text:
    74312, 74313.
    OWEN v. OWEN; and vice versa.
    (359 SE2d 229)
   Pope, Judge.

Appellant Chester W. Owen and appellee Gail Lynn Owen were divorced in the Superior Court of Muscogee County on May 31, 1985. The issue of custody of their minor child was referred to the Juvenile Court of Muscogee County. After the parties consented to a joint custody agreement with physical custody of the child in the mother and specified visitation privileges to the father, these arrangements were incorporated into the final decree of divorce. On November 21, 1985 appellant filed a petition in the Muscogee Juvenile Court seeking sole permanent custody due to an alleged change of circumstances adversely affecting the welfare of the minor child. The issue was investigated and heard, and appellant’s petition was denied on appellee’s motion for directed verdict. We granted appellant’s application for discretionary appeal.

1. Appellant contends that the juvenile court did not have subject matter jurisdiction of the petition to change custody. The transcript of the hearing indicates that when this question arose, the juvenile court judge was apparently under the impression that the referral by the superior court to determine child custody in the divorce action allowed its jurisdiction to continue in the modification proceeding. At any rate, the juvenile court did not expressly rule on the issue and proceeded with the hearing. The order appealed from recites as its first conclusion of law that the juvenile court had “jurisdiction over the parties and the subject matter herein, pursuant to OCGA § 5-11-5 [sic].” This ruling is erroneous.

Under OCGA § 15-11-5 (c), “[w]here custody is the subject of controversy, except in those cases where the law gives the superior courts exclusive jurisdiction, in the consideration of these cases the juvenile court shall have concurrent jurisdiction to hear and determine the issue of custody and support when the issue is transferred by proper order of the superior court.” There was no order of the superior court transferring the petition to the juvenile court here, and the jurisdiction obtained during the divorce action could not serve to retain such jurisdiction. “[A]fter a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action ... in compliance with Article VI, Section XIV, Paragraph VI of the Constitution of this state.” (Indention omitted.) OCGA § 19-9-23 (a) and (b). “A judgment fixing the custody of a minor child of divorced parents is a final one on the facts then existing, and any attempt by the trial judge to retain jurisdiction of the child is a nullity. Any language contained in a judgment which purports to . . . retain jurisdiction in the court to amend or modify the award has no effect.” (Citations and punctuation omitted.) Draper v. Draper, 170 Ga. App. 727 (318 SE2d 314) (1984). Nor can a party “voluntarily” submit himself to the jurisdiction of an improper court. Jones v. Jones, 178 Ga. App. 794, 795 (344 SE2d 677) (1986), aff'd 256 Ga. 742 (352 SE2d 754) (1987).

Although we are not unsympathetic with the plight of the child, as well as the divorced parents in this California-Georgia custody dispute, and although we recognize the difficulties arising from protracted litigation, we are unable to endorse the premise that the error can be remedied by a nunc pro tunc amendment. See generally Burns v. Fedco Mgt. Co., 168 Ga. App. 15 (308 SE2d 38) (1983). Clearly, “the juvenile court, without a proper transfer from the superior court which has not been shown here, was without authority to modify the custody provisions of the final divorce decree. . . .” In the Interest of M. M. A., 174 Ga. App. 898, 899 (332 SE2d 39) (1985). Therefore, the purported juvenile court judgment was without force or effect and must be reversed. Conroy v. Jones, 238 Ga. 321 (232 SE2d 917) (1977). Cf. In the Interest of L. J. V., 180 Ga. App. 400 (349 SE2d 37) (1986); Whitlock v. Barrett, 158 Ga. App. 100 (279 SE2d 244) (1981).

2. It follows that the juvenile court was likewise without jurisdiction to consider the appellee/cross-appellant’s motion for attorney fees for defending the change of custody claim. In any event, although an award of attorney fees is authorized under OCGA § 19-6-22 when the obligated spouse seeks to modify a permanent alimony judgment, they are not recoverable in an action where the noncustodial parent seeks a change of custody. Haselden v. Haselden, 255 Ga. 366 (1) (338 SE2d 257) (1986); Wilkins v. Wilkins, 234 Ga. 404, 406 (216 SE2d 302) (1975).

Judgment reversed.

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

Decided June 30, 1987.

Anne H. Jarrett, for appellant.

Jerry D. Sanders, for appellee.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    74434.
    THACKER v. MATTHEWS TUXEDO, INC. et al.
    (359 SE2d 231)
   Birdsong, Chief Judge.

Alexandria A. Thacker, plaintiff below, appeals from the grant of summary judgment to the defendant grocery store. Thacker was shopping in defendant’s grocery store on Roswell Road in Atlanta, and alleged that she tripped and fell in the parking lot over a sign which was negligently designed and constructed. The trial court granted defendant’s motion for summary judgment, and Thacker brings this appeal. Held:

Appellant enumerates but one error, that there remain substantial issues of fact to be resolved by the jury. Deposition testimony of Ms. Thacker established that she was 75 years of age and could not remember the date of her alleged injury. She did recall that she had visited defendant’s grocery store and had driven her car to the premises. She customarily visited the same store “two or three times a week.” Ms. Thacker had finished her shopping and had taken some of her groceries back to her car. As she returned to the store, “my toe hit something and it was a — it had to be it, because that walkway is, you know, you know what I mean. And when I did, I fell forward and hit my head and my hand on the sidewalk. ... I fell on that step, on the way back in, yes.” She was asked, “but what did you hit, that made you hit the pavement? A. Something that my toe hit. Q. Do you know what your toe hit? A. I couldn’t look down because I was looking where I was going. Q. Okay. So you — A. Stumbled over something. Q. You stumbled over something? . . . You’re not sure what it was? A. No, but it wasn’t there when I went down, because I would have hit it.” When questioned about the allegation that she stumbled over a negligently designed and constructed sign, she answered: “Well, it was the sign that was on that thing. The thing moved, whatever it was. . . . That sign that was on that little cart. ... It was suppose [d] to be up where the things are, but it had rolled down to where the cars come. It had gotten away. Q. The sign on the cart? . . . A. On a cart. Now, just a little sign, but they had a sign on it. . . . About a foot and a half by two feet, something like that. . . . Q. Ms. Thacker, you stated that you did not know what you hit. A. No, that’s just my . . . Just a guess. . . . But there was something there on that walkway that wasn’t there when I went down, because I would have hit it. And when I went back up, I hit it. Q. But you don’t know what it was? A. No.”

When Ms. Thacker was asked if she had been hospitalized, she said that before this incident she had fallen “on ice twice,” and broken one hip at one time and another hip at the second time. She has also broken her hip again after the accident when she fell down some steps. She had also broken her collarbone, her nose and her arm. She was asked: “Q. Ms. Thacker, what did the grocery store do wrong? A. Everything. . . . Q. What do you mean? A. Well, it didn’t see about my [injured] hand. They didn’t call me ... to see how I was getting along. I was just another customer of theirs. Q. They didn’t do anything wrong before you fell, though? A. No.”

The general purpose of the summary judgment procedure is to determine if there is a material issue of fact to be tried, rather than to set up a technical pitfall for the unwary advocate. Glenn v. MARTA, 158 Ga. App. 98, 99 (279 SE2d 481). Usually, issues of negligence, contributory negligence, and lack of ordinary care for one’s safety are not susceptible of summary adjudication, but a trial court is permitted to conclude, as a matter of law, that the facts do or do not show negligence on the part of a defendant where the evidence is plain, palpable and indisputable. Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336). Although the rule in Georgia is all evidence adduced on motion for summary judgment, including that of the party opposing the motion to be construed against the movant (TriCities Hosp. Auth. v. Sheats, 247 Ga. 713, 714 (279 SE2d 210)), the testimony of a party is to be construed most strongly against him where it is self-contradictory, vague or equivocal. Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866). The standard to be applied is: (1) determine whether the testimony of the party is contradictory, (2) if a reasonable explanation is offered for the contradiction, that testimony will not be construed against the party, (3) the burden is on the party giving the testimony to offer a reasonable explanation, and (4) whether this has been done is an issue of law for the trial judge. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680).

Although the complaint alleged Ms. Thacker fell over “a sign which was negligently designed and constructed,” a summary of her deposition testimony is that she “fell on that step,” she “stumbled over something,” she “couldn’t look down because [she] was looking where she was going,” “it was the sign that was on that thing. The thing moved,” “It had gotten away,” her conclusion was “[j]ust a guess” as to what she stumbled over, and she did not know what it was that caused her fall. In effect, she has concluded she fell and something must have caused it. Such testimony is contradictory. Ms. Thacker has offered no reasonable explanation for such contradiction. There is no reasonable evidence of a condition created or suffered to exist by the owner of which it had or could have had greater knowledge than Ms. Thacker. The trial court was justified in finding an absence of any material issue of material fact and in granting summary judgment to the defendant. Butler v. Doe, 180 Ga. App. 313, 314 (349 SE2d 34); Georgia Farm Bureau Mut. Ins. Co. v. Nolan, 180 Ga. App. 28, 29 (348 SE2d 554).

Decided June 30, 1987.

Joseph J. Fine, Gary M. Goldsmith, for appellant.

Thomas F. Allgood, Jr., for appellees.

Judgment affirmed.

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


text:
    74498.
    BROWN v. THE STATE.
    (359 SE2d 233)
   Birdsong, Chief Judge.

Ira L. Brown, the defendant, appeals his conviction of two counts of sale of marijuana. On August 17, 1985, Mark Stewart, a special agent of the GBI, while conducting an undercover investigation in Thomasville, Georgia, purchased a package of marijuana from defendant Brown, while in the company of Special Agent A1 Evans, GBI. Evans was passing through the same area on August 22, 1985, and met Brown. He made another purchase of marijuana. Both bags of marijuana tested positive in tests conducted at the Georgia Crime Lab. The State also introduced evidence of a similar transaction. On October 11, 1985, David Hufstetler, Commander of the Thomasville-Thomas County Drug Squad, saw Brown and a companion run across the road to a pickup truck in the same area where the two GBI agents said they had made their purchases from Brown. When Brown saw Officer Hufstetler, he threw a package across the pickup truck into the ditch. The package was retrieved by Hufstetler and it was a $10 package of marijuana. When the officer turned around, Brown was gone. The officer told a friend of Brown’s to have Brown call him. Brown called and agreed to meet with the officer. At that meeting, Brown told him: “if I promise you that I’ll quit selling reefer and get a job, will you not arrest me?” Officer Hufstetler declined the offer and arrested the defendant. On cross-examination, defendant’s counsel introduced the fact that in regard to the similar transaction Brown was convicted on the lesser charge of possession of marijuana rather than the one for which indicted — possession with intent to distribute. The jury returned a verdict of guilty and Brown brings this appeal. Held:

1. Defendant assigns error to the ruling of the trial court in permitting introduction of the subsequent similar transaction on the basis that the prosecution “did not comply with the Uniform Superior Court Rule 31.3 by attaching copies of accusations or indictments, if any, and guilty pleas or verdicts.” Rule 31.3 of the Uniform Superior Court Rules provides, inter alia, that the prosecution may request the court for leave to present evidence of similar transaction or occurrences, by filing notice with the court and served upon defendant’s counsel, which “shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” The notice in the instant case referred to a violation of the Georgia Controlled Substances Act on October 11, 1985, and referred to defendant’s possession of marijuana with intent to distribute and his asking Hufstetler, when told he was arrested, if Hufstetler would let him go if he promised to get a job and quit selling dope.

Evidence of other “criminal acts” may be admissible to show motive, intent, absence of mistake or accident, plan or scheme, and identity. Walraven v. State, 250 Ga. 401, 408 (297 SE2d 278). It is not necessary that the other offenses must have resulted in trial or conviction. See Natson v. State, 242 Ga. 618 (1) (250 SE2d 420), U. S. cert. den. 441 U. S. 925. Evidence of subsequent sales of drugs would be admissible in a trial for sale of marijuana. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321). This is particularly true when identity is in issue. Id. In the instant case, Brown denied that he sold marijuana to either of the undercover GBI agents. The subsequent act was portrayed by the police officer to be the attempt of a sale of marijuana before Brown saw him, and then Brown discarded the marijuana. This act occurred at the same approximate location as the two sales to the GBI agents, and Brown identified himself to the GBI agents as “Rap,” a pseudonym the local police officer testified was what everyone “calls him on the street.” Hence the subsequent offense was admissible.

The State advised the court and the defendant that they would introduce the similar transaction and the statement made by Brown to Hufstetler that he would quit selling dope if the officer would not arrest him. The transcript shows that this is the only evidence offered by the State at trial. Defendant’s counsel introduced the fact that Brown had been indicted and convicted for that offense. “Induced error is impermissible.” Edwards v. State, 235 Ga. 603, 604 (221 SE2d 28). A similar offense is admissible, and it is not necessary that such offense have resulted in indictment or conviction. The State advised the court and defendant of what they would offer and complied with that portion of Rule 31.1 relating to the evidence offered. Any evidence of indictment or conviction for the other offense would be inadmissible, over objection, for non-compliance with the Rule. We find no prejudice to defendant, or reversible error, for a failure to include within the notice of intent to introduce a similar offense, any reference to an indictment or conviction, if the State does not introduce such evidence.

Decided June 30, 1987.

Berry B. Earle III, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

2. The statement made by defendant Brown to Officer Hufstetler was not inadmissible on the basis that it was hearsay. It was a voluntary statement made by the defendant, not in response to questioning. Shy v. State, 234 Ga. 816 (I) (218 SE2d 599). We find no error in the admission of Brown’s voluntary statement made to the officer just prior to his arrest.

Judgment affirmed.

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


author: Benham, Judge.

text:
    73657.
    UNITED STATES FIRE INSURANCE COMPANY v. COWLEY & ASSOCIATES et al.
    (359 SE2d 160)
   Benham, Judge.

Appellant, United States Fire Insurance Company (“U. S. Fire”) issued a policy of aviation insurance to appellee Cowley & Associates for a private plane that the company owned. The policy Mr. Cowley selected covered “personal and pleasure use and use in direct connection with the insured’s business, excluding any operation for which a charge is made.” Cowley used a pilot, Jeff McConnell, who flew the plane for Cowley as an independent contractor and also flew it with Cowley’s permission for his own business endeavors. During a return flight from Lexington, Kentucky, to Georgia, the plane crashed, killing McConnell and his passengers. U. S. Fire filed a declaratory judgment action seeking to avoid liability to pay the claims filed under the policy, its position being that the operation was one for which a charge had been made. U. S. Fire contended that the flight was part of a charter operation McConnell had been running. After several motions for summary judgment had been made and denied and a trial that resulted in a hung jury had taken place, appellees filed another motion for summary judgment, which the trial court granted. U. S. Fire appeals, enumerating as error the grant of summary judgment and the construction of the operative exclusion as requiring that actual payment be made by the passengers to the insured prior to the incident out of which a claim arises.

Appellant contends that although McConnell charged his passengers a rate much lower than that of a regular charter service, he was using the insured plane to run a charter operation, thus excluding it from coverage. It reached that conclusion based on the testimony of a former passenger that after a round-trip flight had been completed, McConnell would calculate and solicit payment in various amounts from some of his passengers, and that the passengers would make payment to Sports Air Flights, Inc., McConnell’s company. More specifically, U. S. Fire relies on the fact that this same procedure was followed after an earlier flight McConnell made to a construction site in Lexington, Kentucky, with some of the same passengers who were on the fatal flight. However, there is no direct evidence that this or any other payment arrangement was used on the flight in question; appellant would have us infer that such an arrangement had been made in light of the parties’ previous conduct.

Appellant further argues that the contract provision “excluding any operation for which a charge is made” is unambiguous when read in the context of the whole policy and that it means that “coverage will not extend to flights where payment for the flight in any amount is contemplated to be made from one to the insured or pilot.”

It appears that this is the first time we have been called upon to interpret the language of this contract provision. To do so, we must examine whether the trial court applied the three-step process of contract construction, i.e., decide whether the contract language is ambiguous; if it is, then apply the applicable rules of construction (OCGA § 13-2-2); and if an ambiguity still remains, the jury must resolve it. Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). Utilizing this process, we find that the contract provision is unambiguous, but we do not find that it means what appellant contends it does. Appellant’s interpretation is more broad than the words of the policy indicate it was intended to be. The phrase “a charge is made” is not synonymous with “payment . . . contemplated to be made. . . .” If the latter phrase is what appellant intended, it should have used those words. We read “a charge is made” to mean that the person offering a service puts the recipient on notice that there will be some amount assessed against him for providing that service; in other words, the service would not be provided for free. Appellant’s definition would exclude such transactions from coverage but would also exclude those transactions in which the recipient of the service took it upon himself to pay for the service even if it were not required by the provider or the insured. Even if we were to accept appellant’s interpretation, there is no evidence that the passengers on the fatal flight contemplated making payment to Cowley or McConnell or that either of them expected to receive payment.

Since all of the passengers died in the crash, none was available to testify whether or not arrangements had been made for payment for the flight. There were no invoices, memos, bills, pre-flight charges, or other documents or testimony evidencing a charge made by McConnell for the flight or the intention of the passengers to pay any amount to McConnell for the flight. In his deposition Cowley testified that he did not make and has not made a charge relative to the operation of his plane on the fatal flight; that using the plane as a charter for profit was strictly prohibited; and that it was never used in that way as far as he knew. Cowley further testified that McConnell had his own construction management company and was an architect with a substantial engineering background, and that he allowed McConnell to use the plane for McConnell’s architectural, engineering, draftsman, and construction management work. Cowley said he did not receive cash reimbursements for allowing McConnell to use the plane; instead, McConnell repaid him by piloting him free of charge. Regarding the fatal crash flight, Cowley said McConnell was acting on Cowley’s behalf to show some of the passengers the plane’s capabilities. Cowley was exploring the possibility of having one or more of the passengers buy a share of the plane for their use because Cowley was not using the plane enough to justify the cost; and prior to the flight, there had been a meeting at which the matter was discussed. Another objective of the flight was for McConnell to investigate, on Cowley’s behalf, the possibilities of work at the Lexington, Kentucky, site for Cowley’s company. McConnell had indicated to Cowley that he might be interested in having Cowley & Associates become involved in the remodeling being done at the Lexington site. These circumstances differed from those surrounding McConnell’s first round-trip flight to Lexington, Kentucky.

Appellant has not produced any evidence to contradict Cowley’s testimony, only the implication that there would have been a charge imposed by McConnell had the flight been completed, because he had done so in the past. There being no ambiguity of contract terms, and appellees having met their burden, as the movants for summary judgment, to show affirmatively that the flight in question was one for which no charge was made, and appellant having failed to present evidence to meet its burden of contradicting appellees’ proof, the trial court did not err in granting summary judgment to appellees. Fort v. Boone, 166 Ga. App. 290 (304 SE2d 465) (1983).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided June 8, 1987

Rehearing denied July 1, 1987

Sewell K. Loggins, Michael V. Elsberry, Brian J. Morrissey, for appellant.

A. Russell Blanks, Winnie P. Pannell, Glover McGhee, M. Charles Lokey, Alexander J. Repasky, T. Cullen Gilliland, Gregory E. Stuhler, for appellees.


author: Carley, Judge.

text:
    73665.
    GILL v. THE STATE.
    (359 SE2d 163)
   Carley, Judge.

Appellant was tried before a jury on an indictment charging him with one count of theft by taking of a motor vehicle. Appellant denied participation in the actual commission of the crime. He did, however, admit that he was a passenger in the stolen vehicle and had abandoned the car and fled the scene after the police had undertaken pursuit. The jury found appellant guilty as charged. Appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Defense counsel adduced testimony during the cross-examination of the victim which showed that another of the victim’s cars had been stolen by appellant on a previous occasion. Thereafter, the district attorney undertook on redirect examination of the victim to demonstrate the similarity between the prior and the instant theft. In his closing argument, the district attorney commented on appellant’s commission of the prior offense, stating that the jury “could consider that” in determining whether appellant’s flight was consistent with his guilt or innocence in the instant case. Appellant moved for a mistrial, asserting that the district attorney’s argument was improper. The trial court did not grant appellant’s motion and did not give immediate curative instructions. The trial court’s failure to take any ameliorative action is enumerated as error.

“Where counsel in the hearing of the jury makes statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same.” (Emphasis supplied.) OCGA § 17-8-75. Here, the topic of appellant’s prior theft was introduced by his own counsel and there can be no complaint that the State subsequently pursued the topic. See generally O’Neal v. State, 239 Ga. 532, 533 (2) (238 SE2d 73) (1977). Evidence of appellant’s commission of another similar theft of an automobile was relevant and admissible in this case. See generally Brown v. State, 164 Ga. App. 118 (296 SE2d 415) (1982). It would be relevant to appellant’s knowledge that the car was stolen and to his intent to deprive the victim of his property. See generally Kendrick v. State, 156 Ga. App. 27, 28 (274 SE2d 78) (1980). “Since evidence of a similar crime was admitted properly, ... it was not error to argue that such evidence could be considered in establishing guilt. [Cit.]” O’Neal v. State, 170 Ga. App. 637, 638 (2) (318 SE2d 66) (1984). “ ‘Counsel is permitted, in the sound discretion of the [trial] court, to argue all reasonable inferences and deductions which may be drawn from the evidence. . . .’ [Cit.]” Bryant v. State, 164 Ga. App. 555, 557 (3) (296 SE2d 792) (1982). “In the absence of a demonstration that a mistrial was essential to the preservation of appellant’s right to a fair trial, it was not an abuse of the trial court’s discretion to deny [appellant’s] motion for mistrial, even where no curative instructions were given. [Cit.]” O’Neal v. State, 170 Ga. App. at 638 (2), supra. See also Simonton v. State, 151 Ga. App. 431 (1) (260 SE2d 487) (1979).

Decided June 8, 1987

Rehearing denied July 1, 1987.

R. M. Guttshall III, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

2. Appellant’s second enumeration of error is controlled adversely to him by our decision in Division 1 of this opinion. There was no error.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    73694.
    BRUNSWICK MANUFACTURING COMPANY, INC. et al. v. SIZEMORE et al.
    (359 SE2d 180)
   McMurray, Presiding Judge.

Plaintiffs are former employees of defendant Brunswick Manufacturing Company, Inc. (“Brunswick”). Also named as defendants are L & M Holding Company and Kaper-Jac, Inc., both of whom are corporations closely related to Brunswick. Individual defendants are Levine, vice president and part-owner either as a shareholder or through a parent corporation of each of the corporate defendants, and Gettinger, the former plant manager for Brunswick. For earlier appeals in this case see Brunswick Mfg. Co. v. Sizemore, 176 Ga. App. 838 (338 SE2d 288).

Plaintiffs’ recast complaint alleged that defendants were indebted to the plaintiffs for certain compensation earned but not paid. The amount alleged as due on behalf of each plaintiff was a “bonus” or “vacation pay” to be paid on the 15th day of December each year in an amount equal to six percent of each plaintiff’s gross pay during the year. In October of 1982, Brunswick closed its plant at which plaintiffs were employed and they were terminated. Plaintiffs allege that their inquiry as to when they would receive the sums at issue was answered with the response that funds were not available from which to pay plaintiffs the sum owed.

Upon the trial of the case sub judice, the jury returned verdicts in favor of plaintiffs against the three corporate defendants only. Plaintiffs were awarded actual damages, interest and expenses of litigation. The corporate defendants appeal. Held:

Insofar as Brunswick is concerned the evidence is uncontroverted and clear that plaintiffs are owed the compensation at issue. Contrary to the suggestion that the sums at issue were merely a customary gratuitous payment, both of the individual defendants acknowledge a contractual obligation of Brunswick to make these payments.

The primary issue presented is whether the jury was authorized to pierce the corporate veil so as to hold defendants L & M Holding Company and Kaper-Jac, Inc. liable for the debt of Brunswick. “The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party ‘has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetuate fraud or evade contractual or tort responsibility.’ Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 326 (3) (297 SE2d 292). See also Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (4) (250 SE2d 851); Fla. Shade Tobacco Growers v. Duncan, 150 Ga. App. 34, 35 (256 SE2d 644). The question of whether the corporate entity should be disregarded depends upon the particular circumstance of each case. Midtown Properties v. George F. Richardson, Inc., 139 Ga. App. 182, 185 (4) (228 SE2d 303).” Hogan v. Mayor & Aldermen of Savannah, 171 Ga. App. 671, 673 (3) (320 SE2d 555).

In the case sub judice there are some inconsistencies in the evidence as to the ownership of the corporate defendants. However, the range of the evidence may be encompassed by stating that each corporate defendant was owned by one or a combination of the following: Playland Industries, a closely held non-party corporation; a subsidiary of Playland Industries; or one or more of the three individuals (including defendant Levine) who were shareholders of Playland Industries.

Plaintiffs contend that the assets of Brunswick were “being bled from the corporation” by the other two corporate defendants. This contention, if proven, would of course authorize the jury verdict piercing the corporate veil. Trans-American Communications v. Nolle, 134 Ga. App. 457, 458 (1 (a)), 460 (214 SE2d 717). However, the fact that Brunswick provides and partakes of services offered or required by related corporations is not alone a sufficient basis for piercing the corporate veil where there is no evidence that Brunswick, “ ‘ “was a sham, or that it was used to . . . justify wrong, protect fraud, defend crime, or any other reason which in equity and good conscience would justify the disregard of . . . [Brunswick’s] separate entity.” ’ Florida Shade Tobacco Growers v. Duncan, 150 Ga. App. 34, 35 (256 SE2d 644).” Boafo v. Hosp. Corp. of America, 177 Ga. App. 75, 76 (338 SE2d 477). Defendant Levine testified that: “We never mixed up funds. Whenever Brunswick Manufacturing did something for the other division, there was an invoice made. Things are always handled — we always had intercompany checks paying one for the other. Everything was kept separate and distinct.” However, in the posture the case sub judice reaches this court, the issue presented is whether there is any evidence to the contrary so as to authorize the jury’s verdict. American Game &c. Music Svc. v. Knighton, 178 Ga. App. 745 (1) (344 SE2d 717).

The primary evidence presented by plaintiffs in regard to the ownership, operations and business practices of the defendant corporations and the related non-party corporation Playland Industries was through the cross-examination of the individual defendants. In the course of cross-examining the individual defendants, plaintiffs’ counsel attempted to impeach these witnesses by showing previous contradictory statements. Plaintiffs’ counsel having established the prior contradictory statements in compliance with OCGA § 24-9-83, the credibility of the individual defendants became a question for the jury. OCGA § 24-9-85; Travelers Ins. Co. v. Miller, 104 Ga. App. 554 (2 (a)) (122 SE2d 268); Wynn v. Johns, 97 Ga. App. 605 (1 (b)) (104 SE2d 150). The jury was authorized to believe a part and disbelieve other parts of the testimony of the witnesses. Atlantic Coast Line R. Co. v. Heyward, 82 Ga. App. 337, 338 (4 (b)) (60 SE2d 641). We must view the testimony of the two individual defendants in the light most favorable to sustaining the verdict. American Game &c. Svc. v. Knighton, 178 Ga. App. 745 (1), supra. In view of the possible impeachment of these witnesses, the evidence may be viewed as showing that revenue from the sales of Brunswick were deposited to the account of Kaper-Jac, Inc. and thence to L & M Holding, Inc. Evidence of such depletion of the assets of Brunswick authorized the jury’s verdict against the corporate defendants.

We find no error in the award of expenses of litigation. In view of the uncontradicted evidence that the plaintiffs were entitled to the compensation they sought, there clearly was no bona fide controversy and forcing plaintiffs to resort to the courts in order to collect is plainly causing them unnecessary trouble and expense. OCGA § 13-6-11; Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 29 (4) (338 SE2d 496); Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (2) (278 SE2d 33).

Decided June 16, 1987

Rehearing denied July 1, 1987.

Ivan H. Nathan, for appellants.

John T. McKnight, Jr., Neal G. Gale, for appellees.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    73702.
    CARVER et al. v. JASPER CONSTRUCTION COMPANY.
    (359 SE2d 183)
   Benham, Judge.

Appellee is a contractor that was engaged in the widening of 1-75 north of downtown Atlanta. Appellant’s employer was a subcontractor of appellee’s on that project. Appellant was injured while an employee of appellee was unloading a truck appellant had driven to appellee’s work site. Appellant received workers’ compensation benefits from his employer and sued appellee in tort. Asserting that it was entitled to tort immunity by virtue of its status as a statutory employer, appellee moved for summary judgment. This appeal is from the grant of that motion.

1. “The statutory employer doctrine is based on OCGA § 34-9-8 . . . , which states in pertinent part: ‘(a) A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of ány of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer . . . (d) This Code section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.’ ” Manning v. Ga. Power Co., 252 Ga. 404, 405 (314 SE2d 432) (1984). As a statutory employer liable to pay workers’ compensation, the principal contractor receives the correlative benefit of tort immunity. Wright Assoc. v. Rieder, 247 Ga. 496 (1) (277 SE2d 41) (1981).

To bring itself within the definition of statutory employer, appel-lee submitted affidavits establishing that it was the principal contractor, that appellant’s employer was a subcontractor, and that it was during the performance of the contract that appellant was injured. Although appellant has argued that the work was not within the letter of the contract between appellee and appellant’s employer, it has produced no evidence to show that appellant and his employer were not “engaged upon the subject matter of the contract” at the time of appellant’s injury. While a party opposing a motion for summary judgment is entitled to the benefit of all favorable inferences to be drawn from the evidence (Myers v. Barnard, 180 Ga. App. 192, 193 (348 SE2d 733) (1986)), there must be some inference which can fairly be drawn from the evidence and which is favorable to the respondent before that theory applies. We find none here. The evidence, and the inferences from it, point inexorably to the conclusion that appellee was appellant’s statutory employer and is entitled to tort immunity.

Decided June 16, 1987

Rehearing denied July 1, 1987

James E. Butler, Jr., John E. Sawhill HI, C. Frederick Overby, for appellants.

Palmer H. Ansley, William R. Johnson, David A. Sapp, for ap-pellee.

2. In appellants’ second enumeration of error, he argues that he occupied the same position with regard to appellee that the truck driver in Gramling v. Sunshine Biscuits, 162 Ga. App. 863 (292 SE2d 539) (1982), occupied with regard to the shipper whose goods he was delivering when he was injured. We find, however, that the situations are significantly different. There, the contractual relationship was merely that of shipper and carrier; here, appellant’s employer is more than merely a carrier who delivered something for the shipper: it worked pursuant to a subcontract based on the prime contract between appellee and the Department of Transportation. Furthermore, the other reason statutory employer status was denied to the shipper in Gramling was that the injury did not take place on the shipper’s premises; the injury here did take place on appellee’s work site. Gramling has no application to this case and the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    73904.
    CITY OF TUNNELL HILL v. RIDLEY et al.
    (359 SE2d 184)
   Benham, Judge.

Appellant enacted an ordinance adopting for 1983 an occupation tax on businesses within its corporate limits. Appellees paid the tax under protest, then filed claims for refunds. When the claims were denied, appellees brought this suit, contending that appellant lacked authority to impose the tax. This appeal is from the grant of summary judgment to the plaintiff-taxpayers.

Although appellant has enumerated three alleged errors, the controlling issue in this case is simple and singular: Did appellant possess the authority to adopt an occupation tax? We agree with the trial court that appellant lacked such authority.

Decided June 17, 1987

Rehearing denied July 1, 1987

J. Raymond Bates, Jr., for appellant.

Robert M. Withrock, John T. Avrett, for appellees.

Appellant’s position is that the adoption of the occupation tax was authorized by the Municipal Home Rule Act of 1965 (OCGA Ch. 36-35), and specifically by OCGA § 36-35-3 (a): “The governing authority of each municipal corporation shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto.” While that is, indeed, a broad delegation of legislative power, OCGA § 36-35-6 contains a limitation on Home Rule powers which controls the resolution of this case: “(a) The power granted to municipal corporations in subsections (a) and (b) of Code section 36-35-3 shall not be construed to extend to the following matters ... (3) Action adopting any form of taxation beyond that authorized by law or by the Constitution.”

The record in this case shows that appellant is authorized to impose and collect a tax on real and personal property and on liquor licenses. The record discloses no authority, however, for the adoption of an occupation tax. Appellant’s apparent error is to equate a lack of specific prohibition with authorization, i.e., to assume that because a particular form of taxation is not prohibited, it is permitted. In light of the language of OCGA § 36-35-6 (a) (3), we find that equation to be invalid.

By the clear and unambiguous terms of that statute, if a particular form of taxation is not authorized by law or by the Constitution, municipal corporations may not adopt it. The record here shows no such authorization; therefore, the adoption of an occupation tax by appellant was not authorized. The trial court was correct in granting summary judgment to appellees.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    74277.
    McCORMICK et al. v. MARK HEARD FUEL COMPANY.
    (359 SE2d 171)
   Benham, Judge.

Appellant Donald Gene McCormick was injured and his 16-year-old son, James Timothy McCormick, was killed when a fuel truck they were operating for their employer, appellee Mark Heard Fuel Company, ran over them. Appellants, James’ parents, filed a workers’ compensation claim and subsequently filed a wrongful death action against appellee, alleging that wilful conduct on appellee’s part resulted in the boy’s death and his father’s injury. Appellants contended that appellee required decedent and his father to operate the fuel truck although appellee knew that the emergency brake system was faulty. After discovery, appellee moved for summary judgment, taking the position that the wrongful death action was barred since the boy’s death was compensable under the Workers’ Compensation Act (OCGA § 34-9-1 et seq.), which afforded appellants an exclusive remedy for the death of their son. The trial court granted appellee’s motion for summary judgment, and appellants brought this appeal, contending that the trial court erred in so doing.

1. Appellee filed a motion to dismiss appellants’ appeal, arguing that since appellants agreed with appellee’s statement of facts and the current state of the law on its motion for summary judgment, they waived their right to appeal the trial court’s grant of summary judgment against them. See Rule 6.5 of the Uniform Rules for Superior Courts. This argument has no merit, inasmuch as we are being asked to decide a question of law, and not whether a question of fact exists. We deny the motion.

2. Appellants would have us abandon the position enunciated by the Supreme Court in Southern Wire &c. Co. v. Fowler, 217 Ga. 727 (124 SE2d 738) (1962), which is that even if an employer’s wilful failure to furnish a safe workplace for his employees results in an injury to those employees, their only recourse is under the Workers’ Compensation Act. Id. at 731. By all indications, our appellate courts will not modify that interpretation of the Act. See Evans v. Bibb Co., 178 Ga. App. 139 (2, 4) (342 SE2d 484) (1986). Although we recognize the weakness in the law, it is incumbent upon the legislature to modify the statutory exclusivity feature if it sees fit to do so, so that those who suffer losses of life and limb in the future will have the opportunity to be compensated more fully.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in Division 1 and in the judgment.

Decided June 9, 1987

Rehearing denied July 1, 1987

Charles E. Moore, Michael L. Marsh, for appellants.

Thomas S. Bentley, Gary L. Seacrest, Stephen M. Worrall, for appellee.


author: Beasley, Judge.

text:
    73773.
    YARBROUGH v. DICKINSON et al.
    (359 SE2d 235)
   Beasley, Judge.

On April 26, 1985 Yarbrough filed suit against Dickinson for injuries she allegedly received in a collision on November 22, 1983, between her vehicle and Dickinson’s. She caused service to be made on her uninsured motorist carrier, Federated Guaranty Insurance Company, pursuant to OCGA § 33-7-11 (d). Federated answered in its own name. See Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980).

One of Federated’s defenses, and the ground for its motion for summary judgment, was that Dickinson was not an uninsured motorist at the time of the collision or at any time up to and including the filing of the motion, as that term is defined by OCGA § 33-7-11 (b). The result, claimed Federated, was the establishment of its non-liability under the terms of the policy and the statute even if judgment were obtained against the alleged tortfeasor Dickinson.

The trial court granted the summary judgment but provided it was not to affect any future claim by Yarbrough for PIP benefits or other coverage under that policy. Federated’s insured, the plaintiff, appeals on the ground that summary judgment was not warranted because future events could materialize in an uninsured motorist claim growing out of the collision. She argues that dismissing her UMC from this suit deprives her of uninsured motorist coverage for this collision, because a later suit against the UMC or a later reintroduction of the UMC to this suit would be frustrated by the bar of the statute of limitation, citing Vaughn v. Collum, 136 Ga. App. 677 (222 SE2d 37) (1975), aff’d 236 Ga. 582 (224 SE2d 416) (1976).

At the time of the collision Yarbrough was insured by Federated with limits of $10,000 bodily injury liability per person, $20,000 per accident, and $10,000 property damage liability. Defendant Dickinson’s auto policy with Aetna Casualty and Surety Company provided $300,000 per accident. Aetna was given notice of the suit, entered a defense on behalf of Dickinson without a reservation of rights, and did not deny coverage to its insured for Yarbrough’s claim. The undisputed facts establish that none of the “uninsured motor vehicle” situations, as listed in OCGA § 33-7-11 (b) (1) (D), existed at the time of the collision or thereafter.

The fear that Vaughn would cut off a claim against Federated in the event Aetna becomes insolvent or denies coverage for some reason is ill-founded. In Vaughn, defendants’ motor vehicle was uninsured at the time of the collision. Thus, there existed a contractual cause of action against the UMC at that time, contingent on judgment being obtained against the tortfeasor, and the UMC was entitled by statute to be served within the limitations period for the underlying tort suit. Not having been so served, it was entitled to assert this deficiency even though it did not choose to become a party to the suit, because the purpose of the statutory requirement is to allow the potentially liable UMC to protect its “strong financial interest in the [tort] litigation.” In this context “potentially” means, first of all, in all cases contingent on judgment against the tortfeasor. See Smith v. Phillips, 172 Ga. App. 459, 460 (1) (323 SE2d 669) (1984). Secondly, “potentially” means in some cases occasioned by the tortfeasor’s vehicle at some time after the collision becoming an “uninsured motor vehicle” because of the happening of one of the events described in OCGA § 33-7-11 (b) (1) (D).

Here, the insured fulfilled her obligation to timely serve her UMC when there was a question as to whether defendant’s vehicle was “uninsured” under OCGA § 33-7-11 (b) (1) (D). The UMC had the option to defend in its own name, which it did, showing that it cannot be held liable under the facts as they exist. Should Aetna later deny coverage or become insolvent, a cause of action may then arise, because only at that time would there be an “uninsured” motor vehicle. Rabun v. Williams 168 Ga. App. 467, 470 (3) (309 SE2d 624) (1983). As the Supreme Court reiterated in Bryant v. Allstate Ins. Co., 254 Ga. 328, 330 (326 SE2d 753) (1985): “ ‘[t]he statute of limitation begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on the claim can first be brought. “When the question is raised as to whether an action is barred by a statute of limitation, the true test to determine when the cause of action accrued is ‘to ascertain the time when the plaintiff could first have maintained his action to a successful result.’ ” [Cit.]’ [Cit.]” In such a suit, Federated would have no defense that it was not notified pursuant to OCGA § 33-7-11 (d), because it clearly was.

Failure to fulfill the statutory requirement of notice to the UMC of the tort suit simply creates a bar to an action on the insurance contract; it is not a substitute for the statute of limitation on a contract suit, nor does it compel a grafting of a potential contract claim in the tort action.

Notice is required so that the UMC can assert its interest and protect itself from later liability by active participation in the tort suit. In other words, since its liability is contingent on a judgment against its insured’s tortfeasor, it has an interest in assuring a minimal or zero judgment. It would be too late to protect itself in that tort suit if, sometime after the collision, one of the events occurred which rendered the tortfeasor’s vehicle “uninsured.”

Decided July 1, 1987.

Jack T. Elrod, Don M. Jones, for appellant.

Richard T. Gieryn, Jr., W. Wray Eckl, Stephen R. Kane, for ap-pellees.

Since, under the facts, Dickinson’s vehicle is not an “uninsured” one, Yarbrough has no present cause of action against her UMC and it cannot be compelled to remain in the tort suit.

Judgment affirmed.

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


text:
    73976.
    HENRY v. WILD PINES APARTMENTS.
    (359 SE2d 237)
   McMurray, Presiding Judge.

In a prior appellate appearance of this dispossessory proceeding we reversed the entry of a judgment by default in favor of plaintiff-landlord Wild Pines Apartments and against defendant-tenant Henry. See Henry v. Wild Pines Apts., 177 Ga. App. 576 (340 SE2d 233). Upon the trial of the case, the jury returned a verdict in favor of plaintiff and defendant appeals. Held:

The primary issue on appeal is whether plaintiff was authorized to terminate the defendant’s lease of a federally subsidized apartment. The lease provided that any termination of the lease be carried out “in accordance with HUD [Department of Housing and Urban Development] regulations, State and local law, and the terms of this Agreement.” The lease could be terminated due to defendant-tenant’s “material noncompliance” with the terms of the lease. However, plaintiff was required to give defendant a written notice of any proposed termination of the lease, stating the grounds for termination with enough specificity so as to enable defendant to prepare a defense. The lease also provides that in the event of a dispossessory proceeding, plaintiff must rely only upon the grounds set forth in the termination notice.

Plaintiff’s termination of defendant’s lease was predicated upon two separate incidents. The first incident occurred on April 11, 1985, when Ms. Sims shot Mr. Holder at defendant’s apartment. Plaintiff’s first termination notice informed defendant that this incident violated provisions of the lease whereby defendant agreed not to “ ‘engage in or permit unlawful activities in the unit, in the common areas or on the project grounds’ ” or “ ‘[m]ake or permit noises or acts that will disturb the rights or comfort of neighbors.’ ”

The uncontroverted evidence presented at trial in regard to the shooting incident shows that: Mr. Holder was a platonic friend of defendant who frequently assisted her with personal favors. On the date at issue defendant had borrowed Mr. Holder’s automobile and gone shopping, leaving Mr. Holder at her apartment. While defendant was away, Ms. Sims, a girl friend of Mr. Holder’s, arrived at the apartment uninvited. After an argument Ms. Sims fired two shots inflicting a slight flesh wound on Mr. Holder and breaking windows of the apartment.

As defendant did not directly participate in the actions of Ms. Sims the question raised is did defendant “permit” unlawful activities or disturbing noises. In addition to the evidence of defendant’s absence, there was also uncontroverted evidence that defendant did not consent to Mr. Holder receiving guests in her home during her absence. Defendant had met Ms. Sims only briefly on one occasion sometime prior to the shooting incident. There was no evidence suggesting that defendant should have anticipated the arrival of Ms. Sims at her home. In view of the absence of any knowledge or consent on the part of defendant, we conclude that there was no evidence that defendant permitted unlawful activities or disturbing noises at her home. See generally zHousing Auth. of Decatur v. Brown, 180 Ga. App. 483 (349 SE2d 501).

The second termination notice added additional grounds for the termination of defendant’s lease as follows: “It has come to our attention and our follow-up investigation has revealed that on or about July 6, 1985, the Albany Police Department came to [defendant’s] apartment to investigate allegations of child neglect. We have learned of a pattern of [defendant] to leave her minor children alone in her apartment while going to other places. Following the police going out to investigate such charges, our information shows that [defendant], along with another resident, acted in concert in leveling threats of various sorts, including that of doing bodily harm, to the tenants in #302, to wit: Ms. Evelyn McKinley and her daughter, Beverly McKinley. During the course of these events, [defendant] used various approbrious [sic] words not fit to be repeated in this letter.”

The evidence in regard to the second termination notice shows that: On July 6, 1985, a police officer was dispatched to defendant’s apartment in response to an anonymous report that some children had been left alone. The officer found two children, ages approximately six and two, alone in the apartment. The officer called the juvenile authorities, turned the matter over to a juvenile officer, and was not aware of any criminal prosecution arising from the incident.

Decided July 1, 1987.

W. E. Lockette, Phyllis J. Holmen, Gregory W. Edwards, John L. Cromartie, Jr., for appellant.

Additionally, there was testimony by Ms. Beverly McKinley that she observed the police at defendant’s home on April 11, 1985 (the date of the shooting incident), but had no idea why the police were there. Later that day, Ms. McKinley began receiving telephone calls from an unidentified source which continued all through the night. “It was a ladies [sic] voice and then every time somebody picked the phone up they got cussed.” Ms. McKinley did not recognize the lady’s voice but insisted that it must have been defendant because it occurred the same day the police were at defendant’s home.

The second termination notice is unlike the first, in that it does not specify which portions of the lease defendant has allegedly breached. In this connection we note that while the lease sets forth two additional sets of circumstances under which the lease may be terminated, neither is applicable to the case sub judice.

Examining the second termination notice together with the lease, and the evidence presented at trial, we find no allegation which is both sufficient to authorize termination of the lease and substantiated by any evidence. While there is evidence that defendant’s children were alone in the apartment when an officer arrived, the only evidence as to the duration of the period of time the children were alone was presented by defendant and showed that it was very brief. There was no evidence of a pattern of conduct on the part of defendant to leave her children unattended. Also, there is no lease provision prohibiting tenants leaving their children unattended.

Plaintiffs grounds of termination involving defendant making threats to Ms. Evelyn McKinley and Ms. Beverly McKinley on or after July 6, 1985, the day of the unattended children incident, are entirely without support in the evidence. The only evidence, involving the McKinleys, related the harassing telephone calls from an unidentified lady’s voice on April 11, 1985, the date of the shooting incident and almost three months prior to the date of the alleged threats.

In conclusion, therefore, plaintiff failed to present any evidence at trial authorizing the termination of the lease. The trial court erred in denying defendant’s motion for judgment notwithstanding the verdict. Ford Motor Credit Co. v. Parsons, 155 Ga. App. 46, 47 (270 SE2d 230). Compare Hill v. Paradise Apts., 182 Ga. App. 834 (357 SE2d 288). Our ruling renders moot defendant’s remaining enumerations of error.

Judgment reversed.

Sognier and Beasley, JJ., concur.

Henry E. Williams, for appellee.


text:
    74185.
    PUBLIC SERVICE TELEPHONE COMPANY, INC. v. PUBLIC SERVICE COMMISSION.
    (359 SE2d 239)
   Carley, Judge.

Appellant filed an application with the appellee Georgia Public Service Commission (PSC), seeking a certificate of public convenience and necessity whereby it could provide a wide-area paging service in an area other than that within which it is currently certificated to provide telephone service. Southern Bell holds the certificate to provide telephone service in the major portion of the area covered by appellant’s application. Southern Bell has taken steps toward providing paging service in the affected area but, at the time of the hearing on appellant’s application, that service was not yet available. Since the grant to appellant of a certificate to provide a paging service within the affected area would represent an infringement of Southern Bell’s telephone service certificate, Southern Bell’s request for permission to intervene in the PSC hearing on appellant’s application was granted. After conducting the hearing, the PSC denied appellant’s application. That denial was affirmed on appeal to the Superior Court of Fulton County. Appellant appeals from the superior court’s affirmance of the decision of the PSC.

1. Appellant urges that the PSC’s decision is affected by an error of law and that the superior court therefore erred in failing to reverse it on that ground. Specifically, appellant contends that the PSC misapplied the holding in Statesboro Telephone Co. v. Ga. Public Svc. Comm., 235 Ga. 179 (219 SE2d 127) (1975).

In Statesboro Telephone Co., supra at 184-185 (2), the Supreme Court held that “a competing telephone certificate, like a noncompeting telephone certificate, can only be issued upon [a] showing that public convenience and necessity so require ([cits.]), and it would appear that the public convenience and necessity would not authorize the issuance of a competing certificate so long as the existing certificate holder renders adequate service. . . . [T]hat no competing certificate shall be granted when the existing certificate holder is adequately serving the public, and [that] no competing certificate shall be granted unless and until it is proved that the existing certificate holder is rendering inadequate service . . . [are] requirements [which] are presently inherent in the public convenience and necessity provisions of [OCGA § 46-5-40 et seq.]. [Cit.]” Accordingly, it is clear the PSC did not err in this case, either insofar as it held that the decisive issue was the inadequacy of Southern Bell’s service, or insofar as it placed the burden of proof as to that issue upon appellant. However, in holding that appellant had failed to carry its burden of proof as to the inadequacy of Southern Bell’s service, the PSC gave consideration to the fact that Southern Bell “has responded to the need for paging services in the [affected] area. . . .”

Appellant urges that, by its consideration of this evidence as relevant to the ultimate issue, the PSC violated the holding in Statesboro Telephone Co. v. Ga. Public Svc. Comm., supra. According to appellant, that decision establishes that it is the state of the current certificate holder’s existing service that is the only factor to be considered by the PSC in determining the adequacy of the service for which a competing certificate is being sought and that Southern Bell’s mere response to a need for that service, short of actually providing it, is not a factor which is to be given consideration. However, that case clearly holds that “an existing certificate holder is entitled to notice of the filing of a competing application ([cit.]) and would at the hearing on that application be permitted to show the adequacy of its existing service or its ability and willingness to improve service. [Cit.] Because [the current certificate holder in the Statesboro Telephone Co. decision] did not show that its existing toll service was adequate nor that it was willing and able to render adequate toll service, the [PSC] did not violate the statute when it granted a competing certificate to [the applicant]. . . .” (Emphasis supplied.) Statesboro Telephone Co. v. Ga. Public Svc. Comm., supra at 185 (2). Thus, with regard to the adequacy of the service being provided in the affected area, the current telephone certificate holder is entitled to show and the PSC is entitled to consider two factors: the state of the existing service that is actually being provided by the current telephone certificate holder and its willingness and ability to make future improvement as to that service.

The Statesboro Telephone Co. decision stands only for the proposition that, unlike motor carriers, a current telephone certificate holder is not vested with a procedural right whereby it must “be afforded an opportunity to improve service before a competing telephone certificate can be granted by the [PSC].” (Emphasis supplied.) Statesboro Telephone Co. v. Ga. Public Svc. Comm., supra at 184 (2). Unlike motor carriers, the current telephone certificate holder must defend a challenge to the adequacy of its service by showing its future plans for improvement of that service, if any, within the context of a hearing on the competitor’s application and it is not entitled to an initial opportunity to remedy any alleged inadequacy in its existing service prior to the issue of the grant of a competing certificate ever being addressed by the PSC. It is not the law “that the [PSC] lacks authority to grant a competing telephone certificate unless the [PSC] determines that the existing certificate holder is providing inadequate service and is unable or refuses, after notice and hearing as to inadequacy of service, to provide reasonably adequate service. . . Statesboro Telephone Co. v. Ga. Public Svc. Comm., supra at 184 (2).

Decided July 1, 1987.

E. Hearst Roane, Jr., for appellant.

Michael J. Bowers, Attorney General, R. Douglas Lackey, W. Randall Tye, Michael J. Henry, George J. Polatty, Sr., for appellee.

The adequacy of a current telephone certificate holder’s service in its certificated area encompasses not only its existing service but also its plans for future service. In the context of the hearing on appellant’s application for a competing certificate, Southern Bell presented evidence with regard to its response to the need for a paging service in the affected area. The PSC, as it was authorized to do, considered that evidence in determining whether Southern Bell was providing adequate service in the area where it was certificated. Although there was evidence that Southern Bell’s service had not yet become operational, appellant produced no evidence that Southern Bell’s response was, under the circumstances, inadequate. The PSC did not err in holding that appellant had not met its burden of proof and in denying appellant the competing certificate that it sought. It follows that the superior court did not err in refusing to reverse that decision as affected by an error of law.

2. Remaining enumerations of error have been considered but are without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74250, 74251.
    BIG BROTHER/BIG SISTER OF METRO ATLANTA, INC. v. TERRELL; and vice versa.
    (359 SE2d 241)
   Benham, Judge.

Mrs. Terrell brought this action as next friend to her minor son Sheridan, and individually. The defendants are Big Brother/Big Sister of Metro Atlanta, Inc. (hereinafter “Big Brother”), and Larry Hendricks. The suit was based on Hendricks’ sexual molestation of Sheridan. Hendricks became acquainted with the Terrells through Big Brother, a non-profit social service organization. He later severed his relationship with Big Brother and moved into the Terrells’ home. Hendricks’ sexual relationship with Sheridan began either shortly before or shortly after Hendricks moved into the Terrells’ home. The asserted liability of Big Brother for Hendricks’ conduct is based on the theories of respondeat superior and negligent selection or hiring. In Case No. 74250, we granted Big Brother’s application for an interlocutory appeal from the denial of its motion for summary judgment on the issue of negligent hiring. Case No. 74251 is a cross-appeal in which the Terrells contest the grant of summary judgment to Big Brother on the issue of respondeat superior and the denial of their motion for summary judgment.

1. In order to hold Big Brother liable for negligent selection, the Terrells must show by competent evidence that Big Brother knew or should have known of Hendricks’ criminal propensities. Slaton v. B & B Gulf Svc. Center, 178 Ga. App. 701 (2) (344 SE2d 512) (1986). In an answer to interrogatories, Big Brother averred that a “thorough case management investigation process” had been completed with regard to Hendricks, including the completion of an application, the obtaining of three or more references, an “extensive interview and assessment by a clinically trained case worker,” completion of a family history, and a personal meeting with the membership committee. Ms. Terrell has suggested that if Big Brother had taken other steps, specifically an “FBI check,” a psychological test, a history of Hendricks’ lifestyle, and a credit check, Hendricks would not have been accepted as a volunteer with Big Brother. Her conclusions in that regard, however, are not supported by facts. There is nothing in the record to suggest that Big Brother, a non-governmental entity, has access to FBI records. Nor does it appear from the record that a credit check would have revealed anything to affect Big Brother’s decision whether to accept Hendricks as a volunteer. As to the other two suggestions, it appears that Big Brother came as close as is practicable for a volunteer organization to meet those criteria through its application form, family history, and assessment by a case worker.

In short, the record before us contains no evidence to suggest that Big Brother knew or should have known of Hendricks’ criminal propensities. There are not even, in this case, such indicators as lies on an employment application or an employer’s knowledge of an employee’s marital problems, factors which this court has held to be insufficient to put an employer on notice of an employee’s dangerous propensities. See Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876 (3) (298 SE2d 600) (1982), and Southern Bell &c. Co. v. Sharara, 167 Ga. App. 665 (1) (307 SE2d 129) (1983), respectively.

In light of Big Brother’s submission of evidence showing its exercise of ordinary care in the selection of Hendricks and the Terrells’ inability to counter that evidence with more than mere conjecture, we hold that the trial court’s denial of summary judgment to Big Brother on the issue of negligent selection was error.

2. Before reaching the merits of the cross-appeal, it is appropriate to address a procedural issue. At the hearing on the motions for summary judgment filed by Big Brother and by the Terrells, the Ter-rells filed a motion for transfer of the case to the judge who had accepted Hendricks’ guilty plea to two counts of aggravated child molestation, one of which involved Sheridan. The trial court’s denial of that motion is enumerated as error, but we find none.

“When practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge.” Rule 3.2, Uniform Rules for the Superior Courts, 253 Ga. at 811. Although the action filed by the Terrells is related to the criminal action against Hendricks, the two actions have only one party in common (Hendricks), and do not share the same factual issues since Hendricks’ guilt was the issue in the criminal case while his civil liability and that of Big Brother are the issues in the present case. In addition, it can hardly be said that it is practical to transfer a case which has progressed through discovery to the point where a hearing on cross-motions for summary judgment is being conducted. A trial judge has broad discretion in matters concerning the regulation and control of the business of the court (Riley v. State, 174 Ga. App. 607) (1) (330 SE2d 808) (1985)), and we find no abuse of that discretion in the trial court’s denial of the Terrells’ motion to transfer.

3. On the merits of the Terrells’ appeal from the grant of summary judgment to Big Brother on the issue of respondeat superior, we find that the record, when considered in light of two of the cases cited in Division 1 of this opinion, requires an affirmance. The evidence from Hendricks and from Big Brother indicates unequivocally that Hendricks’ behavior in sexually molesting Sheridan was not within the scope of or in the prosecution of the business of Big Brother and was completely personal in nature. See Southern Bell &c. Co. v. Sharara, supra, Division 2. While Hendricks may have been advancing Big Brother’s interest by spending time with Sheridan, he clearly abandoned Big Brother’s interest and pursued only his own when he sodomized the child. See Slaton v. B & B Gulf Svc. Center, supra, Division 1. The Terrells have not come forward with any evidence supporting even an inference that Hendricks’ criminal conduct was in furtherance of Big Brother’s interests. Accordingly, we find no error in the grant of summary judgment to Big Brother on that count.

4. The Terrells’ other enumerations of error regarding denial of their motion for summary judgment against Big Brother and the trial court’s holding that Big Brother is entitled to charitable immunity to the extent of its charitable assets are rendered moot by our holdings above, which effectively eliminate Big Brother from this suit.

Judgment reversed in Case No. 74250. Judgment affirmed in Case No. 74251.

Decided July 1, 1987

Walter B. McClelland, for appellant.

Sharman Meade Sutton, James R. Venable, for appellee.

Banke, P. J., and Carley, J., concur.


text:
    74253.
    MORRIS v. BONNER.
    (359 SE2d 244)
   McMurray, Presiding Judge.

Irene P. Bonner (plaintiff) filed an action against Cheryl S. Morris (defendant) to recover damages for property loss and personal injuries she allegedly sustained in an automobile collision with defendant. A jury trial resulted in a verdict for plaintiff in the amount of $16,000. This appeal followed. Held:

1. In her first enumeration of error defendant contends the trial court erred in sustaining plaintiff’s motion to disqualify a prospective juror who expressed, upon voir dire, a bias against chiropractors.

Plaintiff’s attorney conducted the following examination of the prospective juror during jury selection: “[Plaintiff’s attorney]: Mrs. Bennett, a moment ago you said that you didn’t put much faith in chiropractors, is that correct? [Juror]: Yes . . .1 just don’t think that a chiropractor’s treatment should take the place of medical treatment when something is definitely wrong. I think a chiropractor can make you feel wonderful by massaging your back — I think he can make you feel good. I don’t think they can cure anything. [Plaintiff’s attorney]: All right. Would you think that your belief in chiropractors would have an effect in this case because we’re going to have testimony of two chiropractors who’ve treated [plaintiff], and that feeling there, would it have an effect on your decision? [Juror]: If that was the only treatment that she received, I think it would. [Plaintiff’s attorney]: Your Honor, I’d like to strike her for cause.” Whereupon, the trial court granted plaintiff’s motion and excused the prospective juror. There was no objection to this ruling by defendant.

“The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. American Oil Co. v. Studstill, 132 Ga. App. 56 (207 SE2d 553).” Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636 (224 SE2d 739). Under the circumstances of the case sub judice, we find the trial court did not abuse its discretion in dismissing the prospective juror for bias. See Jones v. Cloud, 119 Ga. App. 697, 705 (5) (168 SE2d 598). However, assuming the contrary, any error in dismissing the prospective juror for cause was harmless since there is nothing in the record to indicate that defendant did not have the benefit of an impartial jury. “ ‘A party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury.’ [Grasham v. Southern R. Co., 111 Ga. App. 158, 160 (5), 161 (141 SE2d 189)].” Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636, supra.

Another reason this enumeration of error is without merit is that defendant failed to make a timely objection to the trial court’s ruling striking the prospective juror from the jury panel. Adler v. Adler, 207 Ga. 394 (1) (61 SE2d 824).

2. The pivitol issue raised in defendant’s second enumeration of error centers on whether the trial court erred in failing to charge the jury as follows: “I charge you members of the jury that the introduction of electrical current or high frequency energy waves into the body to treat muscle injuries preparatory to a chiropractic adjustment are outside of the scope of chiropractics in this state. Therefore, you may not consider any such treatment in this case and any expenses incurred for such treatment cannot be considered by you to compensate the plaintiff.”

Although evidence at trial showed that plaintiff received treatment from her chiropractors which was referred to as “electro-ther-apy,” there was no evidence showing that plaintiff was charged for the “electro-therapy.” On the contrary, one of the plaintiff’s chiropractors, who was an associate of the other chiropractor who treated plaintiff, testified that plaintiff was not charged for the “electro-ther-apy.” Explaining this service, plaintiff’s chiropractor testified that the “electro-therapy” was included in the regular price of an office visit. This testimony was supported by several documents entered into evidence by plaintiff entitled: “DOCTOR’S STATEMENT FORM.” These documents represented the cost to plaintiff for treatment by her chiropractors and itemized the charge for specific services rendered and therapy performed. An examination of these documents indicates no charge for treatment designated on the forms for “Electro-Therapy.” Consequently, assuming it would not have been error for the trial court to give defendant’s request to charge, since there is no evidence indicating that expenses for plaintiffs “electro-therapy” were included in the jury’s verdict, it does not follow that the trial court’s failure to give defendant’s request to charge requires a new trial.

“Unless the refusal to give the charge requested was both erroneous and harmful to the [defendant], [she] cannot successfully complain. The burden is on [defendant] of showing both error and harm, and for the reasons [herein] stated we do not think this has been done.” American Fidelity &c. Co. v. Farmer, 77 Ga. App. 192, 194 (2) (48 SE2d 141). This enumeration of error is without merit.

3. Defendant contends in her third enumeration of error that the trial court erred in failing to grant her motion for directed verdict on the issue of property damages. Defendant argues that plaintiff failed to carry her burden of proving damages sustained to her automobile.

“ ‘There are two ways to prove damages to a motor vehicle caused by a collision: (1) By showing the difference between the fair market value of the vehicle before and after the collision; and (2) Proof of necessary repairs that are the direct and proximate result of the collision and which represent the reasonable value of labor and material used for the repairs. However, this is subject to the proviso that the aggregrate of the repair costs, together with hire on the vehicle while rendered incapable of being used, and the value of any additional permanent impairment, does not exceed the market value of the car before the damage with interest. (Cits.)’ Tapes & Things v. Evans, 133 Ga. App. 705 (212 SE2d 31) (1975); Accord Perma Ad Ideas of America v. Mayville, 158 Ga. App. 707 (282 SE2d 128) (1981).” Dixon v. Williams, 177 Ga. App. 702, 703 (340 SE2d 286).

In the case sub judice, the only evidence presented at trial showing property damages to plaintiff’s vehicle was a repair bill in the amount of $625. (Defendant did not dispute this evidence.) Plaintiff presented no evidence showing the market value of her automobile before or after the collision.

“Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150).” Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554).

In view of the absence of any evidence showing the market value of plaintiff’s vehicle before the collision in the case sub judice, plaintiff has failed to carry her burden under either of the above formulas. Consequently, the trial court erred in failing to direct a verdict in favor of defendant in this regard. However, “[w]here the jury finds damages in an amount which exceeds that which is authorized by the evidence it is not necessary to grant a new trial if the erroneous amount can be accurately measured and deducted from the verdict. Seaboard Air-Line R. v. Bishop, 132 Ga. 71 (1) (63 SE 1103).” Story v. Monteith, 180 Ga. App. 517, 519 (349 SE2d 760). Based on the record in the case sub judice, an accurate re-shaping of the judgment below can be accomplished since the undisputed evidence showed plaintiff’s alleged property damages were $625 and a retrial of the case sub judice will not be necessary notwithstanding the trial court’s error in failing to grant a directed verdict as to plaintiff’s alleged property damage.

Decided July 1, 1987.

James V. Towson, Craig N. Cowart, for appellant.

J. A. Powell, Jr., Gerald S. Mullís, for appellee.

The judgment is affirmed as to damages for personal injuries. However, the judgment as to damages for property loss must be reversed with direction that the trial court eliminate from the judgment the sum of $625 representing the only amount attributable for plaintiffs claim for loss to her vehicle.

Judgment affirmed in part and reversed in part with direction.

Sognier and Beasley, JJ., concur.

       In support of this request to charge, defendant referred to Metoyer v. Woodward, 176 Ga. App. 826, 829 (338 SE2d 286), where this court held that such treatment (as described in defendant’s request to charge) is “not within the contemplation of the current statutes governing the practice of chiropractic in this state . . .” and affirmed the trial court’s ruling that such treatment was “ ‘beyond the scope of permissible practice of chiropractors licensed under the laws of the State of Georgia’ and that the charges for such treatment were therefore not admissible to establish a ‘serious injury’ under [Georgia’s] no-fault statute.” Subsequent to this holding, the legislature enacted OCGA § 43-9-16 (b), effective July 1, 1986, which provides as follows: “The chiropractic adjustment of the articulations of the human body may include manual adjustments and adjustments by means of electrical and mechanical devices which produce traction or vibration. Chiropractors who have complied with this chapter may also use in conjunction with adjustments of the spinal structures electrical therapeutic modalities which induce heat or electrical current beneath the skin, including therapeutic ultrasound, galvanism, microwave, diathermy, and electromuscular stimulation.”


text:
    74295.
    JACKSON v. PACES FERRY DODGE, INC. et al.
    (359 SE2d 412)
   Benham, Judge.

Appellant filed suit against appellee Paces Ferry Dodge, Inc., in October 1980, alleging a violation of the Georgia Fair Business Practices Act (“FBPA”) (Ga. L. 1975, p. 376, § 1; OCGA § 10-1-390 et seq.), fraudulent misrepresentation, and breach of contract with regard to allegedly unnecessary repairs made to appellant’s automobile by Paces Ferry Dodge (“Paces Ferry”). By way of an amendment to her complaint, appellant recast her allegation of fraud, and struck in their entirety the allegations of breach of contract and FBPA violations. Appellant also added appellee Chrysler Corporation as a defendant. In her third amendment to the complaint, filed the day trial commenced, appellant sought to “restore” her claim under the FBPA. The trial court dismissed the third amendment as untimely and prejudicial, and the case proceeded to trial on the issue of fraud. At the close of appellant’s evidence, the trial court, acting on motions made by appellees, directed verdicts in favor of appellees. This appeal followed the denial of appellant’s motion for new trial.

1. Appellant contends the trial court erred in dismissing her third amendment to the complaint, in which amendment she alleged a violation of the FBPA. Appellant filed the amendment the morning of trial, and appellees received a copy of the filed amendment as they entered the courtroom. Upon motion of appellees, the trial court dismissed the amendment as untimely and prejudicial. No pretrial order was entered in the suit.

“A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). Where the time for a pretrial conference has passed and neither the court nor a party has insisted upon the entry of a pretrial order and no such order has been issued, a party’s unfettered right to amend ceases upon the commencement of the trial proper and the taking of evidence. Black v. Lowry, 159 Ga. App. 57 (1) (282 SE2d 700) (1981). See also Slater v. Jackson, 163 Ga. App. 342 (1). (294 SE2d 557) (1982). Inasmuch as it is undisputed that no pretrial order was issued and that appellant’s amendment was filed and served prior to the commencement of trial, the amendment should have been permitted as a matter of right. Therefore, it was error to dismiss the third amendment to appellant’s complaint.

2. Appellant’s case proceeded to trial on one issue, fraud. At the close of appellant’s evidence, appellees moved for and were granted directed verdicts. Appellant cites as error the grant of the directed verdicts and the entry of judgment thereon.

“If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). “To recover in tort for fraud, the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made. [Cit.]” Oklejas v. Williams, 165 Ga. App. 585 (2) (302 SE2d 110) (1983). “Although fraud may not be presumed, ‘slight circumstances may be sufficient to carry conviction of its existence.’ [OCGA § 23-2-57].” Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497) (1982). In the case at bar, appellant presented evidence that she authorized Paces Ferry to replace her automobile’s engine head based upon Paces Ferry’s representation that the head was cracked. Mechanics who later ran independent tests on the original head concluded the head need not have been replaced. The trial court granted appellees’ motions for directed verdict on the ground that appellant failed to prove Paces Ferry knew its representation was false when it made the representation.

Appellant argues that the trial court erroneously based the direction of verdicts against her on the testimony of one of her witnesses. The trial court ruled that appellant had failed to prove that Paces Ferry knew of the falsity of its statement that the engine head of appellant’s car was cracked when it so told appellant. The trial court reviewed the testimony of appellant’s witness, the former service manager at Paces Ferry, who testified that the engine head had been sent for testing to Genuine Auto Parts, which had reported to Paces Ferry that the head was cracked. Paces Ferry, in turn, reported to appellant that the head was cracked. Appellant maintains that guilty knowledge may be inferred from expert testimony concerning the good condition of the engine head, coupled with testimony that the dirty condition of the head when retrieved by appellant from Paces Ferry precluded the possibility it had been previously tested. Appellant wishes to infer that Paces Ferry knew or should have known from the dirty condition of the head that it had not been tested, and therefore had the requisite guilty knowledge when it told appellant the head was cracked. However, the allegedly defrauded party must prove actual, not constructive, knowledge on the part of the defendant. See Lively v. Garnick, 160 Ga. App. 591 (1) (287 SE2d 553) (1981). “[Constructive knowledge is not a sufficient basis upon which to predicate an action for fraud. [Cit.]” Derryberry v. Robinson, 154 Ga. App. 694 (3) (269 SE2d 525) (1980). See also Oklejas v. Williams, supra. The trial court did not err in granting the directed verdicts on this ground.

3. Appellant contends the trial court erred by excluding evidence regarding appellant’s alleged attempts to rescind the contract. Appellant testified that she, with her attorney and the original engine head, returned to Paces Ferry on May 9, 1980, over seven months after the alleged fraud occurred. The trial court sustained an objection that testimony regarding the May 9 meeting would be inadmissible because it involved a compromise of appellant’s claim. See OCGA § 24-3-37. “Propositions made with a view to compromise are not proper evidence. [Cit.] If it is relevant to show some other issue in a case, however, a party may show that a demand for settlement was made, and the fact the other party refused to comply, without going into specific details of the demand. [Cits.]” U-Haul Co. &c. v. Ford, 171 Ga. App. 744 (2) (320 SE2d 868) (1984). Appellant asserts she wished to present evidence of the May 9 meeting to show her attempt to rescind the contract. However, appellant’s pleadings do not reflect an election to rescind the contract, and it was not necessary to appellant’s case to prove rescission since she could affirm the contract and maintain her action for damages sustained due to appellees’ alleged fraud. Preiser v. Jim Letts Oldsmobile, 160 Ga. App. 658 (1) (288 SE2d 219) (1981). Therefore, it was not reversible error to limit appellant’s testimony.

4. The trial court refused to permit one of appellant’s witnesses, qualified as an expert mechanic, to testify about aluminum engine heads because he had not been qualified as an expert on engines equipped with aluminum heads. “The question of whether a witness is qualified to give his opinion as an expert is one for the court. His determination will not be disturbed except that it be manifestly abused. [Cit.]” Faubion v. Piedmont &c. Constr. Corp., 178 Ga. App. 256 (1) (342 SE2d 718) (1986). We find no abuse of discretion by the trial court.

5. Appellant also maintains the trial court erroneously limited the testimony of her witness by refusing to admit hearsay testimony to explain the witness’ conduct. OCGA § 24-3-2 provides: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” The Supreme Court has limited the application of OCGA § 24-3-2 to situations in which “the conduct and motives of the actor are matters concerning which the truth must be found. . . .” Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). See also Commercial Union Ins. Co. v. Smith, 179 Ga. App. 734 (1) (347 SE2d 701) (1986). Since the witness’ conduct and motives were not relevant to the issue whether appellees had made a fraudulent misrepresentation, the trial court did not err in excluding the testimony. Compare Commercial Union Ins. Co. v. Smith.

6. Appellant called as a witness an employee of Genuine Auto Parts. When it was determined that the witness did not work at the testing branch at the time appellant’s aluminum engine head was allegedly tested, the trial court sustained objections to his testimony. Appellant contends the witness should have been permitted to testify about company-wide procedure, and made a proffer of the witness’ testimony. Pretermitting a discussion of the propriety of the proffer and of the trial court’s limitation on the witness’ testimony is our conclusion that the proffered testimony was not sufficient to avoid the directed verdicts in favor of appellees. In his proffer, appellant’s attorney stated that the witness would have testified that Genuine Auto Parts did not have the capability of testing aluminum engine heads at the time it allegedly tested appellant’s aluminum engine head and found it to be cracked. There was, however, no evidence that Paces Ferry knew of Genuine Auto Part’s inability to test the part when it told appellant her engine head was cracked. Since the rejected testimony did not fill the “guilty knowledge” gap, its exclusion, even if error, was harmless.

7. The trial court refused to allow counsel for appellant to cross-examine counsel for Paces Ferry concerning whether Paces Ferry was an alter ego of Chrysler Corporation. Inasmuch as any evidence on this issue would not have avoided the directed verdicts on the issue of fraudulent misrepresentation, it is not necessary that we review it.

Decided July 1, 1987.

Pat D. Dixon, Jr., for appellant.

Philip M. Casto, Robert U. Wright, for appellees.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Carley, J., concur.


text:
    73654.
    CURRIE et al. v. HANEY.
    (359 SE2d 350)
   Carley, Judge.

Appellant-plaintiffs Mr. and Mrs. Currie brought suit for damages arising out of a collision between an automobile driven by Mrs. Currie and an automobile driven by appellee-defendant. Mrs. Currie sought to recover for personal injuries suffered in the collision. Mr. Currie sought to recover for loss of consortium. In addition, both appellants sought punitive damages, based upon general allegations that the collision was the result of appellee’s “wanton and wilful” conduct. Appellee’s motion for partial summary judgment as to appellants’ claim for punitive damages was granted. Appellants appeal.

OCGA § 51-12-5 permits a jury to award punitive damages where “there are aggravating circumstances, in either the act or the intention. . . .” “[S]uch damages ‘cannot be imposed in any case unless there is wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. [Cit.]’ [Cit.]” Rossville Apts. v. Britton, 178 Ga. App. 194 (1) (342 SE2d 504) (1986). “ ‘Mere negligence, although gross, will not alone authorize the recovery of punitive damages.’ [Cits.]” Alliance Transp. v. Mayer, 165 Ga. App. 344, 345 (301 SE2d 290) (1983). Appellee testified that the collision had occurred so quickly he did not know exactly how it had happened. Mrs. Currie herself testified to having no recollection of the collision. There was evidence that the collision occurred on Mrs. Currie’s side of the road and that appellee was guilty of driving on the wrong side of the road. However, the fact that appellee’s car may have crossed the centerline and struck Mrs. Currie’s vehicle would not, in the absence of aggravating circumstances, authorize appellants to recover punitive damages. Compare Moore v. Thompson, 255 Ga. 236, 237 (336 SE2d 749) (1985), wherein the Supreme Court held that “[e]vidence that the defendant’s driving under the influence of alcohol caused the plaintiff’s injuries is evidence of wilful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences.”

Appellee filed interrogatories, requesting that appellants give “each and every fact” upon which they relied in support of their general allegations that his “wilful and wanton” conduct authorized a recovery of punitive damages. Appellants responded that they were relying upon the fact that appellee was physically unable to drive an automobile and had continued to drive notwithstanding his limitations. Appellee, in support of his motion for summary judgment, submitted his own affidavit, as well as that of a physician, both of which were to the effect that, at the time of the collision, he was physically capable of driving safely and without restriction. In opposition, appellants submitted only the affidavit of a witness who stated that, on one prior occasion, he had seen appellee drive dangerously and recklessly as to speed and following too closely but without injurious result. This affidavit was evidently offered to show that appellee had a habit of driving recklessly. Evidence that one drove recklessly on a prior occasion would not, however, tend to prove that he habitually does so. East Tenn. &c. R. Co. v. Kane, 92 Ga. 187, 191-192 (18 SE 18) (1893); Roebuck v. Payne, 109 Ga. App. 525, 527 (3) (b) (136 SE2d 399) (1964). Moreover, speed and following too closely were not proximately involved in the collision at issue. Compare Moore v. Thompson, supra.

“ ‘When the [defendant-] movant for summary judgment presents evidence apparently destroying the plaintiff’s cause of action, the movant has met his burden, and the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain.’ [Cits.]” State Farm Fire &c. Co. v. Southern Bell Tel. &c. Co., 150 Ga. App. 622, 624 (3) (258 SE2d 198) (1979), reversed on other grounds 245 Ga. 5 (262 SE2d 895) (1980). “Once the movant for summary judgment has established a prima facie case, the respondent must come forth with specific facts showing that there is a genuine issue for trial. [Cit.]” (Emphasis in original.) Griffin v. Ga.-Pacific Co., 177 Ga. App. 852, 855 (4) (341 SE2d 499) (1986). Appellants failed to produce specific facts which would rebut appellee’s evidence of the lack of aggravating circumstances. The trial court therefore correctly granted appellee partial summary judgment on the issue of punitive damages.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Decided June 8, 1987

Rehearing denied July 2, 1987

Wilson R. Smith, for appellants.

Marc T. Treadwell, for appellee.