author: Sognier, Judge. Deen, Presiding Judge,

text:
    A89A1150.
    GILBERT v. THE STATE.
    (388 SE2d 18)
   Sognier, Judge.

David Phillip Gilbert was convicted of armed robbery, rape, aggravated sodomy, aggravated assault with a deadly weapon, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He appeals.

The victim testified at trial that on the afternoon of November 25, 1987, a man she identified as appellant came to her front door, described himself as a bail bondsman, showed her a photograph, and asked her whether she had seen the woman in the photograph. When she acceded to his request to let him use her telephone, he confronted her with a gun, robbed her, and then forced her upstairs where he raped and sodomized her. Afterward, she observed him drive away in a Dodge Ram truck. Four witnesses who lived near the victim testified that on the same afternoon a man they identified as appellant drove up to their homes in a black truck, came to their doors and told them he was a bail bondsman looking for a woman depicted in a photograph he showed them, and asked to use their telephones. The one witness who allowed the man inside her house stated that he pulled a gun, but she managed to escape. Several of her neighbors testified that they saw her run screaming from her house and noticed a black truck parked in front. Additional testimony revealed that appellant was seen driving a black Dodge truck on the date of the incident.

1. Appellant contends the trial court erred by admitting into evidence statements he made to a police officer concerning the condition of his left hip and leg on the ground that a copy of the statement was not timely furnished to his counsel as required by OCGA § 17-7-210.

The record reveals that after the victim reported the attack at issue, appellant was arrested on a weapons charge on December 2, 1987 and taken to the Gwinnett County Police Department for questioning about the rape. Investigator Robert Harris testified at the Jackson-Denno hearing (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)) that after arresting appellant, he (Harris) read appellant his constitutional rights and then turned him over to Officer Philip Wages for booking. Wages testified that he fingerprinted and photographed appellant and then as part of the Department’s routine procedure asked appellant certain questions about his physical characteristics, filling in a standardized form with the information given by appellant. Officer Wages acknowledged that he was aware appellant was a suspect in the rape, but stated he did not know a witness had described the perpetrator as having a physical disability.

Two of the witnesses who had been accosted by a man they identified as appellant on the same day the rape occurred testified at trial that the man who had approached them had a “deformed” hip and walked with a limp, and one witness recalled giving this information to police. Wages testified during the trial that appellant had disclosed he had several scars on his left leg and hip and had “a bad left leg.” The standardized form on which this information was recorded was admitted into evidence.

OCGA § 17-7-210 provides in part that “[a]t least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by him while in police custody. ... If the defendant’s statement is oral or partially oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant’s statement. . . . [N]o relevant and material (incriminating or inculpatory) portion of the [oral] statement . . . may be used against the defendant unless it has been previously furnished to the defendant [upon] timely written request.” OCGA § 17-7-210 (a), (b), (d). If the prosecution fails to comply with a defendant’s request, the statement is excluded from the prosecution’s use at trial. OCGA § 17-7-210 (c).

There is no dispute that the statement was not provided to appellant’s counsel within the statutory time period, as the record reveals that appellant’s counsel filed a written request pursuant to OCGA § 17-7-210 on April 4, 1988, but the existence of this statement was not disclosed to counsel until April 15th, and a copy was not produced until April 20th, five days before trial. The State argues that under the authority of Wesley v. State, 177 Ga. App. 877, 879 (3) (341 SE2d 507) (1986), the form filled out by Wages was not a written statement within the meaning of OCGA § 17-7-210 (a), and thus did not have to be produced. We do not agree, because the statute covers “any statement” given by a defendant, and specifically includes any material or inculpatory portions of an oral statement. In Wesley there was no indication whether the health information given by the defendant was inculpatory, and as a result we now find overbroad our statement that the “Health History” form given by the defendant “obviously [was] not a ‘written statement’ within the meaning of OCGA § 17-7-210 (a).” Id. Thus, this court’s holding in Wesley regarding the applicability of OCGA § 17-7-210 to health or medical history given by accuseds to authorities will not be followed when, as in the case at bar, the information at issue is relevant and material. Accordingly, we agree appellant was entitled to a copy of the statement pursuant to his timely written request as mandated by OCGA § 17-7-210. Further, as our holding in Wesley that an inculpatory statement, such as the health information form at issue here, could constitute “newly discovered evidence” within the meaning of OCGA § 17-7-210 (e) because the prosecuting attorney was unaware of its existence prior to trial was in conflict with a Supreme Court decision, Talley v. State, 251 Ga. 42-43 (302 SE2d 355) (1983), we overrule that portion of Wesley and hold that Talley applies in the case at bar.

Nonetheless, we find it highly probable that the admission of this evidence did not contribute to the verdict because the evidence against appellant was overwhelming. See id. at 43. Accordingly, we find no harmful error requiring reversal. See id.

2. Appellant also maintains in his ¿numeration regarding his statement to police that the statement was not freely and voluntarily given, but as he provides no supporting argument or citation of authority, we deem this argument abandoned. Court of Appeals Rule 15 (c) (2); Kuptz v. State, 179 Ga. App. 150, 152 (12) (345 SE2d 670) (1986).

3. In his remaining enumeration of error appellant contends the trial court’s refusal to allow him to ask certain questions of Investigator Robert Harris resulted in a denial of his constitutional right to confront the witnesses against him.

Investigator Harris testified at trial concerning various steps he took in investigating the rape, which included gathering information about the similar approaches made on the same day to other women who lived in the same Gwinnett County neighborhood as the victim. During his cross-examination of Harris, appellant’s counsel sought to question the witness whether he had investigated reports of rapes committed in Cobb County by a man or men who gained access to women’s homes through false pretenses, but the trial court disallowed that line of inquiry. We find no error in the trial court’s ruling, as the transcript reveals appellant’s counsel was attempting to cross-examine the witness regarding specific information that had not been introduced into evidence. Kamman v. Seabolt, 149 Ga. App. 167, 169-170 (8) (253 SE2d 842) (1979). Further, the record also reveals that appellant’s counsel cross-examined Harris extensively, and thus we find the essential purpose of confrontation, which is to provide the opportunity for cross-examination, was satisfied in this case. See Hawkins v. State, 175 Ga. App. 606, 609-610 (2) (333 SE2d 870) (1985). The right to a thorough and sifting cross-examination “is not an unlimited one. The trial court can exercise its discretion in keeping the questioning within reasonable bounds and in curtailing it if the inquiry is not relevant or material. We find no abuse of discretion in the trial court’s ruling that the question was immaterial. [Cit.]” Samuels v. State, 174 Ga. App. 684, 685 (2) (331 SE2d 62) (1985).

Decided October 25, 1989.

W. Keith Davidson, for appellant.

Thomas C. Lawler III, District Attorney, Scott A. Smeal, Debra K. Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Carley, C. J., concurs in Divisions 1 and 2 and in the judgment. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While in general agreement with what is held in the majority opinion, it should be noted: (a) The case sought to be overruled, Wesley v. State, 177 Ga. App. 877 (341 SE2d 507) (1986), is only a physical precedent without any binding value, as only two judges concurred in this case. What is already lifeless and what has already been once overruled by one judge’s vote of “concur in the judgment only” should not have to be again overruled by the whole court; (b) Kuptz v. State, 179 Ga. App. 150 (345 SE2d 670) (1986), cited in the majority opinion, is only a two-judge case as the third judge took exception to much of what was said.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A1163.
    CLOUGH et al. v. LIVELY et al.
    (387 SE2d 573)
   McMurray, Presiding Judge.

This is the second appearance of the case sub judice before this court on interlocutory appeal. Following our decision in Clough v. Lively, 186 Ga. App. 415 (367 SE2d 295), appellants Clough and Shallowford Community Hospital, Inc. (Shallowford Hospital) filed their second motion for summary judgment supported by evidence that Clough had performed the task of obtaining a blood sample from appellees’ decedent (Lively) in a medically proper fashion, that is, in a manner which met or exceeded the standard of care exercised by the medical profession in general when performing such a task. Appellees’ opposition to the second motion for summary judgment also incorporated new evidence, the affidavit of a physician specializing in emergency medicine who stated that based on his review of the hospital records and affidavits submitted in the case sub judice, medical evaluation and treatment was indicated by Lively’s condition at the time of his arrival at appellant Shallowford Hospital and that appellant Clough deviated from accepted nursing practices and standards in failing to notify the emergency physician of Lively’s presence and in permitting Lively to leave the emergency department in an unimproved condition. Appellees’ expert states that the need for immediate medical evaluation and treatment of Lively was evident.

The superior court denied the appellants’ second motion for summary judgment. Subsequently, we granted appellants’ application for interlocutory appeal from the denial of their second motion for summary judgment.

Upon arrival at the hospital the arresting officer told emergency room personnel that Lively was there to have a blood sample taken. The officer submitted a written request to have a blood sample withdrawn from Lively for purposes of a test for alcohol or drug content. Lively signed a consent for obtention of the blood sample. Appellant Clough was not asked, nor did she undertake to perform, any examination or render any medical treatment to Lively. When asked by appellant Clough if he either needed or desired medical treatment Lively stated that he did not. Appellant Clough stated that her involvement on behalf of appellant Shallowford Hospital was solely for the purpose of compliance with the officer’s written request that a blood sample be taken from Lively.

Appellees contend that appellants accepted Lively as a patient, failed to perform a correct diagnosis and failed to treat Lively, and that as a result thereof, Lively is dead. Appellants contend that no patient-health care provider relationship existed between themselves and Lively.

The general rule is that in the absence of a patient-health care provider relationship (and the duties arising therefrom) there can be no liability for medical malpractice. Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319). Albeit, there are inapplicable exceptions to the general rule. Compare Bradley Center v. Wessner, 250 Ga. 199, 200, 201 (296 SE2d 693). The patient-health care provider relationship is a consensual one wherein the patient knowingly seeks the assistance of a health care provider. Bradley Center v. Wessner, 250 Ga. 199, 201, supra; Buttersworth v. Swint, 53 Ga. App. 602, 603, 604 (186 SE 770); Clanton v. Von Haam, 177 Ga. App. 694 (340 SE2d 627). Thus, as the uncontroverted evidence shows that Lively declined to enter into a patient-health care provider relationship any broader than necessary to accomplish the drawing of a blood sample, no relationship was created which gave rise to the level of professional duty advocated by appellees.

Decided September 25, 1989

Rehearing denied October 26, 1989

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Michael D. Hostetter, for appellants.

Michael R. Hauptman, Robert G. Rothstein, for appellees.

Appellees argue that appellants, by consenting to draw the blood sample from Lively, consented to an unbounded relationship with Lively and thus were obliged to use due care to recognize Lively’s need for treatment. We reject this proposition since neither appellants nor Lively consented to such a relationship and there is clearly no reason that the parties to such a relationship may not specify its parameters.

Appellant Clough’s testimony that no examination or treatment of Lively was undertaken is not contradicted by evidence that Lively’s vital signs were taken and information received that he had been taking medication. There is nothing to suggest that receiving information was inconsistent with the limited relationship between appellants and Lively.

The trial court erred in denying the motion for summary judgment of appellants Clough and Shallowford Hospital.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A1277.
    A89A1278.
    A89A1279.
    GEORGIA BUILDING SERVICES, INC. v. PERRY et al. LANDMARKS GROUP GENERAL CORPORATION v. PERRY et al. MARYLAND CASUALTY COMPANY v. PERRY et al.
    (387 SE2d 898)
   Sognier, Judge.

William Jack Perry slipped and fell at the 1100 Ashwood Parkway Building in Atlanta. He and his wife brought suit against the owner of the building (Marcasco Company), the major tenant of the building (Maryland Casualty Company, hereinafter “Maryland”), the property manager (The Landmarks Group General Corporation, hereinafter “Landmarks”), and the building maintenance service (Georgia Buildings Services, Inc., hereinafter “GBS”) and its employee (Cecil Carter). The co-defendants filed various cross-claims against each other. The jury found in favor of the Perrys for $165,000 against all co-defendants except Marcasco. (The jury’s verdict regarding the claims among the co-defendants will be set forth as needed in the body of the opinion.) Consolidated herein are the appeals by GBS in Case No. A89A1277, by Landmarks in Case No. A89A1278, and by Maryland in Case No. A89A1279.

1. We first address the enumerations regarding the trial court’s exclusion of certain evidence, (a) Error in the exclusion of testimony by Ken Hester is enumerated by all appellants. The record reveals when appellees filed their complaint in February 1985, they also served interrogatories requesting all defendants to “[s]tate the name, address, employer and occupation of any person who to your knowledge, information or belief has investigated any aspect of the occurrence which is the subject matter of this litigation on behalf of you or your attorneys, agents, employer or insurance carrier.” Although Hester had been employed by Maryland and had investigated William Perry’s post-injury work activities, none of the appellants included Hester in their responses to appellees’ interrogatory. However, in its January 23, 1987 Notice of Subpoenaing Witnesses for trial, GBS included Hester in its list. The record reflects that GBS’s notice was served on appellees’ attorney but that GBS made no amendment to its interrogatory answers to supplement the new witness. Nor did appellees take any action pursuant to OCGA § 9-11-37 when the incomplete nature of GBS’s response to their interrogatories was revealed by GBS’s January 1987 notice. The December 1987 pre-trial order listed Hester as a “may call” witness for both GBS and Maryland and contained appellees’ objection to Hester on the basis that he had “never before been identified” to appellees and the information requested by appellees in their interrogatories regarding this witness “has never been provided” to appellees’ counsel. None of the parties sought a ruling from the trial court on the objection contained in the pre-trial order. The jury trial commenced on January 4, 1988, and on January 20, 1988, the trial court ruled that appellants could not present Hester’s testimony on the basis that Hester “was known to be a witness and was never revealed to the other parties.”

We reverse. The record establishes that the existence of Hester as a witness appellants might call was brought to appellees’ attention nearly a year before trial. While we agree with appellees that the insertion of Hester’s name in the January 1987 notice could not be considered under any set of circumstances as a proper response or adequate supplementation to appellees’ interrogatory request, it is likewise clear that once they were made aware of Hester’s existence, appellees failed to utilize the statutory procedures available to compel compliance with their discovery or to sanction appellants’ improper failure to respond prior to trial. See OCGA § 9-11-37. This case is distinguishable from Malley Motors v. Davis, 183 Ga. App. 599, 600 (1) (359 SE2d 394) (1987) and Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 587 (6) (227 SE2d 77) (1976), cited by appellees, because here the witness was listed in the pre-trial order. Appellees’ objection to the inclusion of Hester as a witness in the pre-trial order does not obviate the fact that appellees could no longer claim they were surprised by appellants’ decision to call Hester as a witness. Rather, by not invoking a ruling by the trial court, appellees chose not to resolve and avoid the known problems related to Hester’s testifying, but instead chose to confront the issue in mid-trial and gamble that the trial court either would sustain their objection during trial, or allow appellees a continuance until the omission was rectified, as suggested by appellants’ counsel at trial.

Although the refusal to allow a witness to testify is a matter within the discretion of the trial court, Reynolds, supra at 587-588 (6), the record reveals that the exercise of discretion here was based upon a misapprehension of the facts of the case, namely, the trial court’s belief that Hester’s existence had not been revealed to appellees. Based on that misapprehension, the trial court excluded material testimony which cast doubt both on the amount of damages William Perry sustained and on the credibility of Perry’s testimony. Since the record establishes that appellees had been apprised of Hester’s existence nearly a year before trial, the compelling reasons for excluding a “surprise” witness are not present here. Compare Reynolds, supra. “The object of all legal investigation is the discovery of truth.” OCGA § 24-1-2. We find the failure of the trial court to allow the witness to testify constituted an abuse of discretion requiring reversal and a new trial. See generally Minnick v. Lee, 174 Ga. App. 182, 184 (329 SE2d 548) (1985).

(b) All appellants contend the trial court erred by granting appellees’ motion in limine regarding certain aspects of appellees’ tax returns and by precluding their cross-examination of appellees for impeachment purposes based on those tax returns. During discovery it was revealed that William Perry had underreported his income on his state and federal tax returns by failing to include income derived from various side jobs. Citing Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 843-844 (2) (351 SE2d 82) (1986), the trial court found that any attempt by appellants to offer evidence tending to show that Perry did not report all of his income would unquestionably have an adverse effect on the jury’s impression of appellees and of their case in general, and that the prejudicial effect outweighed the probative value of the evidence, even if admissible. Based on this finding, the trial court ordered appellants not to introduce or attempt to introduce evidence tending to show Perry failed to include all of his income on his tax returns or that his expenses were lower than that actually reported on the returns, on condition that appellees did not attempt to prove that Perry’s income was higher than that amount which he actually reported. At trial, Perry testified on cross-examination that his income figures were taken from his tax returns; the record reflects that appellees abided by the trial court’s order and made no attempt to prove Perry earned income greater than the amount reported in the tax returns.

The trial court was persuaded by this court’s decision in Robert & Co. Assoc., supra, in which we upheld the trial court’s exclusion of evidence regarding Tigner’s failure to file tax returns, evidence from which Robert & Co. sought to establish that Tigner’s claim of having been successfully employed were false (i.e., failure to file tax returns indicating that Tigner had not earned enough to justify filing the returns). The evidence in issue there, as here, raised the inference of criminal wrongdoing, although unlike Robert & Co. Assoc., admission of the evidence in issue in this appeal would have established directly that Perry had earned more income, rather than led to speculation that he had earned less, as in Robert & Co. Assoc.

The cases appellants cite for the admissibility of tax returns are distinguishable from the case sub judice on the basis that the witnesses therein had testified to a certain set of facts and the tax returns were introduced to show that the witnesses had indicated the opposite set of facts to the taxing authorities. In the case at bar and pursuant to court order, Perry restricted his testimony about earnings prior to his fall to those amounts reflected in his tax returns.

“ ‘Circumstantial evidence, concededly relevant, may nevertheless be excluded by reason of the general principle that the probative usefulness of the evidence is more than counterbalanced by its disadvantageous effects in confusing the issues before the jury, or in creating an undue prejudice in excess of its legitimate probative weight. In either case, its net effect is to divert the jury from a clear study of the exact purport and effect of the evidence, and thus to obscure and suppress the truth rather than to reveal it.’ ” Candler v. Byfield, 160 Ga. 732, 739 (2) (129 SE 57) (1925). “In all cases where the object sought to be proved can be proved without violation of a rule of evidence designed to prohibit prejudice, it should be done so, and the rule not broken unless by necessity, or where the merit of the evidence clearly outweighs its prejudice.” Fred F. French Mgmt. Co. v. Long, 169 Ga. App. 702, 704 (2) (314 SE2d 666) (1984). In this view of the matter, though the evidence excluded was relevant to the credibility of Perry, we do not think that the error in its exclusion was sufficiently harmful to appellants as to require a new trial.

(c) Error is enumerated by GBS in the exclusion of a deposition question and the answer by witness David Bailey. Excluded was the question: “And the closest guess you have is that it was lightweight machine oil [on the mat on which William Perry fell]?” and Bailey’s response, “I characterized it as lightweight machine oil. . . .” The question and its response were excluded on the basis that it was speculative. Since the question asked the witness for a “guess,” i.e., surmise or conjecture, rather than the informed opinion of the witness, we find no error in that ruling. See Reliford v. Central of Ga. R., 140 Ga. App. 782, 783 (3) (232 SE2d 129) (1976).

(d) GBS also enumerates as error the exclusion of evidence regarding its allegation that it was improperly served. Although GBS also contends the trial court erred by denying its motion to dismiss on this matter, it is well established that an enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. City of College Park v. Ga. Power, 188 Ga. App. 223-224 (372 SE2d 493) (1988). Turning to the only issue enumerated, GBS in its brief fails to address any of its arguments or citations of authority to the evidentiary issue, but instead concentrates solely on the trial court’s denial of its motion. Thus, we need not consider why evidence of alleged defective service on GBS was not relevant to the issues tried in the case at bar since we deem abandoned the error GBS did enumerate on appeal. See Lissmore v. Kincade, 188 Ga. App. 548, 550 (3) (373 SE2d 819) (1988).

2. Errors enumerated in the admission of certain evidence are next addressed, (a) GBS contends the trial court erred by permitting appellees to call witness Charles Tingle for cross-examination and not allowing GBS to cross-examine the witness. As to appellees’ cross-examination of Tingle, the transcript reveals that Tingle had investigated William Perry’s accident on behalf of GBS’s liability carrier and had interviewed appellees, as well as other witnesses, on several occasions; that he went to appellees’ house and recorded statements from them; and that he had made an offer of settlement to appellees on behalf of GBS’s liability carrier, Sentry Insurance Company. It also appears of record that Tingle had been deposed by appellees three times and on each occasion Tingle had been represented by GBS’s attorney, who also served as GBS’s trial counsel.

OCGA § 24-9-81 provides “in the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party, or anyone for whose immediate benefit the action is prosecuted or defended, or any agent of said party, or agent of any person for whose immediate benefit such action is prosecuted or defended, or officer or agent of a corporation when a corporation is such party or for whose benefit such action is prosecuted or defended a witness, with the privilege of subjecting such witness to a thorough and sifting examination . . . .” GBS cites Mullis v. Chaika, 118 Ga. App. 11, 15-17 (2) (162 SE2d 448) (1968), in support of its argument that reversible error was committed when the trial court allowed appellees to cross-examine a witness who was not an employee or agent of GBS. We do not agree.

“As applied to the facts of this case, there can be no doubt that the meaning and intent of the legislature in the use of the word ‘agent’ in this Code section is doubtful so as to require judicial construction of this language. This necessity of construction was recognized in Garmon v. Cassell, 78 Ga. App. 730, 739 (52 S.E. 2d 631) [1949], where this court expressly rejected the contention that this language refers only to an agent who was an agent of the party with relation to, or who had some connection with, the particular transaction under investigation.” Atlanta Joint Terminals v. Knight, 98 Ga. App. 482, 485 (2) (106 SE2d 417) (1958). In that case, this court held that because the witnesses involved were employees of the defendant or of one of the corporate partners of the defendant, they were subject to all of the pressures and possible prejudices in favor of the defendant which that relationship would engender, and upheld the propriety of the cross-examination of these witnesses. See also Rodgers v. Styles, 100 Ga. App. 124, 139 (4) (110 SE2d 582) (1959) (error in not allowing defendants to cross-examine school principal in suit between school board and defendants in negligence resulting in school’s destruction by fire.) In contrast, the witness cross-examined over objection in Mullís, supra, the case cited by GBS, was a former employee of the defendant who was serving in the Army at the time of the trial. Id. at 16. See also Massey Jr. College v. Taggart, 140 Ga. App. 591 (231 SE2d 540) (1976).

In this case, while Tingle was not a year round employee of GBS’s liability carrier (Sentry), it is uncontroverted that Sentry employed Tingle, an insurance adjuster, to investigate the accident and make settlement offers on its behalf, and that Tingle had worked for Sentry before on other matters. Nothing stated during trial indicated that Tingle was not still employed by Sentry regarding the matter, but even if it could be inferred that Tingle was no longer actively investigating appellee William Perry’s accident, it could also be inferred that Tingle, as the president of a company that investigated claims, would be interested in working for Sentry in the future. Thus, unlike the situation in Mullis, supra, there was no clearcut end to the employment relationship between Tingle and Sentry, and we find the provisions in OCGA § 24-9-81 broad enough to include Tingle as an “agent” of GBS’s liability carrier in the instant case. See Rodgers, supra.

Although GBS argues the language in OCGA § 24-9-81 does not include parties in the position held by Sentry, the statute clearly applies to “a corporation ... for whose benefit such action is . . . defended . . . .” GBS does not controvert that Sentry, as its insurer, would be contractually liable, at least in part, for any judgment rendered against GBS. It follows then that the defense of appellees’ action was to the benefit of Sentry, as its contractual liability to GBS was contingent upon the outcome of the case. We therefore cannot agree with GBS that the trial court’s action in allowing Tingle to be called for purposes of cross-examination was not within the purview of OCGA § 24-9-81.

Moreover, “whatever the ruling by the lower court, it is incumbent on the complaining party on appeal to show something more than the presumed possibility of prejudice where the issue is that of refusing or allowing cross examination.” Atlanta Americana &c. Corp. v. Sika &c. Corp., 117 Ga. App. 707, 711-712 (4) (161 SE2d 342) (1968). Thus, even assuming, arguendo, error on the trial court’s part, GBS has failed to demonstrate how allowing appellees to cross-examine Tingle, rather than requiring them to call him as their own witness, prejudiced GBS, precluding a finding by this court of reversible error.

Pursuant to our discussion above as to the relationship between Tingle, Sentry, and GBS, we also find no error in the denial of GBS’s request to cross-examine Tingle.

(b) GBS contends the trial court erred by admitting certain testimony by Dr. John E. Brown over its objection that the testimony was speculative. Dr. Brown, a Professor of Economics at Georgia State University, testified as to the basis for his opinion. “If it appears that [an expert witness’] opinion is not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. [Cits.]” Echols v. Edwards, 185 Ga. App. 688, 690 (2) (365 SE2d 844) (1988). Since our reading of the transcript indicates Dr. Brown’s testimony could not be categorized as “sheer speculation,” we find no abuse of the trial court’s discretion in admitting this testimony. See id.

3. Errors involving charges given or not given are next addressed, (a) As to the instructions given the jury, we have carefully reviewed the charge, the recharge, and the trial court’s answers to all jury questions and find either that no reversible errors were committed by the trial court or that any error committed is unlikely to recur upon retrial of this case. GBS’s contention of error regarding the verdict form is not supported by argument or citation of authority pertinent to the issue, and we therefore deem it abandoned pursuant to Rule 15 (c) (2) of the Rules of the Court of Appeals. Pennsylvania &c. Ins. Co. v. Davis, 186 Ga. App. 301, 302-303 (3) (367 SE2d 91) (1988).

(b) As to errors asserted in the failure to give certain requests to charge, we find no merit in Maryland’s 14th and 15th enumerations, in which it is contended that the trial court erred by failing to charge the jury two of its requests to charge, since a reading of the charge as given reveals that the requested charges were given either verbatim or as close thereto as to make no difference. See generally Harper v. Samples, 164 Ga. App. 511, 514-515 (5, 6) (298 SE2d 29) (1982). Nor is there any merit to Maryland’s fourth enumeration, contending error in the failure to give certain charges, since Maryland in its brief presents arguments addressing solely a charge that was given by the trial court. See City of College Park; Pennsylvania &c. Ins. Co., supra.

The trial court charged the jury extensively as to issues involving the attribution of liability for defective premises to the party who actually controls the premises, as opposed to the party who is named on the title instruments. The charges were generally applicable in one degree or another to all the co-defendants involved in this case. Thus, although the trial court did not particularly discuss the tenant-owner relationship between Maryland and Marcasco, we find the jury was accurately and fully charged on the relevant law for the issue covered by the requested charge which is the subject of Maryland’s 16th enumeration, and thus no reversible error is presented here. See generally Brooks v. Coliseum Park Hosp., 187 Ga. App. 29, 34 (1) (369 SE2d 319) (1988).

4. Maryland contends the trial court erred by denying its motion for a directed verdict because there was no evidence to support a finding that it owed appellees a duty of care, as Maryland neither owned nor controlled the building premises where Perry fell or, assuming evidence of its control over the premises existed, it had neither actual nor constructive knowledge of the foreign substance on the floormat which caused Perry to fall.

(a) OCGA § 51-3-1 provides: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” The question whether Maryland was the “owner or occupier” for purposes of liability under OCGA § 51-3-1 “depends on whether or not [Maryland] had ‘control of the property, whether or not [it] has title thereto and whether or not [it] has a superior right to possession of property which is in the possession or control of another.’ [Cit.]” Scheer v. Cliatt, 133 Ga. App. 702, 704 (2) (a) (212 SE2d 29) (1975). The title to the building was introduced into evidence and showed that Marcasco was the title owner of the building. A lease contract adduced at trial reflected that Maryland was a tenant in the building and was contractually absolved from responsibility under the lease for the upkeep of the common areas in the building, such as the southern entrance to the building where Perry fell. Evidence also established that Perry was entering the building to conduct business at Maryland, and thus was an invitee to the premises, thereby distinguishing Rhodes v. Perils, 83 Ga. App. 312 (63 SE2d 457) (1951).

Maryland presented formidable evidence to support its contention that Marcasco was the owner and the controller of the premises, and the trial court extensively and thoroughly charged the jury as to the legal standard to be met before separate corporate identities could be disregarded. However,, appellees presented evidence establishing that Marcasco is a wholly owned subsidiary of Maryland, with no employees of its own at the time of the accident and sharing many of the same officers with Maryland. Maryland occupied most of the space in the building and appellees presented a witness who stated she knew the building as the “Maryland Casualty building.” After Perry’s accident it was shown that although Maryland’s main office was on the third floor of the building and it had only classrooms on the entry level floor, it was Maryland employees who were dispatched to warn people entering the building of the hazardous condition, and a Maryland employee took photographs of the scene of the accident.

“A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a) (b).” Union Camp Corp. v. Daley, 188 Ga. App. 756 (1) (374 SE2d 329) (1988). Viewing the evidence in favor of the jury’s verdict, we cannot find the evidence, with all its reasonable deductions, demanded a verdict for Maryland on the issue of control of the premises. See generally id.

(b) Maryland contends that even assuming there was some evidence that it rather than Marcasco had actual control over the building, an assumption with which we agree, see Division 4 (a), supra, there was no evidence adduced at trial from which the jury could have found that Maryland had either the actual or the constructive knowledge of the foreign substance upon which Perry fell necessary to hold it liable for appellees’ injuries. See generally Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).

The evidence established that the floormat just inside the exterior doors on the southern entrance of the building had acquired a coating of some slippery substance at some point between the time the building closed on the evening of October 9, 1984 and approximately 10:00 a.m. the following morning when appellees entered the building and William Perry fell. The only evidence adduced by appellees to establish Maryland’s actual knowledge of the hazardous southern entrance floormat consisted of the testimony of a Maryland officer who entered through the northern entrance of the building and who noticed something awry with the floormat inside the exterior doors to that entrance, and two witnesses who testified they entered through the southern entrance and noticed something was wrong with the floormat on which Perry later fell. However, the latter two witnesses were employed by an insurance company called VALIC, which is a subsidiary, as is Maryland, of American General Companies.

We cannot agree with appellees that the knowledge of its officer regarding a hazardous condition at the northern entrance of the building constitutes even some evidence of actual knowledge on Maryland’s part that a hazardous condition existed at the southern entrance. Nor can we agree with appellees, in the absence of evidence vitiating the separate corporate identities of VALIC, American General Companies, and Maryland, that knowledge on the part of VALIC’s employees of the hazardous condition of the southern entrance floormat constitutes actual knowledge of that danger on the part of Maryland. However, “ [constructive knowledge may be inferred where there is evidence that an employee of the defendant was in the immediate vicinity and could easily have noticed and removed the substance, or that the defendant failed to exercise reasonable care in inspecting the premises. [Cit.]” (Emphasis supplied.) Hilsman v. Kroger Co., 187 Ga. App. 570, 571 (1) (370 SE2d 755) (1988). “ ‘Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)’ [Emphasis deleted.] [Cit.]” Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988). “ ‘The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case (nature of the business, size of the [building], the number of [invitees], the nature of the dangerous condition, and its location). [Cit.]’ [Cit.]” Colonial Stores v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672) (1968). Considering the evidence adduced by appellees that the hazardous condition of the southern entrance floormat had been apparent three hours before Perry’s fall, having been discovered by the first VALIC employees entering the building for work, we agree with appellees that there was some evidence, however slight, from which the jury could have found that Maryland failed to exercise reasonable care in inspecting the premises. Since “[i]n a civil case, ‘(t)he standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard, (cit.)’ [cit.],” Aaron v. Ga. &c. Mut. Ins. Co., 186 Ga. App. 1, 2 (366 SE2d 355) (1988), the existence of this evidence was sufficient to authorize the trial court’s denial of Maryland’s motion for a directed verdict. See generally id. at 2-3.

5. We find no error in the trial court’s denial of Landmarks’ motion for a directed verdict. The evidence established that Landmarks managed the entire building and there was evidence indicating that Landmarks’ employees opened the doors of the building, including the southern entrance where the hazardous floormat was located. As noted earlier, appellees presented evidence that the hazardous condition of the southern entrance floormat existed some three hours before Perry fell, as demonstrated by the witness who testified she had noticed it when she was one of the first persons to enter that door. “Sonny” Patterson, the Landmarks employee who monitored the mechanical operations in the building and also attended to minor problems not requiring outside assistance, acknowledged when asked that he never made routine inspections of the building (although we note he qualified his testimony when subsequently called by Landmarks by saying that he did look for “abnormal condition[s],” which he primarily characterized as dead light bulbs, when he daily walked through the building). Also introduced into evidence was the service contract between Landmarks and Marcasco, the owner of the building, which provided, in pertinent part, that Landmarks was “[t]o employ and supervise the performance of all full time or part-time on site employees and personnel necessary to perform the maintenance, custodial, security and other services appropriate for the proper operation of the [building.]”

In view of this evidence, the trial court did not err by denying Landmarks’ motion for a directed verdict. OCGA § 9-11-50 (a); Scott v. Hussmann Refrigeration, 183 Ga. App. 39, 40 (1) (357 SE2d 860) (1987).

6. Turning now to the cross-claims, the record reveals that both Marcasco and Landmarks filed cross-claims against GBS alleging GBS was contractually obligated to indemnify them from appellees’ claim. Landmarks also raised a common law indemnity claim against GBS, which was the basis on which Landmarks’ indemnity claim went to the jury, the trial court having ruled Landmarks was not a party to the contract in question so as to entitle it to a claim of contractual indemnification. The jury returned verdicts in favor of both Marcasco and Landmarks, to which the trial court added attorney fees and other costs.

Although GBS’s enumerated error regarding the cross-claims encompasses several different matters, including the trial court’s ruling allowing GBS’s liability on the cross claims to go to the jury, the only enumerated issue argued and supported by citations of authority in GBS’s initial brief addresses the absence of evidence to support the trial court’s award of attorney fees and related costs to the cross claimants and the trial court’s failure to allow GBS to cross-examine the witnesses on the claimed fees. The other issues raised in this enumeration are accordingly abandoned, see Pennsylvania &c. Ins. Co., supra, and could not be resurrected from abandonment by GBS’s arguments raised in its supplemental brief. See Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (3) (328 SE2d 564) (1985). Thus, although the judgment is reversed insofar as the main case is concerned (see Division 1 (a), supra), GBS’s failure to attack the judgment against it on Marcasco’s contractual indemnity claim and Landmarks’ common law indemnity claim leaves that part of the judgment conclusive as to GBS’s liability on those claims. See generally Citizens &c. Nat. Bank v. Weyerhaeuser Co., 152 Ga. App. 176, 180-181 (5) (262 SE2d 485) (1979); OCGA § 9-11-60 (h). GBS must therefore stand ready to indemnify the cross-claimants against any loss suffered in the litigation upon retrial of the main case. See Buffington v. Sasser, 184 Ga. App. 800, 801, 802 (2) (363 SE2d 2) (1987).

Since “[t]he ‘law of the case’ rule (see OCGA § 9-11-60 (h)) prevents the re-adjudication of factual issues in a case only where the evidentiary posture of the case has not changed since the prior adjudication was made [cit.],” Harrison v. Dorsey, 184 Ga. App. 870, 872 (1) (363 SE2d 151) (1987), it is not necessary here to address the amount of attorney fees awarded by the trial court since the evidentiary posture of the case will undoubtedly change upon retrial. However, addressing those matters which may recur upon retrial, we note the propriety of an award of attorney fees where the attorney properly states in place the hours spent, the charges per hour, and the reasonableness of the fee. On the issue raised by GBS regarding its right to cross-examine the witnesses testifying about attorney fees, the transcript reveals that, even assuming GBS requested the trial court to allow him to cross-examine Landmarks’ witness, GBS failed to invoke a ruling from the trial court which this court can decipher as addressing GBS’s objection. “The burden is on the party asserting error to show it affirmatively by the record. [Cit.]” Ragan v. Smith, 188 Ga. App. 770, 772 (2) (374 SE2d 559) (1988). Since GBS did not obtain the trial court’s ruling on this matter, we cannot rule on whether the trial court properly or improperly disallowed GBS’s cross-examination of Landmarks’ attorney. See Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749, 750-751 (2) (371 SE2d 231) (1988).

However, as to Marcasco, the record clearly reflects GBS’s request to cross-examine Marcasco’s attorney/witness, GBS’s objection to the trial court’s failure to allow the cross-examination, and the trial court’s ruling thereon. GBS specifically objected to the denial of its request to cross-examine Marcasco’s attorney on the basis that that attorney also represented Maryland, and GBS sought to clarify whether the sums claimed were incurred on behalf of Marcasco, not Maryland.

It has long been the law that “[w]here counsel [make] statements in their place, they may be received without verification unless the same is required by the opposing party at the time." (Emphasis supplied.) Caldwell v. McWilliams, 65 Ga. 99, 101 (3) (1880). See also Cross v. Cook, 147 Ga. App. 695, 696 (3) (250 SE2d 28) (1978), in which it was stated that “[attorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence. [Cits.]” (Emphasis supplied.) Here the statements made by Marcasco’s counsel in his place were clearly objected to by GBS on the basis that the amounts attested to were not incurred by Marcasco alone. Marcasco cites this court to several cases for the proposition that the reasonableness of attorney fees lies within the discretion of the trial court. We find those cases distinguishable from the case sub judice, however, because in none of the cases was the amount stated by the attorney/witness properly challenged by the other party. See Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765, 766 (350 SE2d 322) (1986) (no opposing affidavit on the issue of reasonable fees was properly filed so as to create fact question); St. Amour v. Roberts, 170 Ga. App. 717 (318 SE2d 313) (1984) (the fees in question were stipulated to by the parties and opposing party presented no evidence); Overton-Green &c. System v. Cook, 65 Ga. App. 274, 279 (16 SE2d 50) (1941) (Industrial Board entitled to determine reasonable attorney fees in absence of specific evidence of value of services). The only case cited by Marcasco which does bear on this point is Harbin v. State, 165 Ga. App. 631 (302 SE2d 386) (1983). In that criminal case, appellant’s defense attorney had sought to cross-examine the district attorney on the DA’s statement regarding the terms of a plea bargain between the State and an accomplice. After the trial court had denied his request, the defense attorney was allowed a thorough and sifting cross-examination of the accomplice. This court first addressed the appellant’s arguments by noting that the DA’s statement “was not in anywise evidentiary as to the testimony of the witnessf/accomplice]" (emphasis supplied), id. at 633 (2), but subsequently concluded that “[n]o harmful error” was shown by the trial court’s refusal to allow cross-examination because the subject matter of the DA’s statement had no bearing on the appellant’s case. Id. We do not agree with Marcasco that any reading of this opinion supports its argument that it is not error to deny an opposing party the right to challenge statements made by an attorney in his or her place upon proper and timely objection. We find utterly without merit Marcasco’s argument that no error occurred here because GBS was required to make an “offer of proof” as to what a witness would state on cross-examination. See Johnson v. Wills Mem. Hosp. &c., 178 Ga. App. 459, 461 (3) (343 SE2d 700) (1986).

Therefore, we find the trial court erred by denying GBS’s request to cross-examine Marcasco’s attorney/witness on the issue of the fees actually incurred by Marcasco in the litigation of this case.

7. Landmarks contends the trial court erred by ruling that Landmarks was not a party to the contract between GBS and Marcasco, thus preventing Landmarks from pursuing its contractual indemnity claim. Landmarks asserts that the contract could not be construed as a matter of law but that interpretation of the contract here was a question of fact for the jury, and that the trial court erred by not allowing Landmarks’ contractual indemnity claim to go out with the jury along with its common law indemnity claim.

Landmarks refers this court to Plaintiffs exhibit 14, the copy of the contract in evidence at the trial. The record reveals that exhibit 14 begins with a one-page document titled “Contract for Services,” made on June 11, 1984, between GBS and Marcasco, for certain services in exchange for pay made pursuant to a price schedule, both outlined elsewhere. In the signature space for “Marcasco Company, Inc.” was the name “Gary L. Brumage Senior Vice President The Landmarks Group General Corporation, Agent.” Exhibit A to Plaintiffs exhibit 14 was titled “Building Maintenance Service Agreement,” made on June 12, 1984, and was between GBS, as “Contractor,” and the “owner,” denominated therein as “Marcasco Company Incorporated” with “c/o The Landmarks Group General Corp” included over the address for Marcasco. The indemnification clause in question was in section five of this agreement.

“ ‘There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the Trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. [Cit.]’ [Cit.]” Cincinnati Ins. Co. v. Page, 188 Ga. App. 876, 878 (374 SE2d 768) (1988). Furthermore, as a contract of indemnity, the contract in issue must be strictly construed. OCGA § 10-7-3. Turning to the subject contract, the language used clearly denominates Marcasco as the “client” or “owner” with whom GBS was contracting. Although Landmarks is referenced in the “c/o” over the address in the building maintenance agreement, applying the usual and common signification to the words used, OCGA § 13-2-2 (2), “c/o,” especially where inserted as here over an address, most often means “care of” and is “used especially] in addressing mail to a person reached through another person, a firm, or other agency.” Webster’s New Intl. Dictionary (2d ed., unabridged). Landmarks is also referenced in Brumage’s signature and in various operations exhibits (which are included in the contract in the record but not in exhibit 14). Brumage signed the document, however, with the notation of “agent.” Although the appendage of such a word, without more, is considered at law a word of description, McRitchie v. Atlanta Trust Co., 170 Ga. 296, 302 (2) (152 SE 834) (1930), case law has established that a party who signs as an “agent” cannot be held individually liable under the contract where the principal’s name is disclosed and the contract is substantially in the name of the principal. Id. at 304 (3); see also Georgia Cas. &c. Co. v. Hardrick, 211 Ga. 709, 711 (1) (88 SE2d 394) (1955). Although the contract in issue does not specifically designate Landmarks as the agent for Marcasco, compare Mc-Ritchie, supra at 304 (3), “in all other respects the contract purported to deal with [Marcasco],” and thus the signature of Landmarks’ officer in the place authorized for the owner/client’s signature “indicated that [Landmarks] was acting only as agent.” Lawyers Co-op. Pub. Co. v. Huff, 142 Ga. App. 45, 46 (234 SE2d 842) (1977). Since Landmarks’ status was that of an agent so that the contract could not be enforced against it and Landmarks would not share in any of Marcasco’s liability under the contract, it follows that the trial court did not err by holding that Landmarks was not a party to the contract so as to entitle Landmarks to the benefits for which its principal had contracted. See generally Smiths’ Properties v. RTM Enterprises, 160 Ga. App. 102, 103 (2) (286 SE2d 334) (1981).

Decided October 12, 1989

Rehearing denied October 26, 1989.

Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellant (case no. A89A1277).

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, Lance D. Lourie, for appellant (case no. A89A1278).

Drew, Eckl & Farnham, Samuel P. Pierce, Jr., James F. Cook, Jr., for appellant (case no. A89A1279).

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

8. Our holding in Division 1 (a) renders it unnecessary for us to consider GBS’s fifth enumeration.

Judgments reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1428.
    MORGAN v. MORGAN.
    (388 SE2d 2)
   Sognier, Judge.

Linda Barrows Morgan filed suit in the Superior Court of Fulton County to have her marriage to C. Dennis Morgan annulled and to recover damages on a claim of fraudulent inducement to marry. Following a nonjury trial at which Mr. Morgan did not appear, the trial judge entered findings of fact and conclusions of law, annulled the marriage between the parties, and entered judgment in favor of Ms. Morgan in the amount of $30,000 in compensatory damages, $90,000 in punitive damages, and $5,000 in attorney fees. Mr. Morgan now appeals from the denial of his motion to set aside the damages portion of the judgment.

1. We note that appellant’s notice of appeal was filed on December 22,1983, when the denial of a motion to set aside a judgment was appealable as a matter of right. Dudley v. Monsour, 155 Ga. App. 269, 270 (1) (270 SE2d 686) (1980); compare OCGA § 5-6-35 (a) (8) (Ga. Laws 1984, p. 599, § 2). The clerk of the superior court has certified to us that the delay in transmittal of the instant record to this court was attributable to “stress of work” and “inadvertence” in the clerk’s office. See OCGA § 5-6-43 (a).

2. Appellant first contends the trial court did not have subject matter jurisdiction of this action because it was in essence a complaint for divorce or annulment, which could not be maintained because neither party had resided in Georgia for six months prior to the filing of the complaint as required by OCGA § 19-5-2. However, as this appeal originally was filed in the Supreme Court of Georgia and was transferred to this court “on the ground that it is an appeal from a judgment awarded in tort,” we have no jurisdiction to consider this enumeration.

3. Appellant also challenges the trial court’s jurisdiction over him, contending that he was not properly served with process and that he was not a Georgia resident at the time the action was filed and served.

The record reveals that appellee’s complaint was filed on April 2, 1981, and the return of service executed by the deputy sheriff indicates that appellant was personally served at his Alpharetta residence on April 6, 1981. In his affidavit filed in support of his motion to set aside the verdict, appellant averred that he moved to Florida “just prior to April 1, 1981,” where he remained until moving back to Georgia in May 1982, that when he visited his father in Atlanta on April 8, 1981 his father gave him the complaint filed by appellee, and that the complaint was not served upon him or any member of his family at the Alpharetta address. Nonetheless, as appellant filed an answer and counterclaim on May 1st in which he stated that he “[was] not a resident of Fulton County, Georgia and [was] not subject to the jurisdiction of [the trial] court” but did not raise the issue of insufficiency of service of process by either his answer or a motion, the defense of insufficient service was waived. Weddington v. Kumar, 149 Ga. App. 857 (256 SE2d 141) (1979).

As to appellant’s denial of personal jurisdiction, the Georgia Long-Arm Statute, the applicable terms of which have not been changed since this action was filed, authorizes personal jurisdiction over a nonresident if he “[c]ommits a tortious act or omission within this state.” OCGA § 9-10-91 (2) (former Ga. Code Ann. § 24-113.1 (b)). “The term ‘nonresident’ shall . . . include an individual . . . who, at the time a claim or cause of action arises under Code Section 9-10-91, was residing ... in this state and subsequently becomes a resident, domiciled . . . outside of this state as of the date of perfection of service of process. . . .” OCGA § 9-10-90 (former Ga. Code Ann. § 24-117). The trial court found, and appellant admits, that at the time appellant induced appellee to marry him (despite the fact that he was not divorced from his current wife), appellant was a Georgia resident. Thus, as the tortious act was committed within the state and appellant apparently became domiciled in Florida for a brief period just before service was perfected, there existed sufficient connection with this state to satisfy the “minimum contacts” requirement imposed by the due process clause of the United States Constitution, compare Yarbrough v. Estate of Yarbrough, 173 Ga. App. 386-387 (326 SE2d 517) (1985), and the trial court properly exercised personal jurisdiction over appellant. See Edelschick v. Blanchard, 177 Ga. App. 410, 411 (2) (339 SE2d 628) (1985).

4. Appellant contends in three enumerations that Georgia does not recognize the tort of fraudulent inducement to enter into a void marriage, and that appellee’s claim was in reality an impermissible complaint for compensatory and punitive damages in a divorce or annulment action. We do not agree, as Georgia courts have recognized that one who is induced to enter into a marital relationship under false pretenses has a common law tort action for fraud and may recover damages. Perthus v. Paul, 81 Ga. App. 133, 136 (58 SE2d 190) (1950); see Schmitt v. Schneider, 109 Ga. 628, 631 (35 SE 145) (1900). Appellant’s further argument that such an action is barred by the doctrine of interspousal immunity, see OCGA § 19-3-8, is similarly without merit because appellant concedes that he was already married to someone else at the time he proposed to and married appellee, and thus there was no valid marriage to protect by application of the doctrine of interspousal tort immunity. See OCGA §§ 19-3-1; 19-3-2 (3); 19-3-5; compare Robeson v. Intl. Indem. Co., 248 Ga. 306, 307 (1) (282 SE2d 896) (1981).

5. Appellant also enumerates as error the trial court’s failure to grant his motion to set aside on the ground that appellee’s claim of fraud was based upon representations — i.e., his assertions to her that he was divorced — that she either knew or by the exercise of ordinary diligence could have determined were false. “While a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations.” Johnson v. Sherrer, 197 Ga. 392, 395 (29 SE2d 581) (1944). We find the lower court, as the trier of fact, was authorized by the evidence to find appellee exercised the ordinary diligence required. Appellant’s argument that one who is planning to marry should be required to ascertain from the courthouse records whether the prospective spouse is already married is wholly without merit. Thus, we find no reversible error.

Decided October 12, 1989

Rehearing denied October 26, 1989

Tyrus R. Atkinson, Jr., for appellant.

6. Appellant next contends the trial court erred by failing to set aside the judgment after appellee filed an affidavit requesting the court to so rule. The record reveals that judgment was entered against appellant on June 23, 1981, and appellant’s motion to set aside was filed on December 13, 1982 and denied by an order entered November 14, 1983. Thereafter, the record contains an affidavit made by appellee dated December 19, 1983 and filed nunc pro tunc as of that date in which she “requested] that the judgment [against appellant] be set aside,” and that she was “seeking to have said judgment set aside to relieve [appellant] of the financial burden that such judgment would place upon him if allowed to stand.”

We find no abuse of discretion in the trial court’s denial of the motion to set aside on this issue, as it does not involve either a jurisdictional plea or a nonamendable defect not appearing on the face of the record, see OCGA § 9-11-60 (d); Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583) (1983), and there is no evidence the trial court was even aware of appellee’s apparent desire to have the judgment set aside until after the court ruled on appellant’s motion. Further, although when a judgment is not based upon a jury verdict the trial court may exercise its discretion to set aside the judgment even if the motion is not based on a defect appearing on the face of the record, such a motion must be made during the term of court in which the judgment was rendered, Martin v. Gen. Motors Corp., 226 Ga. 860, 862-863 (1) (178 SE2d 183) (1970), which did not occur here. However, we note that a litigant may waive a right to execute upon a judgment, see generally Philips Audio &c. Corp. v. Bateman, 160 Ga. App. 12 (285 SE2d 747) (1981), provided there is no impairment of any interest of another in the judgment, see J. C. Penney &c. Ins. Co. v. Williams, 149 Ga. App. 258, 261 (1) (253 SE2d 878) (1979), and thus this remedy possibly is available to the parties regardless of the trial court’s ruling.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

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


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

text:
    A89A1114.
    KOLKER v. THE STATE.
    (387 SE2d 597)
   Carley, Chief Judge.

In 1985, appellant entered a plea of nolo contendere in the Recorder’s Court of the City of Chamblee to a charge of driving under the influence in violation of OCGA § 40-6-391. Some years later, an accusation was filed in the State Court of Gwinnett County charging appellant with the commission of yet another count of driving under the influence in violation of state law. Urging that the previous proceedings brought against him in the municipal recorder’s court were void for lack of subject matter jurisdiction, appellant attempted to enter a plea of nolo contendere to the subsequent charge of driving under the influence. The trial court concluded that it had no authority to disregard appellant’s prior plea and refused to accept what it found to be appellant’s second nolo contendere plea to a charge of driving under the influence. After the trial court refused to accept his nolo contendere plea, appellant pled guilty. He appeals from the judgment of conviction and sentence that was entered by the trial court on his plea of guilty.

1. If the prior proceedings in the Recorder’s Court of the City of Chamblee were shown by appellant to be void for lack of subject matter jurisdiction, the trial court would be required to disregard those void proceedings in the context of the instant case. See generally Barrett v. State, 183 Ga. App. 729 (1) (360 SE2d 400) (1987).

In urging that the previous proceedings in the municipal recorder’s court were void, appellant relies upon Duncan v. State, 185 Ga. App. 854 (366 SE2d 154) (1988). In Duncan, we held that, under Art. VI, Sec. I, Par. I of the Ga. Const, of 1983, the Recorder’s Court of Gwinnett County had no jurisdiction over alleged violations of state traffic laws. Art. VI, Sec. I, Par. I provides, in relevant part, that “[t]he judicial power of the state shall be vested exclusively in the following classes of courts: magistrate courts, probate courts, juvenile courts, state courts, superior courts, Court of Appeals, and Supreme Court. . . . Except as provided in this paragraph and in Section X, . . . county recorder’s courts ... in existence on June 30, 1983 . . . shall not be subject to the provisions of this article.” (Emphasis supplied.) Art. VI, Sec. X, Par. I (5) provides, in relevant part, that “[o]n the effective date of this article: . . . county recorder’s courts . . . shall continue with the same jurisdiction as such courts . . . have on the effective date of this article until otherwise provided by law.” (Emphasis supplied.) The Recorder’s Court of Gwinnett County was in existence on June 30, 1983, and, on the date that Art. VI of the Georgia Constitution of 1983 became effective, that court had been invested by the General Assembly with jurisdiction to try state traffic offenses. See Ga. L. 1972, p. 3125. Thus, Duncan failed to recognize that the Recorder’s Court of Gwinnett County is subject to two provisions of the Georgia Constitution of 1983, one of which purports to vest the judicial power of the state exclusively in certain classes of courts other than county recorder’s courts, but the other of which purports to authorize the continuance of the legislative grant to that county recorder’s court of jurisdiction over state traffic offenses.

Accordingly, the issue of whether, under the Georgia Constitution of 1983, the Recorder’s Court of Gwinnett County has jurisdiction to try state traffic offenses involves a construction of Sections I and X of that Constitution. See generally State of Ga. v. Ashmore, 236 Ga. 401, 403 (I) (224 SE2d 334) (1976). This court has no jurisdiction to resolve such an issue. “The Supreme Court. . . shall exercise exclusive appellate jurisdiction in . . . [a]ll cases involving the construction . . . of the Constitution of the State of Georgia. . . .” (Emphasis supplied.) Art. VI, Sec. VI, Par. II (1) of the Ga. Const, of 1983. Thus, in Duncan, this Court exceeded its subject matter jurisdiction and erred in failing to transfer the case to the Supreme Court. It follows that Duncan v. State, supra, must be overruled.

2. Pursuant to OCGA § 40-13-21 (a), municipal courts were seemingly invested with jurisdiction over certain state traffic offenses. It would appear, however, that, prior to the effective date of the Georgia Constitution of 1983, the Recorder’s Court of the City of Chamblee was without jurisdiction to try state traffic offenses pursuant to OCGA § 40-13-21 (a). See Clarke v. Johnson, 199 Ga. 163 (33 SE2d 425) (1945); Hannah v. State, 97 Ga. App. 188 (102 SE2d 624) (1958). Accordingly, unlike the Recorder’s Court of Gwinnett County, the Recorder’s Court of the City of Chamblee apparently had in 1985 no jurisdiction over state traffic offenses which had been “continued” pursuant to Art. VI, Sec. X, Par. I (5) of the Georgia Constitution of 1983.

Art. VI, Sec. I, Par. I of the Georgia Constitution of 1983 provides, in relevant part, however, that “[t]he judicial power of the state shall be vested exclusively in the following classes of courts: magistrate courts, probate courts, juvenile courts, state courts, superior courts, Court of Appeals, and Supreme Court. ... In addition, the General Assembly may establish or authorize the establishment of municipal courts. . . . Municipal courts shall have jurisdiction over ordinance violations and such other jurisdiction as provided by law.” (Emphasis supplied.) The State urges that, notwithstanding the vesting of the judicial power of the state exclusively in certain classes of courts other than municipal courts, Art. VI, Sec. I, Par. I of the Georgia Constitution of 1983 nevertheless also authorizes the General Assembly to confer “by law” jurisdiction upon municipal courts to try state offenses and that, pursuant to the adoption of that constitutional provision, jurisdiction over state traffic offenses was automatically conferred “by law” upon the Recorder’s Court of the City of Chamblee by virtue of the existence of OCGA § 40-13-21 (a). See generally State of Ga. v. Ashmore, supra.

Thus, the issue to be determined in the instant case is whether the language of Art. VI, Sec. I, Par. I of the Georgia Constitution of 1983 which provides that municipal courts are authorized to exercise “such other jurisdiction as provided by law” is properly construed as being an exception to or as being limited by the constitutional grant, in that same paragraph, of the judicial power of the state exclusively to courts other than municipal courts. Municipal courts are either constitutionally authorized to exercise “such other jurisdiction as provided by law” including jurisdiction over state traffic offenses as provided by OCGA § 40-13-21 (a) or, notwithstanding the provisions of OCGA § 40-13-21 (a), they are constitutionally authorized to exercise “such other jurisdiction as provided by law” except jurisdiction over state offenses.

It is clear that, as in Duncan, this Court has no jurisdiction to address this issue of the construction of the provisions of the Constitution of Georgia of 1983. See Art. VI, Sec. VI, Par. II of the Ga. Const, of 1983. Accordingly, this appeal must be transferred to the Supreme Court.

Appeal transferred.

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

Deen, Presiding Judge,

dissenting.

“When the right point of view is discovered, the problem is more than half solved.” Ellison v. Ga. R. &c. Co., 87 Ga. 691, 706-707 (13 SE 809) (1891). Because I believe that the majority opinion has discovered the wrong point of view and thereby has more than half compounded the problem, I must respectfully dissent.

Initially, I note that Duncan v. State, 185 Ga. App. 854 (366 SE2d 154) (1988), concerned the jurisdiction of county recorder’s courts. The instant case concerns the jurisdiction of municipal courts. Although I share the majority opinion’s observation that this court in Duncan evidently overlooked Ga. Const., Art. VI, Sec. X, Par. I (5), the fact remains that Duncan is inapposite here. The majority opinion inappropriately attempts to use the instant case as a vehicle to overrule Duncan.

More importantly, I believe the majority opinion has taken the wrong view concerning this court’s own jurisdiction. Ga. Const., Art. VI, Sec. I, Par. I, following the assignment of judicial power of the State, provides that “[mjunicipal courts shall have jurisdiction over ordinance violations and such other jurisdiction as provided by law.” OCGA § 40-13-21 (a) expressly empowers municipal courts to handle cases involving “all criminal laws of this state relating to traffic upon the public roads, streets, and highways of this state where the penalty for the offense does not exceed that of the grade of misdemeanor.” Under these constitutional and statutory provisions, municipal courts such as the Recorder’s Court of the City of Chamblee clearly have jurisdiction over misdemeanor DUI offenses.

Decided October 26, 1989.

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

Gerald N. Blaney, Solicitor, George L. Kimel, David M. Fuller, Assistant Solicitors, for appellee.

The instant case involves application, not construction, of precise and unambiguous provisions of the state constitution. In this situation, the majority opinion thus errs in transferring the appeal to the Supreme Court. Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986).

Considering the merits of this appeal, OCGA § 40-6-391.1 (a) provides that acceptance of a nolo contendere plea is within the trial court’s discretion. The record demonstrates no abuse of discretion in the trial court’s refusal to accept the appellant’s nolo contendere plea in this case, and I would affirm.

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


text:
    A89A1774.
    CLEMONS v. PIGGLY WIGGLY, INC.
    (387 SE2d 600)
   Sognier, Judge.

James Clemons, Sr. brought suit against Piggly Wiggly Southern, Inc. seeking damages for injuries he incurred when he slipped and fell in a store operated by the defendant. The trial court granted Piggly Wiggly Southern’s motion for summary judgment and Clemons appeals.

The record reveals that on April 24, 1987, appellant and his wife were visiting appellee’s grocery store in Eatonton when appellant fell in aisle eight of the store after slipping on a brown colored liquid, the color of the floor, which had accumulated in a puddle about a foot away from the shelf. In his deposition appellant characterized the liquid as “shampoo” and stated he did not see an empty shampoo bottle but noticed other shampoo bottles stocked on the shelves. An employee of appellee’s, who was also in aisle eight at the time appellant fell, testified by deposition that she was buying groceries prior to beginning her work shift and that she saw appellant fall in the shampoo. She recalled seeing a puddle of shampoo, a 16-ounce bottle of shampoo (which she stated was nearly empty), and cat litter on the floor. She testified that the cat litter was “on top of” the shampoo and that there was “a lot” of cat litter, noting that it “was in the wrong place.” Linda Martin, the custodian of the store at the time of the incident, testified by deposition that her duties included making sure there was nothing on the floor in the store aisles and that she patrolled the store aisles “constantly” except when she was cleaning the rest rooms. She stated that when she arrived to clean up the spill she examined the bottle of shampoo. Martin testified that the bottle was empty and that she found that it had “a cut” in it. Following the trail of shampoo, she discovered that the bottle had fallen from one of the lower shelves.

We reverse. “ ‘[B]efore an owner can be held liable for the slippery conditions of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care.’ [Cits.] . . . Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive.” Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). The evidence in this case raises several questions of fact for the jury to decide. We agree with appellant that Mitchell v. Rainey, 187 Ga. App. 510 (370 SE2d 673) (1988) is closely analogous to the facts in the case sub judice. In Mitchell the plaintiff fell on a puddle of melted ice cream. After discussing the rule applicable to situations where the property owner’s opportunity to discover a foreign substance is raised, this court found that “where there was melted ice cream on the floor, the amount of time for ice cream to melt would of necessity be a jury question.” Id. at 512. Similarly, we find that the amount of time for the shampoo to seep out of the bottle would necessarily be a jury question.

We also agree with appellant that the presence of the cat litter on the shampoo raises questions for jury determination. The depositions of record contain references to the fact that the area in aisle eight where appellant fell was stocked with shampoo and hairspray. The record does not reflect that cat litter was stocked in the same area. Thus, it can reasonably be inferred from the record that the shampoo had been present long enough either for a patron to have spilled “a lot” of cat litter onto the liquid accidentally or for someone to have placed the cat litter deliberately on top of the shampoo, perhaps to absorb it. The unexplained presence of the large amount of cat litter in the shampoo distinguishes this case from Queen v. Kroger Co., 191 Ga. App. 249 (381 SE2d 413) (1989), cited by appellee, in which the plaintiff, having fallen on grapes, asserted that the smashed condition of two other grapes on the floor constituted evidence that the dangerous condition had existed for a sufficient period of time to afford the defendant a reasonable opportunity to discover and remove them. We dismissed the plaintiff’s argument in Queen on the basis that the condition of the grapes provided no indication of the length of time they had been on the floor, since the grapes could have been smashed by the plaintiff herself or by another patron immediately before the plaintiff. Here, however, the time frame between appellant’s fall and the arrival of appellee’s employee who noticed the cat litter shows that the cat litter was present in the shampoo not because of any act of appellant, and the amount of the cat litter, as well as its propitious placement on top of the spilled shampoo, raises a reasonable inference here, unlike Queen, supra, that sufficient time had passed since the spill for appellee to be charged with constructive knowledge.

Decided October 26, 1989.

William J. Sussman, for appellant.

Martin, Snow, Grant & Napier, Barbara S. Boyer, John C. Ed wards, for appellee.

“ ‘Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Cits.) In terms of evidentiary standards, the award or denial of summary judgment is analogous to the granting or the denial of a directed verdict. (Cit.) All evidence must be construed against the movant; the party opposing the motion is to be given the benefit of all reasonable doubts and favorable inferences. (Cits.) Moreover, when the movant is the defendant, he bears a double burden: he must pierce the plaintiff’s pleadings and affirmatively negate one or more of the elements of plaintiff’s case, and he must establish that there are no genuine issues of material fact to be tried. (Cit.)’ [Cit.]” Piggly Wiggly Southern v. Thigpen, 188 Ga. App. 839, 841 (374 SE2d 773) (1988). “Applying the above test to the operative facts and law, we find that the trial judge erred in granting appellee’s motion for summary judgment, as a genuine issue of material fact existed within the meaning of OCGA § 9-11-56 (c). [Cits.]” Mitchell, supra at 513.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1865.
    CHENEY et al. v. MOORE.
    (387 SE2d 575)
   Deen, Presiding Judge.

Appellant Ouida Cheney and appellee Susan Moore agreed to start a medical supplies retail business under the name C&M Medical Supply, Inc. (C&M). Under the articles of incorporation, drafted by Cheney’s attorney, both Cheney and Moore were to be officers, directors, and employees of the company, each was to invest the same amount of money and work the same amount of time, and each was to own 50 percent of the stock. The buy-sell agreement incorporated into the articles provided that, upon either principal’s leaving the firm’s employ, the corporation would have the option of buying the resigning shareholder’s stock at book value.

Less than a month after the business was opened, Moore and Cheney disagreed over how it should be run, and Moore resigned as both officer and employee; the resignation was silent regarding her capacity as director.

The parties’ respective accountants met and determined C&M’s book value to be approximately $15,000. Appellee Moore’s attorney made written demand upon Cheney’s attorney for $7,500 as representing the book value of Mrs. Moore’s stock. Cheney replied, “There is simply no way I can pay you.” Moore then filed an action against the firm seeking what she alleged was due her and also seeking to “pierce the corporate veil” behind which Cheney was allegedly operating the company. She alleged that Cheney had taken a number of ultra vires actions, among them the appointment of additional directors and the payment of certain indebtednesses, including those owed to herself. At trial the court directed verdicts against the corporation and against Cheney individually.

Cheney appeals from this judgment, enumerating ten errors having to do with certain evidentiary rulings and jury instructions, as well as the direction of the verdicts and the award of attorney fees. Held:

1. Because several of the appellant’s enumerations of error are dependent for their viability on rulings regarding another enumeration, or otherwise have an ancillary or overlapping relationship with one another, we shall group for discussion the related enumerations.

Enumerations 2, 3, 4, and 5 challenge evidentiary and other rulings by the trial court involving the applicability of the theory of “piercing the corporate veil” to certain acts of Cheney. “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, perpet[r]ate fraud or . . . evade contractual or tort responsibility.’ ” Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 673 (320 SE2d 555) (1984); Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 326 (297 SE2d 292) (1982). The corporate veil can be pierced by evidence that a person “acted outside the scope of his employment, in disregard of the corporate entity, or in derogation of the corporation.” Energy Contractors v. Ga. Metal &c. Engineering, 186 Ga. App. 475, 478 (367 SE2d 324) (1988); accord Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190 (345 SE2d 875) (1986). It is well settled that corporate officers and directors have a fiduciary relationship to the corporation and its shareholders and must act in good faith. Henderson v. KM Systems, 188 Ga. App. 893 (374 SE2d 550) (1988). There is undisputed evidence that Cheney called directors’ meetings without notice to Moore (who had not resigned as director); that she unilaterally appointed additional directors; that she paid certain corporation obligations, including obligations to herself and/or her husband (see also Enumeration 6), without the knowledge or consent of Moore; that she declined to make the corporate records and corporate minute book available to Moore or her representative; transferred corporate stock to her husband’s corporation; and took other actions which were either self-serving or in violation of the Georgia Business Corporation Code, OCGA Title 14, Ch. 2 — or both. Compare Quinn v. Cardiovascular Physicians, 254 Ga. 216 (326 SE2d 460) (1985).

Cheney’s attempts at justifying these actions do not change their nature or, a fortiori, the fact that they were done. We find nothing erroneous in the trial court’s rulings on these matters, or in awarding directed verdicts. Enumerations 2 through 6 are therefore without merit.

2. Because the validity of Enumerations 1 and 10 depends on our determination in Division 1, supra, it follows that these two enumerations have no merit.

3. Also without merit is appellant’s seventh enumeration. The proffered evidence of the effect Cheney’s departure had on the business would have been speculative at best, since the corporation had no “track record” to serve as a gauge of lost sales or lost profits. A party claiming lost profits must demonstrate the loss in such manner that it is easily calculable by the jury. Glennville Hatchery v. Thompson, 164 Ga. App. 819 (298 SE2d 512) (1982). It cannot be left to speculation, conjecture, or guesswork. Cheney failed to meet this burden.

4. Although it would have been preferable for the court, rather than stating that he was taking defense counsel’s word regarding the nature and contents of the buy-sell agreement, either to have had him take the witness stand or to state in his place the relevant facts, we find that no harm ensued from this unusual procedure. In order to be reversible, an error must be shown to have been prejudicial Pope v. Propst, 179 Ga. App. 211, 217 (345 SE2d 880) (1986). The eighth enumeration is also devoid of merit.

Decided September 26, 1989.

Rubin Law Offices, Robert P. Hoyt, for appellants.

Wood & Perry, Jere F. Wood, for appellee.

5. The requested jury charges on the distinction between par value, book value, and similar terms, as applicable to a corporation’s purchase of its own stock, were at best peripheral to the issues in the instant case. Moreover, the award of directed verdicts renders these enumerations moot. Appellant’s ninth enumeration is without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1870.
    MARSHALL v. THE STATE.
    (387 SE2d 602)
   Sognier, Judge.

Elester Marshall was indicted on four counts and convicted on three of those counts for armed robbery, aggravated assault, and possession of a firearm by a convicted felon. The trial court directed a verdict of acquittal on the fourth count, and on appellant’s motion for new trial vacated appellant’s conviction for aggravated assault. He appeals.

At trial, Clara Kinseth testified that she was the manager of a convenience store in Laurens County, and that on the evening of April 28, 1988, a man whom she identified as appellant entered the store armed with a pistol and demanded she give him money from the cash register. Kinseth testified that when she told appellant everything that he was doing was being recorded, appellant fired several shots at a monitor right behind her. Kinseth then told appellant she was going to call the police, at which point appellant jumped over the counter, jerked out the telephone and the monitor, and struck Kinseth twice with the pistol. Appellant then grabbed several handfuls of $5 and $10 bills and ran away when a customer entered the convenience store. Kinseth testified she had seen appellant at the store before and was “fairly sure” of appellant’s identity when she viewed photographs presented to her by the police, but was certain he was the perpetrator of the crimes after selecting him from a police line-up and seeing him in the courtroom during trial.

Also adduced at trial was evidence that appellant, after questioning by police, led the police to a .22 caliber pistol under a shed on premises owned by a friend of appellant’s. A ballistics expert testified that a bullet fired in the convenience store robbery was probably fired from the pistol the police recovered, though damage to the bullet prevented the expert from stating it was definitely fired from that weapon.

A certified copy of appellant’s prior conviction on five counts of forgery was admitted into evidence.

1. We find this evidence sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses of armed robbery and possession of a firearm by a convicted felon. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by allowing the charge of possession of a firearm by a convicted felon to be tried along with the charges of burglary and aggravated assault because the evidence of appellant’s prior conviction would have influenced the jury against him, citing Head v. State, 253 Ga. 429 (322 SE2d 228) (1984). However, since the trial court directed a verdict in appellant’s favor on the burglary charge, and appellant’s conviction on the aggravated assault charge was later vacated by the trial court, we find no merit in this argument since any error was harmless. See generally Royal v. State, 189 Ga. App. 756, 758 (377 SE2d 526) (1989).

3. The State introduced evidence of appellant’s prior conviction without objection to establish one of the elements for the charge of possession of a firearm by a convicted felon. Favors v. State, 182 Ga. App. 179, 180 (2) (355 SE2d 109) (1987). Thereafter, during direct examination appellant testified that he had committed forgery and was a convicted felon. The prosecutor referenced the prior conviction during closing arguments, and defense counsel’s objection was overruled by the trial court on the basis that the prosecutor was entitled to argue any evidence admitted by the court. Although appellant’s counsel preserved his objection on the record, no other motions were made.

“Where counsel in the hearing of the jury make 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. The topic of appellant’s prior forgeries having been raised by his own counsel on direct examination and the evidence of appellant’s prior conviction having been admissible to establish the elements of OCGA § 16-11-131 (b), we find no error in the trial court’s ruling. See Gill v. State, 183 Ga. App. 481-482 (1) (359 SE2d 163) (1987).

Judgment affirmed.

Banke, P.' J., and Pope, J., concur.

Decided October 26, 1989.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, Tyson Blue, Assistant District Attorney, for appellee.


text:
    A89A1883.
    PROTECTIVE LIFE INSURANCE COMPANY v. ROBINSON.
    (387 SE2d 603)
   Sognier, Judge.

Doris M. Robinson brought suit against Protective Life Insurance Company seeking payment of the proceeds of an insurance policy on the life of her deceased husband, Steve Robinson. Cross-motions for summary judgment were filed, and the trial court granted partial summary judgment in favor of Protective Life on the issue of the existence of a contract, finding that no contract existed; granted partial summary judgment in favor of Robinson on the issue of promissory estoppel; and denied summary judgment to Protective Life on the issue of whether the decedent had made material misrepresentations of fact on the application. Protective Life appeals from the grant of partial summary judgment to Robinson and the denial of its motion for summary judgment.

The record reveals that the decedent was an employee of Williams Lumber Company (Williams) and that on November 21, 1985, an agent of appellant, with Williams’ permission, took applications for life insurance from interested Williams employees, including the decedent. Appellant received the decedent’s application on December 31, 1985, and began to process it. Appellant requested that the decedent submit a new application because of procedural errors in the first one, and also requested an attending physician’s statement (APS) from Dr. P. Benton, the Williams company physician, whom the decedent had listed on the application as having treated him recently for high blood pressure. On January 27, 1986, appellant received the new application. When the APS form sent to Dr. Benton was returned by the postal service, appellant requested Dr. Benton’s full name and mailing address on February 3, 1986. On February 13, 1986, appellant directed its agent in Atlanta to determine the name of the proposed beneficiary and to arrange with the decedent for a medical examination and other matters. On March 10,1986, the agent supplied the beneficiary information and on March 28, 1986, appellant received the correct name and address of the attending physician. On March 31, 1986, appellant informed the agent that it must have the medical examination and other matters within fourteen days or the file would be closed. On April 8, 1986, appellant learned from its agent that Steve Robinson had died on March 22, 1986. On April 15, appellant received the APS from Dr. Benton.

1. Appellant contends the trial court erred by granting summary judgment to appellee on the issue of promissory estoppel because, having found that no contract of insurance existed and granted summary judgment in favor of appellant on that issue (which ruling has not been appealed), it could not properly find that coverage was then created by waiver or estoppel, as under Georgia law “ ‘waiver or estoppel cannot create a contract of insurance coverage where none existed when the loss occurred.’ [Cits.]” Atkinson v. American Agency Life Ins. Co., 165 Ga. App. 102, 105 (299 SE2d 600) (1983). We agree and reverse.

“The general rule is that an application for insurance, even with the concurrent prepayment of premiums, creates no binding contract of insurance until the insurer manifests its acceptance. [Cits.]” Id. at 103. Usually such acceptance is manifested by the issuance of a policy, but in the case at bar, as in Atkinson, supra, the insurer manifested conditional acceptance prior to the issuance of the police by its issuance of a conditional receipt. The receipt stated: “CONDITIONS UNDER WHICH INSURANCE MAY BECOME EFFECTIVE PRIOR TO POLICY DELIVERY. Insurance based on the application will take effect prior to policy delivery on the ‘effective date’ only if all the following conditions are met: (1) that on the ‘effective date’ the proposed insured(s) is (are) insurable exactly as applied for under [appellant’s] underwriting rules for the plan, amount and premium rate applied for; (2) that the amount paid with the application and shown on the reverse side hereof is equal to the first full premium rate applied for; and (3) that there are no material misrepresentations in the application(s). ... In this Receipt, ‘effective date’ means the latest of: (1) the date of the application; or (2) the date of the last of any medical examinations or tests required under our underwriting rules and practices; or (3) the date requested in the application. . . . If the application to which this Receipt was attached is not approved as applied for within ninety days from its date, this Receipt is void. [Appellant’s] only liability in such event will be to return any money received.” (Emphasis supplied.)

It is clear from this language that prior to the issuance of a policy insurance coverage would be effective only if all the conditions stated in the receipt were met. It is equally clear those conditions were not met. The “effective date” in this case was the date of the last of any medical examinations or tests required under appellant’s underwriting practices, as it was the last of the three events listed to occur. The medical examination required by appellant had not occurred at the time appellee’s husband died. On that “effective date” the decedent was not “insurable exactly as applied for under the . . . premium rate applied for” because on that “effective date” the proposed insured was dead. Thus, under the terms explicitly stated in the conditional receipt, coverage was not effective prior to the issuance of a policy. As no policy was issued subsequently, no coverage existed.

Decided October 26, 1989.

Peterson, Young, Self & Asselin, Louise B. Matte, Kirk M. McAlpin, Jr., Susan S. Jones, for appellant.

Kirby G. Bailey, for appellee.

Contrary to appellee’s argument and the trial court’s ruling, under Georgia law neither an insurer’s delay in passing upon an application (see Watkins v. Coastal States Life Ins. Co., 118 Ga. App. 145 (162 SE2d 788) (1968); All American Assurance Co. v. Brown, 177 Ga. App. 402, 404-405 (339 SE2d 611) (1985)), nor its acceptance of premiums (see Whitmire v. Colonial &c. Ins. Co., 172 Ga. App. 651 (323 SE2d 843) (1984); Sasser v. Coastal States Life Ins. Co., 113 Ga. App. 17, 19-21 (1) (147 SE2d 5) (1966)) has the effect of creating a binding obligation upon the insurer, even when the insured has forborne seeking other insurance. See Watkins, supra at 148-149. In fact, in Atkinson, supra, this court specifically rejected the contention that an insurer is estopped from denying coverage because it retained premiums for seven months and never notified the applicant.

As noted by the trial court, the doctrine of promissory estoppel “ ‘relates to the sufficiency of consideration to enforce a promise.’ ” No question of the sufficiency of the consideration is present here. Rather, the issue is whether an unconditional promise to provide coverage existed. We conclude that only a conditional promise was made, and promissory estoppel does not operate to make a conditional promise unconditional. See generally Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701, 702 (331 SE2d 75) (1985). Because the conditions precedent to the fulfillment of the promise were never complied with, no coverage existed and the trial court erred by granting partial summary judgment to appellee by misapplying the doctrine of promissory estoppel.

2. Our decision in Division 1 mandates summary judgment in favor of appellant and renders it unnecessary that we consider appellant’s contentions regarding whether the decedent made material misrepresentations on the application.

Judgment reversed.

Banke, P. J., and Pope, J., concur.