text:
    A93A0413, A93A0414.
    HARRISON v. MARTIN; and vice versa.
    (444 SE2d 618)
   McMurray, Presiding Judge.

Frankie W. Harrison, executrix of the estate of Homer West (“the estate”), filed an action against Ann Wills Martin f/k/a Joan W. Wills, for principal, interest and attorney fees due under seven promissory notes Martin allegedly executed in favor of West. Specifically, Harrison alleges Martin executed a $6,200 promissory note on July 21, 1975, a $25,000 promissory note on January 10, 1977, two $25,000 promissory notes on January 5, 1978, a $25,000 promissory note on December 18, 1978, a $27,500 promissory note on July 8, 1979, and a $75,000 promissory note on January 4, 1980. Harrison also seeks actual and punitive damages, alleging Martin fraudulently converted proceeds of a $9,000 check tendered for estate timber after West’s death.

Martin admits she executed all seven promissory notes alleged in Harrison’s complaint, but asserts failure of consideration, satisfaction, accord and satisfaction and the applicable statute of limitation. Martin alleges “Homer West made a gift to her of and forgave any balance owed on any notes owed by [Martin] to him prior to his death.” Martin denies that she fraudulently converted funds from the estate and alleges “that the [$9,000] timber sale check was deposited into a joint account opened by [Harrison] and [Martin] and [that] this money was used to pay the debts of the Homer West Estate and of [Harrison].”

The case was tried before a jury and the undisputed evidence reveals that Martin and Harrison are sisters; that Homer West is their older brother and that West provided generously for many of his relatives, including Harrison and Martin. It is also undisputed that Homer West died on July 18, 1982, and that Harrison was named executrix of West’s estate and sole beneficiary under his Last Will and Testament.

At trial, Harrison testified that she discovered the seven promissory notes in her brother’s personal effects and that, to her knowledge, Martin never honored her obligation under these promissory notes. Harrison further testified that Martin fraudulently induced her to relinquish a $9,000 check tendered for estate timber after West’s death and that Martin tortiously converted the proceeds of this check.

Although Martin admitted executing the seven promissory notes set out in Harrison’s complaint, her testimony indicates that she did not receive $208,700 as reflected as total principal balances on the face of the seven notes. Martin testified that West loaned her $6,200 in exchange for her execution of a promissory note dated July 21, 1975; that West loaned her $25,000 in exchange for her execution of a promissory note dated January 10, 1977; that West loaned her $25,000 in exchange for her execution of a promissory note dated January 5, 1978; that West loaned her $25,000 in exchange for her execution of a promissory note dated December 18, 1978; that she executed a $27,500 promissory note on July 8, 1979, in exchange for $2,500 and renewal of one of the earlier (unspecified) $25,000 loans and that she executed a $75,000 promissory note on January 4, 1980, in consideration of renewal of the three earlier $25,000 loans. Martin testified that she executed two $25,000 promissory notes dated January 5,1978, because she was informed that the first note bearing the same date was defectively drafted. Martin explained that she paid West “$1,000” on April 8, 1977, and that she gave West “$6,500 [on] July 28, 1978. ” Martin’s testimony also indicates that she paid West $7,972 in exchange for satisfaction of the $25,000 promissory note dated January 10, 1977. (Martin introduced a document dated March 20, 1981, executed by Harrison under a general power of attorney for Homer S. West, designating satisfaction of a $25,000 loan secured by a deed to secure debt recorded in the Superior Court of Houston County and dated 1977.) Martin testified that she visited West in the hospital a few weeks before his death and that West then forgave her debts, including any obligation evidenced by the seven promissory notes.

Martin testified that Harrison gave her a $9,000 check at a closing involving the sale of estate timber rights; that Harrison “told [Martin] she had company at her house[,] she did not want them to know that she received any money[,] to give Jackie, [Martin’s] son, $300 or $500 [for helping with the timber sale] and . . . to go deposit [the check] into [Martin’s] checking account.” Martin testified that she “and [Harrison then] went down to the bank[, deposited the proceeds of the $9,000 check] and put [Harrison’s] name on [her] checking account with it.” Martin explained that Harrison “had power of attorney [and] could use [the checking account] anytime she wanted to cash a check [and that Harrison] did use it many times.” Martin also explained that she used this checking account to satisfy several estate debts.

Lawana Thompson LaFavor affirmed that she went on “a visit along with Ann Wills [Martin] to her brother Homer’s [hospital] room just a few weeks before his death in the summer of 1982” and testified that West then appeared to be of sound mind and that West “told [Martin] that she did not owe him anything at all[,] she did not owe him a dime[,] they had been good to one another and that they had been close and that [Martin] owed him absolutely nothing.”

Episcopal Priest Edward Sellers testified that he went to Homer West’s hospital room a few weeks before West died; that he then observed Martin and Lawana Thompson LaFavor exit West’s hospital room and that “[w]hatever had happened [during West’s meeting with Martin, West] felt at peace with what he had done.” The Reverend Sellers admitted that he was not present during the conversation between West and Martin, but explained that he knew the conversation “dealt with his property and how he was trying to arrange that [and that Martin] discussed the fact that . . . however he had arranged the final disposition of that, he was satisfied that he had done the right thing.” The Reverend Sellers testified that Homer West was “clearly aware of the fact that he was in the process of dying. . . .”

Attorney Joneal Lee testified that he was familiar with the sibling relationship between Martin, Harrison and West; that he “always thought it was a very good close relationship’’^] that he prepared West’s Last Will and Testament in 1979; that it was then his “impression . . . the parties were still close, that there was no argument between them, but that [Homer West] was giving everything in his will to his sister Frankie [Harrison] because [West] felt like he’d already given Ann [Martin] enough.” Attorney Lee explained that “from the conversation that [he] had [with Homer West, he] never expected . . . the notes [executed by Martin] to be repaid.”

The trial court denied Harrison’s motion for directed verdict and the jury returned a $41,000 verdict for the estate. Martin filed a motion for judgment n.o.v. and Harrison filed a motion for judgment n.o.v. or, in the alternative, a motion for new trial.

Upon the trial court’s denial of the motions of Harrison and Martin, Harrison appealed in Case No. A93A0413 and Martin cross-appealed in Case No. A93A0414.

In the first appearance in this Court of the cases sub judice, this Court (in an unpublished opinion, decided June 29, 1993) affirmed these cases without having considered the merits. The Supreme Court of Georgia granted certiorari in the cases sub judice and remanded these cases to this Court for our consideration on the merits. Consequently, this Court’s judgments of June 29, 1993, in the first appearance are vacated. Held:

Case No. A93A0413

1. Harrison contends the trial court erred in denying her motions for directed verdict and for judgment n.o.v., arguing a prima facie case of liability was established via Martin’s admission that she executed seven promissory notes in favor of West with principal balances totaling $208,700. Harrison also contends the trial court erred in failing to enter judgment for her based on Martin’s admissions that she received $75,000 from West in exchange for the promissory notes dated January 10, 1977, January 5, 1978, and December 18, 1978, and the $75,000 renewal note dated January 4, 1980.

There is no question that a prima facie case was established via Martin’s admission that she executed the seven promissory notes. Nat. Bank of Ga. v. Keriaze, 163 Ga. App. 652 (294 SE2d 688); Q. S. King Co. v. Minter, 124 Ga. App. 517, 518 (3) (184 SE2d 594). However, this does not mean Harrison is automatically entitled to recover the aggregate principal amount ($208,700) of the promissory notes, plus interest and attorney fees. It simply means that Martin assumed the burden of proof at trial. Croxton v. Barrow, 57 Ga. App. 1, 2 (194 SE 24).

“ ‘The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554). If there exists some admissible evidence of record regarding [any defense challenging the prima facie case of Martin’s liability under the seven promissory notes,] then there would be no basis for granting directed verdict as to these issues, as the evidence would not demand a verdict in favor of [the estate].” Truck Parts &c. v. Rutledge, 211 Ga. App. 166 (2) (438 SE2d 404). See Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 833 (395 SE2d 243); Ohoopee Prod. Credit Assn. v. Aspinwall, 183 Ga. App. 306 (1) (358 SE2d 884).

In the case sub judice, Martin testified that one of the $25,000 notes executed on January 5, 1978, replaced the other (purportedly defective) $25,000 note of the same date. This evidence supports Martin’s defense of failure of consideration under one of the promissory notes dated January 5, 1978. OCGA § 11-3-408; Gunter v. Hamilton Bank &c., 201 Ga. App. 379, 380 (411 SE2d 115). Martin testified that she paid West $1,000 in April of 1977 and $6,500 in July of 1978. This evidence supports Martin’s defense of satisfaction (partial payment) under one or more of the promissory notes dated July 21, 1975, January 10, 1977, and January 5, 1978. OCGA § 13-4-40. Martin introduced evidence indicating that West satisfied the $25,000 note dated January 10, 1977, in consideration of Martin’s payment of $7,972. This proof raised genuine issues of material fact as to the defense of accord and satisfaction. OCGA § 13-4-103 (a). Martin testified that the $75,000 promissory note dated January 4, 1980, renewed the promissory notes dated January 10, 1977, January 5, 1978, and December 18, 1978. This testimony authorizes a finding that any debt remaining under the earlier promissory notes was satisfied and replaced via novation. See Remler v. Coastal Bank, 179 Ga. App. 25 (345 SE2d 79); Wages v. Nat. Bank of Walton County, 169 Ga. App. 514 (313 SE2d 771); General Tire &c. Co. v. Solomon, 124 Ga. App. 308 (1) (183 SE2d 573). Consequently, the evidence did not demand a judgment in the aggregate principal amount of $208,700, plus interest and attorney fees under the seven promissory notes or a judgment for $75,000 under the promissory notes dated January 10, 1977, January 5, 1978, and December 18, 1978. See Truck Parts &c. v. Rutledge, 211 Ga. App. 166 (2), supra. However, the same cannot be said as to Martin’s liability under the $75,000 note she admitted executing as a renewal of the three earlier $25,000 loans.

“[T]he renewal of a note cuts off all defenses of which the maker then had knowledge[.] Coast Scopitone v. Self, 127 Ga. App. 124, 127 (3) (192 SE2d 513) (1972)[.]” First State Bank &c. Co. v. Young, 202 Ga. App. 566, 567 (415 SE2d 18). Consequently, the only possible defense to Martin’s liability under the purported renewal note dated January 4, 1980, is her allegation that “Homer West, made a gift to her of and forgave any balance owed on any notes owed by [Martin] to him prior to his death.”

“ ‘ “To constitute a valid inter vivos gift, ... (1) (t)he donor must intend to give the gift; (2) (t)he donee must accept the gift; and (3) (t)he gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.” OCGA § 44-5-80. The party seeking to prove title by gift must do so by clear and convincing evidence. McGrew v. Cooper, 110 Ga. App. 347, 350 (3) (138 SE2d 453) (1964).’ Parker v. Peavey, 198 Ga. App. 694, 696 (2) (403 SE2d 213).” Daniell v. Clein, 206 Ga. App. 377, 383 (2) (425 SE2d 344).

In the case sub judice, Martin testified that she visited her brother a few weeks before his death and that West then forgave Martin of any and all financial obligations. This testimony and Lawana Thompson LaFavor’s testimony that West “told [Martin] that she did not owe him anything at all[,] she did not owe him a dime[,] they had been good to one another and that they had been close and that [Martin] owed him absolutely nothing” constitutes clear and convincing proof that West intended to forgive Martin of any financial obligation to him and that Martin accepted this gift. However, Harrison argues that there was no proof that the alleged gift was delivered via an act which the law accepts as a substitute for delivery.

“ ‘A delivery is essential to the validity of a gift; there must be an actual, constructive, or symbolical delivery of the property to the do-nee, or to someone for him, in execution of the gift, and for the express purpose of consummating it. . . . This requirement is founded both on grounds of public policy and convenience, to prevent mistake, imposition, and perjury, and on the fact that, until delivery, the gift is inchoate and revocable, and the title does not pass. Without a complete delivery there can be no valid gift inter vivos, although every other step is taken that is essential to the validity of the gift; neither intention, nor mere words alone, except where the donee at the time is in possession of tangible property, . . . suffice without delivery.’ 38 CJS, Gifts, § 18 at 794-97.” (Emphasis supplied.) Ansley v. Sunbelt Investments Realty, 176 Ga. App. 693, 695 (2) (337 SE2d 448). “Where property is at the time of the gift in the possession of the donee, as agent for the donor or otherwise, it is not necessary that the donee should surrender to the donor his actual possession in order that the latter may redeliver it to him in execution of the gift, but a relinquishment by the donor of all dominion over the property, and recognition of the possession of the donee as being in his own right, is sufficient to perfect the gift.” 38 CJS 803, Gifts, § 24. To the extent that “ ‘[ajctual manual delivery is not essential to the validity of a gift[, any] act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee shall constitute a constructive delivery.’ OCGA § 44-5-82. Whether the donor completely relinquished control of the gift is a question of fact to be resolved by the jury. Williams v. McElroy, 35 Ga. App. 420, 421 (133 SE 297).” Daniell v. Clein, 206 Ga. App. 377, 383 (2), supra. In resolving this issue, the jury may consider that “[t]he rules as to delivery are relaxed where donor and donee are members of the same family and reside in a common residence.” 38 CJS at 803.

In the case sub judice, it is undisputed that Martin, Harrison and West were close; that the three siblings periodically resided together and that Harrison and Martin had free access to West’s home, particularly during the last two years of West’s life. There is evidence that both Harrison and Martin provided for West’s personal needs during the last two years of his life; that West unconditionally gave Harrison and Martin money during his life and that West trusted and loved his sisters. There is also evidence that West allowed Martin free access to his financial records so that she could tend to his accounts. Martin testified (during convoluted questioning) that she had possession of the seven promissory notes at the time of the purported hospital-bed bequest, explaining that the notes were then kept in her personal filing cabinet. Harrison refuted this testimony, explaining that she knew nothing about Martin’s filing cabinet and that she found the promissory notes after West’s death in a trunk at West’s home along with other financial records. Martin explained that West gave her access to this trunk (via a key) so that she could help manage his affairs. Harrison did not dispute this fact. She simply testified that she could have acquired a key to the trunk if she so desired. This testimony and evidence of West’s physical inability to perfect actual delivery of the notes at the time of his purported hospital-room bequest was sufficient to authorize a finding of delivery as contemplated by OCGA § 44-5-80. Accordingly, since there is evidence authorizing Martin’s defense of debt forgiveness via inter vivos gift, judgment was not demanded against Martin for the principal sum of $75,000, plus interest and attorney fees on the promissory note dated January 4, 1980. Nonetheless, Harrison argues the jury’s $41,000 verdict indicates rejection of Martin’s defense of total debt forgiveness. We cannot accept this logic.

“ ‘The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. (Cits.) . . . The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. (Cit.) Even if the verdict is ambiguous . . . and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. (Cit.)’ Haughton v. Judsen, 116 Ga. App. 308, 310 (157 SE2d 297).” West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864, 869 (3), 870 (198 SE2d 420). In the case sub judice, it is possible the jury accepted Martin’s defense of total debt forgiveness, but entered a general verdict against her for actual and punitive damages based on Harrison’s claim of fraud and conversion.

The trial court did not err in denying Harrison’s motions for directed verdict and for judgment n.o.v.

2. Harrison contends the trial court erred in rejecting a special verdict form proposed by her attorney in the pre-trial order and at trial and in allowing the jury to return a general verdict.

“[I]f the form of the verdict was improper, it was incumbent upon [Harrison] to make [her] objections as to irregularity of form at the time of its rendition or otherwise such technicality is waived. Golosky v. Whorle, 117 Ga. App. 335 (160 SE2d 614). This is so because a verdict may be reformed or remodeled in the presence of the jury before they have retired from the box. Herndon v. Sims, 7 Ga. App. 675 (3) (67 SE 835). See also Ga. R. &c. Co. v. Tompkins, 138 Ga. 596, 603 (75 SE 664).” West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864, 869 (3), 870, supra.

In the case sub judice, Harrison’s attorney submitted a special verdict form and requested the trial court to “break the verdict down into separate note components with the interest and attorney’s fees, if any, on each note. ...” The trial court denied this request and the jury returned a general verdict for $41,000. The trial court asked if there were any exceptions to the form of the verdict and Harrison’s trial attorney responded negatively. Consequently, Harrison waived any objection to the form of the jury’s verdict. See Fort & Turner Enterprises v. Scrocca, 195 Ga. App. 554, 555 (3) (394 SE2d 364).

3. In her third enumeration, Harrison contends the trial court erred in allowing Martin, Lawana Thompson LaFavor and Episcopal Priest Edward Sellers to testify “to an alleged oral statement made by the deceased, Homer West, that he had forgiven the indebtedness represented by the seven promissory notes at issue in the case.” This contention is without merit. “Declarations and entries made by a person since deceased against his interest and not made with a view to pending litigation shall be admissible in evidence in any case.” OCGA § 24-3-8. See Fountain v. Cabe, 242 Ga. 787, 789 (3) (251 SE2d 529).

4. In her fourth and fifth enumerations, Harrison contends the trial court erred in denying her pre-trial motion to exclude testimony that Martin “did not receive money accompanying the execution of any note . . .” and “that one or more of the promissory notes . . . were renewal notes.”

“ ‘One cannot complain of a result he procured or aided in causing ((cit.)) and induced error is not an appropriate basis for claiming prejudice. (Cits.)’ Hawkins v. State, 195 Ga. App. 739 (395 SE2d 251) (1990). Accord Littlefield v. State, 197 Ga. App. 343 (2) (398 SE2d 375) (1990).” Rider v. State, 207 Ga. App. 519 (1) (428 SE2d 423). In the case sub judice, Harrison’s trial attorney called Martin as his first witness and repeatedly elicited testimony regarding amounts Martin received under the promissory notes. Consequently, Harrison cannot complain that the trial court denied her pre-trial motion to exclude testimony that Martin “did not receive money accompanying the execution of any note . . .” and “that one or more of the promissory notes . . . were renewal notes.”

5. Next, Harrison contends the trial court erred in admitting, over general objection, a note dated February 17, 1979 and penned by Homer West that was discovered by Harrison in West’s trunk along with other business papers. The note appears to corroborate Martin’s testimony that West loaned her $6,200 on July 21, 1975, $25,000 on January 3, 1977, $25,000 on December 20, 1977, and $25,000 on December 18, 1988, and that Martin paid West $1,000 on April 7, 1977, and $6,500 on July 31, 1978. However, the note does not list debts evidenced by the $27,500 note executed on July 8, 1979, and the $75,000 note executed on January 4, 1980. The note also appears to list seven payments from West to Martin that are unrelated to the seven notes Martin executed in West’s favor.

OCGA § 24-3-14 provides, in pertinent part, as follows: “(b) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter, (c) All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight; but they shall not affect its admissibility, (d) This Code section shall be liberally interpreted and applied.”

In the case sub judice, both Martin and Harrison testified that the note was made by Homer West and Harrison testified that she found the note in a trunk where West kept his business papers. Further, it appears the note relates “to the act sued on [in the case sub judice and was] introduced in evidence and while there was no testimony directly that [the note was] kept and made in the regular course of business, [Harrison’s] testimony . . . concerning [West’s] keeping [of such hand-written notes] authorized such a finding, especially where there was no objection to the introduction of the [note] on the ground that it was not shown that [it was] kept in the regular course of business.” Guthrie v. Luke, 98 Ga. App. 88 (1) (104 SE2d 921). Consequently, the note was admissible under the business record exception to the rule against the admission of hearsay. OCGA § 24-3-14. Compare Goss v. Mathis, 188 Ga. App. 702 (373 SE2d 807).

6. Harrison contends in enumeration seven the trial court erred in allowing “testimony of Joneal Lee, the attorney for the deceased, Homer West, relative to any request for dragnet language to be added to a Deed to Secure Debt to be signed by [Martin] or any representations made by the said Homer West relative thereto. . . .” This enumeration is without merit. A party must show harm as well as error to prevail on appeal. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 385 (6) (277 SE2d 753). Harrison fails to show how admission of any such testimony by Attorney Joneal Lee was harmful to her cause.

7. Harrison contends in her eighth enumeration that the trial court erred in allowing Attorney Joneal Lee to testify that it was his “impression [at the time West executed his Last Will and Testament on September 5, 1979,] that [Homer West] was giving everything in his will to his sister Frankie [Harrison] because [West] felt like he’d already given Ann [Martin] enough.”

Harrison’s attorney asserts several arguments in support of this enumeration, but the only objection when the testimony was initially injected at trial was as follows: “I object to any paraphrase or impression that Mr. Joneal might have. He said he couldn’t remember and he said he didn’t make any notes. And I object to any further opinion testimony without some basis for that.” Pretermitting the sufficiency of this objection as a basis for excluding the above quoted testimony of Attorney Joneal Lee, the trial transcript reveals that Attorney Lee’s “impression” of Homer West’s reasons for naming Harrison as the sole beneficiary under his Last Will and Testament was amply supported by Attorney Lee’s recollection of the facts as related in a “conversation that [he] had ...” with his client, Homer West. Marshall v. Pierce, 136 Ga. 543, 546 (3) (71 SE 893). Other argument raised in this enumeration has been considered and is found to provide no basis for reversal.

8. In her final enumerations, Harrison contends the trial court erred in allowing Attorney Joneal Lee to testify that “from the conversation that [he] had [with Homer West, he] never expected . . . the notes [executed by Martin] to be repaid.” This enumeration is without merit for the reasons stated in Division 7 of this opinion.

Case No. A93A0414

9. Martin contends the trial court “erred in denying [her] motion for judgment notwithstanding the verdict in that the uncontradicted evidence in this case demonstrated that a valid gift was made in contemplation of death pursuant to O.C.G.A. § 44-5-100 (a).” This contention is not supported by the evidence. Martin did not testify that West’s alleged debt forgiveness was intended to be absolute only upon the event of death as required by § 44-5-100 (a) (3). She testified that West’s hospital room gift was immediate.

10. Martin contends the trial court “erred in denying [her] motion for judgment notwithstanding the verdict in that the uncontradicted evidence . . . demonstrated that the obligation [under the three $25,000 promissory notes] being sued upon had been settled and satisfied.” This contention is without merit.

“ ‘The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554). If there exists some admissible evidence of record regarding [Martin’s liability under the three promissory notes,] then there would be no basis for granting directed verdict as to these issues, as the evidence would not demand a verdict in [her] favor. . . .” Truck Parts & Service v. Rutledge, 211 Ga. App. 166 (2), supra.

Decided May 27, 1994.

Geiger & Pierce, James N. Geiger, R. Avon Buice, for appellant.

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellee.

In the case sub judice, Martin admitted executing the $75,000 note dated January 4, 1980, explaining that it renewed the three $25,000 promissory notes dated January 10, 1977, January 5, 1978, and December 18, 1978. This testimony authorizes, but does not demand, a finding that any debt remaining under the earlier promissory notes was satisfied and replaced via novation. See Remler v. Coastal Bank, 179 Ga. App. 25, supra; Wages v. Nat. Bank of Walton County, 169 Ga. App. 514, supra; General Tire &c. Co. v. Solomon, 124 Ga. App. 308 (1), supra. Consequently, assuming the jury accepted the above testimony as a defense to Martin’s liability under the three earlier promissory notes, Martin’s claim that the three $25,000 notes were “settled and satisfied” is useless as any defense Martin may have had under the three earlier promissory notes was cut off at the time she executed the purported renewal note dated January 4, 1980. First State Bank &c. Co. v. Young, 202 Ga. App. 566, 567, supra. Consequently, the evidence did not demand a verdict in favor of Martin on the three $25,000 promissory notes dated January 10, 1977, January 5, 1978, and December 18, 1978, and the trial court did not err in denying Martin’s motion for judgment n.o.v.

Judgment affirmed in Case No. A93A0413.

Beasley, P. J., and Cooper, J., concur. Judgment affirmed in Case No. A93A0414. Cooper, J., concurs. Beasley, P. J., concurs in judgment only.

       Although Harrison filed a four-count complaint on behalf of the estate, a pretrial order narrows the complaint to issues raised in Counts 1 and 3 of the complaint, i.e., claims for recovery under the promissory notes and claims against Martin for fraud and conversion.

       There is evidence that West unconditionally provided his sisters, Harrison and Martin, with substantial sums of money during his life. However, these gifts appear to be unrelated to Martin’s liability under the promissory notes.

       A note penned by Homer West was admitted into evidence and appears to list monies West paid Martin between July 21, 1975, and December 18, 1978. This note also indicates that Martin paid West $1,000 on April 7, 1977, and $6,500 on July 31, 1978..

       The $9,000 check tendered in exchange for estate timber was payable to “Frankie W. Harrison, Individually and as Executrix of the will of Homer S. West, deceased” and was deposited into an account entitled, “ANN WILLS DEVELOPMENT & INVESTMENT DBA.” Seven days after the $9,000 check was deposited, Martin withdrew $8,500 from this account via check made out to “Cash.”

       Harrison erroneously argues that Martin failed to establish a valid gift causa mortis. Martin did not testify that West’s alleged debt forgiveness was intended to be absolute only upon the event of death as required by § 44-5-100 (a) (3). She testified that West’s hospital-room gift was immediate.

       In argument supporting Harrison’s fourth enumeration, it is conceded that Martin “was in control of all financial records of the deceased, Mr. West, at all times from the date of execution of the first note to the date of execution of the seventh note.”


source: Caselaw Access Project

author: Beasley, Presiding Judge. Andrews, Judge,

license: Public Domain

text:
    A94A0088.
    CHAVES v. KROGER, INC.
    (444 SE2d 606)
   Beasley, Presiding Judge.

Chaves sued Kroger for injuries sustained when he slipped and fell at a Kroger supermarket. He appeals from the grant of summary judgment to Kroger.

Viewing the evidence in favor of Chaves as the nonmovant on the motion, the record reveals that Chaves was pushing his cart down the frozen food aisle when he slipped and fell in front of the ice cream cooler. He testified at deposition that he did not know precisely what substance he had fallen on; he could not tell whether it was water, ice cream or milk. However, after he fell, both his jacket and pants were wet on the side on which he had fallen. He also testified that there appeared to be a line of the wet substance on the floor and that an employee began to clean it up afterward.

In support of its motion for summary judgment, Kroger submitted the affidavit of Dewberry, a frozen food clerk, who testified that he had been stocking items on the frozen food aisle a few minutes before Chaves fell and had seen a courtesy clerk sweeping the floor of the aisle at that time. When he finished stocking, he checked the floor of the aisle, found it to be clear and dry, and walked away. He returned a few minutes later, after he heard Chaves had fallen. He saw a trail of a white creamy substance on the floor near Chaves’ grocery cart and saw the same substance in the basket of the cart from which he surmised that the substance had leaked onto the floor.

In opposition, Chaves produced the affidavit of Westbrook, a Kroger courtesy clerk, who testified that a supervisor had asked him to clean the area where Chaves fell shortly before the fall and that he was on his way to do so when he saw Chaves fall. As he helped Chaves up, his manager told him to put up a “caution wet floor” sign. He had cleaned that area of the floor on prior occasions due to a leaking freezer. He recalled that water had still been running from the freezer after the last time he had cleaned the floor.

“On a motion for summary judgment, the evidence must be construed most favorably to the opposing party, and the trial court must give him the benefit of all favorable inferences that may be drawn from the evidence.” (Citations and punctuation omitted.) Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 258 (1) (366 SE2d 785) (1988). “ ‘The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. “The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Cit.) . . . .’ [Cit.]” (Emphasis in original.) Garnett v. Mathison, 179 Ga. App. 242, 243 (2) (345 SE2d 919) (1986).

Although the plaintiff is not exactly sure what he fell on, his testimony is that he fell on a liquid substance in front of the ice cream cooler. This is consistent with his clothes being wet on the side he fell and his having seen a line of liquid on the floor afterward. Although Dewberry said he saw nothing on the floor a few minutes before the fall and that he saw a white creamy substance on the floor afterward, the testimony of Westbrook, another Kroger employee, raises questions of fact as to whether Kroger had superior knowledge of a wet, hazardous condition on the floor caused by a chronically leaking freezer and as to whether that condition was the cause of plaintiffs fall. See Mazur v. Food Giant, 183 Ga. App. 453 (2) (359 SE2d 178) (1987). Westbrook’s testimony that a supervisor asked him to clean the floor in front of the freezer and that he was about to do so when Chaves fell indicates that water was on the floor at the time Chaves fell and that Kroger was aware of this condition. His testimony that he had previously cleaned the floor there due to water leaking from the freezer evidences Kroger’s prior knowledge of a continuing dangerous condition. There was no evidence that Kroger tried to repair the leak or warn of its creation of a hazard. Finally, both Westbrook’s testimony that his manager told him to put up a wet floor sign afterward and Chaves’ testimony that he saw an employee cleaning the floor after his fall indicate that water was still on the floor after Chaves fell.

Thus, construing the evidence most favorably for the plaintiff, the evidence was sufficient to withstand Kroger’s motion for summary judgment. See Ramey, supra at 258. This case is distinguishable from those in which we upheld summary judgment for the defendant store-owner where the plaintiff had no idea what caused his fall and the record was otherwise silent as to why the plaintiff fell. See, e.g., Veazey v. F. W. Woolworth Co., 191 Ga. App. 601 (382 SE2d 411) (1989); Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987). Chaves essentially testified that he fell in a liquid substance, his clothes were wet after the fall, he saw a liquid substance on the floor afterward, and Kroger apparently was aware of a wet, hazardous condition on the floor caused by a leaking freezer. On this evidence, it cannot be said that the record is silent as to why the plaintiff fell.

Secondly, the evidence does not conclusively show a failure of plaintiff to exercise ordinary care for his own safety. His testimony that he was not looking directly at the floor at the time he fell because he was shopping for groceries does not alone show he was not exercising ordinary care. See Food Giant v. Cooke, 186 Ga. App. 253, 257 (2) (366 SE2d 781) (1988). “Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place.” (Citations and punctuation omitted.) Bodenheimer v. Southern Bell Tel. &c. Co., 209 Ga. App. 248, 249 (1) (433 SE2d 75) (1993). While we have held that a plaintiff fails to exercise ordinary care when she admits she could have seen the foreign substance on the floor had she been looking (see Minor v. Super Discount Mkts., 211 Ga. App. 123, 124 (438 SE2d 384) (1993); Foodmax, Inc. v. Terry, 210 Ga. App. 511, 513 (436 SE2d 725) (1993); Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992); Smith v. WalMart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991)), no such admission is present in this case. We cannot say Chaves should have seen the water when Dewberry, who inspected the area a few minutes before Chaves fell, apparently did not see it even though Westbrook had previously been sent to clean it up. For the foregoing reasons, we find the trial court erred in granting summary judgment to Kroger, as a genuine issue of material fact existed within the meaning of OCGA § 9-11-56 (c).

Judgment reversed.

Pope, C. J., McMurray, P. J., Cooper, Johnson and Smith, JJ., concur. Birdsong, P. J., Andrews and Blackburn, JJ., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent from the majority’s opinion. The trial court’s grant of summary judgment was proper for two reasons.

First, the evidence here established that Kroger had complied with its duty to Chaves. In support of its motion for summary judgment, Kroger submitted the affidavit of a clerk, Larry Dewberry, in which he stated that he observed another Kroger clerk sweeping the area in which the fall occurred minutes before Chaves fell. After the aisle was swept and about two minutes before the fall, Dewberry checked the aisle to make sure that there were no foreign substances on the floor. He determined that the floor was completely clear and dry.

Chaves submitted the affidavit of Kroger employee Westbrook for the purpose of showing that Kroger knew that the substance was on the floor. In it, Westbrook stated that he had cleaned the aisle and was returning to the area to clean water he had seen running out from the freezer. Westbrook stated: “[o]n my way to clean the floor, I saw Chavez [sic] fall.” Even according to the plaintiff’s evidence, Kroger was exercising ordinary care in keeping the premises safe.

Kroger had done all that was possible to eradicate any spill from the area and had complied with its duty under Georgia law. “While a proprietor is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show that the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).” Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202) (1992); see also Wiley v. Winn-Dixie Stores, 204 Ga. App. 570 (420 SE2d 20) (1992). Here, the evidence is that a Kroger employee was on his way to the area to clean it, and that the area had been inspected no more than two minutes earlier. Given these facts, Kroger complied with its duty under Georgia law and this essential element of Chaves’ complaint was pierced.

Decided May 27, 1994.

S. George Handelsman, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Gregory H. Wheeler, for appellee.

Secondly, there is no showing that Chaves exercised ordinary care for his own safety. At his deposition, Chaves testified that he was not looking at the floor at the time of his fall, but that he was pushing his buggy and was looking at his shopping list. He stated that he did not know what substance caused his fall. In a case similar to the instant one, Minor v. Super Discount Markets, 211 Ga. App. 123 (438 SE2d 384) (1993), this court stated: “[w]hen the perilous condition is known to the proprietor and not known to the person injured, a recovery is permitted, but the person injured is not excused from the duty to exercise ordinary care for her own safety.” Minor, supra at 124. “The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations omitted.) Alterman Foods, supra at 623. Here, Chaves failed to exercise the requisite ordinary care for his own safety and should be barred from recovery.

I am authorized to state that Presiding Judge Birdsong and Judge Blackburn join in this dissent.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A0229.
    THE STATE v. PETERS.
    (444 SE2d 609)
   Smith, Judge.

This appeal presents a question of first impression in Georgia: whether the marital testimonial privilege under OCGA § 24-9-23 may be asserted when the marriage was entered into for the purpose of preventing the spouse’s testimony. We conclude that the marital privilege statute is clear and unambiguous, that the facts of this case fall within none of the legislative exceptions to the statute, and that the privilege may be invoked regardless of the underlying motives for a valid, existing marriage.

Randall Horace Peters was killed by a shotgun blast in his home on March 19, 1992. The police officer who investigated concluded there had been no burglary, but furniture and other items had been arranged to make it appear that the killing resulted from a burglary. The police officer testified at length to various hearsay statements made to him during the course of his investigation. Mr. Peters’s wife, Linda Chapman Peters, told the police that she saw a dark-coated, tall figure in the house that night, but she left the house and drove across town to her in-laws’ house without calling the police. She gave inconsistent accounts of her whereabouts at the time of the murder, but she eventually admitted she had seen Walter Sargent that evening. Sargent also gave an inconsistent account of his whereabouts on the night of the murder but admitted he had seen Linda Peters and had driven by the Peters’s house. Upon further questioning, both Peters and Sargent admitted that they had been conducting an illicit affair for several years. Eleven days after the murder Sargent’s divorce became final, incorporating a settlement agreement that was concluded 12 days before the murder. Sargent also told the police that Peters had asked her husband for a divorce, and that a violent argument had ensued. The officer testified that Sargent eventually ended the police interview, saying “that if he talked any more or said anything else that he would get life or the electric chair.”

The Walton County grand jury recommended that an indictment issue accusing Peters of the murder of her husband and that Sargent be granted use and derivative use immunity to testify. A rule nisi was entered on June 11, 1993, setting a hearing for June 24 on the State’s motion to grant immunity to Sargent. On June 23, Sargent and Peters were married at the Clayton County courthouse, as appears from certified copies of the márriage license and application. No evidence was presented to controvert the validity of the marriage, and Sargent and Peters lived together as husband and wife from the time of the marriage until the date of the hearing.

Before the marriage took place, Peters told her daughters she probably would have to marry Sargent so he would not testify against her. Moreover, she was unsure whether the marriage would take place until she had consulted with her attorney about the legal ramifications of the testimony. The District Attorney stated for the record at the hearing that the investigation probably would not go forward without Sargent’s testimony.

When Sargent was served with a subpoena to testify before the grand jury, he filed a motion to quash the subpoena. At the hearing on that motion, the trial court found that “the timing of the marriage was . . . solely to afford [Sargent] the protection of [OCGA § 24-9-23] so that he could avoid testifying at the Grand Jury.” Nevertheless, the trial court found that a valid marriage existed between Peters and Sargent, regardless of its timing, and granted the motion to quash.

This court granted the State’s application for interlocutory review over the objection of Peters that the trial court’s order granting the motion to quash was not subject to appeal under OCGA § 5-7-1 (4). We disagree, in view of the remedial nature of the appeal statute, which is construed liberally to correct error which otherwise might work a miscarriage of justice, and before attachment of jeopardy. State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984). “We hold that if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the state.” Id. In this case, as in Strickman, there would otherwise be no opportunity for appellate review of the trial court’s ruling.

OCGA § 24-9-23 (a) provides: “Husband and wife shall be competent but shall not be compellable to give evidence in any criminal proceeding for or against each other.” The Georgia courts have applied this privilege based on the status of the husband and wife at the time testimony is sought or given; if the marriage has terminated by divorce at the time of testifying, the privilege does not apply. Chadwick v. State, 176 Ga. App. 296 (335 SE2d 674) (1985), aff’d 255 Ga. 376 (339 SE2d 717) (1986); see also Gentry v. State, 250 Ga. 802, 803 (2) (301 SE2d 273) (1983) (witness and defendant “not married at the time of the trial”). In these decisions the Georgia courts have not questioned the viability of the privilege itself, even in a case where the witness divorced and remarried the defendant shortly before trial. Higgs v. State, 256 Ga. 606, 608 (4) (351 SE2d 448) (1987).

In determining the scope of this statutory privilege, we must “look diligently for the intention of the General Assembly.” OCGA § 1-3-1. “Where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.” City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970). OCGA § 24-9-23 has had a long and eventful legislative history. Under Acts 1866, p. 138, which essentially incorporated the common-law rule, spouses were neither competent nor compellable to testify. An exception was created providing that a wife was competent but not compellable to testify against her husband for a criminal offense upon her person. Acts 1880-1881, p. 121. This exception later was expanded to include a criminal offense committed by either spouse upon the other. A wife could also testify against her husband in cases of abandonment. Acts 1927, p. 145. In 1957 the statute was amended to provide that a spouse was “competent, but not compellable” to testify. Ga. L. 1957, p. 53. Finally, subsection (b) was added in 1987, providing that the privilege shall not apply where the husband or wife is charged with a crime against the person of a minor child. Ga. L. 1987, p. 1155.

This most recent legislative exception was construed in Hamilton v. State, 210 Ga. App. 398 (1) (436 SE2d 522) (1993). Hamilton was accused of statutory rape, but married the victim shortly before trial and appealed asserting the marital privilege. Citing the provisions of OCGA § 24-9-23 (b), this court held that the victim’s testimony was compellable. Our decision rested entirely on the legislative intent of the statute: “Our legislature has determined that the public policy of protecting this State’s children against crimes outweighs the policy of protecting the harmony and unity of marriage. We see no reason why the public policy considerations should be any different when the victim and the spouse are the same person.” 210 Ga. App. at 399.

As we noted in Hamilton, the legislature has weighed the countervailing arguments and has determined that public policy requires the grant of certain privileges, including that established by OCGA § 24-9-23. See OCGA § 24-9-21. From time to time the legislature has amended the marital privilege statute to provide exceptions reflecting changes in public policy, but it has not provided an exception for the circumstances of this case. This “invites the application of the venerable principle of statutory construction expressio unius est ex-clusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, ex-pressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. [Cit.]” Roman v. Terrell, 195 Ga. App. 219, 221 (3) (a) (393 SE2d 83) (1990). “From the addition of words it may be presumed that the legislature intended some change in the existing law; but it is also presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication.” (Citations and punctuation omitted.) Leader Nat. Ins. Co. v. Gaydon, 185 Ga. App. 322, 327 (1) (363 SE2d 859) (1987).

The marital privilege has been criticized by the courts and by legal scholars for many years. See Trammel v. United States, 445 U. S. 40 (100 SC 906, 63 LE2d 186) (1980) (limiting the privilege under federal law to the witness-spouse). However, the states have addressed the marital privilege legislatively rather than judicially. Allegations that a marriage was contracted solely for the purpose of barring testimony have been considered by a number of state courts, and they have overwhelmingly declined to create such a judicial exception to the marital privilege. See, e.g., State v. Williams, 133 Ariz. 220 (650 P2d 1202, 1213-1214) (1982); State v. Levy, 160 NW2d 460, 464-465 (Iowa 1968); see also 13 ALR4th 1305 and cases cited therein. A number of states have created such an exception by statute. See, e.g., In re Marriage of Bozarth, 779 P2d 1346 (Colo. 1989) (applying 6A CRS § 13-90-107 (1) (a), later' repealed).

Osborne v. State, 623 P2d 784 (Alaska 1981), cited by the State, does not provide authority to the contrary because of the unique character of the Alaska rules of evidence and criminal procedure. Those rules are promulgated by the Alaska Supreme Court under its rule-making power, and by their own terms they “may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice.” Alaska R.Crim.P. 53; 623 P2d at 787, n. 4.

While it is true, as the State contends, that “[t]he object of all legal investigation is the discovery of truth,” OCGÁ § 24-1-2, any privilege by its very nature impedes the discovery of truth. As the Arizona Supreme Court observed, “[t]he choice of whether the marital privilege should be recognized and under what circumstances is not only an evidentiary question but involves a determination of the rights and status which flow from the institution of marriage. [Cit.] Nor is this rule one which was made by the courts and which they are, therefore, free to rescind when they conclude that it no longer serves its purpose. [Cit.] Thus, the policy determination involving abrogation of the rule is an appropriate subject for legislative determination . . . . [0]ur legislature has chosen to retain the marital privilege .... By doing so, it has made it clear that it places paramount importance on the marital relationship and believes the privilege is necessary to protect that relationship. . . .” Williams, supra, 650 P2d at 1214.

Decided May 27, 1994.

Alan A. Cook, District Attorney, for appellant.

Michael R. Jones, Dickinson, Noel & Mixson, David F. Dickin son, for appellee.

The circumstances of this case amply demonstrate the potential for abuse of the far-reaching protection granted by the marital testimonial privilege. However, the General Assembly has determined the limits of that privilege, and we are not permitted to alter that determination by judicial amendment. Accordingly, the decision of the trial court must be affirmed.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

In my view, this Court lacks jurisdiction to consider the issue raised by the State in this appeal. In criminal cases the State may appeal only under the circumstances provided by OCGA § 5-7-1. The first two sections of this statute are readily seen to be inapplicable. The proper definition of “plea in bar” as stated in State v. Land-O-Sun Dairies, 204 Ga. App. 485, 486 (419 SE2d 743), shows that OCGA § 5-7-1 (3) is inapplicable.

In State v. Strickman, 253 Ga. 287 (319 SE2d 864), the Supreme Court rejected a restrictive view of OCGA § 5-7-1 (4) and noted that “[bjeing remedial in nature, it should be construed liberally.” Id. at 288. Nonetheless, remedial construction is not a license to expand the parameters of a statute without bounds.

The Supreme Court states its holding in State v. Strickman to be “that if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the state.” The circumstances of the case sub judice simply do not fit within that holding. There has been no motion to exclude evidence on the ground that it was obtained in violation of law. Instead, the grant of the motion to quash subpoena in the case sub judice has prevented the State from disregarding the marital privilege in the hope of possibly obtaining some relevant evidence at some time in the future. The Supreme Court’s language in State v. Strickman and the common understanding of a motion to suppress evidence both relate exclusively to limitations placed upon the use of evidence already obtained by the State and do not relate to attempts by the State to obtain evidence.

       Ms. Peters, as noted below, is now married to Mr. Sargent. As most of the events in question here occurred before that marriage, for the purpose of this opinion her former name is used.

       In Higgs, statements made to an investigator prior to the spouse’s invocation of the privilege were admitted under an exception to the general hearsay rule. 256 Ga. at 608. That issue is not presently before us.

       A bill was introduced, but not enacted, in the 1994 General Assembly to render the privilege inapplicable where the husband or wife is charged with a crime which occurred prior to the marriage. SB 609. This would have been directly applicable to the circumstances of this case.

       In Trammel, supra, the United States Supreme Court observed that 33 states and the District of Columbia maintain the marital privilege in some form, in all cases through statutory enactment. The remaining 17 states have abolished the privilege, likewise by statute. 445 U. S. at 48-49, n. 9.


author: Cooper, Judge.

text:
    A94A0348.
    A94A0349.
    CRUMPTON v. THE STATE. MOORE v. THE STATE.
    (444 SE2d 847)
   Cooper, Judge.

Defendants Christopher Crumpton and Abdjuel Javon Moore were charged jointly with the offenses of murder (Count I), possession of a firearm during the commission of a crime (Count II) and three counts of aggravated assault (Counts III, IV and V). Each defendant was also charged with possession of a firearm by a convicted felon (Counts VI and VII). Defendants were tried jointly before a jury. The trial court entered a directed verdict of acquittal as to Counts IV and V, and the jury convicted defendants of voluntary manslaughter (a lesser included offense of Count I), possession of a firearm during the commission of a crime, and the aggravated assault of Lucille Johnson (Count III). A nolle prosequi was entered as to Counts VI and VII. Both defendants now appeal their convictions and the sentences entered thereon. Because both defendants raise the same enumerations of error, their cases have been consolidated on appeal.

The evidence, viewed in a light most favorable to the jury verdict, shows that in the early morning hours of November 28, 1992, John Tillman, along with his friends James Harrell and Johnny Moore, arrived at the American Legion bar in Valdosta in a highly intoxicated state. As the three men approached the entrance to the bar, they encountered defendants and Nakea Motes leaving the bar together. A verbal confrontation erupted between the two groups and apparently Tillman fired a handgun either into the air or at a yellow Pontiac leaving the scene which was being driven by Crumpton with defendant Moore and Nakea Motes in the passenger seats.

A short time later, as Tillman drove Harrell and Johnny Moore to another bar located on Cherry Street in Valdosta, the yellow Pontiac pulled up alongside the passenger side of Tillman’s vehicle. Harrell saw Crumpton pointing a gun at Tillman’s vehicle and yelled “Duck!,” just as Crumpton began shooting at Tillman’s vehicle. Tillman was struck in the head with a bullet and died instantly at the scene.

Defendants raised two defenses at trial, arguing that Tillman’s death was either the result of: (1) Harrell accidentally shooting Tillman when Tillman inadvertently bumped Harrell’s arm as he drew and cocked his pistol to fire at defendants; or (2) Tillman being hit by a bullet that was fired by one of the co-defendants in self-defense in response to Harrell’s pointing and/or firing a gun at defendants.

Evidence was introduced at trial that defendant Moore admitted to the police that he and Crumpton had fired their guns at Tillman’s vehicle but that they did so in self-defense only after he heard the slide of a gun and Tillman telling Harrell to shoot. Several witnesses testified on defendants’ behalf, supporting defendants’ claim that Harrell may have had a weapon in Tillman’s car at the time of the incident. However, both Harrell and Johnny Moore testified that there were no weapons present in their vehicle and that Harrell neither pointed nor fired a weapon at defendants before the shooting began.

The State’s ballistic expert analyzed the bullet which had been removed from Tillman’s brain but was unable to determine the type of weapon fired or caliber of bullet. A police officer testified that no casings, bullets or weapons were recovered from Tillman’s car. Police officers did find seven shell casings of two different calibers outside both the driver and passenger sides of the yellow Pontiac which was parked about twenty feet away from Tillman’s vehicle.

Lucille Johnson, a resident of a house located on the corner of Cherry Street, testified that she was asleep when she was awakened by loud noises, which turned out to be bullets hitting the side of her house. Once she realized the noise was gunfire, she rolled out of her bed onto the floor and called the police. One of the bullets recovered from her house was found in the headboard of a bed located in the same room where she had been sleeping.

1. Defendants first argue the trial court erred in allowing into evidence purported expert testimony from the medical examiner as to the significance of his examination of gunpowder particles found on the sleeve of the victim’s shirt. During trial, Dr. Gerald Gowitt, who conducted the autopsy on John Tillman, was qualified as an expert in the field of medical technology and forensic pathology. While testifying about gunshot holes found in the right sleeve of the victim’s shirt and the underlying injuries found on the right arm of the victim, Dr. Gowitt also testified that he saw microscopic gunpowder particles on the shirt worn by the victim. This testimony benefitted defendants because Dr. Gowitt’s finding of gunpowder residue supported defendants’ defense theory that Tillman was shot at close range by Harrell. Dr. Gowitt was then asked whether the appearance of gunpowder on the sleeve could indicate “the distance from muzzle to impact,” and the witness responded in the negative. Only then did defendants object to Dr. Gowitt’s testimony on the grounds that the State had laid no foundation regarding Dr. Gowitt’s expertise in ballistics.

The prosecutor proceeded to elicit Dr. Gowitt’s experience in this area. Dr. Gowitt testified that he had two weeks of specialized training with the State Crime Lab’s chief firearms scientist and that the training included microscopic examinations of bullets, firing different weapons at various distances on a white background in order to determine range of fire, and the examination of the signification of gunpowder presence and how it looks around a wound. He also stated that it was part of his duties as a medical examiner to examine people who had been shot and give his opinion, where possible, as to the range of fire. Dr. Gowitt also stated that he had testified as an expert in other trials in Georgia with respect to these matters. The trial court ruled that a sufficient foundation had been laid to allow the jury to consider Dr. Gowitt’s testimony and that the weight of his testimony was for the jury to decide.

“To qualify an expert witness, nothing more is generally required than a showing that the witness has been educated in a particular trade or profession; such special knowledge may be derived from experience as well as study. It lies in the trial court’s sound discretion to decide whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert; the exercise of this discretion will not be disturbed unless manifestly abused.” (Citations and punctuation omitted.) Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993). We find there was sufficient evidence to support the trial court’s qualification of Dr. Gowitt as an expert to testify as to the significance of the gunpowder residue found on the victim’s shirt. Thus, there was no abuse of discretion in the present case.

2. Defendants next argue that the trial court erred in denying defendants’ motion for a mistrial after testimony as to scientific test results, not provided to defendants prior to trial, was ruled inadmissible. During trial, the State called Dr. James W. Howard, a qualified ballistics expert, to testify about the bullet taken from the victim’s brain. When the witness later testified that he had examined the victim’s shirt sleeve for gunpowder residue and had found none, both defense counsel objected to the testimony and moved for a mistrial on the grounds that the test results had not been provided to defendants prior to trial as required by OCGA § 17-7-211. The trial court ruled the test results inadmissible, denied defendants’ motion for a mistrial and gave curative instructions to the jury at the request of Moore’s defense counsel.

We first note that “OCGA § 17-7-211 applies to scientific reports in writing and not oral reports of experts relaying the results of tests.” (Citations and punctuation omitted.) Beck v. State, 196 Ga. App. 269 (1) (396 SE2d 59) (1990); Perry v. State, 255 Ga. 490, 492 (3) (339 SE2d 922) (1986). Therefore, Dr. Howard’s testimony about his examination of the victim’s shirt was admissible at trial. In any event, “[t]he remedy for a violation of OCGA § 17-7-211 is the exclusion of the evidence rather than the grant of a mistrial.” (Citations and punctuation omitted.) Owens v. State, 204 Ga. App. 5, 6 (1) (418 SE2d 631) (1992). See also Pontoon v. State, 177 Ga. App. 868 (2) (341 SE2d 505) (1986). Accordingly, this enumeration is without merit.

3. Defendants further argue that the trial court erred in instructing the jury on the legal theory of the parties to the crime in accordance with OCGA § 16-2-20. “Where the evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court to charge as to parties to a crime. . . .” (Citations and punctuation omitted.) Holland v. State, 205 Ga. App. 695, 696 (2) (423 SE2d 694) (1992). We find there was sufficient evidence presented in this case to support the theory that both defendants acted in concert to commit the crimes with which they were charged. Accordingly, the trial court did not err in charging the jury on the legal theory of parties to the crime. See Todd v. State, 184 Ga. App. 750 (3) (362 SE2d 400) (1987).

4. Defendants argue the trial court erred in not initially charging the jury on the law of transferred intent as it applies to the defense of justification. Defendants requested a charge on this theory because self-defense was one of defendants’ major defense theories in this case. Both defendants claimed they shot at Tillman’s vehicle only after Harrell pointed or fired a gun at them. Thus, if defendants had been justified in protecting themselves against Harrell, they could not be guilty of the crimes with which they were charged against Tillman and Lucille Johnson. The trial court initially refused defendants’ request to charge on transferred intent. However, after the jury sent two notes indicating they were confused about the issue of transferred intent, the trial court decided to charge the jury on this legal theory using a similar charge to the one requested by defendants. Approximately one hour after hearing the charge, the jury returned guilty verdicts against both defendants.

Defendants argue they were unfairly prejudiced by the trial court’s delay in charging on transferred intent. However, we see no way that defendants were harmed by the trial court’s initial refusal to charge on this theory. The jury ultimately considered defendants’ defense theory of self-defense/justification and rejected it after a little over an hour of deliberation. Therefore, contrary to defendants’ claim that an earlier charge on transferred intent may have yielded a different verdict, the facts suggest that an earlier charge would probably have resulted in an earlier conviction. Thus, this enumeration is without merit.

5. In their last four enumerations of error, defendants attack the sufficiency of the evidence raising the general grounds. After a careful review of the transcript in this case, we find that a rational trier of fact could have found the defendants guilty beyond a reasonable doubt of the offenses of voluntary manslaughter, possession of a firearm during a crime, and the aggravated assault of Lucille Johnson. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 27, 1994.

James W. Hall, Jr., for Crumpton.

J. Michael Mullís, for Moore.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0482.
    WEST v. THE STATE.
    (444 SE2d 398)
   Birdsong, Presiding Judge.

Conrad C. West appeals his conviction for possession of cocaine with intent to distribute.

The State showed that appellant was arrested after a reliable informant, wired with a body bug, sought to purchase cocaine from Conrad West. The informant was himself under indictment for cocaine sale. On February 5, 1993, he notified the East Metro Drug Enforcement Team (EMDET) that he thought he could set up a “buy” with appellant. The same day, the informant was fitted with a radio transmitter. He was not given any money to make a “buy.” He walked into a neighborhood where appellant was visiting and met a man named Kenny; both men walked to a house to see appellant. According to the informant, he told appellant he wanted a “$100 piece” of cocaine, so Kenny and appellant drove the informant to a liquor store to cash a check with which to buy the cocaine. They first stopped at a convenience store where the informant says he saw appellant sell cocaine. While the informant was in the liquor store he encountered an EMDET agent, and other EMDET agents known to appellant drove into the parking lot. Kenny and appellant drove off. A lookout was placed on the vehicle and a half hour later, appellant was stopped in his apartment complex by a police officer who knew appellant and knew his license had been suspended. At trial, appellant’s probation officer testified that appellant was on intensive probation, one condition being consent to search at any time. A video was made of the arrest. The police officer, after berating appellant at length for allegedly threatening the officer’s cousin, reached into appellant’s underpants in his crotch area and pulled out $333 cash. He found no drugs. After the probation officer arrived, the police officer performed a second search. The officer testified he detected something like soft plastic with his fingertips under appellant’s genitals but he did not pull this “something” out because he did not want to strip-search appellant in public. After appellant was in jail, the officer brought to him a bag of cocaine (1.1 grams total powder) which the officer said was stuffed in the back seat of the police car. No drugs were found on appellant. No one other than the informant testified that appellant was seen with drugs.

Appellant defended by saying that the informant, whom he knew slightly, asked for a ride to the liquor store to cash a check. Because appellant’s license was suspended, Kenny drove the car. Appellant contended he had $333 on him because he had been paid that day (Friday) and his fiancée gave him money to pay bills. After he and Kenny dropped off the informant at the liquor store, they left. There was no drug deal. Appellant dropped Kenny off and drove home to his apartment complex, where he and his car were searched. His hands were cuffed behind him in the police car; he testified he could not have extracted anything from his pants and hid it in the seat.

West was convicted of possession of cocaine with intent to distribute. He asserts three errors below. Held:

1. Appellant contends the trial court erred by permitting the State to withhold exculpatory Brady evidence until the trial, to wit, the recording made from the informant’s body bug.

The State does not dispute that it told defense counsel the tape was broken and could not be produced. Defense counsel in opening argument told the jury there was a body bug on the informant and that if that tape were available it would show there was no drug transaction. Counsel said: “Ladies and gentlemen, I would love to play the tape, but I can’t hear it. Because supposedly this tape is damaged. ... We can’t play the tape for you. ... We have never had our hands on it.” The court interrupted, saying counsel was “arguing the case. . . . [DEFENSE COUNSEL]: That’s what I expect the evidence to show, ladies and gentlemen. You will hear that this tape does not work. . . . Otherwise, this case may be over right now.”

At trial, a State’s witness stated that the tape was not broken. Defense counsel then demanded that it be produced. After a bench conference at which appellant’s counsel says she objected to its being played at trial, the tape was played for the jury. In closing argument, the prosecutor characterized the discovery at trial that the tape was not damaged as one of the defendant’s “broken promises”: “[Defense counsel] proposed to you in her opening statement that [the tape] had somehow been damaged. . . . She implied that somehow the State had damaged that evidence. You heard the tape for yourselves, ladies and gentlemen. . . . We put it [in evidence] there just to show you that . . . there is not much evidence that can be [gleaned] from it. . . . It was not damaged and we did not do anything to the evideuce.”

(a) Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) holds that suppression of exculpatory material evidence violates due process. When Brady material is suppressed prior to trial but made available during trial, appellant must show that earlier disclosure would have benefitted the defense and that the delayed disclosure deprived him of a fair trial. Dennard v. State, 263 Ga. 453, 454 (435 SE2d 26).

Appellant contends that because of the State’s failure to produce the tape prior to trial “appellant appeared to the jury as if he had lied about the tape, and his credibility was lost.” We agree. The State’s implication that the defense suppressed or damaged the tape or lied by implying the State suppressed it, misrepresented the facts and grossly prejudiced appellant. The circumstances may constitute prosecutorial misconduct.

We therefore adhere to Williams v. State, 250 Ga. 463, 465 (298 SE2d 492), applying a strict standard of materiality in cases involving prosecutorial misconduct or “ ‘a corruption of the truth-seeking function of the trial process.’ ” The prosecutor is under a constitutional duty (Williams, supra) to disclose evidence which creates a reasonable doubt, as this tape does. The tape may show the informant gave perjured testimony. A conviction obtained by perjured testimony is “ ‘fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Id.

We have listened to the tape and we conclude that it is exculpatory. The tape contains such a cacophony of voices, music, and other noise that on one playing it seems to reveal nothing significant. However, these passages can be pieced out by repeated play-backs: “[INFORMANT]: I was gonna get Reginald to buy it because, you know, I didn’t want to spook Conrad ‘cause I ain’t seen him in a while. ... I want Conrad! [or] ’ownt Conrad! [or] oh Conrad! [MAN’S VOICE]: You going with us? [INFORMANT]: I may. What I’m doin’ right now is . . . get this check cashed, get a twenty and then I got some people coming over from the church ... I don’t wanna get too gigged up. . . . [MAN’S VOICE]: I’ll give you a twenty. . . . [INFORMANT]: Then I want to come back and talk to Conrad about a hundred dollar piece. [SAME MAN’S VOICE]: See, I can get you a good one. Woo! [ANOTHER MAN’S VOICE]: He spose to be over today? He gonna be coming by today? . . . [INFORMANT]: . . . other boy Conrad? [Voices inaudible.] Goin’ to the USA Liquor Store?”

From one playing of the tape defense counsel heard enough to ask the testifying officer: “Can you make the assumption . . . when he was discussing the drugs that he is talking to somebody else and not [appellant], since he speaks about seeing Conrad?” The officer said: “At that one point in that conversation, yes ma’am, because he says he is going to come back and see Conrad.” (Emphasis supplied.) The officer implied that the rest of the tape shows the informant is speaking to Conrad, which is not clearly true. It is clear that defense counsel could not hear enough from one play of the tape to analyze it adequately or to mount an adequate cross-examination of the officer who purported to interpret it for the jury and who implied the tape contained what it did not. Further, the prosecutor repeatedly suggested to the jury that the tape showed a drug deal took place involving appellant, and that if the tape had been clear the jury would have heard such a drug deal.

We conclude that the disclosure of this evidence came so late as to deprive appellant of a fair trial. Dennard, supra; Parks v. State, 254 Ga. 403, 407 (330 SE2d 686). This is more emphatically true under the strict standards to be applied in cases where there is a “ ‘corruption of the truth-seeking function of the trial process.’ ” Williams, supra.

(b) The State contends defense counsel waived any objection to the suppression of the tape because the bench conference was not recorded, and because she stated that she had no objection to admission of the tape. This is not exactly what occurred. Defense counsel contends that during the bench conference she objected to the playing of the tape, that the court reporter was sitting nearby, and that counsel saw the reporter “typing” and believed the conference was being recorded. Nicely v. State, 197 Ga. App. 206 (3) (397 SE2d 630) is therefore inapposite. Since the bench conference was not recorded, there is no basis to conclude counsel waived her objection to illegally suppressed evidence. In the peculiar circumstances of this case and the stern view taken of such cases by Williams, supra, no waiver will be inferred in favor of the State. We therefore decline to accept the State’s contention that defense counsel waived any objection to this evidence merely because the bench conference was not recorded.

The transcript shows that after the bench conference, the State asked if the court would “take it up after lunch. [THE COURT]: We sure would. [Defense counsel], do you object to the tape? [DEFENSE COUNSEL]: No, your Honor, I don’t object to the tape at all.” In the circumstances, it is not clear whether this was a waiver of all objections which defense counsél undisputedly contends she made at the bench conference or an accession to the trial court’s ruling. As to waivers of objections to evidence which is “primarily illegal” and constitutes constitutional error, see Mable v. State, 261 Ga. 379 (1) (405 SE2d 48). “Moreover, the law does not take waivers lightly, and a waiver of [an] important right . . . should not be inferred unless it is clear and unmistakable.” State v. Mason, 181 Ga. App. 806, 807-808 (353 SE2d 915).

Decided May 27, 1994.

Leslie J. Cornwell, for appellant.

Cheryl F. Custer, District Attorney, Alan S. Clarke, Assistant District Attorney, for appellee.

The tape was exculpatory, and if it had been produced before trial, the jury might have concluded the informant’s testimony was unreliable or perjured, for throughout the tape, he refers to “Conrad” as if appellant was never present. Error occurred which affected the verdict, and no overwhelming evidence saved it. See Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

2. As we reversed the verdict in Division 1, it is unnecessary to consider whether the trial court erred in limiting the number of times the jury could view the arrest video.

3. There were other prejudicial errors which we note for the record. The trial court over objection allowed appellant’s probation officer to testify at length that appellant was on “intensive probation.” This highly prejudicial evidence showed appellant was previously convicted of a serious crime (which conviction the trial court properly disallowed as a “similar transaction”). The evidence was admitted ostensibly to show the search was legal; however, appellant did not contend the search was illegal, so there was no need to introduce the evidence. Further, the prosecutor was allowed, over objection, to ask witnesses why the officer who stopped appellant at his apartment complex told a bystander that “this guy’s a frequent drug user.” The trial court allowed these questions on grounds that defense counsel introduced the videotape. However, the hearsay statement of an officer to a bystander that appellant was a “frequent drug user” was not competent or relevant evidence of the crime charged in this case, and its repeated injection prejudiced appellant.

Judgment reversed.

Cooper and Blackburn, JJ., concur. '


text:
    A94A0748.
    HARRISON v. THE STATE.
    (444 SE2d 613)
   Cooper, Judge.

In a multi-count indictment, defendant was charged with two counts of armed robbery (Counts I and VI), two counts of aggravated assault (Counts II and IV), and three counts of possession of a firearm during the commission of certain crimes (Counts III, V and VII). Counts I, II and III stemmed from an incident which occurred on July 10, 1992, against Lance Coleman. Counts IV and V resulted from an incident which occurred on July 10, 1992, against Diane Gibson, and Counts VI and VII resulted from an incident which occurred on July 17, 1992, against Betty Jean Walker. The jury found defendant not guilty on Count I, guilty on Counts II, III and VII and guilty of the lesser included offense of theft by taking as to Count VI. On Counts IV and V, the jury was unable to reach a verdict, and a mistrial was declared. Defendant appeals from the judgment of conviction entered on the jury verdict and from the denial of his motion for new trial.

The transcript reveals that on July 10, 1992, defendant and another man got out of a car and began waving pistols in the direction of Lance Coleman and another man. Defendant fired his pistol several times in Coleman’s direction, and one of the bullets struck Coleman in the leg. On July 17, 1992, Betty Jean Walker was talking to a man on the porch of a house when defendant grabbed her from behind and pulled her into the house. Defendant had a gun in one hand while he hit Walker in the face with the fist of his other hand. Defendant also snatched $20 out of Walker’s hand.

1. In his first enumeration of error, defendant contends the trial court erred in allowing Lance Coleman to read his prior statement into evidence. At trial, Coleman testified that he was not sure who shot him. The prosecutor then asked Coleman to read the statement he gave to the police five days after the shooting. In that statement, Coleman positively stated that defendant was the person who shot him.

“A witness may be impeached by prior contradictory statements to matters relevant to his testimony and to the case; before the contradictory statements may be admitted against him the time, place, person and circumstances attending the former statement shall be called to his mind with as much certainty as possible. OCGA § 24-9-83.” (Citations and punctuation omitted.) Morris v. State, 173 Ga. App. 663, 666 (4) (327 SE2d 792) (1985). The State concedes that the prosecutor used an incorrect procedure for admission of the prior inconsistent statement. It is also undisputed that defendant did not object to the reading of the statement. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citations and punctuation omitted.) Clark v. State, 206 Ga. App. 10, 12 (2) (424 SE2d 310) (1992). Defendant’s argument that no objection at trial was necessary is without merit. As the State points out, the prior inconsistent statement of the witness could have been admitted in any event through a different procedure. An objection by defendant would have required the State to utilize the correct procedure. Defendant’s failure to object amounts to a waiver. Clark, supra.

2. Defendant also contends the trial court erred in its recharge to the jury. After some deliberation, the jury submitted the following question to the court: “[I]f a victim’s original statement conflicts with the statement given during the trial and the victim is the only witness against the defendant, should the jury favor the defendant as the defendant is innocent until proven guilty beyond a reasonable doubt?” The court responded as follows: “I cannot answer that question. That would invade your [province] and would give you an improper comment from the Court on the evidence, an improper intrusion into the jury’s work. So I can’t comment. You do have obviously the principle in mind, the defendant is innocent until proven guilty beyond a reasonable doubt. That, of course, is the law, and you’re just going to have to struggle with this kind of question. This is the kind of question that the jury has to struggle with and resolve! And I can’t do it for you. That would invade your [province]. That would be an improper comment by the court on the evidence in the case and on your deliberation.”

Decided May 27, 1994

“The recharge of the trial court answered the questions posed by the jurors. Examining the recharge and the original charge in toto, we find that the recharging did not overemphasize any principle, and ran no fair risk of misleading the jury.” (Citations and punctuation omitted.) Anderson v. State, 207 Ga. App. 187, 188 (1) (427 SE2d 564) (1993).

3. In his third and fourth enumerations of error, defendant argues the trial court erred in sentencing him and denying his motion for new trial on Count VII, which charged defendant with possession of a firearm during the commission of the armed robbery of Betty Jean Walker. OCGA § 16-11-106 (b) provides: “Any person who shall have on or within arm’s reach of his person a firearm or a knife having a blade of three or more inches in length during the commission of, or the attempt to commit. . . [a]ny crime against or involving the person of another . . . and which crime is a felony, commits a felony . . . .” (Emphasis supplied.) The evidence revealed that defendant took $20 from Betty Walker. If the jury had found defendant guilty of armed robbery or robbery by force, the conviction of possession of a firearm would be authorized by the evidence. However, since the jury found defendant guilty of theft by taking and the amount taken was less than $100, the theft by taking was a misdemeanor, and a conviction under OCGA § 16-11-106 was not authorized. See Jefferson v. State, 196 Ga. App. 770 (2) (397 SE2d 129) (1990). Accordingly, the judgment of conviction on Count VII must be reversed.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Blackburn, J., concur.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A94A0771.
    SOUTHEASTERN FLIGHT ACADEMY v. HAZELL.
    (444 SE2d 402)
   Cooper, Judge.

On or about September 4, 1991, plaintiff Jonathan Hazell, an Australian citizen, forwarded an application and $1,000 deposit for entry into a five-month professional pilot course with defendant Southeastern Flight Academy. The total cost of the program was $20,500, and plaintiff elected to pay his tuition by selecting the two-payment plan offered by defendant in which one-half of the total cost of the program was to be paid at registration and the balance of the tuition was due within forty-five days following registration. After finding out that he had been accepted to the program, plaintiff wired the balance of the first tuition payment in the amount of $9,180 ($10,180 less the deposit) to defendant.

Plaintiff arrived at defendant’s school on September 28, 1991, and executed defendant’s enrollment agreement. The enrollment agreement provided that if a student withdrew from the school, a tuition refund would be made “based on the remaining unused tuition for aircraft rental and the remaining unused tuition for instruction” in diminishing percentages tied to the duration of a student’s enrollment in the school. The schedule provided that if a student withdrew within seven days or less after enrollment, the student would receive a ninety percent refund of remaining unused tuition for aircraft rental and instruction. The agreement further stated that charges for books and instructional aids, meal allowances, housing, hourly aircraft rental or block time outside course curriculum and administrative expenses were not refundable. Another page of the enrollment agreement itemized the tuition allocated to aircraft rental and instruction at $10,907.65 and set forth allocations for books and instructional aids, housing and allowances, and administrative and other expenses. However, the category of nonrefundable administrative expenses valued at $7,709.15, also included tuition for classroom instruction.

On October 1, 1991, prior to his renting any aircraft or receiving any flight instruction, plaintiff withdrew from defendant’s flight school and requested a refund of 90 percent of the tuition he had paid. Defendant refused to refund any money to plaintiff and, instead, allocated all of plaintiff’s first tuition payment to the nonrefundable tuition costs set forth in the contract (i.e., books, instructional aids, meal allowances, housing and administrative expenses). According to defendant’s calculations, plaintiff still owed defendant tuition in the amount of $503.11.

Plaintiff brought suit seeking to recover 90 percent of his first tuition payment from defendant. Both parties filed motions for summary judgment, which were denied by the trial court. The case proceeded to trial, and a jury returned a verdict of $8,130 in favor of plaintiff. This appeal follows our grant of defendant’s application seeking discretionary review of the trial court’s denial of its motion for summary judgment and motion for a directed verdict during trial.

1. Defendant first argues the trial court erred in denying its motions because the construction of defendant’s refund policy as set forth in the enrollment agreement was a question of law for determination by the trial court.

“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.” (Citations and punctuation omitted.) Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319) (1992). “Ambiguity in a contract may be defined as duplicity, indistinctness, an uncertainty of meaning or expression.” (Citations and punctuation omitted.) Id. at 715.

We have reviewed the enrollment agreement at issue in this action and agree with the trial court’s determination that the contract is vague and ambiguous. The trial court found that the meaning of certain terms — “tuition,” “used tuition,” “unused tuition” and “instruction” — were particularly vague. The trial court also found that the enrollment agreement did not address: (1) whether the stated refund schedule is affected by a student’s selection of the two-payment plan option; (2) the manner of allocation of a student’s first payment toward refundable tuition and nonrefundable costs; and (3) a student’s obligation to pay the second installment of tuition if he withdraws during the refund period.

Accordingly, the trial court was correct in determining that “[t]he intent of the parties to the [enrollment] agreement with respect to the [tuition refund policy was] an evidentiary, factual matter for resolution by the jury and not a matter of law for determination by the court.” (Citations and punctuation omitted.) Derosa v. Shiah, 205 Ga. App. 106, 108 (1) (421 SE2d 718) (1992).

2. Defendant also argues that the trial court erred by failing to find that the enrollment agreement was an entire contract that required plaintiff to fulfill his obligation to pay the total contract price of $20,500 as a condition precedent to defendant’s obligation to refund any portion of the tuition. We disagree.

Decided May 27, 1994.

Freeman & Hawkins, H. Lane Young II, Peter R. York, for appellant.

Brown, Katz, Flatau & Hasty, Franklin J. Hogue, for appellee.

Relying on Heath v. Ga. Military Academy, 95 Ga. App. 245 (97 SE2d 601) (1957), Matthews v. Riverside Academy, 45 Ga. App. 30 (163 SE 238) (1932) and a multitude of cases from other jurisdictions, defendant argues that where a contract for tuition is made for a specified school term and a student voluntarily leaves before the end of that term, the school is entitled to recover the full contract tuition amount from that student if the vacancy has not been filled by another pupil. However, Heath, Matthews and the other cases relied on by defendant, all concern tuition contracts that expressly provide that tuition is nonrefundable in the event a student voluntarily withdraws from the school. In the case sub judice, the enrollment agreement expressly contemplates voluntary withdrawal by a student and obligates the defendant to refund a portion of the student’s tuition if the student withdraws during the refund period. Therefore, plaintiff was not obligated to pay the full tuition as a condition precedent to defendant’s obligation to refund any portion of the tuition. Accordingly, the trial court did not err in refusing to grant defendant’s motion for a directed verdict on this ground.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A94A0800.
    H & H SUBS, INC. v. LIM et al.
    (444 SE2d 404)
   Johnson, Judge.

Seung Ho Lim and Helen Lim filed the instant action for fraud against H & H Subs, Inc., and its employee, Michael Hylton, alleging that Hylton intentionally misrepresented the terms of a contract they entered into for the purchase of a restaurant. The case went to trial before a jury, which returned an initial verdict in favor of the Lims, awarding actual damages of $26,620 and finding that punitive damages should also be assessed. After hearing evidence on the issue of punitive damages, the jury interrupted its deliberations to ask the court if it could amend the initial actual damages verdict by apportioning the amount to be paid by each defendant. The court allowed the jury to do this. After further deliberations, the jury returned another verdict, providing that H & H Subs is required to pay all of the actual damages of $26,620 plus $7,500 in punitive damages, and that Hylton must pay $3,500 in punitive damages. The court entered judgment on this verdict. H & H Subs appeals.

1. H & H Subs argues that the jury verdict is illegal in that it exonerates the employee, Hylton, while finding H & H Subs liable, even though H & H Subs’ liability as the employer is entirely dependent on the principle of respondeat superior. “Unless additional and independent acts of negligence over and above those alleged against the servant or employee are alleged against the employer, a verdict exonerating the employee also exonerates the employer. [Cits.]” Townsend v. Brantley, 163 Ga. App. 899, 900 (2) (296 SE2d 186) (1982). Contrary to H & H Subs’ argument, the verdict in the instant case does not exonerate Hylton. The jury expressly found that the Lims’ actual damages were incurred due to the actions of both H & H Subs and its “agents acting on behalf of the corporation.” (Emphasis supplied.) Hylton was the only agent of H & H Subs who was a party to this lawsuit. In spite of this express finding that Hylton is liable, the jury did not order him to pay any part of the Lims’ actual damages. Moreover, the jury found Hylton liable for punitive damages. The verdict is therefore inconsistent. The verdict is also invalid in that it apportions damages between H & H Subs and Hylton, who the Lims sued jointly and severally. Walker v. Bishop, 169 Ga. App. 236, 240 (3) (312 SE2d 349) (1983); Giles v. Smith, 80 Ga. App. 540, 542 (1) (d, e) (56 SE2d 860) (1949). Moreover, the verdict improperly assesses punitive damages against Hylton without holding him responsible for actual damages. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992); Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 323 (1) (297 SE2d 292) (1982).

“Verdicts shall have a reasonable intendment, and shall receive a reasonable construction. They shall not be avoided unless from necessity. . . . The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them.” (Citations and punctuation omitted.) Rucker v. Camden Tel. &c. Co., 181 Ga. App. 504, 505 (353 SE2d 50) (1987). Here, because of the numerous defects in the verdict, there is no reasonable construction that we can give to uphold it. Since the verdict does not exonerate Hylton, but in fact finds him liable, it would be inappropriate to amend the verdict and hold in favor of both defendants. Compare ESAB Distrib. &c. v. Flamex Indus., 243 Ga. 355, 356-357 (1) (254 SE2d 328) (1979); Duke Trucking Co. v. Giles, 185 Ga. App. 833, 836 (2) (366 SE2d 216) (1988); Roswell Road-Perimeter &c. v. Schurke, 138 Ga. App. 502 (227 SE2d 282) (1976). Instead, a verdict such as this, “that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. Under our practice, a verdict of a jury which is illegal and void, and cannot be enforced, is a ground for granting a new trial.” (Citations and punctuation omitted.) Eco-Rez v. Citizens Bank of Swainsboro, 141 Ga. App. 90, 91 (3) (232 SE2d 587) (1977). The entire judgment of the trial court, entered on the void and unenforceable verdict, must be set aside and a new trial ordered as to both H & H Subs and Hylton.

Decided May 27, 1994.

McArthur & McArthur, John J. McArthur, for appellant.

James W. Bradley, for appellees.

2. Because of our decision in Division 1, the remaining enumerations of error shall not be addressed.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.