continued to live in the house.

The ownership of the property went unmentioned until 1984, when plaintiff who was commencing some remodeling of the house asked defendant if she would put the property back in his name. Defendant told plaintiff, “we’ll see about it son.” Plaintiff testified that prior to the remodeling defendant told him to “go ahead and do what you want to just like it’s yours, said because the deeds will be back in your name.” Although the chronology is unclear, plaintiff testified as to numerous conversations with defendant regarding where he and his family would live in the event of a proposed sale by defendant including the house and tract which had been conveyed to plaintiff and back to defendant. Plaintiff testified as to a conversation in which defendant, after inquiring as to what it would cost for plaintiff to acquire another home, promised to pay plaintiff $75,000 after the land sold. Plaintiff was given $20,000 following the sale of the land but no more.

The jury returned a verdict in favor of plaintiff for $30,000. Defendant appeals, raising by her sole enumeration of error the trial court’s refusal to grant her motion for directed verdict on the grounds of her defense, that, if a contract or settlement agreement existed between the parties the underlying consideration was illegal or immoral. Held:

Defendant argues that while there was a conflict in the evidence as to why title to the real property was transferred back to defendant, under any version testified to, the transfer was effected to defraud a creditor or one who might become a creditor, thus was for an illegal and immoral purpose. Defendant argues the “unclean hands” doctrine is governing. “It is as well settled as any proposition can be, that neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration. If the contract is executed, it will be left to stand; if it is executory, neither party can enforce it.” Watkins v. Nugen, 118 Ga. 372, 373 (2, 3) (45 SE 262). Thus, argues defendant, the conveyance by plaintiff to defendant was binding and no relief should be afforded to plaintiff, who is trying to do indirectly what he could not do directly by an action in equity to set aside the deed. Williams v. Williams, 255 Ga. 264 (336 SE2d 244): Parrott v. Baker, 82 Ga. 364, 365 (4) (95 SE 1068); Cronic v. Smith, 96 Ga. 794 (22 SE 915).

Decided June 1, 1988.

Robert B. Thompson, for appellant.

Jack M. Carey, Christopher J. Walker III, for appellee.

However, the “unclean hands” doctrine does not bar a litigant from seeking relief unless the misconduct relates directly to the transaction concerning which relief is sought. Sparks v. Sparks, 256 Ga. 788, 789 (2) (353 SE2d 508). In the case sub judice, plaintiffs action is predicated not upon the conveyance to defendant but upon defendant’s promise to pay him $75,000 when the land sold. Under Sparks the “unclean hands” doctrine is inapplicable. The jury accepted plaintiffs view that defendant’s promise was made in extinguishment of a doubtful claim. Therefore, defendant’s contention that there was no consideration for the promise is without merit. Skinner v. Smith, 120 Ga. App. 35 (169 SE2d 365); David v. Atlantic Co., 69 Ga. App. 643 (26 SE2d 650); Mons v. Morgan’s, Inc., 83 Ga. App. 814 (65 SE2d 34); Langford v. Milwaukee Ins. Co., 101 Ga. App. 92, 95 (113 SE2d 165); Jones v. C & S Nat. Bank, 231 Ga. 765, 768 (II) (204 SE2d 116). The trial court did not err in denying defendant’s motion for directed verdict.

Judgment affirmed.

Pope and Benham, JJ., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    76468.
    SPEAD v. THE STATE.
    (370 SE2d 213)
   Carley, Judge.

Appellant was tried before a jury and found guilty of selling cocaine in violation of the Georgia Controlled Substances Act. Appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilty.

1. Appellant enumerates as error the admission into evidence of the cocaine over his chain of custody objection. He contends that the State presented insufficient proof to show that the contraband which was introduced into evidence at trial was the cocaine which he had allegedly sold.

The undercover officer who made the purchase from appellant testified that he took the suspected cocaine directly to the sheriffs office. He .there turned it over to a deputy. The deputy then packaged and identified the suspected cocaine with a “work-up sheet” which recorded the date, time, the suspect from whom purchased and the amount of money spent. The deputy testified that the specimen remained in his possession for four days until he sent it by certified mail to the State Crime Lab for analysis. The State Crime Lab forensic chemist testified that he had received the suspected contraband in a large envelope which also contained other separately tagged and identified items, but that “[e]ach case was properly identified and marked and stapled separately from the other.” The forensic chemist further testified that after he receives an item, such as the suspected cocaine purchased from appellant, “it is given a unique number and that number stays with that case and no other case has that number [which] precludes the fact that we can confuse one piece of evidence with another.”

“[W]here the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence. [Cit.] Hence, the burden is on the prosecution ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cit.] However, the State need not negate all possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the confiscated evidence. [Cits.]” Kelly v. State, 182 Ga. App. 7, 9 (2) (354 SE2d 647) (1987). The chain of custody was sufficiently established here. See Pope v. State, 256 Ga. 195 (6) (345 SE2d 831) (1986); Tyson v. State, 184 Ga. App. 309 (2) (361 SE2d 386) (1987).

2. With regard to proof of the transmittal of the contraband to the State Crime Lab by certified mail, the State could only produce a photostatic copy of the certification receipt in lieu of the original. Appellant further enumerates the admission of the cocaine into evidence, urging that, without an adequate explanation for the absence of the original certified mail receipt as required by OCGA § 24-5-4, the chain of custody was not sufficiently proven.

The deputy testified that he would always make a copy of the certified mail receipt when he mailed contraband to the State Crime Lab. However, he had been unable to locate the original receipt for this particular mailing. The deputy identified his handwriting on the photostatic copy and noted that the certification number was identical to that on the State Crime Lab report. It is not for the trial court to determine the worthiness or credibility of secondary evidence. The trial court decides only whether the secondary evidence is offered in the best form which is accessible. See Walls v. State, 161 Ga. App. 235 (4) (291 SE2d 15) (1982); Mulkey v. State, 155 Ga. App. 304, 307 (270 SE2d 816) (1980). The deputy, as the person with firsthand knowledge of the certification, testified at trial. The trial court was authorized to conclude that the copy of the receipt had been made in the regular course of business so as to be admissible pursuant to OCGA §§ 24-3-14 and 24-5-26. Millwood v. State, 166 Ga. App. 292 (5) (304 SE2d 103) (1983). See also McConnell v. State, 166 Ga. App. 530 (3) (304 SE2d 733) (1983).

Decided June 1, 1988.

Clyde M. Urquhart, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    76074.
    TRANSPORT INSURANCE COMPANY v. MARYLAND CASUALTY COMPANY.
    (370 SE2d 188)
   Banke, Presiding Judge.

This is a subrogation action brought by Maryland Casualty Company against Transport Insurance Company to obtain reimbursement for certain “no-fault” benefits paid by Maryland Casualty to one of its policyholders. Transport Insurance Company filed this appeal from an order granting summary judgment to Maryland Casualty and denying its own motion for summary judgment.

The parties have stipulated to the following facts: Mr. and Mrs. Martin were issued a policy of automobile insurance by Maryland Casualty in 1975, providing basic personal injury protection (PIP) coverage in the amount of $5,000. This policy was renewed annually and was in force in January of 1977, when Mrs. Martin was injured in a collision involving the insured automobile and a tractor-trailer truck weighing in excess of 6,500 pounds. This truck was owned and operated by Old Dominion Freight Lines and insured by Transport Insurance Company. As a result of her injuries, Mrs. Martin incurred medical expenses in excess of $45,000; however, Maryland Casualty initially paid her only the minimum $5,000 in no-fault benefits provided for under the terms of its policy. In subsequent litigation against Old Dominion, its driver, and Transport Insurance Company, Mrs. Martin was awarded damages in the amount of $200,000; and Mr. Martin, in a separate action, was awarded damages in the amount of $300,000.

Pursuant to this court’s decision in Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), the Martins later brought suit against Maryland Casualty and its agent seeking to recover additional PIP benefits, penalties, and attorney fees. Thereafter, Maryland Casualty evaluated its insurance application form to determine if it was in compliance with the Jones standard. After the Supreme Court rendered its decision in Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), Maryland Casualty determined that its application form did not comport with the applicable requirements of OCGA § 33-34-5 (b) and consequently paid the Martins an additional $40,000 in settlement of their optional coverage claim. Thereafter, Maryland Casualty brought the present subrogation action against Transport Insurance Company, pursuant to the then existing version of OCGA § 33-34-3 (d) (1). As previously indicated, the present appeal arises from the trial court’s grant of summary judgment to Maryland Casualty in that action. Held:

1. In this most unusual variation on the Jones/Flewellen theme, Maryland Casualty contends that its own application was defective, while the opposing party, Transport Insurance Company, contends that the application was in substantial compliance with the applicable statutory requirements, with the result that Maryland Casualty acted as a mere volunteer in paying the additional $40,000 to Mrs. Martin and therefore has no right to be reimbursed for this expenditure. See generally Federated Mut. Ins. Co. v. Northland Ins. Co., 254 Ga. 402 (329 SE2d 493) (1985). The statute applicable to the application was Ga. L. 1974, p. 113, § 4 (former Code Ann. § 56-3404b (b)), which provided as follows: “Each application for a policy of motor vehicle liability insurance sold in this state must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) [of this Code section], and no such policy shall be issued in this state unless these spaces are completed and signed by the prospective insured.”

“In order for a document to be in substantial compliance with [the above statutory provision], the form on its face should show the prospective insured, as a reasonable man or woman, the offered coverages and the action needed to accept or reject with such clarity so as not to require speculation as to whether there was a knowing election. In other words, does the form show that the applicant, as an ordinary reasonable man or woman, understood what was being offered and what choices he or she was making? If the answer to this question is ‘yes,’ and there is no evidence produced that the insured is other than the ordinary reasonable person, this should end the matter. If the answer is ‘no,’ it can be said as a matter of law that the form is defective by failing to substantially comply with the legislature’s mandate.” Associated Indent. Corp. v. Sermons, 175 Ga. App. 513, 516 (333 SE2d 902) (1985).

An examination of Maryland Casualty’s application form reveals that it was in substantial compliance with the former Code section. The application consisted of four pages. The first two pages comprised the basic application form. This portion was signed by Mr. Martin at the end of the second page. The second two pages set forth the various available optional coverages, under the heading: “GEORGIA NO-FAULT AUTOMOBILE ADDITIONAL COVERAGES OFFER.” This portion of the application was divided into four separate sections. The first pertained to “Additional Personal Injury Protection” and specified as follows: “You have been furnished with the Basic PIP endorsement which provides coverage required by the No-Fault Law. Total aggregate limit provided is for $5,000 per person. . . . The following options are available to you which provide for higher protection benefits:

I-do_do not wish to purchase this optional PIP coverage. (If you do wish to have additional coverage, check option desired.)” The remaining three sections of the optional coverages form pertained, respectively to “Comprehensive Coverage,” “Collision Coverage,” and “Loss of Use Coverage.” In each section, including the optional PIP coverage section, a handwritten “X” had been placed in the space indicating that the optional coverage in question was not desired. Mr. Martin’s signature also appeared at the end of the second page of this form.

Maryland Casualty asserts that the optional coverages application was defective with respect to PIP coverage because the page containing the optional PIP coverage election was not separately signed. We disagree. While the statute requires that the insured’s decision to reject optional PIP coverages be evidenced by a separate signature, it appears to be well settled that this signature need not appear immediately adjacent to the election to accept or reject optional PIP coverage but may appear at the end of a separate application form dealing with the acceptance or rejection of optional coverages generally. See St. Paul Fire &c. Ins. Co. v. Nixon, 252 Ga. 469 (314 SE2d 215) (1984); Nalley v. Select Ins. Co., 165 Ga. App. 345 (299 SE2d 172) (1983), cert. vacated 251 Ga. 722 (313 SE2d 465) (1983); Reed v. Ga. Farm &c. Ins. Co., 171 Ga. App. 126 (318 SE2d 746) (1984).

We recognize that none of the foregoing authorities involved a two-page optional coverages application form such as the one at issue in this case, with the signature line appearing on a page separate from that on which the optional PIP coverages were offered. However, we nevertheless hold that Maryland Casualty’s form met the statutory requirements, because the “separate spaces for the insured to indicate his acceptance or rejection of each of the optional [PIP] coverages” were required to be separately signed by the prospective insured in the sense that a separate signature was required in addition to the signature appearing on the main application form. Certainly, the optional coverages application form utilized by Maryland Casualty disclosed the optional PIP coverages available to the prospective insured, and the action needed to accept or reject them, “with such clarity so as not to require speculation as to whether there was a knowing election.” Assoc. Indent. Corp. v. Sermons, supra, 175 Ga. App. at 516. Under the circumstances, we can perceive no reasonable possibility that the separate signature line provided at the end of this form would not be seen as relating directly to the the election of optional PIP coverages as well as to the election of the other optional coverages.

2. While it is undisputed that Mr. Martin signed both the main application form and the optional coverages form, Maryland Casualty asserts that a question of fact remains as to whether he in fact placed the handwritten “X’s” in the spaces purporting to indicate his lack of desire to purchase any of the optional coverages. However, it has been held that the signature of the insured “is conclusive proof in law that the insured knows of the options and rejects them. [Cits.]” Bob Lairsey Ins. Agency v. Allen, 180 Ga. App. 11, 14 (348 SE2d 658) (1986). Once a determination is made that the application is in compliance with the statutory scheme, “[o]ral declarations of the parties provide no basis for resolving conflicts as to whether an applicant was made aware of his statutory right to optional coverages and whether he knowingly elected not to exercise that right. [Cits.]” Hardy v. Nationwide Ins. Co., 182 Ga. App. 311, 312 (356 SE2d 38) (1987).

3. Having determined that the contract of insurance between the Martins and Maryland Casualty provided only for minimum PIP benefits in the amount of $5,000, we must conclude that Maryland Casualty is not entitled to hold Transport Insurance Company accountable for its payment of additional PIP benefits to the Martins. “ ‘Subrogation “is never applied for the benefit of a mere volunteer who pays the debt of another without any assignment or agreement for subrogation, and who is under no legal obligation to make the payment, and is not compelled to do so for the preservation of any rights or property of his own.” ’ ” Federated Mut. Ins. Co. v. Northland Ins. Co., supra, 254 Ga. at 403, citing Federal Land Bank of Columbia v. Barron, 173 Ga. 242 (4) (160 SE 228) (1931). See Carter v. Banks, 254 Ga. 550 (2) (330 SE2d 866) (1985). Therefore, we hold that, to the extent of the $40,000 optional coverage claim but not the $5,000 basic coverage claim, the trial court erred both in granting Maryland Casualty’s motion for summary judgment and in denying the motion for summary judgment filed by Transport Insurance Company.

4. In view of the foregoing, it is unnecessary to address the appellant’s remaining enumerations of error.

Decided May 16, 1988

Rehearing denied June 2, 1988

Michael L. McGlamry, for appellant.

Robert M. Darroch, Elizabeth A. Obenshain, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    76095.
    WEST v. MACHE OF COCHRAN, INC.
    (370 SE2d 169)
   Beasley, Judge.

Appellant brought this wrongful death action individually as surviving parent of his two minor children and surviving spouse of his deceased wife against appellee, a licensed firearms dealer subject to federal and state regulations governing the sale of firearms. The complaint alleged that on December 21, 1985, Mache sold and delivered a semi-automatic rifle and two packs of bullets to Curtis Brown; that prior to this sale Brown had been committed to a mental institution for approximately eleven years as a result of the brutal assault and rape of an elderly woman; that at the time of the sale Brown could neither read nor write, could not produce a driver’s license or other identification and was obviously illiterate, incompetent and ineligible under federal law and appellee’s store policy to purchase such a weapon; and that Mache had actual knowledge that it could not legally sell a firearm to Brown and knew or should have known that placing a firearm in his hands posed a dangerous threat to the citizens of the community.

It was further asserted that notwithstanding these facts, and in order to realize a sale and to avoid the laws designed to protect citizens from persons like Brown, appellee allowed Brown’s estranged wife to sign in her own name the documentation necessary to effectuate the sale; that appellee’s clerk then accepted Brown’s money and gave him the rifle and bullets; and that approximately three weeks later Brown took his new rifle into the backyard behind the Wests’ residence and, without provocation or justification of any sort, fired this weapon through the window of their home, killing Donna West with a bullet through her head. The complaint also set forth that Brown had been tried for this murder and found guilty; that appellee’s sale of the rifle to Brown constituted an actionable act of negligence in that it was in violation of 18 USCA § 922 (d) (4) which prohibits a licensed firearms dealer from selling firearms to a person who has been committed to a mental institution; and that this sale was the proximate cause of the death.

Evidence presented to the jury showed that Brown first came into appellee’s store on November 5, 1985, to buy a rifle and was waited on by the assistant manager. He had known Brown as a customer of the store since 1976 but did not know Brown’s age, where he was from, or his history of mental illness. However, he knew that Brown could not read or write and had a speech impediment, and that although he was “around forty” years old, had only been seen using a bicycle for transportation. Brown chose a semi-automatic rifle to put on layaway. The assistant manager filled out the layaway form, identifying Brown as the purchaser, and Brown paid a cash deposit of $10 and signed the contract by marking an “X” to show he agreed to pay the full amount due. Brown made additional payments on November 9 and 30. On December 21 Brown went to the store to make his final payment and was waited on by the assistant manager. Brown could produce no driver’s license or other positive identification, which was required by both the federal statute and store policy for the purchase of firearms before presenting the necessary federal form for completion. When he told Brown he could not sell him the rifle and offered a refund, Brown said he would have his wife come to the store with her driver’s license. Brown brought her to the store, she produced her driver’s license, and the assistant manager had her fill out the federal form by reading the questions to her. She signed it after answering “no” to the question, “Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?” Curtis Brown paid the final payment on the rifle and made another mark on the layaway form to document that the merchandise was delivered to the customer. Brown also purchased two packs of hollow point bullets and was instructed how to break the gun down and put it back together. He took the gun and left the store. After Brown was charged with Mrs. West’s murder, he was examined by psychiatrists and adjudged mentally competent to stand trial, was tried and convicted.

Upon the close of the evidence, plaintiff moved for a directed verdict, which was denied. The trial court instructed the jury on proximate cause and foreseeability, in particular that “the plaintiff has the burden of presenting evidence that the defendant knew or should have known that Curtis Brown was liable to commit a violent criminal act with the gun in question.” The jury returned a verdict in favor of Mache and plaintiff claims error in the failure to grant his motion for directed verdict and in the charge on proximate cause and foreseeability.

1. 18 USCA § 922 (d) (4) provides: “It shall be unlawful for any . . . licensed dealer ... to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . has been adjudicated as a mental defective or has been committed to any mental institution.” In Huddleston v. United States, 415 U. S. 814, 824-825 (94 SC 1262, 39 LE2d 782) (1974), the Supreme Court studied the legislative history of the Gun Control Act to clarify the reasons for its enactment, concluding: “Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. [Cit.] The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’ [Cit.]

. . . The principal agent of federal enforcement is the dealer. He is licensed, §§ 922 (a) (1) and 923 (a); he is required to keep records of ‘sale ... or other disposition,’ § 923 (g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, § 924. . . . Information drawn from records kept by dealers was a prime guarantee of the Act’s effectiveness in keeping ‘these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles and other persons whose possession of them is too high a price in danger to us all to allow.’ [Cit.]. . . . From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users.” (Indention omitted.)

Insofar as Georgia law is concerned, “[i]t has been uniformly held in this State that a violation of a penal statute, resulting in injury, is negligence per se and authorizes a recovery by the party injured, without other negligence. [Cits.] There is no doubt as to this legal proposition; and if the [ineligible person] who bought the [rifle] from the defendants had intentionally or negligently discharged it, causing injury to another, in the absence of negligence on the part of the injured person, the right to recover damages would result, without proof of any other act of negligence on the part of the defendants. [Cit.]” Spires v. Goldberg, 26 Ga. App. 530, 532 (106 SE 585) (1921). Since the Gun Control Act expressly prohibits the sale of firearms to any person who has ever been adjudicated as a mental defective or has ever been committed to a mental hospital, Brown’s mental capacity at the time appellee sold him the rifle is not determinative of his status as a mentally defective person to whom the Act forbids a sale.

“ ‘In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. [Cits.]’ ” Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 153 (325 SE2d 819) (1984); aff'd 254 Ga. 728 (333 SE2d 829) (1985). Accord Montgomery Ward & Co. v. Cooper, 177 Ga. App. 540 (1) (339 SE2d 755) (1986). Thus, if Brown had previously been committed to a mental institution “at the time of the sale and could not have obtained the requisite certificate, [appellee] was negligent per se in this case by selling the [rifle to Brown] in violation of the [federal Act] because (1) [Mrs. West] falls within the class of persons the [Act] was intended to protect (i.e., potential victims of criminal acts by [mental incompetents] involving [guns]), and (2) the harm complained of (i.e., injuries from a criminal shooting) was the harm the [Act] intended to guard against.” Montgomery Ward, supra at 541.

Liability for negligence per se under the federal Gun Control Act has not been previously considered in Georgia. Decisions from other states persuade towards the conclusion that plaintiff carried his burden of proving a breach of duty. “The regulations issued under the Act are, in our opinion, the real key to its enforcement. The regulations require the licensed dealer, prior to making an over-the-counter delivery of a firearm to a purchaser, to complete Form 4473, the Firearms Transaction Record. That record must show the buyer’s name, address, date and place of birth, height, weight, and race, and must include his signed certification that he has not [been adjudicated as a mental incompetent or committed to any mental institution]. The seller, before transferring the gun, must require the buyer to identify himself in any manner customarily used in commercial transactions, as by a driver’s license. Form 4473 requires the number on the identification, such as the driver’s license number, to be entered on the form. . . . This is not, as the appellees argue, a mere matter of record keeping. Form 4473 required the seller to obtain and record [Brown’s] identification before handing over the gun. [Brown] had no identification. Thus, had the law been obeyed, he could not have obtained possession of the gun and could not have used it to shoot [Mrs. West].” (Indention omitted.) Franco v. Bunyard, 547 SW2d 91, 92 (Ark. 1977). Accord K-Mart Enterprises v. Keller, 439 S2d 283 (Fla. App. 1983).

Appellee’s argument that the rifle was sold to Brown’s wife rather than to Curtis Brown is specious and not supported by the evidence. Its protestations that there was no way it knew or could have known of Brown’s adjudication of mental incompetence is likewise not persuasive, as this is precisely the information that proper use of the statutory procedure was intended to elicit. “The cause of [Mrs. West’s death] was the careless manner in which [Hinson] permitted [Brown], a mentally deranged person, to come into possession of the [rifle] and ammunition. It was relevant to causation that he was a medically diagnosed [mental incompetent]. That the defendants had no safety procedures in place for such an eventuality is likewise relevant. It is no excuse to say that [Hinson] did not know [Brown] was a mental case, because [he] made no attempt to ascertain whether he was or not before enabling [Brown] to be in a position to harm others.

“The defendants’ conduct condemns them whichever way their argument goes. If we assume that by a reasonably careful questioning and observation by a mature, experienced dealer in firearms [Brown’s] mental condition would have been suspected, then the defendants are clearly liable. If we say that [Brown] could have masked his condition so that no layman could ever know anything about his condition, the defendants were likewise negligent. That loaded [rifles] are especially dangerous and life threatening when possessed by mentally disturbed people is a matter of common knowledge, and firearms dealers should be especially cognizant of this. Any such dealer should have in effect in his business some safeguard to see that a loaded [gun] is not placed in the hands of an unknown person, who may very well be a mental case, unless or until his background can be thoroughly investigated.” Howard Bros. v. Penley, 492 S2d 965, 968, 969 (Miss. 1986).

The fact that Brown had been a customer in Mache’s store in the past in no way alleviated its duty of care commensurate with the potential danger of dispensing firearms to the public. “Or put another way, reasonable care requires conduct by the dealer which shows he recognizes the potential danger and acts accordingly.” Ibid. Accord Montgomery Ward, supra.

Courts have uniformly held that those charged by the law with the responsibility of keeping guns from certain individuals cannot, when they ignore that responsibility, avoid liability by claiming it was unforeseeable that the ineligible purchaser would misuse the gun. Thus the trial court’s charge that plaintiff had the burden of proving that appellee “knew or should have known that Curtis Brown was liable to commit a violent criminal act with the gun in question” was a misstatement of the law.

2. “Where a statute provides a general rule of conduct, although only amounting to a requirement to exercise ordinary care, the violation thereof is negligence as a matter of law, or negligence per se, whereas in the absence of such specific statute the jury is left to determine whether such conduct constitutes negligence. [Cit.]” Teague v. Keith, 214 Ga. 853, 854 (1) (108 SE2d 489) (1959). Plaintiff was thus entitled to a directed verdict on the question of liability, for there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded a verdict in his favor. OCGA § 9-11-50 (a). The four essential elements to authorize a recovery for negligence as established in Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982), to wit: duty, breach, causation and damages, were met. Because the amount of damages was not determined, however, that issue must be decided by a trier of fact.

Decided May 6, 1988

Rehearings denied June 2, 1988

Thomas F. Richardson, Marc T. Treadwell, for appellant.

Edgar A. Neely III, Taylor T. Daly, for appellee.

Judgment reversed with direction.

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


text:
    76207.
    DeKALB COUNTY v. BEACON INDUSTRIES, INC.
    (370 SE2d 191)
   Carley, Judge.

Appellant-defendant solicited bids for a public works construction project. Appellee-plaintiff submitted the winning bid. Thereafter, the parties entered into a written contract, under the terms of which appellee agreed to perform for appellant “the complete installation of approximately 560 linear feet of 48-inch water main, 2300 linear feet of 16-inch, 12-inch, 8-inch and 6-inch ductile iron pipe and all appurtenances necessary for I-85/Northcrest 48-inch Water Re-Route” (Project). The contract further provided that the Project was to be comprised of some twenty-eight separate “units” of construction work and, as to each “unit,” appellee was to be compensated by appellant at a specified price.

Appellee performed all of its contractual obligations with regard to such “units” of the Project as appellant permitted it to complete. However, appellant refused appellee the opportunity to perform at least eight of the twenty-eight work “units.” With appellant’s approval, these “units” were completed by other contractors. Appellee then brought this suit, alleging that appellant, by refusing to allow appellee’s performance of all of the twenty-eight of the Project’s work “units,” had breached the contract. The case was tried before a jury. At the close of the evidence, the trial court granted appellee’s motion for directed verdict both as to liability and damages. Appellant’s motion for new trial was denied, and it appeals from the trial court’s judgment entered on the directed verdict.

1. Appellant enumerates as error the trial court’s grant of appellee’s motion for directed verdict as to liability.

In effect, the trial court held that, under the clear and unambiguous terms of the agreement, appellant had contracted for appellee’s performance of all of the twenty-eight “units” and that appellant was, therefore, obligated to pay appellee for those “units.” Appellant contends that this construction of the contract is erroneous. Under appellant’s construction of the terms of the contract, it retained the unilateral right to withdraw “units” of the Project from the scope of the contract while also retaining the right to insist upon appellee’s strict performance of the remaining unwithdrawn “units.” In support of this construction, appellant relies upon the following provision of the contract: “The estimated quantities of work to be done and materials to be furnished under this Contract if shown in any of the documents including the Proposal, are given only for use in comparing bids and to indicate approximately the total amount of the Contract; and the right is especially reserved . . . except [as] herein otherwise specifically limited, to increase or diminish them as may be deemed reasonably necessary or desirable by the County to complete the work contemplated by this Contract, and such increase or diminution shall, in no way, vitiate this Contract, nor shall any such increase or diminution give cause for claims or liability for damages.” (Emphasis supplied.)

The contract, which was drafted by appellant, does not define the term “quantities” as employed in the above-quoted contractual provision. The trial court held that the unambiguous meaning of the provision was that appellant had merely reserved the right to adjust, by increasing or reducing, the estimated “quantities” of work and materials to be included within a contractual work “unit” so as to insure that “the work contemplated by the Contract” would be completed if more or less work and materials proved necessary, but that appellant had otherwise entered into a contract with appellee for performance of all of the Project’s twenty-eight “units” and could not unilaterally eliminate entire “units” from the contract.

“[Wjhere the provisions of a contract are unambiguous, its interpretation is a question of law for the trial court. [Cits.]” Brigadier Indus. Corp. v. Pippin, 148 Ga. App. 145, 146 (251 SE2d 114) (1978). “[A] contract is not ambiguous even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties. [Cit.] ” Pisano v. Security Mgt. Co., 148 Ga. App. 567, 568 (251 SE2d 798) (1978). Under appellant’s interpretation of the above-quoted contractual provision, it was granted the unilateral right to reshape the entire scope of the Project and of the contract, while appellee would be kept completely bound by the strict terms of the contract. “[I]f one party cannot hold the other to the terms of the contract and compel him to perform under it, or bring an action against him for his refusal to perform, the transaction is unilateral, and no contract exists as against either party.” Oliver Constr. Co. v. Reeder, 7 Ga. App. 276, 277 (66 SE 955) (1910). Accordingly, appellant’s construction would violate that fundamental principle of contractual construction which provides that “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4).

The only construction of the contract which will not violate the pertinent rules of construction is that which was reached by the trial court. Appellant contracted with appellee for the completion of “the work contemplated by [the] Contract.” The “work contemplated by [the] Contract” was “the complete installation” of the Project itself. The “complete installation” of the Project was to be accomplished in twenty-eight separate work “units.” Appellant did retain the right to increase or decrease the “quantities” of the work and material within a work “unit,” but only insofar as that increase or decrease “may be deemed reasonably necessary or desirable ... to complete” the Project. Thus, appellant did not retain the right to make a unilateral elimination from the scope of the Project and contract of any of the work “units” themselves. Having contracted with appellee for the “complete installation” of the Project in twenty-eight work “units,” appellant breached the agreement when, as to any one of those “units,” it refused to allow appellee to perform.

It follows that the trial court correctly granted a directed verdict in appellee’s favor as to the issue of appellant’s liability. “ ‘The parties are to be governed and their rights established by the contract which they made, which in this case is in writing, very full and explicit, and all of its terms, as far as practicable, must be given full effect. The intention is to be gathered largely from what the parties say, the words they use, and, when ascertained, both law and justice require it to be given full effect.’ [Cit.]” Myers v. Philip Carey Co., 17 Ga. App. 535 (1) (87 SE 825) (1916).

2. As to the issue of damages, appellant enumerates as error both the trial court’s grant of appellee’s motion for directed verdict and the denial of its own motion for directed verdict. A review of the record shows that the appellee’s president offered evidence which was relevant and probative to the issue of damages. His testimony was based upon an examination of appellee’s pertinent but extensive business records which were present in court. This evidence was uncontradicted and appellant’s only contention is that it was too speculative to authorize a recovery. “It has long been the accepted rule in Georgia that when the pertinent and essential facts can be ascertained only by an examination of a large number of voluminous entries in books of account or business records, an auditor or another familiar with the records who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of his investigation. [Cit.]” Depar tment of Transp. v. Delta Machine Prods. Co., 157 Ga. App. 423, 426 (3) (278 SE2d 73) (1981). Accordingly, appellant’s enumerations are without merit.

Decided May 19, 1988

Rehearing denied June 2, 1988

Albert Sidney Johnson, Karen K. Karabinos, for appellant.

James B. Ritchie III, for appellee.

3. Appellant also urges in its brief that certain of the trial court’s other rulings were erroneous. “However, since these matters were not enumerated as error, they were not made issues in the appeal, and therefore will not be considered. [Cits.]” Rider v. State, 226 Ga. 14, 15 (2) (172 SE2d 318) (1970).

4. The trial court did not err in denying appellant’s motion for a new trial.

Judgment affirmed.

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


text:
    76342.
    76351.
    GREEN v. THE STATE. MIMS v. THE STATE.
    (370 SE2d 348)
   Carley, Judge.

Appellants Anthony Lee Green and Sheonne Mims were indicted for the offense of trafficking in cocaine, in that they were “knowingly in actual possession of more than 400 grams of a mixture with a purity of more than ten percent cocaine.” Appellant Green was also indicted for possession of a firearm by a convicted felon. The jury returned a verdict of guilty as to all counts. Appellants filed separate appeals which are hereby consolidated for disposition in this single opinion.

1. Appellant Mims enumerates as error the denial of her motion to suppress certain items which were seized from an apartment.

Appellant Mims concedes that the seizure of the actual cocaine from the apartment, which seizure was accomplished by employees of the apartment complex, was not a violation of her Fourth Amendment rights. This is so because the apartment complex employees were neither agents of the State nor were they acting pursuant to any police instructions. Appellant Mims urges, however, that subsequent searches of the apartment, which were conducted by a police officer with the consent of the apartment complex employees, were unlawful and that the evidence which was seized during those searches should have been suppressed.

“Generally, the lessor of real property has no authority to consent to a warrantless search of rental property which is subject to an existing lease arrangement. [Cits.]” (Emphasis supplied.) Browning v. State, 176 Ga. App. 420, 421 (1) (336 SE2d 41) (1985). In this case, however, there was evidence which would authorize the trial court to find that, at the time that the entries by the police officer occurred, appellant Mims had neither leased nor was residing in the apartment, and that she had no contractual rights in the premises which were in any way superior to those of the apartment complex employees. Accordingly, the contested evidence was the product of lawful searches conducted pursuant to the valid consent of the apartment complex employees.

Moreover, even assuming that the trial court erred in denying appellant Mims’ motion to suppress, the reversal of her conviction would not necessarily result. The objects which were subsequently removed by the police were merely cumulative of the large amount of cocaine which previously had been found in the apartment by the apartment complex employees. As noted, the seizure of the cocaine itself, the possession of which contraband actually underlay the prosecution of appellants, is not contested. “If the admission of tainted evidence is harmless beyond a reasonable doubt the conviction will stand. [Cit.] When the properly admitted evidence to sustain a guilty verdict is overwhelming so as to negate the possibility that the tainted evidence contributed to the verdict, the constitutional error may be harmless. [Cit.] We find it harmless in this case. . . .” Ellis v. State, 256 Ga. 751, 755 (2) (353 SE2d 19) (1987).

2. Each of the appellants enumerates the general grounds.

OCGA § 16-13-31 (a) (1) requires proof that the defendant was “knowingly in actual possession” of cocaine. The evidence in this case, although it was for the most part circumstantial, was sufficient for a rational trier of fact to find, beyond a reasonable doubt, that appellant Mims was knowingly in actual possession of more than twenty-eight grams of cocaine and that appellant Green was a party to the crime. The proved facts were not only consistent with the hypothesis of guilt, but they also excluded every other reasonable hypothesis except that appellant Mims had placed the cocaine in the apartment where it was discovered and removed by the apartment complex employees, and that appellant Green had then aided and abetted her in its recovery. “[A] person who knowingly has direct physical control over a thing at a given time is in actual possession of it. [Cit.] . . . Although appellants testified they knew nothing about the [cocaine] their credibility was a question for the jury. [Cit.] ... It is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all. [Cits.]” Evans v. State, 167 Ga. App. 396, 397 (1) (306 SE2d 691) (1983). See also Robinson v. State, 175 Ga. App. 769 (3) (334 SE2d 358) (1985). “Whether he had physical possession of the cocaine, [appellant Green] aided and abetted its actual physical possession and is guilty of the offense of trafficking under OCGA § 16-13-31 and under § 16-2-20, as a party to the crime. . . . The ‘actual possession’ required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.” Barrett v. State, 183 Ga. App. 729, 735-736 (2) (360 SE2d 400) (1987).

We note that the trial judge did instruct the jury that it “would be authorized to convict only if they should find beyond a reasonable doubt that the defendant^] had actual or constructive possession either alone or jointly with others of the contraband.” (Emphasis supplied.) Subsequent to the trial of this case, the giving of such a charge in a trafficking in cocaine case was found to be reversible error. Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). This issue cannot be raised on appeal by either appellant, however, because their counsel waived any objection to the instructions which were given by the trial court. See Leverett v. State, 254 Ga. 691 (1) (333 SE2d 609) (1985). The only issue which appellants are entitled to raise on appeal is the sufficiency of the evidence of their actual possession of the contraband. We find the evidence as to that issue to be sufficient to meet the standard of proof established by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellant Green enumerates as error the trial court’s exclusion from evidence of testimony by appellant Mims concerning certain statements which had been made to her by her stepfather. The record shows that the exclusion of the testimony occurred during the direct examination of appellant Mims. To the extent that there was no proffer of the excluded testimony, there is nothing to review. See Hickox v. State, 138 Ga. App. 882 (3) (227 SE2d 829) (1976). To the extent that a proffer was made, the testimony was properly excluded. See Green v. State, 153 Ga. 215 (2) (111 SE 916) (1922).

4. Appellant Green enumerates error as to a portion of the closing argument of counsel for the State. There was no objection to the argument below and, therefore, there is nothing to be reviewed on appeal. Benton v. State, 184 Ga. App. 684 (3) (362 SE2d 421) (1987); Hamilton v. State, 181 Ga. App. 279 (2) (351 SE2d 705) (1986).

5. The failure of his trial counsel to object to the alleged improper closing argument of counsel for the State discussed in Division 4 is urged in support of appellant Green’s enumeration of error which raises the ineffective assistance of his counsel.

“Because [appellant Green] is represented on appeal by different counsel than at trial, we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. [Cit.]” Wadley v. State, 257 Ga. 280, 281 (4) (357 SE2d 588) (1987). “As the instant case was not pending in the trial court prior to the publication of the Supreme Court’s decision in Thompson v. State, [257 Ga. 386 (359 SE2d 664) (1987),] it is controlled by Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986) [and we need not decide what effect, if any, Thompson v. State, supra, would have under the facts here].” Foote v. State, 184 Ga. App. 900, 901 (1) (363 SE2d 180) (1987).

Decided May 11, 1988

Rehearings denied June 2, 1988

Janet G. Scott, for appellant (case no. 76342).

Ansell T. Maund III, for appellant (case no. 76351).

Robert E. Keller, District Attorney, Albert B. Collier, Clifford A. Sticher, Assistant District Attorneys, for appellee.

Judgment affirmed and case remanded with direction in Case Number 76342.

Judgment affirmed in Case Number 76351. Deen, P. J., and Sognier, J., concur.


text:
    76673.
    DELOITTE HASKINS & SELLS v. GREEN.
    (370 SE2d 194)
   Carley, Judge.

Appellee-plaintiff filed suit, alleging that he had been afforded negligent tax advice by certain employees of appellant-defendant. As a part of his discovery effort, appellee sought to obtain the personnel records and any evaluations made by appellant of those of its employees who had been involved in providing the allegedly negligent tax advice. When appellant would not make this material available for discovery, appellee moved the trial court for the entry of an order compelling its production. The trial court conducted a hearing and, upon finding that the matter was discoverable, it granted appellee’s motion to compel. The trial court’s order did, however, impose upon appellee certain limitations which were calculated to protect the privacy of appellant’s employees whose personnel records and evaluations were at issue. The trial court having also certified its order for immediate review, appellant applied to this court for an interlocutory appeal.

The courts of this State have long recognized “ ‘the overriding policy of liberally construing the application of the discovery law. To hold otherwise would be to give every litigant an effective veto of his adversaries’ attempts at discovery.’ ” Bridges v. 20th Century Travel, 149 Ga. App. 837, 838 (256 SE2d 102) (1979). The scope of permissible discovery is not, however, unlimited. OCGA § 9-11-26 (b) (1) provides that, as a general proposition, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. ... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. . . .” (Emphasis supplied.) With the exception of the discoverability of the proceedings and records of a medical review committee (see OCGA § 31-7-143), the issue of the discoverability of the internally generated personnel records and evaluations made by an employer of his allegedly negligent employees has not previously been addressed by the appellate courts of this State. It is that issue which is raised in the case at bar and it is that issue which prompted our grant of appellant’s application for an interlocutory appeal from the trial court’s discovery order.

1. The first question to be answered is whether the materials sought to be discovered by appellee constitute privileged matter.

Clearly, the discoverability of the materials being sought by appellee must be balanced against the competing interests that appellant and its affected employees have in the maintenance of the confidentiality and privacy of the internally generated personnel records and evaluations. “ ‘Certainly the competing interest in an individual’s right to privacy must be accommodated in the discovery process. Otherwise, the discovery process would become a device for the unscrupulous litigant to squeeze concessions from the opposing side in cases where such concessions were totally unwarranted. This sort of abuse simply cannot be tolerated in an ordered system of justice.’ [Cit.]” E. H. Siler Realty &c. Inc. v. Sanderlin, 158 Ga. App. 796, 797 (1) (282 SE2d 381) (1981).

It is, however, also equally clear that, under existing Georgia authority, the asserted need to protect the privacy of the internally generated personnel records and evaluations of allegedly negligent employees is not sufficient to render the material privileged from discovery as a matter of law. The freedom from discoverability that is presently afforded to the internally generated proceedings and records of a medical review committee does not exist as the result of a judicial recognition of a privacy privilege which is assertable at the election of the affected party. It is a privilege which exists solely as the result of specific legislation. OCGA § 31-7-143, as properly construed, reflects the legislative creation of a narrow exception to the general rule of broad discovery recognized in this state, rather than the legislative recognition of a broad privilege against the discovery of any and all employee personnel records and evaluations. OCGA § 31-7-143 “is in derogation of the general policy in favor of the discovery and admissibility of probative evidence. [Cits.] ‘Evidentiary privileges operate to exclude relevant information from the factfinder and thus are not favored.’ [Cit.] ‘Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.’ [Cits.]” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). Thus, implicit in the very enactment of OCGA § 31-7-143 are two legislative determinations. The first is that such internally generated material concerning employees, as that which appellee seeks from appellant, “would otherwise be available” to a litigant seeking to exercise his right to engage in broad discovery. The second is that such material cannot be discovered by one who is a party to a medical malpractice action. Thus, the statute serves to bar access to otherwise discoverable material by some parties. It does not serve to protect all parties from the obligation to make certain material available for discovery.

There is no viable basis for asserting that the privilege created by OCGA § 31-7-143 can or should be judicially extended to the internally generated personnel records and evaluations of those who have allegedly given negligent tax advice. It is a general principle of law that “ ‘[communications between principal and agent are not privileged.’ [Cit.]” Atlantic Coast Line R. Co. v. Daughterty, 111 Ga. App. 144, 150 (1) (141 SE2d 112) (1965). OCGA § 31-7-143 is narrowly drawn so as to afford a privilege only to a certain form of principal-agent communication which takes place in a medical setting. “It cannot be said that the separate classification of medical malpractice actions is arbitrary or unreasonable. . . . . [T]he separate classification of medical malpractice actions is a rational exercise of the legislative power. [Cit.]’ [Cits.]” Eubanks v. Ferrier, 245 Ga. 763, 766 (4) (267 SE2d 230) (1980).

Accordingly, we hold that, notwithstanding appellant’s claim of a privilege of privacy and confidentiality, it has no blanket right to refuse to allow appellee to engage in discovery as to the internally generated personnel records and evaluations of its allegedly negligent employees. The extent to which appellee is obligated to protect the privacy of the information contained in the material was comprehensively addressed in the trial court’s order. The privacy to be afforded to the material does not, however, extend so far as to preclude appellee’s access to it and, as against appellant’s contentions to the contrary, there was no error in granting appellee’s motion to compel. See generally Reece v. Selmonosky, 179 Ga. App. 718 (2) (347 SE2d 649) (1986).

2. Appellant further urges that the material is not relevant to the pending action against it. However, it is clear that, for purposes of discovery, the determination of relevancy is not to be based upon considerations of the potential admissibility at trial of the material which is being sought. “ ‘The discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action.’ [Cit.]” Armstrong v. Strand, 167 Ga. App. 723, 724 (307 SE2d 528) (1983). Accordingly, with regard to the relevancy of the materials being sought by appellee, the burden was upon appellant to show more than that the materials would not themselves be admissible at trial. The burden was on appellee to show that the discovery of those materials was not in some way reasonably calculated to lead to the potential discovery of admissible evidence. See Bullard v. Ewing, 158 Ga. App. 287, 291 (279 SE2d 737) (1981).

Decided May 20, 1988

Rehearing denied June 2, 1988

John A. Chandler, Elizabeth V. Tanis, for appellant.

Charles M. Kidd, David N. Schaeffer, for appellee.

In this state, the determination of the permissible extent of discovery and use of protective orders to insure that a party’s discovery efforts are kept within that permissible ambit are matters which are generally addressed to the discretion of the trial judge. “ ‘However, this must be a sound and legal discretion based on evidence and a showing of good cause. Protective orders “should not be entered when the effect is to frustrate and prevent legitimate discovery.” [Cit.]. . . . ‘ “It is contemplated that the trial judge will exercise a sound and legal discretion in the grant or denial of protective orders. Such are intended to be protective — not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the (discoveror’s) action, the court should not intervene to limit (or prohibit) the scope of pretrial discovery.” [Cit.]’ [Cit.]”’ (Emphasis omitted.) Bridges v. 20th Century Travel, supra at 838-839. We find no abuse of discretion in the trial court’s determination that the relevancy of the material being sought from appellant by way of discovery did not warrant its intervention so as to prohibit appellee’s access to it. Accordingly, as against any contentions of irrelevancy, the trial court did not err in granting appellee’s motion to compel the discovery of the internally generated personnel records and evaluations of appellant’s allegedly negligent employees.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    75865, 75908.
    ARMSTRONG v. VALLION; and vice versa.
    (370 SE2d 215)
   McMurray, Presiding Judge.

In this action for damages a patient, plaintiff Vallion, has sued her physician, defendant Armstrong, alleging a claim predicated upon an assault and battery. Plaintiff alleges that defendant misrepresented that he would remove a skin graft only from her buttocks when he intended and did remove the skin graft from her hip and leg. Upon trial of the case a verdict was returned in favor of the defendant.

Plaintiff moved for a new trial. Plaintiff’s motion for new trial was granted solely on the grounds that it was error to admit into evidence the plaintiff’s hospital records which were submitted by defendant. We granted defendant’s application for interlocutory review of the grant of plaintiff’s motion for new trial. Defendant appeals in Case No. 75865 and plaintiff cross-appeals in Case No. 75908. Held:

1. As the grant of a new trial was based on a special ground involving a question of law, the case sub judice does not fall within the general rule that the first grant of a new trial will not be disturbed. Cobb County &c. Hosp. Auth. v. Crumbley, 179 Ga. App. 896, 897 (348 SE2d 49).

2. At trial plaintiff’s only objection to the admission of plaintiff’s hospital record was that “the documents are hearsay.” Thus, the hospital record was objected to as a whole and no attempt was made by plaintiff to specify the portion which is objectionable as hearsay. “Where a portion of the evidence is admissible and a portion inadmissible, objection to the evidence as a whole which does not limit itself to objectionable parts is insufficient. [Cits.]” Crosswell v. Arten Constr. Co., 152 Ga. App. 162,166 (2) (262 SE2d 522). See also Mark Inn, Inc. v. Dept. of Transp., 174 Ga. App. 420, 421 (1) (330 SE2d 134); Brantley v. Heller, 101 Ga. App. 16, 18 (1) (112 SE2d 685); Wabash Life Ins. Co. v. Jones, 147 Ga. App. 254, 256 (2A) (248 SE2d 536). Thus, as some portions of the approximately 160-page hospital record were admissible the trial court did not err at trial in admitting the whole hospital record into evidence over plaintiff’s objection to the record in toto. Consequently, the grant of plaintiff’s motion for new trial was error.

3. In the cross-appeal plaintiff contends in her tenth enumeration of error that the trial court erred in allowing defendant’s expert witness to testify that a skin graft was an appropriate procedure to employ in treating plaintiff’s medical problem. However, such evidence was admissible for consideration of the jury in determining the amount of damages. Perry v. Hodgson, 168 Ga. 678, 687 (148 SE 659).

4. Plaintiff’s remaining nine enumerations of error involve the trial court’s failure to include in its instructions to the jurors, various requests to charge submitted by plaintiff. In each instance the requested charge is either not adjusted to the evidence or covered in substance in the charge given by the trial court. Plaintiff’s enumerations of error one through nine (on the cross-appeal) are without merit.

Decided June 2, 1988.

Robert P. Killian, for appellant.

Terry A. Dillard, Bryant H. Bower, Jr., for appellee.

Judgment reversed in Case Number 75865. Judgment affirmed in Case Number 75908.

Pope and Benham, JJ., concur.


text:
    76028.
    RIDGEWAY v. THE STATE.
    (370 SE2d 216)
   McMurray, Presiding Judge.

Defendant was charged by Indictment A-89787 with Violation of Georgia Controlled Substances Act (possession of cocaine with intent to distribute). Indictment A-89721 charged defendant, along with three others, of trafficking in heroin and Violation of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute). On Indictment A-89787 the jury found defendant guilty of simple possession. On Indictment A-89721 defendant was acquitted of the trafficking in heroin charge and found guilty of possession of cocaine with intent to distribute. Defendant appeals, raising as his sole enumeration of error the trial court’s denial of his motion for directed verdict with regard to Indictment A-89721. Held:

The State’s evidence shows that defendant was arrested during the search of an apartment. Defendant had not been observed during police surveillance of the apartment and his name was not on the search warrant. The search warrant contained a “no-knock clause” and police entered the apartment after they kicked the back door in, entering through the kitchen of the apartment. Defendant was found standing in the living room area of the apartment. At the time of the entry one of defendant’s co-indictees was in the kitchen and another was standing in the living area with defendant. On the floor near defendant’s feet was a folded dollar bill which when unfolded revealed a white powdered substance, and there was more money on a nearby table. Defendant was arrested after advising officers that the money was his. A custodial search of defendant revealed three more folded dollars containing a white powder, a plastic packet containing a white powder and a set of keys for the doors to the apartment. The white powder in the folded dollar bills was identified as cocaine. The cocaine found on and about defendant’s person was the basis of the charges in Indictment A-89787 and is not the basis of the charges addressed by defendant’s enumeration of error.

At issue are the charges in Indictment A-89721 which are based upon heroin and cocaine found in other locations in the apartment. In one of the bedrooms officers found bags containing glassine bags of cocaine and heroin. In the kitchen officers found a zip-lock plastic bag containing glassine bags of heroin. Also found in the kitchen and bedrooms of the apartment were various measuring spoons and scales, empty glassine bags and quantities of white powder suspected to be cutting agents. A lease for the apartment was found in the name of one of defendant’s co-indictees.

“ ‘It is well established that merely having been in the vicinity of contraband does not, without more, establish possession. (Cits.)’ Donaldson v. State, 134 Ga. App. 755, 756 (216 SE2d 645).” Blount v. State, 181 Ga. App. 330, 332 (352 SE2d 220). Also “ ‘ “(p)resence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. (Cits.) Even approval of the act, not amounting to encouragement, will not suffice. (Cit.) This is so because under OCGA § 24-4-6 ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ ” (Cit.)’ Moore v. State, 255 Ga. 519, 520 (1) (340 SE2d 888) (1986).” Crenshaw v. State, 183 Ga. App. 527, 528 (359 SE2d 419). In the case sub judice, this evidence authorizes the conclusion that defendant was aware of the contraband in the apartment. Also, the contraband found on defendant’s person which forms the basis of the charges in Indictment A-89787 clearly suggests a predisposition on the part of defendant to violate the Georgia Controlled Substances Act. This evidence combined with the presence of a key to the apartment on the person of defendant raise grave suspicions of defendant’s guilt. Yet we cannot say that the State’s evidence excludes every reasonable hypothesis other than defendant’s guilt. In this connection we note that the State’s evidence fails to associate the contraband on defendant’s person with that found in the bedrooms and kitchen of the apartment. In each instance the packaging of the contraband was different and the laboratory test on the contraband did not provide any information in this regard since no quantitative analysis of the contraband was performed.

Even if such were not the case, the question would remain as to whether defendant was a customer or co-conspirator. Although the keys found on defendant clearly show that he had access to the apartment, there was no evidence that he resided therein or was engaged in any conspiracy with his co-indictees to possess and distribute the drugs found in the kitchen and bedrooms of the apartment. While the evidence creates the gravest suspicion that defendant may be guilty of the offense of which he was convicted under Indictment A-89721, suspicion is not sufficient to support a conviction. Crenshaw v. State, 183 Ga. App. 527 (1), supra. Benda v. State, 142 Ga. App. 555 (236 SE2d 535); Blount v. State, 181 Ga. App. 330, 332, 333 (2), supra. The trial court erred in failing to grant defendant’s motion for directed verdict as to Indictment A-89721.

Decided June 2, 1988.

J. Douglas Willi:c, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Alfred D. Dixon, Assistant District Attorneys, for appellee.

Judgment reversed as to Indictment A-89721.

Pope and Ben-ham, JJ., concur.


text:
    76105.
    GULF WINDS, LTD. et al. v. FIRST UNION BANK.
    (370 SE2d 508)
   Beasley, Judge.

This appeal is from a judgment for the lessor following a bench trial in a dispute involving an alleged default under an equipment lease for two pay telephones.

Lease Planning, Inc., is in the business of leasing various types of equipment and motor vehicles. It solicits business from vendors, companies that either manufacture or distribute equipment. If a vendor’s salesman has a customer who would rather lease than pay cash for the equipment, he would use Lease Planning to purchase it. Sometimes Lease Planning is solicited from vendors asking if it would handle a transaction. In either event, the salesman submits the customer’s credit application to Lease Planning, which reviews it and submits it to its lending bank. If the bank approves, Lease Planning draws up the lease documents and provides them to the vendor for execution. When the documents are executed, Lease Planning then assigns the lease to the lending bank and the bank advances the money to pay the vendor for the equipment.

In this case, salesman Henke of Future Call of America, Inc., contacted Lease Planning to handle lease financing on some of the company’s telephone systems. Subsequently, Future Call solicited Gulf Winds, Ltd., to purchase two telephone booths and equipment. Henke submitted to Lease Planning a credit application for Gulf Winds’ lease of the equipment. Lease Planning and its lending bank, First Union Bank, (then Commercial Bank & Trust Company), reviewed and approved the application. Lease Planning prepared the lease documents which were executed by Chandler, vice-president of Gulf Winds. The documents consisted of the equipment lease, a supplementary schedule, a delivery and acceptance receipt, and an option to purchase. A personal guaranty by one James was also executed to insure Gulf Winds’ obligations under the lease.

Lease Planning assigned the equipment lease to the bank, obtained the loan in the principal amount of $4,939.02, and paid this amount to Future Call. After the equipment was delivered and installed, Gulf Winds was dissatisfied with it. At the time of execution of the documents, Gulf Winds made two lease payments for the first and last months; it later made additional payments prior to its cessation of payments under the lease.

Lease Planning (First Union as its assignee was later substituted as the plaintiff) sued Gulf Winds and guarantor James to collect $6,235.52 allegedly due under the lease, plus interest and attorney fees. Defendants responded that they had no obligation under the lease because it was procured by the fraud of Henke as Lease Planning’s agent and because there was a failure of consideration in that no operable telephones were ever delivered.

The trial court found that Henke was not Lease Planning’s agent, that if anything Henke was Gulf Winds’ agent in procuring the financing, that there was no fraud, that there was no testimony to establish any difference in the equipment between what was represented by Henke and what Gulf Winds received, and that the lease documents made clear that Gulf Winds had to look to the manufacturer of the equipment in the event there was any problem with it. The court awarded judgment in favor of plaintiff First Union for the sum sought plus fifteen percent as attorney fees, post-judgment interest at the legal rate, and costs.

1. Gulf Winds and James contend that under Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883 (354 SE2d 210) (1987), the trial court erred in determining that Henke was not Lease Planning’s agent.

It is true as appellants contend that Potomac Leasing involves a similar situation. Potomac did not directly employ any leasing agents. Instead, salesmen, who were employed by manufacturers or product distributors were provided with blank copies of the leasing company’s documents and were instructed with regard to how those documents were to be filled out. When a salesman visited a potential customer, in addition to being authorized by his employer to negotiate a direct purchase, he was also authorized by the leasing company to negotiate a lease of the product. The salesman.would fill in the leasing documents with the relevant information, secure the customer’s signature, and send the completed document to the leasing company. If the leasing company accepted the lease as negotiated by the salesman, the company would purchase the product from the salesman’s vendor. The company then received the stipulated monthly rental from the customer. The salesman negotiated a lease of equipment which was sent to and accepted by Potomac. The lease agreement contained a provision expressly stating that the salesman did not occupy the status of the leasing company’s agent and that the salesman’s representations would in no way affect the parties’ rights or obligations under the lease. The lessee ceased to make rental payments alleging that the leased equipment had failed to perform as it had been represented by the vendor’s salesman. Potomac sued the lessee to recover the balance due under the lease and the lessee defended in part on the basis of fraud in the inducement of the lease.

The case was tried before a jury and after Potomac’s motion for a directed verdict was denied, the jury returned a verdict in favor of the lessee. On appeal, Potomac’s sole enumeration was the denial of a directed verdict.

This court held that the trial court did not err in denying Potomac’s motion for directed verdict on the ground that there was no evidence of agency, because the denial of Potomac’s witness of an agency relationship and the language in the lease document that the salesman did not occupy the status of Potomac’s agent were not necessarily conclusive as to the non-existence of an agency relationship. The court did not hold that the facts in Potomac required the legal conclusion that the salesman was Potomac’s agent, but merely that there was some evidence of it so as to make inappropriate a directed verdict on the issue of non-existence of an agency relationship.

This case is presented in a very different procedural posture. The lower court was sitting as the factfinder and it found from the evidence that Henke was not Lease Planning’s agent. “In a bench trial the court sits as the trier of fact and his findings ‘shall not be set aside unless clearly erroneous . . .’ [Cit.] The ‘clearly erroneous’ test is the same as the ‘any evidence rule.’ [Cit.] Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them. [Cit.]” Allen v. Cobb Heating &c. Co., 158 Ga. App. 209, 210 (279 SE2d 505) (1981); OCGA § 9-11-52. Accord Davis v. Hosp. Auth. of Fulton County, 167 Ga. App. 304, 305 (306 SE2d 306) (1983); Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983).

“An agent... is some person authorized to act for another arising when, expressly or impliedly, there has been a delegation with more or less discretionary power to act, to manage an affair, and to render an account.” Headrick v. Fordham, 154 Ga. App. 415, 417 (1) (268 SE2d 753) (1980). The existence of agency and the extent of the agent’s authority are questions of fact for the trier of fact. Wiggins v. Home Owners &c. of Metro. Atlanta, 168 Ga. App. 777 (310 SE2d 554) (1983); Renfroe v. Warren-Hawkins &c. Post No. 523, 157 Ga. App. 614 (278 SE2d 414) (1981).

In this case, unlike in Potomac, the salesman was not authorized to negotiate with the purchaser/lessee on behalf of Lease Planning. Nor did the salesman Henke prepare the lease documents. These factors evidenced a lack of discretionary power on the part of Henke to act for Lease Planning. As there is evidence to sustain the court’s finding of no agency in regard to Henke, we cannot disturb it.

2. Appellants urge that the court erred in implicitly determining no fraud by Henke.

Inasmuch as we have determined that the trial court’s finding that Henke was not Lease Planning’s agent is supportable, whether or not Henke fraudulently induced defendants to enter into the arrangement is no longer relevant to Lease Planning’s liability for the alleged fraud.

3. Appellants enumerate as error that the trial court implicitly and erroneously found no failure of consideration, but they have not presented any direct argument or authority on this contention and therefore it is treated as abandoned. Court of Appeals Rule 15 (c) (2). However, we note that there is evidence to sustain the finding that the lease was supported by consideration. Gulf Winds received the telephone equipment, and although defendants asserted that it was “nonstandard,” it was operational at least part of the time. Moreover, the question of fitness of the equipment is not determinative on any issue of want of consideration between the lessor and lessee, for in return for Gulf Winds’ promise to make lease payments, Lease Planning obtained a loan and purchased the equipment. “It is not necessary that the promisor receive anything, as loss, trouble or disadvantage undergone by the promisee is a sufficient consideration. [Cits.]” Collins v. Gwinnett Bank &c. Co., 149 Ga. App. 658 (255 SE2d 122) (1979).

4. Appellants claim that the court erred in ruling that Chandler’s testimony regarding conversation with Henke was inadmissible hearsay. Beyond this bare assertion, there is no supporting authority or argument, and the claim is considered abandoned. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315) (1985).

5. In argument throughout their brief appellants complain that the trial court should have ruled as a matter of law that they revoked acceptance under the Uniform Commercial Code, OCGA § 11-2-608, but they did not enumerate this as error.

“ ‘An enumeration of error cannot be enlarged to include other issues not made therein.’ [Cit.]” Hurston v. Ga. Farm &c. Ins. Co., 148 Ga. App. 324, 326 (2) (250 SE2d 886) (1978).

Judgment affirmed.

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

Decided June 2, 1988.

Scott Walters, Jr., for appellants.

Scott F. Norberg, for appellee.