text:
    A92A1038.
    ATLANTA WOMEN’S CLUB, INC. v. WASHBURNE et al.
    (427 SE2d 18)
   Beasley, Judge.

The Atlanta Women’s Club, Inc. sued Washburne and the insurance agencies for which he worked, alleging that they negligently failed to procure insurance coverage and breached a contract to procure such coverage. It appeals from the summary judgment granted to all defendants.

The Club’s former insurance policy provided fire and extended coverage for the building at issue in the amount of $635,000 and had an 80 percent co-insurance clause, which reduced the amount of coverage payable for losses unless the Club carried insurance equal to 80 percent of the value of the property. The former policy also carried an endorsement which waived the co-insurance clause. It also provided for increases in coverage limits to adjust for increases in construction costs and property values caused by inflation.

When the former policy was not renewed, the Club’s officer who handled insurance sent the Club’s copy of that insurance policy to the Washburne agency for review by it, stating that the Club wanted the same amount of coverage as existed under the prior policy and relying upon the insurance agency’s expertise in providing such coverage. There is also evidence that Washburne is an insurance consultant, as well as broker, and in that capacity charged the Club a ten percent fee in addition to a standard brokerage commission.

The former policy, comprising 72 pages, had an 80 percent coinsurance clause. It also had an endorsement for business property stating, “Val-U-Gard II Endorsement (140413-06-84) Applies to business real property Val-U-Gard Cost Index Automatic Location(s) covered: 001.” This endorsement negated the co-insurance clause under a provision located midway through the policy, stating that “[w]hen the Declarations for this Endorsement show it applies to Business Real Property, Coinsurance will not apply to Business Real Property.” The present policy had an 80 percent co-insurance clause which was not negated by any such endorsement.

The policy obtained by Washburne provided the same coverage limit of $635,000 and had the same 80 percent co-insurance clause, but it did not have a similar endorsement waiving the co-insurance clause.

Subsequently, the insured property was heavily damaged by fire. Because of improvements which had increased the value of the property at the time of the fire, the property was not insured for at least 80 percent of its value, and the co-insurance clause substantially reduced the coverage otherwise payable under the policy.

It is undisputed that Washburne was acting as the Club’s agent in obtaining the insurance policy. It is also undisputed that the officer of the Club handling the insurance matter read the portion of the new policy which showed the same coverage limits, and also reflected the 80 percent co-insurance requirement. The officer testified, however, that she did not understand the co-insurance requirement, did not read the remainder of the policy which explained the co-insurance clause, and did not discover that the new policy contained no similar endorsement waiving the co-insurance clause. She did not have the former policy to compare it with. The Club contends that the defendants negligently failed to explain the now-operational co-insurance clause, especially in light of the increased value of the property, and negligently failed to provide the insurance coverage sought.

“Generally speaking, an insurance agent who undertakes to procure a policy of insurance for his principal but negligently fails to do so may be held liable to the principal for any resulting loss. [Cits.] However, where the agent does procure the requested policy and the insured fails to read it to determine which particular risks are covered and which are excluded, the agent is thereby insulated from liability, even though he may have undertaken to obtain ‘full coverage.’ ” Turner, Wood & Smith v. Reed, 169 Ga. App. 213, 214 (311 SE2d 859) (1983); Ethridge v. Associated Mutuals, 160 Ga. App. 687, 688 (288 SE2d 58) (1981).

An exception to this rule applies where the agent, acting in a fiduciary relationship with the insured, holds himself out as an expert in the field of insurance and performs expert services on behalf of the insured under circumstances in which the insured “must rely [up] on the expertise of the agent to identify and procure the correct amount or type of insurance. Wright Body Works v. Columbus &c. Ins. Agency, 233 Ga. 268, 271 (210 SE2d 801) (1974).” Epps v. Nicholson, 187 Ga. App. 246, 248 (370 SE2d 13) (1988); Greene v. Lilburn Ins. Agency, 191 Ga. App. 829, 830 (383 SE2d 194) (1989). Under these circumstances, the insured is relieved of the responsibility to minutely examine the policy to determine if the required coverage was included within its terms. Wright Body Works, supra at 271. Even in these circumstances, however, the insured is not relieved of all responsibility to examine the policy. The duty to read remains where “an examination [of the policy] would have made it readily apparent that the coverage contracted for was not issued.” Id. at 269; Reed, supra at 215.

In this case, the question is not whether the co-insurance provisions were readily apparent; it is whether the absence of the Val-UGard endorsement’s negation of the co-insurance provision in the prior policy was readily apparent, so that it was likewise readily apparent that the inclusion of such a clause in the policy provided by Washburne without the negating endorsement provided a drastically reduced amount of coverage.

The holdings in Greene, Reed, and like cases are predicated on the fact that it would have been readily apparent to a layman reading the insurance policy, based upon the plain and ordinary meaning of clear and unambiguous language, that the risk causing the loss was not covered. An insurance policy is to be read as a layman would read it and not as it might be analyzed by an insurance expert. Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 672 (1) (320 SE2d 555) (1984); see also Henderson v. Henderson, 152 Ga. App. 846, 847 (1) (264 SE2d 299) (1979).

Wright Body Works, supra at 268, held that where an insurance agent holds itself out as an expert in the field of insurance and the insured relies upon such expertise to determine the amount of insurance necessary to provide adequate coverage, the insured is relieved from the responsibility of having to examine the policy minutely to determine if the coverage required was that obtained. See Ethridge, supra at 688.

There are questions of fact in regard to these issues in this case.

Judgment reversed. McMurray, P. J., Pope, Cooper and Johnson, JJ., concur. Sognier, C. J., Birdsong, P. J., Carley, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent.

When its former insurance policy was not renewed, the Club contacted Washburne to locate and obtain for the Club a replacement fire and extended coverage policy providing the same amount of coverage as the former policy, but at a lower premium. Through Washburne, who acted as the Club’s agent, the Club obtained a new policy which provided the same coverage limit of $635,000, and had the same 80 percent co-insurance clause, which reduced the amount of coverage unless the property was insured up to 80 percent of its value. The new policy, however, did not have the endorsement contained in the prior policy waiving the co-insurance clause. By the time of the fire, the property had been improved and increased in value to the point that the coverage under the policy was not sufficient to insure the property for at least 80 percent of its value. Since the co-insurance clause was not waived, the amount of coverage under the policy was reduced.

The Club’s representative read the portion of the new policy showing the same coverage limits and reflecting the 80 percent coinsurance requirement. The representative admitted, however, that she did not read the remainder of the policy, which contained an explanation of the co-insurance clause, and which would have reflected that the policy contained no similar endorsement waiving the co-insurance clause.

The majority correctly states the applicable law: “Generally speaking, an insurance agent who undertakes to procure a policy of insurance for his principal but negligently fails to do so may be held liable to the principal for any resulting loss. [Cits.] However, where the agent does procure the requested policy and the insured fails to read it to determine which particular risks are covered and which are excluded, the agent is thereby insulated from liability, even though he may have undertaken to obtain ‘full coverage.’ ” Turner, Wood & Smith v. Reed, 169 Ga. App. 213, 214 (311 SE2d 859) (1983); Ethridge v. Associated Mutuals, 160 Ga. App. 687, 688 (288 SE2d 58) (1981). An exception to this rule applies where the agent, acting in a fiduciary relationship with the insured, holds himself out as an expert in the field of insurance and performs expert services on behalf of the insured under circumstances in which the insured “must rely upon the expertise of the agent to identify and procure the correct amount or type of insurance. Wright Body Works v. Columbus &c. Ins. Agency, 233 Ga. 268, 271 (210 SE2d 801) (1974).” Epps v. Nicholson, 187 Ga. App. 246, 248 (370 SE2d 13) (1988); Greene v. Lilburn Ins. Agency, 191 Ga. App. 829, 830 (383 SE2d 194) (1989). Under these circumstances, the insured is relieved of the responsibility to minutely examine the policy to determine if the required coverage was included within its terms. Wright Body Works, supra at 271. Even in these circumstances, however, the insured is not relieved of all responsibility to examine the policy. The duty to read remains where “an examination [of the policy] would have made it readily apparent that the coverage contracted for was not issued.” Id. at 269; Reed, supra at 215.

Applying these principles, I cannot agree that the defendants may be liable for failing to provide the coverage sought, or to explain the operation of the co-insurance clause. Construed in favor of the Club, the record reflects that Washburne was directed to attempt to obtain the same coverage provided by the expired policy. There is no evidence that the agent undertook to exercise discretion in the type or amount of coverage, nor does the record reflect that the agent undertook to determine the value of improvements to the property for purposes of assessing co-insurance requirements. Here, as in England v. Ga.-Fla. Co., 198 Ga. App. 704 (402 SE2d 783) (1991), the alleged negligence is based not on the exercise of expert discretion, but on the failure to obtain specified coverage. “Therefore, the instant case is not otherwise within the Wright Body Works exception to the general rule that one who had sought, but did not receive, specified coverage has no viable negligence claim if, prior to suffering the uninsured loss, he had the alleged non-conforming policy in his possession.” (Emphasis in original.) England, supra at 704. Moreover, even if we were to assume that the agent exercised discretion as to the type or amount of coverage by providing a policy without a similar endorsement waiving the co-insurance clause, the insured’s failure to read the policy would preclude recovery because the co-insurance provisions, and the lack of any endorsement waiving the co-insurance requirements, would have been “readily apparent” upon examination of the policy. Greene, supra at 830; Reed, supra at 215. Accordingly, there was no jury question as to any negligence on the part of the defendants to procure insurance, and the trial court properly granted summary judgment.

Decided December 2, 1992

Reconsideration denied December 18, 1992

Saveli & Williams, Edward L. Saveli, for appellant.

Lokey & Bowden, Charles M. Lokey, Malcolm Smith, Totsy Nichols, White, Orrison, Martin & Black, R. Patrick White, for appellees.

As to the claim that the defendants at issue breached a contract to procure insurance as instructed, the Club was under a duty to examine and reject the policy for any claimed incorrect or insufficient coverage. The failure to do so under the present facts relieves the defendants of any liability for any lack of coverage. Epps, supra at 247-248. There was no error in the grant of summary judgment on this claim.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A1100.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HARRIS. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HARRIS et al.
    A92A1101.
    (427 SE2d 1)
   Cooper, Judge.

Appellees in this consolidated appeal were injured in an automobile accident involving a known uninsured motorist. Appellant, appellees’ uninsuréd motorist carrier, appeals the trial court’s grant of appellees’ motion for partial summary judgment and denial of its motion for partial summary judgment on the issue of appellant’s liability for appellees’ personal injuries. In its sole enumeration of error, appellant contends it is not liable for these injuries because it was not served within two years of the accident.

The parties’ motions for partial summary judgment were based on the following stipulated facts. Appellees were injured in an automobile accident February 14, 1988, when their vehicle collided with a vehicle owned and operated by Glasstream Boats, Inc. (“Glasstream”). Appellees’ vehicle was insured by appellant under a policy providing uninsured motorist benefits. In October 1989, Glasstream filed for bankruptcy protection. Appellees filed a motion in the bankruptcy court to modify the automatic stay to allow them to pursue their tort claims against Glasstream in April 1991, and the bankruptcy court granted the modification May 1, 1991. On May 29, 1991, appellees filed the instant actions against Glasstream and served appellant with duplicate originals. Glasstream is in default and uninsured.

Subsection (d) of OCGA § 33-7-11, which sets forth the service requirements in actions involving uninsured motorists, provides: “In cases where the owner or operator of any vehicle causing injury or damages is known, and either or both are named as defendants in any action for such injury or damages, a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant. If either the owner or operator of any vehicle causing injury or damages is unknown, an action may be instituted against the unknown defendant as ‘John Doe’ and a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant.”

The requirement of service on the insurer is an absolute statutory prerequisite to recovery from the uninsured motorist carrier. See Bohannon v. Futrell, 189 Ga. App. 340 (1) (375 SE2d 637) (1988), aff’d Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989). Moreover, although the insured’s right to recover is based on his insurance contract, Georgia courts hold that the same limitation period governing the underlying tort action against the uninsured motorist — two years from the time of injury for personal injury suits pursuant to OCGA § 9-3-33 — also limits the time within which the uninsured motorist carrier must be served under OCGA § 33-7-11 (d). See Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). Thus, appellant argues, it cannot be liable for appellees’ personal injuries because it was not served with copies of these actions against Glasstream within two years of the accident.

Appellant’s reliance on OCGA § 33-7-11 (d) as interpreted and applied in Vaughn is misplaced, however, as the statutory requirement of service on the insurer on its face does not apply until the legal action naming the known uninsured motorist as defendant exists. In this case, the known uninsured motorist filed a petition in bankruptcy, so no legal action against it could be commenced until the automatic stay was terminated or modified. See 11 USC § 362 (a) (1). To prevent plaintiffs such as appellees from losing their causes of action due to the passage of time, another provision of the Bankruptcy Code extends limitation periods for commencing actions against debtors in bankruptcy to 30 days after termination or modification of the automatic stay. See 11 USC § 108 (c). Appellees took advantage of this provision, securing a modification of the stay to allow them to pursue their tort claims and then filing these actions against Glasstream within 30 days. It was only when these actions against Glasstream were filed that the statutory requirement to serve a copy of the actions on appellees’ uninsured motorist carrier arose, and appellees fulfilled that requirement by serving copies on appellant within the extended limitation period governing the underlying tort action. See Bohannon, 259 Ga. at 163.

Citing Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 457 (224 SE2d 167) (1976), appellant argues that appellees did not need to pursue their claims to judgment against Glasstream, but instead could and should have filed John Doe actions, as if the uninsured motorist were unknown, and served appellant within the two-year limitation period. However, an injured party must obtain a judgment of liability against a known uninsured motorist as a prerequisite to recovery from the uninsured motorist carrier, Cash v. Balboa Ins. Co., 130 Ga. App. 60, 61 (202 SE2d 252) (1973), unless there is some legal bar to liability on the part of the known uninsured motorist unrelated to the facts of the collision. See Wilkinson, supra (discharge in bankruptcy as legal bar to liability of known uninsured motorist under Bankruptcy Code); Watkins v. United States, 462 FSupp. 980, 990-991 (S.D. Ga. 1977) (status as driver for federal government as legal bar to liability of known uninsured motorist under Federal Driver’s Act), aff’d 587 F2d 279 (5th Cir. 1979). Unlike Glasstream, the uninsured motorist in Wilkinson had actually been discharged in bankruptcy. Because the uninsured motorist’s discharge in that case constituted a legal bar to liability, the Georgia Supreme Court held the injured party’s suit should proceed as a John Doe action lest the insurer escape liability due to the uninsured motorist’s discharge. The automatic stay protecting Glasstream, on the other hand, did not constitute a legal bar to liability in the manner of a discharge; instead, it simply operated as a postponement of the right to adjudicate Glasstream’s liability. See Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 560, n. 3 (110 SC 2126, 109 LE2d 588) (1990). Accordingly, there was no legal bar to Glasstream’s liability, appellees had to pursue judgment against Glasstream as prerequisite to recovery from appellant, and until appellees could file an action against Glasstream there was nothing to serve on appellant under OCGA § 33-7-11 (d). Therefore, the trial court did not err in granting appellees’ motion for partial summary judgment and denying appellant’s motion.

Judgments affirmed. Sognier, C. J., and McMurray, P. J., concur.

On Motion for Reconsideration.

In its motion for reconsideration, appellant asserts that our interpretation of OCGA § 33-7-11 (d) undermines the purpose of the provision, which is to provide the uninsured motorist carrier with notice of its potential liability in a timely manner so it can act to protect its interests. It may be true that the result in this case is inconsistent with the purpose of the statute. However, OCGA § 33-7-11 (d) plainly states that where the uninsured motorist is known, a copy of the action naming the known uninsured motorist as a defendant must be served on the insurance company. Regardless of the purpose of the statute, these words cannot logically be construed to require service on the insurer of a copy of an action that does not and cannot yet exist. See also Jefferson Pilot &c. Co. v. Burger, 176 Ga. App. 471 (336 SE2d 591) (1985).

Motion for reconsideration denied.

Decided October 22, 1992

Reconsiderations denied December 2, 1992 and December 18, 1992

Young, Clyatt, Turner, Thagard & Hoffman, William A. Turner, Jr., for appellant.

Kitchens, Wolfson, Smith & Hannan, James R. Smith, Jr., for appellees.

       The stipulated facts indicate that one appellee had in fact filed an action against Glasstream before Glasstream went into bankruptcy, and that appellee failed to serve a copy of the pre-bankruptcy action on appellant as required by OCGA § 33-7-11 (d). The pre-bankruptcy action was voluntarily dismissed, however, and appellant does not challenge the propriety of that dismissal. The existence of the earlier suit thus does not affect our conclusion that an insured’s duty to serve a copy of a legal action on his insurer cannot arise until that legal action is filed and that appellees filed these actions and served copies on appellant, their insurer, within the extended limitation period governing the underlying tort action.


author: Sognier, Chief Judge. McMurray, Presiding Judge,

text:
    A92A1228.
    BIRD v. BISHOP.
    (427 SE2d 301)
   Sognier, Chief Judge.

At the time of Mary Bird’s death in August 1990, she and Richard Bird were separated but the final divorce decree had not been entered. Mr. Bird, as her surviving spouse, see Simpson v. King, 259 Ga. 420, 422 (3) (383 SE2d 120) (1989), applied for a year’s support out of Ms. Bird’s estate, see OCGA §§ 53-5-1 (b); 53-5-2, and upon the probate court’s denial of his application, he appealed to the Superior Court of Cherokee County for a de novo review of that ruling. See OCGA §§ 53-5-21 (d); 5-3-29. The trial court denied his application, and he appeals. See Phillips v. State, 261 Ga. 190 (402 SE2d 737) (1991).

The record reveals that the Birds appeared in court in April 1989 at a hearing regarding their divorce proceedings. A transcription of that hearing reflects that counsel for appellant outlined the general terms of the settlement between the parties. Those terms required, inter alia, that appellant deed the parties’ Cherokee County home to Ms. Bird and pay the mortgage and $2,500 a month to Ms. Bird until April 1, 1990; that Ms. Bird would transfer to appellant any interest she has in a Maine property; and that the parties would receive stock, transportation vehicles, and similar items already registered in their own names, as well as all of each parties’ own premarital personalty, but left the division of other personalty for subsequent determination. A review of the transcript reveals that the word “alimony” was not used once among the terms set forth by counsel and although counsel, in referring to the $2,500 monthly payment by appellant to Ms. Bird, noted that that sum “is what [appellant is] currently paying as support,” nothing in the transcript indicates that appellant’s future payments of that monthly sum under the terms of the oral agreement constituted support or alimony. In response to questioning by the trial court the Birds acknowledged that these terms constituted “a final settlement of all matters pending between [them] concerning [their] divorce” and that the terms were correctly stated, left nothing out, and included nothing the Birds had not accepted. However, at the time of Ms. Bird’s death approximately 16 months later, the Birds had not memorialized the settlement agreement and were still in the process of negotiating terms not included among those terms outlined by counsel in the April 1989 hearing. Appellant in his uncontroverted affidavit listed a substantial number of obligations assumed by the parties in the oral agreement, which he averred remained unfulfilled at the time of Ms. Bird’s death.

In its order denying appellant’s application for year’s support, the trial court found that the few terms set forth at the April 1989 hearing contained the final disposition of all issues between the Birds and constituted a valid agreement. The trial court then determined that two statutes in the alimony chapter of Title 19, OCGA §§ 19-6-7; 19-6-8, were applicable to this case. OCGA § 19-6-8 provides that “[i]n cases of voluntary separation ... a party voluntarily, by contract or other written agreement made with his spouse, may make an adequate provision for the support and maintenance of such spouse .... Such an agreement shall be a bar to the right of the spouse to permanent alimony.” OCGA § 19-6-7 provides in pertinent part that “[a]fter permanent alimony is granted, upon the death of the party liable for the alimony the other party shall not be entitled to any further interest in the estate of the deceased party by virtue of the marriage contract between the parties.”

Although the agreement between the Birds was oral and did not specifically address alimony or support, the trial court determined the agreement could substitute for the “contract or other written agreement . . . [containing] adequate provision for the support and maintenance of [a] spouse” recognized by OCGA § 19-6-8. The trial court then reasoned that this oral agreement, despite its silence regarding alimony or support, constituted the grant of “permanent alimony” so as to invoke the provisions of OCGA § 19-6-7, and applying that statute accordingly barred appellant from making his claim for year’s support, apparently under the theory that the absence of any provision in the oral agreement of “support and maintenance” was because appellant “did not need any.”

Pretermitting appellant’s assertion that the trial court failed to conduct a de novo hearing and assuming, arguendo, the correctness of the trial court’s determination that the Birds entered into a valid, binding oral contract the terms of which are set forth in the April 1989 transcript, we agree with appellant that the trial court misapplied OCGA §§ 19-6-7; 19-6-8 to hold his claim was barred.

In the case sub judice, there is no written executed agreement made an order of the court expressly listing alimony or support as among the issues settled by the parties. Thus, there is no “written” agreement containing “adequate provision” for support to fulfill the requirement set forth in the plain language of OCGA § 19-6-8. Furthermore, in the absence of any provision for alimony or support in the oral agreement, OCGA § 19-6-7 by its plain terms is inapplicable because it addresses claims by an alimony-receiving spouse on the estate of the alimony-paying spouse once alimony issues have been permanently settled.

Nothing in Simpson, supra, and Gore v. Plair, 173 Ga. 88 (159 SE 698) (1931) supports the trial court’s conclusion that these statutes apply to bar a spouse’s claim on a deceased spouse’s estate simply because the parties had orally agreed to an equitable division of their property without, intentionally or mistakenly, referring to alimony or support. In both Simpson and Gore, estranged wives were barred from making claims on deceased husbands’ estates based on the execution by the couples of written contracts expressly providing that the settlements resolved all issues of alimony and support. In Gore, the Supreme Court applied the predecessor statutes to both OCGA § 19-6-8 and OCGA § 19-6-7 to hold that an agreement settling all claims for alimony and support under the earlier version of OCGA § 19-6-8 barred the spouse who had received an alimony-substitute under that agreement from asserting her dower right against the decedent’s estate pursuant to the earlier version of OCGA § 19-6-7. In light of that opinion, we are not inclined to construe the absence of any express reference to OCGA § 19-6-8 in Simpson to constitute an indication that the Supreme Court does not require settlement agreements to comply with OCGA § 19-6-8 before such settlements can substitute for the grant of permanent alimony for purposes of barring claims under OCGA § 19-6-7. However, even if our inclination proves incorrect, the facts in Simpson, particularly the stress the Supreme Court placed upon the language in the written agreement reflecting the parties’ desire to settle all issues of alimony, would distinguish Simpson from the case at bar.

The record does not support the dissent’s assertion that the Birds settled all issues of temporary and permanent alimony when they agreed to the terms outlined during the April 1989 hearing. However, we note that even if evidence extrinsic to the April 1989 hearing is considered to fill out the “outline” of the settlement and elucidate in greater detail the true intention of the parties, that extrinsic evidence — i.e., the unexecuted written agreement of June 1990 — expressly rebuts the dissent’s position that appellant’s receipt of an equitable portion of the property constituted any type of alimony. Further, the provision in that document requiring payment of alimony by appellant to Ms. Bird — a fact also found by the trial court — would clearly place appellant’s claim for year’s support outside the plain language of OCGA § 19-6-7 since appellant would have been the alimony-paying spouse making a claim on the alimony-receiving spouse’s estate (i.e., the opposite situation to that contemplated by the statute).

Therefore, OCGA §§ 19-6-7; 19-6-8 do not apply to bar appellant’s claim because those statutes do not encompass oral agreements that fail to provide for or otherwise address alimony or support issues. Since neither the plain language of these statutes nor the holdings in Simpson and Gore, supra, authorize the bar of appellant’s year’s support claim merely because the Birds gave and received property to settle the divorce action, the trial court erred by denying appellant’s claim.

Judgment reversed. Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

In my view, Mr. Bird cannot share in Mrs. Bird’s estate by way of inheritance or year’s support because he reached a settlement with regard to all issues in the divorce action, including alimony. Accordingly, I dissent.

Mary Bird sued Richard Bird for divorce, alleging the marriage was irretrievably broken, and seeking an equitable division of the marital property, in addition to temporary and permanent alimony. Thereafter, the parties announced the terms of a settlement agreement in open court. Pursuant to the agreement, each party was to give arid receive property to the other. The judge asked the Birds if they “agree to this as a final settlement of all matters pending between yourselves concerning this divorce?” They said that they did. Thus, the Birds divided their property and settled all issues in the divorce action, including temporary and permanent alimony.

Because he settled the alimony issues in the divorce case, Mr. Bird’s claims to Mrs. Bird’s estate cannot succeed. Simpson v. King, 259 Ga. 420, 422 (383 SE2d 120); Gore v. Plair, 173 Ga. 88 (159 SE 698); Hall v. First Nat. Bank of Atlanta, 89 Ga. App. 853, 855 (81 SE2d 522). In effect, Mr. Bird “is barred from receiving anything further from the estate ‘by virtue of the marriage contract. . . .’ OCGA § 19-6-7.” Simpson v. King, 259 Ga. 420, 422, supra; Gore v. Plair, 173 Ga. 88, supra.

Decided December 7, 1992

Reconsideration denied December 18, 1992

Wilson, Strickland & Benson, Frank B. Strickland, Mary M. Brockington, Anne W. Lewis, for appellant.

Bishop & McElyea, Barry W. Bishop, for appellee.

The majority attempts to distinguish Simpson v. King, 259 Ga. 420, 422, supra, and Gore v. Plair, 173 Ga. 88, supra, by pointing to the express use of the word “alimony” in the settlement agreements reached by the husbands and wives in those cases. I think this is a distinction without a difference. As I pointed out above, alimony issues were injected into the Birds’ divorce case and Mr. Bird agreed to settle “all matters” in the case.

Mr. Bird agreed to settle all issues in the divorce case, including alimony; he should not be permitted to share in Mrs. Bird’s estate. Simpson v. King, 259 Ga. 420, 422, supra; Gore v. Plair, 173 Ga. 88, supra.

       Because the trial court determined the terms set forth by counsel during the April 1989 hearing encompass all the issues agreed upon by the Birds, reference cannot be made either to statements subsequently made by Ms. Bird in the transcript, indicating that she considered the settlement to have concluded the issues of alimony and support, or to any of the unexecuted written agreements between the parties, the last of which, dated June 1990, specifically provided that the property transfers contemplated by the parties were “not alimony nor settlement of any marital property rights” and required a monthly payment of alimony to Ms. Bird by appellant.

       OCGA § 19-6-7 (Ga. Code Ann. § 30-218); except for the use of gender-neutral language, is essentially identical to Civil Code of 1910, § 2991. Similarly, OCGA § 19-6-8 (Ga. Code Ann. §§ 30-211; 30-210 (2) (3)) tracks in gender-neutral language the provisions of Civil Code of 1910, §§ 2983; 2984.


author: Cooper, Judge. McMurray, Presiding Judge,

text:
    A92A1399.
    YEAPLE v. GRAND UNION COMPANY.
    (427 SE2d 13)
   Cooper, Judge.

Appellant was injured when she fell in the produce section of appellee’s grocery store. Appellant was maneuvering her shopping cart narrowly around a display table and slipped on a piece of fruit which was squashed on the floor. Appellant’s negligence action was tried before a jury, and she appeals from the entry of judgment on the jury’s verdict in favor of appellee. In her sole enumeration of error, appellant contends the trial court erred in failing to charge on legal distraction.

“The distraction theory provides ‘ “that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril. . . . The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” ’ [Cit.j Thus, where the plaintiff’s attention is distracted away from an obstruction that, in the exercise of ordinary care for his own safety, he otherwise could and would have seen and avoided, he can still recover. [Cit.]” (Emphasis in original.) Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (1) (360 SE2d 415) (1987). Appellant contends her attention was distracted from her lookout toward the floor by her attempt to maneuver the cart around the display table. However, at trial appellant testified that she was not distracted by anything in the store but was only trying to push her cart around the corner of the table through a narrow passage and slipped on a piece of fruit which she did not see prior to her fall. “ ‘One valid line of distinction existing in the so-called “distraction” cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.’ ” Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 475 (249 SE2d 276) (1978). Appellant’s own testimony reveals that she was not unfamiliar with the layout of the store and the placement of the display table in the produce section, having shopped there for 18 years. Thus, any distraction was not the placement of the display tables but was appellant’s own handling of her shopping cart. Despite the fact she was pushing the cart, it was still “ ‘incumbent upon [her], as a matter of law, to use [her] eyesight for the purpose of determining any discernible obstruction or defect in [her] path. (Cits.)’ [Cit.]” Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 240 (396 SE2d 42) (1990). “ ‘[N]ot performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries. (Cits.)’ [Cit.] Assuming that such a duty did not exist, appellant was authorized to recover. Assuming, however, that such a duty did exist, the evidence does not raise the issue of appellant’s possible distraction from its performance. Accordingly, the trial court did not err in refusing to give a charge on the distraction theory. [Cit.]” Kres, supra at 856 (1).

Judgment affirmed. Sognier, C. J., Birdsong, P. J., Beasley and Andrews, JJ., concur. McMurray, P. J., Carley, P. J., Pope and Johnson, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

As I cannot agree with the majority’s application in this case of the principles stated in Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473 (249 SE2d 276), I respectfully dissent. In my view, a jury could reasonably conclude from the evidence presented at trial that a distraction was caused by appellee’s arrangement of the fixtures in its store. While the majority concludes that “any distraction was caused by appellant’s handling of her shopping cart,” this view focuses on the effect rather than the cause. Appellant’s testimony shows that the reason for her high level of attention to maneuvering the shopping cart, at the expense of not closely watching the floor, was the congested placement of the store’s fixtures including a display table. “I started on this way, which this area is a very small area in here to get your cart through, and my only thing that I did, and I can remember this vividly, this is a free standing table with legs on it here, and I had to move this way a little to keep from bumping. My primary thing was get away and go around the table, which I had to do, and at that point, whatever it was was right here, and I moved the cart around the right of the table to get around that. . . . And my foot — well, I didn’t know what had happened because the next thing I knew I was going down. . . .”

Decided December 1, 1992

Reconsideration denied December 18, 1992

Charles H. Hyatt, John M. Hyatt, for appellant.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, Eleanor L. Martel, for appellee.

Appellant’s requested charge on the issue of distraction is a correct statement of the law and properly adjusted to the evidence at trial. The trial court’s refusal to include the requested charge in its instructions to the jury was harmful error, particularly so since the charge given included the plain view doctrine, and should result in the reversal of the judgment on appeal.

I am authorized to state that Presiding Judge Carley, Judge Pope and Judge Johnson join in this dissent.


author: Birdsong, Presiding Judge. Sognier, Chief Judge, Andrews, Judge,

text:
    A92A1504.
    FEISE et al. v. CHEROKEE COUNTY et al.
    (427 SE2d 294)
   Birdsong, Presiding Judge.

Plaintiffs Cynthia Mary Feise and Jonathan Feise appeal the grant of summary judgment to defendants Cherokee County and John Seay as sheriff and individually. The Feises filed suit for damages after Mrs. Feise, holding her two-year-old son, was attacked and “sliced” repeatedly with a knife by a neighbor, Scott Kramer, whom the Feises’ teenaged daughter and a teenaged neighbor had identified as the peeping tom who had plagued them. The Kramer house was behind the Feises’ home. After reports of a recurrence of peeping tom incidents following Kramer’s return from military service, deputies placed the Feises’ and their neighbor’s houses on extra patrol. Deputy Shields made special patrols, even going into the backyards to see how he would chase someone and shining spotlights into the yards. In July 1990, Deputy Shields told Deputy Hall he feared the incidents would escalate to a rape situation. One night Deputy Shields saw a figure jump off the Feises’ deck; he gave chase; when Deputy Hall came on duty, he resumed the search and Kramer was picked up on a road near his house. Deputy Hall sought to have the Feises and their neighbors identify Kramer. Construing the evidence on defendants’ motion for summary judgment most favorably to the Feises (Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442)), their teenaged daughter and her friend were very upset to be asked to identify Kramer; they knew his reputation for bizarre and cruel behavior and were afraid. They agreed to identify Kramer only upon the deputy’s promise that Kramer would not get out of jail. When the girls, relying upon this assurance, went outside and identified Kramer as the peeping tom, Kramer winked at them and said he would be back. He was mistakenly charged with a misdemeanor and was out on bail in one- and-one-half hours.

Six weeks later, Mrs. Feise, on September 4,1990, received a telephone call from a male who said: “I’m going to carve you and your daughter . . . up.” The caller hung up quickly and Mrs. Feise called the operator to trace the call. Meanwhile, the caller called again on the call waiting line and said: “I’m going to get you all for what you did.” Mrs. Feise received three threatening calls in a row. She assumed these calls were made by Kramer, because “who else wanted to do us harm?” The calls sounded as if they were made from a pay phone but the caller hung up before the calls could be traced. Deputies checked nearby stores and phone locations but found nothing. The neighbors also received a similarly threatening call that day. Mr. and Mrs. Feise sought to have Kramer arrested, but the sheriff’s office and the district attorney told them there was no probable cause to arrest because the calls were not traced. It was suggested that the Feises get a warrant, but the Feises did not see how they could get a warrant if the police did not have probable cause to arrest.

Construing the evidence most favorably to the Feises (id.), despite the “extra” patrols expended by the deputies before the threats of revenge were received, and despite the deputies’ heightened knowledge of Kramer’s dangerous propensities, after the threatening phone calls were made the sheriff did nothing to help the Feises. They were left to their own devices. The threats made by Kramer as the only person with a motive to “get you all for what you did,” were so frightening and posed a threat of such imminent harm that the next day Mr. Feise, who is a probation officer and former policeman, did not go to work but stayed with his family. During the day, however, it was necessary for him to go to the pharmacy. He gave his wife a gun and told her not to go outside without it, but she knew she could not shoot anybody and she did not think anything would happen in broad daylight, so she took her two-year-old son outside to the mailbox.

Scott Kramer had been stalking the house or lying in wait. He approached Mrs. Feise and slashed her repeatedly with a knife. He slashed her deeply on her arm when she flung it up to protect herself. She picked up her son and turned to run and Kramer repeatedly slashed her on her back. She managed to get away, but she and her baby were covered in blood and have suffered a great deal emotionally as the result of the slashing.

Sovereign immunity is not in issue. The trial court granted summary judgment to defendants. Plaintiffs Cynthia Feise and Jonathan Feise appeal. Held:

This court recently debated the basis for liability of law enforcement agencies and municipalities for failure to protect an individual from the criminal acts of a third party, in Jordan v. City of Rome, 203 Ga. App. 662, 667 (417 SE2d 730) (cert. granted). That decision was not concurred in by a majority of this court so it is physical precedent only. See Court of Appeals Rule 35 (b).

The trial court correctly granted summary judgment to defendants on the claim that defendants negligently induced the two girls to identify Scott Kramer by promising he would never get out of jail. Plaintiffs could not reasonably rely upon any such assurance, nor was the failure of such promise the proximate cause of Kramer’s attack. Nor does liability attach to defendants for finding lack of probable cause to arrest Kramer after Mrs. Feise and her neighbor received threatening phone calls. See Ferguson v. City of Doraville, 186 Ga. App. 430, 432 (367 SE2d 551).

However, in view of the deputies’ heightened apprehension that Kramer was of definite criminal propensity, and their having been advised that plaintiffs and their neighbors had suddenly received four viciously threatening telephone calls in one day, questions of fact exist as to defendants’ duty to protect the Feise family against this imminent specific danger, by decoy or by surveillance or stake-out of their house or by some other means. The jury may find that defendants should reasonably have presumed the person who made four threatening telephone calls on one day was Scott Kramer, and that defendants should reasonably have inferred that Kramer had conceived an overwhelming and immediate desire and intent to take revenge and “slice” certain members of plaintiffs’ family; and that defendants did not exercise ordinary care to protect the Feise family from Kramer’s immediate assault.

The trial court erred in granting summary judgment to defendants, either under the imposition of a duty to exercise reasonable care as held by the plurality in Jordan, or under the Jordan dissent, which relied upon a “special duty” analysis in the particular circumstances of that case. Jordan involved a call to police and an asserted promise by police to send assistance. The majority found evidence giving rise to a duty to exercise ordinary care, but the dissent believed the information relayed to the police by Jordan’s sister was so exceedingly sparse that there was no basis to impose a duty to exercise ordinary care based on knowledge of a foreseeable risk of harm. The dissent also found that no “special duty” arose in that case on grounds that the plaintiff “justifiably relied” on the defendant’s “affirmative undertaking” to protect or assist the plaintiff, because “[b]ased on the sparse information imparted to the police by phone, there is no basis to find the police had knowledge that the failure to send a car could lead to the harm incurred. There is no evidence that the police inaction made the situation worse or increased the danger to Jordan.” Jordan at 673.

The element of “justifiable reliance” on an “affirmative undertaking” by the law enforcement agency under a special duty analysis arose because Jordan contended police promised to send assistance and she relied on that promise. A failure of affirmatively assumed duty to protect, and the plaintiff’s reliance on it, may be the cause of damage in some cases (see Thomas v. Williams, 105 Ga. App. 321, 326 (124 SE2d 409)), but this “justifiable reliance” requirement should not be applied to cases which do not involve reliance on an affirmative undertaking to protect. See, e.g., Jordan at 665, fn. 1. Neither should plaintiffs confuse their chances by arguing that liability arose out of a “special duty” where, as here, there is no evidence the plaintiff’s reliance on an affirmative police undertaking is what resulted in her harm.

The element of “justifiable reliance” based on a “special duty” does not arise under the causation evidence in this case. This obviously means the “special duty” analysis is not applicable to this case and we have not applied it in this case, as expressly stated above. Therefore, contrary to the special concurrence in this case, we have not applied to this case the “special duty” analysis, as we have expressly made clear. The facts in this case are far more compelling than those in Jordan toward a duty to exercise ordinary care where the law enforcement agency knew or should have known that its acts or omissions exposed an individual to the risk. The Feise family was so convinced Kramer intended an immediate assault that Mr. Feise stayed home from work and tried to fortify his family in their home with a gun; but defendants, having knowledge of the pertinent facts, left the family to their own devices and made no effort to guard against or draw out this attack which the Feises foresaw as an immediate danger.

That Mrs. Feise went outside her home without a gun does not as a matter of law bar recovery, nor does it relieve defendants of a duty which a jury may find existed. Citizens are not required to carry, and use, a gun as a matter of law. Mrs. Feise stated she could not shoot anyone; the victim of Kramer’s attack could have been a child or a person incapable of understanding the danger of using a gun to protect herself. An element of plaintiffs’ case is that Mrs. Feise should not have been forced to be imprisoned in her home or else shoot Scott Kramer, or more than her physical security would be at continuing risk as a result of the failure of defendants to protect her, assuming a jury finds they had such a duty in all the circumstances of the case.

The dissent clings to the principle outlined in the dissent in Jordan, supra, that is, that defendants may be liable only if they had a duty in terms of a “special relationship” which was created between the claimant and police sufficient to establish a specific duty for the police to protect the claimant from particular harm. The dissent asserts that whether there is a “special duty” is a question of law for the court in each case. However, when the very complaint is that defendants should have undertaken a duty in the circumstances, an analysis barring recovery if a court finds that no duty existed because the defendants undertook no such duty, is circular and self-defeating. This complaint is bottomed on defendants’ failure to assume a duty to protect against reasonably foreseeable imminent danger from Kramer; if defendants’ failure to undertake such duty bars recovery as a matter of law, this is the same as saying no duty exists unless defendants undertook a duty to protect. The result of this reasoning is that a police agency can always make itself immune from liability simply by failing to act, and only in cases of wilful or criminal dereliction by police could a court decide there was a duty on police to protect. Carried to its logical end, such “special duty” analysis is thus shown to be inappropriate to the circumstances of these cases, except where police did in fact indisputably undertake the duty to protect.

The dissent creates a form of police immunity, by making a finding of fact that should be made by a jury. The cases cited for the idea that the existence of a duty is an issue of law for a court (Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) and First Fed. &c. Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485-486 (394 SE2d 128)) do not support that proposition. First Federal &c. Bank of Brunswick stems from Shockley v. Zayre of Atlanta, 118 Ga. App. 672 (165 SE2d 179), which actually held: “ ‘The [question of] duty is defined by the law; the breach of that duty is determined by the particular facts. . . . This is usually a question to be referred to the jury, and should always be so referred, unless the allegations (or evidence) show beyond controversy that there was no such breach of duty. . . .’ [Cits.]” (Emphasis supplied.) Id. at 673. Therefore, Shockley cannot be used as the basis to allow the court to decide whether police had a duty in these cases. As said above, a “special duty” analysis is generally appropriate only where there was an affirmative undertaking to protect. It is not a term to be used to allow a court to decide at the threshold, in every case, whether a danger was reasonably foreseeable by police. A court may decide the issue only if the evidence shows “beyond controversy” (id.) that there was no reasonable foreseeability of danger giving rise to a duty, under general principles of negligence law and summary judgment procedure.

The dissent concedes the question is one of reasonable foreseeability, but, calling this a “special duty” question, contends that the trial court had the right to decide it. If a form of police immunity is desired, the legislature should enact it, and a peculiar judicial analysis should not be used to create police immunity by allowing a court at the threshold to decide the factual issue of what is reasonably foreseeable. Serious policy considerations abound in these cases, but the standard of reasonable foreseeability is generally sufficient to the query. The question what is “reasonable” necessarily asks what is reasonable to the police in all the circumstances and exigencies. The jury of peers is not unequipped to consider this question. If, to the reasonable minds of 12 jurors, all the circumstances in a particular case imposed a duty on police to “provide personal 24-hour protection to citizens under these or like circumstances” or some other proper form of surveillance (as the dissent fears), we will not hold this to be inappropriate, in view of the constitutional guarantee of “protection to person and property” noted in the special concurrence in Jordan v. City of Rome, supra at 669 (Ga. Const. 1983, Art. I, Sec. I, Par. II), in the absence of a legislatively enacted special police immunity.

Furthermore, in concluding that the circumstances were not sufficient to inform defendants of a “substantial likelihood” of immediate risk of danger from attack, the dissent attempts to create a higher standard of proof by which these cases should be judged. Making the issue one of “substantial likelihood” rather than “reasonable foreseeability” really adds nothing to the inquiry, since if a danger was reasonably foreseeable it must be concluded in legal terms that there was a “substantial likelihood” of it. But if “substantial likelihood” were used to supplant traditional negligence law and to require a sort of “certain foreknowledge,” it will create police immunity except for wilful torts.

As to the dissent’s conclusion that there was no duty because these factual circumstances did not inform defendants of the “substantial likelihood” of this particular imminent danger, obviously this cannot be said as a matter of law, for the issue is not “beyond controversy” (id.) inasmuch as the jury, like Mr. Feise on the day of the attack, may come to the opposite conclusion. Where reasonable minds may differ as to the foreseeability of Kramer’s attack, the question is necessarily one for the jury.

A jury may find in this case that defendants had a duty to exercise ordinary care to protect plaintiffs from the criminal acts of Scott Kramer because it was reasonably foreseeable to defendants that this attack would occur and defendants knew or should have known their acts or failure to act exposed plaintiffs to the risk. The trial court erred in granting summary judgment to defendants.

Judgment reversed. McMurray, P. J., and Cooper, J., concur. Beasley, J., concurs in judgment only. Sognier, C. J., Carley, P. J., and Johnson, J., concur specially. Andrews, J., dissents. Pope, J., disqualified.

Sognier, Chief Judge,

concurring specially.

I concur fully as to that part of the majority’s opinion extending to counties the duty first recognized by a plurality of this court in Jordan v. City of Rome, 203 Ga. App. 662, 666-667 (2) (417 SE2d 730) (1992) that a municipality owes persons within its municipal boundaries a duty to exercise ordinary care to protect them against the intentional and unpredictable criminal acts of third parties when it reasonably knew or should have known that its acts or omissions exposed those persons to a foreseeable risk of harm. As with municipalities, counties assume this duty as an inherent power of government. See Ga. Const. 1983, Art. IX, Sec. II, Par. III (a) (1). I concur fully as to that part of the majority’s opinion holding that summary judgment to appellees was improper because questions of fact exist whether such a duty arose as to appellees in regard to appellants.

I concur in judgment only as to that part of the majority’s opinion analyzing the facts of the case sub judice in light of the “general duty/special duty” analysis in the Jordan dissent. To the extent the majority’s opinion intimates that that analysis may be appropriate in other cases or is otherwise applicable in Georgia, I concur in judgment only because I agree with the plurality in Jordan that application of that analysis contravenes statutory and constitutional language in Georgia authorizing the waiver of governmental immunity to the extent of applicable liability insurance coverage. Id. at 664-666 (1).

I am authorized to state that Presiding Judge Carley and Judge Johnson join in this special concurrence.

Andrews, Judge,

dissenting.

I concur in the holding that the trial court correctly granted summary judgment on the claim that the defendants negligently induced an identification of Kramer. I respectfully dissent from the majority’s conclusion that the trial court erred in granting summary judgment to the defendants on the claim that Cherokee County and its sheriff negligently failed to protect Mrs. Feise from Kramer’s attack.

One of the functions of government is to provide police protection for citizens within its jurisdiction. Thus, the police have a general duty to protect citizens from criminal attack by third persons, whereas a private individual generally has no affirmative duty to aid the victim of such an attack. Nevertheless, the general governmental duty to protect the public is not alone a sufficient basis to support a tort action against the government for failure to protect its citizens from harm caused by a third party’s assault or other criminal activity.

. When a claim is made that police negligently failed to protect a member of the public, the threshold issue is whether in the exercise of this general duty, a special relationship was created between the claimant and the police sufficient to establish a specific duty for the police to protect the claimant from the particular harm. See Jordan v. City of Rome, 203 Ga. App. 662 (417 SE2d 730) (1992) (Andrews, J., dissenting) (cert, granted). “[I]n the context of a tort claim that the [county’s] police negligently failed to furnish police protection to [Mrs. Feise], the application of a duty limited in scope by the type of relationship between the claimant and the [county] police is a traditional tort law concept applicable to both government and private entities.” Id. at 671-672. In general, A has no duty to prevent B from harming C, unless A has a special relationship with B which imposes a duty on A to control B, or a special relationship exists between A and C which gives C a right to protection. Associated Health Systems v. Jones, 185 Ga. App. 798, 801 (366 SE2d 147) (1988); Restatement, Law of Torts 2d, § 315.

Limiting the scope of the government’s duty under these circumstances is not a resurrected form of sovereign immunity, otherwise waived to the extent of insurance coverage, but involves a question of law on the threshold tort issue of duty. See generally Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982) (setting forth “a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm” as the threshold element in a cause of action for negligence). Ultimately, defining the scope of legal duty in any setting involves unavoidable policy decisions. In cases of the present kind, it is proper to some degree to consider the unique functions undertaken by government in providing police protection, and the limited resources allocated to the performance of these functions. The duty analysis undertaken in these cases, however, is not based on any special status given to government, but on the same tort principles which would be applied to private individuals in like circumstances. The task is to fairly apply traditional duty analysis to the often unique circumstances presented by tort claims for negligent failure to perform a governmental function. Limiting the scope of duty in terms of the relationship between the plaintiff and defendant is not a novel concept. In premises liability actions the duty owed by the owner of the premises to one entering varies according to whether the relationship to the owner of the one entering is that of trespasser, licensee or invitee. See Adams & Adams, Georgia Law of Torts, § 4-1 (1989).

It is reasonable, therefore, to limit the scope of the legal duty imposed on police for claims that they negligently failed to provide protection. When police know, or reasonably should know, that there is a substantial likelihood a particular citizen is in immediate danger of being subjected to an unreasonable risk of serious physical harm by the actions of a third person, this is sufficient to create a special relationship giving rise to a specific duty for the police to exercise reasonable care to protect the citizen from the harm. Whether a special relationship giving rise to a specific legal duty exists under the peculiar facts of each case is generally a question of law for the court. See First Fed. &c. Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485-486 (394 SE2d 128) (1990) (while issues of negligence are ordinarily for the finder of fact, the question of duty is for the court). In the absence of such a duty, the defendant is not liable; if such a duty does exist, the issue of negligence is for the trier of fact.

An argument may be made that by framing the trial court’s duty analysis in general terms of a special relationship and foreseeable risk, this duplicates part of the factfinding process that is normally reserved for the jury in negligence cases. However, given the unique function of providing police protection for the general public, the limited resources given to perform the task, and the potential for limitless numbers of negligence claims, it is necessary to clearly address the scope of the duty before exposing the police to potential liability for breach of such duty. Nevertheless, when duty is defined in terms of a special relationship between the plaintiff and defendant, its existence or non-existence will be based on the facts of the case. The special relationship-duty question is a threshold issue, and should be resolved by the court as a matter of law where the facts support such a determination. See Trammell v. Baird, 262 Ga. 124, 125 (413 SE2d 445) (1992) (plaintiff had relationship of trespasser as a matter of law). Where the trial court is unable to conclude as a matter of law whether or not a special relationship existed, it properly becomes a factual question for resolution by the jury along with other negligence issues. See Murray Biscuit Co. v. Hutto, 119 Ga. App. 377, 385-386 (167 SE2d 182) (1969) (question of fact as to whether plaintiff stood in relationship of trespasser or licensee).

After Kramer was identified by the Feises’ daughter and a neighbor’s daughter and arrested on peeping tom charges, he was released from custody the same day. About six weeks later, Mrs. Feise and her neighbors received anonymous threatening phone calls. Kramer was not identified as the caller, although Mrs. Feise feared that it was him because she knew of no one else who would have a motive to harm them. The calls sounded as though they were made from a pay phone, but police were unable to locate the caller by checking local stores and phone locations. The police were unable to arrest Kramer for lack of probable cause. The next day Kramer assaulted Mrs. Feise in front of her residence.

Decided December 4, 1992

Reconsideration denied December 18, 1992

Gerard J. Lupa, for appellants.

Drew, Eckl & Farnham, William T. Mitchell, Theodore Free man, for appellees.

In my view, no special relationship existed as a matter of law between the police and the plaintiffs in this case, therefore the police had no specific duty to prevent the harm. There was no claim that Kramer had previously assaulted the plaintiffs, nor was there any direct evidence that Kramer was the threatening caller. The threatening calls, in conjunction with all the other circumstances, did not establish a substantial likelihood of immediate danger of an attack. I am unable to conclude that learning of the anonymous calls under these circumstances was sufficient to inform the police that there was a substantial likelihood that the plaintiffs were in immediate danger of being subjected to an unreasonable risk of serious harm at the hands of Kramer. To conclude that a special relationship giving rise to a duty to protect exists in this case would be tantamount to subjecting police to potential liability for the failure to provide personal 24-hour protection to citizens under these or like circumstances. The trial court correctly held, as a matter of law, that the defendants had no specific legal duty to protect Mrs. Feise from the attack, and properly granted summary judgment in favor of the defendants.

       I agree with the majority that the four-part test for establishing a special relationship set out by the dissent in Jordan v. City of Rome, supra, was sufficient under the facts of that case, but not here.

       The lack of probable cause in this case illustrates the type of dilemma in which police officers may be placed when a duty creating potential tort liability is imposed for failure to protect a citizen from a criminal act. The imposition of such a duty under these circumstances “puts police officers in the precarious position of choosing between potential claims for false arrest, or potential tort liability to injured third parties for failure to arrest. . . [and may have the added effect of] discouraging] the reasonable exercise of discretion by police officers, and encouraging] arrests in marginal cases supported by only slight evidence of criminal conduct.” Landis v. Rockdale County, 206 Ga. App. 876 (427 SE2d 286) (1992) (Andrews, J., dissenting).


author: Pope, Judge.

text:
    A92A1674.
    WELCH v. THE STATE.
    (427 SE2d 22)
   Pope, Judge.

Defendant Tommy W. Welch appeals his conviction of one count of attempt to sell cocaine and two counts of violation of the Georgia Controlled Substances Act for the sale of cocaine. Although the defendant has no right to represent himself and also be represented by counsel (Hance v. Kemp, 258 Ga. 649 (1) (373 SE2d 184) (1988)), throughout the proceedings the trial court permitted representation both by defendant and by his counsel. On appeal, defendant and his counsel filed separate enumerations of error and separate briefs. We have examined both sets of enumerations of error and find no reversible error.

1. Both defendant and his counsel argue the trial court erred in denying his motion for directed verdict to Count I of the indictment, charging defendant with attempt to sell cocaine. The indictment alleged defendant agreed to sell “a quantity of cocaine” to an undercover agent and agreed upon “price and quantity.” Both defendant and his counsel argue no evidence was presented to prove the allegations of this count of the indictment. We disagree. Two informants who assisted the undercover officers in the transactions with defendant and his co-defendants testified that defendant agreed to provide them with cocaine at a later time if they would give him $200. One of the informants testified defendant “talked about weight and volume.” We conclude the evidence was sufficient to create an issue for jury determination and the trial court did not err in denying defendant’s motion for directed verdict on this count.

2. Both defendant and his counsel argue the trial court erred in denying defendant’s motion for directed verdict on Counts II and III of the indictment, charging him with the sale of cocaine. Both argue that the only evidence implicating defendant in the two transactions is the conflicting testimony of the two informants who admitted they were convicted drug violators. The credit to be given the testimony of a witness where impeached for conviction of a crime involving moral turpitude is for the jury to determine under proper instructions from the court. Taylor v. Marsh, 107 Ga. App. 575 (1) (130 SE2d 770) (1963). The record shows the jury was properly instructed concerning the credibility of witnesses, and we cannot say the witness’ testimony was insufficiently credible to submit the issue of defendant’s guilt to the jury.

The inconsistency between the testimony of the two informant witnesses concerned the order in which the two sales occurred and the exact number of packages of crack cocaine which were sold. One witness stated defendant first made a sale of 13 small bags of crack cocaine at a trailer late at night. According to this witness, after midnight he and the other informant went to a house near the trailer and defendant sold him another six bags of cocaine. The witness identified the two groups of packages of cocaine as exhibits which were introduced into evidence. The other informant witness testified defendant sold approximately ten bags of crack cocaine at the house between 10:00 and 11:00 p.m., and after midnight the two informants went to a trailer. This witness, however, admitted his recollection of the details of the two transactions could have been affected by the passage of time between the transactions and the date of the trial. “The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict.” King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981). The inconsistencies between the testimony of the two informant witnesses were minor and explainable and the trial court did not err in denying defendant’s motion for directed verdict as to Counts II and III.

3. Both defendant and his counsel argue the evidence was insufficient to sustain his convictions. We have examined the record and conclude the evidence was sufficient so that a rational trier of fact could find the essential elements of each of the crimes charged beyond a reasonable doubt.

4. We reject the argument of defendant’s counsel that the trial court erred in admitting in evidence the cocaine which one of the informant witnesses identified as that which the defendant sold him. We have examined the trial transcript and, contrary to counsel’s argument, we conclude the State proved an adequate chain of custody for the evidence.

5. Defendant, acting pro se, argues the trial court erred in allowing the prosecutor to state during his opening statement that one of defendant’s co-defendants pled guilty to the charges. The prosecutor’s statement does not appear in the record. The record does reflect, however, that when an objection was raised to the comment the prosecutor noted that his statement contained no indication that the co-defendant had implicated the other defendants. The co-defendant’s plea was not admitted into evidence but was merely mentioned in the prosecutor’s opening statement. The trial court instructed the jury that the opening statements of the attorneys were not evidence in the case. Thus, the prosecutor’s reference did not violate OCGA § 24-3-52, which prohibits the confession of one joint offender from being admissible in evidence against another joint offender. It was not unreasonable for the prosecutor to reveal that one of defendant’s two co-defendants pled guilty as a way to explain to the jury why only two of the three individuals named in the indictments involved in this case were being tried.

6. In regard to testimony concerning an in-custody statement defendant made to an officer in which he admitted he had dealt in crack cocaine, defendant argues the testimony was hearsay and the trial court erred in failing to give limiting instructions to the jury. Testimony concerning the defendant’s own in-custody statement is not a violation of the hearsay rule. See Green, Ga. Law of Evidence, § 234 (2d ed.).

Although the issue was neither addressed in his enumeration of error nor raised at trial, defendant also argues the testimony improperly introduced his character into evidence because it related to prior criminal transactions. Defendant thus contends the trial court erred in failing to instruct the jury to disregard evidence of his general character or conduct in previous transactions not at issue in the case at trial. Although we are not required to consider arguments which are beyond the scope of the enumerated error (MacDonald v. MacDonald, 156 Ga. App. 565 (1) (a) (275 SE2d 142) (1980)), this court is nevertheless indulgent in examining all arguments raised by a criminal defendant acting pro se. The testimony of the officer concerning defendant’s in-custody statement did not explicitly raise the issue of other unrelated criminal transactions but merely consisted of testimony that defendant admitted dealing in drugs and offered to provide the State with the identities of his suppliers. At trial defendant requested no instruction to the jury to disregard evidence of defendant’s character or evidence relating to previous transactions, and in our opinion the trial court’s failure to give such instructions was not a substantial error which was harmful as a matter of law. See OCGA § 5-5-24 (c).

7. Defendant’s argument that he is entitled to discharge and acquittal pursuant to OCGA § 17-7-170 is meritless. The record shows defendant’s demand for trial was filed October 18, 1991, during the September term of the Paulding County Superior Court, and he was tried in April 1992, during the next succeeding February term of court. See OCGA § 15-6-3 (38) (B).

8. Finally, we reject defendant’s argument that the trial court erred in denying his motion, brought pursuant to The Uniform Act to Secure the Attendance of Witnesses From Without the State, OCGA § 24-10-90 et seq., to certify as material witnesses 75 individuals from Alabama and Ohio. At the pre-trial hearing, the only evidence presented in support of defendant’s motion was his statement in his place that the witnesses would be able to testify to his whereabouts on the dates at issue in the indictment. In response, the prosecutor stated that he had sent a letter requesting information to each person on defendant’s list and that only six had replied, five stating they did not know defendant and one stating he knew nothing about defendant’s whereabouts. The party desiring the attendance of an out-of-state witness must carry the burden of showing that the witness is necessary and material to the case. Chesser v. State, 168 Ga. App. 195 (308 SE2d 589) (1983); Mafnas v. State, 149 Ga. App. 286 (1) (254 SE2d 409) (1979). Where, as here, only hearsay evidence was used to show the necessity and materiality of the witnesses named in the petition, the trial court “did not err in the exercise of its sound discretion in denying the defendant’s certification petition.” Chesser v. State, 168 Ga. App. at 197.

Decided December 4, 1992

Reconsideration denied December 18, 1992

Tommy W. Welch, pro se.

Bagby, Bagby & Henley, T. Lee Henley, for appellant.

William A. Foster III, District Attorney, Thomas V. Driggers, James E. Barker, Assistant District Attorneys, for appellee.

Judgment affirmed. Johnson, J., concurs. Carley, P. J., concurs in judgment only.


text:
    A91A1337.
    THE STATE v. MORRIS.
    (427 SE2d 315)
    Decided November 12, 1992.

      Stephen F. Lanier, District Attorney, Tambra P. Colston, Assistant District Attorney, for appellant.

      Kenneth C. Fuller, for appellee.
   Pope, Judge.

This court having entered a judgment in the above-styled case at 202 Ga. App. 344 (414 SE2d 656) (1991) reversing the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court at 262 Ga. 446 (421 SE2d 524) (1992), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed. Birdsong, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A92A1660.
    FELTS v. THE STATE.
    (427 SE2d 25)
   Johnson, Judge.

Donald Wayne Felts was tried by a jury and convicted of aggravated assault, aggravated battery, and possession of a firearm during the commission of a felony. He entered a guilty plea to the charge of possession of a firearm by a convicted felon.

1. Felts complains that the trial court erred in allowing into evidence various statements and other items of evidence which he asserts were obtained without a knowing and voluntary waiver of his constitutional rights. In his brief, Felts argues that agents of the Georgia Bureau of Investigation and police officers at the scene “were hoping to take advantage of his intoxicated condition and obtain statements from him. . . .” This argument is controverted by Felts’ own testimony at the motion to suppress hearing held immediately before trial. The colloquy at the hearing related to this issue was as follows:

“DISTRICT ATTORNEY: Were you aware of what was going on around you?

FELTS: Yes, sir.

Q. When the officers read to you the — when Agent Kaplan read you the Miranda rights, did you understand what he was reading to you?

A. Yes, sir.

Q. Did you understand what you were signing when you signed the waiver of the Miranda rights?

A. Yes, sir.

Q. Did you understand what you were signing when you signed the waiver of rights to search your house?

A. Yes, sir.”

All of the officers and agents testified that although they could smell alcohol on Felts’ breath, he was articulate, enunciated clearly, and that his motor skills were not impaired. Based on his own testimony, and that of the other witnesses, we conclude that the trial court did not err in finding that Felts made a knowing and voluntary waiver of his rights. See Durden v. State, 250 Ga. 325, 327 (2) (297 SE2d 237) (1982); see also Studdard v. State, 185 Ga. App. 319, 321 (3) (363 SE2d 837) (1987) (where a suspect is coherent and his demeanor indicates that he understands his rights and has waived those rights, intoxication will not be a defense).

Felts also argues that certain statements voluntarily made by him prior to being administered his rights should have been disallowed. First, we note that Felts said nothing at that juncture that he did not repeat following the administration of his Miranda rights. “Miranda warnings ‘are required only when a law enforcement officer initiates questioning of an individual who has been taken into custody or otherwise significantly deprived of his freedom.’ ‘The issue of custody involves an objective standard: Would a reasonable person in the defendant’s situation have believed that he was physically deprived of his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and Miranda does not apply.’ ” (Citations omitted.) State v. Walker, 204 Ga. App. 1, 2 (418 SE2d 384) (1992). Perhaps in order to satisfy his own curiosity, Felts got into his truck and began driving off the property. None of the officers attempted to stop him. As Felts’ activities establish that he was not in custody, we do not find that the trial court erred in allowing the admission of the statements.

2. Felts also asserts that a rational trier of fact could not have found evidence beyond a reasonable doubt that he possessed the requisite intent to commit the crimes of aggravated assault and aggravated battery. In a statement given to police some hours after the incident, Felts admitted: “Mike (the victim) was being real loud, and I had enough. I grabbed my rifle (.22 caliber) from behind the front door of the living room and pointed it at Mike. I asked Mike if I was going to have to shoot him and called him a son of a bitch to quiet him down. The rifle went off. I really didn’t realize I had pulled the trigger. I believe I shot about 5 times on the porch. I know I hit Mike one time on his left shoulder. ... I remember I kicked Mike twice with my snake skin cowboy boots, but mostly I hit Mike with my fist.” This version of the facts was corroborated by an eyewitness to the events. As the jury was correctly charged in this case: “(Intent) may be inferred from the proven circumstances or by acts and conduct, or it may be in your discretion inferred when it is the natural and necessary consequences of an act.” Viewing the evidence in the light most favorable to the verdict, we find the evidence and all reasonable deductions therefrom are such that a rational trier of fact could have found that Felts possessed the requisite intent and was guilty of aggravated assault, aggravated battery, and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 4, 1993.

Herbert W. Benson, for appellant.

David E. Perry, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


text:
    A92A2285.
    CRUMBLEY v. THE STATE.
    (427 SE2d 27)
   Johnson, Judge.

Eddie Lee Crumbley was convicted of entering an automobile in violation of OCGA § 16-8-18. In his only enumeration of error, Crumbley contends that the trial court erred in denying his motion for a directed verdict of acquittal. “ ‘A directed verdict in a criminal case is warranted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of not guilty, that is, where an acquittal is the only legal finding possible.’ ” (Citations omitted.) Womble v. State, 203 Ga. App. 107 (416 SE2d 148) (1992). The evidence at trial showed that the victim called the police after witnessing two people near her parked car. The ignition, gear shift lever and dashboard of the victim’s auto were damaged. The officer who responded to the victim’s call found two men at the victim’s car and saw another car with the hood up several hundred yards away. As the officer approached, the two men fled. At the same time, someone slammed shut the hood of the other car and it sped away. The officer called for backup and a high-speed chase ensued. The chase ended when the engine in the get-away car burned out.

Decided January 4, 1993.

Arthur J. Shelfer, Jr., for appellant.

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

Freddie Mango, who was also charged, entered a guilty plea in connection with the incident. Mango was called as a witness for the state, and testified that he, Crumbley and three other individuals had planned and executed the break-in of the victim’s car for the purpose of stealing parts. Mango identified Crumbley as the person who initially checked to see if the victim’s car was locked. Mango also testified that Crumbley had helped in figuring out how to break the car’s gear shift, and had been the driver of the get-away car during the high speed chase.

Crumbley gave a written statement admitting that he was present at the scene of the crime and during the other perpetrators’ conversations about breaking into the car. He also admitted that he raised the hood of the get-away car “so it would look like it was broke (sic) down if anyone came by” and that he fled on foot when the police arrived.

“The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citations and punctuation omitted.) Johnson v. State, 201 Ga. App. 88, 89 (1) (410 SE2d 189) (1991). Viewing the evidence in the light most favorable to the verdict, we find the evidence and all reasonable deductions therefrom are such as to enable a rational trier of fact to find Crumbley guilty beyond a reasonable doubt of entering an automobile. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the court correctly denied Crumbley’s motion for a directed verdict of acquittal.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Andrews, Judge.

text:
    A92A1926.
    JOHNSON v. THE STATE.
    (427 SE2d 29)
   Andrews, Judge.

Johnson was tried and convicted of burglary and appeals.

Viewing the evidence in the light most favorable to the verdict, it was that on December 14, 1991, Lurlline Chitman, Johnson’s ex-girl friend, returned to her apartment and found a window broken. She suspected a burglary in progress, suspected that Johnson might be the perpetrator and called 911.

The police arrived, but found no signs of a forced entry. During a search of the apartment, they found insulation hanging out from a trap door in the bathroom closet. They climbed into the crawl space above the apartment and found Johnson lying between the rafters about eight feet away from the trap door. A letter which Johnson had written was located adjacent to the place Johnson had been lying. The letter was to Ms. Chitman, and referred to recent problems in their relationship and stated in part: “I understand that I get wild and violent from time to time. . . .” In the top of the bathroom closet was a kitchen knife, which had been taken from Chitman’s kitchen.

During his relationship with Chitman, Johnson had stayed overnight at her apartment on several occasions. Nevertheless, Chitman had not given Johnson a key to her apartment. On the night of December 14, Chitman was concerned that Johnson might come to her residence based on a hostile conversation between the two earlier that same day and on his previous violent behavior towards her.

Johnson also testified at trial. He claimed that he was living at Chitman’s apartment on December 14, 1991, and that he had a key to the apartment. He also testified that he had arranged for a telephone line to be installed in the apartment, which he had contracted for in the name of “Darryl Walker.” Johnson admitted that he and Chitman had an argument on December 14 and that he had previously been physically violent towards her. He also admitted that he was on probation on December 14 for theft by receiving of an automobile, that he had violated his probation by failing to report and pay his fine, and that he was attempting to elude authorities for as long as possible.

1. In his first enumeration of error, Johnson claims that the evidence was insufficient as a matter of law to support a conviction for burglary. Citing Hamby v. State, 173 Ga. App. 750 (328 SE2d 224) (1985) and Johnson v. State, 158 Ga. App. 432 (280 SE2d 856) (1981), he argues that the burglary conviction was invalid, since it was predicated on Johnson entering the residence to commit an aggravated assault, and there was no showing that Chitman had any immediate apprehension for her safety, a necessary element of the crime of aggravated assault.

We do not agree. The crime for which Johnson was convicted was burglary, not aggravated assault. “To complete the crime of burglary, it is not necessary that a defendant actually commit a theft or a felony; it is sufficient if he enters without authority and with the intent to commit a theft or a felony.” (Citations and punctuation omitted.) Childs v. State, 257 Ga. 243, 251 (12) (357 SE2d 48) (1987); Whittlesey v. State, 192 Ga. App. 667 (385 SE2d 757) (1989). In this case, there was sufficient evidence that Johnson entered the apartment without authority and with the intent to commit an aggravated assault. Accordingly, the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration, Johnson contends that the court erred by improperly charging the jury and thereby deprived him of his due process rights. At the outset, we note that appellant has failed to separately delineate his arguments as separate enumerations of error as required by the rules of this court. See generally Court of Appeals Rule 27 (e).

(a) Johnson first contends that the court charged the jury in a confusing and misleading manner by failing to give his requested instructions regarding burglary. We have reviewed the record and find that the court properly charged the jury regarding burglary pursuant to OCGA § 16-7-1 (a). See also Suggested Pattern Jury Instructions, Volume II: Criminal Cases, § 4 E 1 (c). Similarly, when read as a whole, the charge regarding aggravated assault was proper and we find no error. See generally OCGA § 16-5-21; Smith v. State, 140 Ga. App. 395 (1) (231 SE2d 143) (1976).

(b) Next, Johnson claims that the court erred in advising defense counsel that it would not charge the jury as to circumstantial evidence and then, after closing argument, in reversing its position and so charging. We have reviewed the transcript of the charge conference and find no merit in Johnson’s contention that the court refused to charge on circumstantial evidence. The court refused to give one of Johnson’s requested charges concerning circumstantial evidence, but indicated that the court would give a general charge on the subject. Accordingly, Johnson’s argument has no merit.

(c) Johnson argues that the court erred by failing to give six of his requested charges. Johnson sets forth only general arguments in this regard and we find this contention without merit.

(d) Citing Hambrick v. State, 190 Ga. App. 119 (378 SE2d 340) (1989), Johnson claims that the court erred by failing to charge the jury regarding the lesser included offense of criminal trespass. We find this without merit, since Johnson failed to present a written charge on this point to the court and since criminal trespass was not his defense at trial. The transcript reveals that defense counsel requested if the court would charge on the subject of criminal trespass to which the court stated that it would not charge on that subject. “The court’s failure to charge a lesser included offense is not reversible error unless the accused by ‘written application to the trial judge at or before the close of the evidence’ requests such charge.” Lovett v. State, 165 Ga. App. 379 (301 SE2d 303) (1983); Workman v. State, 198 Ga. App. 455, 458 (4) (402 SE2d 76) (1991). Accordingly, we find no error.

Decided January 5, 1993.

Nannette D. Garrett, for appellant.

Robert E. Keller, District Attorney, Gina C. Shuman, Assistant District Attorney, for appellee.

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.


text:
    A92A2192.
    DAY v. NORMAN et al.
    (427 SE2d 31)
   Andrews, Judge.

Day, acting pro se, sued Norman and McCracken in their capacities as DeKalb County police officers for damages resulting from the alleged illegal impoundment of his vehicle at the time of his arrest. Both defendants were personally served with the complaint — Norman on June 8, 1991, and McCracken on June 12, 1991. On June 27, 1991, Day filed an amended complaint setting forth his allegations against the defendants in greater detail, and served both defendants with a copy by mail. Acting as counsel for both defendants, the DeKalb County attorney filed answers for the defendants on July 29, 1991, denominated as responses to the amended complaint. In Norman’s case the answer came 51 days after he was served with the original complaint, and in McCracken’s case 47 days after service of the original complaint.

Thereafter, Day moved for entry of a default judgment against the defendants. The county attorney defended by asserting that the answers were timely filed within 30 days of the date the defendants received the amended complaint by mail. On September 20, 1991, the trial court entered an order finding that the defendant’s answers were timely filed, and denying Day’s motion for entry of a default judgment. On June 25, 1992, the trial court granted the defendants’ motion (filed on January 27, 1992) to dismiss the action on grounds that it was barred by the applicable statute of limitation. Day appeals, enumerating as error the trial court’s denial of his motion for a default judgment, and the order dismissing the action.

1. “A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute.” OCGA § 9-11-12 (a). By failing to file an answer to Day’s original complaint within 30 days of being served, each defendant became automatically in default. OCGA § 9-11-55 (a). Neither defendant opened default as a matter of right , by filing defenses within 15 days of the day of default upon payment of costs. Id. Accordingly, Day became entitled to a default judgment, subject to determination of damages. Id. Of course, prior to entry of final judgment, if the defendants should file a motion to open default, the trial court may consider it, and exercise its discretion under the provisions of OCGA § 9-11-55 (b). B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131, 132 (230 SE2d 331) (1976).

The defendants’ argument that the answers were a timely response to the amended complaint has no merit. After the original complaint was served, Day was entitled to file an amended complaint as long as no pre-trial order was entered in the case. OCGA § 9-11-15 (a). Service of the amended complaint by mail was proper (see Locklear v. Morgan, 127 Ga. App. 326, 331 (193 SE2d 208) (1972)), and a response by the defendants, although permitted, was not required. OCGA § 9-11-15 (a). The amended complaint clearly arose out of the same conduct, transaction or occurrence giving rise to the original complaint, therefore the amendment related back to the date of the original complaint. OCGA § 9-11-15 (c); Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 734 (307 SE2d 530) (1983); Sam Finley, Inc. v. Interstate &c. Ins. Co., 135 Ga. App. 14, 18-20 (217 SE2d 358) (1975). The defendants were required to file timely answers to the original complaint, and answers filed more than 30 days after service of the original complaint were not sufficient to comply with the requirements of OCGA § 9-11-12 (a).

2. We render no opinion on the merits of the defendants’ motion based on the defense of the statute of limitation, but hold on procedural grounds that the trial court erred by ruling on this motion while the case was in default. Had a motion raising this defense been filed within 30 days of service of the complaint, the trial court would have been required to consider it on the merits, even in the absence of any answer to the complaint, before entering a default judgment. Hopkins v. Harris, 130 Ga. App. 489 (203 SE2d 762) (1973). Here, the motion raising the defense was not filed until long after the case was in default. The motion did not keep the case from being in default, nor is a defense to an action a ground in itself to opening default. Id.; Williams v. Coca-Cola Co., 158 Ga. App. 139, 140 (279 SE2d 261) (1981); B-X Corp., supra at 132; H. Gregory, Georgia Civil Practice, § 3-6 (A) (2) (1990).

Judgment reversed. Birdsong, P. J., and Beasley, J., concur.

Decided January 5, 1993.

Roger C. Day, pro se.

Albert S. Johnson, Melinda B. White, for appellees.